As filed with the U.S. Securities and Exchange Commission on September 20, 2021
Registration No. 333-258080
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________________
ISOS ACQUISITION CORPORATION*
(Exact name of registrant as specified in its charter)
____________________________
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Cayman Islands
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6770
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N/A
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(State or Other Jurisdiction of
Incorporation or Organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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55 Post Road West, Suite 200
Westport, CT 06880
(203) 554-5641
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
____________________________
George Barrios
Michelle Wilson
Co-Chief Executive Officers
Isos Acquisition Corporation
Westport, CT 06880
(203) 554-5641
(Name, address, including zip code, and telephone number, including area code, of agent for service)
____________________________
Copies to:
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Gary J. Simon, Esq.
Scott Naturman, Esq.
Anson B. Frelinghuysen, Esq.
Javad Husain, Esq.
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, NY 10004
(212) 837-6000
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David S. Huntington, Esq.
Paul, Weiss, Rifkind, Wharton &
Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
(212) 373-3000
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_____________________________
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this Registration Statement becomes effective and after all conditions under the Business Combination Agreement to consummate the proposed merger are satisfied or waived.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☐
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Emerging growth company
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☒
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act: ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
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Exchange Act Rule 13e-4(i)
(Cross-Border Issuer Tender Offer)
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☐
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Exchange Act Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer)
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☐
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CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered
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Amount to be
registered
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Proposed
maximum
offering
price per
share
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Proposed
maximum
aggregate
offering
price
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Amount of
registration
fee
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Class A common stock issuable to
Bowlero Stockholders(1)
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58,518,805
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N/A
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$
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1,952
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(2)
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$
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0.22
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Class A common stock issuable upon the conversion of Class B common stock issuable to Bowlero Stockholders(3)
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62,392,209
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N/A
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2,079
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(4)
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0.23
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Class A common stock issued on conversion of the Isos Class A ordinary shares and Isos Class B ordinary shares(5)
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31,854,625
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9.91
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(6)
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315,679,334
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34,440.62
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Redeemable warrants(7)
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13,892,394
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1.65
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(8)
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22,922,450
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2,500.84
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Class A common stock issuable upon the exercise of redeemable warrants(9)
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13,892,394
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—
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(10)
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—
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—
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Total Class A Common Stock:
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166,613,033
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Total:
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$
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338,605,815
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$
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36,941.96
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The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the SEC, acting pursuant to Section 8(a), may determine.
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The information in this preliminary proxy statement/prospectus is not complete and may be changed. Isos Acquisition Corporation may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary proxy statement/prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PRELIMINARY PROXY STATEMENT/PROSPECTUS DATED SEPTEMBER 20, 2021,
SUBJECT TO COMPLETION
PROXY STATEMENT FOR
EXTRAORDINARY GENERAL MEETING OF
ISOS ACQUISITION CORPORATION
(A CAYMAN ISLANDS EXEMPTED COMPANY)
___________________________________
PROSPECTUS FOR
166,613,033 SHARES OF COMMON STOCK AND
13,892,394 REDEEMABLE WARRANTS
OF ISOS ACQUISITION CORPORATION
(AFTER ITS DOMESTICATION AS A CORPORATION INCORPORATED IN THE STATE OF DELAWARE), THE CONTINUING ENTITY FOLLOWING THE DOMESTICATION, WHICH WILL BE RENAMED “BOWLERO CORP.” IN CONNECTION WITH THE BUSINESS COMBINATION DESCRIBED HEREIN
____________________________________
The board of directors of Isos Acquisition Corporation, a Cayman Islands exempted company (“Isos”), has unanimously approved (1) the domestication of Isos as a Delaware corporation (the “Domestication”); (2) the merger of Bowlero with and into Isos, with Isos surviving such merger (the “Business Combination”), pursuant to the Business Combination Agreement attached to this proxy statement/prospectus as Annex A (the “Business Combination Agreement”), as more fully described elsewhere in this proxy statement/prospectus; and (3) the other transactions contemplated by the Business Combination Agreement and documents related thereto. Following the Domestication and in connection with the Business Combination, Isos will change its name to “Bowlero Corp.” For purposes of this proxy statement/prospectus, Isos after the Domestication (and, to the extent applicable, the Business Combination) is referred to as “New Bowlero.”
The Isos units, Isos Class A ordinary shares and Isos warrants are currently listed on the New York Stock Exchange (“NYSE”) under the symbols “ISOS.U,” “ISOS” and “ISOS WS,” respectively. Isos will apply for listing, to be effective at the closing of the Business Combination, of New Bowlero Class A common stock and New Bowlero warrants on the NYSE under the proposed symbols “BOWL” and “BOWL.W”, respectively. It is a condition of the consummation of the Business Combination described above that Isos receives confirmation from the NYSE that the securities have been conditionally approved for listing on the NYSE, but there can be no assurance such listing conditions will be met or that Isos will obtain such confirmation from the NYSE. If such listing conditions are not met or if such confirmation is not obtained, the Business Combination described above will not be consummated unless the Stock Issuance condition set forth in the Business Combination Agreement is waived by the applicable parties.
As a result of the Business Combination, all Bowlero Stockholders, other than Tom Shannon, Bowlero’s CEO, will receive New Bowlero Class A common stock. Mr. Shannon will receive New Bowlero Class B common stock in the Business Combination. New Bowlero Class B common stock will rank pari passu with New Bowlero Class A common stock in all respects, except that it will be entitled to super voting rights of ten (10) votes per share as described herein. See “Description of Securities After the Business Combination — Common Stock.” Upon consummation of the Business Combination, for purposes of the NYSE, New Bowlero will be a “controlled company,” although New Bowlero does not currently intend to take advantage of any exemptions from corporate governance standards available to controlled companies. Under the NYSE rules, controlled companies are companies of which more than 50% of the voting power for the election of directors is held by an individual, a group, or another company. Upon completion of the Business Combination, Mr. Shannon will, directly or indirectly, hold approximately 84.7% of the voting power of New Bowlero’s capital stock.
This proxy statement/prospectus provides shareholders of Isos with detailed information about the proposed business combination and other matters to be considered at the extraordinary general meeting of Isos. We encourage you to read this entire document, including the Annexes and other documents referred to herein, carefully and in their entirety. You should also carefully consider the risk factors described in the section titled “Risk Factors” beginning on page 38 of this proxy statement/prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED IN THIS PROXY STATEMENT/PROSPECTUS, PASSED UPON THE MERITS OR FAIRNESS OF THE BUSINESS COMBINATION OR RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS PROXY STATEMENT/PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
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ISOS ACQUISITION CORPORATION
55 Post Road West, Suite 200
Westport, CT 06880
NOTICE OF EXTRAORDINARY GENERAL MEETING
TO BE HELD ON , 2021
TO THE SHAREHOLDERS OF ISOS ACQUISITION CORPORATION:
NOTICE IS HEREBY GIVEN that an extraordinary general meeting (the “extraordinary general meeting”) of Isos Acquisition Corporation, a Cayman Islands exempted company, company number 369645 (“Isos”), will be held at , Eastern Time, on , 2021. For the purposes of Cayman Islands law and the amended and restated memorandum and articles of association of Isos, the physical location of the extraordinary general meeting shall be at the offices of Hughes Hubbard & Reed LLP, at One Battery Park Plaza, New York, NY 10004, or you or your proxyholder will be able to attend and vote at the extraordinary general meeting online by visiting and using a control number assigned by Continental Stock Transfer. For purposes of this proxy statement/prospectus, Isos after the Domestication (and, to the extent applicable, the Business Combination) is referred to as “New Bowlero.”
You are cordially invited to attend the extraordinary general meeting, which will be held for the following purposes:
• Proposal No. 1 — The BCA Proposal — to consider and vote upon a proposal to approve by ordinary resolution and adopt the Business Combination Agreement, dated as of July 1, 2021, (the “Business Combination Agreement”), by and among Isos and Bowlero, a copy of which is attached to this proxy statement/prospectus statement as Annex A. The Business Combination Agreement provides for, among other things, the merger of Bowlero with and into Isos (the “Merger”), with Isos surviving the Merger, in accordance with the terms and subject to the conditions of the Business Combination Agreement as more fully described elsewhere in this proxy statement/prospectus (the “BCA Proposal”);
• Proposal No. 2 — The Domestication Proposal — to consider and vote upon a proposal to approve by special resolution, the change of Isos’s jurisdiction of incorporation by deregistering as an exempted company in the Cayman Islands and continuing and domesticating as a corporation incorporated under the laws of the State of Delaware (the “Domestication” and, together with the Merger, the “Business Combination”) (the “Domestication Proposal”);
• Proposal No. 3 — Organizational Documents Proposals — to consider and vote upon the following separate proposals (collectively, the “Organizational Documents Proposals”) to approve by special resolution, the proposed new certificate of incorporation (the “Proposed Certificate of Incorporation” and the proposed new bylaws (the “Proposed Bylaws” and together with the Proposed Certificate of Incorporation, the “Proposed Organizational Documents”), including the following material differences between Isos’s Amended and Restated Memorandum and Articles of Association (as may be amended from time to time, the “Cayman Constitutional Documents”) and the Proposed Organizational Documents of Isos Acquisition Corporation (a corporation incorporated in the State of Delaware, and the filing with and acceptance by the Secretary of State of Delaware of the certificate of domestication in accordance with Section 388 of the Delaware General Corporation Law (the “DGCL”)):
• (A) Organizational Documents Proposal 3A — to authorize the change in the authorized capital stock of Isos from 300,000,000 Class A ordinary shares, par value $0.0001 per share (the “Isos Class A ordinary shares”), 20,000,000 Isos Class B ordinary shares, par value $0.0001 per share (the “Isos Class B ordinary shares” and, together with the Isos Class A ordinary shares, the “Isos ordinary shares”), and 1,000,000 preference shares, par value $0.0001 per share, to 2,400,000,000 shares of capital stock of New Bowlero, consisting of 2,000,000,000 shares of Class A common stock, par value $0.0001 per share, of New Bowlero (the “New Bowlero Class A common stock”), 200,000,000 shares of Class B common stock, par value $0.0001 per share, of
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New Bowlero (the “New Bowlero Class B common stock”), and 200,000,000 shares of preferred stock, par value $0.0001 per share, of New Bowlero (the “New Bowlero preferred stock”) (“Organizational Documents Proposal 3A”);
• (B) Organizational Documents Proposal 3B — to authorize the board of directors of Bowlero to issue any or all shares of Bowlero Preferred Stock in one or more classes or series, with such terms and conditions as may be expressly determined by the Board and as may be permitted by the DGCL (“Organizational Documents Proposal 3B”);
• (C) Organizational Documents Proposal 3C — to authorize adopting Delaware as the exclusive forum for certain stockholder litigation (“Organizational Documents Proposal 3C”);
• (D) Organizational Documents Proposal 3D — to authorize electing not to be governed by Section 203 of the DGCL relating to takeovers by interested stockholders and, instead, be governed by a provision substantially similar to Section 203 of the DGCL (“Organizational Documents Proposal 3D”);
• (E) Organizational Documents Proposal 3E — to approve provisions providing that the affirmative vote of at least two-thirds of the voting power of all the then-outstanding shares of capital stock entitled to vote generally in the election of directors will be required for stockholders to adopt, amend, or repeal certain provisions of the Proposed Certificate of Incorporation or the Proposed Bylaws (“Organizational Documents Proposal 3E”);
• (F) Organizational Documents Proposal 3F — to approve provisions permitting the removal of a director only upon the affirmative vote of the holders of at least two-thirds in voting power of all the then-outstanding shares of stock of the Company entitled to vote thereon, voting together as a single class, if the New Bowlero Class B common stock issued and outstanding represents less than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders (“Organizational Documents Proposal 3F”);
• (G) Organizational Documents Proposal 3G — to approve provisions entitling holders of shares of New Bowlero Class A common stock to cast one vote per share of New Bowlero Class A common stock and holders of shares of New Bowlero Class B common stock to cast 10 votes per share of New Bowlero Class B common stock on each matter properly submitted to New Bowlero’s stockholders entitled to vote, as opposed to each Isos Class A ordinary share and Isos Class B ordinary share being entitled to one vote per share on each matter properly submitted to Isos’s shareholders entitled to vote (“Organizational Documents Proposal 3G”); and
• (H) Organizational Documents Proposal 3H — to provide for certain additional changes, including, among other things, (i) changing the corporate name from “Isos Acquisition Corporation” to “Bowlero Corp.”, (ii) making New Bowlero’s corporate existence perpetual, and (iii) removing certain provisions related to Isos’s status as a blank check company that will no longer be applicable upon consummation of the Transactions, all of which Isos’s board of directors believes is necessary to adequately address the needs of New Bowlero after the Transactions (“Organizational Documents Proposal 3H”);
• Proposal No. 4 — The Director Election Proposal — to consider and vote upon a proposal to approve by ordinary resolution, assuming the BCA Proposal, the Domestication Proposal and the Organizational Documents Proposals are approved, to elect nine directors, who, upon consummation of the Business Combination, will be the directors of New Bowlero (the “Director Election Proposal”);
• Proposal No. 5 — The Stock Issuance Proposal — to consider and vote upon a proposal to approve by ordinary resolution for purposes of complying with the applicable provisions of the NYSE, the issuance of (a) New Bowlero Class A common stock and New Bowlero preferred stock to the PIPE Investors, (b) shares of New Bowlero common stock and New Bowlero preferred stock to the Bowlero Stockholders pursuant to the Business Combination Agreement, (c) New Bowlero Class A common
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stock issuable upon conversion of the New Bowlero preferred stock to be issued pursuant to the Business Combination Agreement or to be issued and sold in the Preferred PIPE Offering, and (d) shares of New Bowlero Class A common stock to the Forward Purchase Investors (the “Stock Issuance Proposal”);
• Proposal No. 6 — The Incentive Plan Proposal — to consider and vote upon a proposal to approve by ordinary resolution the Bowlero Corp. 2021 Omnibus Incentive Plan (the “Incentive Plan Proposal”);
• Proposal No. 7 — The ESPP Proposal — to consider and vote upon a proposal to approve by ordinary resolution the Bowlero Corp. Employee Stock Purchase Plan (the “ESPP Proposal”); and
• Proposal No. 8 — The Adjournment Proposal — to consider and vote upon a proposal to approve the adjournment of the extraordinary general meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event that there are insufficient votes for the approval of one or more proposals at the extraordinary general meeting (the “Adjournment Proposal”).
Each of Proposals No. 1 through 7 (including each of 3(A) through 3(H) (each, a “Condition Precedent Proposal”) is cross-conditioned on the approval of each other. The Adjournment Proposal is not conditioned upon the approval of any other proposal set forth in this proxy statement/prospectus.
These items of business are described in this proxy statement/prospectus, which we encourage you to read carefully and in its entirety before voting.
Only holders of record of ordinary shares at the close of business on , 2021 are entitled to notice of, to vote and have their votes counted at the extraordinary general meeting and any adjournment of the extraordinary general meeting.
This proxy statement/prospectus and accompanying proxy card is being provided to Isos’s shareholders in connection with the solicitation of proxies to be voted at the extraordinary general meeting and at any adjournment of the extraordinary general meeting. Whether or not you plan to attend the extraordinary general meeting, all of Isos’s shareholders are urged to read this proxy statement/prospectus, including the Annexes and the documents referred to herein, carefully and in their entirety. You should also carefully consider the risk factors described in the section titled “Risk Factors” beginning on page 38 of this proxy statement/prospectus.
After careful consideration, the board of directors of Isos has unanimously approved the Business Combination and unanimously recommends that shareholders vote “FOR” adoption of the Business Combination Agreement, and approval of the transactions contemplated thereby, including the Business Combination, and “FOR” all other proposals presented to Isos’s shareholders in this proxy statement/prospectus. When you consider the recommendation of these proposals by the board of directors of Isos, you should keep in mind that Isos’s directors and officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination” in this proxy statement/prospectus for a further discussion of these considerations.
Pursuant to the Cayman Constitutional Documents, a public shareholder may request of Isos that New Bowlero redeem all or a portion of its public shares for cash if the Business Combination is consummated. As a holder of public shares, you will be entitled to receive cash for any public shares to be redeemed only if you:
(i) (a) hold public shares, or (b) if you hold public shares through units, you elect to separate your units into the underlying public shares and public warrants prior to exercising your redemption rights with respect to the public shares;
(ii) submit a written request to Continental Stock Transfer & Trust Company (“Continental”), Isos’s transfer agent, that New Bowlero redeem all or a portion of your public shares for cash; and
(iii) deliver your public shares to Continental, Isos’s transfer agent, physically or electronically through The Depository Trust Company (“DTC”).
Holders must complete the procedures for electing to redeem their public shares in the manner described above prior to 5:00 p.m., Eastern Time, on , 2021 (two business days before the extraordinary general meeting in order for their shares to be redeemed).
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Holders of units must elect to separate the units into the underlying public shares and warrants prior to exercising redemption rights in respect of the public shares. If holders hold their units in an account at a brokerage firm or bank, holders must notify their broker or bank that they elect to separate the units into the underlying public shares and warrants, or if a holder holds units registered in its own name, the holder must contact Continental, Isos’s transfer agent, directly and instruct them to do so. Public shareholders may elect to redeem public shares regardless of if or how they vote with respect to the BCA Proposal. If the Business Combination is not consummated, the public shares will be returned to the respective holder, broker or bank.
If the Business Combination is consummated, and if a public shareholder properly exercises its right to redeem all or a portion of the public shares that it holds and timely delivers its shares to Continental, Isos’s transfer agent, New Bowlero will redeem such public shares for a per-share price, payable in cash, equal to the pro rata portion of the trust account established at the consummation of our initial public offering (the “trust account”), calculated as of two business days prior to the consummation of the Business Combination. For illustrative purposes, as of August 31, 2021, this would have amounted to approximately $10.00 per issued and outstanding public share. If a public shareholder exercises its redemption rights in full, then it will be electing to exchange its public shares for cash and will no longer own public shares. See “Extraordinary General Meeting of Isos Shareholders — Redemption Rights” in this proxy statement/prospectus for a detailed description of the procedures to be followed if you wish to redeem your public shares for cash.
Notwithstanding the foregoing, a public shareholder, together with any affiliate of such public shareholder or any other person with whom such public shareholder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (“Exchange Act”)), will be restricted from redeeming its public shares with respect to more than an aggregate of 15% of the public shares. Accordingly, if a public shareholder, alone or acting in concert or as a group, seeks to redeem more than 15% of the public shares, then any such shares in excess of that 15% limit would not be redeemed for cash.
Isos Acquisition Sponsor LLC, a Delaware limited liability company and Isos’s sponsor (the “Sponsor”), and LionTree Partners LLC, a Delaware limited liability company (“LionTree”), have each agreed to, among other things, vote in favor of the Business Combination Agreement and the transactions contemplated thereby, and to waive its redemption rights in connection with the consummation of the Business Combination with respect to any ordinary shares held by it, in each case, subject to the terms and conditions contemplated by the Sponsor Support Agreement, dated as of July 1, 2021, a copy of which is attached to this proxy statement/prospectus statement as Annex H (the “Sponsor Support Agreement”). As of the date of this proxy statement/prospectus, the Sponsor and LionTree collectively own 20.0% of the issued and outstanding ordinary shares.
The Business Combination Agreement provides that the obligations of Bowlero to consummate the Merger are conditioned on, among other things, that as of the Closing, the amount of cash available in the trust account, minus the aggregate amount of cash proceeds required to satisfy any redemptions of Isos Class A ordinary shares, plus the Forward Purchase Investment (as defined herein), plus amounts received from the PIPE Offerings (as defined herein) is equal to or greater than $520.0 million (the “Minimum Available Cash Amount”) (such condition, the “Minimum Cash Condition”). This condition is for the sole benefit of Bowlero. If such condition is not met, and such condition is not or cannot be waived under the terms of the Business Combination Agreement, then the Business Combination Agreement could terminate and the proposed Business Combination may not be consummated. In addition, pursuant to the Cayman Constitutional Documents, in no event will Isos redeem public shares in an amount that would cause its net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) to be less than $5,000,001.
The Business Combination Agreement is also subject to the satisfaction or waiver of certain other closing conditions as described in this proxy statement/prospectus. There can be no assurance that the parties to the Business Combination Agreement would waive any such provision of the Business Combination Agreement.
The approval of each of the Domestication Proposal and Organizational Documents Proposals requires the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. The BCA Proposal, the Director Election Proposal, the Stock Issuance Proposal, the Incentive Plan Proposal, the ESPP Proposal and the Adjournment Proposal require the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
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Your vote is very important. Whether or not you plan to attend the extraordinary general meeting in person or virtually, please vote as soon as possible by following the instructions in this proxy statement/prospectus to make sure that your shares are represented at the extraordinary general meeting. If you hold your shares in “street name” through a bank, broker or other nominee, you will need to follow the instructions provided to you by your bank, broker or other nominee to ensure that your shares are represented and voted at the extraordinary general meeting. The transactions contemplated by the Business Combination Agreement will be consummated only if the Condition Precedent Proposals are approved at the extraordinary general meeting. Each of the Condition Precedent Proposals is cross-conditioned on the approval of each other. The Adjournment Proposal is not conditioned upon the approval of any other proposal set forth in this proxy statement/prospectus.
If you sign, date and return your proxy card without indicating how you wish to vote, your proxy will be voted FOR each of the proposals presented at the extraordinary general meeting. If you fail to return your proxy card or fail to instruct your bank, broker or other nominee how to vote, and do not attend the extraordinary general meeting in person or virtually, the effect will be, among other things, that your shares will not be counted for purposes of determining whether a quorum is present at the extraordinary general meeting and will not be voted. An abstention or broker non-vote will be counted towards the quorum requirement but will not count as a vote cast at the extraordinary general meeting. If you are a shareholder of record and you attend the extraordinary general meeting and wish to vote in person or virtually, you may withdraw your proxy and vote in person.
Your attention is directed to the remainder of the proxy statement/prospectus following this notice (including the Annexes and other documents referred to herein) for a more complete description of the proposed Business Combination and related transactions and each of the proposals. You are encouraged to read this proxy statement/prospectus carefully and in its entirety, including the Annexes and other documents referred to herein. If you have any questions or need assistance voting your ordinary shares, please contact Morrow Sodali LLC (the “Proxy Solicitor”), our proxy solicitor, by calling (800) 662-5200 or banks and brokers can call collect at (203) 658-9400, or by emailing ISOS@info.morrowsodali.com.
Thank you for your participation. We look forward to your continued support.
By Order of the Board of Directors of Isos Acquisition Corporation
TO EXERCISE YOUR REDEMPTION RIGHTS, YOU MUST DEMAND IN WRITING THAT YOUR PUBLIC SHARES ARE REDEEMED FOR A PRO RATA PORTION OF THE FUNDS HELD IN THE TRUST ACCOUNT AND TENDER YOUR SHARES TO ISOS’S TRANSFER AGENT BY NO LATER THAN , 2021 (AT LEAST TWO BUSINESS DAYS PRIOR TO THE VOTE AT THE EXTRAORDINARY GENERAL MEETING). YOU MAY TENDER YOUR SHARES BY EITHER DELIVERING YOUR SHARE CERTIFICATE TO THE TRANSFER AGENT OR BY DELIVERING YOUR SHARES ELECTRONICALLY USING THE DEPOSITORY TRUST COMPANY’S DWAC (DEPOSIT WITHDRAWAL AT CUSTODIAN) SYSTEM. IF THE BUSINESS COMBINATION IS NOT CONSUMMATED, THEN THESE SHARES WILL BE RETURNED TO YOU OR YOUR ACCOUNT. IF YOU HOLD THE SHARES IN STREET NAME, YOU WILL NEED TO INSTRUCT THE ACCOUNT EXECUTIVE AT YOUR BANK OR BROKER TO WITHDRAW THE SHARES FROM YOUR ACCOUNT IN ORDER TO EXERCISE YOUR REDEMPTION RIGHTS.
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FREQUENTLY USED TERMS
Unless otherwise stated or unless the context otherwise requires, the terms “we,” “us,” “our,” and “Isos” refer to Isos Acquisition Corporation, a Cayman Islands exempted company, and the term “New Bowlero” refers to Isos Acquisition Corporation following consummation of the Domestication (and, to the extent applicable, the Business Combination, in connection with which Isos Acquisition Corporation is expected to be renamed “Bowlero Corp.”).
In this document:
“Adjournment Proposal” means the proposal to be considered at the extraordinary general meeting to adjourn the extraordinary general meeting to a later date or dates, if necessary to permit further solicitation and vote of proxies in the event that there are insufficient votes to approve one or more proposal at the Special Meeting.
“Atairos” means A-B Parent LLC, a Delaware limited liability company.
“BCA” means the Business Combination Agreement, dated as of July 1, 2021, between Isos and Bowlero.
“BCA Proposal” means the proposal to be considered at the extraordinary general meeting to approve the ordinary resolutions and adopt the Business Combination Agreement.
“Bowlero” means Bowlero Corp., a Delaware corporation, and its subsidiaries, prior to the Closing of the Business Combination (which is expected to merge with and into Isos).
“Bowlero Common Stock” means each share of Bowlero’s common stock, par value $0.0001 per share, issued and outstanding as of immediately prior to the Effective Time.
“Bowlero Preferred Stock” means each share of Bowlero’s preferrerd stock, par value $0.0001 per share, issued and outstanding as of immediately prior to the Effective Time.
“Bowlero Stockholder” means any holder of any share of Bowlero capital stock.
“Business Combination” means the proposed merger of Bowlero with and into Isos, with Isos surviving such merger.
“Cayman Constitutional Documents” means the Isos Amended and Restated Memorandum and the Isos Articles of Association.
“Closing” means the closing of the Business Combination.
“Common PIPE Investors” means investors that subscribed for New Bowlero Class A common shares in the Common PIPE Offering.
“Common PIPE Offering” means the agreement by Isos to sell to the Common PIPE Investors, an aggregate of 15 million Class A common shares of New Bowlero for a purchase price of $10.00 per share for an aggregate of $150.0 million.
“Common PIPE Subscription Agreements” means those certain subscription agreements, each dated as of July 1, 2021, with a number of Common PIPE Investors, including Isos’s Co-Chief Executive Officers, George Barrios and Michelle Wilson, and LionTree, pursuant to which, substantially concurrent with the Closing of the Business Combination, the Common PIPE Investors agreed to purchase and Isos agreed to sell the Common PIPE Shares.
“Company” means Isos Acquisition Corporation, a Delaware corporation.
“Director Election Proposal” means the proposal to be considered at the extraordinary general meeting to elect nine directors, who upon consummation of the Business Combination, will be the directors of New Bowlero.
“Domestication” means to transfer by way of continuation to and domesticate as a Delaware corporation in accordance with Section 388 of the Delaware General Corporation Law and Part XII of the Cayman Islands Companies Act (As Revised).
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“Domestication Proposal” means the proposal to be considered at the extraordinary general meeting to approve by special resolution, the change of Isos’s jurisdiction of incorporation by deregistering as an exempted company in the Cayman Islands and continuing and domesticating as a corporation incorporated under the laws of the State of Delaware.
“Effective Time” means the effective time of the Merger.
“ESPP Proposal” means the proposal to be considered at the extraordinary general meeting to approve by ordinary resolution the Bowlero Corp. Employee Stock Purchase Plan.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Forward Purchase Contract” means that certain Amended and Restated Forward Purchase Contract, dated as of July 1, 2021, among Isos and the subscribers party thereto pursuant to which the subscribers agreed to purchase 10 million shares of New Bowlero Class A common stock and warrants to purchase 3,333,333 shares of New Bowlero Class A common stock for an aggregate purchase price of $100.0 million on closing of the Business Combination, subject to the terms and conditions set forth therein.
“Forward Purchase Investors” means the subscribers pursuant to the Forward Purchase Contract.
“Incentive Plan Proposal” means the proposal to be considered at the extraordinary general meeting to approve by ordinary resolution the Bowlero Corp. 2021 Omnibus Incentive Plan.
“Isos” or “the Company” means Isos Acquisition Corporation, a Cayman Islands exempted company (which is expected to transfer by way of continuation to and domesticate as a Delaware corporation in accordance with the BCA).
“Isos Board” means the board of directors of Isos.
“Isos Articles of Association” means the articles of association of Isos, as amended and restated, in effect prior to the Domestication and the Business Combination.
“Isos Class A ordinary shares” means the shares of Isos’s Class A ordinary shares, par value $0.0001.
“Isos Class B ordinary shares” means the shares of Isos’s Class B ordinary shares, par value $0.0001.
“Isos ordinary shares” means, collectively, the Isos Class A ordinary shares and the Isos Class B ordinary shares.
“Isos Board” means the board of directors of Isos, prior to the Domestication and the Closing of the Business Combination.
“LionTree” means LionTree Partners LLC, a Delaware limited liability company.
“Merger” means the merger of Bowlero with and into Isos, with Isos surviving the Merger.
“New Bowlero” means Isos Acquisition Corporation after giving effect to the Domestication and the Business Combination.
“New Bowlero Board” means the board of directors of New Bowlero, after the Domestication and the Closing of the Business Combination.
“New Bowlero Class A common stock” means the common stock of New Bowlero, $0.0001 par value per share, designated as Class A common stock of New Bowlero in the Isos Certificate of Incorporation.
“New Bowlero Class B common stock” means the common stock of New Bowlero, $0.0001 par value per share, designated as Class B common stock of New Bowlero in the Isos Certificate of Incorporation.
“New Bowlero common stock” means the Class A common stock and Class B common stock of New Bowlero.
“New Bowlero preferred stock” means the shares of Series A convertible preferred stock, par value $0.0001 per share, of New Bowlero.
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“Organizational Documents Proposals” means the proposals to be considered at the extraordinary general meeting to approve by special resolution the proposed Organizational Documents, including certain material differences between the Cayman Constitutional Documents and the Proposed Organizational Documents.
“PIPE Investors” means the investors that subscribed for shares of New Bowlero Class A common stock and/or New Bowlero preferred stock in the PIPE Offerings.
“PIPE Offerings” means the Common PIPE Offering and the Preferred PIPE Offering.
“Preferred PIPE Investors” means investors that subscribed for Preferred PIPE shares.
“Preferred PIPE Offering” means the agreement by Isos to sell to the Preferred PIPE Investors an aggregate of 95,000 shares of Preferred PIPE Shares for a purchase price of $1,000.00 per share for an aggregate of $95.0 million.
“Preferred PIPE Shares” means an aggregate of 95,000 shares of New Bowlero preferred stock.
“Preferred PIPE Subscription Agreements” means those certain subscription agreements, each dated as of July 1, 2021, with a number of Preferred Subscribers, pursuant to which, substantially concurrent with the Closing of the Merger, the Preferred Subscribers agreed to purchase and Isos agreed to sell the Preferred PIPE Shares.
“Private Placement” means the private placement consummated simultaneously with the IPO on March 5, 2021 in which Isos issued to the Sponsor the Private Placement Warrants.
“Private Placement Warrant” means the warrants sold to the Sponsor and LionTree simultaneously with the IPO.
“Proposed Bylaws” means the proposed new bylaws of New Bowlero in connection to the Organizational Documents Proposals.
“Proposed Certificate of Incorporation” means the proposed new certificate of incorporation of New Bowlero in connection to the Organizational Documents Proposals.
“Proposed Organizational Documents” means the Proposed Certificate of Incorporation and the Proposed Bylaws.
“Sponsor” means Isos Acquisition Sponsor LLC, a Delaware limited liability company.
“Stock Issuance Proposal” means the proposal to be considered at the extraordinary general meeting to approve by ordinary resolution for purposes of complying with the applicable provisions of the NYSE, the issuance of (a) New Bowlero Class A common stock and New Bowlero preferred stock to the PIPE Investors, (b) shares of New Bowlero common stock and New Bowlero preferred stock to the Bowlero Stockholders pursuant to the Business Combination Agreement, (c) New Bowlero Class A common stock issuable upon conversion of the New Bowlero preferred stock to be issued pursuant to the Business Combination Agreement or to be issued and sold in the Preferred PIPE Offering, and (d) shares of New Bowlero Class A common stock to the Forward Purchase Investors;
“PIPE Subscription Agreements” means the Common PIPE Subscription Agreements and the Preferred PIPE Subscription Agreement.
“SEC” means the U.S. Securities and Exchange Commission or such other federal agency which at such time administers the Securities Act.
“Supporting Stockholders” means Atairos and TS.
“trust account” means the trust account of Isos, which holds the net proceeds of the IPO and the sale of the Private Placement Warrants, together with interest earned thereon.
“TS” means Cobalt Recreation LLC, a Delaware limited liability company. The managing member of Cobalt Recreation LLC is The Cobalt Group, LLC. The managing member of The Cobalt Group, LLC is Thomas F. Shannon.
“Working Capital Loans” means loans which may be provided by certain of the Company’s officers and directors in order to finance transaction costs in connection with a Business Combination.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This proxy statement/prospectus contains forward-looking statements regarding, among other things, the plans, strategies and prospects, both business and financial of Isos and Bowlero. These statements are based on the beliefs and assumptions of the management of Isos and Bowlero. Although Isos and Bowlero believe that their respective plans, intentions and expectations reflected in or suggested by these forward-looking statements are reasonable, neither Isos nor Bowlero can assure you that either will achieve or realize these plans, intentions or expectations. Forward-looking statements are inherently subject to risks, uncertainties and assumptions. Generally, statements that are not historical facts, including statements concerning possible or assumed future actions, business strategies, events or results of operations, are forward-looking statements. The words “anticipates,” “believe,” “continue,” “could,” “estimate,” “expect,” “intends,” “may,” “might,” “plan,” “possible,” “potential,” “predicts,” “project,” “should,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements in this proxy statement/prospectus include, but are not limited to, statements about our business strategy, financial projections, anticipated growth and market opportunities:
These forward-looking statements are based on information available as of the date of this proxy statement/prospectus, and current expectations, forecasts and assumptions, and involve a number of risks and uncertainties. Accordingly, forward-looking statements should not be relied upon as representing our views as of any subsequent date, and we do not undertake any obligation to update forward-looking statements to reflect events or circumstances after the date they were made, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.
In addition, statements that Isos or Bowlero “believes,” and similar statements reflect only such parties’ beliefs and opinions on the relevant subject. These statements are based upon information available to such party as of the date of this proxy statement/prospectus, and while such party believes such information forms a reasonable basis for such statements, such information may be limited or incomplete, and these statements should not be read to indicate that either Isos or Bowlero has conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.
You should not place undue reliance on these forward-looking statements in deciding how to grant your proxy or instruct how your vote should be cast or vote your shares on the proposals set forth in this proxy statement/ prospectus. As a result of a number of known and unknown risks and uncertainties, Bowlero’s or New Bowlero’s actual results or performance may be materially different from those expressed or implied by these forward-looking statements. Some factors that could cause Isos’s, Bowlero’s or New Bowlero’s actual results to differ include:
• the occurrence of any event, change or other circumstances that could give rise to the termination of the Business Combination;
• the outcome of any legal proceedings that may be instituted against Isos, Bowlero or others following announcement of the Business Combination and the transactions contemplated therein;
• the inability to complete the transactions contemplated by the Business Combination due to the failure to obtain approval of the shareholders of Isos or Bowlero or other conditions to closing in the Business Combination Agreement;
• the risk that the proposed Business Combination disrupts current plans and operations as a result of the announcement and consummation of the Business Combination;
• the ability to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, the ability of New Bowlero to grow and manage growth profitably, maintain relationships with customers, compete within its industry and retain its key employees;
• costs related to the proposed Business Combination;
• the possibility that Isos, Bowlero or New Bowlero may be adversely impacted by other economic, business, and/or competitive factors;
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• the risk that the market for Bowlero’s or New Bowlero’s entertainment offerings may not develop on the timeframe or in the manner that Bowlero currently anticipates;
• general economic conditions and uncertainties affecting markets in which Bowlero or New Bowlero operates and economic volatility that could adversely impact its business, including the COVID-19 pandemic;
• the ability of Bowlero or New Bowlero to attract new customers and retain existing customers;
• changes in consumer preferences and buying patterns;
• inability to compete successfully against current and future competitors in the highly competitive out-of-home and home-based entertainment markets;
• inability to operate venues, or obtain and maintain licenses and permits necessary for such operation, in compliance with laws, regulations and other requirements;
• damage to brand or reputation;
• its ability to successfully defend litigation brought against it;
• its ability to adequately obtain, maintain, protect and enforce our intellectual property and proprietary rights and claims of intellectual property and proprietary right infringement, misappropriation or other violation by competitors and third parties;
• failure to hire and retain qualified employees and personnel;
• fluctuations in Bowlero’s or New Bowlero’s operating results;
• security breaches, cyber-attacks and other interruptions to its and its third-party service providers’ technological and physical infrastructures;
• catastrophic events, including war, terrorism and other international conflicts, adverse weather conditions, public health issues or natural catastrophes and accidents;
• risk of increased regulation of its operations;
• the projected financial information, anticipated growth rate, and market opportunity of Bowlero and New Bowlero;
• the ability to obtain or maintain the listing of New Bowlero’s Class A common stock and warrants on NYSE following the completion of the Business Combination;
• Isos’s and New Bowlero’s public securities’ potential liquidity and trading;
• future capital needs of New Bowlero following the completion of the Business Combination;
• the significant uncertainty created by the COVID-19 pandemic and the negative impact of the COVID-19 pandemic on Bowlero and/or New Bowlero; and
• other risks and uncertainties indicated in this proxy statement/prospectus, including those under “Risk Factors” herein, and other filings that have been made or will be made with the SEC by Isos.
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QUESTIONS AND ANSWERS ABOUT THE PROPOSALS
The following questions and answers briefly address some commonly asked questions about the proposals to be presented at the extraordinary general meeting of Isos’s shareholders. The following questions and answers do not include all the information that is important to shareholders of Isos. We urge Isos’s shareholders to carefully read this entire proxy statement/prospectus, including the annexes and other documents referred to herein.
Q: Why am I receiving this proxy statement/prospectus?
A: Isos shareholders are being asked to consider and vote upon, among other proposals, a proposal to approve and adopt the Business Combination Agreement and approve the Business Combination. The Business Combination Agreement provides for, among other things, the merger of Bowlero with and into Isos, with Isos surviving such merger, in accordance with the terms and subject to the conditions of the Business Combination Agreement as more fully described elsewhere in this proxy statement/prospectus. See the section titled “The BCA Proposal” for more detail.
A copy of the Business Combination Agreement is attached to this proxy statement/prospectus as Annex A and you are encouraged to read it carefully and in its entirety.
Isos will change its jurisdiction of incorporation by effecting a deregistration under Section 206 of the Cayman Islands Companies Act and a domestication under Section 388 of the DGCL, pursuant to which Isos’s jurisdiction of incorporation will be changed from the Cayman Islands to the State of Delaware. See “The Domestication Proposal” for additional information.
The provisions of the Proposed Organizational Documents will differ materially from the Cayman Constitutional Documents. Please see “What amendments will be made to the current constitutional documents of Isos?” below.
THE VOTE OF SHAREHOLDERS IS IMPORTANT. SHAREHOLDERS ARE ENCOURAGED TO VOTE AS SOON AS POSSIBLE AFTER CAREFULLY REVIEWING THIS PROXY STATEMENT/PROSPECTUS, INCLUDING THE ANNEXES AND THE ACCOMPANYING FINANCIAL STATEMENTS OF ISOS AND BOWLERO, CAREFULLY AND IN ITS ENTIRETY.
Q: What proposals are shareholders of Isos being asked to vote upon?
A: At the extraordinary general meeting, Isos is asking holders of ordinary shares to consider and vote upon:
• a proposal to approve by ordinary resolution and adopt the Business Combination Agreement;
• a proposal to approve by special resolution the Domestication;
• the following separate proposals to approve by special resolution the Proposed Organizational Documents, including the following material differences between the Cayman Constitutional Documents and the Proposed Organizational Documents:
• to authorize the change in the authorized capital stock of Isos from 300,000,000 Isos Class A ordinary shares, 20,000,000 Isos Class B ordinary shares and 1,000,000 Isos preference shares, each par value $0.0001 per share, to 2,400,000,000 shares of capital stock of New Bowlero, consisting of 2,000,000,000 shares of New Bowlero Class A common stock, 200,000,000 shares of New Bowlero Class B common stock, and 200,000,000 shares of New Bowlero preferred stock;
• to authorize the board of directors of New Bowlero to issue any or all shares of New Bowlero preferred stock in one or more classes or series, with such terms and conditions as may be expressly determined by the New Bowlero Board and as may be permitted by the DGCL;
• to authorize adopting Delaware as the exclusive forum of certain stockholder litigation unless Bowlero expressly consents in writing to the selection of an alternative forum;
• to authorize electing not to be governed by Section 203 of the DGCL relating to takeovers by interested stockholders and, instead, be governed by a provision substantially similar to Section 203 of the DGCL;
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• to approve provisions providing that the affirmative vote of at least two-thirds of the voting power of all the then-outstanding shares of capital stock entitled to vote generally in the election of directors will be required for stockholders to adopt, amend, or repeal certain provisions of the Proposed Certificate of Incorporation or the Proposed Bylaws;
• to approve provisions permitting providing for the removal of directors only upon the affirmative vote of the holders of at least two-thirds in voting power of all the then-outstanding shares of stock of the Company entitled to vote thereon, voting together as a single class, if the New Bowlero Class B common stock represents less than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders;
• to approve provisions entitling holders of shares of New Bowlero Class A common stock to cast one vote per share of New Bowlero Class A common stock and holders of shares of New Bowlero Class B common stock to cast 10 votes per share of New Bowlero Class B common stock on each matter properly submitted to New Bowlero’s stockholders entitled to vote, as opposed to each Isos Class A ordinary share and Isos Class B ordinary share being entitled to one vote per share on each matter properly submitted to Isos’s shareholders entitled to vote; and
• to provide for certain additional changes, including, among other things, (i) changing the corporate name from “Isos Acquisition Corporation” to “Bowlero Corp.”, (ii) making Bowlero’s corporate existence perpetual, and (iii) removing certain provisions related to Isos’s status as a blank check company that will no longer be applicable upon consummation of the Transactions, all of which Isos’s board of directors believes is necessary to adequately address the needs of New Bowlero after the Business Combination;
• a proposal to approve by ordinary resolution the election of nine directors, who, upon consummation of the Business Combination, will be the directors of New Bowlero;
• a proposal to approve by ordinary resolution, for purposes of complying with applicable listing rules of the NYSE, the issuance of (a) New Bowlero Class A common stock and/or New Bowlero preferred stock to the PIPE Investors, (b) shares of New Bowlero common stock and New Bowlero preferred stock to the Bowlero Stockholders pursuant to the Business Combination Agreement, (c) New Bowlero Class A common stock issuable upon conversion of the New Bowlero preferred stock to be issued pursuant to the Business Combination Agreement or to be issued and sold in the Preferred PIPE Offering, and (d) shares of New Bowlero Class A common stock to the Forward Purchase Investors;
• a proposal to approve by ordinary resolution the Bowlero Corp. 2021 Omnibus Incentive Plan;
• a proposal to approve by ordinary resolution the Employee Stock Purchase Plan; and
• a proposal to approve the adjournment of the extraordinary general meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event that there are insufficient votes for the approval of one or more proposals at the extraordinary general meeting.
If Isos’s shareholders do not approve each of the Condition Precedent Proposals, then unless certain conditions in the Business Combination Agreement are waived by the applicable parties to the Business Combination Agreement, the Business Combination Agreement could terminate and the Business Combination may not be consummated. See “The BCA Proposal,” “The Domestication Proposal,” “The Organizational Documents Proposals,” “The Director Election Proposal,” “The Stock Issuance Proposal,” “The Incentive Plan Proposal,” “The ESPP Proposal” and “The Adjournment Proposal.”
Isos will hold the extraordinary general meeting to consider and vote upon these proposals. This proxy statement/prospectus contains important information about the Business Combination and the other matters to be acted upon at the extraordinary general meeting. Shareholders of Isos should read it carefully.
After careful consideration, Isos’s board of directors has determined that the BCA Proposal, the Domestication Proposal, each of the Organizational Documents Proposals, the Director Election Proposal, the Stock Issuance Proposal, the Incentive Plan Proposal, the ESPP Proposal and the Adjournment Proposal are in the best interests of Isos and its shareholders and unanimously recommends that you vote or give instruction to vote “FOR” each of those proposals.
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The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
Q: Are the proposals conditioned on one another?
A: Yes. The Business Combination is conditioned on the approval of each of the Condition Precedent Proposals at the extraordinary general meeting. Each of the Condition Precedent Proposals is cross-conditioned on the approval of each other. The Adjournment Proposal is not conditioned upon the approval of any other proposal.
Q: Why is Isos proposing the Business Combination?
A: Isos was organized to effect a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or similar business combination, with one or more businesses or entities.
Bowlero Corp. is the world’s largest operator of bowling entertainment centers. Bowlero operates traditional bowling centers and more upscale entertainment concepts with lounge seating, arcades, enhanced food and beverage offerings, and more robust customer service for individuals and group events, as well as hosting and overseeing professional and non-professional bowling tournaments and related broadcasting.
Based on its due diligence investigations of Bowlero and the industry in which it operates, including the financial and other information provided by Bowlero in the course of Isos’s due diligence investigations, Isos’s board of directors believes that the Business Combination is in the best interests of Isos and its shareholders and presents an opportunity to increase shareholder value. However, there is no assurance of this. See “The BCA Proposal — The Isos Board’s Reasons for the Business Combination” for additional information.
Although Isos’s board of directors believes that the Business Combination presents a unique business combination opportunity and is in the best interests of Isos and its shareholders, the board of directors did consider certain potentially material negative factors in arriving at that conclusion. These factors are discussed in greater detail in the section titled “The BCA Proposal — The Isos Board’s Reasons for the Business Combination,” as well as in the section titled “Risk Factors — Risks Related to Bowlero’s Business and Industry.”
Q: What will Bowlero Stockholders receive in return for Isos’s acquisition of all of the issued and outstanding equity interests of Bowlero?
A: At the Effective Time, each outstanding share of Bowlero Common Stock, (other than shares owned by Bowlero as treasury stock, dissenting shares and any shares of Bowlero Common Stock held by Isos) will be cancelled and converted into the right to receive (i) the contingent right to receive a number of Earnout Shares (as defined in the Business Combination Agreement) which had an aggregate estimated fair value of $162,670,000 as of June 28, 2021, based on an independent valuation conducted by Duff & Phelps, (ii) an amount in cash or New Bowlero common stock (calculated based on a price of $10.00 per share), at such Bowlero stockholder’s election, equal to its pro rata portion (on a fully-diluted basis) of $1,601,053,751.89, (iii) the Per Share Forfeited Share Consideration (as defined in the Business Combination Agreement) which will have an aggregate value of $8,056,390, assuming no redemptions, and an aggregate value of $21,483,700, assuming maximum redemptions, and (iv) the Per Share Preferred Stock Cash Consideration (as defined in the Business Combination Agreement), which had an aggregate value of $141,162,000 as of June 27, 2021. Notwithstanding the foregoing, certain shares of Bowlero Common Stock held by Atairos will be converted, in the aggregate, into the right to receive a number of shares of New Bowlero preferred stock having an aggregate liquidation preference equal to $105.0 million.
During the period from and after the Closing until the fifth anniversary of the Closing, Bowlero Stockholders and holders of Participating Company Options (as defined in the Business Combination Agreement) will be entitled to receive the Earnout Shares, which will be issued as follows: (a) 10,375,000 Earnout Shares, if the closing share price of New Bowlero Class A common stock equals or exceeds $15.00 per share for any 10 trading days within any consecutive 20-trading day period that occurs after the Closing date and (b) 10,375,000 Earnout Shares, if the closing share price of New Bowlero Class A common stock equals
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or exceeds $17.50 per share for any 10 trading days within any consecutive 20-trading day period. If New Bowlero experiences an Acceleration Event (as defined in the Business Combination Agreement) during such period, then any Earnout Shares that have not been previously issued by New Bowlero (whether or not previously earned) to the Bowlero Stockholders or have not been earned by the holders of Participating Company Options will be deemed earned and issued as of immediately prior to the Acceleration Event, unless, in the case of an Acceleration Event that is a Change of Control (as defined in the Business Combination Agreement), the value of the consideration to be received by the holders of Applicable New Bowlero common Stock (as defined below) in such Change of Control transaction is less than the applicable stock price thresholds described above. Except as otherwise agreed in writing by New Bowlero or determined by the board of directors of New Bowlero, if any employee entitled to Earnout Shares other than Mr. Shannon or Mr. Parker is not employed on the date the forgoing milestones are achieved, then the employee’s Earnout Shares will be forfeited and reallocated to (i) TS and Mr. Shannon, collectively, (ii) Atairos and (iii) Mr. Parker in accordance with the Business Combination Agreement. If the consideration received in such Acceleration Event is not solely cash, the New Bowlero Board will determine the treatment of the Earnout Shares.
Q: What equity stake will current Isos shareholders and others hold in New Bowlero immediately after the consummation of the Business Combination?
A: As of the date of this proxy statement/prospectus, there are 31,854,625 ordinary shares issued and outstanding, which includes the 6,370,925 founder shares held by the Sponsor and LionTree, collectively, and the 25,483,700 public shares. As of the date of this proxy statement/prospectus, there is outstanding an aggregate of 13,892,394 warrants, which includes the 5,397,828 private placement warrants held by the Sponsor and LionTree, collectively, and the 8,494,566 public warrants. Each whole warrant entitles the holder thereof to purchase one Isos Class A ordinary share and, following the Domestication and the Business Combination, will entitle the holder thereof to purchase one share of New Bowlero Class A common stock. Therefore, as of the date of this proxy statement/prospectus (without giving effect to the Business Combination), the Isos fully diluted share capital would be 45,747,019.
The following table sets forth the anticipated ownership of New Bowlero immediately following consummation of the Business Combination assuming a share price of $10.00 per share, as well as a share price of $17.50 per share, in each case assuming no redemptions, intermediate redemptions (of 3,991,900 Public Shares), and maximum redemptions (of 7,983,800 Public Shares). Based on a share price of $10.00, the first scenario assumes no issuance of any Earnout Shares (and assumes that all earnout shares held by the Sponsor and LionTree are forfeited), and assumes no conversion of the New Bowlero preferred stock issued in the Preferred PIPE Offering or issued to Atairos pursuant to the Business Combination into New Bowlero common stock, and, based on a share price of $17.50, the second scenario assumes the issuance of all Earnout Shares (and assumes that all earnout shares held by the Sponsor and LionTree vest and accordingly are not forfeited), and assumes conversion of all of the New Bowlero preferred stock issued in the Preferred PIPE Offering and issued to Atairos pursuant to the Business Combination at a conversion price of $13.00 per share.
|
|
|
$10.00 per share
|
|
$17.50 per share
|
|
|
|
No Redemptions
|
|
Intermediate Redemptions
|
|
Maximum Redemptions
|
|
No Redemptions
|
|
Intermediate Redemptions
|
|
Maximum Redemptions
|
|
Isos public
shareholders
|
|
14.5
|
%
|
|
12.3
|
%
|
|
10.0
|
%
|
|
12.0
|
%
|
|
10.1
|
%
|
|
8.2
|
%
|
|
Bowlero
Stockholders
|
|
68.9
|
%
|
|
71.6
|
%
|
|
74.3
|
%
|
|
66.5
|
%
|
|
68.7
|
%
|
|
70.9
|
%
|
|
Sponsor and
LionTree(1)
|
|
2.3
|
%
|
|
1.9
|
%
|
|
1.5
|
%
|
|
2.6
|
%
|
|
2.3
|
%
|
|
2.0
|
%
|
|
Common
PIPE Investors
|
|
8.6
|
%
|
|
8.6
|
%
|
|
8.6
|
%
|
|
7.0
|
%
|
|
7.0
|
%
|
|
7.0
|
%
|
|
Forward Purchase Investors
|
|
5.7
|
%
|
|
5.7
|
%
|
|
5.7
|
%
|
|
4.7
|
%
|
|
4.7
|
%
|
|
4.7
|
%
|
|
New Bowlero preferred stockholders
|
|
N/A
|
|
|
N/A
|
|
|
N/A
|
|
|
7.2
|
%
|
|
7.2
|
%
|
|
7.2
|
%
|
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Both scenarios assume (i) no exercise of the warrants or Bowlero options being converted into New Bowlero options, (ii) Mr. Shannon receives 1,422,813 shares of New Bowlero Class B common stock as the stock portion of the transaction bonus, and (iii) that an aggregate of 25,000,000 shares of New Bowlero Class A common stock are issued to the PIPE Investors pursuant to the Common PIPE Offering and the Forward Purchase Investors pursuant to the Forward Purchase Investment. If the actual facts are different from these assumptions, the percentage ownership retained by Isos’s existing shareholders in New Bowlero will be different.
For further details, see “The BCA Proposal — The Business Combination Agreement — Consideration — Aggregate Merger Consideration.”
Q: What voting power will current Isos shareholders and others hold in New Bowlero immediately after the consummation of the Business Combination?
A: As a result of the Business Combination, all of Bowlero Stockholders, other than Tom Shannon, Bowlero’s CEO, will receive New Bowlero Class A common stock. Mr. Shannon will receive New Bowlero Class B common stock in the Business Combination. New Bowlero Class B common stock will rank pari passu with New Bowlero Class A common stock in all respects, except that it will be entitled to super voting rights of ten (10) votes per share as described herein. See “Description of Securities After the Business Combination — Common Stock.”
The following table sets forth the anticipated voting power of New Bowlero immediately following consummation of the Business Combination assuming a share price of $10.00 per share, as well as a share price of $17.50 per share, in each case assuming no redemptions, intermediate redemptions (of 3,991,900 Public Shares), and maximum redemptions (of 7,983,800 Public Shares). Based on a share price of $10.00, the first scenario assumes no issuance of any Earnout Shares (and assumes that all earnout shares held by the Sponsor and LionTree are forfeited), and assumes no conversion of the New Bowlero preferred stock issued in the Preferred PIPE Offering or issued to Atairos pursuant to the Business Combination into New Bowlero common stock, and, based on a share price of $17.50, the second scenario assumes the issuance of all Earnout Shares (and assumes that all earnout shares held by the Sponsor and LionTree vest and accordingly are not forfeited), and assumes conversion of all of the New Bowlero preferred stock issued in the Preferred PIPE Offering and issued to Atairos pursuant to the Business Combination at a conversion price of $13.00 per share.
|
|
|
$10.00 per share
|
|
$17.50 per share
|
|
|
|
No Redemptions
|
|
Intermediate Redemptions
|
|
Maximum Redemptions
|
|
No Redemptions
|
|
Intermediate Redemptions
|
|
Maximum Redemptions
|
|
Isos public shareholders
|
|
3.5
|
%
|
|
2.9
|
%
|
|
2.4
|
%
|
|
3.0
|
%
|
|
2.5
|
%
|
|
2.0
|
%
|
|
Bowlero Stockholders, other than Tom Shannon
|
|
7.9
|
%
|
|
8.5
|
%
|
|
9.0
|
%
|
|
8.0
|
%
|
|
8.5
|
%
|
|
9.0
|
%
|
|
Tom Shannon
|
|
84.7
|
|
|
84.8
|
|
|
84.9
|
|
|
83.7
|
|
|
83.8
|
|
|
83.9
|
|
|
Sponsor and LionTree(1)
|
|
0.5
|
%
|
|
0.4
|
%
|
|
0.4
|
%
|
|
0.6
|
%
|
|
0.6
|
%
|
|
0.5
|
%
|
|
Common PIPE Investors
|
|
2.0
|
%
|
|
2.0
|
%
|
|
2.0
|
%
|
|
1.7
|
%
|
|
1.7
|
%
|
|
1.7
|
%
|
|
Forward Purchase Investors
|
|
1.4
|
%
|
|
1.4
|
%
|
|
1.3
|
%
|
|
1.2
|
%
|
|
1.2
|
%
|
|
1.2
|
%
|
|
New Bowlero preferred stockholders
|
|
N/A
|
|
|
N/A
|
|
|
N/A
|
|
|
1.7
|
%
|
|
1.7
|
%
|
|
1.7
|
%
|
Both scenarios assume (i) no exercise of the warrants or Bowlero options being converted into New Bowlero options, (ii) Mr. Shannon receives 1,422,813 shares of New Bowlero Class B common stock as the stock portion of the transaction bonus, and (iii) that an aggregate of 25,000,000 shares of New Bowlero Class A common stock are issued to the PIPE Investors pursuant to the Common PIPE Offering and the Forward Purchase Investors pursuant to the Forward Purchase Investment. If the actual facts are different from these assumptions, the percentage ownership retained by Isos’s existing shareholders in New Bowlero will be different.
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Q: What is the maximum number of shares that may be redeemed in order for Isos to satisfy the Minimum Cash Condition?
A: The maximum number of Isos Class A ordinary shares that may be redeemed in order for Isos to satisfy the Minimum Cash Condition is 7,983,800 Isos Class A ordinary shares. The Minimum Cash Condition is waivable by Bowlero, and if so waived, the maximum amount of redemptions could exceed the 7,983,800 Isos Class A ordinary shares redemption scenario as presented in this proxy statement/prospectus.
Q: Will the Company obtain new financing in connection with the Business Combination?
A: Yes. The Common PIPE Investors have agreed to purchase, in the aggregate, 15 million shares of New Bowlero Class A common stock, for $150.0 million of gross proceeds, and the Preferred PIPE Investors have agreed to purchase 95,000 shares of New Bowlero preferred stock, for $95.0 million of gross proceeds, with the Sponsor Related Persons accounting for an aggregate of $5.0 million of the Common PIPE proceeds (collectively, the amounts received from the Common PIPE Investors and the Preferred PIPE Investors, the “PIPE Offerings”). In addition, the Forward Purchase Contract was amended and restated on July 1, 2021 to increase the number of Isos units the subscribers are required to purchase upon closing of Isos’s initial business combination to 10 million units, in the aggregate, for a gross purchase price of $100.0 million (the “Forward Purchase Investment”). The PIPE Offerings and the Forward Purchase Investment are contingent upon, among other things, the closing of the Business Combination. See “The BCA Proposal — Related Agreements.”
Q: Why is Isos proposing the Domestication?
A: Our board of directors believes that there are significant advantages to us that will arise as a result of a change of Isos’s domicile to Delaware. Further, Isos’s board of directors believes that any direct benefit that the DGCL provides to a corporation also indirectly benefits its stockholders, who are the owners of the corporation. Isos’s board of directors believes that there are several reasons why a reincorporation in Delaware is in the best interests of the Company and its shareholders, including, (i) the prominence, predictability and flexibility of the DGCL, (ii) Delaware’s well-established principles of corporate governance and (iii) the increased ability for Delaware corporations to attract and retain qualified directors. Each of the foregoing are discussed in greater detail in the section titled “The Domestication Proposal — Reasons for the Domestication.”
To effect the Domestication, Isos will file a notice of deregistration with the Cayman Islands Registrar of Companies, together with the necessary accompanying documents, and file a certificate of incorporation and a certificate of corporate domestication with the Secretary of State of the State of Delaware, under which Isos will be domesticated and continue as a Delaware corporation.
The approval of the Domestication Proposal requires a special resolution under the Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
Q: How will the Domestication affect my ordinary shares, warrants and units?
A: As a result of and upon the effective time of the Domestication, (i) each outstanding Isos Class A ordinary share will be converted into one share of New Bowlero Class A common stock, (ii) each outstanding Isos Class B ordinary share will be converted into one share of New Bowlero Class A common stock, (iii) each warrant will automatically be modified to entitle the holder to acquire one share of New Bowlero Class A common stock (rather than one share of Isos Class A ordinary share), at $11.50 per share, (iv) each outstanding Isos unit that has not been previously separated will be cancelled and entitle the holder to one share of New Bowlero Class A common stock and one-third of a warrant to acquire New Bowlero Class A common stock, and (v) the governing documents of New Bowlero will be the Proposed Certificate of Incorporation and the Proposed Bylaws. See “The Domestication Proposal” for additional information. Your rights as a stockholder
6
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of New Bowlero will also be impacted by the Stockholders Agreement among New Bowlero, Atairos and TS. See “Risk Factors — Additional Risks Related to Ownership of New Bowlero Common Stock Following the Business Combination and New Bowlero Operating as a Public Company — Following the completion of the Business Combination, Bowlero’s founder and Chief Executive Officer and Atairos will have certain board nomination rights that will enable them to exercise substantial control over all corporate actions, which could limit your ability to influence the outcome of matters submitted to stockholders for a vote” for further information.
Q: What are the U.S. federal income tax consequences of the Domestication?
A: As discussed more fully under “U.S. Federal Income Tax Considerations,” the Domestication should constitute a reorganization within the meaning of Section 368(a)(l)(F) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). Assuming that the Domestication so qualifies and subject to the discussion in “U.S. Federal Income Tax Considerations — PFIC Considerations”, U.S. Holders (as defined in “U.S. Federal Income Tax Considerations”) will be subject to Section 367(b) of the Code and, as a result:
• A U.S. Holder whose Isos Class A ordinary shares have a fair market value of less than $50,000 on the date of the Domestication will not recognize any gain or loss and will not be required to include any part of Isos’s earnings in income;
• A U.S. Holder who, on the date of the Domestication, owns (actually or constructively) 10% or more of the total combined voting power of all classes of Isos stock entitled to vote or 10% or more of the total value of all classes of Isos stock (a “U.S. Shareholder”) will generally be required to include in income as a deemed dividend the “all earnings and profits amount” (as defined in the Treasury Regulations under Section 367 of the Code) attributable to its Isos Class A ordinary shares; and\
• A U.S. Holder whose Isos Class A ordinary shares have a fair market value of $50,000 or more and who is not a U.S. Shareholder will generally recognize gain (but not loss) on the exchange of Isos Class A ordinary shares for New Bowlero Class A common stock pursuant to the Domestication. As an alternative to recognizing gain, such U.S. Holder may file an election to include in income as a deemed dividend the all earnings and profits amount attributable to its Isos Class A ordinary shares provided certain other requirements are satisfied.
Isos does not expect to have significant cumulative earnings and profits, if any, on the date of the Domestication.
As discussed more fully under “U.S. Federal Income Tax Considerations — PFIC Considerations,” if Isos were to be treated as a “passive foreign investment company” (“PFIC”) for U.S. federal income tax purposes, certain U.S. Holders may be subject to adverse tax consequences as a result of the Domestication. However, provided that the Domestication is completed in Isos’s current taxable year, although subject to uncertainty, Isos believes that it will not be classified as a PFIC.
Each U.S. Holder of Isos Class A ordinary shares or warrants is urged to consult with its own tax advisor concerning the application of the PFIC rules to the exchange of Isos Class A ordinary shares and warrants for New Bowlero common stock and warrants pursuant to the Domestication.
Additionally, the Domestication may cause non-U.S. Holders (as defined in “U.S. Federal Income Tax Considerations — Non-U.S. Holders”) to become subject to U.S. federal income withholding taxes on any amounts treated as dividends paid in respect of such non-U.S. Holder’s New Bowlero’s common stock after the Domestication.
The tax consequences of the Domestication are complex and will depend on a holder’s particular circumstances. All holders are urged to consult with their tax advisors regarding the tax consequences to them of the Domestication, including the applicability and effect of U.S. federal, state, local and non-U.S. tax laws. For a more complete discussion of the U.S. federal income tax considerations of the Domestication, see “U.S. Federal Income Tax Considerations.”
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Q: Did the Isos Board obtain a fairness opinion in determining whether or not to proceed with the Business Combination?
A: The Isos Board did not obtain a fairness opinion in connection with its determination to approve the Business Combination. The Isos Board believes that based upon the financial skills and background of its directors, it was qualified to conclude that the Business Combination was fair from a financial perspective to its shareholders. The Isos Board also determined, without the benefit of a fairness opinion, that Bowlero’s fair market value was at least 80% of Isos’s net assets, excluding any taxes payable on interest earned on the funds held in the trust account. Accordingly, investors will be relying on the judgment of the Isos Board as described above in valuing Bowlero’s business and assuming the risk that the Isos Board may not have properly valued such business.
Q: Do I have redemption rights?
A: If you are a holder of public shares, you have the right to request that we redeem all or a portion of your public shares for cash provided that you follow the procedures and deadlines described elsewhere in this proxy statement/prospectus. Public shareholders may elect to redeem all or a portion of the public shares held by them regardless of if or how they vote in respect of the BCA Proposal. If you wish to exercise your redemption rights, please see the answer to the question below titled “How do I exercise my redemption rights?”
Notwithstanding the foregoing, a public shareholder, together with any affiliate of such public shareholder or any other person with whom such public shareholder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Exchange Act), will be restricted from redeeming its public shares with respect to more than an aggregate of 15% of the public shares. Accordingly, if a public shareholder, alone or acting in concert or as a group, seeks to redeem more than 15% of the public shares, then any such shares in excess of that 15% limit would not be redeemed for cash.
Q: How do I exercise my redemption rights?
A: In order to exercise your redemption rights, you must, prior to 5:00 p.m., Eastern time, on , 2021 (two (2) business days before the extraordinary general meeting), tender your shares physically or electronically and submit a request in writing that we redeem your public shares for cash to Continental Stock Transfer & Trust Company, our transfer agent, at the following address:
Continental Stock Transfer & Trust Company
One State Street Plaza, 30th Floor
New York, New York 10004
Attn: Mark Zimkind
E-mail: mzimkind@continentalstock.com
Please also affirmatively certify in your request to Continental Stock Transfer & Trust Company for redemption if you “ARE” or “ARE NOT” acting in concert or as a “group” (as defined in Section 13d-3 of the Exchange Act) with any other shareholder with respect to shares of Isos Class A ordinary shares. A holder of the public shares, together with any of its affiliates any other person with whom such holder is acting in concert or as a “group” (as defined in Section 13d-3 of the Exchange Act) will be restricted from seeking redemption rights with respect to an aggregate of 15% or more of the public shares, which we refer to as the “15% threshold.” Accordingly, all public shares in excess of the 15% threshold beneficially owned by a public shareholder or group will not be redeemed for cash. Shareholders seeking to exercise their redemption rights and opting to deliver physical certificates should allot sufficient time to obtain physical certificates from the transfer agent and time to effect delivery. It is Isos’s understanding that shareholders should generally allot at least two weeks to obtain physical certificates from the transfer agent. However, Isos does not have any control over this process and it may take longer than two weeks. Shareholders who hold their shares in street name will have to coordinate with their bank, broker or other nominee to have the shares certificated or delivered electronically.
Any demand for redemption, once made, may be withdrawn at any time until the deadline for exercising redemption requests and thereafter, with Isos’s consent, until the vote is taken with respect to the Business Combination. If you delivered your shares for redemption to Isos’s transfer agent and decide within the required timeframe not to exercise your redemption rights, you may request that Isos’s transfer agent return the shares (physically or electronically). You may make such request by contacting Isos’s transfer agent at the phone number or address listed under the question “Who can help answer my questions?” below.
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Table of Contents
Q: If I am a holder of units, can I exercise redemption rights with respect to my units?
A: No. Holders of issued and outstanding units must elect to separate the units into the underlying public shares and public warrants prior to exercising redemption rights with respect to the public shares. If you hold your units in an account at a brokerage firm or bank, you must notify your broker or bank that you elect to separate the units into the underlying public shares and public warrants, or if you hold units registered in your own name, you must contact Continental, Isos’s transfer agent, directly and instruct them to do so. You are requested to cause your public shares to be separated and delivered to Continental, Isos’s transfer agent, by , Eastern Time, on , 2021 (two business days before the extraordinary general meeting) in order to exercise your redemption rights with respect to your public shares.
Q: What are the U.S. federal income tax consequences of exercising my redemption rights?
A: It is expected that a U.S. Holder (as defined in “U.S. Federal Income Tax Considerations”) that exercises its redemption rights to receive cash from the trust account in exchange for its New Bowlero common stock will generally be treated as selling such New Bowlero common stock resulting in the recognition of capital gain or capital loss. There may be certain circumstances, however, in which the redemption may be treated as a distribution for U.S. federal income tax purposes depending on the amount of New Bowlero common stock that such U.S. Holder owns or is deemed to own (including constructively and through the ownership of warrants) before and after the redemption. For a more complete discussion of the U.S. federal income tax considerations of an exercise of redemption rights, see “U.S. Federal Income Tax Considerations.”
Additionally, because the Domestication will occur immediately prior to the redemption by any shareholder, U.S. Holders exercising redemption rights will be subject to the potential tax consequences of Section 367 of the Code as well as potential tax consequences of the U.S. federal income tax rules relating to PFICs. The tax consequences of Section 367 of the Code and the PFIC rules are discussed more fully below under “U.S. Federal Income Tax Considerations.”
All holders considering exercising redemption rights are urged to consult with their tax advisors on the tax consequences to them of an exercise of redemption rights, including the applicability and effect of U.S. federal, state, local and non-U.S. tax laws.
Q: What happens to the funds deposited in the trust account after consummation of the Business Combination?
A: Upon consummation of the Business Combination, the funds deposited in the trust account will be released to pay holders of Isos public shares who properly exercise their redemption rights; to pay transaction fees and expenses associated with the Business Combination; and for working capital and general corporate purposes of New Bowlero following the Business Combination. See “Summary of the Proxy Statement/Prospectus — Sources and Uses of Funds for the Business Combination.”
Q: What happens if a substantial number of the public shareholders vote in favor of the BCA Proposal and exercise their redemption rights?
A: Our public shareholders are not required to vote in respect of the Business Combination in order to exercise their redemption rights. Accordingly, the Business Combination may be consummated even though the funds available from the trust account and the number of public shareholders are reduced as a result of redemptions by public shareholders.
The Business Combination Agreement provides that the obligations of Bowlero to consummate the Merger are conditioned on, among other things, that as of the Closing, Isos having $520.0 million available (after giving effect to any exercise of redemption rights and consummation of the PIPE Offerings). If such condition is not met, and such conditions are not or cannot be waived under the terms of the Business Combination Agreement, then the Business Combination Agreement could terminate and the proposed Business Combination may not be consummated. In addition, in no event will we redeem public shares in an amount that would cause our net tangible assets (as determined in accordance with Rule 3a5 1-1 (g)(1) of the Exchange Act) to be less than $5,000,001.
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Q: What conditions must be satisfied to complete the Business Combination?
A: The Business Combination Agreement is subject to the satisfaction or waiver of certain customary closing conditions, including, among others, (i) the expiration or termination of all applicable waiting periods and extensions thereof in respect of Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (ii) the approval of Isos’s shareholders of the Condition Precedent Proposals, (iii) the approval and adoption of the Merger, the Business Combination Agreement and the Transactions by the Bowlero stockholders and (iv) the completion of any redemptions pursuant to the Cayman Constitutional Documents.
The Business Combination Agreement provides that the obligations of Bowlero to consummate the Business Combination are conditioned on, among other things, that (i) no effect shall have occurred between the date of the Business Combination Agreement and the Closing Date that has had or would reasonably be expected to have, individually or in the aggregate, an Acquiror Material Adverse Effect and (ii) Isos have $520.0 million available (after giving effect to any exercise of redemption rights and consummation of the PIPE Offerings).
The Business Combination Agreement provides that the obligations of Isos to consummate the Business Combination are conditioned on, among other things, that no effect shall have occurred between the date of the Business Combination Agreement and the Closing Date that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material
Adverse Effect. For more information about conditions to the consummation of the Business Combination, see “The BCA Proposal — The Business Combination Agreement.”
Q: When do you expect the Business Combination to be completed?
A: It is currently expected that the Business Combination will be consummated in the second half of 2021. This date depends, among other things, on the approval of the proposals to be put to Isos shareholders at the extraordinary general meeting. However, such meeting could be adjourned if the Adjournment Proposal is adopted by Isos’s shareholders at the extraordinary general meeting and Isos elects to adjourn the extraordinary general meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event that there are insufficient votes for the approval of one or more proposals at the extraordinary general meeting. For a description of the conditions for the completion of the Business Combination, see “The BCA Proposal — The Business Combination Agreement.”
Q: What happens if the Business Combination is not consummated?
A: Isos will not complete the Domestication to Delaware unless all other conditions to the consummation of the Business Combination have been satisfied or waived by the parties in accordance with the terms of the Business Combination Agreement. If Isos is not able to complete the Business Combination with Bowlero by March 5, 2023 and is not able to complete another business combination by such date, in each case, as such date may be extended pursuant to the Cayman Constitutional Documents, Isos will: (1) cease all operations except for the purpose of winding up; (2) as promptly as reasonably possible, but not more than 10 business days thereafter, redeem the public shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the trust account, including interest (less up to $100,000 of interest to pay dissolution expenses and which interest shall be net of taxes payable), divided by the number of then issued and outstanding public shares, which redemption will completely extinguish public shareholders’ rights as shareholders (including the right to receive further liquidating distributions, if any), subject to applicable law; and (3) as promptly as reasonably possible following such redemption, subject to the approval of our remaining shareholders and our board, dissolve and liquidate, subject in each case to our obligations under Cayman Islands law to provide for claims of creditors and the requirements of other applicable law.
Q: Do I have appraisal rights in connection with the proposed Business Combination and the proposed Domestication?
A: Neither Isos’s shareholders nor Isos’s warrant holders have appraisal rights in connection with the Business Combination or the Domestication under the Cayman Islands Companies Act or under the DGCL.
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Q: Why is Isos proposing the Incentive Plan Proposal?
A: Isos is proposing the Incentive Plan Proposal to promote ownership in New Bowlero by employees, non-employee directors and consultants of New Bowlero and its subsidiaries and to align incentives between these service providers and shareholders of New Bowlero by permitting these service providers to receive compensation in the form of awards denominated in, or based on the value of, New Bowlero common stock. The Incentive Plan Proposal is conditioned on the approval of the BCA Proposal. If the BCA Proposal is not approved, the Incentive Plan Proposal will have no effect, even if approved by our stockholders.
Q: Why is Isos proposing the ESPP Proposal?
A: Isos is proposing the ESPP Proposal, which permits eligible employees of New Bowlero and its subsidiaries the opportunity to purchase New Bowlero common stock, to promote employee retention and incentives for such persons to exert maximum efforts for the success of the company and its affiliates. The ESPP Proposal is conditioned on the approval of the BCA Proposal. If the BCA Proposal is not approved, the ESPP Proposal will have no effect, even if approved by our stockholders.
Q: What do I need to do now?
A: Isos urges you to read this proxy statement/prospectus, including the Annexes and the documents referred to herein, carefully and in their entirety and to consider how the Business Combination will affect you as a shareholder or warrant holder. Isos’s shareholders should then vote as soon as possible in accordance with the instructions provided in this proxy statement/prospectus and on the enclosed proxy card.
Q: How do I vote?
A: If you are a holder of record of ordinary shares on the record date for the extraordinary general meeting, you may vote in person at the extraordinary general meeting or by submitting a proxy for the extraordinary general meeting. You may submit your proxy by completing, signing, dating and returning the enclosed proxy card in the accompanying pre-addressed postage-paid envelope. If you hold your shares in “street name,” which means your shares are held of record by a broker, bank or nominee, you should contact your broker, bank or nominee to ensure that votes related to the shares you beneficially own are properly counted. In this regard, you must provide the broker, bank or nominee with instructions on how to vote your shares or, if you wish to attend the extraordinary general meeting and vote in person, obtain a valid proxy from your broker, bank or nominee.
Q: If my shares are held in “street name,” will my broker, bank or nominee automatically vote my shares for me?
A: No. If your shares are held in a stock brokerage account or by a bank or other nominee, you are considered the “beneficial holder” of the shares held for you in what is known as “street name.” If this is the case, this proxy statement/prospectus may have been forwarded to you by your brokerage firm, bank or other nominee, or its agent, and you may need to obtain a proxy form from the institution that holds your shares and follow the instructions included on that form regarding how to instruct your broker, bank or nominee as to how to vote your shares. Under the rules of various national and regional securities exchanges, your broker, bank, or nominee cannot vote your shares with respect to non-discretionary matters unless you provide instructions on how to vote in accordance with the information and procedures provided to you by your broker, bank, or nominee. We believe all the proposals presented to the shareholders will be considered non-discretionary and therefore your broker, bank, or nominee cannot vote your shares without your instruction. Your bank, broker, or other nominee can vote your shares only if you provide instructions on how to vote. As the beneficial holder, you have the right to direct your broker, bank or other nominee as to how to vote your shares, and you should instruct your broker to vote your shares in accordance with directions you provide. If you do not provide voting instructions to your broker on a particular proposal on which your broker does not have discretionary authority to vote, your shares will not be voted on that proposal. This is called a “broker non-vote.” Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting, and otherwise will have no effect on a particular proposal.
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Q: When and where will the extraordinary general meeting be held?
A: The extraordinary general meeting will be held at the offices of Hughes Hubbard & Reed LLP, at One Battery Park Plaza, New York, NY 10004, or virtually via live webcast at , or such other date, time and place to which such meeting may be adjourned or postponed, to consider and vote upon the proposals.
Q: Who is entitled to vote at the extraordinary general meeting?
A: The Isos Board has fixed , 2021 as the record date for the extraordinary general meeting. If you were a shareholder of Isos at the close of business on the record date, you are entitled to vote on matters that come before the extraordinary general meeting. However, a shareholder may only vote his or her shares if he or she is present in person or is represented by proxy at the extraordinary general meeting.
Q: How many votes do I have?
A: Isos shareholders are entitled to one vote at the extraordinary general meeting for each ordinary share held of record as of the record date. As of the close of business on the record date for the extraordinary general meeting, there were 31,854,625 ordinary shares issued and outstanding, of which 25,483,700 were issued and outstanding public shares.
Q: What constitutes a quorum?
A: A quorum of Isos shareholders is necessary to hold a valid meeting. A quorum will be present at the extraordinary general meeting if the holders of a majority of the issued and outstanding ordinary shares entitled to vote at the extraordinary general meeting are represented in person or by proxy. As of the record date for the extraordinary general meeting, 15,927,313 ordinary shares would be required to achieve a quorum.
Q: What vote is required to approve each proposal at the extraordinary general meeting?
A: The following votes are required for each proposal at the extraordinary general meeting:
• BCA Proposal: The approval of the BCA Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• Domestication Proposal: The approval of the Domestication Proposal requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• Organizational Documents Proposals: The separate approval of each of the Organizational Documents Proposals requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• Director Election Proposal: The approval of the Director Election Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• Stock Issuance Proposal: The approval of the Stock Issuance Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• Incentive Plan Proposal: The approval of the Incentive Plan Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
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• ESPP Proposal: The approval of the ESPP Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• Adjournment Proposal: The approval of the Adjournment Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
Q: What are the recommendations of Isos Board?
A: The Isos Board believes that the BCA Proposal and the other proposals to be presented at the extraordinary general meeting are in the best interest of Isos’s shareholders and unanimously recommends that its shareholders vote “FOR” the BCA Proposal, “FOR” the Domestication Proposal, “FOR” each of the separate Organizational Documents Proposals, “FOR” the Director Election Proposal, “FOR” the Stock Issuance Proposal, “FOR” the Incentive Plan Proposal, “FOR” the ESPP Proposal and “FOR” the Adjournment Proposal, in each case, if presented to the extraordinary general meeting.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of the Sponsor Related Entities in the Business Combination” for a further discussion of these considerations.
Q: How do the Sponsor and LionTree intend to vote their shares?
A: Unlike some other blank check companies in which the initial shareholders agree to vote their shares in accordance with the majority of the votes cast by the public shareholders in connection with an initial business combination, the Sponsor and LionTree have agreed to vote all the founder shares and any other public shares they may hold in favor of all the proposals being presented at the extraordinary general meeting. As of the date of this proxy statement/prospectus, the Sponsor and LionTree collectively own 20.0% of the issued and outstanding ordinary shares.
At any time at or prior to the Business Combination, subject to applicable securities laws (including with respect to material nonpublic information), the Sponsor, LionTree, Bowlero stockholders or our or their respective directors, officers, advisors or respective affiliates may (i) purchase public shares from institutional and other investors who vote, or indicate an intention to vote, against any of the Condition Precedent Proposals, or elect to redeem, or indicate an intention to redeem, public shares, (ii) execute agreements to purchase such shares from such investors in the future, or (iii) enter into transactions with such investors and others to provide them with incentives to acquire public shares, vote their public shares in favor of the Condition Precedent Proposals or not redeem their public shares. Such a purchase may include a contractual acknowledgement that such shareholder, although still the record holder of Isos shares, is no longer the beneficial owner thereof and therefore agrees not to exercise its redemption rights. In the event that the Sponsor, LionTree, Bowlero stockholders or our or their respective directors, officers, advisors, or respective affiliates purchase shares in privately negotiated transactions from public shareholders who have already elected to exercise their redemption rights, such selling shareholders would be required to revoke their prior elections to redeem their shares. The purpose of such share purchases and other transactions would be to increase the likelihood of (1) satisfaction of the requirement that holders of a majority of the ordinary shares, represented in person or by proxy and entitled to vote at the extraordinary general meeting, vote in favor of the BCA Proposal, the Director Election Proposal, the Stock Issuance Proposal, the Incentive Plan Proposal, the ESPP Proposal and the Adjournment Proposal, (2) satisfaction of the requirement that holders of at least two-thirds of the ordinary shares, represented in person or by proxy and entitled to vote at the extraordinary general meeting, vote in favor of the Domestication Proposal and the Organizational Documents Proposals, (3) satisfaction of the Minimum Cash Condition, (4) otherwise limiting the number of public shares electing to redeem and (5) our net tangible assets (as determined in accordance with Rule 3a51(g) (1) of the Exchange Act) being at least $5,000,001.
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Entering into any such arrangements may have a depressive effect on our ordinary shares (e.g., by giving an investor or holder the ability to effectively purchase shares at a price lower than market, such investor or holder may therefore become more likely to sell the shares he or she owns, either at or prior to the Business Combination). If such transactions are effected, the consequence could be to cause the Business Combination to be consummated in circumstances where such consummation could not otherwise occur. Purchases of shares by the persons described above would allow them to exert more influence over the approval of the proposals to be presented at the extraordinary general meeting and would likely increase the chances that such proposals would be approved. Isos will file or submit a Current Report on Form 8-K to disclose any material arrangements entered into or significant purchases made by any of the aforementioned persons that would affect the vote on the proposals to be put to the extraordinary general meeting or the redemption threshold. Any such report will include descriptions of any arrangements entered into or significant purchases by any of the aforementioned persons.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
Q: What happens if I sell my Isos ordinary shares before the extraordinary general meeting?
A: The record date for the extraordinary general meeting is earlier than the date of the extraordinary general meeting and earlier than the date that the Business Combination is expected to be completed. If you transfer your public shares after the applicable record date, but before the extraordinary general meeting, unless you grant a proxy to the transferee, you will retain your right to vote at such general meeting but the transferee, and not you, will have the ability to redeem such shares (if time permits).
Q: May I change my vote after I have mailed my signed proxy card?
A: Yes. Shareholders may send a later-dated, signed proxy card to at Isos’s address set forth below so that it is received by prior to the vote at the extraordinary general meeting (which is scheduled to take place on , 2021) or attend the extraordinary general meeting in person and vote. Shareholders also may revoke their proxy by sending a notice of revocation to , which must be received by prior to the vote at the extraordinary general meeting. However, if your shares are held in “street name” by your broker, bank or another nominee, you must contact your broker, bank or other nominee to change your vote.
Q: What happens if I fail to take any action with respect to the extraordinary general meeting?
A: If you fail to take any action with respect to the extraordinary general meeting and the Business Combination is approved by shareholders and the Business Combination is consummated, you will become a shareholder or warrant holder of New Bowlero. If you fail to take any action with respect to the extraordinary general meeting and the Business Combination is not approved, you will remain a shareholder or warrant holder of Isos. However, if you fail to vote with respect to the extraordinary general meeting, you will nonetheless be able to elect to redeem your public shares in connection with the Business Combination (if time permits).
Q: What should I do with my share certificates, warrant certificates or unit certificates?
A: Our shareholders who exercise their redemption rights must deliver (either physically or electronically) their share certificates to Continental, Isos’s transfer agent, prior to the extraordinary general meeting.
Holders must complete the procedures for electing to redeem their public shares in the manner described above prior to , Eastern Time, on , 2021 (two business days before the extraordinary general meeting) in order for their shares to be redeemed.
Our warrant holders should not submit the certificates relating to their warrants. Public shareholders who do not elect to have their public shares redeemed for the pro rata share of the trust account should not submit the certificates relating to their public shares.
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Q: What should I do if I receive more than one set of voting materials?
A: Shareholders may receive more than one set of voting materials, including multiple copies of this proxy statement/prospectus and multiple proxy cards or voting instruction cards. For example, if you hold your shares in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold shares. If you are a holder of record and your shares are registered in more than one name, you will receive more than one proxy card. Please complete, sign, date and return each proxy card and voting instruction card that you receive in order to cast a vote with respect to all of your ordinary shares.
Q: Who will solicit and pay the cost of soliciting proxies for the extraordinary general meeting?
A: Isos will pay the cost of soliciting proxies for the extraordinary general meeting. Isos has engaged Morrow Sodali LLC to assist in the solicitation of proxies for the extraordinary general meeting. Isos has agreed to pay the Proxy Solicitor a fee of $35,000, plus disbursements (to be paid with non-trust account funds). Isos will also reimburse banks, brokers and other custodians, nominees and fiduciaries representing beneficial owners of Isos Class A ordinary shares for their expenses in forwarding soliciting materials to beneficial owners of Isos Class A ordinary shares and in obtaining voting instructions from those owners. Isos’s directors and officers may also solicit proxies by telephone, by facsimile, by mail, on the Internet or in person. They will not be paid any additional amounts for soliciting proxies.
Q: Who can help answer my questions?
A: If you have questions about the Business Combination or if you need additional copies of the proxy statement/prospectus, any document incorporated by reference in this proxy statement/prospectus or the enclosed proxy card, you should contact:
Morrow Sodali LLC
Individuals call toll-free: (800) 662-5200
Banks and Brokerage Firms, please call: (203) 658-9400
Email: ISOS@info.morrowsodali.com
You also may obtain additional information about Isos from documents filed with the SEC by following the instructions in the section titled “Where You Can Find More Information; Incorporation by Reference.” If you are a holder of public shares and you intend to seek redemption of your public shares, you will need to deliver your public shares (either physically or electronically) to Continental, Isos’s transfer agent, at the address below prior to the extraordinary general meeting. Holders must complete the procedures for electing to redeem their public shares in the manner described above prior to , Eastern Time, on , 2021 (two business days before the extraordinary general meeting) in order for their shares to be redeemed. If you have questions regarding the certification of your position or delivery of your stock, please contact:
Continental Stock Transfer & Trust Company, 1 State Street, 30th floor
New York, NY 10004
Attention: Mark Zimkind
E-Mail: mzimkind@continentalstock.com
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SUMMARY OF THE PROXY STATEMENT/PROSPECTUS
This summary, together with the section titled “Questions and Answers about the Proposals,” summarizes certain information contained in this proxy statement/prospectus and may not contain all of the information that is important to you. To better understand the Business Combination and the Proposals to be considered at the Extraordinary General Meeting, you should read this entire proxy statement/prospectus carefully, including the annexes. See also the section titled “Where You Can Find More Information.”
Unless otherwise indicated or the context otherwise requires, references in this Summary of the Proxy Statement/Prospectus to “New Bowlero” refer to Isos after giving effect to the Domestication (and, as applicable, the Business Combination). References to the “Company” or “Isos” refer to Isos Acquisition Corporation.
Information About the Parties to the Business Combination
Isos Acquisition Corporation
Isos is a special purpose acquisition company formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses. Isos’s Class A ordinary shares, units and warrants are currently listed on the NYSE under the symbols “ISOS,” “ISOS.U,” and “ISOS WS,” respectively. The mailing address of Isos’s principal executive office is 55 Post Road West, Suite 200, Westport CT 06880.
For more information about Isos, see the sections titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Isos” and “Information About Isos.”
Bowlero
Bowlero Corp. is the world’s largest operator of bowling entertainment centers. The Company operates traditional bowling centers and more upscale entertainment concepts with lounge seating, arcades, enhanced food and beverage offerings, and more robust customer service for individuals and group events, as well as hosting and overseeing professional and non-professional bowling tournaments and related broadcasting. The mailing address of Bowlero’s principal executive office is 222 West 44th Street, New York, New York 10036.
For more information about Bowlero, see the sections titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Bowlero” and “Information About Bowlero.”
The Proposals to be Voted on by Isos’s shareholders
The BCA Proposal
Isos and Bowlero have agreed to the Business Combination under the terms of the Business Combination Agreement, dated as of July 1, 2021. This agreement, as the terms and conditions therein may be amended, modified or waived from time to time, is referred to in this proxy statement/prospectus as the “Business Combination Agreement.” Pursuant to the terms and subject to the conditions set forth in the Business Combination Agreement, at the Closing, Bowlero will merge with and into Isos, with Isos surviving. For more information about the Business Combination Agreement and the Business Combination, see the section titled “The BCA Proposal.”
The Domestication Proposal
As discussed in this proxy statement/prospectus, if the BCA Proposal is approved, then Isos will ask its shareholders to approve by special resolution the Domestication Proposal. The Isos Board has unanimously approved the Domestication Proposal. The Domestication Proposal, if approved, will authorize a change of Isos’s jurisdiction of incorporation from the Cayman Islands to the State of Delaware. Accordingly, while Isos is currently governed by the Cayman Islands Companies Act, upon the Domestication, Isos will be governed by the DGCL. There are differences between Cayman Islands corporate law and Delaware corporate law as well as the Cayman Constitutional Documents and the Proposed Organizational Documents. Accordingly, Isos encourages shareholders to carefully review the information in the section titled “Comparison of Corporate Governance and Stockholder Rights.”
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As a result of and upon the effective time of the Domestication, (i) each outstanding Isos Class A ordinary share will be converted into one share of New Bowlero Class A common stock, (ii) each outstanding Isos Class B ordinary share will be converted into one share of New Bowlero Class A common stock, (iii) each warrant will automatically be modified to entitle the holder to acquire one share of New Bowlero Class A common stock (rather than one share of Isos Class A ordinary share), at $11.50 per share, (iv) each outstanding Isos unit that has not been previously separated will be cancelled and entitle the holder to one share of New Bowlero Class A common stock and one-third of a warrant to acquire New Bowlero Class A common stock, and (v) the governing documents of New Bowlero will be the Proposed Certificate of Incorporation and the Proposed Bylaws. See “The Domestication Proposal” for additional information.
The Organizational Documents Proposals
If the BCA Proposal and the Domestication Proposal are approved, then Isos will ask its shareholders to approve by special resolution the Organizational Documents Proposal in connection with the replacement of the Cayman Constitutional Documents with the Proposed Organizational Documents. Isos’s board has unanimously approved the Organizational Documents Proposals and believes such proposal is necessary to adequately address the needs of New Bowlero after the Business Combination. Approval of the Organizational Documents Proposals is a condition to the consummation of the Business Combination. Please see the section titled “The Organizational Documents Proposals.”
The Director Election Proposal
Isos’s shareholders will be asked to approve the election of nine directors to serve on New Bowlero Board until the next annual meeting of shareholders or until their respective successors are duly elected and qualified. Please see the section titled “The Director Election Proposal.”
Stock Issuance Proposal
The issuance of shares of New Bowlero Class A common stock and New Bowlero Class B common stock to Bowlero Stockholders in connection with the consummation of the Business Combination will exceed 20% of Isos’s issued and outstanding ordinary shares. To comply with the NYSE listing rules applicable to Isos, Isos’s shareholders are also being asked to approve by ordinary resolution the issuance of (a) New Bowlero Class A common stock and New Bowlero preferred stock to the PIPE Investors, (b) shares of New Bowlero common stock and New Bowlero preferred stock to the Bowlero Stockholders pursuant to the Business Combination Agreement, (c) New Bowlero Class A common stock issuable upon conversion of the New Bowlero preferred stock to be issued pursuant to the Business Combination Agreement or to be issued and sold in the Preferred PIPE Offering, and (d) shares of New Bowlero Class A common stock to the Forward Purchase Investors. Please see the section titled “The Stock Issuance Proposal.”
The Incentive Plan Proposal
Isos’s shareholders will be asked to consider and approve the Bowlero Corp. 2021 Omnibus Incentive Plan. Please see the section titled “The Incentive Plan Proposal.”
The ESPP Proposal
Isos’s shareholders will be asked to consider and approve the Bowlero Corp. Employee Stock Purchase Plan. Please see the section titled “The ESPP Proposal.”
The Adjournment Proposal
If, based on the tabulated vote, there are insufficient votes at the time of the extraordinary general meeting to authorized Isos to consummate the Business Combination (because any of the Condition Precedent Proposals have not been approved, including as a result of any other cross-conditioned Condition Precedent Proposal to be approved), the Isos Board may submit a proposal to adjourn the extraordinary general meeting to a later date or dates, if necessary, to permit further solicitation of proxies. Please see the section titled “The Adjournment Proposal.”
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The Isos Board’s Reasons for the Business Combination
Isos was organized for the purpose of effecting a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities.
The Isos Board considered a variety of factors in connection with its evaluation of the Business Combination. In light of the complexity of those factors, the Isos Board, as a whole, did not consider it practicable to, nor did it attempt to, quantify or otherwise assign relative weights to the specific factors it took into account in reaching its decision. Individual members of the Isos Board may have given different weight to different factors. Certain information presented in this section is forward-looking in nature and, therefore, should be read in light of the factors discussed under “Cautionary Note Regarding Forward-Looking Statements.”
Before reaching its decision, the Isos Board considered the results of the due diligence conducted by its management and advisors, which included:
• extensive meetings and calls with Bowlero’s management team and advisors regarding, among other things, operations, partnerships, plans and forecasts;
• review of material contracts and other documentation;
• financial, tax, legal, insurance, accounting, operational, business and other due diligence;
• consultation with Isos’s management and its legal counsel and LionTree;
• review of historical financial performance of Bowlero (including audited and unaudited financials) and Bowlero’s management projections for Bowlero’s business; and
• financial and valuation analyses of Bowlero and the Business Combination.
In the prospectus for the IPO, Isos had disclosed that, although it could pursue an acquisition opportunity in any industry or sector, it intended to focus on businesses in the digital media and entertainment sectors. As it related to Bowlero, the Isos Board determined that pursuing a potential business combination with Bowlero would be an attractive opportunity for Isos and its stockholders for a number of reasons, including, but not limited to, (i) Bowlero’s position as the world’s largest operator of bowling centers in a fragmented global market, (ii) Bowlero’s branded experience positioned to capitalize on the demand for experiential entertainment, (iii) Bowlero’s historical financials with consistent organic growth, high unit margin and strong free cash flow conversion, (iv) the opportunity to grow Bowlero across multiple organic and adjacent growth vectors, and (v) Bowlero’s experienced and proven management team.
In addition, based on its review of the industry data and the operational, financial and other relevant information related to the Bowlero business provided by Bowlero and presented to the Isos Board, the factors considered by the Isos Board included, but not limited to, the following:
• Bowlero’s Leading Position in the Bowling Industry. Bowlero is the largest operator of bowling centers in the world, including 321 centers in North America (including current locations, locations in development, and locations under letters of intent) and 26 million guests as of and for the twelve-month period ended February 2020. The bowling industry is highly fragmented, with Bowlero’s footprint being eight times larger than its next largest competitor and with more than approximately 3,500 independent operators. This fragmentation presents a consolidation opportunity to drive further growth. Bowling is the largest participatory sport in the U.S., with approximately 70 million people bowling each year.
• Large and Growing Addressable Market. The transaction supports the continued expansion of Bowlero’s footprint in the $4.5 billion total addressable U.S. bowling market — which has grown 50% over last decade — while becoming the dominant player in the $11 billion global bowling market and capturing a growing piece of the $100 billion global out-of-home entertainment market.
• Premium Branded Experience. Bowlero has established itself as the premier operator in the bowling industry, attracting a robust and diverse demographic of consumers looking for premium entertainment. Consumers repeatedly visit Bowlero not just for its bowling offering, but for its full circle entertainment experience.
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• Incremental Upside Through PBA Ownership. The Professional Bowlers Association (“PBA”) benefits the leisure business by creating a virtuous cycle of recognition and engagement. The league carries strong brand equity and prestige among bowlers, which is carried over to centers. The PBA is currently a profitable standalone venture with a path to incremental sponsorship revenue and realizing greater value of its media rights
• Potential to Drive Growth Through Gaming and Sports Betting. Bowlero’s unique opportunity to create multiple ways for their customers to enjoy the gaming experience. This could include traditional sports betting on the PBA as well as in-center and peer-to-peer gaming and betting. As an example, Bowlero already has a partnership with Skillz, connecting 40mm Skillz players worldwide with Bowlero’s over 321 bowling centers and 26 million annual guests nationwide.
• Experienced and Capable Management Team. Following completion of the Business Combination, Bowlero will continue to be led by the proven senior management team as prior to the Business Combination. Michelle Wilson and George Barrios will join the New Bowlero Board, with their experience in premium experiential entertainment, global growth, media and entertainment, digital transformation and leading companies in the public market.
• Attractive Valuation. The Isos Board’s determination that if Bowlero is able to meet its financial projections, then Isos’s stockholders will have acquired their shares in New Bowlero at an attractive valuation, which would increase shareholder value.
• Other Alternatives. The Isos Board’s belief, after a thorough review of other business combination opportunities reasonably available to Isos, that the Business Combination represents an attractive potential business combination for Isos.
• Terms and Conditions of the Business Combination Agreement. The terms and conditions of the Business Combination Agreement and the Business Combination were the product of arm’s-length negotiations between the parties.
• Continued Ownership by Holders of Bowlero Capital Stock. The Isos Board considered that the holders of Bowlero Common Stock would continue to be significant shareholders of New Bowlero after Closing, with all holders of Bowlero Common Stock entering into Lock-Up Agreements.
• Involvement of the PIPE Investors. The Isos Board considered that the agreement of the investors in the PIPE Offerings, including Isos’s co-founders, LionTree, existing holders of Bowlero Capital Stock and new investors in the PIPE Offerings, to invest an aggregate of $345.0 million in New Bowlero at Closing was a validation of Bowlero’s valuation and future prospects.
• Bowlero Being an Attractive Target. The Isos Board considered the fact that Bowlero (i) is of a sufficient size relevant to the public marketplace, (ii) has an experienced existing management team, (iii) has a significant total addressable market and expansion opportunities, and (iv) would benefit from the consummation of the Business Combination by becoming a public company and receiving the net proceeds of the Business Combination, which the Isos Board believed would allow Bowlero to effectuate its business plan and improve Bowlero’s ability to meet its financial projections.
In the course of its deliberations, in addition to the various other risks associated with the business of Bowlero, as described in the section titled “Risk Factors” appearing elsewhere in this proxy statement/prospectus, the Isos Board also considered a variety of uncertainties, risks and other potentially negative reasons relevant to the Business Combination, including the following:
• Macroeconomic Risks Generally. Macroeconomic uncertainty, particularly the potential impact of the COVID-19 pandemic and future COVID-19 developments, and the effects they could have on New Bowlero’s revenues and financial performance.
• Business Plan and Projections May Not be Achieved. The risk that Bowlero may not be able to execute on its business plan and realize the financial performance as set forth in the financial projections presented to management of Isos and the Isos Board.
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• No Fairness Opinion. The risk that Isos did not obtain a fairness opinion in connection with the Business Combination.
• Liquidation. The risks and costs to Isos if the Business Combination is not completed, including the risk of diverting management focus and resources from other businesses combination opportunities, which could result in Isos being unable to effect a business combination within the completion window, which would require Isos to liquidate.
• Stockholder Vote and Other Actions. The risk that Isos Stockholders may object to and challenge the Business Combination and take action that may prevent or delay the Closing, including to vote down the Proposals at the Special Meeting or redeem their Isos Public Shares.
• Closing Conditions. The fact that completion of the Business Combination is conditioned on the satisfaction of certain closing conditions that are not within Isos’s control.
• Isos’s Stockholders Holding a Minority Position in the Post-Combination Company. The fact that existing Isos stockholders will hold a minority position in New Bowlero following completion of the Business Combination and that Mr. Shannon will control New Bowlero.
• Litigation. The possibility of litigation challenging the Business Combination or that an adverse judgment granting permanent injunctive relief could indefinitely enjoin consummation of the Business Combination.
• Fees and Expenses. The fees and expenses associated with completing the Business Combination.
• Redemptions. The risk that holders of Public Shares would exercise their redemption rights, thereby depleting the amount of cash available in the trust account.
• NYSE Listing. The potential inability to maintain the listing of New Bowlero’s securities on the NYSE following the Closing.
• Valuation. The risk that the Isos Board may not have properly valued Isos’s business.
• Distraction to Operations. The risk that the potential diversion of Bowlero’s management and employee attention as a result of the Business Combination may adversely affect Bowlero’s operations.
• Readiness to be a Public Company. As Bowlero has not previously been a public company, Bowlero may not have all the different types of employees necessary for it to timely and accurately prepare reports for filing with the SEC. There is a risk that Bowlero will not be able to hire the right people to fill in these gaps by the time of the Closing or that additional issues could arise after the Closing due to its failure to have hired these people in advance of Closing.
In addition to considering the factors described above, the Isos Board also considered that:
• Interests of Certain Persons. The Sponsor, LionTree, and certain officers and directors of Isos may have interests in the Business Combination as individuals that are in addition to, and that may be different from, the interests of Isos’s stockholders (see section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination”).
After considering the foregoing, the Isos Board concluded, in its business judgment, that the potential benefits to Isos and its stockholders relating to the Business Combination outweighed the potentially negative factors and risks relating to the Business Combination.
For a more complete description of the Isos Board’s reasons for approving the Business Combination, including other factors and risks considered by the Isos Board, see the section titled “The BCA Proposal — The Isos Board’s Reasons for the Business Combination.”
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Related Agreements
This section describes certain additional agreements entered into or to be entered into pursuant to the Business Combination Agreement. For additional information, see the section titled “The BCA Proposal — Related Agreements.”
Common and Preferred PIPE Offerings
Contemporaneously with the execution of the Business Combination Agreement, Isos entered into separate subscription agreements (each, a “Common PIPE Subscription Agreement”) with a number of subscribers (each a “Common PIPE Investor”), including Isos’s Co-Chief Executive Officers, George Barrios and Michelle Wilson, and LionTree, pursuant to which, substantially concurrent with the Closing of the Merger, the Common PIPE Investors agreed to purchase, and Isos agreed to sell to the Common PIPE Investors, an aggregate of 15 million shares of New Bowlero Class A common stock (the “Common PIPE Shares”), for a purchase price of $10.00 per share and an aggregate purchase price of $150.0 million (the “Common PIPE Offering”), with the Common Subscription Agreements of George Barrios, Michelle Wilson and LionTree accounting for an aggregate of $5.0 million of the Common PIPE Offering.
In addition, Isos also contemporaneously entered into separate subscription agreements (each, a “Preferred PIPE Subscription Agreement” and together with the Common PIPE Subscription Agreements, the “PIPE Subscription Agreements”) with a number of subscribers (each, a “Preferred PIPE Investor” and together with the Common Investors, the “PIPE Investors”), pursuant to which, substantially concurrent with the Closing of the Merger, the Preferred PIPE Investors agreed to purchase, and Isos agreed to sell to the Preferred PIPE Investors, an aggregate of 95,000 shares of New Bowlero preferred stock (the “Preferred PIPE Shares”), for a purchase price of $1,000.00 per share and an aggregate purchase price of $95.0 million (the “Preferred PIPE Offering” and together with the Common PIPE Offering, the “PIPE Offerings”).
Holders of the New Bowlero preferred stock will be entitled to receive, when, as and if declared by New Bowlero Board out of funds legally available for such dividends, cumulative cash dividends at an annual rate of 5.5% on the stated amount per share plus the amount of any accrued and unpaid dividends on such share, accumulating on a daily basis and payable semi-annually on June 30 and December 31, respectively, in each year. Holders of the New Bowlero preferred stock will also be entitled to dividends paid to holders of New Bowlero common stock on an as converted basis. Holders of the New Bowlero preferred stock will be entitled to vote together as a single class with the holders of New Bowlero common stock on an as converted basis and will have consent rights over certain corporate actions of the Company. See “Description of Securities After the Business Combination — Preferred Stock” in this proxy statement/prospectus for further details.
The closings of the PIPE Offerings pursuant to the PIPE Subscription Agreements are contingent upon, among other customary closing conditions, the substantially concurrent Closing.
Pursuant to the PIPE Subscription Agreements, Isos agreed that, within 30 calendar days after the Closing, it will file with the SEC (at its sole cost and expense) a registration statement registering the resale of the Common PIPE Shares and the New Bowlero Class A common stock underlying the Preferred PIPE Shares, and it will use its reasonable best efforts to have such registration statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 60th calendar day (or 90th calendar day if the SEC notifies Isos that it will “review” the registration statement) following the Closing and (ii) the second business day after the date Isos is notified (orally or in writing, whichever is earlier) by the SEC that the registration statement will not be “reviewed” or will not be subject to further review.
Issuance to Atairos
In addition, in connection with the consummation of the Business Combination, 423,540.801 shares of Bowlero Common Stock held by Atairos will be converted, in the aggregate, into the right to receive 105,000 shares of New Bowlero preferred stock with an initial liquidation preference of $1,000 per share, having an aggregate initial liquidation preference equal to $105.0 million.
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Amended and Restated Forward Purchase Contract
Contemporaneously with the execution of the Business Combination Agreement, Isos entered into an Amended and Restated Forward Purchase Contract with the subscribers named therein which amended and restated the Forward Purchase Contract dated March 2, 2021, pursuant to which, among other things the subscribers agreed to increase the number of Isos units they are required to purchase on closing of Isos’s initial business combination to ten million units (for an aggregate purchase price of $100.0 million), and in connection with which Isos agreed to pay to certain subscribers a fee equal to an aggregate of $3.0 million, payable upon Closing.
Stockholder Support Agreement
Following the execution of the Business Combination Agreement, Bowlero and Isos entered into a Stockholder Support Agreement with Atairos and TS (together, the “Supporting Stockholders”), pursuant to which (i) Atairos agreed to execute and deliver a written consent to Bowlero, no later than the third business day following the date that Isos’s registration statement on Form S-4 becomes effective, in respect of all shares of Bowlero owned by Atairos in favor of the Merger and approving the Business Combination Agreement and the transactions contemplated thereby, and voting against any Company Acquisition Proposal (as defined in the Business Combination Agreement) and any other action that would reasonably be expected to materially impede or delay the Merger or the transactions contemplated by the Business Combination Agreement, and (ii) the Supporting Stockholders agreed to waive any rights of appraisal and dissenters’ rights relating to the Merger. The Stockholder Support Agreement also contains restrictions on transfers of the shares of Bowlero held by the Supporting Stockholders and provides that TS will make a Stock Election (as defined in the Business Combination) with respect to all shares of Bowlero common stock held by it and that Atairos will make a Cash Election (as defined in the Business Combination Agreement) for its shares of Bowlero common stock up to 100% of the Cash Election Consideration Cap (as defined in the Business Combination Agreement) and a Stock Election with respect to its remaining shares of Bowlero common stock.
Sponsor Support Agreement
In connection with the execution of the Business Combination Agreement, Isos entered into a sponsor support agreement with Bowlero, the Sponsor and LionTree (the “Sponsor Support Agreement”). Pursuant to the Sponsor Support Agreement, the Sponsor and LionTree each agreed: (i) to vote any shares of Isos in favor of the Transactions, (ii) not to redeem any shares of Isos in connection with the stockholder redemption, (iii) to waive its anti-dilution rights with respect to its Class B ordinary shares, par value $0.0001 per share under Isos’s memorandum and articles of association, (iv) to comply with its obligations under the letter agreement dated as of March 2, 2021 (the “Insider Letter”), by and among Isos, the Sponsor and LionTree, (v) to be subject to a lock-up period of twelve months following the Closing, as further provided in the Sponsor Support Agreement, and (vi) to forgive certain indebtedness owing by Isos to the Sponsor or LionTree at the Closing in excess of $1.5 million, in the aggregate.
In addition, pursuant to the Sponsor Support Agreement, the Sponsor will forfeit for cancellation 722,196 Class B ordinary shares plus, depending on the percentage of redemptions by holders of Isos Public Shares, up to an additional 1,203,659 Class B ordinary shares, and LionTree will forfeit for cancellation 83,443 Class B ordinary shares plus, depending on the percentage of redemptions by holders of Isos Public Shares, up to an additional 139,072 Class B ordinary shares. In addition, upon Closing, 1,444,391 of the Sponsor’s Class B ordinary shares and 1,189,037 of the Sponsor’s private placement warrants and 166,887 of LionTree’s Class B ordinary shares and 430,311 of LionTree’s private placement warrants will unvest at Closing. 50% of the unvested Class B ordinary shares and 50% of the private placement warrants of each of the Sponsor and LionTree that unvested at closing will revest only to the extent the closing price of New Bowlero Class A common stock exceeds $15.00 per share and $17.50 per share, respectively, and as further provided in the Sponsor Support Agreement prior to the fifth anniversary of the Closing (with any shares and/or warrants unvested as of such date being forfeited and cancelled).
Lock-Up Agreements
Contemporaneously with the execution of the Business Combination Agreement, Isos and Bowlero entered into Lock-Up Agreements (each a “Lock-Up Agreement”) with Bowlero’s existing stockholders, pursuant to which the securities of New Bowlero held by such stockholders following Closing will be locked-up and subject to transfer restrictions, subject to certain exceptions. The securities held by such stockholders will be locked-up until the earlier of: (i) the 180 day anniversary of the Closing, (ii) the date on which the closing price of the New Bowlero Class A
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common stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like), for any 20 trading days within any 30-trading day period following the Closing; provided that if such condition is satisfied prior to the 90 day anniversary of the Closing, such condition shall only be deemed to be satisfied on the 90 day anniversary of the Closing, and (iii) the date on which New Bowlero consummates a liquidation, merger, share exchange, reorganization, tender offer or other similar transaction after the Closing which results in all of New Bowlero’s stockholders having the right to exchange their shares of common stock of New Bowlero for cash, securities or other property.
Registration Rights Agreement
Contemporaneously with the execution of the Business Combination Agreement, Isos entered into an amended and restated registration rights agreement (the “Registration Rights Agreement”) with certain securityholders of Bowlero, including the Supporting Stockholders, and certain of its stockholders (the “Registration Rights Holders”) that will be effective upon the Closing.
Following the Closing, subject to several exceptions, including New Bowlero’s right to defer a demand registration, shelf registration or underwritten offering under certain circumstances, the Registration Rights Holders may require that New Bowlero register for public resale under the Securities Act all shares of New Bowlero Class A common stock that they request to be registered at any time, subject to the restrictions in the Lock-Up Agreements, so long as the securities being registered in each registration statement or sold in any underwritten offering are reasonably expected to produce aggregate proceeds of at least $50.0 million.
If New Bowlero becomes eligible to register the sale of its securities on Form S-3 under the Securities Act, the Registration Rights Holders have the right to require New Bowlero to register the sale of the New Bowlero common stock held by them on Form S-3, subject to offering size and other restrictions. The Registration Rights Holders also have the right to request marketed and non-marketed underwritten offerings using a shelf registration statement.
If New Bowlero proposes to file certain types of registration statements under the Securities Act with respect to an offering of equity securities (including for sale by New Bowlero or at the request of the Registration Rights Holders), New Bowlero will be required to use its reasonable best efforts to offer the parties to the Registration Rights Agreement the opportunity to register the sale of all or part of their shares on the terms and conditions set forth in the Registration Rights Agreement (customarily known as “piggyback rights”).
All expenses of registration under the Registration Rights Agreement, including the legal fees of counsel chosen by stockholders participating in a registration, will be paid by New Bowlero.
The registration rights granted in the Registration Rights Agreement are subject to customary restrictions including blackout periods and, if a registration is underwritten, any limitations on the number of shares to be included in the underwritten offering as reasonably advised by the managing underwriter or underwriters. The Registration Rights Agreement also contains customary indemnification and contribution provisions.
Ownership of New Bowlero following the Business Combination
As of the date of this proxy statement/prospectus, there are 31,854,625 ordinary shares issued and outstanding and entitled to vote, of which 25,483,700 are issued and outstanding public shares. As of the date of this proxy statement/prospectus, there is outstanding an aggregate of 13,892,394 warrants, which includes the 5,397,828 private placement warrants held by the Sponsor and LionTree, collectively, and the 8,494,566 public warrants. Each whole warrant entitles the holder thereof to purchase one Isos Class A ordinary share and, following the Domestication and the Business Combination, will entitle the holder thereof to purchase one share of New Bowlero Class A common stock. Therefore, as of the date of this proxy statement/prospectus (without giving effect to the Business Combination), the Isos fully diluted share capital would be 39,376,094.
The following table sets forth the anticipated ownership of New Bowlero immediately following consummation of the Business Combination assuming a share price of $10.00 per share, as well as a share price of $17.50 per share, in each case assuming no redemptions, intermediate redemptions (of 3,991,900 Public Shares), and maximum redemptions (of 7,983,800 Public Shares). Based on a share price of $10.00, the first scenario assumes no issuance of any Earnout Shares (and assumes that all earnout shares held by the Sponsor and LionTree are forfeited), and assumes no conversion of the New Bowlero preferred stock issued in the Preferred PIPE Offering or issued
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to Atairos pursuant to the Business Combination into New Bowlero common stock, and, based on a share price of $17.50, the second scenario assumes the issuance of all Earnout Shares (and assumes that all earnout shares held by the Sponsor and LionTree vest and accordingly are not forfeited), and assumes conversion of all of the New Bowlero preferred stock issued in the Preferred PIPE Offering and issued to Atairos pursuant to the Business Combination at a conversion price of $13.00 per share.
|
|
|
$10.00 per share
|
|
$17.50 per share
|
|
|
|
No Redemptions
|
|
Intermediate Redemptions
|
|
Maximum Redemptions
|
|
No Redemptions
|
|
Intermediate Redemptions
|
|
Maximum Redemptions
|
|
Isos public shareholders
|
|
14.5%
|
|
12.3%
|
|
10.0%
|
|
12.0%
|
|
10.1%
|
|
8.2%
|
|
Bowlero
Stockholders
|
|
68.9%
|
|
71.6%
|
|
74.3%
|
|
66.5%
|
|
68.7%
|
|
70.9%
|
|
Sponsor and LionTree(1)
|
|
2.3%
|
|
1.9%
|
|
1.5%
|
|
2.6%
|
|
2.3%
|
|
2.0%
|
|
Common PIPE Investors
|
|
8.6%
|
|
8.6%
|
|
8.6%
|
|
7.0%
|
|
7.0%
|
|
7.0%
|
|
Forward Purchase Investors
|
|
5.7%
|
|
5.7%
|
|
5.7%
|
|
4.7%
|
|
4.7%
|
|
4.7%
|
|
New Bowlero preferred stockholders
|
|
N/A
|
|
N/A
|
|
N/A
|
|
7.2%
|
|
7.2%
|
|
7.2%
|
Both scenarios assume (i) no exercise of the warrants or Bowlero options being converted into New Bowlero options, (ii) Mr. Shannon receives 1,422,813 shares of New Bowlero Class B common stock as the stock portion of the transaction bonus, and (iii) that an aggregate of 25,000,000 shares of New Bowlero Class A common stock are issued to the PIPE Investors pursuant to the Common PIPE Offering and the Forward Purchase Investors pursuant to the Forward Purchase Investment. If the actual facts are different from these assumptions, the percentage ownership retained by Isos’s existing shareholders in New Bowlero will be different.
Date, Time and Place of Extraordinary General Meeting of Isos’s Shareholders
The extraordinary general meeting of the shareholders of Isos will be held at , Eastern Time, on , 2021, at the offices of Hughes Hubbard & Reed LLP, at One Battery Park Plaza, New York, NY 10004, or virtually via live webcast at , to consider and vote upon the proposals to be put to the extraordinary general meeting, including if necessary, the Adjournment Proposal, to permit further solicitation and vote of proxies if, based upon the tabulated vote at the time of the extraordinary general meeting, each of the Condition Precedent Proposals have not been approved.
Voting Power; Record Date
Isos shareholders will be entitled to vote or direct votes to be cast at the extraordinary general meeting if they owned ordinary shares at the close of business on , 2021, which is the “record date” for the extraordinary general meeting. Shareholders will have one vote for each ordinary share owned at the close of business on the record date. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker to ensure that votes related to the shares you beneficially own are properly counted. Isos warrants do not have voting rights. As of the close of business on the record date, there were 31,854,625 ordinary shares issued and outstanding and entitled to vote, of which 25,483,700 were issued and outstanding public shares.
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Quorum and Vote of Isos Shareholders
A quorum of Isos shareholders is necessary to hold a valid meeting. A quorum will be present at the Isos extraordinary general meeting if a majority of the issued and outstanding ordinary shares entitled to vote at the extraordinary general meeting are represented in person or by proxy. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting. As of the record date for the extraordinary general meeting, 15,927,313 ordinary shares would be required to achieve a quorum.
The Sponsor and LionTree have agreed to vote all of their ordinary shares in favor of the proposals being presented at the extraordinary general meeting. As of the date of this proxy statement/prospectus, the Sponsor and LionTree collectively own 20.0% of the issued and outstanding ordinary shares.
The proposals presented at the extraordinary general meeting require the following votes:
• BCA Proposal: The approval of the BCA Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• Domestication Proposal: The approval of the Domestication Proposal requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• Organizational Documents Proposals: The separate approval of each of the Organizational Documents Proposals requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• Director Election Proposal: The approval of the Director Election Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• Stock Issuance Proposal: The approval of the Stock Issuance Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• Incentive Plan Proposal: The approval of the Incentive Plan Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• ESPP Proposal: The approval of the ESPP Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
• Adjournment Proposal: The approval of the Adjournment Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting.
Redemption Rights
Pursuant to the Cayman Constitutional Documents, a public shareholder may request that all or a portion of its public shares be redeemed for cash if the Business Combination is consummated. As a holder of public shares, you will be entitled to receive cash for any public shares to be redeemed only if you:
• (i) hold public shares or (ii) if you hold public shares through units, you elect to separate your units into the underlying public shares and public warrants prior to exercising your redemption rights with respect to the public shares;
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• submit a written request to Continental Stock Transfer & Trust Company (“Continental”), Isos’s transfer agent, that all or a portion of your public shares be redeemed for cash; and
• deliver your public shares to Continental, Isos’s transfer agent, physically or electronically through DTC.
Holders must complete the procedures for electing to redeem their public shares in the manner described above prior to 5:00 p.m., Eastern Time, on , 2021 (two business days before the extraordinary general meeting) in order for their shares to be redeemed.
Holders of units must elect to separate the units into the underlying public shares and public warrants prior to exercising redemption rights with respect to the public shares. If holders hold their units in an account at a brokerage firm or bank, such holders must notify their broker or bank that they elect to separate the units into the underlying public shares and public warrants, or if a holder holds units registered in its own name, the holder must contact Continental, Isos’s transfer agent, directly and instruct them to do so. Public shareholders may elect to redeem all or a portion of the public shares held by them regardless of if or how they vote in respect of the BCA Proposal. If the Business Combination is not consummated, the public shares will be returned to the respective holder, broker or bank. If the Business Combination is consummated, and if a public shareholder properly exercises its right to redeem all or a portion of the public shares that it holds and timely delivers its shares to Continental, Isos’s transfer agent, Isos will redeem such public shares for a per-share price, payable in cash, equal to the pro rata portion of the trust account, calculated as of two business days prior to the consummation of the Business Combination. For illustrative purposes, as of August 31, 2021, this would have amounted to approximately $10.00 per issued and outstanding public share. If a public shareholder exercises its redemption rights in full, then it will be electing to exchange its public shares for cash and will no longer own public shares. See the section titled “Extraordinary General Meeting of Isos Shareholders — Redemption Rights” in this proxy statement/prospectus for a detailed description of the procedures to be followed if you wish to redeem your public shares for cash.
Notwithstanding the foregoing, a public shareholder, together with any affiliate of such public shareholder or any other person with whom such public shareholder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Exchange Act), will be restricted from redeeming its public shares with respect to more than an aggregate of 15% of the public shares. Accordingly, if a public shareholder, alone or acting in concert or as a group, seeks to redeem more than 15% of the public shares, then any such shares in excess of that 15% limit would not be redeemed for cash.
The Sponsor and LionTree have each agreed to vote in favor of the Business Combination, regardless of how our public shareholders vote. Unlike some other blank check companies in which the initial shareholders agree to vote their shares in accordance with the majority of the votes cast by the public shareholders in connection with an initial business combination, the Sponsor and LionTree agreed to, among other things, vote in favor of the Business Combination Agreement and the transactions contemplated thereby, in each case, subject to the terms and conditions contemplated by the Sponsor Support Agreement. As of the date of this proxy statement/prospectus, the Sponsor and LionTree collectively own 20.0% of the issued and outstanding ordinary shares.
Holders of the warrants will not have redemption rights with respect to the warrants.
Appraisal Rights
Neither Isos shareholders nor Isos warrant holders have appraisal rights in connection with the Business Combination or the Domestication under the Cayman Islands Companies Act or under the DGCL.
Proxy Solicitation
Proxies may be solicited by mail, telephone or in person. Isos has engaged Morrow Sodali LLC to assist in the solicitation of proxies.
If a shareholder grants a proxy, it may still vote its shares in person if it revokes its proxy before the extraordinary general meeting. A shareholder also may change its vote by submitting a later-dated proxy as described in the section titled “Extraordinary General Meeting of Isos Shareholders — Revoking Your Proxy.”
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Interests of the Sponsor Related Persons in the Business Combination
When you consider the recommendation of Isos’s board of directors in favor of approval of the BCA Proposal, you should keep in mind that the Sponsor, LionTree and Isos’s directors and executive officers have interests in such proposal that are different from, or in addition to, those of Isos shareholders and warrant holders generally. These interests include, among other things, the interests listed below:
• the 3,963,458 private placement warrants purchased by the Sponsor and the 1,434,370 private placement warrants purchased by LionTree in connection with the IPO for approximately $5.9 million and $2.2 million, respectively (which would be valued at approximately $4.2 million and $1.5 million, respectively, based on the $1.05 closing price of Isos warrants on September 10, 2021), will be worthless if a business combination is not consummated by March 5, 2023 (as may be extended);
• the fact that Sponsor paid a nominal amount for its 5,814,636 founder shares and LionTree paid a nominal amount for its 556,289 founder shares, which such founder shares (if unrestricted and freely tradeable), would be valued at approximately $57.8 million and $5.5 million, respectively, based on the $9.94 closing price of Isos Class A common stock on September 10, 2021, and that such shares will be worthless if a business combination is not consummated;
• the fact that Sponsor and LionTree have agreed not to redeem any of their founders shares in connection with a stockholder vote to approve a proposed initial business combination;
• the fact that upon consummation of the Business Combination, the Sponsor and LionTree are expected to hold an economic ownership in New Bowlero as further described in “Ownership of New Bowlero following the Business Combination” above, through their ownership of founder shares as described above;
• the fact that upon completion of the Business Combination, an aggregate amount of $8.6 million in M&A advisory fees, $3.6 million in deferred underwriters’ compensation, and $1.8 million of placement agent fees (payable in connection with the PIPE Offerings) will be payable to LionTree;
• if the trust account is liquidated, including in the event Isos is unable to complete an initial business combination within the required time period, the Sponsor and LionTree have agreed to indemnify Isos to ensure that the proceeds in the trust account are not reduced below $10.00 per public share by the claims of prospective target businesses with which Isos has entered into an acquisition agreement or claims of any third party for services rendered or products sold to Isos , but only if such a vendor or target business has not executed a waiver of any and all rights to seek access to the trust account;
• the fact that Isos’s existing officers and directors will be eligible for continued indemnification and continued coverage under a directors’ and officers’ liability insurance policy after the business combination and pursuant to the Business Combination Agreement; and
• George Barrios and Michelle Wilson, Isos’s Co-Chief Executive Officers, each of whom is currently a director of Isos, are expected to be directors of New Bowlero after the consummation of the Business Combination, in connection with which they may receive fees for their service as directors.
These interests may influence Isos’s officers and directors in making their recommendation with regard to Isos stockholders’ vote on the Proposals.
The Sponsor and LionTree have agreed to vote in favor of the Business Combination, regardless of how our public shareholders vote. Unlike some other blank check companies in which the initial shareholders agree to vote their shares in accordance with the majority of the votes cast by the public shareholders in connection with an initial business combination, the Sponsor and LionTree have agreed to, among other things, vote in favor of the Business Combination Agreement and the transactions contemplated thereby, in each case, subject to the terms and conditions contemplated by the Sponsor Support Agreement. As of the date of this proxy statement/prospectus, the Sponsor and LionTree collectively own 20.0% of Isos’s issued and outstanding ordinary shares.
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Interests of the Bowlero Related Parties in the Business Combination
In considering the recommendation of Bowlero’s board of directors in favor of approval of the Business Combination and the BCA Proposal, you should keep in mind that certain members of the board of directors and executive officers of Bowlero (including Mr. Shannon), as well as Atairos have interests in such proposal that are different from, or in addition to, those of your interests as a stockholder. These interests include, among other things, the interests listed below:
• Certain of Bowlero’s directors and executive officers are expected to become directors and/or executive officers of New Bowlero upon the closing of the Business Combination.
• Certain of Bowlero’s executive officers hold stock options of Bowlero. The treatment of such equity awards in connection with the Business Combination is described in “The BCA Proposal — The Business Combination Agreement — Conversion/Exchange of Securities,” which description is incorporated by reference herein.
• Certain of Bowlero’s directors hold shares of Bowlero. The treatment of such shares in connection with the Business Combination is described in “The BCA Proposal — The Business Combination Agreement — Conversion/Exchange of Securities,” which description is incorporated by reference herein.
• Each of Mr. Shannon and Mr. Parker are eligible to receive a transaction bonus upon the consummation of the Business Combination. The amount of Mr. Shannon’s bonus is approximately $28.5 million, and is payable 50% in cash and 50% in the form of fully vested shares of New Bowlero Class B common stock. The amount of Mr. Parker’s bonus is approximately $10.8 million, and is payable in cash. Such transaction bonuses are described in “Executive Compensation,” which description is incorporated by reference herein.
• Each of Mr. Shannon and Mr. Parker are expected to enter into a new employment agreement that will be effective upon the closing of the Business Combination. The material terms that are anticipated to be included in such agreements are described in “Executive Compensation,” which description is incorporated by reference herein.
• Each of Mr. Shannon, Atairos and Mr. Parker will be entitled to receive 47.59%, 47.59% and 4.82% of the Earnout Shares, respectively, as described in “The BCA Proposal — The Business Combination Agreement — Conversion/Exchange of Securities.”
• Each of Mr. Shannon and Atairos will be entitled to receive Per Share Forfeited Share Consideration, which for each of Mr. Shannon and Atairos will be equal to 402,819.50 shares, assuming no redemptions, and 1,074,185 shares, assuming maximum redemptions.
• Mr. Shannon will have voting control as described in “Beneficial Ownership of Securities.”
• Each of Atairos and Mr. Shannon will have board nomination rights and Atairos will also have consent rights under the Stockholders Agreement.
Recommendation to Isos’s Shareholders
Isos’s board of directors believes that the BCA Proposal and the other Proposals to be presented at the extraordinary general meeting are in the best interest of Isos’s shareholders and unanimously recommends that its shareholders vote “FOR” the BCA Proposal, “FOR” the Domestication Proposal, “FOR” the Stock Issuance Proposal, “FOR” each of the separate Organizational Documents Proposals, “FOR” the Director Election Proposal, “FOR” the Incentive Plan Proposal, “FOR” the ESPP Proposal and “FOR” the Adjournment Proposal, in each case, if presented to the extraordinary general meeting.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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Sources and Uses of Funds for the Business Combination
The following table summarizes the sources and uses for funding the Business Combination. These figures assume that no public shareholders exercise their redemption rights in connection with the Business Combination.
|
Sources (in millions)
|
|
Uses (in millions)
|
|
Cash and investments held in the trust account
|
|
$
|
254.8
|
|
Cash consideration to Bowlero common stockholders and optionholders
|
|
$
|
309.2
|
|
Forward Purchase Contract proceeds
|
|
$
|
100.0
|
|
Cash consideration to Bowlero preferred stockholders(1)
|
|
$
|
141.2
|
|
PIPE Offerings
|
|
$
|
245.0
|
|
Transaction expenses(2)
|
|
$
|
80.0
|
|
|
|
|
|
|
Cash to balance sheet(3)
|
|
$
|
69.4
|
|
Total Sources
|
|
$
|
599.8
|
|
Total Uses
|
|
$
|
599.8
|
Expected Accounting Treatment
The Business Combination will be accounted for as a reverse capitalization in accordance with GAAP. Under this method of accounting, Isos will be treated as the “acquired” company for financial reporting purposes. See the subsection titled “The Business Combination — Expected Accounting Treatment of the Business Combination.”
Regulatory Approvals
The Business Combination and the transactions contemplated by the Business Combination Agreement are subject to the following regulatory requirements or approvals: (i) filings with the State of Delaware, (ii) filings required with the SEC pursuant to the reporting requirements applicable to Isos, and the requirements of the Securities Act and the Exchange Act to disseminate this proxy statement/prospectus to Isos’s stockholders and (iii) filings required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) in connection with the Business Combination and the expiration or termination of any applicable waiting period, or any extension thereof, under the HSR Act.
Under the HSR Act and the rules and regulations promulgated thereunder by the U.S. Federal Trade Commission (the “FTC”), the Business Combination cannot be consummated until notifications have been given and certain information has been furnished to the FTC and the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”), and certain waiting period requirements have been satisfied. A transaction notifiable under the HSR Act may not be completed until the expiration of a 30-calendar day waiting period following the parties’ filing of their respective HSR Act notification forms or the early termination of that waiting period. The HSR Act waiting period for the Business Combination expired on August 16, 2021.
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SUMMARY RISK FACTORS
The consummation of the Business Combination and the business and financial condition of New Bowlero subsequent to Closing are subject to numerous risks and uncertainties, including those highlighted in the section title “Risk Factors” of this proxy statement/prospectus. The occurrence of one or more of the events or circumstances described below, alone or in combination with other events or circumstances, may adversely affect Isos’s ability to effect a business combination, and may have an adverse effect on the business, cash flows, financial condition and results of operations of Isos and Bowlero prior to the Business Combination and that of New Bowlero subsequent to the Business Combination. Such risks include, but are not limited to:
• the impact of the COVID-19 pandemic on our business;
• changes in consumer preferences and buying patterns;
• changes in economic and business conditions;
• inability to compete successfully against current and future competitors in the highly competitive out-of-home and home-based entertainment markets;
• inability to sustain further growth in our business;
• failure to meet consumer expectations;
• adverse publicity or inability to further build our brands;
• natural disasters, war, terrorism, weather, public health issues such as the COVID-19 pandemic or other catastrophic events that could disrupt the operations of our centers or the demand for our entertainment offerings;
• our ability to obtain, maintain and enforce intellectual property protection for our current and future entertainment offerings;
• the risks of doing business internationally;
• cyber security breaches and data leaks, and our dependence on information technology systems;
• changes in health and safety regulations;
• competition that we face; and
• the other factors set forth under “Risk Factors.”
These and other risks are more fully described in the section titled “Risk Factors” in this prospectus. If any of these risks actually occurs, our business, financial condition, results of operations, cash flows and prospects could be materially and adversely affected. As a result, you could lose all or part of your investment in New Bowlero’s common stock.
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SELECTED HISTORICAL FINANCIAL INFORMATION OF BOWLERO
The following tables present selected historical consolidated financial data for the periods indicated of Bowlero Corp Unless the context otherwise requires, references in this “Selected Historical Consolidated Financial Data of Bowlero Corp.” to “we,” “us,” “our,” the “Company,” and “Bowlero” are intended to mean the business and operations of Bowlero Corp. and its consolidated subsidiaries. We have derived our selected historical consolidated statement of operations data and the selected historical consolidated statement of cash flows data for the years ended June 27, 2021 and June 28, 2020 and our selected historical consolidated balance sheet data as of June 27, 2021 and June 28, 2020 from our audited consolidated financial statements included elsewhere in this proxy statement/prospectus. Our historical results are not necessarily indicative of the results that should be expected in the future.
The following selected historical consolidated financial data should be read in conjunction with the sections titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Bowlero” and our audited consolidated financial statements and the related notes included elsewhere in this proxy statement/prospectus.
Consolidated Statements of Operations Data:
(in thousands, except share and per share data)
|
|
|
Fiscal Year ended
|
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Revenues
|
|
$
|
395,234
|
|
|
$
|
520,431
|
|
|
Cost of revenues
|
|
|
374,255
|
|
|
|
443,265
|
|
|
Gross profit
|
|
|
20,979
|
|
|
|
77,166
|
|
|
Selling, general and administrative expense
|
|
|
78,335
|
|
|
|
84,103
|
|
|
Asset impairment
|
|
|
386
|
|
|
|
1,653
|
|
|
(Gain) loss on sale or disposal of assets, net
|
|
|
(46
|
)
|
|
|
1,346
|
|
|
Income from joint ventures
|
|
|
(223
|
)
|
|
|
(143
|
)
|
|
Management fee income
|
|
|
(146
|
)
|
|
|
(524
|
)
|
|
Other expenses
|
|
|
1,500
|
|
|
|
959
|
|
|
Loss on refinance of debt
|
|
|
—
|
|
|
|
1,172
|
|
|
Gain on sale of short-term investments
|
|
|
—
|
|
|
|
(3,388
|
)
|
|
Business interruption insurance recoveries
|
|
|
(20,188
|
)
|
|
|
(6,025
|
)
|
|
Total operating expenses, net
|
|
|
59,618
|
|
|
|
79,153
|
|
|
Operating loss
|
|
|
(38,639
|
)
|
|
|
(1,987
|
)
|
|
Interest expense, net
|
|
|
88,857
|
|
|
|
80,642
|
|
|
Loss before income tax expense
|
|
|
(127,496
|
)
|
|
|
(82,629
|
)
|
|
Income tax expense (benefit)
|
|
|
(1,035
|
)
|
|
|
8,263
|
|
|
Net loss
|
|
$
|
(126,461
|
)
|
|
$
|
(90,892
|
)
|
|
Redeemable convertible preferred stock dividends (undeclared and cumulative)
|
|
|
(8,015
|
)
|
|
|
(8,556
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per share attributable to common stockholders:
|
|
$
|
(134,476
|
)
|
|
$
|
(99,448
|
)
|
|
Basic and diluted
|
|
$
|
(22.75
|
)
|
|
$
|
(16.82
|
)
|
|
Weighted-average common shares outstanding:
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
|
5,911,428
|
|
|
|
5,911,428
|
|
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Consolidated Statements of Cash Flows Data:
(in thousands)
|
|
|
Fiscal Year ended
|
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Net cash provided by (used in) operating activities
|
|
$
|
58,232
|
|
|
$
|
18,822
|
|
|
Net cash used in investing activities
|
|
|
(46,676
|
)
|
|
|
(129,395
|
)
|
|
Net cash provided by financing activities
|
|
|
34,805
|
|
|
|
137,263
|
|
Consolidated Balance Sheet Data:
(in thousands)
|
|
|
As of
|
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Cash and cash equivalents
|
|
$
|
187,093
|
|
|
$
|
140,705
|
|
Working capital
|
|
|
100,072
|
|
|
|
90,265
|
|
Total assets
|
|
|
1,782,238
|
|
|
|
1,776,446
|
|
Total debt
|
|
|
875,586
|
|
|
|
835,846
|
|
Total liabilities
|
|
|
1,452,115
|
|
|
|
1,332,634
|
|
Total stockholders’ (deficit) equity
|
|
|
(275,866
|
)
|
|
|
150,064
|
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SELECTED HISTORICAL FINANCIAL INFORMATION OF ISOS
The following table sets forth selected historical financial information derived from Isos’ unaudited financial statements as of June 30, 2021 and for the quarters ended June 30, 2021 and its audited financial statements as of December 31, 2020 and for the period from December 29, 2020 (inception) through December 31, 2020, included elsewhere in this proxy statement/prospectus. You should read the following selected financial data in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Isos” and the financial statements and the related notes appearing elsewhere in this proxy statement/prospectus.
Balance Sheets
|
|
|
June 30,
2021
(Unaudited)
|
|
December 31,
2020
(Audited)
|
|
Current asset – Cash
|
|
$
|
1,803,856
|
|
$
|
—
|
|
Marketable securities held in Trust Account
|
|
$
|
254,841,541
|
|
$
|
—
|
|
Total assets
|
|
$
|
256,967,672
|
|
$
|
47,500
|
|
Promissory note – related party
|
|
$
|
—
|
|
$
|
22,500
|
|
Total liabilities
|
|
$
|
24,460,197
|
|
$
|
27,500
|
|
Class A ordinary shares subject to possible redemption
|
|
$
|
227,507,470
|
|
$
|
—
|
|
Total shareholders’ equity
|
|
$
|
5,000,005
|
|
$
|
20,000
|
Statement of Operations
|
|
|
Three Months Ended June 30, 2021
(Unaudited)
|
|
Six Months Ended
June 30,
2021
(Unaudited)
|
|
Total expenses
|
|
$
|
380,526
|
|
|
$
|
475,353
|
|
|
Warrant issuance costs
|
|
|
—
|
|
|
|
(638,847
|
)
|
|
Unrealized loss on change in fair value of FPA
|
|
|
(1,709,377
|
)
|
|
|
(1,458,454
|
)
|
|
Unrealized gain on change in fair value of warrants
|
|
|
4,889,502
|
|
|
|
4,455,365
|
|
|
Net income
|
|
$
|
2,803,140
|
|
|
$
|
1,886,25
|
|
|
Basic and diluted weighted average shares outstanding, ordinary share subject to redemption
|
|
|
22,470,433
|
|
|
|
14,141,69
|
|
|
Basic and diluted net income per share
|
|
$
|
—
|
|
|
$
|
—
|
|
|
Basic and diluted weighted average shares outstanding, ordinary share
|
|
|
9,384,192
|
|
|
|
8,619,700
|
|
|
Basic and diluted net income per share
|
|
$
|
0.30
|
|
|
$
|
0.22
|
|
|
|
|
For the
Period from
December 29,
2020
(inception)
Through
December 31, 2020
(Audited)
|
|
Total expenses
|
|
$
|
(5,000
|
)
|
|
Net loss
|
|
$
|
(5,000
|
)
|
|
Basic and diluted weighted average Class B ordinary shares outstanding
|
|
|
5,625,000
|
|
|
Basic and diluted net loss per share
|
|
$
|
(0.00
|
)
|
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Table of Contents
Statement of Cash Flows
|
|
|
For the
Six Months
Ended
June 30,
2021 (Unaudited)
|
|
For the
period from
December 29,
2020
(inception)
through
December 31,
2020
(Audited)
|
|
Cash Flow Data
|
|
|
|
|
|
|
|
|
Net cash used in operating activities
|
|
$
|
(590,197
|
)
|
|
$
|
—
|
|
Net cash used in investing activities
|
|
$
|
(254,838,000
|
)
|
|
$
|
—
|
|
Net cash provided by financing activities
|
|
$
|
257,232,053
|
|
|
$
|
—
|
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Table of Contents
SELECTED UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
The following unaudited pro forma condensed combined balance sheet as of June 30, 2021 combines the audited historical condensed consolidated balance sheet of Bowlero as of June 27, 2021 with the unaudited historical condensed balance sheet of Isos as of June 30, 2021, giving effect to the merger as if it had been consummated as of that date.
The following unaudited pro forma condensed combined income statement for the six months ended June 30, 2021 combines the unaudited historical condensed consolidated statement of operations for Bowlero for the six months ended June 27, 2021 with the unaudited condensed historical statement of operations of Isos for the six months ended June 30, 2021, giving effect to the merger as if it had occurred on January 1, 2021.
The unaudited pro forma condensed combined financial information has been prepared assuming two alternative levels of redemption into cash of Isos public shares:
Scenario 1 — Assuming no redemption: This presentation assumes that no Public Stockholders of Isos will exercise redemption rights with respect to their Public Shares for a pro rata share of the funds in the trust account; and
Scenario 2 — Assuming maximum redemption: This presentation assumes that stockholders holding 7,983,800 shares of Isos Class A ordinary shares will exercise their redemption rights for their pro rata share (approximately $10.00 per share) of the funds in the trust account. The Business Combination Agreement provides that consummating the Business Combination is conditioned on Isos having a minimum of $520,000 thousand of cash on hand (which is inclusive the proceeds from the PIPE Offerings and the Forward Purchase Contract) whether in or outside the trust account after giving effect to Isos share redemptions. As Isos has received commitments under the PIPE Offerings and the Forward Purchase Contract for an aggregate of $345,000 thousand and the trust account had balances of approximately $254,838 thousand, the maximum redemption scenario assumes all shares of Isos Class A ordinary shares held by the Public Stockholders, except those required to retain $520,000 thousand in the trust account. This scenario gives effect to Public Share redemptions of 7,983,800 Isos Class A ordinary shares for aggregate redemption payments of $79,838 thousand using a per share redemption price of $10.00 per share.
The historical financial information has been adjusted to give pro forma effect to events that are related or directly attributable to the merger, are factually supportable and are expected to have a continuing impact on the results of New Bowlero. The adjustments presented to the unaudited pro forma condensed combined financial statements have been identified and presented to provide relevant information necessary for an accurate understanding of New Bowlero upon consummation of the merger.
The historical financial statements of Isos and Bowlero have been prepared in accordance with accounting principles generally accepted in the United States of America, which is referred to herein as GAAP.
The historical financial information of Bowlero as of and for the six months ended June 27, 2021 was derived from the audited financial statements of Bowlero for the year ended June 27, 2021, which are included elsewhere in this proxy statement/prospectus. The historical financial information of Isos as of and for the six months ended June 30, 2021 was derived from the unaudited financial statements of Isos for the six months ended June 30, 2021, which are included elsewhere in this proxy statement/prospectus. This information should be read together with Bowlero’s audited financial statements and related notes, “Bowlero’ Management’s Discussion and Analysis of Financial Condition and Results of Operations”, and the other financial information included elsewhere in this proxy statement/prospectus.
The unaudited pro forma condensed combined financial information is for illustrative purposes only. The financial results may have been different had the companies actually been combined as of January 1, 2021. You should not rely on the unaudited pro forma condensed combined financial information as being indicative of the historical results that would have been achieved had the companies actually been combined as of January 1, 2021 or the future results that New Bowlero will experience. Bowlero and Isos have not had any historical relationship prior to the merger. Accordingly, no pro forma adjustments were required to eliminate activities between the companies.
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Table of Contents
Selected Unaudited Pro Forma Financial Information
|
(in thousands, except share and per share data)
|
|
Pro Forma
Combined
Assuming No
Redemption
into Cash
|
|
Pro Forma
Combined
Assuming
Maximum
Redemptions
into Cash
|
|
Statement of Operations Data – For the six Months Ended June 30, 2021
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
271,315
|
|
|
$
|
271,315
|
|
|
Cost of goods sold
|
|
|
214,714
|
|
|
|
214,714
|
|
|
Selling, general and administrative expenses
|
|
|
99,282
|
|
|
|
99,282
|
|
|
Income (loss) from operations
|
|
|
(42,681
|
)
|
|
|
(42,681
|
)
|
|
Net loss attributable to common stockholders
|
|
|
(86,512
|
)
|
|
|
(86,512
|
)
|
|
Net income (loss) per share – basic and diluted
|
|
$
|
(0.49
|
)
|
|
$
|
(0.49
|
)
|
|
Balance Sheet Data – As of June 30, 2021
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
$
|
230,164
|
|
|
$
|
230,164
|
|
|
Total assets
|
|
|
1,805,084
|
|
|
|
1,805,084
|
|
|
Total current liabilities
|
|
|
105,145
|
|
|
|
105,145
|
|
|
Total liabilities
|
|
|
1,595,297
|
|
|
|
1,595,297
|
|
|
Total stockholders’ equity
|
|
|
4,287
|
|
|
|
4,288
|
|
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Table of Contents
COMPARATIVE PER SHARE INFORMATION
The following table sets forth historical comparative share information for Bowlero and Isos on a stand-alone basis and unaudited pro forma combined share information for the six months ended June 30, 2021, after giving effect to the merger, (1) assuming no Isos stockholders exercise redemption rights with respect to their Isos common stock upon the consummation of the merger; and (2) assuming that Isos stockholders exercise their redemption rights with respect to a maximum of 7,983,800 shares of Isos Class A ordinary shares in connection with the proposed Business Combination.
You should read the information in the following table in conjunction with the selected historical financial information included elsewhere in this proxy statement/prospectus, and the historical financial statements of Bowlero and Isos and related notes that are included elsewhere in this proxy statement/prospectus. The unaudited pro forma combined share information is derived from, and should be read in conjunction with, the unaudited pro forma combined financial statements and related notes included elsewhere in this proxy statement/prospectus.
The unaudited pro forma combined share information below does not purport to represent what the actual results of operations or the earnings per share would have been had the companies been combined during the periods presented, nor to project New Bowlero’ results of operations or earnings per share for any future date or period. The unaudited pro forma combined stockholders’ equity per share information below does not purport to represent what the value of Bowlero and Isos would have been had the companies been combined during the periods presented.
|
(in thousands, except share and per share data)
|
|
Pro Forma
Combined
Assuming No
Redemption
into Cash
|
|
Pro Forma
Combined
Assuming
Maximum
Redemptions
into Cash
|
|
Six Months Ended June 30, 2021
|
|
|
|
|
|
|
|
|
|
Net loss attributable to common stockholders
|
|
$
|
(86,512
|
)
|
|
$
|
(86,512
|
)
|
|
Total stockholders’ equity
|
|
|
4,287
|
|
|
|
4,288
|
|
|
Weighted average shares outstanding – common stock
|
|
|
175,348,723
|
|
|
|
175,348,723
|
|
|
Basic and diluted net income (loss) per Class B share
|
|
$
|
(0.49
|
)
|
|
$
|
(0.49
|
)
|
|
Stockholders’ equity per share – basic and diluted
|
|
$
|
0.02
|
|
|
$
|
0.02
|
|
There would be no significant estimated potential impact of redemptions on the per share value of the shares owned by non-redeeming shareholders under a range of redemption scenarios, including with no redemptions, maximum and interim redemption levels, since there is no change to the $10.00 per share redemption price and the equity value per share on a basic and diluted basis share is approximately $0.52 per share.
37
Table of Contents
RISK FACTORS
Shareholders should carefully consider the following risk factors, together with all of the other information included in this proxy statement/prospectus, before they decide whether to vote or instruct their vote to be cast to approve the proposals described in this proxy statement/prospectus.
Unless otherwise indicated or the context otherwise requires, references to “New Bowlero” refer to Isos Acquisition Coporation after giving effect to the Domestication and the Business Combination. References in this section to “Isos” and the “Company” refer to Isos Acquisition Corporation and references in this section to “Bowlero” refer to Bowlero Corp. and its subsidiaries.
Risks Related to Bowlero’s Business and Industry
The COVID-19 pandemic has disrupted and is expected to continue to disrupt our business, which has had a material adverse impact on our business, results of operations and financial condition and could continue for an extended period of time. Future outbreaks of contagious diseases or other adverse public health developments in the United States or worldwide could have similar impacts on our business.
The outbreak of COVID-19 has had a material adverse effect on our business, results of operations, liquidity and financial condition and the same could continue for an extended period of time. Beginning in 2020, the COVID-19 pandemic significantly impacted the economy in general, as well as our business directly, and continues to negatively affect our business. These effects include, but are not limited to:
• the unprecedented impact on our business and operations;
• our ability to access funding sources in the future;
• the government-mandated and voluntary shutdowns, and operating restrictions on our business;
• the level of customer demand following re-opening;
• the ability to maintain a functioning workforce;
• the ability to maintain adequate supplies and resources;
• the economic impact of COVID-19 and related disruptions on the communities we serve; and
• management’s ability to estimate future performance of our business and impact on our business.
Prior to the closure of our centers due to COVID-19, the Company consistently grew revenues; however, the closure of our centers due to COVID-19 prohibited the Company from generating sales and cash flows. Consequently, the Company incurred significant losses and consumed cash, and in order to increase liquidity, the Company incurred additional debt. Net losses in fiscal years 2021 and 2020 were $126 million and $91 million, respectively, which were driven by the closure of our centers. Net proceeds from financing activities from long-term debt and revolver directly utilized to support our liquidity were $35 million and $137 million in 2021 and 2020, respectively.
The extent to which the current or future outbreaks of disease or similar public health threats materially and adversely impact our business, results of operations, liquidity and financial condition is highly uncertain and will depend on future developments. Such developments may include the geographic spread and duration of the virus, the severity of the disease and the mitigating and remedial actions that may be taken by various governmental authorities and other third parties in response to the outbreak. In addition, how quickly, and to what extent, normal economic and operating conditions can be maintained or resumed cannot be predicted, and the resumption of normal business operations may be delayed or constrained by lingering effects of any pandemic on us or our suppliers, third-party service providers, and/or guests.
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Table of Contents
If we are unable to successfully design and execute our business strategy plan, including growing comparable center sales, our revenues and profitability may be adversely affected.
Our ability to increase revenues and profitability is dependent on executing effective business strategies. If we are delayed or unsuccessful in executing our strategies or if our strategies do not yield desired results, our business, financial condition and results of operations may suffer. Our ability to meet our business strategy plan is dependent upon, among other things, our ability to:
• increase gross sales and operating profits at existing centers with bowling, food, beverage, game and entertainment options desired by our guests;
• evolve our marketing and branding strategies to continue to appeal to our guests;
• innovate and implement new initiatives to provide a unique guest experience;
• identify adequate sources of capital to fund and finance strategic initiatives;
• grow and expand operations;
• identify new opportunities to improve customer reach;
• maintain a talented workforce responsive to customer needs and operational demands; and
• identify, implement and maintain cost-reducing strategies to scale operations.
Changes in consumer preferences and buying patterns could negatively affect our results of operations.
Visiting our centers is a discretionary purchase for consumers; therefore, our business is susceptible to economic slowdowns and recessions. We are dependent in particular upon discretionary spending by consumers living in the communities in which our centers are located. A significant weakening in the local economies of these geographic areas, or any of the areas in which our centers are located, may cause consumers to curtail discretionary spending, which in turn could reduce our centers’ sales and have an adverse effect on our business and our results of operations. Our centers are sometimes located near high density retail areas such as regional malls, lifestyle centers, big box shopping centers and entertainment centers. We depend on a high volume of visitors at these locations to attract guests to our centers. As demographic and economic patterns change, current centers may or may not continue to be attractive or profitable.
E-commerce or online shopping continues to increase and negatively impact consumer traffic at traditional “brick and mortar” retail sites located in regional malls, lifestyle centers, big box shopping centers and entertainment centers. Vacancies have also increased due to the COVID-19 pandemic. A decline in development or closures of businesses in these settings or a decline in visitors to retail areas near our centers could negatively affect our sales.
Consumers continually change their dietary preferences. As a result, we are challenged to evolve our food and beverage menu offerings to appeal to these changing customer preferences, while maintaining our brand character and retaining popular menu items. New information or changes in dietary, nutritional, allergen or health guidelines or environmental or sustainability concerns, whether issued by governmental agencies, academic studies, advocacy organizations or similar groups, may cause some groups of consumers to select foods other than those that are offered by our centers. Additionally, it is unclear currently if the COVID-19 pandemic may have a lasting impact on consumer demand. If we fail to anticipate changing trends or other consumer preferences, our business, financial condition and results of operations would be adversely affected.
Advances in technologies or certain changes in consumer behavior driven by such technologies could have a negative effect on our business. Technology and consumer offerings continue to develop, and we expect new or enhanced technologies and consumer offerings will be available in the future. As part of our marketing efforts, we use a variety of digital platforms including search engines, mobile, online videos and social media platforms such as Facebook®, Twitter® and Instagram® to attract and retain guests. We also test new technology platforms to improve our level of digital engagement with our guests and employees to help strengthen our marketing and related consumer analytics capabilities. These initiatives may not prove to be successful and may result in expenses incurred without the benefit of higher revenues or increased engagement.
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We may not be able to compete favorably in the highly competitive out-of-home and home-based entertainment markets, which could have a material adverse effect on our business, results of operations or financial condition.
The out-of-home entertainment market is highly competitive. We compete for customers’ discretionary entertainment dollars with providers of out-of-home entertainment, including localized attraction facilities such as other bowling centers, movie theatres, sporting events, sports activity centers, arcades and entertainment centers, nightclubs, and restaurants as well as theme parks. Some of the entities operating these businesses are larger and have significantly greater financial resources, a greater number of locations, have been in business longer, have greater name recognition and are better established in the markets where our centers are located or are planned to be located. As a result, they may be able to invest greater resources than we can in attracting customers and succeed in attracting customers who would otherwise come to our centers. We also face competition from local, regional, and national establishments that offer similar entertainment experiences to ours that are highly competitive with respect to price, quality of service, location, ambience and type and quality of food. In addition, we also face competition from increasingly sophisticated home-based forms of entertainment, such as internet and video gaming and home movie streaming and delivery. Our failure to compete favorably in the competitive out-of-home and home-based entertainment markets could have a material adverse effect on our business, results of operations and financial condition.
Unfavorable publicity or a failure to respond effectively to adverse publicity, could harm our business.
Our brand and our reputation are among our most important assets. Our ability to attract and retain customers depends, in part, upon the external perception of Bowlero, the quality of our facilities and our integrity. Multi-location businesses, such as ours, can be adversely affected by unfavorable publicity resulting from food safety concerns, flu or other virus outbreaks and other public health concerns stemming from one or a limited number of our centers. Additionally, we rely on our network of suppliers to properly handle, store, and transport our ingredients for delivery to our centers. Failure by our suppliers, or their suppliers, could cause our ingredients to be contaminated, which could be difficult to detect and put the safety of our food in jeopardy.
Negative publicity may also result from crime incidents, data privacy breaches, scandals involving our employees or operational problems at our centers. Regardless of whether the allegations or complaints are valid, unfavorable publicity related to one or more of our centers could affect public perception of the entire brand. Even incidents at similar businesses could result in negative publicity that could indirectly harm our brand. If one or more of our centers were the subject of unfavorable publicity and we are unable to quickly and effectively respond to such reports, our overall brand could be adversely affected, which could have a material adverse effect on our business, results of operations and financial condition.
There has been a significant increase in the use of social media and similar platforms, including weblogs (blogs), social media websites and other forms of Internet-based communications that allow individuals access to a broad audience of consumers and other interested persons. Consumers value readily available information concerning goods and services that they have or plan to purchase and may act on such information without further investigation or authentication. Many social media platforms immediately publish the content their subscribers and participants post, often without filters or checks on accuracy of the content posted. The opportunity exists for dissemination of information, including inaccurate information, to spread quickly. Inaccurate or adverse information concerning Bowlero may be posted on such platforms at any time. The harm may be immediate without affording us an opportunity for redress or correction. Such platforms also may be used for dissemination of trade secret information, compromising valuable company assets. In summary, the dissemination of information via social media and similar platforms may harm our business, prospects, financial condition, and results of operations, regardless of the information’s accuracy. The inappropriate use of social media vehicles by our guests or employees could increase our costs, lead to litigation or result in negative publicity that could damage our reputation.
Further, if we are not effective in addressing social and environmental responsibility matters or achieving relevant sustainability goals, consumer trust in our brand may suffer. Consumer demand for our products and our brand value could diminish significantly if any such incidents or other matters erode consumer confidence in us or our products, which could likely result in lower revenues.
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We are subject to risks associated with leasing space subject to long-term, non-cancelable leases.
Payments under our non-cancelable, long-term operating leases account for a significant portion of our operating expenses and we expect many of the new centers we open in the future will also be leased. We often cannot cancel these leases without substantial economic penalty. If an existing or future center is not profitable, and we decide to close it, we may nonetheless be committed to perform our obligations under the applicable lease, including, among other things, paying the rent for the remainder of the lease term. We depend on cash flow from operations to pay our lease obligations. If our business does not generate adequate cash flow from operating activities and sufficient funds are not otherwise available to us from borrowings under our existing credit facility, we may not be able to service our operating lease obligations, grow our business, respond to competitive challenges or fund other liquidity and capital needs, all of which could have a material adverse effect on us.
In addition, as each of our leases expires, we may choose not to renew, or may not be able to renew, such existing leases if the renewal rent is too high and/or the capital investment required to maintain the centers at the leased locations is not justified by the return required on the investment. If we are not able to renew the leases at rents that allow such centers to remain profitable as their terms expire, the number of such centers may decrease, resulting in lower revenue from operations, or we may relocate a center, which could subject us to construction and other costs and risks, and in either case, could have a material adverse effect on our business, results of operations and financial condition.
Our financial performance and the ability to implement successfully our strategic direction could be adversely affected if we fail to retain, or effectively respond, to a loss of key management.
Our future success is substantially supported by the contributions and abilities of senior management, including key executives and other leadership personnel. Changes in senior management could expose us to significant changes in strategic direction and initiatives. A failure to maintain appropriate organizational capacity and capability to support leadership excellence or a loss of key skill sets could jeopardize our ability to meet our business performance expectations and growth targets. Although we have employment agreements with many members of senior management, we cannot prevent members of senior management from terminating their employment with us. Losing the services of members of senior management could materially harm our business until a suitable replacement is found, and such replacement may not have equal experience and capabilities.
We face risks related to our substantial indebtedness and limitations on future sources of liquidity.
Our substantial indebtedness of $885 million as of June 27, 2021 could have important consequences to us, and our forecasted current debt service of $58 million in minimum debt payments and estimated interest payments in fiscal year 2022, including:
• making it more difficult for us to satisfy our obligations with respect to our debt, and any failure to comply with the obligations under our debt instruments, including restrictive covenants, could result in an event of default under the agreements governing our indebtedness increasing our vulnerability to general economic and industry conditions, including as a result of disruption caused by the global COVID-19 pandemic;
• requiring a substantial portion of our cash flow from operations to be dedicated to the payment of obligations with respect to our debt, thereby reducing our ability to use our cash flow to fund our operations, lease payments, capital expenditures, selling and marketing efforts, product development, future business opportunities and other purposes;
• exposing us to the risk of increased interest rates as some of our borrowings are at variable rates;
• limiting our ability to obtain additional financing for working capital, capital expenditures, product development, debt service requirements, strategic acquisitions, and general corporate or other purposes; and
• limiting our ability to plan for, or adjust to, changing market conditions and placing us at a competitive disadvantage compared to our competitors who may be less highly leveraged.
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Covenants in our debt agreements restrict our business and could limit our ability to implement our business plan.
Our credit facility contains covenants that may restrict our ability to implement our business plan, finance future operations, respond to changing business and economic conditions, secure additional financing, and engage in opportunistic transactions, such as strategic acquisitions. In addition, if we fail to satisfy the covenants contained in the credit facility, our ability to borrow under the revolving credit loans portion of the credit facility may be restricted. The credit facility includes covenants restricting, among other things, our ability to do the following under certain circumstances:
• incur or guarantee additional indebtedness or issue certain disqualified or preferred stock;
• pay dividends or make other distributions on, or redeem or purchase any equity interests or make other restricted payments;
• make certain acquisitions or investments;
• create or incur liens;
• transfer or sell assets;
• incur restrictions on the payment of dividends or other distributions from our restricted subsidiaries;
• alter the business that we conduct;
• enter into transactions with affiliates; and
• consummate a merger or consolidation or sell, assign, transfer, lease or otherwise dispose of all or substantially all our assets (other than the Business Combination).
Events beyond our control, including the impact of COVID-19, may affect our ability to comply with our covenants, even after the cessation of the second amendment suspension period. If we default under the credit facility because of a covenant breach or otherwise, all outstanding amounts thereunder could become immediately due and payable. We cannot assure you that we will be able to comply with our covenants under the credit facility or that any covenant violations will be waived in the future. Any violation that is not waived could result in an event of default, permitting our lenders to declare outstanding indebtedness and interest thereon due and payable, and permitting the lenders under the revolving credit loans provided under the credit facility to suspend commitments to make any advance, or require any outstanding letters of credit to be collateralized by an interest bearing cash account, any or all of which could have a material adverse effect on our business, financial condition and results of operations. In addition, if we fail to comply with our financial or other covenants under the credit facility, we may need additional financing to service or extinguish our indebtedness. We may not be able to obtain financing or refinancing on commercially reasonable terms, or at all. We cannot assure you that we would have sufficient funds to repay outstanding amounts under the credit facility and any acceleration of amounts due would have a material adverse effect on our liquidity and financial condition.
The success of our longer-term growth strategy depends in part on our ability to open and operate new centers profitably.
Our ability to timely and efficiently open new centers on a new-construction or acquisition basis and to operate these centers profitably is dependent on numerous factors including quality locations, acceptable lease or purchase agreements, zoning, use and other regulations, our liquidity, staffing needs and training, permitting, customer acceptance, impact on existing centers and financial performance targets. The timing of new location openings may result in significant fluctuations in our quarterly performance. We typically incur significant costs prior to opening for pre-opening and construction and increased labor and operating costs for a newly opened center.
Our failure to maintain or renew key agreements could adversely affect our ability to distribute our media content and/or other of our goods and services, which could adversely affect our operating results.
A portion of our profits is derived from our media content, which is distributed by cable, satellite and broadcast television networks and digital platforms around the globe. As detailed below, we have depended on and will continue to depend on, third parties for many aspects of the operation and distribution of PBA events. Any failure to maintain (such as due to a breach or alleged breach by either party) or renew arrangements with
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distributors and platforms, the failure of distributors or platforms to continue to provide services to us or the failure to enter into new distribution opportunities on terms favorable to us could adversely affect our financial outlook, liquidity, business and operating results. We have relationships with Fox Sports, CBS Sports and Flo Bowling, which carry PBA events through their cable networks and streaming channels.
Many of our other goods and services, such as our merchandise and arcade games are manufactured and sold by other parties under licenses of our intellectual property or distribution agreements. Our inability for any reason to enter into, maintain and/or renew or replace, as the case may be, these agreements on terms favorable to us could adversely affect our financial outlook, liquidity, business and/or operating results.
Bowlero produces content, builds infrastructure and markets PBA events. If, for any number of reasons, we are unable to continue to develop and monetize this content successfully, it could have a material adverse effect on our operating results.
Need to Attract, Retain and Replace Fans. We believe that the PBA has a passionate fan base. However, the markets for entertainment video are intensely competitive and include many subscription, transactional and ad-supported models and vast amounts of pirated materials, all of which capture segments of the entertainment video market. These markets have and are expected to continue to be subject to rapid changes, and new technologies and evolving business models are developing at a fast pace. We expect this competition to continue to grow and the markets to continue to transform. Many players that have entered this space have vastly greater financial and marketing resources than Bowlero as well as longer operating histories, large customer bases and strong brand recognition. These competitors may aggressively price their offerings and devote more technology and marketing resources. Certain of these competitors have begun to bundle digital networks. Other competitors for viewers of media content include broadcast, cable and satellite television, many of which have so-called “TV everywhere,” stand-alone streaming and/or “on demand” content, online movie and television content providers (both legal and illegal (pirated)), and ad-supported services such as YouTube. In non-pandemic times, viewers also commit viewing dollars to theatrical films, live events or other leisure activities. Our ability to attract and retain fans for PBA will depend in part on our ability to provide consistent high-quality content and a high level of service that is perceived as a good value for the consumer’s entertainment dollars in the face of this intense competition. Our failure to do so could adversely affect our business and operating results.
Impact of Government Regulations. The adoption or modification of laws and regulations relating to our business could limit or otherwise adversely affect the manner in which we conduct our business. The growth and development of the market for online commerce has led to more stringent consumer protection laws, including privacy laws such as the European Union General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”), imposing additional burdens on us. We may be required to comply with new regulations or legislation or new interpretations of existing regulations or legislation. This compliance could cause us to incur significant additional expense or alter our business model or could result in substantial fines, civil liability and/or harm to reputation for noncompliance. In addition, the delivery of PBA content in international markets exposes us to multiple regulatory frameworks and societal norms, the complexity of which may result in unintentional noncompliance which could adversely affect our business and operating results.
Our failure to continue to build and maintain our brand of entertainment could adversely affect our operating results.
We must continue to build and maintain our strong brand identity to attract and retain fans who have a number of entertainment choices. The creation, marketing and distribution of live events, programming and films that our fans value and enjoy are at the core of our business. The production of compelling live, televised, streamed and film content is critical to our ability to generate revenues across our media platforms and product outlets. Our ability to produce compelling content depends on our ability to attract professional bowlers to our tournaments. Professional bowlers are independent agents and make their own decisions on whether or not to participate in a tournament. In addition, we are dependent on advertising, sponsorship and marketing revenue from third parties in order to be able to host tournaments. If such third parties decide to sponsor or advertise at other types of sporting events, our costs for hosting tournaments will increase, and we may host fewer tournaments, resulting in a decrease in the amount of content that we can produce. We are also dependent on the U.S. Bowling Congress who own rights to certain tournaments, such as the US Open and the USBC Masters. PBA partners with the U.S. Bowling Congress
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to deliver televised events for tournaments owned by the U.S. Bowling Congress. Our current agreements with the U.S. Bowling Congress provide for the delivery of televised content for such tournaments until 2022, and we may be unable to secure such rights after 2022 at attractive terms or at all. Also important are effective consumer communications, such as marketing, customer service and public relations. The role of social media by fans and by us is an important factor in our brand perception. If our efforts to create compelling services and goods and/or otherwise promote and maintain our brand, services and merchandise are not successful, our ability to attract and retain fans may be adversely affected. Such a result would likely lead to a decline in our television ratings, attendance at our live events post-pandemic, and/or otherwise impact our sales of goods and services, which would adversely affect our operating results.
Our failure to compete effectively in a rapidly evolving media landscape could adversely affect our operating results.
The manner in which audio/media content is distributed and viewed is constantly changing, and consumers have increasing options to access entertainment video. Changes in technology require our resources including personnel, capital and operating expenses. Conversely, technology changes have also decreased the cost of video production and distribution for certain programmers (such as through social media), which lowers the barriers to entry and increases the competition for viewership and revenues. While we attempt to distribute our programming across all platforms, our failure to continue to do so effectively (including, for example, our emphasizing a distribution platform that may in time lessen in importance or become obsolete or our loss of, or other inability to procure, carriage on an important platform) could adversely affect our operating results. If other providers of video programming address the changes in consumer viewing habits in a manner that is better able to meet content distributor and consumer needs and expectations, our business could be adversely affected. The number of subscribers and ratings of television networks and advertising revenues in general have been reported as being impacted by viewers moving to alternative media content providers, a process known as “cord cutting” and “cord shaving.” Many well-funded digital companies have been competing with the traditional television business model and, while it has been widely reported that they are paying significant amounts for media content, it is not clear that these digital distributors will replace the importance (in terms of money paid for content, viewer penetration and other factors) of television distribution to media content owners. Our media partners’ businesses are affected by their sale of advertising and subscriptions for their services. If they are unable to sell advertising and/or subscriptions either with regard to PBA programming specifically (such as, by way of example and without limitation, due to a decline in the popularity of our programming and/or brand) or all of their programing generally, it could adversely affect our operating results.
Changes in the regulatory atmosphere and related private sector initiatives could adversely affect our businesses.
Production of video programming by independent producers is generally not directly regulated by the federal or state governments in the United States. PBA events are on broadcast television on the Fox and CBS Networks, and we are responsible, directly or indirectly, for compliance with certain additional FCC regulations and statutory requirements applicable to programming distributed over television broadcast stations. Any failure to remain in compliance with these requirements could expose us to substantial costs and adverse publicity which could impact our operating results. Changes in FCC regulations, and the ongoing reallocation of satellite spectrum for “5G” next generation wireless broadband use, could impact the availability of satellite transmission spectrum for video programming distribution, which could increase the transmission costs of certain of our programming and/or affect transmission quality and reliability. The markets for programming in the United States and internationally may be substantially affected by government regulations applicable to, as well as social and political influences on, television stations and networks. We voluntarily designate the suitability of each of our television and PBA programs using standard industry ratings. Domestic and foreign governmental and private-sector initiatives relating to the production and distribution of video programming are announced from time to time. Compliance by our licensees of these initiatives and/or their noncompliance of governmental policies could restrict our program distribution and adversely affect our levels of viewership, result in adverse publicity and/or otherwise impact our operating results.
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Risks Related to Information Technology and Cyber Security
Information technology system failures or interruptions may impact our ability to effectively operate our business.
We rely heavily on various information technology systems, including point-of-sale, kiosk and amusement operations systems in our centers, data centers that process transactions, communication systems and various other software applications used throughout our operations. Some of these systems have been internally developed or we rely on third-party providers and platforms for some of these information technology systems and support. Although we have operational safeguards in place, those technology systems and solutions could become vulnerable to damage, disability, or failures due to theft, fire, power outages, telecommunications failure or other catastrophic events. Any failure of these systems could significantly impact our operations and could make our content unavailable or degraded. These service disruptions could be prolonged. We rely on third-party service providers for certain key elements of our operations including credit card processing, telecommunications, utilities and delivery of video programming. Our reliance on systems operated by third parties also present the risk faced by the third party’s business, including the operational, cyber security, and credit risks of those parties. If those systems were to fail or otherwise be unavailable, and we were unable to timely recover, we could experience an interruption in our operations. Our business interruption insurance may not cover us in the event these types of business interruptions occur.
Cyber security breaches or other privacy or data security incidents that expose confidential customer, personal employee or other material, confidential information that is stored in our information systems or by third parties on our behalf may impact our business.
Many of our information technology systems (and those of our third-party business partners, whether cloud-based or hosted in proprietary servers), including those used for point-of-sale, web and mobile platforms, mobile payment systems and administrative functions, contain personal, financial or other information that is entrusted to us by our guests and associates. Many of our information technology systems also contain proprietary and other confidential information related to our business, such as business plans and initiatives. A cyber incident (generally any intentional or unintentional attack that results in unauthorized access resulting in disruption of systems, corruption of data, theft or exposure of confidential information or intellectual property) that compromises the information of our customers or employees could result in widespread negative publicity, damage to our reputation, a loss of customers, and disruption of our business.
The regulatory environment surrounding information security and privacy is increasingly demanding, with the frequent imposition of new and constantly changing requirements. Compliance with these requirements can be costly and time-consuming and the costs could adversely impact our results of operations due to necessary system changes and the development of new administrative processes. The California Consumer Privacy Act of 2018, provides a private right of action for data breaches and requires companies that process information about California residents to make new disclosures to consumers about their data collection, use and sharing practices and allow consumers to opt out of certain data sharing with third parties. Security breaches could also result in a violation of applicable privacy and other laws, and subject us to private consumer, business partner or securities litigation and governmental investigations and proceedings, any of which could result in our exposure to material civil or criminal liability. We are required to maintain the highest level of Payment Card Industry (“PCI”) Data Security Standard compliance at our corporate office and centers. If we do not maintain the required level of PCI compliance, we could be subject to costly fines or additional fees from the card brands that we accept or lose our ability to accept those payment cards. Additionally, an increasing number of government and industry groups have established laws and standards for the protection of personal and health information.
Our existing cyber security policy includes cyber security techniques, tactics, and procedures, including continuous monitoring and detection programs, network protections, annual employee training and awareness and incident response preparedness. In addition, we periodically scan our environment for any vulnerabilities, perform penetration testing and engage third parties to assess effectiveness of our security measures. We utilize a voluntary tool to help manage privacy risk by independently benchmarking our cyber security program to the NIST Cybersecurity Framework, using an independent third party, and we share the results of our annual audit with our audit committee. Although we employ security technologies and practices and have taken other steps to try to prevent a breach, there are no assurances that such measures will prevent or detect cyber security breaches, and we may nevertheless not have the resources or technical sophistication to prevent rapidly evolving types of cyberattacks. We maintain a separate insurance policy covering cybersecurity risks and such insurance coverage may, subject to
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policy terms and conditions, cover certain aspects of cyber risks, but this policy is subject to a retention amount and may not be applicable to a particular incident or otherwise may be insufficient to cover all our losses beyond any retention. Based on recent court rulings, there is uncertainty as to whether traditional commercial general liability policies will be construed to cover the expenses related to cyberattacks and breaches if credit and debit card information is stolen.
We have been and likely will continue to be, the target of cyber and other security threats. If in the future, we experience a security breach, we could become subject to claims, lawsuits or other proceedings for purportedly fraudulent transactions arising out of the theft of credit or debit card information, compromised security and information systems, failure of our employees to comply with applicable laws, the unauthorized acquisition or use of such information by third parties, or other similar claims.
Our reliance on computer systems and software could expose us to material financial and reputational harm if any of those computer systems or software were subject to any material disruption or corruption.
Our servers and those of third parties used in our business may be vulnerable to cybersecurity attacks, computer viruses (including worms, malware, ransomware and other destructive or disruptive software or denial of service attacks), physical or electronic break-ins and similar disruptions and could experience directed attacks intended to lead to interruptions and delays in our service and operations as well as loss, misuse, theft or release of proprietary, confidential, sensitive or otherwise valuable company or subscriber data or information. Such a cybersecurity attack, virus, break-in, disruption or attack could remain undetected for an extended period, could harm our business, financial condition or results of operations, be expensive to remedy, expose us to litigation and/or damage our reputation. Our insurance may not cover expenses related to such disruptions or unauthorized access fully or at all.
Because the techniques used to obtain unauthorized access to, or disable, degrade or sabotage, these systems and servers change frequently and often are not recognized until launched against a target, we and the third parties used in distribution of our content may be unable to anticipate these techniques, implement adequate preventative measures or remediate any intrusion on a timely or effective basis. Moreover, the development and maintenance of these preventative and detective measures is costly and requires ongoing monitoring and updating as technologies change and efforts to overcome security measures become more sophisticated. Despite the efforts of us and/or third parties, the possibility of these events occurring cannot be eliminated.
Risks Related to the Location-Based Entertainment Industry
Our success depends upon our ability to recruit and retain qualified center management and operating personnel while also controlling our labor costs.
We must continue to attract, retain, and motivate qualified management and operating personnel to maintain consistency in our service, hospitality, quality, and atmosphere of our centers, and to also support future growth. Adequate staffing of qualified personnel is a critical factor impacting our guests’ experience in our centers. Qualified management and operating personnel are typically in high demand. Current unemployment subsidies and difficult pandemic-related operating demands are resulting in aggressive competition for talent, wage inflation and pressure to improve benefits and workplace conditions to remain competitive. If we are unable to attract and retain a satisfactory number of qualified management and operating personnel, labor shortages could delay the planned openings of new centers or adversely impact our existing centers. Any such delays, material increases in employee turnover rates in existing centers or widespread employee dissatisfaction could have a material adverse effect on our business and results of operations. Competition for qualified employees could require us to pay higher wages, which could result in higher labor costs and could have a material adverse effect on our results of operations.
Our revenues and operating results may fluctuate significantly due to various risks and unforeseen circumstances, including increases in costs, seasonality, weather, acts of violence or terrorism and other factors outside our control.
Certain regions in which our centers are located have been, and may in the future be, subject to natural disasters, such as earthquakes, floods, and hurricanes. Depending upon its magnitude, a natural disaster could severely damage a cohort of our centers, which could adversely affect our business, results of operations or financial condition. Our corporate headquarters and our data center are located in Richmond, Virginia and our backup data
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facility is located in Dallas, Texas. A natural or man-made disaster could significantly impact our ability to provide services and systems to our centers and negatively impact our operations. We currently maintain property and business interruption insurance.
Any act of violence at or threatened against our centers or the retail complexes in which they are located, including active shooter situations and terrorist activities, may result in restricted access to our centers and/or closures in the short-term and, in the long term, may cause our guests and associates to avoid visiting our centers. Any such situation could adversely impact cash flows and make it more difficult to fully staff our centers, which could materially adversely affect our business.
Our operating results fluctuate significantly due to seasonal factors. We typically generate our highest sales volumes during the third quarter of each fiscal year due to the timing of leagues, holidays and changing weather conditions. School operating schedules, holidays and weather conditions may also affect our sales volumes in some operating regions differently than others. In addition, unfavorable weather conditions during the winter and spring seasons could have a significant impact on our results. During 2020, results also fluctuated due to the timing and frequency of temporary closures and operating restrictions due to state and local guidelines imposed due to the COVID-19 pandemic.
Our operations are susceptible to the changes in cost and availability of commodities and other products, which could negatively affect our operating results.
Our profitability depends in part on our ability to anticipate and react to changes in commodity and other product costs. Various factors beyond our control, including adverse weather conditions, governmental regulation and monetary policy, product availability, recalls of food products, disruption of our supplier manufacturing and distribution processes due to public health crises or pandemics, and seasonality, may affect our commodity costs or cause a disruption in our supply chain. In an effort to mitigate some of this risk, we have multiple short-term supply contracts with a limited number of suppliers. If any of these suppliers do not perform adequately or otherwise fail to distribute products or supplies to our centers, we may be unable to replace the suppliers in a short period of time on acceptable terms, which could increase our costs, cause shortages of food and other items at our centers and cause us to remove certain items from our menu. Changes in the price or availability of commodities for which we do not have short-term supply contracts could have a material adverse effect on our profitability. Expiring contracts with our food suppliers could also result in unfavorable renewal terms and therefore increase costs associated with these suppliers or may necessitate negotiations with other suppliers. Other than short-term supply contracts for certain food items and certain utilities contracts, we currently do not engage in futures contracts or other financial risk management strategies with respect to potential price fluctuations in the cost of food and other supplies. Also, the unplanned loss of a major distributor could adversely affect our business by disrupting our operations as we seek out and negotiate a new distribution contract. If we have to pay higher prices for food or other product costs, our operating costs may increase, and, if we are unable to adjust our purchasing practices or pass any cost increases on to our guests, our operating results could be adversely affected.
Our procurement of new games and amusement and entertainment offerings is contingent upon availability, and in some instances, our ability to obtain licensing rights.
Our ability to continue to procure new games, amusement and entertainment offerings, and other entertainment-related equipment is important to our business strategy. The number of suppliers from which we can purchase games, amusement offerings and other entertainment-related equipment is limited. To the extent the number of suppliers declines, we could be subject to the risk of distribution delays, pricing pressure, lack of innovation and other associated risks. We may not be able to anticipate and react to changing amusement offerings cost by adjusting purchasing practices or game prices, and a failure to do so could have a material adverse effect on our operating results. In addition, any decrease in availability of new amusement offerings that appeal to guests could lead to decreases in revenues as guests negatively react to lack of new game options.
Our ability to develop future offerings is dependent on, among other things, obtaining rights to compelling game content and developing new amusement offerings that are accepted by our guests. There is no guarantee that additional licensing rights will be obtained by us or that our guests will accept the future offerings that we develop. The result could be increased expenses without increased revenues putting downward pressure on our results of operations and financial performance.
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We may not be able to operate our centers or obtain/maintain licenses and permits necessary for such operation, in compliance with laws, regulations and other requirements, which could adversely affect our business, results of operations or financial condition.
We are subject to licensing and regulation by state and local authorities relating to the sale of alcoholic beverages, health, sanitation, safety, building and fire codes. Each center is required to obtain a license to sell alcoholic beverages on the premises from a state authority and, in certain locations, county and municipal authorities. Typically, licenses must be renewed annually and may be revoked or suspended for cause at any time. In some states, the loss of a license for cause with respect to one center may lead to the loss of licenses at all centers in that state and could make it more difficult to obtain additional licenses in that state. Alcoholic beverage control regulations relate to numerous aspects of the daily operations of each center, including minimum age of patrons and employees, hours of operation, advertising, wholesale purchasing, inventory control and handling and storage and dispensing of alcoholic beverages. We generally have not encountered any material difficulties or failures in obtaining and maintaining the required licenses, permits and approvals that could impact the continuing operations of an existing center, or delay or prevent the opening of a new center. Although we do not anticipate any material difficulties occurring in the future, the failure to receive or retain a liquor license, or any other required permit or license, in a particular location, or to continue to qualify for, or renew licenses, could have a material adverse effect on operations and our ability to obtain such a license or permit in other locations.
We are subject to extensive laws and regulations and failure to comply with existing or new laws and regulations could adversely affect our operational efficiencies, cost structure and talent availability.
Restrictions put in place by federal, state and local governments in response to the COVID-19 pandemic have caused operations and business at our centers to be impaired. While many states have rescinded such restrictions, it is not certain when all restrictions will be lifted in the remaining states where such restrictions are still in place.
We are also subject to various federal, state, and local laws and regulations that govern numerous aspects of our business, including the following:
• the Fair Labor Standards Act and other federal, state and local laws and regulations that govern employment practices and working conditions, including minimum wage rates, wage and hour practices, gratuities, overtime, labor practices, various family leave mandates, discrimination and harassment, immigration, workplace safety and other areas;
• the Americans with Disabilities Act and similar state laws that give civil rights protections to individuals with disabilities in the context of employment, public accommodations and other areas;
• the Patient Protection and Affordable Care Act as amended by the Health Care and Education Affordability Reconciliation Act of 2010 (“PPACA”) and uncertainties surrounding future changes to or replacement of our health insurance system;
• preparation, sale and labeling of food, including the federal regulations of the Food and Drug Administration, which oversees the safety of the entire food system, including inspection and mandatory food recalls, menu labeling and nutritional content, and additional requirements in certain states and local jurisdictions;
• environmental laws and regulations governing, among other things, discharges of pollutants into the air and water as well as the presence, handling, release and disposal of and exposure to hazardous substances;
• liquor laws and regulations governing the service and sale of alcohol; and
• other environmental matters, such as climate change, the reduction of greenhouse gases, water consumption and animal health and welfare.
Compliance with these laws and regulations and future new laws or changes in laws or regulations that impose additional requirements can be costly. Any failure or perceived failure to comply with these laws or regulations could result in, among other things, revocation of required license, administrative enforcement actions, fines, civil and criminal liability, and/or closure of centers. We could also be strictly liable, without regard to fault, for certain
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environmental conditions at properties we formerly owned or operated as well as at our current properties. Further, more stringent and varied requirements of local and state governmental bodies with respect to zoning, land use and environmental factors could delay or prevent development of new centers in certain locations.
We believe it is becoming increasingly likely that the United States federal government will significantly increase the federal minimum wage and tip credit wage (or eliminate the tip credit wage) and require significantly more mandated benefits than what is currently required under federal law. Should this happen, other jurisdictions that have historically mandated higher wages and greater benefits than what is required under federal law may seek to further increase wages and mandated benefits. In addition to increasing the overall wages paid to our minimum wage and tip credit wage earners, these increases create pressure to increase wages and other benefits paid to other associates who, in recognition of their tenure, performance, job responsibilities and other similar considerations, historically received a rate of pay exceeding the applicable minimum wage or minimum tip credit wage. Because we employ a large workforce, any wage increase and/or expansion of benefits mandates could have a particularly significant impact on our labor costs. Our vendors, contractors and business partners are similarly impacted by wage and benefit cost inflation, and many have or will increase their price for goods, construction, and services in order to offset their increasing labor costs. We may not be able to partially or fully offset cost increases resulting from changes in minimum wage rates by increasing bowling, menu or game prices, improving productivity, or through other adjustments, and our business, results of operations and financial condition could be adversely affected. Moreover, although only a few of our employees have been or are now represented by any unions, labor organizations may seek to represent an increasing number of our employees in the future, and if they are successful, our payroll expenses and other labor costs may be increased in the course of collective bargaining, and/or there may be strikes or other work disruptions that may adversely affect our business.
We face potential liability with our gift cards under the property laws of some states.
Our gift cards, which may be used to purchase bowling, food, beverages, merchandise and game play credits in our centers, may be considered stored value cards. Certain states include gift cards under their abandoned and unclaimed property laws and require companies to remit to the state cash in an amount equal to all or a designated portion of the unredeemed balance on the gift cards based on certain card attributes and the length of time that the cards are inactive. To date we have not remitted any amounts relating to unredeemed gift cards to states based upon our assessment of applicable laws.
The analysis of the potential application of the abandoned and unclaimed property laws to our gift cards is complex, involving an analysis of constitutional, statutory provisions and factual issues. In the event that one or more states change their existing abandoned and unclaimed property laws or successfully challenge our position on the application of its abandoned and unclaimed property laws to our gift cards, our liabilities with respect to unredeemed gift cards may be materially higher than the amounts shown in our financial statements. If we are required to materially increase the estimated liability recorded in our financial statements with respect to unredeemed gift cards, our net income could be materially and adversely affected.
Litigation, including allegations of illegal, unfair or inconsistent employment practices, may adversely affect our business, results of operations or financial condition.
Our business may be adversely affected by the risk of legal proceedings brought by or on behalf of our customers, employees, suppliers, shareholders, government agencies or others through private actions, class actions, administrative proceedings, regulatory actions or other litigation. In recent years, a number of companies have been subject to lawsuits, including class action lawsuits, alleging violations of federal and state law regarding workplace and employment matters, discrimination and similar matters, and a number of these lawsuits have resulted in the payment of substantial damages by the defendants. We have had from time to time and now have such lawsuits pending against us. In addition, from time to time, customers file complaints or lawsuits against us alleging that we are responsible for some illness or injury they suffered at or after a visit to a center. We are also subject to a variety of other claims in the ordinary course of business, including personal injury, lease, and contract claims.
We are also subject to “dram shop” statutes in certain states in which our centers are located. These statutes generally provide a person injured by an intoxicated person the right to recover damages from an establishment that wrongfully served alcoholic beverages to the intoxicated individual. Recent litigation against restaurant chains has resulted in significant judgments and settlements under dram shop statutes. Because these cases often seek punitive
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damages, which may not be covered by insurance, such litigation could have an adverse impact on our business, results of operations or financial condition. Regardless of whether any claims against us are valid or whether we are liable, claims may be expensive to defend and may divert time and money away from operations and hurt our financial performance. A judgment significantly in excess of our insurance coverage or not covered by insurance could have a material adverse effect on our business, results of operations or financial condition. Also, adverse publicity resulting from these allegations may materially affect our centers and us.
Failure to adequately protect our intellectual property could harm our business.
We regard our intellectual property as having significant value and being important to our marketing efforts. We use a combination of intellectual property rights, such as trademarks and trade secrets, to protect our brand and certain other proprietary processes and information material to our business. The success of our business strategy depends, in part, on our continued ability to use our intellectual property rights to increase brand awareness and further develop our branded products in both existing and new markets. If we fail to protect our intellectual property rights adequately, we may lose an important advantage in the markets in which we compete. If third parties misappropriate or infringe our intellectual property, the value of our image, brand and the goodwill associated therewith may be diminished, our brand may fail to achieve and maintain market recognition, and our competitive position may be harmed, any of which could have a material adverse effect on our business, including our revenues. Policing unauthorized use of our intellectual property is difficult, and we cannot be certain that the steps we have taken will prevent the violation or misappropriation of such intellectual property rights by others. To protect our intellectual property, we may become involved in litigation, which could result in substantial expenses, divert the attention of management and adversely affect our revenue, financial condition and results of operations.
We cannot be certain that our products and services do not and will not infringe on the intellectual property rights of others. Any such claims, regardless of merit, could be time-consuming and expensive to litigate or settle, divert the attention of management, cause significant delays, materially disrupt the conduct of our business and have a material adverse effect on our financial condition and results of operations. As a consequence of such claims, we could be required to pay a substantial damage award, take a royalty-bearing license, discontinue the use of third-party products used within our operations and/or rebrand our products and services.
We conduct business internationally, which exposes us to additional risks.
Our ability to successfully conduct operations in international markets is affected by many of the same risks we face in our U.S. operations, as well as unique costs and difficulties of managing international operations. Our international operations, which accounted for $7.1 million in revenues for the fiscal years 2020, expose us to certain additional risks, including:
• difficulty in staffing international operations;
• different political, economic and regulatory conditions;
• local laws and customs;
• violations of anti-bribery and anti-corruption laws, such as the United States Foreign Corrupt Practices Act;
• violations of economic sanctions laws, such as the regulations enforced by the U.S. Department of The Treasury’s Office of Foreign Assets Control;
• currency fluctuations;
• limitations on our ability to enforce legal rights and remedies with third parties or partners outside the United States;
• adverse tax consequences; and
• dependence on other economies.
Fluctuations in other factors relating to international operations, such as tariffs, transportation costs and inflation are additional risks for our international operations.
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General Risk Factors
Changes in tax laws and resulting regulations could result in changes to our tax provisions and subject us to additional tax liabilities that could materially adversely affect our financial performance.
We are subject to income, sales, use and other taxes in the United States and certain foreign jurisdictions including Mexico and Canada. Changes in applicable U.S. or foreign tax laws and regulations, including the Tax Cuts and Jobs Act (“Tax Act”) and the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), or their interpretation and application, including the possibility of retroactive effect and changes to state tax laws that may occur in response to the Tax Act or the CARES Act, could affect our effective income tax rate. In addition, the final determination of any tax audits or related litigation could be materially different from our historical tax provisions and accruals. Changes in our tax expense or an increase in our tax liabilities, whether due to changes in applicable laws and regulation, the interpretation or application thereof, or a final determination of tax audits or litigation, could materially adversely affect our financial performance.
Our ability to use net operating loss carryforwards and other tax attributes may be limited in connection with the business combination or other ownership changes.
Bowlero has incurred losses during its history. To the extent that it continues to generate taxable losses, unused losses will carry forward to offset future taxable income, if any, until such unused losses expire, if at all. As of June 28, 2020, Bowlero had U.S. federal net operating loss carryforwards of approximately $530,943,000. Under the Tax Act, as modified by the CARES Act, U.S. federal net operating loss carryforwards generated in taxable periods beginning after December 31, 2017, may be carried forward indefinitely, but the deductibility of such net operating loss carryforwards in taxable years beginning after December 31, 2020, is limited to 80% of taxable income. It is uncertain if and to what extent various states will conform to the Tax Act or the CARES Act.
In addition, Bowlero’s net operating loss carryforwards are subject to review and possible adjustment by the Internal Revenue Serivce (“IRS”), and state tax authorities. Under Sections 382 and 383 of the Code, Bowlero’s federal net operating loss carryforwards and other tax attributes may become subject to an annual limitation in the event of certain cumulative changes in the ownership of Bowlero’s stock. An “ownership change” pursuant to Section 382 of the Code generally occurs if one or more stockholders or groups of stockholders who own at least 5% of a company’s stock increase their ownership by more than 50 percentage points over their lowest ownership percentage within a rolling three-year period. Bowlero’s ability to utilize our net operating loss carryforwards and other tax attributes to offset future taxable income or tax liabilities may be limited as a result of ownership changes, including potential changes in connection with the business combination or other transactions. Similar rules may apply under state tax laws. We have not yet determined the amount of the cumulative change in Bowlero’s ownership resulting from the Business Combination or other transactions, or any resulting limitations on Bowlero’s ability to utilize its net operating loss carryforwards and other tax attributes. If Bowlero earns taxable income, such limitations could result in increased future income tax liability to it and Bowlero’s future cash flows could be adversely affected. We have recorded a valuation allowance related to Bowlero’s net operating loss carryforwards and other deferred tax assets due to the uncertainty of the ultimate realization of the future benefits of those assets.
Failure of our internal control over financial reporting could harm our business and financial results.
Our management is responsible for establishing and maintaining effective internal control over financial reporting. Internal control over financial reporting is a process to provide reasonable assurance regarding the reliability of financial reporting for external purposes in accordance with generally accepted accounting principles in the United States. Because of its inherent limitations, internal control over financial reporting is not intended to provide absolute assurance that we would prevent or detect a misstatement of our financial statements or fraud. Any failure to maintain an effective system of internal control over financial reporting, including such a failure or inability to provide timely reporting about the effectiveness of their controls of our third-party service providers on whose controls we rely, could limit our ability to report our financial results accurately and timely or to detect and prevent fraud. Historically, Bowlero has had several material weaknesses and significant accounting deficiencies, which may occur again. A significant financial reporting failure or material weakness in internal control over financial reporting could result in substantial cost to remediate and could cause a loss of investor confidence and
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decline in the market price of our stock. See “— The obligations associated with being a public company will involve significant expenses and will require significant resources and management attention, which may divert from New Bowlero’s business operations.”
We identified material weaknesses in our internal control over financial reporting. If we fail to remediate these material weaknesses, identify additional material weaknesses, or if we otherwise fail to establish and maintain effective internal control over financial reporting, our ability to accurately and timely report our financial results could be adversely affected.
We identified control deficiencies in the design and implementation of our internal control over financial reporting as of June 27, 2021 that constituted material weaknesses. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual or interim consolidated financial statements will not be prevented or detected on a timely basis.
We did not design and maintain effective controls over certain technical or complex areas, including pushdown accounting, lease accounting, income taxes and stock based compensation. This led to the misstatements in goodwill and additional paid-in capital, capital lease obligation and capital lease assets, deferred tax liability and stock based compensation, described in detail in footnote 3-A of the consolidated financial statements.
We have begun implementing a plan to remediate the material weaknesses described above, including hiring staff with more technical accounting skills and engaging third-party experts to assist in accounting for income taxes, valuation and other technical areas, as well as the development of more formal internal control processes. Since the original error causing the overstatement of goodwill in Fiscal year 2018, we have already significantly enhanced the technical capabilities of our staff; however, the material weaknesses will not be remediated until our remediation plan has been fully implemented and we have concluded that our controls are designed and operating effectively for a sufficient period of time. We expect to remediate these material weaknesses before the end of our fiscal year ended July 3, 2022. However, we cannot be certain that the steps we have taken will be sufficient to remediate the control deficiencies that led to the material weaknesses or avoid future material weaknesses. The effectiveness of our internal control over financial reporting is subject to various inherent limitations, including cost limitations, judgments used in decision making, assumptions about the likelihood of future events, the possibility of human error and the risk of fraud. If we are unable to remediate the material weaknesses or we identify other material weaknesses in the future, our ability to record, process and report financial information accurately, and to prepare financial statements within the time periods required under SEC rules, could be adversely affected. This may in turn adversely affect our reputation and business and the market price of our securities. In addition, any such failures could result in litigation or regulatory actions by the SEC or other regulatory authorities, loss of investor confidence, delisting of our common stock and diversion of financial and management resources from the operation of our business.
We are not currently required to comply with the rules of the SEC implementing Section 404 of the Sarbanes-Oxley Act and are therefore not required to make a formal assessment of the effectiveness of our internal control over financial reporting for that purpose. As a public company, we will be required to comply with the SEC’s rules implementing Sections 302 and 404 of the Sarbanes-Oxley Act, which will require management to certify financial and other information in our quarterly and annual reports and provide an annual management report on the effectiveness of internal control over financial reporting. Though we will be required to disclose changes made in our internal control over financial reporting on a quarterly basis, we will not be required to make our first annual assessment of our internal control over financial reporting pursuant to Section 404 until the year following our first annual report required to be filed with the SEC.
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Risks Related to the Business Combination and Isos
The Sponsor and LionTree have agreed to vote in favor of the Business Combination, regardless of how Isos’s public shareholders vote.
Unlike some other blank check companies in which the initial shareholders agree to vote their shares in accordance with the majority of the votes cast by the public shareholders in connection with an initial business combination, the Sponsor and LionTree have agreed to, among other things, vote in favor of the Business Combination Agreement and the transactions contemplated thereby, in each case, subject to the terms and conditions contemplated by the Sponsor Support Agreement. As of the date of this proxy statement/prospectus, the Sponsor and LionTree collectively own 20.0% of the issued and outstanding ordinary shares.
We may be forced to close the Business Combination even if we determined it is no longer in our shareholders’ best interest.
Our public shareholders are protected from a material adverse event of Bowlero arising between the date of the Business Combination Agreement and the Closing primarily by (i) the right to redeem their public shares for a pro rata portion of the funds held in the trust account, calculated as of two business days prior to the vote at the extraordinary general meeting, and (ii) the closing condition in the Business Combination Agreement that there be no occurrence that would have a material adverse effect (as defined in the Business Combination Agreement) on Bowlero.
Since the Sponsor, LionTree and Isos’s directors and executive officers have interests that are different, or in addition to (and which may conflict with), the interests of our shareholders, a conflict of interest may have existed in determining whether the Business Combination with Bowlero is appropriate as our initial business combination. Such interests include that Sponsor and LionTree will lose their entire investment in us if the Business Combination is not completed.
When you consider the recommendation of Isos’s board of directors in favor of approval of the BCA Proposal, you should keep in mind that the Sponsor, LionTree and Isos’s directors and executive officers have interests in such proposal that are different from, or in addition to, those of Isos shareholders and warrant holders generally. These interests include, among other things, the interests listed below:
• the 3,963,458 private placement warrants purchased by the Sponsor and the 1,434,370 private placement warrants purchased by LionTree in connection with the IPO for approximately $5.9 million and $2.2 million, respectively (which would be valued at approximately $4.2 million and $1.5 million, respectively, based on the $1.05 closing price of Isos warrants on September 10, 2021), will be worthless if a business combination is not consummated by March 5, 2023 (as may be extended);
• the fact that Sponsor paid a nominal amount for its 5,814,636 founder shares and LionTree paid a nominal amount for its 556,289 founder shares, which such founder shares (if unrestricted and freely tradeable), would be valued at approximately $57.8 million and $5.5 million, respectively, based on the $9.94 closing price of Isos Class A common stock on September 10, 2021, and that such shares will be worthless if a business combination is not consummated;
• the fact that Sponsor and LionTree have agreed not to redeem any of their founders shares in connection with a stockholder vote to approve a proposed initial business combination;
• the fact that upon consummation of the Business Combination, the Sponsor and LionTree are expected to hold an economic ownership in New Bowlero as further described in “Summary of the Proxy Statement/Prospectus — Ownership of New Bowlero following the Business Combination” through their ownership of founder shares as described above;
• the fact that upon completion of the Business Combination, an aggregate amount of $8.6 million in M&A advisory fees, $3.6 million in deferred underwriters’ compensation, and $1.8 million of placement agent fees (payable in connection with the PIPE Offerings) will be payable to LionTree;
• if the trust account is liquidated, including in the event Isos is unable to complete an initial business combination within the required time period, the Sponsor and LionTree have agreed to indemnify Isos to ensure that the proceeds in the trust account are not reduced below $10.00 per public share by the claims
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of prospective target businesses with which Isos has entered into an acquisition agreement or claims of any third party for services rendered or products sold to Isos, but only if such a vendor or target business has not executed a waiver of any and all rights to seek access to the trust account;
• the fact that Isos’s existing officers and directors will be eligible for continued indemnification and continued coverage under a directors’ and officers’ liability insurance policy after the business combination and pursuant to the Business Combination Agreement; and
• George Barrios and Michelle Wilson, Isos’s Co-Chief Executive Officers, each of whom is currently a director of Isos, are expected to be directors of New Bowlero after the consummation of the Business Combination, in connection with which they may receive fees for their service as directors.
These interests may influence Isos’s officers and directors in making their recommendation with regard to Isos stockholders’ vote on the Proposals.
The exercise of Isos’s directors’ and executive officers’ discretion in agreeing to changes or waivers in the terms of the Business Combination may result in a conflict of interest when determining whether such changes to the terms of the Business Combination or waivers of conditions are appropriate and in Isos’s shareholders’ best interest.
In the period leading up to the Closing, events may occur that, pursuant to the Business Combination Agreement, would require Isos to agree to amend the Business Combination Agreement, to consent to certain actions taken by Bowlero or to waive rights that Isos is entitled to under the Business Combination Agreement. Such events could arise because of changes in the course of Bowlero’s business or a request by Bowlero to undertake actions that would otherwise be prohibited by the terms of the Business Combination Agreement. In any of such circumstances, it would be at Isos’s discretion, acting through its board of directors, to grant its consent or waive those rights. The existence of financial and personal interests of one or more of the directors described in the preceding risk factors (and described elsewhere in this proxy statement/prospectus) may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is best for Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining whether or not to take the requested action. As of the date of this proxy statement/prospectus, Isos does not believe there will be any changes or waivers that Isos’s directors and executive officers would be likely to make after shareholder approval of the BCA Proposal has been obtained. While certain changes could be made without further shareholder approval, Isos will circulate a new or amended proxy statement/prospectus and resolicit Isos’s shareholders if changes to the terms of the transaction that would have a material impact on its shareholders are required prior to the vote on the BCA Proposal.
We and Bowlero will incur significant transaction and transition costs in connection with the Business Combination.
We and Bowlero have both incurred and expect to incur significant, non-recurring costs in connection with consummating the Business Combination and operating as a public company following the consummation of the Business Combination. We and Bowlero may also incur additional costs to retain key employees. Certain transaction expenses incurred in connection with the Business Combination Agreement (including the Business Combination), including all legal, accounting, consulting, investment banking and other fees, expenses and costs, will be paid by out of the proceeds of the Business Combination or by New Bowlero following the closing of the Business Combination.
The announcement of the proposed Business Combination could disrupt Bowlero’s and/or New Bowlero’s relationships with its customers, suppliers, business partners and others, as well as its operating results and business generally.
Whether or not the Business Combination and related transactions are ultimately consummated, as a result of uncertainty related to the proposed transactions, risks relating to the impact of the announcement of the Business Combination on Bowlero’s and New Bowlero’s business include the following:
• its employees may experience uncertainty about their future roles, which might adversely affect Bowlero’s and New Bowlero’s ability to retain and hire key personnel and other employees;
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• customers, suppliers, business partners and other parties with which Bowlero maintains business relationships may experience uncertainty about the future of these relationships in light of the Business Combination and seek alternative relationships with third parties, seek to alter their business relationships with New Bowlero or fail to extend an existing relationship with Bowlero to New Bowlero; and
• Bowlero has expended and New Bowlero will continue to expend significant costs, fees and expenses for professional services and transaction costs in connection with the proposed Business Combination.
If any of the aforementioned risks were to materialize, they could lead to significant costs which may impact New Bowlero’s results of operations and cash available to fund its businesses.
Subsequent to consummation of the Business Combination, we may be exposed to unknown or contingent liabilities and may be required to subsequently take write-downs or write-offs, restructuring and impairment or other charges that could have a significant negative effect on our financial condition, results of operations and our share price, which could cause you to lose some or all of your investment.
We cannot assure you that the due diligence conducted in relation to Bowlero has identified all material issues or risks associated with Bowlero, its business or the industry in which it competes.
Furthermore, we cannot assure you that factors outside of Bowlero’s and our control will not later arise. As a result of these factors, we may be exposed to liabilities and incur additional costs and expenses and we may be forced to later write-down or write-off assets, restructure our operations, or incur impairment or other charges that could result in our reporting losses. Even if our due diligence has identified certain risks, unexpected risks may arise and previously known risks may materialize in a manner not consistent with our preliminary risk analysis. If any of these risks materialize, this could have a material adverse effect on our financial condition and results of operations and could contribute to negative market perceptions about our securities or the securities of New Bowlero. Additionally, we have no indemnification rights against Bowlero or Bowlero Stockholders under the Business Combination Agreement and all of the purchase price consideration will be delivered at the Closing.
Accordingly, any shareholders or warrant holders of Isos who choose to remain stockholders or warrant holders in New Bowlero following the Business Combination could suffer a reduction in the value of their shares, warrants and units. Such shareholders or warrant holders are unlikely to have a remedy for such reduction in value unless they are able to successfully claim that the reduction was due to the breach by our directors or officers of a duty of care or other fiduciary duty owed to them, or if they are able to successfully bring a private claim under securities laws that the registration statement or proxy statement/prospectus relating to the Business Combination contained an actionable material misstatement or material omission.
You may not have the same benefits as an investor in an underwritten public offering.
Like other business combination transactions and spin-offs, in connection with the Business Combination, you will not receive the benefits of the diligence performed by the underwriters in an underwritten public offering. Investors in an underwritten public offering may benefit from the role of the underwriters in such an offering. In an underwritten public offering, an issuer initially sells its securities to the public market via one or more underwriters, who distribute or resell such securities to the public. Underwriters have liability under the U.S. securities laws for material misstatements or omissions in a registration statement pursuant to which an issuer sells securities.
Because the underwriters have a defense to any such liability by, among other things, conducting a reasonable investigation, the underwriters and their counsel conduct a “due diligence” investigation of the issuer. Due diligence entails engaging legal, financial and/or other experts to perform an investigation as to the accuracy of an issuer’s disclosure regarding, among other things, its business and financial results. Auditors of the issuer also will deliver a “comfort” letter with respect to the financial information contained in the registration statement. In making their investment decision, investors in underwritten public offerings have the benefit of such diligence.
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In contrast, Isos and Bowlero each have engaged a financial advisor (rather than underwriters) in connection with the Business Combination. The role of a financial advisor typically differs from that of an underwriter. For example, financial advisors do not act as intermediaries in the public sale of securities and therefore do not face the same potential liability under the U.S. securities laws as underwriters. As a result, financial advisors typically do not undertake the same level of, or any, due diligence investigation of the issuer as is typically undertaken by underwriters.
In connection with this proxy statement/prospectus, no parties other than Isos and Bowlero have conducted an investigation of the disclosure contained herein. In addition, as an unaffiliated investor, you will not be afforded the opportunity to perform your own due diligence investigation of, or otherwise obtain information on, Isos or Bowlero beyond the information that is contained in this proxy statement/prospectus (or is otherwise publicly available). You therefore may not have the benefit of the same level of review as an investor in an underwritten public offering, who has the benefit of the underwriters’ evaluation and due diligence investigation of the issuer.
The historical financial results of Bowlero and unaudited pro forma financial information included elsewhere in this proxy statement/prospectus may not be indicative of what New Bowlero’s actual financial position or results of operations would have been.
The historical financial results of Bowlero included in this proxy statement/prospectus do not reflect the financial condition, results of operations or cash flows it would have achieved as a standalone company during the periods presented or those New Bowlero will achieve in the future. This is primarily the result of the following factors: (i) New Bowlero will incur additional ongoing costs as a result of the Business Combination, including costs related to public company reporting, investor relations and compliance with the Sarbanes-Oxley Act; and (ii) New Bowlero’s capital structure will be different from that reflected in Bowlero’s historical financial statements. New Bowlero’s financial condition and future results of operations could be materially different from amounts reflected in its historical financial statements included elsewhere in this proxy statement/prospectus, so it may be difficult for investors to compare New Bowlero’s future results to historical results or to evaluate its relative performance or trends in its business.
Similarly, the unaudited pro forma financial information in this proxy statement/prospectus is presented for illustrative purposes only and has been prepared based on a number of assumptions, including, but not limited to, Isos being treated as the “acquired” company for financial reporting purposes in the Business Combination, the total debt obligations and the cash and cash equivalents of Bowlero on the Closing Date and the number of Isos Class A ordinary shares that are redeemed in connection with the Business Combination. Accordingly, such pro forma financial information may not be indicative of New Bowlero’s future operating or financial performance and New Bowlero’s actual financial condition and results of operations may vary materially from New Bowlero’s pro forma results of operations and balance sheet contained elsewhere in this proxy statement/prospectus, including as a result of such assumptions not being accurate. See “Unaudited Pro Forma Condensed Combined Financial Information.”
Following the consummation of the Business Combination, our only significant asset will be our ownership interest in Bowlero and such ownership may not be sufficient to pay dividends or make distributions or loans to enable us to pay any dividends on New Bowlero’s common stock or satisfy our other financial obligations.
Following the consummation of the Business Combination, we will have no direct operations and no significant assets other than our ownership of Bowlero. We and certain investors, the Bowlero Stockholders, and directors and officers of Bowlero and its affiliates will become stockholders of New Bowlero. We will depend on Bowlero for distributions, loans and other payments to generate the funds necessary to meet our financial obligations, including our expenses as a publicly traded company and to pay any dividends with respect to New Bowlero’s common stock. The financial condition and operating requirements of Bowlero may limit our ability to obtain cash from Bowlero. The earnings from, or other available assets of, Bowlero may not be sufficient to pay dividends or make distributions or loans to enable us to pay any dividends on New Bowlero’s common stock or satisfy our other financial obligations.
This lack of diversification may subject us to numerous economic, competitive and regulatory risks, any or all of which may have a substantial adverse impact upon the particular industry in which we may operate subsequent to the Business Combination.
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The Sponsor may elect to purchase shares or warrants from public shareholders prior to the consummation of the Business Combination, which may influence the vote on the Business Combination and reduce the public “float” of our securities.
At any time at or prior to the Business Combination, subject to applicable securities laws (including with respect to material nonpublic information), the Sponsor, LionTree, the existing stockholders of Bowlero or our or their respective directors, officers, advisors or respective affiliates may (i) purchase public shares or warrants from institutional and other investors who vote, or indicate an intention to vote, against any of the Condition Precedent Proposals, or elect to redeem, or indicate an intention to redeem, public shares, (ii) execute agreements to purchase such shares from such investors in the future, or (iii) enter into transactions with such investors and others to provide them with incentives to acquire public shares, vote their public shares in favor of the Condition Precedent Proposals or not redeem their public shares. Such a purchase may include a contractual acknowledgement that such shareholder, although still the record holder of Isos’s shares, is no longer the beneficial owner thereof and therefore agrees not to exercise its redemption rights. In the event that the Sponsor, LionTree, the existing stockholders of Bowlero or our or their respective directors, officers, advisors, or respective affiliates purchase shares in privately negotiated transactions from public shareholders who have already elected to exercise their redemption rights, such selling shareholders would be required to revoke their prior elections to redeem their shares. The purpose of such share purchases and other transactions would be to increase the likelihood of (1) satisfaction of the requirement that holders of a majority of the ordinary shares, represented in person or by proxy and entitled to vote at the extraordinary general meeting, vote in favor of the BCA Proposal, the Director Election Proposal, the Stock Issuance Proposal, the Incentive Plan Proposal, the ESPP Proposal and the Adjournment Proposal, (2) satisfaction of the requirement that holders of at least two-thirds of the ordinary shares, represented in person or by proxy and entitled to vote at the extraordinary general meeting, vote in favor of the Domestication Proposal and the Organizational Documents Proposals, (3) satisfaction of the Minimum Cash Condition, (4) otherwise limiting the number of public shares electing to redeem and (5) our net tangible assets (as determined in accordance with Rule 3a51(g) (1) of the Exchange Act) being at least $5,000,001. The purpose of such purchases of public warrants would be to reduce the number of public warrants outstanding or to vote such warrants on any matters submitted to the warrant holders or shareholders for approval in connection with our initial business combination.
Entering into any such arrangements may have a depressive effect on our ordinary shares (e.g., by giving an investor or holder the ability to effectively purchase shares or warrants at a price lower than market, such investor or holder may therefore become more likely to sell the shares he or she owns, either at or prior to the Business Combination). If such transactions are effected, the consequence could be to cause the Business Combination to be consummated in circumstances where such consummation could not otherwise occur. Purchases of shares or warrants by the persons described above would allow them to exert more influence over the approval of the proposals to be presented at the extraordinary general meeting and would likely increase the chances that such proposals would be approved. In addition, if such purchases are made, the public “float” of our securities and the number of beneficial holders of our securities may be reduced, possibly making it difficult to maintain or obtain the quotation, listing or trading of our securities on a national securities exchange.
If third parties bring claims against us, the proceeds held in the trust account could be reduced and the per share redemption amount received by shareholders may be less than $10.00 per share (which was the offering price per unit in our initial public offering).
Our placing of funds in the trust account may not protect those funds from third-party claims against us. Although we will seek to have all vendors, service providers (other than our independent auditors), prospective target businesses and other entities with which we do business execute agreements with us waiving any right, title, interest or claim of any kind in or to any monies held in the trust account, there is no guarantee that they will execute such agreements or even if they execute such agreements that they would be prevented from bringing claims against the trust account, including, but not limited to, fraudulent inducement, breach of fiduciary responsibility or other similar claims, as well as claims challenging the enforceability of the waiver, in each case in order to gain advantage with respect to a claim against our assets, including the funds held in the trust account. If any third party refuses to execute an agreement waiving such claims to the monies held in the trust account, our management will perform an analysis of the alternatives available to it and will enter into an agreement with a third party that has not executed a waiver only if management believes that such third party’s engagement would be significantly more beneficial to us than any alternative.
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Examples of possible instances where we may engage a third party that refuses to execute a waiver include the engagement of a third-party consultant whose particular expertise or skills are believed by management to be significantly superior to those of other consultants that would agree to execute a waiver or in cases where management is unable to find a service provider willing to execute a waiver. In addition, there is no guarantee that such entities will agree to waive any claims they may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with us and will not seek recourse against the trust account for any reason. Upon redemption of our public shares, if we have not completed the Business Combination within the required time period, or upon the exercise of a redemption right in connection with the Business Combination, we will be required to provide for payment of claims of creditors that were not waived that may be brought against us within the 10 years following redemption. Accordingly, the per share redemption amount received by public shareholders could be less than the $10.00 per public share initially held in the trust account, due to claims of such creditors.
The Sponsor has agreed that it will be liable to us if and to the extent any claims by a third party (other than our independent auditors) for services rendered or products sold to us, or a prospective target business with which we have discussed entering into a transaction agreement, reduce the amount of funds in the trust account to below (i) $10.00 per public share or (ii) such lesser amount per public share held in the trust account as of the date of the liquidation of the trust account due to reductions in the value of the trust assets, in each case net of the interest which may be withdrawn to pay taxes, except as to any claims by a third party who executed a waiver of any and all rights to seek access to the trust account and except as to any claims under our indemnity of the underwriters of this offering against certain liabilities, including liabilities under the Securities Act. Moreover, in the event that an executed waiver is deemed to be unenforceable against a third party, the Sponsor will not be responsible to the extent of any liability for such third-party claims. We have not independently verified whether the Sponsor has sufficient funds to satisfy its indemnity obligations and believe that the Sponsor’s only assets are securities of our company. The Sponsor may not have sufficient funds available to satisfy those obligations. We have not asked the Sponsor to reserve for such obligations, and therefore, no funds are currently set aside to cover any such obligations. As a result, if any such claims were successfully made against the trust account, the funds available for the Business Combination and redemptions could be reduced to less than $10.00 per public share. In such event, we may not be able to complete the Business Combination, and you would receive such lesser amount per share in connection with any redemption of your public shares. None of our directors or officers will indemnify us for claims by third parties, including, without limitation, claims by vendors and prospective target businesses.
If, after we distribute the proceeds in the trust account to our public shareholders, Isos files a winding-up or bankruptcy or insolvency petition or an involuntary winding-up or bankruptcy or insolvency petition is filed against us that is not dismissed, a bankruptcy court may seek to recover such proceeds, and the members of our board of directors may be viewed as having breached their fiduciary duties, thereby exposing the members of our board of directors and us to claims of damages.
If, after we distribute the proceeds in the trust account to our public shareholders, we file a winding-up or bankruptcy or insolvency petition or an involuntary winding-up or bankruptcy or insolvency petition is filed against us that is not dismissed, any distributions received by shareholders could be viewed under applicable debtor/creditor and/or insolvency laws as a voidable performance. As a result, a liquidator could seek to recover some or all amounts received by our shareholders. In addition, our board of directors may be viewed as having breached its fiduciary duty or having acted in bad faith, thereby exposing it and us to claims of damages. We cannot assure you that claims will not be brought against us for these reasons.
If, before distributing the proceeds in the trust account to our public shareholders, we file a winding-up or bankruptcy or insolvency petition or an involuntary winding-up or bankruptcy or insolvency petition is filed against us that is not dismissed, the claims of creditors in such proceeding may have priority over the claims of our shareholders and the per share amount that would otherwise be received by our shareholders in connection with our liquidation may be reduced.
If, before distributing the proceeds in the trust account to our public shareholders, we file a winding-up or bankruptcy or insolvency petition or an involuntary winding-up or bankruptcy or insolvency petition is filed against us that is not dismissed, the proceeds held in the trust account could be subject to applicable insolvency law, and may be included in our liquidation estate and subject to the claims of third parties with priority over the claims of our shareholders. To the extent any liquidation claims deplete the trust account, the per share amount that would otherwise be received by our shareholders in connection with our liquidation would be reduced.
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Our shareholders may be held liable for claims by third parties against us to the extent of distributions received by them upon redemption of their shares.
If we enter into an insolvency proceeding, any distributions received by shareholders could be viewed as an unlawful payment if it was proved that, for example, immediately following the distribution, we were unable to pay our debts as they fall due in the ordinary course of business. As a result, a liquidator could seek to recover some or all amounts received by our shareholders. Furthermore, our directors may be viewed as having breached their fiduciary duties to us or our creditors or may have acted in bad faith, and thereby exposing themselves and our company to claims, by paying public shareholders from the trust account prior to addressing the claims of creditors. We cannot assure you that claims will not be brought against us for these reasons.
Upon consummation of the Business Combination, Isos’s public shareholders will experience dilution as a consequence of, among other transactions, the issuance of New Bowlero common stock as consideration in the Business Combination and in connection with the Common PIPE Offering. Isos’s public shareholders may be further diluted due to, among other things, issuances of equity pursuant to the exercise of options or under the Equity Incentive Plan, conversion of the New Bowlero preferred stock being issued in the Convertible PIPE Offering, or the issuance of Earnout Shares to Bowlero Stockholders and vesting of earnout shares held by the Sponsor and LionTree as a result of certain share price triggers being achieved.
The issuance of a significant number of New Bowlero common stock to Bowlero Stockholders in the Business Combination and in connection with the Common PIPE Offering will dilute the equity interest of existing Isos shareholders and may adversely affect prevailing market prices for New Bowlero common stock and/or warrants.
In addition, future issuances of New Bowlero common stock, including under the Equity Incentive Plan, pursuant to the exercise of Bowlero options (assuming all of the option holders elect to have their options converted into New Bowlero options in connection with the Business Combination), or the vesting of any Earn-Out Shares or earnout shares held by the Sponsor and LionTree, would dilute current stockholders’ ownership percentage. Any such issuance could have a material adverse effect on the price of the New Bowlero Class A common stock. As of the date of this proxy statement/prospectus, assuming the consummation of the Business Combination and no exercise of Bowlero options prior to or in connection with the Business Combination, New Bowlero would have outstanding options exercisable for 32,566,697 additional shares of New Bowlero common stock, with an aggregate exercise price of $190.1 million, amounting to approximately 15.7% of the issued and outstanding shares assuming a $10.00 share price, no vesting of any Earn-Out Shares and the other assumptions set forth in the section entitled “Summary of the Proxy Statement Prospectus — Ownership of New Bowlero following the Business Combination.” In addition, upon consummation of the Business Combination, there will be a maximum of 31,562,770 shares of New Bowlero common stock available for issuance, assuming no redemptions and no vesting of any Earn-Out Shares, and without giving effect to any evergreen provisions under the Equity Incentive Plan of ESPP, amounting to approximately 18% of the total number of shares of New Bowlero common stock issued and outstanding immediately upon Closing.
In addition, Isos public shareholders who redeem their Isos ordinary shares in connection with the Business Combination will receive New Bowlero warrants in exchange for Isos warrants they owned prior to redemption, which results in additional dilution to non-redeeming holders upon exercise of such Isos warrants. Assuming (i) all redeeming Isos public shareholders acquired Isos units in the IPO and continued to hold all the Isos warrants that were included in the Isos units, and (ii) maximum redemption of the Isos ordinary shares held by the redeeming Isos public shareholders, 2,665,964 Isos warrants would be retained by redeeming Isos shareholders (and exchanged for an equal number of New Bowlero warrants), with an aggregate value of approximately $2.8 million, based on the closing price of $1.05 of the Isos warrants as of September 10, 2021. As a result, the redeeming Isos shareholders would recoup their entire investment and hold New Bowlero warrants with an aggregate market value of approximately $2.8 million. In the event the non-redeeming holders exercise such Isos warrants, non-redeeming Isos shareholders would suffer additional dilution in their percentage ownership and voting interest of New Bowlero.
For more, see “Summary of the Proxy Statement Prospectus — Ownership of New Bowlero following the Business Combination.”
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Even if the Business Combination is consummated, the terms of the warrants may be amended in a manner adverse to a holder if holders of at least 65% of the then outstanding public warrants approve of such amendment.
The warrants were issued in registered form under a Warrant Agreement between Continental Stock Transfer & Trust Company and Isos. The Warrant Agreement provides that (a) the terms of the warrants may be amended without the consent of any holder to cure any ambiguity or correct any defective provision or correct any mistake, including to conform the provisions of the warrant agreement to the description of the terms of the warrants and the Warrant Agreement set forth in the IPO Prospectus, but requires the approval by the holders of at least 65% of the then-outstanding public warrants to make any change that adversely affects the interests of the registered holders of public warrants. Accordingly, we may amend the terms of the public warrants in a manner adverse to a holder if holders of at least 65% of the then-outstanding public warrants approve of such amendment and, solely with respect to any amendment to the terms of the private placement warrants or any provision of the warrant agreement with respect to the private placement warrants, 50% of the number of the then-outstanding private placement warrants.
Accordingly, we may amend the terms of the public warrants in a manner adverse to a holder if holders of at least 65% of the then outstanding public warrants approve of such amendment. Although our ability to amend the terms of the public warrants with the consent of at least 65% of the then outstanding public warrants is unlimited, examples of such amendments could be amendments to, among other things, increase the exercise price of the warrants, shorten the exercise period or decrease the number of shares of New Bowlero common stock purchasable upon exercise of a warrant.
We may redeem your unexpired warrants prior to their exercise at a time that is disadvantageous to you, thereby making your warrants worthless.
We have the ability to redeem the outstanding warrants at any time after they become exercisable and prior to their expiration, at a price of $0.01 per warrant if, among other things, the last reported sale price of New Bowlero Class A common stock for any 20 trading days within a 30-trading day period ending on the third trading day prior to the date on which we send the notice of redemption to the warrant holders equals or exceeds $18.00 per share (as adjusted for share splits, share dividends, rights issuances, subdivisions, reorganizations, recapitalizations and the like). Redemption of the outstanding warrants as described above could force you to: (i) exercise your warrants and pay the exercise price therefor at a time when it may be disadvantageous for you to do so; (ii) sell your warrants at the then-current market price when you might otherwise wish to hold your warrants; or (iii) accept the nominal redemption price which, at the time the outstanding warrants are called for redemption, we expect would be substantially less than the market value of your warrants. None of the private placement warrants will be redeemable by us (subject to limited exceptions) so long as they are held by our Sponsor, LionTree or their permitted transferees.
In addition, we have the ability to redeem the outstanding warrants at any time after they become exercisable and prior to their expiration, at a price of $0.10 per warrant if, among other things, the last reported sale price of New Bowlero Class A common stock for any 20 trading days within a 30-trading day period ending on the third trading day prior to the date on which we send the notice of redemption to the warrant holders equals or exceeds $10.00 per share (as adjusted for share splits, share dividends, rights issuances, subdivisions, reorganizations, recapitalizations and the like). In such a case, the holders will be able to exercise their warrants prior to redemption for a number of shares of New Bowlero Class A common stock determined based on the redemption date and the fair market value of New Bowlero Class A common stock. The value received upon exercise of the warrants (i) may be less than the value the holders would have received if they had exercised their warrants at a later time where the underlying share price is higher and (ii) may not compensate the holders for the value of the warrants, including because the number of ordinary shares received is capped at 0.361 New Bowlero Class A common shares per warrant (subject to adjustment) irrespective of the remaining life of the warrants.
Following the Business Combination, New Bowlero currently intends to retain its future earnings, if any, to finance the further development and expansion of its business and does not intend to pay cash dividends in the foreseeable future. Any future determination to pay dividends will be at the discretion of New Bowlero Board and will depend on its financial condition, results of operations, capital requirements and future agreements and financing instruments, business prospects and such other factors as its board of directors deems relevant.
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NYSE may not list New Bowlero’s securities on its exchange, which could limit investors’ ability to make transactions in New Bowlero’s securities and subject New Bowlero to additional trading restrictions.
In connection with the Business Combination, in order to continue to maintain the listing of securities on the NYSE, we will be required to demonstrate New Bowlero’s compliance with the NYSE’s initial listing requirements, which are more rigorous than the NYSE’s continued listing requirements. We will apply to have New Bowlero’s securities listed on the NYSE upon consummation of the Business Combination. We cannot assure you that we will be able to meet all initial listing requirements. Even if New Bowlero’s securities are listed on the NYSE, New Bowlero may be unable to maintain the listing of its securities in the future.
If New Bowlero fails to meet the initial listing requirements and the NYSE does not list its securities on its exchange, Bowlero would not be required to consummate the Business Combination. In the event that Bowlero elected to waive this condition, and the Business Combination was consummated without New Bowlero’s securities being listed on the NYSE or on another national securities exchange, New Bowlero could face significant material adverse consequences, including:
• a limited availability of market quotations for New Bowlero’s securities;
• reduced liquidity for New Bowlero’s securities;
• a determination that New Bowlero common stock is a “penny stock” which will require brokers trading in New Bowlero common stock to adhere to more stringent rules and possibly result in a reduced level of trading activity in the secondary trading market for New Bowlero’s securities;
• a limited amount of news and analyst coverage; and
• a decreased ability to issue additional securities or obtain additional financing in the future.
The National Securities Markets Improvement Act of 1996, which is a federal statute, prevents or preempts the states from regulating the sale of certain securities, which are referred to as “covered securities.” If New Bowlero’s securities are not listed on the NYSE, such securities would not qualify as covered securities and we would be subject to regulation in each state in which we offer our securities because states are not preempted from regulating the sale of securities that are not covered securities.
Our outstanding warrants are accounted for as derivative liabilities with changes in fair value each period included in earnings, which may have an adverse effect on the market price of our securities.
We account for our outstanding warrants as derivative warrant liabilities. At each reporting period, (1) the accounting treatment of the outstanding warrants will be re-evaluated for proper accounting treatment as a liability or equity, and (2) the fair value of the liability of the public warrants and private placement warrants will be remeasured and the change in the fair value of the liability will be recorded as other income (expense) in our income statement. The impact of changes in fair value on earnings may have an adverse effect on the market price of our securities.
Additional Risks Related to Ownership of New Bowlero Common Stock Following the Business Combination and New Bowlero Operating as a Public Company
The price of New Bowlero’s common stock and warrants may be volatile.
Upon consummation of the Business Combination, the price of New Bowlero’s common stock, as well as New Bowlero’s warrants, may fluctuate due to a variety of factors, including:
• developments involving New Bowlero’s competitors;
• changes in laws and regulations affecting its business;
• variations in its operating performance and the performance of its competitors in general;
• actual or anticipated fluctuations in New Bowlero’s quarterly or annual operating results;
• publication of research reports by securities analysts about New Bowlero or its competitors or its industry;
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• the public’s reaction to New Bowlero’s press releases, its other public announcements and its filings with the SEC;
• actions by stockholders, including the sale by PIPE Investors of any of their securities;
• additions and departures of key personnel;
• commencement of, or involvement in, litigation involving New Bowlero;
• changes in its capital structure, such as future issuances of securities or the incurrence of additional debt;
• the volume of shares of New Bowlero common stock available for public sale; and
• general economic and political conditions, such as the effects of the COVID-19 outbreak, recessions, interest rates, local and national elections, fuel prices, international currency fluctuations, corruption, political instability and acts of war or terrorism.
These market and industry factors may materially reduce the market price of New Bowlero common stock and warrants regardless of the operating performance of New Bowlero.
New Bowlero does not intend to pay cash dividends for the foreseeable future.
Following the Business Combination, New Bowlero currently intends to retain its future earnings, if any, to finance the further development and expansion of its business and does not intend to pay cash dividends in the foreseeable future. Any future determination to pay dividends will be at the discretion of New Bowlero Board and will depend on its financial condition, results of operations, capital requirements, restrictions contained in future agreements and financing instruments, business prospects and such other factors as its board of directors deems relevant.
If analysts do not publish research about New Bowlero’ business or if they publish inaccurate or unfavorable research, New Bowlero’s stock price and trading volume could decline.
The trading market for New Bowlero common stock will depend in part on the research and reports that analysts publish about its business. New Bowlero does not have any control over these analysts. If one or more of the analysts who cover New Bowlero downgrade its common stock or publish inaccurate or unfavorable research about its business, the price of New Bowlero’s common stock could decline. If few analysts cover New Bowlero, the demand for its common stock could decrease and its common stock price and trading volume may decline. Similar results may occur if one or more of these analysts stop covering New Bowlero in the future or fail to publish reports on it regularly.
New Bowlero may be subject to securities litigation, which is expensive and could divert management attention.
The market price of New Bowlero’s common stock may be volatile and, in the past, companies that have experienced volatility in the market price of their stock have been subject to securities class action litigation. New Bowlero may be the target of this type of litigation in the future. Securities litigation against New Bowlero could result in substantial costs and divert management’s attention from other business concerns, which could seriously harm its business.
Future resales of New Bowlero’s common stock after the consummation of the Business Combination may cause the market price of New Bowlero’s securities to drop significantly, even if New Bowlero’s business is performing well.
In connection with the Business Combination, Bowlero Stockholders and certain of Bowlero’s officers (the “Bowlero Lock-up Parties”) entered into a lock-up agreement pursuant to which they will be contractually restricted from selling or transferring any of (i) their shares of New Bowlero common stock held immediately following the Closing and (ii) any of their shares of New Bowlero common stock that result from converting securities held immediately following the Closing (the “Lock-up Shares”). Such restrictions begin at Closing and end on the date that is the earlier of (i) 180 days after the Closing, and (ii) the first date on which the last reported
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sale price of New Bowlero’s Class A common stock equals or exceeds $12.00 per share for any 20 trading days within any 30-trading day period (provided if such date occurs prior to 90 days after Closing, it shall be deemed to have occurred on the 90th day after the Closing).
The Sponsor and LionTree are subject to a lock-up pursuant to the Sponsor Support Agreement dated July 1, 2021, by and among Isos, the Sponsor, LionTree and the other parties thereto, pursuant to which the Sponsor and LionTree are subject to a lock-up ending on the one year anniversary of the Closing.
However, following the expiration of the applicable lock-ups, the Sponsor, LionTree and the Bowlero Lock-up Parties will not be restricted from selling shares of New Bowlero’s common stock held by them, other than by applicable securities laws. Additionally, the PIPE Investors will not be restricted from selling any of their New Bowlero securities following the closing of the Business Combination, other than by applicable securities laws. As such, sales of a substantial number of shares of New Bowlero’s common stock in the public market could occur at any time. These sales, or the perception in the market that the holders of a large number of shares intend to sell shares, could reduce the market price of New Bowlero’s Class A common stock. Upon completion of the Business Combination, the Sponsor, LionTree and the Bowlero Lock-up Parties will collectively beneficially own more than 80% of the outstanding shares of New Bowlero’s common stock, assuming that no public shareholders redeem their public shares in connection with the Business Combination.
The shares held by the Sponsor, LionTree and the Lock-up Parties may be sold after the expiration of their applicable lock-up periods. As restrictions on resale end and registration statements (filed after the Closing to provide for the resale of such shares from time to time) are available for use, the sale or possibility of sale of these shares could have the effect of increasing the volatility in New Bowlero’s price or securities or the market price of New Bowlero Class A common stock could decline if the holders of currently restricted shares sell them or are perceived by the market as intending to sell them.
The obligations associated with being a public company will involve significant expenses and will require significant resources and management attention, which may divert from New Bowlero’s business operations.
As a public company, New Bowlero will become subject to the reporting requirements of the Exchange Act and the Sarbanes-Oxley Act. The Exchange Act requires the filing of annual, quarterly and current reports with respect to a public company’s business and financial condition. The Sarbanes-Oxley Act requires, among other things, that a public company establish and maintain effective internal control over financial reporting. As a result, New Bowlero will incur significant legal, accounting and other expenses that Bowlero did not previously incur since Bowlero has had significant deficiencies and material weaknesses in internal controls over financial reporting. New Bowlero’s entire management team and many of its other employees will need to devote substantial time to compliance, and may not effectively or efficiently manage its transition into a public company.
These rules and regulations will result in New Bowlero incurring substantial legal and financial compliance costs and will make some activities more time-consuming and costly. For example, these rules and regulations will likely make it more difficult and more expensive for New Bowlero to obtain director and officer liability insurance, and it may be required to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. As a result, it may be difficult for New Bowlero to attract and retain qualified people to serve on its board of directors, its board committees or as executive officers.
Compliance obligations under the Sarbanes-Oxley Act may make it more difficult for us to effectuate the Business Combination, require substantial financial and management resources and increase the time and costs of completing a business combination.
The fact that we are a blank check company makes compliance with the requirements of the Sarbanes-Oxley Act particularly burdensome on us as compared to other public companies because Bowlero is not currently subject to Section 404 of the Sarbanes-Oxley Act. The standards required for a public company under Section 404 of the Sarbanes-Oxley Act are significantly more stringent than those required of Bowlero as a privately held company. Management may not be able to effectively and timely implement controls and procedures that adequately respond to the increased regulatory compliance and reporting requirements that will be applicable to New Bowlero after the Business Combination. If we are not able to implement the requirements of Section 404, including any additional requirements once we are no longer an emerging growth company, in a timely manner or with adequate compliance, we may not be able to assess whether our internal controls over financial reporting are effective, which may subject
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us to adverse regulatory consequences and could harm investor confidence and the market price of New Bowlero’s Class A common stock. Additionally, once New Bowlero is no longer an emerging growth company, it will be required to comply with the independent registered public accounting firm attestation requirement on our internal control over financial reporting.
We are currently an emerging growth company within the meaning of the Securities Act, and to the extent we have taken advantage of certain exemptions from disclosure requirements available to emerging growth companies, this could make our securities less attractive to investors and may make it more difficult to compare our performance with other public companies.
We are currently an “emerging growth company” within the meaning of the Securities Act, as modified by the JOBS Act, and we may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. As a result, our shareholders may not have access to certain information they may deem important. We cannot predict whether investors will find our securities less attractive because we will rely on these exemptions. If some investors find our securities less attractive as a result of our reliance on these exemptions, the trading prices of our securities may be lower than they otherwise would be, there may be a less active trading market for our securities and the trading prices of our securities may be more volatile.
Further, Section 102(b)(1) of the JOBS Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies (that is, those that have not had a Securities Act registration statement declared effective or do not have a class of securities registered under the Exchange Act) are required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company can elect to opt out of the extended transition period and comply with the requirements that apply to non-emerging growth companies but any such election to opt out is irrevocable. We have elected not to opt out of such extended transition period, which means that when a standard is issued or revised and it has different application dates for public or private companies, we, as an emerging growth company, can adopt the new or revised standard at the time private companies adopt the new or revised standard. This may make comparison of our financial statements with another public company, which is neither an emerging growth company nor an emerging growth company which has opted out of using the extended transition period difficult or impossible because of the potential differences in accountant standards used.
If we cease to be an emerging growth company, we will no longer be able to take advantage of certain exemptions from reporting, and, absent other exemptions or relief available from the SEC, we will also be required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act. We will incur additional expenses in connection with such compliance and our management will need to devote additional time and effort to implement and comply with such requirements.
Delaware law and New Bowlero’s Proposed Organizational Documents contain certain provisions, including anti-takeover provisions that limit the ability of stockholders to take certain actions and could delay or discourage takeover attempts that stockholders may consider favorable.
The Proposed Organizational Documents that will be in effect upon consummation of the Business Combination, and the DGCL, contain provisions that could have the effect of rendering more difficult, delaying, or preventing an acquisition that stockholders may consider favorable, including transactions in which stockholders might otherwise receive a premium for their shares. These provisions could also limit the price that investors might be willing to pay in the future for shares of New Bowlero common stock, and therefore depress the trading price of New Bowlero’s Class A common stock. These provisions could also make it difficult for stockholders to take certain actions, including electing directors who are not nominated by the current members of New Bowlero Board or taking other corporate actions, including effecting changes in our management. Among other things, the Proposed Organizational Documents include provisions regarding:
• shares of New Bowlero Class B common stock will have 10 votes per share, while shares of New Bowlero Class A common stock will have one vote per share;
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• the ability of the New Bowlero Board to issue shares of preferred stock, including “blank check” preferred stock and to determine the price and other terms of those shares, including preferences and voting rights, without stockholder approval, which could be used to significantly dilute the ownership of a hostile acquirer;
• providing for the removal of directors only upon the affirmative vote of the holders of at least two-thirds in voting power of all the then-outstanding shares of stock of the Company entitled to vote thereon, voting together as a single class, if the New Bowlero Class B common stock represents less than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders;
• the limitation of the liability of, and the indemnification of, the directors and officers of New Bowlero;
• empowering only New Bowlero Board to fill any vacancy on New Bowlero Board whether such vacancy occurs as a result of an increase in the number of directors or otherwise;
• prohibiting stockholders to act by written consent if the New Bowlero Class B common stock represents less than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders;
• to the extent permitted by law, prohibiting stockholders from calling a special meeting of stockholders if the New Bowlero Class B common stock represents less than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders;
• the ability of New Bowlero Board to amend the bylaws, which may allow New Bowlero Board to take additional actions to prevent an unsolicited takeover and inhibit the ability of an acquirer to amend the bylaws to facilitate an unsolicited takeover attempt; and
• advance notice procedures with which stockholders must comply to nominate candidates to New Bowlero Board or to propose matters to be acted upon at a stockholders’ meeting, which could preclude stockholders from bringing matters before annual or special meetings of stockholders and delay changes in New Bowlero Board and also may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of New Bowlero.
Additionally, our certificate of incorporation provides that we are not governed by Section 203 of the DGCL, which, in the absence of such provisions, would have imposed additional requirements regarding mergers and other business combinations. However, our certificate of incorporation will include a provision that restricts us from engaging in any business combination with an interested stockholder for three years following the date that person becomes an interested stockholder, but such restrictions shall not apply to any business combination if certain conditions are met.
Any issuance by us of preferred stock could delay or prevent a change in control of us. New Bowlero Board will have the authority to cause us to issue, without any further vote or action by the stockholders, shares of preferred stock in one or more series, to designate the number of shares constituting any series, and to fix the rights, preferences, privileges, and restrictions thereof, including dividend rights, voting rights, rights and terms of redemption, redemption price or prices, and liquidation preferences of such series. The issuance of shares of our preferred stock may have the effect of delaying, deferring, or preventing a change in control without further action by the stockholders, even where stockholders are offered a premium for their shares.
In addition, as long as Atairos and Mr. Shannon beneficially own at least a majority of the voting power of our outstanding common stock, Atairos and Mr. Shannon will be able to control all matters requiring stockholder approval, including the election of directors, amendment of our certificate of incorporation and certain corporate transactions. Together, these certificate of incorporation, bylaw and statutory provisions could make the removal of management more difficult and may discourage transactions that otherwise could involve payment of a premium over prevailing market prices for our common stock. Furthermore, the existence of the foregoing provisions, as well as the significant common stock beneficially owned by Atairos and Mr. Shannon could limit the price that investors might be willing to pay in the future for shares of our common stock. They could also deter potential acquirers of us, thereby reducing the likelihood that you could receive a premium for your common stock in an acquisition.
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Our certificate of incorporation will contain a provision renouncing our interest and expectancy in certain corporate opportunities.
Under our certificate of incorporation, none of Atairos or any affiliates of Atairos, or any of their respective officers, directors, agents, stockholders, members or partners, will have any duty to refrain from engaging, directly or indirectly, in the same business activities, similar business activities, or lines of business in which we operate. In addition, our certificate of incorporation provides that, to the fullest extent permitted by law, no officer or director of ours who is also an officer, director, employee, managing director or other affiliate of Atairos will be liable to us or our stockholders for breach of any fiduciary duty by reason of the fact that any such individual directs a corporate opportunity to Atairos, instead of us, or does not communicate information regarding a corporate opportunity to us that the officer, director, employee, managing director, or other affiliate has directed to Atairos. These potential conflicts of interest could have a material adverse effect on our business, financial condition, results of operations, or prospects if attractive corporate opportunities are allocated by Atairos to itself or its affiliates instead of to us.
Our certificate of incorporation will provide that the Court of Chancery of the State of Delaware will be the sole and exclusive forum for substantially all disputes between us and our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers or employees.
Our certificate of incorporation will provide that, unless New Bowlero otherwise consents in writing, the Court of Chancery (the “Chancery Court”) of the State of Delaware (or, in the event that the Chancery Court does not have jurisdiction, another court of the State of Delaware or, if no court of the State of Delaware has jurisdiction, then the United States District Court for the District of Delaware) will be the sole and exclusive forum for resolution of (a) any derivative action or proceeding brought on behalf of New Bowlero, (b) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, employee, agent or stockholder of New Bowlero to New Bowlero or any of the New Bowlero’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL, the Proposed Certificate of Incorpoiration or the Proposed Bylaws or (d) any action asserting a claim governed by the “internal affairs doctrine”. Notwithstanding the foregoing, the federal district courts of the United States will be the exclusive forum for the resolution of any claims arising under the Securities Act, the Exchange Act, or any other claim for which the federal courts have exclusive jurisdiction.
We recognize that the forum selection clause in our certificate of incorporation may impose additional litigation costs on stockholders in pursuing any such claims, particularly if the stockholders do not reside in or near the State of Delaware. Additionally, the forum selection clause in our certificate of incorporation may limit our stockholders’ ability to bring a claim in a forum that they find favorable for disputes with us or our directors, officers or employees, which may discourage such lawsuits against us and our directors, officers and employees even though an action, if successful, might benefit our stockholders. The Court of Chancery of the State of Delaware may also reach different judgments or results than would other courts, including courts where a stockholder considering an action may be located or would otherwise choose to bring the action, and such judgments may be more or less favorable to us than our stockholders.
Any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will be deemed to have notice of and, to the fullest extent permitted by law, to have consented to the provisions of our certificate of incorporation described above. The choice of forum provision may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors, officers or other employees, which may discourage such lawsuits against us and our directors, officers and other employees. However, the enforceability of similar forum provisions (including exclusive federal forum provisions for actions, suits or proceedings asserting a cause of action arising under the Securities Act) in other companies’ organizational documents has been challenged in legal proceedings and there is uncertainty as to whether courts would enforce the exclusive forum provisions in our certificate of incorporation. If a court were to find the choice of forum provision contained in our certificate of incorporation to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could materially adversely affect our business, financial condition and results of operations.
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We cannot predict the impact that New Bowlero’s dual class structure may have on the stock price of New Bowlero’s Class A common stock.
We cannot predict whether New Bowlero’s dual class structure will result in a lower or more volatile market price of New Bowlero’s Class A common stock or in adverse publicity or other adverse consequences. For example, certain index providers have announced restrictions on including companies with multiple-class share structures in certain of their indexes. In July 2017, FTSE Russell and S&P Dow Jones announced that they would cease to allow most newly public companies utilizing dual or multi-class capital structures to be included in their indices. Affected indices include the Russell 2000 and the S&P 500, S&P MidCap 400 and S&P SmallCap 600, which together make up the S&P Composite 1500. Beginning in 2017, MSCI, a leading stock index provider, opened public consultations on their treatment of no-vote and multi-class structures and temporarily barred new multi-class listings from certain of its indices; however, in October 2018, MSCI announced its decision to include equity securities “with unequal voting structures” in its indices and to launch a new index that specifically includes voting rights in its eligibility criteria. Under the announced policies, our dual class capital structure would make us ineligible for inclusion in certain indices, and as a result, mutual funds, exchange-traded funds and other investment vehicles that attempt to passively track those indices will not be investing in our stock. These policies are still fairly new and it is as of yet unclear what effect, if any, they will have on the valuations of publicly traded companies excluded from the indices, but it is possible that they may depress these valuations compared to those of other similar companies that are included. Because of our dual class structure, we will likely be excluded from certain of these indexes and we cannot assure you that other stock indexes will not take similar actions. Given the sustained flow of investment funds into passive strategies that seek to track certain indexes, exclusion from stock indexes would likely preclude investment by many of these funds and could make shares of New Bowlero Class A common stock less attractive to other investors. As a result, the market price of shares of New Bowlero Class A common stock could be adversely affected.
The dual class structure of New Bowlero’s common stock, as well as board designation rights of Mr. Shannon and Atairos and consent rights of Atairos will have the effect of concentrating voting power with Mr. Shannon and Atairos, which will limit an investor’s ability to influence the outcome of important transactions, including a change in control.
Shares of New Bowlero Class B common stock will have 10 votes per share, while shares of New Bowlero Class A common stock will have one vote per share. Upon the consummation of the Business Combination, Mr. Shannon will hold all of the issued and outstanding shares of New Bowlero Class B common stock. Accordingly, upon the consummation of the Business Combination, Mr. Shannon will, directly or indirectly, hold approximately 84.7% of the voting power of New Bowlero’s capital stock and will be able to control matters submitted to our stockholders for approval, including the election of directors, amendments of our organizational documents and any merger, consolidation, sale of all or substantially all of our assets or other major corporate transactions. So long as at least 18.1% of the outstanding of shares of New Bowlero Class B common stock remain outstanding, the holders of New Bowlero Class B common stock will be able to control the outcome of matters submitted to a stockholder vote requiring a majority vote. These percentages assume (i) that no public shareholders exercise their redemption rights in connection with the Business Combination, (ii) no exercise of the warrants or issuance of any Earnout Shares, (iii) Mr. Shannon receives 1,422,813 shares of New Bowlero Class B common stock as the stock portion of the transaction bonus, (iv) none of the New Bowlero preferred stock issued in the Preferred PIPE Offering or issued to Atairos pursuant to the Business Combination Agreement are converted into New Bowlero common stock, and (v) that an aggregate of 25,000,000 shares of New Bowlero Class A common stock are issued to the PIPE Investors pursuant to the Common PIPE Offering and the Forward Purchase Investors pursuant to the Forward Purchase Investment. If the actual facts are different from these assumptions, this percentage voting power retained by Isos’s existing shareholders in New Bowlero will be different.
In addition, pursuant to the Stockholders Agreement, Mr. Shannon and Atairos will have board designation rights and Atairos will also have certain consent rights. See “— Following the completion of the Business Combination, Bowlero’s founder and Chief Executive Officer and Atairos will have certain board nomination rights that will enable them to exercise substantial control over all corporate actions, which could limit your ability to influence the outcome of matters submitted to stockholders for a vote.”
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Mr. Shannon and Atairos may have interests that differ from yours and may vote in a way with which you disagree and which may be adverse to your interests. This concentrated control may have the effect of delaying, preventing or deterring a change in control of New Bowlero, could deprive our stockholders of an opportunity to receive a premium for their capital stock as part of a sale of New Bowlero, and might ultimately affect the market price of shares of New Bowlero Class A common stock.
Following the completion of the Business Combination, Bowlero’s founder and Chief Executive Officer will control a significant percentage of our voting power and will be able to exert significant control over the direction of our business.
Immediately following the Business Combination, Thomas F. Shannon, our founder, Chief Executive Officer and director will hold shares of New Bowlero Class B common stock that will entitle him to 10 votes per share of New Bowlero Class B common stock, which we estimate will provide him with approximately 84.7% of the voting power of New Bowlero immediately after the Business Combination despite holding only 35.6% of the total shares of New Bowlero common stock. These percentages assume (i) that no public shareholders exercise their redemption rights in connection with the Business Combination, (ii) no exercise of the warrants or issuance of any Earnout Shares, (iii) Mr. Shannon receives 1,422,813 shares of New Bowlero Class B common stock as the stock portion of the transaction bonus, (iv) none of the New Bowlero preferred stock issued in the Preferred PIPE Offering or issued to Atairos pursuant to the Business Combination Agreement are converted into New Bowlero common stock, and (v) that an aggregate of 25,000,000 shares of New Bowlero Class A common stock are issued to the PIPE Investors pursuant to the Common PIPE Offering and the Forward Purchase Investors pursuant to the Forward Purchase Investment. Accordingly, for so long as Mr. Shannon continues to control a significant percentage of the voting power of New Bowlero, he will be able to significantly influence the composition of New Bowlero Board and management and the approval of actions requiring stockholder approval. The concentration of ownership could also deprive you of an opportunity to receive a premium for your shares of New Bowlero Class A common stock as part of a sale of us and ultimately might affect the market price of New Bowlero Class A common stock.
Following the completion of the Business Combination, our founder and Chief Executive Officer and Atairos will have certain board nomination rights that will enable them to exercise substantial control over all corporate actions, which could limit your ability to influence the outcome of matters submitted to stockholders for a vote.
Contemporaneously with the execution of the Business Combination Agreement, Isos entered into a Stockholders Agreement with Atairos and TS, which Mr. Shannon controls, which will become effective upon consummation of the Business Combination. Pursuant to the terms of the Stockholders Agreement, each of Atairos and TS will have the right to designate nominees for election to the New Bowlero Board following the Business Combination at any meeting of its stockholders. The number of nominees that each of Atairos and TS will be entitled to nominate pursuant to the Stockholders Agreement is dependent on their respective beneficial ownership of the New Bowlero Class A common stock and the New Bowlero Class B common stock. For so long as Atairos and its affiliates own (i) 15% or more of the combined New Bowlero Class A common stock and the New Bowlero Class B common stock, Atairos will be entitled to designate three directors to the New Bowlero Board and (ii) less than 15% but at least 5%, Atairos will be entitled to designate one director to the New Bowlero Board. For so long as TS and its affiliates own (i) 15% or more of the combined New Bowlero Class A common stock and the New Bowlero Class B common stock, TS will be entitled to designate three directors to the New Bowlero Board and (ii) less than 15% but at least 5%, TS will be entitled to designate one director to the New Bowlero Board.
In addition, the Stockholders Agreement will grant to Atairos special governance rights for so long as Atairos and its affiliates collectively maintain beneficial ownership of at least 15% of the combined New Bowlero Class A common stock and the New Bowlero Class B common stock, including, but not limited to, rights of approval over certain strategic transactions such as mergers or other similar transactions in significance that is above 15% of the total enterprise value of New Bowlero, joint ventures involving investment or contribution in excess of 15% of the total enterprise value of New Bowlero, incurring indebtedness above a certain threshold, increasing the size of the board of directors, and issuing capital stock representing more than 15% of the outstanding common stock or creating a capital stock that is senior to the common stock.
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Accordingly, for so long as Atairos and Mr. Shannon continue to control a significant percentage of the voting power of New Bowlero, they will be able to significantly influence the composition of New Bowlero Board and management and the approval of actions requiring stockholder approval. The concentration of ownership could also deprive you of an opportunity to receive a premium for your shares of New Bowlero Class A common stock as part of a sale of us and ultimately might affect the market price of New Bowlero Class A common stock.
We will be a “controlled company” within the meaning of the rules of the NYSE and the rules of the SEC. As a result, we will qualify for exemptions from certain corporate governance requirements that would otherwise provide protection to stockholders of other companies.
Immediately following the completion of the Business Combination, Thomas F. Shannon, our founder, Chief Executive Officer and director will control a majority of the voting power of New Bowlero. As a result, New Bowlero will be a “controlled company” within the meaning of the corporate governance standards of the NYSE. Under these rules, a company of which more than 50% of the voting power is held by an individual, group or another company is a “controlled company” and may elect not to comply with certain corporate governance requirements, including:
• the requirement that a majority of New Bowlero Board consist of “independent directors” as defined under the rules of the NYSE;
• the requirement that New Bowlero have a compensation committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities;
• the requirement that New Bowlero have a nominating and corporate governance committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities; and
• the requirement for an annual performance evaluation of the compensation and nominating and corporate governance committees.
Following the completion of the Business Combination, New Bowlero does not intend to utilize any of these exemptions. However, New Bowlero will be able to utilize any of these exemptions at its discretion for so long as it is a “controlled company.” Accordingly, you may not have the same protections afforded to stockholders of companies that are subject to all of the corporate governance requirements of the NYSE.
Risks Related to the Consummation of the Domestication
The Domestication may result in adverse tax consequences for holders of Isos Class A ordinary shares and warrants.
U.S. Holders (as defined in “U.S. Federal Income Tax Considerations” below) may be subject to U.S. federal income tax as a result of the Domestication. Because the Domestication will occur immediately prior to the redemption of Isos Class A ordinary shares, U.S. Holders exercising redemption rights will be subject to the potential tax consequences of the Domestication.
A U.S. Holder who on the date of the Domestication beneficially owns (actually or constructively) Isos Class A ordinary shares with a fair market value of less than $50,000 on the date of the Domestication will not recognize any gain or loss and will not be required to include any part of our earnings in income. A U.S. Holder who on the date of the Domestication beneficially owns (actually or constructively) Isos Class A ordinary shares with a fair market value of $50,000 or more, but is not a U.S. Shareholder, generally will recognize gain (but not loss) in respect of the Domestication as if such U.S. Holder exchanged its Isos Class A ordinary shares for New Bowlero Class A common stock in a taxable transaction, unless such U.S. Holder elects in accordance with applicable Treasury Regulations to include in income as a deemed dividend the “all earnings and profits amount” (as defined in the Treasury Regulations under Section 367 of the Code) attributable to the Isos Class A ordinary shares held directly by such U.S. Holder. A U.S. Shareholder will generally be required to include in income as a deemed dividend the “all earnings and profits amount” (as defined in the Treasury Regulations) attributable to the Isos Class A ordinary shares held directly by such U.S. Holder.
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As discussed more fully under “U.S. Federal Income Tax Considerations — PFIC Considerations,” if Isos were to be treated as a PFIC for U.S. federal income tax purposes, certain U.S. Holders may be subject to adverse tax consequences as a result of the Domestication. However, provided that the Domestication is completed in Isos’s current taxable year and the IRS respects the election that will be made with respect to Isos’s current taxable year, Isos believes that it will not be classified as a PFIC for such taxable year because it will qualify in such tax year for the “start-up exception.” The applicability of the start-up exception is subject to substantial uncertainty and U.S. Holders are urged to consult with their own tax advisors in this regard.
Upon consummation of the Business Combination, the rights of holders of New Bowlero common stock arising under the DGCL as well as Proposed Organizational Documents will differ from and may be less favorable to the rights of holders of Isos A ordinary shares arising under the Cayman Islands Companies Act as well as our current memorandum and articles of association.
Upon consummation of the Business Combination, the rights of holders of New Bowlero common stock will arise under the Proposed Organizational Documents as well as the DGCL. Those new organizational documents and the DGCL contain provisions that differ in some respects from those in our current memorandum and articles of association and the Cayman Islands Companies Act and, therefore, some rights of holders of New Bowlero common stock could differ from the rights that holders of Isos Class A ordinary shares currently possess. For instance, while class actions are generally not available to shareholders under Cayman Islands Companies Act, such actions are generally available under the DGCL. This change could increase the likelihood that New Bowlero becomes involved in costly litigation, which could have a material adverse effect on New Bowlero.
In addition, there are differences between the new organizational documents of New Bowlero and the current constitutional documents of Isos. For a more detailed description of the rights of holders of New Bowlero common stock and how they may differ from the rights of holders of Isos Class A ordinary shares, please see “Comparison of Corporate Governance and Stockholder Rights.” The forms of the Proposed Certificate of Incorporation and the Proposed Bylaws of New Bowlero are attached as Annexes B and C, respectively, to this proxy statement/prospectus and we urge you to read them.
Risks Related to the Redemption
There is no guarantee that an Isos stockholder’s decision whether to redeem their shares for a pro rata portion of the trust account will put such stockholder in a better future economic position.
No assurance can be given as to the price at which a stockholder may be able to sell his, her or its public shares in the future following the completion of the Business Combination. Certain events following the consummation of any business combination, including the Business Combination, may cause an increase in our stock price, and may result in a lower value realized now than an Isos stockholder might realize in the future had the stockholder not elected to redeem such stockholder’s public shares. Similarly, if an Isos public stockholder does not redeem his, her or its shares, such stockholder will bear the risk of ownership of New Bowlero common stock after the consummation of the Business Combination, and there can be no assurance that a stockholder can sell his, her or its shares in the future for a greater amount than the redemption price set forth in this proxy statement/prospectus. Isos stockholders are urged to consult with their own tax and/or financial advisors for assistance on how this may affect their individual situation.
If Isos stockholders fail to comply with the redemption requirements specified in this proxy statement/prospectus, they will not be entitled to redeem their public shares for a pro rata portion of the funds held in the trust account.
To exercise their redemption rights, holders are required to deliver their stock, either physically or electronically using DTC’s DWAC System, to Isos’s transfer agent prior to the vote at the extraordinary general meeting. If a holder properly seeks redemption as described in this proxy statement/prospectus and the Business Combination with Bowlero is consummated, Isos will redeem these shares for a pro rata portion of funds deposited in the trust account and the holder will no longer own such shares following the Business Combination. See the section titled “Extraordinary General Meeting of Isos Shareholders — Redemption Rights” for additional information on how to exercise your redemption rights.
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If you or a “group” of shareholders of which you are a part are deemed to hold an aggregate of more than 15% of the public shares, you (or, if a member of such a group, all of the members of such group in the aggregate) will lose the ability to redeem all such shares in excess of 15% of the public shares.
A public shareholder, together with any affiliate of such public shareholder or any other person with whom such public shareholder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Exchange Act) will be restricted from redeeming its public shares with respect to more than an aggregate of 15% of the public shares. Your inability to redeem any such excess public shares could result in you suffering a material loss on your investment in Isos if you sell such excess public shares in open market transactions. Isos cannot assure you that the value of such excess public shares will appreciate over time following the Business Combination or that the market price of the public shares will exceed the per-share redemption price.
However, Isos’s stockholders’ ability to vote all of their public shares (including such excess shares) for or against the BCA Proposal is not restricted by this limitation on redemption.
Risks if the Adjournment Proposal is Not Approved
If the Adjournment Proposal is not approved, and an insufficient number of votes have been obtained to authorize the consummation of the Business Combination and the Domestication, our board of directors will not have the ability to adjourn the extraordinary general meeting to a later date in order to solicit further votes, and, therefore, the Business Combination will not be approved, and, therefore, the Business Combination may not be consummated.
Our board of directors is seeking approval to adjourn the extraordinary general meeting to a later date or dates if, at the extraordinary general meeting, based upon the tabulated votes, there are insufficient votes to approve each of the Condition Precedent Proposals. If the Adjournment Proposal is not approved, our board of directors will not have the ability to adjourn the extraordinary general meeting to a later date and, therefore, will not have more time to solicit votes to approve the Condition Precedent Proposals. In such events, the Business Combination would not be completed.
Risks if the Domestication and the Business Combination are not Consummated
If we are not able to complete the Business Combination with Bowlero by March 5, 2023 and are unable to complete another business combination by such date, in each case, as such date may be further extended pursuant to the Cayman Constitutional Documents, we would cease all operations except for the purpose of winding up and we would redeem our Class A ordinary shares and liquidate the trust account, in which case our public shareholders may only receive approximately $10.00 per share and our warrants will expire worthless.
Our ability to complete the Business Combination may be negatively impacted by general market conditions, volatility in the capital and debt markets and the other risks described herein, including as a result of terrorist attacks, natural disaster or a significant outbreak of infectious diseases. For example, the outbreak of COVID-19 continues in the U.S. and, while the extent of the impact of the outbreak on Isos will depend on future developments, it could limit our ability to complete the Business Combination, including as a result of increased market volatility, decreased market liquidity and third-party financing being unavailable on terms acceptable to us or at all. Additionally, the outbreak of COVID-19 and other events (such as terrorist attacks, natural disasters or a significant outbreak of infectious diseases) may negatively impact the business of New Bowlero following the Business Combination.
If Isos is not able to complete the Business Combination with Bowlero by March 5, 2023, and are unable to complete another business combination by such date, in each case, as such date may be extended pursuant to Isos’s Cayman Constitutional Documents, Isos will: (i) cease all operations except for the purpose of winding up; (ii) as promptly as reasonably possible but not more than 10 business days thereafter, redeem the public shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the trust account, including interest (less up to $100,000 of interest to pay dissolution expenses and which interest shall be net of taxes payable), divided by the number of then issued and outstanding public shares, which redemption will completely extinguish public shareholders’ rights as shareholders (including the right to receive further liquidating distributions, if any), subject to applicable law; and (iii) as promptly as reasonably possible following such redemption, subject to the approval of Isos’s remaining shareholders and its board, dissolve and liquidate, subject
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in each case to its obligations under Cayman Islands law to provide for claims of creditors and the requirements of other applicable law. In such case, our public shareholders may only receive approximately $10.00 per share and our warrants will expire worthless.
You will not have any rights or interests in funds from the trust account, except under certain limited circumstances. To liquidate your investment, therefore, you may be forced to sell your public shares and/or public warrants, potentially at a loss.
Our public shareholders will be entitled to receive funds from the trust account only upon the earliest to occur of (i) our completion of an initial business combination (including the Closing), and then only in connection with those public shares that such public shareholder properly elected to redeem, subject to certain limitations; (ii) the redemption of any public shares properly submitted in connection with a shareholder vote to amend the Cayman Constitutional Documents to (iii) modify the substance and timing of our obligation to allow redemption in connection with our initial business combination or to redeem 100% of the public shares if we do not complete a business combination by March 5, 2023 or (iv) with respect to any other provision relating to shareholders’ rights or pre-initial business combination activity; and (v) the redemption of the public shares if we have not completed an initial business combination by March 5, 2023 (or if such date is further extended at a duly called extraordinary general meeting, such later date), subject to applicable law. In no other circumstances will a shareholder have any right or interest of any kind to or in the trust account. Holders of public warrants will not have any right to the proceeds held in the trust account with respect to the public warrants. Accordingly, to liquidate your investment, you may be forced to sell your public shares and/or public warrants, potentially at a loss.
If we have not completed our initial business combination, our public shareholders may be forced to wait until after March 5, 2023 before redemption from the trust account.
If we have not completed our initial business combination by March 5, 2023 (or if such date is further extended at a duly called extraordinary general meeting, such later date), we will distribute the aggregate amount then on deposit in the trust account (less up to $100,000 of the net interest to pay dissolution expenses and which interest shall be net of taxes payable), pro rata to our public shareholders by way of redemption and cease all operations except for the purposes of winding up of our affairs, as further described in this proxy statement/prospectus. Any redemption of public shareholders from the trust account shall be affected automatically by function of the Cayman Constitutional Documents prior to any voluntary winding up. If we are required to wind-up, liquidate the trust account and distribute such amount therein, pro rata, to our public shareholders, as part of any liquidation process, such winding up, liquidation and distribution must comply with the applicable provisions of the Cayman Islands Companies Act. In that case, investors may be forced to wait beyond October 9, 2022 (or if such date is further extended at a duly called extraordinary general meeting, such later date), before the redemption proceeds of the trust account become available to them, and they receive the return of their pro rata portion of the proceeds from the trust account. We have no obligation to return funds to investors prior to the date of our redemption or liquidation unless, prior thereto, we consummate our initial business combination or amend certain provisions of our Cayman Constitutional Documents and only then in cases where investors have properly sought to redeem their public shares. Only upon our redemption or any liquidation will public shareholders be entitled to distributions if we have not completed our initial business combination within the required time period and do not amend certain provisions of our Cayman Constitutional Documents prior thereto.
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UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
Defined terms included below have the same meaning as terms defined and included elsewhere in this proxy statement/prospectus.
Introduction
Isos is providing the following unaudited pro forma condensed combined financial information to aid you in your analysis of the financial aspects of Bowlero becoming a wholly-owned subsidiary of Isos. The following unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X as amended by the final rule, Release No. 33-10786 “Amendments to Financial Disclosures about Acquired and Disposed Businesses” to depict the accounting for the transaction (“Transaction Accounting Adjustments”) and present the reasonably estimable synergies and other transaction effects that have occurred or are reasonably expected to occur (“Management’s Adjustments”). Isos has elected not to present Management’s Adjustments and will only be presenting Transaction Accounting Adjustments in the unaudited pro forma condensed combined financial information.
Isos is a blank check company that was incorporated in Cayman Islands on December 29, 2020, formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities.
On March 5, 2021, Isos consummated its IPO of 22,500,000 Isos Units at an offering price of $10.00 per unit, with each Isos Unit consisting of one Isos Class A Ordinary Share and one-third of one Isos Warrant, resulting in gross proceeds of $225.0 million (before underwriting discounts and commissions and offering expenses).
Prior to the consummation of the IPO, the Sponsor and LionTree subscribed for 5,750,000 Founder Shares for an aggregate purchase price of $25,000, or approximately $0.004 per share. In March 2021, Isos effected a stock dividend resulting in the Sponsor and LionTree holding an aggregate of 6,468,750 Founder Shares. Simultaneously with the consummation of the IPO, Isos sold 5,000,000 Private Placement Warrants in a private placement transaction at a purchase price of $1.50 per Private Placement Warrant to the Sponsor and LionTree. As a result of this transaction and after giving effect to the exercise of the underwriters’ over-allotment option discussed below, Isos sold a total of 5,397,828 Private Placement Warrants to the Sponsor and LionTree, resulting in gross proceeds to Isos of $8,096,742. Each Private Placement Warrant sold in the private placement is identical to the warrants included in the Isos Units sold in the IPO, except that the Private Placement Warrants: (i) are not redeemable by Isos and (ii) may be exercised for cash or on a cashless basis, so long as they are held by the initial purchasers or any of their permitted transferees.
On March 10, 2021, the underwriters partially exercised the over-allotment option to purchase 2,983,700 additional Isos Units.
The following unaudited pro forma condensed combined balance sheet as of June 30, 2021 assumes that the Business Combination occurred on June 30, 2021. The unaudited pro forma condensed combined statement of operations for the six months ended June 30, 2021 present pro forma effect to the Business Combination as if it had been completed on January 1, 2021.
The unaudited pro forma condensed combined financial statements have been presented for illustrative purposes only and do not necessarily reflect what the Post-Combination Company’s financial condition or results of operations would have been had the acquisition occurred on the dates indicated. Further, the pro forma condensed combined financial information also may not be useful in predicting the future financial condition and results of operations of the Post-Combination Company. The actual financial position and results of operations may differ significantly from the pro forma amounts reflected herein due to a variety of factors.
The historical financial information of Isos was derived from the unaudited financial statements of Isos as of and for the six months ended June 30, 2021, included elsewhere in this proxy statement/prospectus. The historical financial information of Bowlero as of and for the six months ended June 27, 2021 was derived from the audited financial statements of Bowlero for the year ended June 27, 2021, which are included elsewhere in this proxy statement/prospectus. This information should be read together with Isos’s and Bowlero’s unaudited financial statements and related notes, the sections titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Isos” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Bowlero” and other financial information included elsewhere in this proxy statement/prospectus.
73
Table of Contents
Description of the Business Combination
On July 1, 2021, Isos entered into the Business Combination Agreement with Bowlero. Isos will change its jurisdiction of registration by deregistering as a Cayman Islands exempted company and continuing and domesticating as a corporation registered under the laws of the State of Delaware (the “Domestication”). Concurrently with the Domestication, (i) Isos Class A ordinary shares and Isos Class B ordinary shares will automatically convert, on a one-for-one basis, into New Bowlero Class A common stock and (ii) Isos will file the certificate of designations of the New Bowlero preferred stock with the Secretary of State of Delaware for the designation and creation of the New Bowlero preferred stock.
Bowlero will merge with and into Isos, with Isos surviving the Merger. The aggregate consideration to be paid to the holders of Bowlero equity shall consist of (i) an amount of cash of $309,228 thousand, plus (ii) the Per Share Preferred Stock Cash Consideration (as defined in the Business Combination Agreement) plus (iii) 119,488,202 shares, including 62,392,209 shares of New Bowlero Class B common stock. In addition, immediately prior to the completion of the Business Combination, certain investors have agreed to subscribe for and purchase 15,000,000 shares of New Bowlero Class A common stock and 95,000 shares of New Bowlero preferred stock for an aggregate of $245,000 thousand in the PIPE Offerings. In addition, the Forward Purchase Investors have agreed to purchase 10,000,000 shares of New Bowlero Class A common stock and warrants to purchase 3,333,333 shares of New Bowlero Class A common stock at $11.50 per share, for an aggregate gross purchase price of $100,000 thousand in the Forward Purchase Investment.
In connection with the Business Combination, certain of Bowlero’s equity holders will receive 20,750,000 earnout shares (the “Bowlero Earnout Consideration”) contingent upon achieving certain market share price milestones within a period of 60 months post Business Combination. None of the earnout shares shall be issued if the set milestones are not reached. The Bowlero Earnout Consideration will be deemed to have been earned in the event of a change of control if the change of control occurs within a period of 60 months post Business Combination if certain conditions are met.
In connection with the Business Combination, an aggregate of 1,611,278 shares of Isos Class B ordinary shares (which will be converted into shares of New Bowlero Class A common stock in connection with the Domestication) and 1,619,348 warrants currently held by the Sponsor and LionTree (the “Sponsor Earnout Consideration”) are subject to forfeiture if the set milestones are not reached within a period of 60 months post Business Combination. 805,639 Isos Class B ordinary shares currently held by the Sponsor and LionTree are subject to forfeiture and will be transferred to Bowlero Stockholders upon the Closing, and an additional 1,340,012 Isos Class B ordinary shares are subject to forfeiture and will be transferred to Bowlero Stockholders upon the Closing if the maximum number of redemptions occurs.
The following table summarizes the pro forma number of shares of New Bowlero Class A and Class B common stock outstanding following the consummation of the Business Combination, the PIPE Offerings and the Forward Purchase Investments under two separate scenarios, discussed further in the sections below, excluding the potential dilutive effect of the exercise or vesting of warrants, stock-based compensation, Bowlero Earnout Consideration, and Sponsor Earnout Consideration:
|
|
|
Assuming No Redemptions (Shares)
|
|
%
|
|
Assuming Maximum Redemptions (Shares)
|
|
%
|
|
Bowlero – shares of common stock transferred at
Closing
|
|
119,488,202
|
|
68.1
|
%
|
|
128,812,014
|
|
73.5
|
%
|
|
Isos Public Shares
|
|
25,483,700
|
|
14.5
|
%
|
|
17,499,900
|
|
10.0
|
%
|
|
Shares held by Sponsor and LionTree(1)
|
|
3,954,009
|
|
2.3
|
%
|
|
2,613,997
|
|
1.5
|
%
|
|
Management bonus shares
|
|
1,422,812
|
|
0.8
|
%
|
|
1,422,812
|
|
0.8
|
%
|
|
PIPE Offerings and Forward Purchase Investment
|
|
25,000,000
|
|
14.3
|
%
|
|
25,000,000
|
|
14.3
|
%
|
|
Pro Forma common stock outstanding at June 30, 2021
|
|
175,348,723
|
|
100
|
%
|
|
175,348,723
|
|
100
|
%
|
74
Table of Contents
Anticipated Accounting Treatment
The Business Combination will be accounted for as a reverse recapitalization in accordance with GAAP. Under this method of accounting, although Isos will acquire all of the outstanding equity interests of Bowlero in the Business Combination, Isos will be treated as the “acquired” company and Bowlero will be treated as the accounting acquirer for financial statement reporting purposes. Accordingly, the Business Combination will be treated as the equivalent of Bowlero issuing stock for the net assets of Isos, accompanied by a recapitalization. The net assets of Isos will be stated at historical cost, with no goodwill or other intangible assets recorded. Operations prior to the Business Combination will be those of Bowlero.
Bowlero has been determined to be the accounting acquirer based on evaluation of the following facts and circumstances under both the minimum and maximum redemption scenarios:
• Bowlero’s existing stockholders will have the greatest voting interest in the Post-Combination Company;
• Bowlero’s existing stockholders will have the ability to control decisions regarding election and removal of directors and officers of the Post-Combination Company;
• Bowlero will comprise the ongoing operations of the Post-Combination Company;
• Bowlero’s relevant measures, such as assets, revenues, cash flows and earnings, are higher than Isos’; and
• Bowlero’s existing senior management will be the senior management of the Post-Combination Company.
The unaudited pro forma condensed combined financial information has been prepared using the assumptions below with respect to the potential redemption for cash of Isos Class A ordinary shares:
• Assuming No Redemptions: This presentation assumes that no Public Stockholders of Isos will exercise redemption rights with respect to their Public Shares for a pro rata share of the funds in the trust account.
• Assuming Maximum Redemptions: This presentation assumes that stockholders holding 7,983,800 shares of Isos Class A ordinary shares will exercise their redemption rights for their pro rata share (approximately $10.00 per share) of the funds in the trust account. The Business Combination Agreement provides that consummating the Business Combination is conditioned on Isos having a minimum of $520,000 thousand of cash on hand (which is inclusive of the proceeds from the PIPE Offerings and the Forward Purchase Investment) whether in or outside the trust account after giving effect to Isos share redemptions. As Isos has received commitments in the PIPE Offerings and pursuant to the Forward Purchase Contract for an aggregate of $345,000 thousand and the trust account had balances of approximately $254,838 thousand, the maximum redemption scenario assumes all shares of Isos Class A ordinary shares held by the Public Stockholders, except those required to retain $520,000 thousand in the trust account. This scenario gives effect to Public Share redemptions of 7,983,800 Isos Class A ordinary shares for aggregate redemption payments of $79,838 thousand using a per share redemption price of $10.00 per share.
The following unaudited pro forma condensed combined balance sheet as of June 30, 2021 and the unaudited pro forma condensed combined statement of operations for the six months ended June 30, 2021 are based on the unaudited historical financial statements of Isos and Bowlero. The unaudited pro forma adjustments are based on information currently available, and assumptions and estimates underlying the unaudited pro forma adjustments are described in the accompanying notes. Actual results may differ materially from the assumptions used to present the accompanying unaudited pro forma condensed combined financial information and include immaterial rounding differences.
75
Table of Contents
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET
June 30, 2021
(in thousands, except share and per share data)
|
|
|
|
|
|
|
Assuming No
Redemptions
|
|
Assuming Maximum
Redemptions
|
|
|
|
As of June 30, 2021
|
|
As of June 30, 2021
|
|
As of June 30, 2021
|
|
|
|
Bowlero (Historical)
|
|
Isos (Historical)
|
|
Transaction Accounting
|
|
|
|
Pro Forma Combined
|
|
Accounting Adjustments
|
|
|
|
Pro Forma Combined
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
187,093
|
|
$
|
1,804
|
|
$
|
(186,162
|
)
|
|
(A)
|
|
$
|
209,616
|
|
$
|
(186,162
|
)
|
|
(A)
|
|
$
|
209,616
|
|
|
|
|
|
|
|
|
|
|
150,000
|
|
|
(B)
|
|
|
|
|
|
150,000
|
|
|
(B)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
254,842
|
|
|
(C)
|
|
|
|
|
|
254,842
|
|
|
(C)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,000
|
|
|
(D)
|
|
|
|
|
|
100,000
|
|
|
(D)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(80,022
|
)
|
|
(E)
|
|
|
|
|
|
(80,022
|
)
|
|
(E)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
95,000
|
|
|
(F)
|
|
|
|
|
|
95,000
|
|
|
(F)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,710
|
)
|
|
(H)
|
|
|
|
|
|
(3,710
|
)
|
|
(H)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(309,228
|
)
|
|
(K)
|
|
|
|
|
|
(229,390
|
)
|
|
(L)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(79,838
|
)
|
|
(L)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
3,300
|
|
|
0
|
|
|
|
|
|
|
|
|
3,300
|
|
|
|
|
|
|
|
|
3,300
|
|
Inventory
|
|
|
8,310
|
|
|
0
|
|
|
|
|
|
|
|
|
8,310
|
|
|
|
|
|
|
|
|
8,310
|
|
Prepaid expenses
|
|
|
8,056
|
|
|
196
|
|
|
|
|
|
|
|
|
8,252
|
|
|
|
|
|
|
|
|
8,252
|
|
Assets held for sale
|
|
|
686
|
|
|
0
|
|
|
|
|
|
|
|
|
686
|
|
|
|
|
|
|
|
|
686
|
|
Total current assets
|
|
|
207,445
|
|
|
2,000
|
|
|
20,720
|
|
|
|
|
|
230,164
|
|
|
20,720
|
|
|
|
|
|
230,164
|
|
Marketable securities held in Trust Account
|
|
|
0
|
|
|
254,842
|
|
|
(254,842
|
)
|
|
(C)
|
|
|
0
|
|
|
(254,842
|
)
|
|
(C)
|
|
|
0
|
|
Other assets
|
|
|
42,550
|
|
|
126
|
|
|
|
|
|
|
|
|
42,676
|
|
|
|
|
|
|
|
|
42,676
|
|
Forward purchase agreement
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Investments in joint venture
|
|
|
1,230
|
|
|
0
|
|
|
|
|
|
|
|
|
1,230
|
|
|
|
|
|
|
|
|
1,230
|
|
Deferred tax assets
|
|
|
0
|
|
|
0
|
|
|
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
0
|
|
Goodwill
|
|
|
726,156
|
|
|
0
|
|
|
|
|
|
|
|
|
726,156
|
|
|
|
|
|
|
|
|
726,156
|
|
Property and equipment, net
|
|
|
424,723
|
|
|
0
|
|
|
|
|
|
|
|
|
424,723
|
|
|
|
|
|
|
|
|
424,723
|
|
Property and equipment under cap lease, net
|
|
|
284,077
|
|
|
0
|
|
|
|
|
|
|
|
|
284,077
|
|
|
|
|
|
|
|
|
284,077
|
|
Intangible assets, net
|
|
|
96,057
|
|
|
0
|
|
|
|
|
|
|
|
|
96,057
|
|
|
|
|
|
|
|
|
96,057
|
|
TOTAL ASSETS
|
|
$
|
1,782,238
|
|
$
|
256,968
|
|
$
|
(234,122
|
)
|
|
|
|
$
|
1,805,084
|
|
$
|
(234,122
|
)
|
|
|
|
$
|
1,805,084
|
|
LIABILITIES, MEZZANINE EQUITY AND STOCKHOLDERS’ EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
29,489
|
|
$
|
0
|
|
$
|
|
|
|
|
|
$
|
29,489
|
|
|
|
|
|
|
|
$
|
$29,489
|
|
Accrued expenses
|
|
|
63,650
|
|
|
61
|
|
|
(2,290
|
)
|
|
(I)
|
|
|
61,421
|
|
|
(2,290
|
)
|
|
(I)
|
|
|
61,421
|
|
Due to related party
|
|
|
0
|
|
|
1
|
|
|
|
|
|
|
|
|
1
|
|
|
|
|
|
|
|
|
1
|
|
Current portion of long-term debt
|
|
|
5,058
|
|
|
0
|
|
|
|
|
|
|
|
|
5,058
|
|
|
|
|
|
|
|
|
5,058
|
|
Current obligation under capital
leases
|
|
|
0
|
|
|
0
|
|
|
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
0
|
|
Other current liabilities
|
|
|
9,176
|
|
|
0
|
|
|
|
|
|
|
|
|
9,176
|
|
|
|
|
|
|
|
|
9,176
|
|
Total current liabilities
|
|
|
107,373
|
|
|
62
|
|
|
(2,290
|
)
|
|
|
|
|
105,145
|
|
|
(2,290
|
)
|
|
|
|
|
105,145
|
|
Forward purchase agreement
liability
|
|
|
0
|
|
|
1,512
|
|
|
(1,458
|
)
|
|
(I)
|
|
|
54
|
|
|
(1,458
|
)
|
|
(I)
|
|
|
54
|
|
Warrant liability
|
|
|
0
|
|
|
13,966
|
|
|
1,077
|
|
|
(D)
|
|
|
15,043
|
|
|
1,077
|
|
|
(D)
|
|
|
15,043
|
|
Deferred underwriting discount
|
|
|
0
|
|
|
8,919
|
|
|
(8,919
|
)
|
|
(E)
|
|
|
0
|
|
|
(8,919
|
)
|
|
(E)
|
|
|
0
|
|
Long-term debt
|
|
|
870,528
|
|
|
0
|
|
|
(45,000
|
)
|
|
(A)
|
|
|
825,528
|
|
|
(45,000
|
)
|
|
(A)
|
|
|
825,528
|
|
Long-term obligations under capital leases
|
|
|
374,598
|
|
|
0
|
|
|
|
|
|
|
|
|
374,598
|
|
|
|
|
|
|
|
|
374,598
|
|
Earnout liability
|
|
|
0
|
|
|
0
|
|
|
175,312
|
|
|
(G)
|
|
|
175,312
|
|
|
175,312
|
|
|
(G)
|
|
|
175,312
|
|
Other long-term liabilities
|
|
|
87,749
|
|
|
0
|
|
|
|
|
|
|
|
|
87,749
|
|
|
|
|
|
|
|
|
87,749
|
|
Deferred tax liabilities
|
|
|
11,867
|
|
|
0
|
|
|
|
|
|
|
|
|
11,867
|
|
|
|
|
|
|
|
|
11,867
|
|
Total liabilities
|
|
|
1,452,115
|
|
|
24,460
|
|
|
118,722
|
|
|
|
|
|
1,595,297
|
|
|
118,722
|
|
|
|
|
|
1,595,297
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
76
Table of Contents
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET
June 30, 2021 — (Continued)
(in thousands, except share and per share data)
|
|
|
|
|
|
|
Assuming No
Redemptions
|
|
Assuming Maximum
Redemptions
|
|
|
|
As of June 30, 2021
|
|
As of June 30, 2021
|
|
As of June 30, 2021
|
|
|
|
Bowlero (Historical)
|
|
Isos (Historical)
|
|
Transaction Accounting
|
|
|
|
Pro Forma Combined
|
|
Accounting Adjustments
|
|
|
|
Pro Forma Combined
|
|
Temporary equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Class A common stock subject to possible redemption
|
|
|
0
|
|
|
|
227,507
|
|
|
(227,507
|
)
|
|
(M)
|
|
|
0
|
|
|
|
(79,838
|
)
|
|
(L)
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(147,670
|
)
|
|
(M)
|
|
|
|
|
|
Series A preferred stock – Bowlero
|
|
|
141,162
|
|
|
|
0
|
|
|
(141,162
|
)
|
|
(A)
|
|
|
205,500
|
|
|
|
(141,162
|
)
|
|
(A)
|
|
|
205,500
|
|
|
|
|
|
|
|
|
|
|
|
|
95,000
|
|
|
(F)
|
|
|
|
|
|
|
95,000
|
|
|
(F)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
105,000
|
|
|
(J)
|
|
|
|
|
|
|
105,000
|
|
|
(J)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,500
|
|
|
(N)
|
|
|
|
|
|
|
5,500
|
|
|
(N)
|
|
|
|
|
|
Common stock – Bowlero
|
|
|
464,827
|
|
|
|
0
|
|
|
(464,827
|
)
|
|
(M)
|
|
|
0
|
|
|
|
(464,827
|
)
|
|
(M)
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders’ equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock – Bowlero
|
|
|
1
|
|
|
|
0
|
|
|
(1
|
)
|
|
(K)
|
|
|
0
|
|
|
|
(1
|
)
|
|
(L)
|
|
|
0
|
|
|
Class A common stock
|
|
|
0
|
|
|
|
0
|
|
|
2
|
|
|
(B)
|
|
|
11
|
|
|
|
2
|
|
|
(B)
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
|
|
1
|
|
|
(D)
|
|
|
|
|
|
|
1
|
|
|
(D)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
0
|
|
|
(E)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6
|
|
|
(K)
|
|
|
|
|
|
|
6
|
|
|
(L)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2
|
|
|
(M)
|
|
|
|
|
|
|
2
|
|
|
(L)
|
|
|
|
|
|
Class B common stock
|
|
|
0
|
|
|
|
1
|
|
|
(1
|
)
|
|
(K)
|
|
|
(0
|
)
|
|
|
(1
|
)
|
|
(L)
|
|
|
(0
|
)
|
|
Class B common stock – new
|
|
|
0
|
|
|
|
0
|
|
|
6
|
|
|
(K)
|
|
|
6
|
|
|
|
6
|
|
|
(L)
|
|
|
6
|
|
|
Additional paid-in capital
|
|
|
0
|
|
|
|
3,118
|
|
|
149,998
|
|
|
(B)
|
|
|
273,533
|
|
|
|
149,998
|
|
|
(B)
|
|
|
273,534
|
|
|
|
|
|
|
|
|
|
|
|
|
99,999
|
|
|
(D)
|
|
|
|
|
|
|
99,999
|
|
|
(D)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,077
|
)
|
|
(D)
|
|
|
|
|
|
|
(1,077
|
)
|
|
(D)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(46,081
|
)
|
|
(E)
|
|
|
|
|
|
|
(46,081
|
)
|
|
(E)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(175,312
|
)
|
|
(G)
|
|
|
|
|
|
|
(175,312
|
)
|
|
(G)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,710
|
)
|
|
(H)
|
|
|
|
|
|
|
(3,710
|
)
|
|
(H)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(310,161
|
)
|
|
(K)
|
|
|
|
|
|
|
(230,325
|
)
|
|
(L)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
464,827
|
|
|
(M)
|
|
|
|
|
|
|
464,827
|
|
|
(M)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(105,000
|
)
|
|
(J)
|
|
|
|
|
|
|
(105,000
|
)
|
|
(J)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
227,505
|
|
|
(M)
|
|
|
|
|
|
|
147,670
|
|
|
(M)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(25,074
|
)
|
|
(I)
|
|
|
|
|
|
|
(25,074
|
)
|
|
(I)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5,500
|
)
|
|
(N)
|
|
|
|
|
|
|
(5,500
|
)
|
|
(N)
|
|
|
|
|
|
Retained earnings (Accumulated
deficit)
|
|
|
(266,463
|
)
|
|
|
1,881
|
|
|
(25,022
|
)
|
|
(E)
|
|
|
(259,859
|
)
|
|
|
(25,022
|
)
|
|
(E)
|
|
|
(259,859
|
)
|
|
|
|
|
|
|
|
|
|
|
|
923
|
|
|
(K)
|
|
|
|
|
|
|
923
|
|
|
(L)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28,822
|
|
|
(I)
|
|
|
|
|
|
|
28,822
|
|
|
(I)
|
|
|
|
|
|
Accumulated other comprehensive loss
|
|
|
(9,404
|
)
|
|
|
0
|
|
|
|
|
|
|
|
|
(9,404
|
)
|
|
|
|
|
|
|
|
|
(9,404
|
)
|
|
Total stockholders’ equity (deficit)
|
|
|
(275,866
|
)
|
|
|
5,000
|
|
|
275,153
|
|
|
|
|
|
4,287
|
|
|
|
275,154
|
|
|
|
|
|
4,288
|
|
|
TOTAL LIABILITIES, MEZZANINE EQUITY AND STOCKHOLDERS’ EQUITY
|
|
$
|
1,782,238
|
|
|
$
|
256,968
|
|
$
|
(234,122
|
)
|
|
|
|
$
|
1,805,084
|
|
|
$
|
(234,122
|
)
|
|
|
|
$
|
1,805,084
|
|
77
Table of Contents
Adjustments to Unaudited Pro Forma Condensed Combined Balance Sheet
(in thousands, except share and per share data)
(A) Reflects $186,162 payments of cash to redeem Bowlero Preferred Stock at Original Issue Price of $1,000 per share plus accumulated and unpaid dividends for $141,162 and an estimated payment of approximately $45,000 to reduce long-term debt.
(B) To record proceeds received from the Common PIPE Offering with the corresponding 15,000,000 shares of New Bowlero Class A common stock with a par value of $0.0001 per share at a price of $10.00 per share.
(C) Represents the transfer of marketable securities held in the ISOS Trust to cash.
(D) Reflects cash proceeds from the issuance in the Forward Purchase Contract to the Forward Purchase Investors with corresponding 10,000,000 shares of New Bowlero Class A common stock with a par value of $0.0001 per share at a price of $10.00 per share, and an adjustment to reflect the fair value of the Forward purchase agreement liability of $1,077. No adjustments are included in the statement of operations because any future movement in the warrants is unknown.
(E) Reflects $80,022 in payments of transactional related fees and expenses including legal, financial advisory, accounting and other professional fees. Payments include $8,919 for Isos’s existing deferred underwriting fee liability, $25,022 management bonuses reflected as an adjustment to Selling, General and Administrative expenses with the corresponding adjustment to accumulated deficit and $46,081 in transactional costs reflected as an adjustment to additional paid in capital.
(F) Reflects proceeds received and corresponding issuance of 95,000 shares of New Bowlero preferred stock with a par value of $0.0001 per share at a price of $1,000.00 per share.
(G) Represents the liability associated with the Earnout Consideration with the issuance of New Bowlero Class A common stock to be issued if the common stock trades above certain share price targets or if a change of control occurs prior to the end of the Earnout Period. The liability is accounted for under ASC 815 and the fair value of the Earnout Consideration was determined using a Monte Carlo Simulation model assuming a reference price of $10.00, a risk free rate of 0.90% and a volatility of 45%. The adjustment is recorded as a reduction of Additional paid-in capital since it would be considered an equity transaction (deemed dividend) if the contingency is met. No adjustments are included in the statement of operations because any future movement in the Earnout is unknown.
(H) Reflects $3,710 in cash payments related to an estimate of Bowlero vested stock options exercised.
(I) Reflects $28,822 adjustment to accumulated deficit for corresponding adjustments to the condensed combined statements of operations for (a) $2,290 reduction of interest expense for debt payment, (b) reversal of $1,458 in unrealized loss on change in fair value of Forward Purchase Contract and (c) $25,074 in stock compensation expense.
(J) Represents the conversion of Bowlero Common Stock having an aggregate value of $105,000 based on a price of $10.00 per share into 105,000 shares of New Bowlero preferred stock, each having an initial liquidation preference of $1,000.00.
(K) In Scenario 1, which assumes no Isos stockholders exercise their redemption rights, the redeemable common stock would be transferred to permanent equity. Reflects the proceeds and conversion of shares of Isos ordinary shares into New Bowlero Class A Common Stock, on a 1-to-1 basis, upon consummation of the merger, excluding the impact of 805,639 sponsor shares transferred equally to existing Bowlero shareholders as merger consideration. In exchange for their equity interests, Bowlero investors will receive 112,956,514 shares of New Bowlero Class A common stock with a par value of $0.0001 per share and 62,392,209 shares of New Bowlero Class B common stock with a par value of $0.0001 per share, as well as the cash consideration to Bowlero stockholders of $309,228.
78
Table of Contents
(L) In Scenario 2, which assumes the same facts as described in Items A through J above, but also assumes the maximum number of shares are redeemed for cash by Isos stockholders, $79,838 would be paid to redeeming stockholders. The $79,838, or 7,983,800, shares of New Bowlero Class A common stock at a redemption price of $10.00 per share, represents the maximum redemption amount to ensure a minimum consolidated cash balance of $520,000, taking into account the $250,000 gross proceeds from the Common PIPE Offering and the Forward Purchase Investment, $254,838 held in the trust account and $95,000 gross proceeds from the Preferred PIPE Offering, but before giving effect to payments occurring at the Closing (including payment of estimated transaction expenses, payment of certain Bowlero indebtedness and payment of the cash portion of the merger consideration to the Bowlero stockholders). Reflects the proceeds and conversion of Isos ordinary shares into shares of New Bowlero Class A common stock, on a 1-to-1 basis, at the consummation of the merger, excluding the impact of 2,145,510 sponsor shares transferred equally to existing Bowlero shareholders as merger consideration. In exchange for equity interests in Bowlero, investors will receive 112,286,508 shares of New Bowlero Class A common stock with a par value of $0.0001 per share and 63,062,215 shares of New Bowlero Class B common stock with a par value of $0.0001 per share, as well as the cash consideration to Bowlero stockholders of $229,390.
(M) Reflects the reclassification of $464,827 in Bowlero Common Stock subject to possible redemption to permanent equity. Accordingly, under Scenario 1, the $227,507 adjustment reflects a decrease in Isos Class A ordinary shares subject to possible redemption with a corresponding increase to New Bowlero Class A common stock and Additional paid-in capital; and under Scenario 2, the $147,670 adjustment after the $79,838 maximum redemption detailed in note (L) above reflects the decrease in Isos Class A ordinary shares subject to possible redemption with a corresponding increase to New Bowlero Class A common stock and additional paid-in capital.
(N) Reflects the adjustment for dividends with New Bowlero preferred stock. Since the dividend is payment-in-kind, the amount of dividends not paid is added to the carrying amount of preferred stock in the pro forma condensed balance sheet.
79
Table of Contents
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
FOR SIX MONTHS ENDED JUNE 30, 2021
(in thousands, except share and per share data)
|
|
|
For the Six Months ended June 30, 2021
|
|
Assuming No Redemptions and
Maximum Redemptions
|
|
|
|
|
|
For the Six
Months Ended
June 30, 2021
|
|
|
|
(1)
Bowlero
(Historical)
|
|
(1)
Isos
(Historical)
|
|
Transaction
|
|
|
|
|
|
Accounting
Adjustments
|
|
Pro Forma
Combined
|
|
|
Revenue
|
|
$
|
271,315
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
|
|
$
|
271,315
|
|
|
|
|
Cost of Goods Sold
|
|
|
214,714
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
214,714
|
|
|
|
|
Gross profit
|
|
|
56,601
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
56,601
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expenses
|
|
|
48,711
|
|
|
|
475
|
|
|
|
25,074
|
|
|
(AA)
|
|
|
99,282
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25,022
|
|
|
(BB)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from operations
|
|
|
7,890
|
|
|
|
(475
|
)
|
|
|
(50,096
|
)
|
|
|
|
|
(42,681
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income (expense)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income (expense)
|
|
|
(45,431
|
)
|
|
|
4
|
|
|
|
2,290
|
|
|
(CC)
|
|
|
(43,137
|
)
|
|
|
|
Asset impairment
|
|
|
(386
|
)
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
(386
|
)
|
|
|
|
Loss on disposal of assets
|
|
|
(95
|
)
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
(95
|
)
|
|
|
|
Income from joint venture
|
|
|
166
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
166
|
|
|
|
|
Management fee income
|
|
|
39
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
39
|
|
|
|
|
Warrant issuance costs
|
|
|
0
|
|
|
|
(639
|
)
|
|
|
0
|
|
|
|
|
|
(639
|
)
|
|
|
|
Unrealized gain (loss) on change in fair value of FPA
|
|
|
0
|
|
|
|
(1,458
|
)
|
|
|
1,458
|
|
|
(DD)
|
|
|
0
|
|
|
|
|
Unrealized loss on change in fair value of warrants
|
|
|
0
|
|
|
|
4,455
|
|
|
|
0
|
|
|
|
|
|
4,455
|
|
|
|
|
Total other income (expense)
|
|
|
(45,707
|
)
|
|
|
2,362
|
|
|
|
3,748
|
|
|
|
|
|
(39,597
|
)
|
|
|
|
Loss before income taxes
|
|
|
(37,817
|
)
|
|
|
1,886
|
|
|
|
(46,347
|
)
|
|
|
|
|
(82,278
|
)
|
|
|
|
Income tax expense (benefit)
|
|
|
(1,265
|
)
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
(1,265
|
)
|
|
|
|
Net loss
|
|
|
(36,552
|
)
|
|
|
1,886
|
|
|
|
(46,347
|
)
|
|
|
|
|
(81,013
|
)
|
|
|
|
Preferred stock dividends
|
|
|
(4,029
|
)
|
|
|
0
|
|
|
|
(1,470
|
)
|
|
(EE)
|
|
|
(5,500
|
)
|
|
|
|
Net loss attributable to common stockholders
|
|
|
(40,581
|
)
|
|
|
1,886
|
|
|
|
(47,817
|
)
|
|
|
|
|
(86,512
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assuming No
Redemptions
|
|
|
|
Weighted average shares outstanding – common stock
|
|
|
5,911,428
|
|
|
|
8,619,700
|
|
|
|
|
|
|
175,348,723
|
|
|
(FF)
|
|
Net loss per share – basic and diluted
|
|
$
|
(6.86
|
)
|
|
$
|
0.22
|
|
|
|
|
|
$
|
(0.49
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assuming Maximum Redemptions
|
|
|
|
Weighted average shares outstanding – common stock
|
|
|
5,911,428
|
|
|
|
8,619,700
|
|
|
|
|
|
|
175,348,723
|
|
|
(FF)
|
|
Net loss per share – basic and diluted
|
|
$
|
(6.86
|
)
|
|
$
|
0.22
|
|
|
|
|
|
$
|
(0.49
|
)
|
|
|
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Adjustments to Unaudited Pro Forma Condensed Combined Statements of Operations
(in thousands, except share and per share data)
(AA) Represents an adjustment to record $25,074 in stock compensation expense associated with performance based equity awards granted under the Bowlero 2017 Stock Incentive Plan to certain members of management vesting with the occurrence of the merger. The fair value was determined with respect to the 1,008,580 options using Black-Scholes with interest rate of 1.68% and volatility of 58.3% and no dividend yield. For further details on the equity awards, see “The Merger — Interests of Executive Officers in the Merger.”
(BB) Represents an adjustment to record $25,022 in management bonuses.
(CC) Represents an adjustment to reduce interest expense by $2,290 for debt payment
(DD) Represents an adjustment to reverse $1,458 unrealized loss on change in fair value of the Forward Purchase Contract.
(EE) Represents $1,470 net adjustment increasing Preferred stock dividends by eliminating $4,029 in dividends on Old Series A Preferred Stock redeemed at Close and to record $5,500 in dividends on New Bowlero Series A Preferred Stock. The dividend rate on the New Series A Preferred Stock is 5.5% and since the dividend on preferred stock is not payable unless declared by the board of directors of the New Bowlero, the dividend increases the carry value of preferred stock in the pro forma condensed balance sheet.
(FF) The calculation of weighted average shares outstanding for basic and diluted net loss per share assumes that the Isos’ IPO occurred as of January 1, 2021. In addition, as the merger is being reflected as if it had occurred on this date, the calculation of weighted average shares outstanding for basic and diluted net loss per share assumes that the shares have been outstanding for the entire period presented. This calculation is retroactively adjusted to eliminate the number of shares redeemed in the merger for the entire period.
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NOTES TO UNAUDITED PRO FORMA CONDENSED
COMBINED FINANCIAL INFORMATION
1. Basis of Presentation
The Business Combination will be accounted for as a reverse recapitalization in accordance with GAAP as Bowlero has been determined to be the accounting acquirer, primarily due to the fact that Bowlero Stockholders will continue to control the Post-Combination Company. Under this method of accounting, although Isos will acquire all of the outstanding equity interests of Bowlero in the Business Combination, Isos will be treated as the “acquired” company for financial reporting purposes. Accordingly, the Business Combination will be treated as the equivalent of Bowlero issuing stock for the net assets of Isos, accompanied by a recapitalization. The net assets of Isos will be stated at historical cost, with no goodwill or other intangible assets recorded. Operations prior to the Business Combination will be those of Bowlero.
The unaudited pro forma condensed combined balance sheet as of June 30, 2021 assumes that the Business Combination, the PIPE Offerings and Forward Purchase Investment occurred on June 30, 2021. The unaudited pro forma condensed combined statement of operations for the six months ended June 30, 2021 presents pro forma effect to the Business Combination and PIPE financing as if it had been completed on January 1, 2021.
The unaudited pro forma condensed combined balance sheet as of June 30, 2021 has been prepared using, and should be read in conjunction with, the following:
• Isos’ unaudited balance sheet as of June 30, 2021 and the related notes for the period ended June 30, 2021, included elsewhere in this proxy statement/prospectus; and
• Bowlero’s audited balance sheet as of June 27, 2021 and the related notes for the period ended June 27, 2021, included elsewhere in this proxy statement/prospectus.
The unaudited pro forma condensed combined statement of operations for the six months ended June 30, 2021 has been prepared using, and should be read in conjunction with, the following:
• Isos’ unaudited statement of operations for the six months ended June 30, 2021 and the related notes, included elsewhere in this proxy statement/prospectus; and
• Bowlero’s unaudited statement of operations for the six months ended June 27, 2021 were derived from the audited statement of operations for the year ended June 27, 2021 and the related notes, included elsewhere in this proxy statement/prospectus.
The unaudited pro forma condensed combined financial information has been prepared using the assumptions below with respect to the potential redemption into cash of Isos Class A ordinary shares:
• Assuming No Redemptions: This presentation assumes that no Public Stockholders of Isos will exercise redemption rights with respect to their Public Shares for a pro rata share of the funds in the trust account.
• Assuming Maximum Redemptions: This presentation assumes that stockholders holding 7,983,800 shares of Isos Class A ordinary shares will exercise their redemption rights for their pro rata share (approximately $10.00 per share) of the funds in the trust account. The Business Combination Agreement provides that consummating the Business Combination is conditioned on Isos having a minimum of $520,000 thousand of cash on hand (which is inclusive of the proceeds from the PIPE Offerings and the Forward Purchase Investment) whether in or outside the trust account after giving effect to Isos share redemptions. As Isos has received PIPE commitments and commitments of the Forward Purchase Contract of an aggregate of $345,000 thousand and the trust account had balances of approximately $254,838 thousand, the maximum redemption scenario assumes all shares of Isos Class A ordinary shares held by the Public Stockholders, except those required to retain $520,000 thousand in the trust account. This scenario gives effect to Public Share redemptions of 7,983,800 Isos Class A ordinary shares for aggregate redemption payments of $79,838 thousand using a per share redemption price of $10.00 per share.
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Management has made significant estimates and assumptions in its determination of the pro forma adjustments. As the unaudited pro forma condensed combined financial information has been prepared based on these preliminary estimates, the final amounts recorded may differ materially from the information presented.
The unaudited pro forma condensed combined financial information does not give effect to any anticipated synergies, operating efficiencies, tax savings or cost savings that may be associated with the Business Combination.
The pro forma adjustments reflecting the consummation of the Business Combination are based on certain currently available information and certain assumptions and methodologies that Isos believes are reasonable under the circumstances. The unaudited condensed pro forma adjustments, which are described in the accompanying notes, may be revised as additional information becomes available and is evaluated. Therefore, it is likely that the actual adjustments will differ from the pro forma adjustments and it is possible the difference may be material. Isos believes that its assumptions and methodologies provide a reasonable basis for presenting all of the significant effects of the Business Combination based on information available to management at this time and that the pro forma adjustments give appropriate effect to those assumptions and are properly applied in the unaudited pro forma condensed combined financial information.
The unaudited pro forma condensed combined financial information is not necessarily indicative of what the actual results of operations and financial position would have been had the Business Combination taken place on the dates indicated, nor are they indicative of the future consolidated results of operations or financial position of the Post-Combination Company. They should be read in conjunction with the historical financial statements and notes thereto of Isos and Bowlero.
2. Accounting Policies
Upon consummation of the Business Combination, management will perform a comprehensive review of the two entities’ accounting policies. As a result of the review, management may identify differences between the accounting policies of the two entities which, when conformed, could have a material impact on the financial statements of the Post-Combination Company. Based on its initial analysis, management did not identify any differences that would have a material impact on the unaudited pro forma condensed combined financial information. As a result, the unaudited pro forma condensed combined financial information does not assume any differences in accounting policies.
3. Adjustments to Unaudited Pro Forma Condensed Combined Financial Information
The unaudited pro forma condensed combined financial information has been prepared to illustrate the effect of the Business Combination and has been prepared for informational purposes only. The historical financial statements have been adjusted in the unaudited pro forma condensed combined financial information to give pro forma effect to events that are expected to have a continuing impact on the results of the Post-Combination Company.
The following unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X as amended by the final rule, Release No. 33-10786 “Amendments to Financial Disclosures about Acquired and Disposed Businesses” to depict the accounting for the transaction (“Transaction Accounting Adjustments”) and present the reasonably estimable synergies and other transaction effects that have occurred or are reasonably expected to occur (“Management’s Adjustments”). Isos has elected not to present Management’s Adjustments and is only be presenting Transaction Accounting Adjustments in the unaudited pro forma condensed combined financial information.
The unaudited historical financial statements have been adjusted in the unaudited pro forma condensed combined financial information to give pro forma effect to transaction accounting adjustments that reflect the accounting for the transaction under GAAP. Bowlero and Isos have not had any historical relationship prior to the Business Combination. Accordingly, no pro forma adjustments were required to eliminate activities between the companies.
The pro forma combined provision for income taxes does not necessarily reflect the amounts that would have resulted had the Post-Combination Company filed consolidated income tax returns during the periods presented.
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The pro forma basic and diluted earnings per share amounts presented in the unaudited pro forma condensed combined statement of operations are based upon the number of the Post-Combination Company’s shares outstanding, assuming the Business Combination occurred on January 1, 2021.
The unaudited pro forma condensed combined financial information has been prepared assuming two alternative levels of redemption for cash of Isos Class A ordinary shares for the six months ended June 30, 2021:
|
|
|
For six months ended
June 30, 2021
|
|
(in thousands, except share and per share data)
|
|
Assuming
No
Redemptions
|
|
Assuming
Maximum
Redemptions
|
|
Pro forma net loss
|
|
$
|
(86,512
|
)
|
|
$
|
(86,512
|
)
|
|
Weighted average shares outstanding of common stock
|
|
|
175,348,723
|
|
|
|
175,348,723
|
|
|
Net loss per share (basic and diluted)
|
|
|
(0.49
|
)
|
|
$
|
(0.49
|
)
|
|
Stockholders’ equity per share – basic and diluted
|
|
$
|
0.02
|
|
|
$
|
0.02
|
|
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EXTRAORDINARY GENERAL MEETING OF ISOS SHAREHOLDERS
General
Isos is furnishing this proxy statement/prospectus to its shareholders as part of the solicitation of proxies by the Isos Board for use at the Extraordinary General Meeting to be held on , 2021 and at any adjournment or postponement thereof. This proxy statement/prospectus provides Isos’s shareholders with information they need to know to be able to vote or direct their vote to be cast at the Extraordinary General Meeting.
Date, Time and Place
The Extraordinary General Meeting will be held on , at Eastern Time. For the purposes of Cayman Islands law and the amended and restated memorandum and articles of association of Isos, the physical location of the extraordinary general meeting shall be at the offices of Hughes Hubbard & Reed LLP, at One Battery Park Plaza, New York, NY 10004, or you or your proxyholder will be able to attend and vote at the extraordinary general meeting online by visiting and using a control number assigned by Continental Stock Transfer.
Purpose of the Isos Extraordinary General Meeting
At the extraordinary general meeting, Isos is asking holders of ordinary shares to:
• consider and vote upon a proposal to approve by ordinary resolution and adopt the Business Combination Agreement, by and among Isos and Bowlero, a copy of which is attached to this proxy statement/prospectus statement as Annex A, which provides for, among other things, the merger of Bowlero with and into Isos (the “Merger”), with Isos surviving the Merger, in accordance with the terms and subject to the conditions of the Business Combination Agreement as more fully described elsewhere in this proxy statement/prospectus (the “BCA Proposal”);
• consider and vote upon a proposal to approve by special resolution, the change of Isos’s jurisdiction of incorporation by deregistering as an exempted company in the Cayman Islands and domesticating as a corporation incorporated under the laws of the State of Delaware (the “Domestication Proposal”);
• consider and vote upon the following separate proposals (collectively, the “Organizational Documents Proposals”) to approve by special resolution, the following material differences between Isos’s Cayman Constitutional Documents and the Proposed Certificate of Incorporation and the Proposed Bylaws of Isos Acquisition Corporation (a corporation incorporated in the State of Delaware, and the filing with and acceptance by the Secretary of State of Delaware of the certificate of domestication in accordance with Section 388 of the DGCL):
• to authorize the change in the authorized capital stock of Isos from 300,000,000 Isos Class A ordinary shares, 20,000,000 Isos Class B ordinary shares, and 1,000,000 preference shares, par value $0.0001 per share, to 2,400,000,000 shares of capital stock of Isos, consisting of 2,000,000,000 shares of New Bowlero Class A common stock, 200,000,000 shares of New Bowlero Class B common stock, and 200,000,000 shares Bowlero Preferred Stock (“Organizational Documents Proposal 3A”);
• to authorize the board of directors of Bowlero to issue any or all shares of Bowlero Preferred Stock in one or more classes or series, with such terms and conditions as may be expressly determined by the Board and as may be permitted by the DGCL;
• to authorize adopting Delaware as the exclusive forum for certain stockholder litigation;
• to authorize electing not to be governed by Section 203 of the DGCL relating to takeovers by interested stockholders and, instead, be governed by a provision substantially similar to Section 203 of the DGCL;
• to approve provisions providing that the affirmative vote of at least two-thirds of the voting power of all the then-outstanding shares of capital stock entitled to vote generally in the election of directors will be required for stockholders to adopt, amend, or repeal certain provisions of the Proposed Certificate of Incorporation or the Proposed Bylaws;
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• to approve provisions permitting the removal of a director only upon the affirmative vote of the holders of at least two-thirds in voting power of all the then-outstanding shares of stock of the Company entitled to vote thereon, voting together as a single class, if New Bowlero Class B common stock represents less than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders;
• to approve provisions entitling Holders of shares of New Bowlero Class A common stock to cast one vote per share of New Bowlero Class A common stock and holders of shares of New Bowlero Class B common stock to cast 10 votes per share of New Bowlero Class B common stock on each matter properly submitted to New Bowlero’s stockholders entitled to vote, as opposed to each Isos Class A ordinary share and Isos Class B ordinary share being entitled to one vote per share on each matter properly submitted to Isos’s shareholders entitled to vote; and
• to provide for certain additional changes, including, among other things, (i) changing the corporate name from “Isos Acquisition Corporation” to “Bowlero Corp.”, (ii) making Bowlero’s corporate existence perpetual, and (iii) removing certain provisions related to ISOS’s status as a blank check company that will no longer be applicable upon consummation of the Transactions, all of which Isos’s board of directors believes is necessary to adequately address the needs of Bowlero after the Transactions;
• consider and vote upon a proposal to approve by ordinary resolution, assuming the BCA Proposal, the Domestication Proposal and the Organizational Documents Proposals are approved, to elect nine directors, who, upon consummation of the Business Combination, will be the directors of New Bowlero (the “Director Election Proposal”);
• consider and vote upon a proposal to approve by ordinary resolution for purposes of complying with the applicable provisions of the NYSE, the issuance of (a) New Bowlero Class A common stock and New Bowlero preferred stock to the PIPE Investors, (b) shares of New Bowlero common stock and New Bowlero preferred stock to the Bowlero Stockholders pursuant to the Business Combination Agreement, (c) New Bowlero Class A common stock issuable upon conversion of the New Bowlero preferred stock to be issued pursuant to the Business Combination Agreement or to be issued and sold in the Preferred PIPE Offering, and (d) shares of New Bowlero Class A common stock to the Forward Purchase Contract investors (the “Stock Issuance Proposal”);
• consider and vote upon a proposal to approve by ordinary resolution the Bowlero Corp. 2021 Omnibus Incentive Plan (the “Incentive Plan Proposal”);
• consider and vote upon a proposal to approve by ordinary resolution the Bowlero Corp. Employee Stock Purchase Plan (the “ESPP Proposal”); and
• consider and vote upon a proposal to approve the adjournment of the extraordinary general meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event that there are insufficient votes for the approval of one or more proposals at the extraordinary general meeting (the “Adjournment Proposal”).
Each of the Condition Precedent Proposals is cross-conditioned on the approval of each other. The Adjournment Proposal is not conditioned upon the approval of any other proposal set forth in this proxy statement/prospectus.
Recommendation of the Isos Board
The Isos Board believes that the BCA Proposal and the other proposals to be presented at the extraordinary general meeting are in the best interest of Isos’s shareholders and unanimously recommends that its shareholders vote “FOR” the BCA Proposal, “FOR” the Domestication Proposal, “FOR” each of the separate Organizational Documents Proposals, “FOR” the Director Election Proposal, “FOR” the Stock Issuance Proposal, “FOR” the Incentive Plan Proposal, “FOR” the ESPP Proposal and “FOR” the Adjournment Proposal, in each case, if presented to the extraordinary general meeting.
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The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
Record Date; Who is Entitled to Vote
Isos’s shareholders will be entitled to vote or direct votes to be cast at the extraordinary general meeting if they owned ordinary shares at the close of business on , 2021, which is the “record date” for the extraordinary general meeting. Shareholders will have one vote for each ordinary share owned at the close of business on the record date. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker to ensure that votes related to the shares you beneficially own are properly counted. Isos’s warrants do not have voting rights. As of the close of business on the record date, there were 31,854,625 ordinary shares issued and outstanding, of which 25,483,700 were issued and outstanding public shares.
The Sponsor and LionTree have agreed to, among other things, vote in favor of the Business Combination Agreement and the transactions contemplated thereby, in each case, subject to the terms and conditions contemplated by the Sponsor Support Agreement, and waive their redemption rights in connection with the consummation of the Business Combination with respect to any ordinary shares held by them. The ordinary shares held by the Sponsor will be excluded from the pro rata calculation used to determine the per-share redemption price. As of the date of this proxy statement/prospectus, the Sponsor and LionTree collectively own 20.0% of the issued and outstanding ordinary shares.
Quorum
A quorum of Isos shareholders is necessary to hold a valid meeting. A quorum will be present at the extraordinary general meeting if the holders of a majority of the issued and outstanding ordinary shares entitled to vote at the extraordinary general meeting are represented in person or by proxy. As of the record date for the extraordinary general meeting, 15,927,313 ordinary shares would be required to achieve a quorum.
Abstentions and Broker Non-Votes
Proxies that are marked “abstain” and proxies relating to “street name” shares that are returned to Isos but marked by brokers as “not voted” will be treated as shares present for purposes of determining the presence of a quorum on all matters, but they will not be treated as shares voted on the matter. Under the rules of various national and regional securities exchanges, your broker, bank, or nominee cannot vote your shares with respect to non-discretionary matters unless you provide instructions on how to vote in accordance with the information and procedures provided to you by your broker, bank, or nominee. We believe all the proposals presented to the shareholders will be considered non-discretionary and therefore your broker, bank, or nominee cannot vote your shares without your instruction.
Vote Required for Approval
The approval of the BCA Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. The BCA Proposal is conditioned on the approval of the other Condition Precedent Proposals. Therefore, if any of the other Condition Precedent Proposals are not approved, the BCA Proposal will have no effect, even if approved by holders of ordinary shares.
The approval of the Domestication Proposal requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. The Domestication Proposal is conditioned on the approval of the other Condition Precedent Proposals. Therefore, if any of the other Condition Precedent Proposals are not approved, the Domestication Proposal will have no effect, even if approved by holders of ordinary shares.
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The approval of each of the Organizational Documents Proposals requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Each of the Organizational Documents Proposals is conditioned on the approval of the other Condition Precedent Proposals. Therefore, if any of the other Condition Precedent Proposals are not approved, the Organizational Document Proposals will have no effect, even if approved by holders of ordinary shares.
The approval of the Director Election Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. The Director Election Proposal is conditioned on the approval of is conditioned on the approval of the other Condition Precedent Proposals. Therefore, if any of the other Condition Precedent Proposals are not approved, the Director Election Proposal will have no effect, even if approved by holders of ordinary shares.
The approval of the Stock Issuance Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. The Stock Issuance Proposal is conditioned on the approval of the other Condition Precedent Proposals. Therefore, if any of the other Condition Precedent Proposals are not approved, the Stock Issuance Proposal will have no effect, even if approved by holders of ordinary shares.
The approval of the Incentive Plan Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. The Incentive Plan Proposal is conditioned on the approval of the other Condition Precedent Proposals. Therefore, if any of the other Condition Precedent Proposals are not approved, the Incentive Plan Proposal will have no effect, even if approved by holders of ordinary shares.
The approval of the ESPP Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. The ESPP Proposal is conditioned on the approval of the other Condition Precedent Proposals. Therefore, if any of the other Condition Precedent Proposals are not approved, the ESPP Proposal will have no effect, even if approved by holders of ordinary shares.
The approval of the Adjournment Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. The Adjournment Proposal is not conditioned upon any other proposal.
Voting Your Shares
Each Isos ordinary share that you own in your name entitles you to one vote. Your proxy card shows the number of ordinary shares that you own. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker to ensure that votes related to the shares you beneficially own are properly counted.
There are two ways to vote your ordinary shares at the extraordinary general meeting:
• You can vote by signing and returning the enclosed proxy card. If you vote by proxy card, your “proxy,” whose name is listed on the proxy card, will vote your shares as you instruct on the proxy card. If you sign and return the proxy card but do not give instructions on how to vote your shares, your shares will be voted as recommended by the Isos Board “FOR” the BCA Proposal, “FOR” the Domestication Proposal, “FOR” each of the separate Organizational Documents Proposals, “FOR” the Director Election Proposal, “FOR” the Stock Issuance Proposal, “FOR” the Incentive Plan Proposal, “FOR” the ESPP Proposal and “FOR” the Adjournment Proposal, in each case, if presented to the extraordinary general meeting. Votes received after a matter has been voted upon at the extraordinary general meeting will not be counted.
• You can attend the extraordinary general meeting and vote in person, or virtually and vote online. However, if your shares are held in the name of your broker, bank or another nominee, you must get a valid legal proxy from the broker, bank or other nominee. That is the only way Isos can be sure that the broker, bank or nominee has not already voted your shares.
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Revoking Your Proxy
If you are an Isos shareholder and you give a proxy, you may revoke it at any time before it is exercised by doing any one of the following:
• you may send another proxy card with a later date;
• you may notify Isos’s Secretary in writing before the extraordinary general meeting that you have revoked your proxy; or
• you may attend the extraordinary general meeting in person or virtually, revoke your proxy, and vote in person or online, as indicated above.
Who Can Answer Your Questions About Voting Your Shares
If you are a shareholder and have any questions about how to vote or direct a vote in respect of your ordinary shares, you may call Morrow Sodali LLC, Isos’s proxy solicitor, by calling (800) 662-5200 or banks and brokers can call collect at (203) 658-9400, or by emailing ISOS@info.morrowsodali.com.
Redemption Rights
Pursuant to the Cayman Constitutional Documents, a public shareholder may request of Isos that all or a portion of its public shares be redeemed for cash if the Business Combination is consummated. As a holder of public shares, you will be entitled to receive cash for any public shares to be redeemed only if you:
• (a) hold public shares, or (b) if you hold public shares through units, you elect to separate your units into the underlying public shares and public warrants prior to exercising your redemption rights with respect to the public shares;
• submit a written request to Continental, Isos’s transfer agent, that all or a portion of your public shares be redeemed for cash; and
• deliver your public shares to Continental, Isos’s transfer agent, physically or electronically through DTC.
Holders must complete the procedures for electing to redeem their public shares in the manner described above prior to , Eastern Time, on , 2021 (two business days before the extraordinary general meeting) in order for their shares to be redeemed.
Immediately following the Domestication and the consummation of the Business Combination, New Bowlero shall satisfy the exercise of redemption rights by redeeming the corresponding public shares issued to the public shareholders that validly exercised their redemption rights.
Holders of units must elect to separate the units into the underlying public shares and public warrants prior to exercising redemption rights with respect to the public shares. If holders hold their units in an account at a brokerage firm or bank, holders must notify their broker or bank that they elect to separate the units into the underlying public shares and public warrants, or if a holder holds units registered in its own name, the holder must contact Continental, Isos’s transfer agent, directly and instruct them to do so. Public shareholders may elect to redeem all or a portion of the public shares held by them, regardless of if or how they vote in respect of the BCA Proposal. If the Business Combination is not consummated, the public shares will be returned to the respective holder, broker or bank. If the Business Combination is consummated, and if a public shareholder properly exercises its right to redeem all or a portion of the public shares that it holds and timely delivers its shares to Continental, Isos’s transfer agent, its public shares will be redeemed for a per-share price, payable in cash, equal to the pro rata portion of the trust account, calculated as of two business days prior to the consummation of the Business Combination. For illustrative purposes, as of August 31, 2021, this would have amounted to approximately $10.00 per issued and outstanding public share. If a public shareholder exercises its redemption rights in full, then it will be electing to exchange its public shares for cash and will no longer own public shares.
If you hold the shares in “street name,” you will have to coordinate with your broker to have your shares certificated or delivered electronically. Public shares that have not been tendered (either physically or electronically) in accordance with these procedures will not be redeemed for cash. There is a nominal cost associated with
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this tendering process and the act of certificating the shares or delivering them through DTC’s DWAC (deposit withdrawal at custodian) system. The transfer agent will typically charge the tendering broker $100 and it would be up to the broker whether or not to pass this cost on to the redeeming shareholder. In the event the proposed business combination is not consummated this may result in an additional cost to shareholders for the return of their shares.
Any request for redemption, once made by a holder of public shares, may be withdrawn at any time up to the time the vote is taken with respect to the BCA Proposal at the extraordinary general meeting. If you deliver your shares for redemption to Continental, Isos’s transfer agent, and later decide prior to the extraordinary general meeting not to elect redemption, you may request that Isos’s transfer agent return the shares (physically or electronically) to you.
Any corrected or changed written exercise of redemption rights must be received by Continental, Isos’s transfer agent, prior to the vote taken on the BCA Proposal at the extraordinary general meeting. No request for redemption will be honored unless the holder’s public shares have been delivered (either physically or electronically) to Continental, Isos’s transfer agent, at least two business days prior to the vote at the extraordinary general meeting.
Notwithstanding the foregoing, a public shareholder, together with any affiliate of such public shareholder or any other person with whom such public shareholder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Exchange Act), will be restricted from redeeming its public shares with respect to more than an aggregate of 15% of the public shares. Accordingly, if a public shareholder, alone or acting in concert or as a group, seeks to redeem more than 15% of the public shares, then any such shares in excess of that 15% limit would not be redeemed for cash.
The Sponsor and LionTree have agreed to, among other things, vote in favor of the Business Combination Agreement and the transactions contemplated thereby, in each case, subject to the terms and conditions contemplated by the Sponsor Support Agreement, and waive their redemption rights in connection with the consummation of the Business Combination with respect to any ordinary shares held by them. As of the date of this proxy statement/prospectus, the Sponsor and LionTree collectively own 20.0% of the issued and outstanding ordinary shares.
Holders of the warrants will not have redemption rights with respect to the warrants.
Prior to exercising redemption rights, public shareholders should verify the market price of the public shares as they may receive higher proceeds from the sale of their public shares in the public market than from exercising their redemption rights if the market price per share is higher than the redemption price. Isos cannot assure its shareholders that they will be able to sell their public shares in the open market, even if the market price per share is higher than the redemption price stated above, as there may not be sufficient liquidity in its securities when its shareholders wish to sell their shares.
Appraisal Rights
Neither Isos’s shareholders nor Isos’s warrant holders have appraisal rights in connection with the Business Combination or the Domestication under the Cayman Islands Companies Act or under the DGCL.
Proxy Solicitation Costs
Isos is soliciting proxies on behalf of its board of directors. This solicitation is being made by mail but also may be made by telephone or in person. Isos and its directors, officers and employees may also solicit proxies in person, by telephone or by other electronic means. Isos will bear the cost of the solicitation.
Isos has hired Morrow Sodali LLC to assist in the proxy solicitation process. Isos will pay that firm a fee of $35,000 plus disbursements. Such fee will be paid with non-trust account funds.
Isos will ask banks, brokers and other institutions, nominees and fiduciaries to forward the proxy materials to their principals and to obtain their authority to execute proxies and voting instructions. Isos will reimburse them for their reasonable expenses.
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THE BCA PROPOSAL
General
Holders of ordinary shares of Isos are being asked to approve and adopt the Business Combination Agreement and the Business Combination. Isos stockholders should read carefully this proxy statement/prospectus in its entirety for more detailed information concerning the Business Combination Agreement, which is attached as Annex A to this proxy statement/prospectus. Please see the section titled “— The Business Combination Agreement” below, for additional information and a summary of certain terms of the Business Combination Agreement. You are urged to read carefully the Business Combination Agreement in its entirety before voting on this proposal.
Because Isos is holding a stockholder vote on the Business Combination, Isos may consummate the Business Combination only if it is approved by the affirmative vote of the holders of a majority of the issued and outstanding ordinary shares of Isos as of the record date at the extraordinary general meeting.
The Business Combination Agreement
The following is a summary of the material terms of the Business Combination Agreement. A copy of the Business Combination Agreement is attached as Annex A to this proxy statement/prospectus and is incorporated by reference into this proxy statement/prospectus. The Business Combination Agreement has been attached to this proxy statement/prospectus to provide you with information regarding its terms. It is not intended to provide any other factual information about Isos or Bowlero. The following description does not purport to be complete and is qualified in its entirety by reference to the Business Combination Agreement. You should refer to the full text of the Business Combination Agreement for details of the Business Combination and the terms and conditions of the Business Combination Agreement. Any defined terms used in this summary but not defined in this summary shall have the meanings set forth in the Business Combination Agreement.
The Business Combination Agreement contains representations and warranties that Isos, on the one hand, and Bowlero, on the other hand, have made to one another as of specific dates. These representations and warranties have been made for the benefit of the other parties to the Business Combination Agreement and may be intended not as statements of fact but rather as a way of allocating the risk to one of the parties if those statements prove to be incorrect. In addition, the assertions embodied in the representations and warranties are qualified by information in confidential disclosure letters exchanged by the parties in connection with signing the Business Combination Agreement. While Isos and Bowlero do not believe that these disclosure letters contain information required to be publicly disclosed under the applicable securities laws, other than information that has already been so disclosed, the disclosure letters do contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the attached Business Combination Agreement. Accordingly, you should not rely on the representations and warranties as current characterizations of factual information about Isos or Bowlero, because they were made as of specific dates, may be intended merely as a risk allocation mechanism between Isos and Bowlero and are modified by the disclosure letters.
General; Structure of the Business Combination; Closing
Isos and Bowlero entered into the Business Combination Agreement on July 1, 2021, pursuant to which Isos and Bowlero will effect the Business Combination. The terms of the Business Combination Agreement, which contains customary representations and warranties, covenants, closing conditions and other terms relating to the Business Combination, are summarized below.
Isos will change its jurisdiction of incorporation by effecting a deregistration under Section 206 of the Cayman Islands Companies Act and a domestication under Section 388 of the DGCL, pursuant to which Isos’s jurisdiction of incorporation will be changed from the Cayman Islands to the State of Delaware. Following this domestication, the Merger is to become effective by the filing of a certificate of merger with the Secretary of State of the State of Delaware and will be effective at the effective time of the Merger (the “Effective Time”). The parties will hold the Closing on (a) the fifth business day following the satisfaction or waiver of the conditions described below (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver thereof) or (b) such other date as agreed to by Isos and Bowlero in writing.
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Conversion/Exchange of Securities
In accordance with the terms and subject to the conditions of the Business Combination Agreement, at the Effective Time:
(a) Each share of Bowlero’s preferred stock, par value $0.0001 per share (the “Bowlero Preferred Stock”), issued and outstanding as of immediately prior to the Effective Time (excluding shares owned by Bowlero as treasury stock, shares owned by Isos or dissenting shares) will be cancelled and converted into the right to receive an amount in cash, without interest, equal to the Per Share Preferred Stock Cash Consideration. The “Per Share Preferred Stock Cash Consideration” is an amount in cash equal to the Series A Per Share Liquidation Preference as of the Effective Time. The “Series A Per Share Liquidation Preference” is defined in the certificate of incorporation of Bowlero.
(b) Each share of Bowlero’s common stock, par value $0.0001 per share (the “Bowlero Common Shares”), issued and outstanding as of immediately prior to the Effective Time (excluding shares owned by Bowlero as treasury stock, shares owned by Isos or dissenting shares) will be cancelled and converted into the right to receive:
(i) the contingent right to receive a number of Earnout Shares (as defined below);
(ii) (A) if the holder of such share of Bowlero Common Shares makes a proper and timely election in accordance with the Business Combination Agreement to receive cash (a “Cash Election”) with respect to such share of Bowlero Common Shares, which election has not been revoked pursuant to the Business Combination Agreement (each such share, a “Cash Electing Share”), an amount in cash for such Cash Electing Share, without interest, equal to the Per Share Merger Consideration Value (the “Per Share Cash Election Consideration”); provided, however, that if (w) the sum of the aggregate number of dissenting shares and the aggregate number of Cash Electing Shares, multiplied by (x) the Per Share Cash Election Consideration (such product, the “Aggregate Cash Election Amount”) exceeds the Cash Election Consideration Cap, the amount of cash payable in respect of each Cash Electing Share shall be proportionally reduced and the holder of such Cash Electing Share will receive shares of Applicable New Bowlero common stock equal to the value of such reduced amount in lieu of cash based on a value of $10.0 per share of Applicable New Bowlero common stock; and
(B) if the holder of such share makes a proper election to receive shares of Applicable New Bowlero common Stock (a “Stock Election”) with respect to such share of Bowlero Common Shares, which election has not been revoked pursuant to Business Combination Agreement, or the holder of such share fails to make a Cash Election or Stock Election with respect to such share in accordance with the procedures set forth in the Business Combination Agreement, the Per Share Stock Consideration; and
(iii) the Per Share Forfeited Share Consideration.
Notwithstanding the foregoing, certain shares of Bowlero Common Shares held by A-B Parent LLC (“Atairos”) shall be converted, in the aggregate, into the right to receive a number of shares of Series A convertible preferred stock (the “New Bowlero preferred stock”) having an aggregate initial liquidation preference equal to $105,000,000.
“Applicable New Bowlero common Stock” is (i) with respect to Thomas F. Shannon and TS and its Affiliates, New Bowlero Class B Common Stock, and (ii) with respect to all other holders of Bowlero Common Shares, New Bowlero Class A Common Stock.
“Cash Election Consideration Cap” is the sum of (a) $289,000,000, plus (b) the amount, if any, by which (i) the Option Election Consideration Cap (as defined below) exceeds (ii) the aggregate Option Spread (as defined below) of the Cash Electing Options, minus (c) the product of (i) 95% multiplied by (ii) the Redemption Amount as such sum may be adjusted for any election made by Bowlero pursuant to the Business Combination Agreement.
“Company Outstanding Shares” is the total number of issued and outstanding shares of Bowlero Common Shares as of immediately prior to the Closing, plus the total number of shares of Bowlero Common Shares issuable upon the exercise of all Participating Company Options (as defined in the Business Combination Agreement) using the treasury method of accounting.
“Equity Value” is $1,601,053,751.89.
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“New Bowlero Class A Common Stock” is the common stock of New Bowlero, $0.0001 par value per share, designated as Class A Common Stock in the Acquiror Certificate of Incorporation.
“New Bowlero Class B Common Stock” is the common stock of New Bowlero, $0.0001 par value per share, designated as Class B Common Stock in the Acquiror Certificate of Incorporation.
“Per Share Forfeited Share Consideration” is (a) with respect to each share of Bowlero Common Shares owned by Atairos as of immediately prior to the Effective Time, a number of shares of Applicable New Bowlero common Stock equal to (i) 50% multiplied by the number Forfeited Shares (as defined in the Sponsor Support Agreement) divided by (ii) the total number of shares of Bowlero Common Shares owned by Atairos, (b) with respect to each share of Bowlero Common Shares held by TS or Thomas F. Shannon as of immediately prior to the Effective Time, a number of shares of Applicable New Bowlero common Stock equal to (i) 50% multiplied by the number Forfeited Shares (as defined in the Sponsor Support Agreement) divided by (ii) the total number of shares of Bowlero Common Shares held by TS or Thomas F. Shannon as of immediately prior to the Effective Time; and (c) with respect to each share of Bowlero Common Shares held by any other Person, 0.
“Per Share Merger Consideration Value” is (a) the Equity Value divided by (b) the Company Outstanding Shares.
“Per Share Stock Consideration” is a number of shares of Applicable New Bowlero common Stock equal to (i) the Per Share Merger Consideration Value divided by (ii) ten (10).
“Redemption Amount” is an amount determined by Bowlero up to the amount, if any, by which the Closing Acquiror Cash (as defined in the Business Combination Agreement) is less than $600,000,000
“TS” is Cobalt Recreation LLC, a Delaware limited liability company.
(c) Each share of Bowlero Preferred Stock and Bowlero Common Shares held in the treasury of Bowlero and each share of Bowlero Common Shares held by Isos will be cancelled without any conversion thereof and no payment or distribution will be made with respect thereto.
(d) Each Participating Company Option shall have the opportunity to elect whether to receive cash or Applicable New Bowlero common Stock in exchange for such Participating Company Option or whether to have New Bowlero assume such Participating Company Option. At the Effective Time, each Participating Company Option that is outstanding immediately prior to the Effective Time and that will not be assumed by New Bowlero pursuant to the Business Combination Agreement (each a “Cancelled Option”) shall be cancelled in exchange for the right to receive (i) the contingent right to receive a number of Earnout Shares following the Closing and (ii) either (A) if the holder of the Cancelled Option elects to receive Cash (an “Option Cash Election” with respect to such Cancelled Option (each such Cancelled Option, a “Cash Electing Option”), an amount in cash for such Cash Electing Option, without interest, equal to the Option Spread with respect to such Cash Electing Option, except that if the aggregate Option Spread with respect to all Cash Electing Options exceeds the Option Election Consideration Cap, then the amount of cash payable with respect to such Cash Electing Option shall be reduced on a prorated basis, and the amount of such Option Spread that is not payable in cash due to such reduction shall be paid to such holder in a number of validly issued, fully paid and nonassessable shares of Applicable New Bowlero common Stock equal to (x) such amount that is not payable in cash divided by (y) $10; or (B) if the holder of the Cancelled Option elects to receive Applicable New Bowlero common Stock (an “Option Stock Election”) with respect to such Participating Company Option, or the holder thereof fails to make an Option Cash Election or Option Stock Election with respect to such Cancelled Option, a number of validly issued, fully paid and nonassessable shares of Applicable New Bowlero common Stock equal to (x) the Option Spread with respect to such Cancelled Option divided by (y) $10. Notwithstanding the foregoing, at the Effective Time, certain Company Options (as defined in the Business Combination Agreement) held by management of Bowlero will be cancelled without payment to the holder thereof.
“Option Election Consideration Cap” is (a) $20,000,000.00 minus (b) the product of (i) 5% multiplied by (ii) the Redemption Amount, as adjusted for any election made by Bowlero pursuant to the Business Combination Agreement; provided that if any Participating Company Options are exercised prior to the Closing, the dollar amount set forth in clause (a) shall be reduced in proportion to the total number of Bowlero Common Shares underlying such exercised Participating Company Options (calculated using the treasury method of accounting) relative to the
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total number of Bowlero Common Shares underlying all Participating Company Options outstanding on the date of the Business Combination Agreement (calculated using the treasury method of accounting), and the dollar amount set forth in clause (a) of the Cash Election Consideration Cap shall be increased by a corresponding dollar amount.
“Option Spread” is with respect to a Participating Company Option, the product of (a) the number of Bowlero Common Shares subject to such Participating Company Option immediately before the Effective Time multiplied by (b) the excess of (i) the Per Share Merger Consideration Value over (ii) the per share exercise price of such Participating Company Option.
(e) Each Participating Company Option that is outstanding immediately prior to the Effective Time for which the holder has elected to have assumed by New Bowlero, shall be assumed by New Bowlero and converted into an option to purchase shares of Applicable New Bowlero common Stock and the contingent right to receive a number of Earnout Shares following the Closing (with the number of shares of Applicable New Bowlero common Stock subject to the converted option equal to the number of shares underlying the Participating Company Option multiplied by the Per Share Stock Consideration and the per share exercise of the converted option adjusted in a manner that is intended to preserve the Option Spread of the Participating Company Option).
(f) Each share of Isos Class A ordinary shares issued and outstanding immediately prior to the Effective Time shall remain outstanding as an issued and outstanding share of New Bowlero Class A Common Stock and each share of New Bowlero preferred stock issued and outstanding immediately prior to the Effective Time shall remain outstanding as an issued and outstanding share of preferred stock of New Bowlero.
In addition to the foregoing consideration, Bowlero stockholders and holders of Participating Company Options shall be entitled to receive, as additional consideration, and without any action on behalf of Isos or its stockholders, additional shares of New Bowlero (the “Earnout Shares”), to be issued as follows during the period from and after the Closing until the fifth anniversary of the Closing (the “Earnout Period”): (a) 10,375,000 Earnout Shares, if the closing share price of New Bowlero Class A Common Stock equals or exceeds $15.00 per share for any 10 trading days within any consecutive 20-trading day period that occurs after the Closing Date and (b) 10,375,000 Earnout Shares, if the closing share price of New Bowlero Class A Common Stock equals or exceeds $17.50 per share for any 10 trading days within any consecutive 20-trading day period. During the Earnout Period, if New Bowlero experiences an Acceleration Event (as defined as defined in the Business Combination Agreement), then any Earnout Shares that have not been previously issued by New Bowlero (whether or not previously earned) to the Bowlero stockholders or have not been earned by the holders of Participating Company Options will be deemed earned and issued as of immediately prior to the Acceleration Event, unless, in the case of an Acceleration Event that is a Change of Control (as defined in the Business Combination Agreement), the value of the consideration to be received by the holders of Applicable New Bowlero common Stock in such Change of Control transaction is less than the applicable stock price thresholds described above. Except as otherwise agreed in writing by Bowlero or determined by the board of directors of New Bowlero, if any employee entitled to Earnout Shares other than Thomas F. Shannon or Brett I. Parker is not employed on the date the forgoing milestones are achieved, then the employee’s Earnout Shares will be forfeited and reallocated to (i) TS and Mr. Shannon, collectively, (ii) Atairos and (iii) Mr. Parker in accordance with the Business Combination Agreement. If the consideration received in such Acceleration Event is not solely cash, New Bowlero Board will determine the treatment of the Earnout Shares.
Material Adverse Effect
Under the Business Combination Agreement, certain representations and warranties of Bowlero are qualified in whole or in part by a material adverse effect standard for purposes of determining whether a breach of such representations and warranties has occurred.
Pursuant to the Business Combination Agreement, a “Company Material Adverse Effect” means any effect that has a material adverse effect on (i) the assets, business, liabilities, results of operations or financial condition of the Group Companies, taken as a whole; provided that in no event would any of the following (or the effect of any of the following), alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “Company Material Adverse Effect” (except in the case of clauses (a), (b), (d), (f) and (g) below, in each case, to the extent that such change disproportionately affects the Group Companies, taken as a whole, as compared to other similarly situated Persons operating in the indoor family entertainment center industry (in which case solely the incremental disproportionate impact or impacts may be taken into account in determining whether there has been a Company Material Adverse Effect)): (a) any change or development in
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applicable Laws or GAAP or any official interpretation thereof, (b) any change or development in interest rates or economic, political, legislative, regulatory, business, financial, commodity, currency or market conditions generally affecting the economy or the industry in which Bowlero operates, (c) the announcement or the execution of the Business Combination Agreement, the pendency or consummation of the Merger or the performance of the Business Combination Agreement, including the impact thereof on relationships, contractual or otherwise, with Bowlero’s customers, suppliers, licensors, distributors, partners, providers and employees (provided that the exceptions in this clause (c) shall not be deemed to apply to references to “Company Material Adverse Effect” in the representations and warranties set forth in Section 4.03, 4.04 or 4.11(b) of the Business Combination Agreement, and, to the extent related thereto, the condition in Section 9.02(a) of the Business Combination Agreement), (d) any change generally affecting any of the industries or markets in which Bowlero or its Subsidiaries operate or the economy as a whole, (e) the taking of any action required to be taken by the Business Combination Agreement, or failure to take any action prohibited by the Business Combination Agreement (other than Section 6.01 thereof or with the prior written consent of Isos) (provided that the exceptions in this clause (e) shall not be deemed to apply to references to “Company Material Adverse Effect” in the representations and warranties set forth in Section 4.03, 4.04 or 4.11(b) of the Business Combination Agreement, and, to the extent related thereto, the condition in Section 9.02(a) of the Business Combination Agreement), (f) any earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire or other natural disaster, epidemic, disease outbreak, pandemic (including COVID-19), public health emergencies, government required shutdowns, weather condition, explosion fire, act of God or other force majeure event, (g) any national or international political or social conditions (including any escalation thereof), including (i) large scale civil unrest, (ii) the engagement by the United States or such other countries in hostilities, whether or not pursuant to the declaration of a national emergency or war, or (iii) the occurrence of any military or terrorist attack (including any internet or “cyber” attack or hacking) upon the United States or such other country, or any territories, possessions, or diplomatic or consular offices of the United States or such other countries or upon any United States or such other country military installation, equipment or personnel, and (h) any failure of Bowlero and its Subsidiaries, taken as a whole, to meet any projections, forecasts or budgets; provided that this clause (h) shall not prevent or otherwise affect a determination that any effect underlying such failure to meet projections or forecasts has resulted in, or contributed to, or would reasonably be expected to result in or contribute to, a Company Material Adverse Effect (to the extent such effect is not otherwise excluded from this definition of Company Material Adverse Effect), or (ii) the ability of TS, Atairos or any of the Group Companies to timely perform their obligations under the Business Combination Agreement or the other Transaction Documents to which such Person is a party or to consummate the Transactions.
Under the Business Combination Agreement, certain representations and warranties of Isos are qualified in whole or in part by a material adverse effect standard for purposes of determining whether a breach of such representations and warranties has occurred.
Pursuant to the Business Combination Agreement, an “Acquiror Material Adverse Effect” means any effect that has a material adverse effect on (i) the assets, business, liabilities, results of operations or financial condition of Isos; provided, however, that in no event would any of the following (or the effect of any of the following), alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, an “Acquiror Material Adverse Effect” (except in the case of clauses (a), (b), (d), (f) and (g), in each case, to the extent that such change disproportionately affects Isos as compared to other similarly situated Persons operating in the industries in which Isos operates (in which case solely the incremental disproportionate impact or impacts may be taken into account in determining whether there has been an Acquiror Material Adverse Effect)): (a) any change or development in applicable Laws or GAAP or any official interpretation thereof, (b) any change or development in interest rates or economic, political, legislative, regulatory, business, financial, commodity, currency or market conditions generally affecting the economy or the industry in which Isos operates, (c) the announcement or the execution of the Business Combination Agreement, the pendency or consummation of the Merger or the performance of the Business Combination Agreement, including the impact thereof on relationships, contractual or otherwise, with the Isos’s customers, suppliers, licensors, distributors, partners, providers and employees (provided that the exceptions in this clause (c) shall not be deemed to apply to references to “Acquiror Material Adverse Effect” in the representations and warranties set forth in Section 5.03, 5.07, and 5.17(b) of the Business Combination Agreement, and, to the extent related thereto, the condition in Section 9.03(a) of the Business Combination Agreement), (d) any change generally affecting any of the industries or markets in which Isos operates or the economy as a whole, (e) the taking of any action required to be taken by this Agreement, or failure to take any action prohibited by the Business Combination Agreement (other than Section 7.02 of the
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Business Combination Agreement, unless consented to by Bowlero) (provided that the exception in this clause (e) shall not be deemed to apply to references to “Acquiror Material Adverse Effect” in the representations and warranties set forth in Section 5.03, 5.07, and 5.17(b) of the Business Combination Agreement, and, to the extent related thereto, the condition in Section 9.03(a) of the Business Combination Agreement), (f) any earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire or other natural disaster, epidemic, disease outbreak, pandemic (including COVID-19), public health emergencies, government required shutdowns, weather condition, explosion fire, act of God or other force majeure event, (g) any national or international political or social conditions (including any escalation thereof), including (i) large scale civil unrest, (ii) the engagement by the United States or such other countries in hostilities, whether or not pursuant to the declaration of a national emergency or war, or (iii) the occurrence of any military or terrorist attack (including any internet or “cyber” attack or hacking) upon the United States or such other country, or any territories, possessions, or diplomatic or consular offices of the United States or such other countries or upon any United States or such other country military installation, equipment or personnel, and (h) any failure of Isos to meet any projections, forecasts or budgets; provided that this clause (h) shall not prevent or otherwise affect a determination that any effect underlying such failure to meet projections or forecasts has resulted in, or contributed to, or would reasonably be expected to result in or contribute to, an Acquiror Material Adverse Effect (to the extent such change or effect is not otherwise excluded from this definition of Acquiror Material Adverse Effect), or (ii) the ability of Isos to timely perform its obligations under this Agreement or the other Transaction Documents to which it is a party or to consummate the Transactions.
Conditions to the Closing of the Business Combination
Conditions to Obligations of Isos and Bowlero to Consummate the Business Combination. The obligations of Isos and Bowlero to consummate the Business Combination are subject to the satisfaction of the following conditions, any one or more of which may be waived in writing by all of such parties:
• all applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and regulations promulgated thereunder relating to the Business Combination having expired or been terminated;
• no statute, law, ordinance, treaty, code, rule, regulation or Governmental Order, in each case, of any Governmental Authority shall have been entered, enacted or promulgated following the date of the Business Combination Agreement enjoining or preventing the consummation of the transactions contemplated by the Business Combination Agreement;
• Isos having completed, in accordance with the terms of the Business Combination Agreement and the Proxy Statement (as defined in the Business Combination Agreement), an offer to shareholders of Isos to have their Class A Common Stock in Isos redeemed for the consideration set forth in the Cayman Constitutional Documents;
• after giving effect to any redemptions of Class A Common Stock in Isos, Isos having net tangible assets of at least $5,000,001 (as determined in accordance with Rule 3a5-1(g)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), upon consummation of the Business Combination;
• the approval and adoption of the Business Combination Agreement and transactions contemplated thereby by Isos’s stockholders (the “Required Isos Stockholder Vote”);
• the approval and adoption of the Business Combination Agreement and transactions contemplated thereby by Bowlero Stockholders (the “Required Bowlero Stockholder Vote”);
• the registration statement/proxy statement to be filed by Isos relating to the Business Combination Agreement and the Business Combination becoming effective in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”), no stop order being issued by the SEC and remaining in effect with respect to the registration statement/proxy statement to be filed by Isos relating to the Business Combination Agreement and the Business Combination, and no proceeding seeking such a stop order being threatened or initiated by the SEC and remaining pending;
• Isos’s initial listing application with the New York Stock Exchange in connection with the Business Combination having been approved (subject to notice of issuance and the requirement to have a sufficient number of round lot holders);
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• the Acquiror Certificate of Incorporation, shall have been filed with the Secretary of State of the State of Delaware, and Isos shall have adopted the Acquiror Bylaws (each as defined in the Business Combination Agreement);
• the Preferred COD (as defined in the Business Combination Agreement) shall have been filed with the Secretary of State of the State of Delaware; and
• Bowlero and Isos shall have received the Tax Opinion (as defined in the Business Combination Agreement).
Conditions to Obligations of Isos to Consummate the Business Combination. The obligations of Isos to consummate the Business Combination are subject to the satisfaction of the following conditions, any one or more of which may be waived in writing by Isos:
• Each of the representations and warranties of Bowlero contained in Section 4.01(a) (Corporate Organization of the Company; Subsidiaries), Section 4.02 (Due Authorization) and Section 4.14 (Brokers’ Fees) of the Business Combination Agreement, in each case, shall be true and correct (without giving any effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) in all material respects as of the Closing Date, as if made anew at and as of that time.
• The representations and warranties of Bowlero contained in Section 4.18(a) (Absence of Changes) of the Business Combination Agreement shall be true and correct in all respects as of the Closing Date, as if made anew at and as of that time.
• The representations and warranties of Bowlero contained in Section 4.05(a) and (b) (Capitalization) of the Business Combination Agreement shall be true and correct, other than de minimis inaccuracies, as of the Closing Date, as if made anew at and as of that time.
• Each of the representations and warranties of Bowlero contained in the Business Combination Agreement (other than the representations and warranties of Bowlero described in Sections 9.02(a)(i), (ii) and (iii) of the Business Combination Agreement) shall be true and correct (without giving any effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) as of the Closing Date as though then made (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
• The covenants of Bowlero to be performed or complied with as of or prior to the Closing shall have been performed or complied with in all material respects.
• Bowlero shall have delivered to Isos a certificate signed by an officer of Bowlero, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.02(a) and Section 9.02(b) of the Business Combination Agreement have been fulfilled.
• No effect shall have occurred between the date of the Business Combination Agreement and the Closing Date that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Conditions to Obligations of Bowlero to Consummate the Business Combination. The obligations of Bowlero to consummate the Business Combination are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Bowlero:
• Each of the representations and warranties of Isos contained in Section 5.01 (Corporate Organization), Section 5.02 (Due Authorization) and Section 5.12(d)(i) (Business Activities; Absence of Changes) of the Business Combination Agreement, in each case shall be true and correct (without giving effect to any limitation as to “materiality,” “Acquiror Material Adverse Effect” or any similar limitation set forth therein) in all material respects as of the Closing Date, as if made anew at and as of that time.
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• The representations and warranties of Isos contained in Section 5.15(a) and (b)(Capitalization) of the Business Combination Agreement shall be true and correct, other than de minimis inaccuracies, as of the Closing Date, as if made anew at and as of that time.
• Each of the representations and warranties of Isos contained in the Business Combination Agreement (other than the representations and warranties of Isos described in Section 9.03(a)(i) and (ii) of the Business Combination Agreement) shall be true and correct (without giving effect to any limitation as to “materiality,” “Acquiror Material Adverse Effect” or any similar limitation set forth therein) as of the Closing Date, as if made anew at and as of that time, except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to result in, an Acquiror Material Adverse Effect.
• The covenants of Isos to be performed or complied with as of or prior to the Closing shall have been performed or complied with in all material respects.
• Isos shall have delivered to Bowlero a certificate signed by an officer of Isos, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.03(a) and Section 9.03(b) of the Business Combination Agreement have been fulfilled.
• Isos shall, in respect of the Existing First Lien Credit Agreement, comply with the requirements of clause (b) of the definition of “Holdings Reorganization Transaction” (as set forth in the Existing First Lien Credit Agreement) in a manner reasonably satisfactory to Bowlero.
• No effect shall have occurred between the date of the Business Combination Agreement and the Closing Date that has had or would reasonably be expected to have, individually or in the aggregate, an Acquiror Material Adverse Effect.
• Bowlero shall have received written copies of irrevocable resignations from all of the directors and executive officers of Isos (other than any director who will become a member of New Bowlero Board or any executive officer who will be an executive officer of New Bowlero in accordance with the express terms of the Business Combination Agreement), in each case effective as of the Effective Time.
• The Closing Acquiror Cash shall equal or exceed the Company’s Required Funds; provided, however, that in the event the Closing Acquiror Cash is less than the Company’s Required Funds, Bowlero shall have the right to elect to (i) waive this condition and (ii) reduce the Cash Election Consideration Cap by up to 100% of such shortfall.
• Bowlero shall have received written evidence from Isos of the election of certain specified individuals to New Bowlero Board in accordance with Section 2.06 of the Business Combination Agreement and the appointment of certain specified individuals as the officers of New Bowlero.
Representations and Warranties
The Business Combination Agreement contains customary representations and warranties by Bowlero and Isos relating to, among other things, their ability to enter into the Business Combination Agreement and their respective outstanding capitalization. These representations and warranties are subject to materiality, knowledge and other similar qualifications in many respects and expire at the Effective Time. These representations and warranties have been made solely for the benefit of the other parties to the Business Combination Agreement. Such representations and warranties of Bowlero relate to the following topics: company organization, good standing, corporate power and qualification; due authorization; subsidiaries; conflicts; governmental authorities and consents; capitalization; financial statements; undisclosed liabilities; litigation; compliance with laws; intellectual property; data security; material contracts; labor agreements and actions; employee compensation; employee benefit plans; tax matters; brokers or finders; insurance; real property; tittle to properties and assets; environmental matters; absence of changes; affiliate agreements; registration statement and proxy statement; takeover statutes and charter provisions; no outside reliance; and no additional representations or warranties.
Additionally, Isos made representations and warranties relating to the following topics: company organization, good standing, corporate power and qualification; due authorization; conflicts; litigation; compliance with laws; employee benefit plans; governmental authorities and consents; financial ability and trust account; tax matters;
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brokers or finders; SEC filings; financial statements; business activities; absence of changes; registration statement and proxy statement; no outside reliance; capitalization; NYSE quotation; contracts; title to properties and assets; investment company act; affiliate agreements; takeover statutes and charter provisions; PIPE Offerings and Forward Purchase Contract; and no additional or representation or warranties.
Covenants of the Parties
Covenants of Bowlero
Bowlero made certain covenants under the Business Combination Agreement, including, among others, the following:
Bowlero has agreed that from the date of the Business Combination Agreement through the earlier of the Closing or the termination of the Business Combination Agreement (the “Interim Period”), it will and will cause its subsidiaries to, except as expressly contemplated or permitted by the Business Combination Agreement, including the Disclosure Schedules, as consented to by Isos in writing or as required by Law (including COVID-19 Measures) to: (i) use commercially reasonable efforts to conduct and operate its business in the ordinary course, (ii) use commercially reasonable efforts to preserve intact the current business organization and ongoing businesses of Bowlero and its subsidiaries and maintain the existing relations and goodwill of Bowlero and its subsidiaries with customers, suppliers, joint venture partners, distributors and creditors of Bowlero and its subsidiaries, (iii) use commercially reasonable efforts to keep available the services of their present officers, and (iv) use commercially reasonable efforts to maintain all insurance policies of Bowlero and its subsidiaries or substitutes therefor.
During the Interim Period, Bowlero has also agreed, and to cause its subsidiaries, except as expressly contemplated or permitted by the Business Combination Agreement, including the Disclosure Schedules, as consented to by Isos in writing or as required by Law (including COVID-19 Measures), not to:
• Change or amend the certificate of incorporation, bylaws or other Governing Documents of any Group Company in any material respect;
• Make, declare or pay any dividend or distribution (whether in cash, stock or property) to any of the stockholders or member, as applicable, of any of the Group Companies or make any other distribution in respect of any of the Group Companies’ capital stock or other equity interests, except dividends and distributions by a wholly-owned Subsidiary of Bowlero to Bowlero or another wholly-owned Subsidiary;
• Effect any recapitalization, reclassification, combination, split or otherwise amend the terms of any shares or series of the Group Companies’ capital stock or equity interest, or effect other change in the capitalization of any of the Group Companies;
• Authorize for issuance, issue, sell, transfer, pledge, encumber, dispose of or deliver any additional shares of its capital stock or other equity interest or securities convertible into or exchangeable for shares of its capital stock or other equity interest, or issue, sell, transfer, pledge, encumber or grant any right, option, restricted stock unit, stock appreciation right or other commitment for the issuance of shares of its capital stock or other equity interest, or split, combine or reclassify any shares of its capital stock or other equity interest, other than (A) the issuance of shares upon the exercise of options outstanding as of the date of the Business Combination Agreement and (B) transactions among Bowlero and its wholly-owned Subsidiaries;
• Except pursuant to Bowlero’s existing stock option plan, purchase, repurchase, redeem or otherwise acquire, or offer to purchase, repurchase, redeem or otherwise acquire, any shares of the capital stock or other equity interests of any of the Group Companies;
• Amend or modify any material term of (in a manner materially adverse to the Group Companies), terminate (excluding any expiration in accordance with its terms), renew or fail to exercise any renewal rights, or waive or release any material rights, claims or benefits under, any Contract of a type required to be listed on Schedule 4.11(a)(i) of the Business Combination Agreement (or any Contract, that if existing on the date hereof, would have been required to be listed on Schedule 4.11(a)(i) of the Business
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Combination Agreement), or under any Material Lease or Significant Capital Lease other than entry into, amendments of, modifications of, terminations of, or waivers or releases under, such agreements in the ordinary course of business;
• Sell, transfer, lease, pledge or otherwise encumber or subject to any Lien, abandon, cancel, let lapse or convey or dispose of any material assets, properties or business of the Group Companies, taken as a whole (including Company IP), except for (i) transactions solely among Bowlero and its wholly-owned Subsidiaries or among the wholly-owned Subsidiaries of Bowlero, (ii) dispositions of obsolete or worthless assets, (iii) sales of inventory in the ordinary course of business, (iv) transactions pursuant to any Contract existing as of the date of this Agreement, (v) sales, abandonment, lapses of assets or items or materials (in each case other than Company IP) in an amount not in excess of $10,000,000 individually and $50,000,000 in the aggregate, (vi) Permitted Liens, and (vii) pledges, non-exclusive licenses and encumbrances on property and assets in the ordinary course of business and that would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole;
• With respect to Owned IP, in any transaction or series of transactions, distribute, pledge, assign, sell, lease, transfer, exclusively license, waive, grant immunities, transfer, convey, abandon (including by means of failing to maintain, protect, renew or enforce, or failing to pay applicable maintenance, renewal, registration, license, usage or other fees or other dues), permit to lapse, or expire or otherwise dispose of any Owned IP or any portion thereof, except in the ordinary course of business;
• Adopt or enter into a plan of, or enter into effect a, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any of the Group Companies (other than the Transactions);
• Sell, assign, transfer, convey, lease or otherwise dispose of any tangible assets or properties of the Group Companies that have a fair market value of greater than $10,000,000 individually or $50,000,000 in the aggregate, including the Real Property, except for (i) dispositions of obsolete or worthless equipment in the ordinary course of business, (ii) transactions among the Group Companies and their wholly-owned Subsidiaries or among their wholly-owned Subsidiaries, (iii) sales of inventory in the ordinary course of business or (iv) pursuant to Contracts in effect as of the date hereof;
• Acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all or a material portion of the assets of, any corporation, partnership, association, joint venture or other business organization or division thereof;
• (i) Limit the right of any Group Company to engage in any line of business or in any geographic area, to develop, market or sell products or services, or to compete with any Person, (ii) grant any exclusive or similar rights to any Person, or (iii) enter into, renew, amend, modify, terminate (excluding any expiration in accordance with its terms) or extend any other Contract of the type described in Section 4.11(a) of the Business Combination Agreement to which any Group Company is or would be a party or by which any Group Company may be bound, except, in each case, to the extent such action (A) is taken in the ordinary course of business or (B) is not materially adverse to any of the Group Companies;
• (i) Make (other than on an originally filed Tax Return), change or rescind any material Tax election, (ii) change any annual Tax accounting period or any material method of Tax accounting, (iii) file any amended material Tax Return that could materially increase the Taxes payable by Bowlero or its Subsidiaries, (iv) settle, compromise, or abandon any claim, investigation, audit or controversy relating to a material amount of Taxes, or (v) enter into a closing agreement with respect to any material amount of Tax;
• Take any action, or knowingly fail to take any action, which action or failure to act would reasonably be expected to prevent or impede the Transactions from qualifying for the Intended Tax Treatment;
• Enter into, renew or amend in any material respect any Company Affiliate Agreement (or any Contract that, if existing on the date hereof, would constitute a Company Affiliate Agreement);
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• Waive, release, compromise, settle or satisfy any pending or threatened material investigation, claim (which shall include, but not be limited to, any pending or threatened Action) or compromise or settle any Liability, other than in the ordinary course of business or that otherwise do not exceed $1,000,000 in the aggregate in amounts payable by any of the Group Companies in settlement or satisfaction thereof, after contribution from available insurance proceeds;
• Incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness in excess of $25,000,000 other than (x) solely between Bowlero and any of its wholly-owned Subsidiaries or between any of such wholly-owned Subsidiaries, (y) amounts available in accordance with the terms of the revolving credit facility under the Existing First Lien Credit Agreement as of the date of this Agreement, and any refinancing thereof, or (z) capital leases in the ordinary course of business, provided that, in no event shall any such Indebtedness be subject to any material prepayment fee or penalty or similar arrangement or amend, restate or modify in a manner materially adverse to any of the Group Companies the terms of or any agreement with respect to any such outstanding Indebtedness;
• except as required pursuant to the terms of any Company Benefit Plan in effect as of the date of the Business Combination Agreement or in the ordinary course of business with respect to individuals with annual base compensation of less than $250,000: (A) increase the compensation of any current or former employee, officer, individual independent contractor or director of Bowlero or any of its Subsidiaries; (B) increase the benefits payable to any current or former employee, officer, individual independent contractor, or director of Bowlero or any of its Subsidiaries; (C) grant, award or provide any bonus, severance, retention, change-in-control, equity or equity-based compensation, or similar benefit to any current or former employee, officer,
• individual independent contractor, or director of Bowlero or any of its Subsidiaries; (D) accelerate the payment or vesting of any compensation or benefit payable to any current or former employee, officer, individual independent contractor, or director of Bowlero or any of its Subsidiaries; (E) terminate (other than for cause) or hire (other than to replace an employee who has resigned or been fired for cause) any employee, officer or independent contractor (that is an individual) of Bowlero or any of its Subsidiaries with annual base compensation equal to or greater than $250,000; or (F) establish, adopt, enter into, terminate or materially amend any Benefit Plan (other than offer letters and similar agreements that are terminable “at will” or for convenience and without the payment of severance or other material obligations); and
• enter into any binding agreement to do any of the above actions prohibited under the Business Combination Agreement.
Bowlero acknowledges and agrees that neither Bowlero nor any of its Affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the trust account or distributions therefrom and agrees to not make and to release any claims in respect thereof.
Bowlero agrees to seek the Written Consent of the stockholders of Bowlero constituting the Company Stockholder Approval in favor of the approval and adoption of the Business Combination Agreement and the Merger and all other transactions contemplated by the Business Combination Agreement via written consent as soon as reasonably practicable after the Registration Statement becomes effective, and in any event within three (3) Business Days after the Registration Statement becomes effective, but in the event Bowlero determines it is not able to obtain the Written Consent, Bowlero must call and hold a meeting of holders of shares of Bowlero for the purpose of voting solely upon the Company Stockholder Approval as soon as reasonably practicable after the Registration Statement becomes effective, and in any event within twenty-five (25) days after the Registration Statement becomes effective.
The Board of Directors of Bowlero must recommend to the stockholders of Bowlero that they approve and adopt the Business Combination Agreement and approve the Merger and all other Transactions (the “Bowlero Board Recommendation”). Neither the Board of Directors of Bowlero nor any committee thereof may withhold, withdraw or modify, or publicly propose or resolve to withhold, withdraw or modify in a manner adverse to Isos the Bowlero Board Recommendation.
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Bowlero will not adopt any stockholder rights plan, “poison pill” or similar anti-takeover instrument or plan in effect to which any Group Company would be or become subject, party or otherwise bound.
Bowlero acknowledges and agrees that it is aware, and that its Subsidiaries, directors and officers have been made aware, of the restrictions imposed by U.S. federal securities laws and the rules and regulations of the SEC promulgated thereunder or otherwise and other applicable foreign and domestic Laws on a Person possessing material nonpublic information about a publicly traded company. Bowlero agrees that it will not, and it will cause its Subsidiaries not to, purchase or sell any securities of Isos in violation of such Laws, or cause or encourage any Person to do the foregoing.
During the Interim Period, Bowlero will not take, and will direct its Affiliates and Representatives not to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement, letter of intent, memorandum of understanding or agreement in principle with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than Isos, its stockholders or any of their Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any Company Acquisition Proposal. Bowlero will, and will direct its Affiliates and Representatives to cease any and all existing discussions or negotiations with any Person conducted prior to the date of the Business Combination Agreement with respect to, or which is reasonably likely to give rise to or result in, a Company Acquisition Proposal.
At or prior to the Closing, at the election of Bowlero, the dollar amount set forth in clause (a) of the Cash Election Consideration Cap shall be increased by an amount specified by Bowlero not to exceed $30,000,000 with the prior written consent of (a) Isos (which consent shall not be unreasonably withheld, conditioned or delayed) and (b) Atairos.
Covenants of Isos
Isos made certain covenants under the Business Combination Agreement, including, among others, the following:
After the Closing, New Bowlero agrees to indemnify and hold harmless each present and former director and officer of Isos, Bowlero and its subsidiaries against any costs, expenses, damages or liabilities incurred in connection with any action, lawsuit, investigation or any other proceeding by or before any governmental authority, to the fullest extent that would have been permitted under applicable law and the applicable governing documents to indemnify such person.
New Bowlero will maintain for a period of not less than six years from the Closing (i) provisions in its governing documents and those of its subsidiaries concerning the indemnification and exoneration of the Group Companies’ or Isos’s former and current officers, directors and employees, no less favorable than as contemplated by the applicable governing documents prior to the Closing and (ii) a directors’ and officers’ liability insurance policy covering those persons who are currently covered by the Group Companies’ or Isos’s directors’ and officers’ liability insurance policies on terms not less favorable than the better of the terms of such current insurance coverage and terms of a typical directors’ and officers’ liability insurance policy for a company whose equity is listed on the NYSE, except that in no event will New Bowlero be required to pay an annual premium for such insurance in excess of 300% of the aggregate annual premium payable by the Group Companies or Isos for such insurance policy for the year ended December 31, 2020.
During the Interim Period, Isos has agreed, except as expressly contemplated or permitted by the Business Combination Agreement, including the Disclosure Schedules, as consented to by Bowlero in writing or as required by Law (including COVID-19 Measures), not to:
• seek any approval from its Stockholders to change, modify or amend the Trust Agreement or the Acquiror Governing Documents or change, modify or amend the Trust Agreement or the Acquiror Governing Documents;
• (A) make, declare, set aside or pay any dividends on, or make any other distribution (whether in cash, stock or property) in respect of any of its outstanding capital stock or other equity interests; (B) split, combine, reclassify or otherwise change any of its capital stock or other equity interests; or (C) other than the redemption of any Isos Class A common stock required by the Offer or as otherwise required
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by Acquiror’s Governing Documents in order to consummate the Transactions, repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock of, or other equity interests in, Isos;
• (A) make (other than on an originally filed Tax Return), change or rescind any material Tax election, (B) change any annual Tax accounting period or any material method of Tax accounting, (C) file any amended material Tax Return that could materially increase the Taxes payable by Isos, (D) settle, compromise, or abandon any claim, investigation, audit or controversy relating to a material amount of Taxes, or (E) enter into a closing agreement with respect to any material amount of Tax;
• take any action, or knowingly fail to take any action, which action or failure to act would reasonably be expected to prevent or impede the Transactions from qualifying for the Intended Tax Treatment;
• enter into, renew or amend in any material respect, any Acquiror Affiliate Agreement (or any Contract, that if existing on the date of the Business Combination Agreement, would constitute an Acquiror Affiliate Agreement);
• enter into any material Contract or amend or modify any term of, terminate prior to its scheduled expiration date, or otherwise compromise in any way, any material Contract to which Isos is a party (including placement agent agreements);
• waive, release, compromise, settle or satisfy any pending or threatened claim (which shall include, but not be limited to any pending or threatened Action);
• incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, other than Indebtedness that satisfies each of the following: (A) used solely for Isos’s (1) ordinary course administrative costs and expenses and transaction expenses incurred in connection with the Transactions (including performance under any Transaction Documents) in compliance with this Agreement and each other Transaction Document to which Isos is a party or (2) following consultation with Bowlero, non-ordinary course costs and expenses and transaction expenses, in each case, incurred in connection with the Transactions (including performance under any Transaction Documents) in compliance with (and not in breach of) this Agreement and each other Transaction Document to which Isos is a party; and (B) such Indebtedness is a loan made by the Sponsor or any of its Affiliates to Isos without interest or other fees, costs or expenses of Isos provided that, any such Indebtedness, in the aggregate, does not to exceed $1,500,000 (the “Acquiror Debt Limit”) and to the extent that such Indebtedness does exceed the Acquiror Debt Limit, the Sponsor shall, or shall cause its Affiliates to, forgive any such amount in excess of the Acquiror Debt Limit;
• (A) offer, issue, deliver, grant or sell, or authorize or propose to offer, issue, deliver, grant or sell, any capital stock of, or other equity interests in, Isos or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock or equity interests, other than (i) in connection with the exercise of any Acquiror Warrants outstanding on the date hereof or (ii) the Transactions (including the transactions contemplated by the Forward Purchase Contract or the PIPE Subscription Agreements) or (B) amend, modify or waive any of the terms or rights set forth in, any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein, other than pursuant to the Sponsor Agreement;
• except as contemplated by the Bowlero Corp. 2021 Omnibus Incentive Plan, (A) adopt or amend any Acquiror Benefit Plan, or enter into any employment contract or collective bargaining agreement or (B) hire any employee or any other individual to provide services to Isos or its subsidiaries following Closing;
• (A) fail to maintain its existence or acquire by merger or consolidation with, or merge or consolidate with, or purchase a material portion of the assets or equity of, any corporation, partnership, limited liability company, association, joint venture or other business organization or division thereof; or (B) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Isos (other than the Transactions);
• make any capital expenditures;
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• make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any other Person;
• enter into any new line of business outside of the business currently conducted by Isos as of the date of the Business Combination Agreement;
• make any material change in financial accounting methods, principles or practices, except insofar as may have been required by a change in GAAP (including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization) or applicable Law;
• voluntarily fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage currently maintained with respect to Isos and its assets and properties;
• form any subsidiary; or
• enter into any binding agreement or undertaking to do any of the above actions prohibited under the Business Combination Agreement.
During the Interim Period, Isos shall comply in all material respects with, and continue performing under, as applicable, the Acquiror Governing Documents, the Trust Agreement and all other material Contracts to which Acquiror may be a party.
If the Closing Acquiror Cash as of the anticipated Closing is reasonably expected to be less than the Company’s Required Funds, then Isos and its Representatives, in cooperation with Bowlero and its Representatives, shall be entitled to solicit and arrange for and enter into a subscription agreement for the purchase by third Persons of, additional shares of New Bowlero Class A common stock on the terms of the applicable Common PIPE Subscription Agreement in an aggregate amount such that the Closing Acquiror Cash is, at or immediately prior to the Closing, equal to the Company’s Required Funds after giving effect to such subscriptions. Notwithstanding the foregoing, (i) Isos shall not sell or issue more than 5,000,000 additional shares of Acquiror Class A Common Stock without the prior written consent of Bowlero, not to be unreasonably withheld, conditioned or delayed and (ii) in any event, Isos may not sell or issue shares of Acquiror Class A Common Stock to certain specified Persons without the prior written consent of Bowlero as exercised in its sole discretion.
During the Interim Period, Isos shall use reasonable best efforts to ensure Acquiror remains listed as a public company on, and for shares of New Bowlero Class A common stock to be listed on, the NYSE. Isos shall use reasonable best efforts to cause New Bowlero’s Class A common stock to be issued in connection with the Transactions to be approved for listing on the NYSE as promptly as practicable following the issuance thereof, subject to official notice of issuance, prior to the Closing Date.
During the Interim Period, Isos will keep current and timely file all reports required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable Securities Laws.
Isos shall use commercially reasonable efforts to take, or cause to be taken, as promptly as practicable after the date of the Business Combination Agreement, all actions, and to do, or cause to be done, all things necessary on or prior to the Closing Date, to consummate the transactions contemplated by the Forward Purchase Contract and the PIPE Subscription Agreements on the terms and conditions described or contemplated therein. Bowlero shall use commercially reasonable efforts to cooperate with Isos in Isos’s performance and satisfaction of the foregoing obligations.
Prior to the Closing, the board of directors of Isos, or an appropriate committee of “non-employee directors” (as defined in Rule 16b-3 of the Exchange Act) thereof, shall adopt a resolution consistent with the interpretive guidance of the SEC so that the acquisition of equity securities of New Bowlero pursuant to the Business Combination Agreement and the other agreements contemplated thereby, by any person owning securities of
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Bowlero who is expected to become a director or officer (as defined under Rule 16a-1(f) under the Exchange Act) of New Bowlero following the Closing shall be an exempt transaction for purposes of Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder.
On the Closing Date, New Bowlero will enter into customary indemnification agreements reasonably satisfactory to Bowlero with certain specified individuals.
During the Interim Period, Isos shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement, letter of intent, memorandum of understanding or agreement in principle with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than Bowlero, its stockholders or any of their Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any Acquiror Business Combination Proposal. Isos shall, and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, an Acquiror Business Combination Proposal.
On and as of the Closing, Isos shall (i) take all actions necessary to cause certain specified Contracts to be terminated without any further force and effect and without any cost or other Liability to Isos or New Bowlero and its Subsidiaries, and there shall be no further obligations of any of the relevant parties thereunder following the Closing, (ii) waive, and caused to be waived, any anti-dilution or similar protections in favor of Isos or any of its stockholders and (iii) waive, and cause to be waived, any right in favor of Isos or any of its stockholders to convert any working capital loans into Acquiror Warrants.
Isos shall use commercially reasonable efforts to enter into employment agreements with certain specified individuals on the terms set forth in the Business Combination Agreement.
Isos will take all action to cause its board of directors to adopt and approve the Preferred COD and authorize the filing of the Preferred COD with the Secretary of State of the State of Delaware.
Mutual Covenants
Each party made certain mutual covenants under the Business Combination Agreement, including, among others, the following:
Bowlero and Isos shall (i) use their reasonable best efforts to submit, as soon as practicable (and, in the case of the initial filing required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, within ten (10) business days after the Business Combination Agreement), all notifications, reports, and other filings required to be submitted to a governmental authority in order to obtain the necessary regulatory approvals and (ii) use their reasonable best efforts to cooperate in good faith with any governmental authority and undertake promptly any and all action required to satisfy the regulatory approvals and complete lawfully the Business Combination.
Isos and Bowlero will cooperate in good faith with the Regulatory Consent Authorities and exercise their reasonable best efforts to undertake promptly any and all action required to complete lawfully the Business Combination as soon as practicable (but in any event prior to the Termination Date) and any and all action necessary or advisable to avoid, prevent, eliminate or remove any impediment under Antitrust Law or the actual or threatened commencement of any proceeding in any forum by or on behalf of any Regulatory Consent Authority or the issuance of any Governmental Order that would delay, enjoin, prevent, restrain or otherwise prohibit the consummation of the Merger. Nothing in the Business Combination Agreement will require or obligate Bowlero or any of its subsidiaries or affiliates to, and Isos and its affiliates will not, without the prior written consent of Bowlero, agree or otherwise be required to, take any action with respect to Bowlero or any of its subsidiaries or affiliates, including selling, divesting, or otherwise disposing of, licensing, holding separate, or taking or committing to take any action that limits in any respect its freedom of action with respect to, or its ability to retain, any business, products, rights, services, licenses, assets or properties of Bowlero or any of its subsidiaries or affiliates, or any interest therein.
Bowlero, on the one hand, and Isos, on the other, shall each be responsible for and pay one-half of the filing fees payable to the governmental authorities in connection with the Business Combination.
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Bowlero agrees to use its reasonable best efforts to provide Isos with all information regarding the results of operations, management and business of Bowlero and its Subsidiaries required by Isos to be included in the Registration Statement, including the Unaudited Interim Financial Statements.
As promptly as practicable following the execution and delivery of the Business Combination Agreement (and in any event on or prior to the fifth (5th) Business Day following the delivery of the Unaudited Interim Financial Statements which fifth (5th) Business Day shall in no event be earlier than the twentieth (20th) day following the date of the Business Combination Agreement), Isos and Bowlero shall prepare and mutually agree on (such agreement not to be unreasonably withheld or delayed), and Isos shall file with the SEC the Registration Statement, which will also contain the Proxy Statement.
Isos and Bowlero will use their reasonable efforts to cause the Registration Statement (including the proxy statement/prospectus) to comply in all material respects with all applicable laws including all rules and regulations promulgated by the SEC, respond as promptly as reasonably practicable to and resolve all comments received from SEC concerning the Registration Statement, cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the Business Combination.
Isos will as promptly as practicable after the Registration Statement is declared effective under the Securities Act, (i) give notice, convene and hold a meeting of the stockholders to vote on the Proposals, for a date no later than 25 days after the date the proxy statement is mailed to Isos Stockholders and (ii) solicit proxies from the holders of Isos Common Stock to vote in favor of each of the Proposals.
Isos and Bowlero intend that the Transactions shall qualify for the Intended Tax Treatment. None of the parties or their respective Affiliates will take or cause to be taken, or knowingly fail to take or knowingly cause to be failed to be taken, any action that would reasonably be expected to prevent the Transactions from qualifying for such Intended Tax Treatment. Each party shall, unless otherwise required by a final determination within the meaning of Section 1313(a) of the Code (or any similar state, local or non-U.S. final determination), cause all Tax Returns to be filed on a basis consistent with the Intended Tax Treatment. Each of the parties agrees to use reasonable best efforts to promptly notify all other parties of any challenge to the Intended Tax Treatment by any Governmental Authority.
During the Interim Period, each of Bowlero and Isos shall, and shall cause each of its subsidiaries to afford to the other party and its representatives reasonable access, during normal business hours and with reasonable advance notice, in such manner as to not materially interfere with the ordinary course of its operations, to all of its respective assets, properties, books, contracts, tax returns, records and appropriate officers, employees and other personnel and shall furnish such representatives with all financial and operating data and other information concerning its affairs that are in its possession as such representatives may reasonably request. All information obtained by Bowlero or Isos and their respective representatives pursuant to the foregoing shall be subject to the Confidentiality Agreement. Notwithstanding the foregoing, neither Bowlero nor Isos shall be required to directly or indirectly provide access to or disclose information where the access or disclosure would violate its obligations of confidentiality or similar legal restrictions with respect to such information or jeopardize the protection of attorney-client privilege (it being agreed that the parties shall use their reasonable best efforts to cause such information to be provided in a manner that would not result in such jeopardy).
Acquiror shall, prior to the Effective Time, adopt and approve the Bowlero Corp. 2021 Omnibus Incentive Plan to be the Acquiror Employee Stock Purchase Plan.
Bowlero or Isos shall promptly advise the other of any action, lawsuit, investigation or any other proceeding by or before a governmental authority commenced or, to the knowledge of Bowlero or Isos, threatened after the date of the Business Combination Agreement, against such party or any its subsidiaries or directors by any Company Stockholder or Acquiror stockholder with respect to the Business Combination Agreement or the Business Combination, in which case the defending party will control the defense of any such action, lawsuit, investigation or proceeding, subject to giving the other party a reasonable opportunity to participate in the defense and the defending party shall not settle, compromise, come to an arrangement or cease defense without the other party’s prior written consent (not to be unreasonably withheld, conditioned or delayed).
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Survival of Representations, Warranties and Covenants
Except for certain covenants to be performed following the Closing, the representations, warranties and covenants of the parties contained in the Business Combination Agreement will not survive the Closing.
Termination
The Business Combination Agreement may be terminated prior to the Closing, as follows:
• by the mutual written consent of Isos and Bowlero;
• by Isos, (A) subject to certain exceptions, if any of the representations or warranties made by Bowlero are not true and correct or if Bowlero fails to perform any of its covenants or agreements under the Business Combination Agreement (including an obligation to consummate the Closing) such that the conditions to the obligations of Isos would not be satisfied and the breach (or breaches) of such representations or warranties or failure (or failures) to perform such covenants or agreements is (or are) not cured or cannot be cured within the earlier of (1) thirty (30) days after written notice thereof, and (2) February 1, 2022 (the “Termination Date”), (B) the Unaudited Interim Financial Statements shall not have been delivered to Isos by Bowlero on or before November 1, 2021, (C) if the transactions contemplated by the Business Combination Agreement are not consummated on or prior to the Termination Date, unless the breach of any covenants or obligations under the Business Combination Agreement by the party seeking to terminate primarily caused the failure to consummate the transactions contemplated by the Business Combination Agreement, and (D) if any governmental entity shall have issued an order or taken any other action permanently enjoining or prohibiting the transactions contemplated by the Business Combination Agreement and such order or other action shall have become final and nonappealable;
• by Bowlero, (A) subject to certain exceptions, if any of the representations or warranties made by Isos are not true and correct or if Isos fails to perform any of its covenants or agreements under the Business Combination Agreement (including an obligation to consummate the Closing) such that the conditions to the obligations of Bowlero would not be satisfied and the breach (or breaches) of such representations or warranties or failure (or failures) to perform such covenants or agreements is (or are) not cured or cannot be cured within the earlier of (1) thirty (30) days after written notice thereof, and (2) the Termination Date, (B) if the transactions contemplated by the Business Combination Agreement are not consummated on or prior to the Termination Date, unless the breach of any covenants or obligations under the Business Combination Agreement by the party seeking to terminate primarily caused the failure to consummate the transactions contemplated by the Business Combination Agreement, and (C) if any governmental entity shall have issued an order or taken any other action permanently enjoining or prohibiting the transactions contemplated by the Business Combination Agreement and such order or other action shall have become final and nonappealable;
• by either Isos or Bowlero, if the Required Isos Stockholder Vote is not obtained at the Extraordinary General Meeting;
• by Isos, if Bowlero does not deliver, or cause to be delivered to Isos, the Written Consent within five (5) Business Days of the effectiveness of the Registration Statement; and
• by Bowlero, in the event of an Acquiror Change of Recommendation.
If the Business Combination Agreement is validly terminated, none of the parties to the Business Combination Agreement will have any liability with respect to the other party to the Business Combination Agreement or any further obligation under the Business Combination Agreement, other than customary confidentiality obligations, except in the case of Willful Breach or Fraud.
Amendments
The Business Combination Agreement may not be further amended except by a duly authorized agreement in writing signed on behalf of each of the parties to the Business Combination Agreement and referencing the Business Combination Agreement.
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Related Agreements
This section describes certain additional agreements entered into or to be entered into pursuant to the Business Combination Agreement, but does not purport to describe all of the terms thereof. The following summary is qualified in its entirety by reference to the complete text of each of the agreements. The full text of such related agreements, or forms thereof, are filed as annexes to this proxy statement/prospectus or as exhibits to the registration statement of which this proxy statement/prospectus forms a part, and the following descriptions are qualified in their entirety by the full text of such annexes and exhibits. Shareholders and other interested parties are urged to read such related agreements in their entirety prior to voting on the proposals presented at the extraordinary general meeting.
Common and Preferred PIPE Offerings
Contemporaneously with the execution of the Business Combination Agreement, Isos entered into separate subscription agreements (each, a “Common PIPE Subscription Agreement”) with a number of subscribers (each a “Common PIPE Investor”), including Isos’s Co-Chief Executive Officers, George Barrios and Michelle Wilson, and LionTree, pursuant to which, substantially concurrent with the Closing of the Merger, the Common PIPE Investors agreed to purchase, and Isos agreed to sell to the Common PIPE Investors, an aggregate of 15 million shares of New Bowlero Class A common stock (the “Common PIPE Shares”), for a purchase price of $10.00 per share and an aggregate purchase price of $150.0 million (the “Common PIPE Offering”), with the Common Subscription Agreements of George Barrios, Michelle Wilson and LionTree accounting for an aggregate of $5.0 million of the Common PIPE Offering.
In addition, Isos also contemporaneously entered into separate subscription agreements (each, a “Preferred PIPE Subscription Agreement” and together with the Common Subscription Agreements, the “PIPE Subscription Agreements”) with a number of subscribers (each, a “Preferred PIPE Investor”), pursuant to which, substantially concurrent with the Closing of the Merger, the Preferred PIPE Investors agreed to purchase, and Isos agreed to sell to the Preferred PIPE Investors, an aggregate of 95,000 shares of New Bowlero preferred stock (the “Preferred PIPE Shares”), for a purchase price of $1,000.00 per share and an aggregate purchase price of $95.0 million (the “Preferred PIPE Offering” and together with the Common PIPE Offering, the “PIPE Offerings”).
Holders of the New Bowlero preferred stock will be entitled to receive, when, as and if declared by New Bowlero Board out of funds legally available for such dividends, cumulative cash dividends at an annual rate of 5.5% on the stated amount per share plus the amount of any accrued and unpaid dividends on such share, accumulating on a daily basis and payable semi-annually on June 30 and December 31, respectively, in each year. Holders of the New Bowlero preferred stock will also be entitled to dividends paid to holders of New Bowlero common stock on an as converted basis. Holders of the New Bowlero preferred stock will be entitled to vote together as a single class with the holders of New Bowlero common stock on an as converted basis and will have consent rights over certain corporate actions of the Company. See “Description of Securities After the Business Combination — Preferred Stock” in this proxy statement/prospectus for further details.
The closings of the PIPE Offerings pursuant to the PIPE Subscription Agreements are contingent upon, among other customary closing conditions, the substantially concurrent Closing.
Pursuant to the PIPE Subscription Agreements, Isos agreed that, within 30 calendar days after the Closing, it will file with the SEC (at its sole cost and expense) a registration statement registering the resale of the Common PIPE Shares and New Bowlero Class A common stock underlying the Preferred PIPE Shares, and it will use its reasonable best efforts to have such registration statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 60th calendar day (or 90th calendar day if the SEC notifies it that it will “review” the registration statement) following the Closing and (ii) the second business day after the date Isos is notified (orally or in writing, whichever is earlier) by the SEC that the registration statement will not be “reviewed” or will not be subject to further review.
Amended and Restated Forward Purchase Contract
Contemporaneously with the execution of the Business Combination Agreement, Isos entered into an Amended and Restated Forward Purchase Contract with the subscribers named therein which amended and restated the Forward Purchase Contract dated March 2, 2021, pursuant to which, among other things the subscribers agreed
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to increase the number of Isos units they are required to purchase on closing of Isos’s initial business combination to ten million units (for an aggregate purchase price of $100.0 million), and in connection with which Isos agreed to pay to certain subscribers a fee equal to an aggregate of $3.0 million, payable upon Closing.
Stockholder Support Agreement
Following the execution of the Business Combination Agreement, Bowlero and Isos entered into a Stockholder Support Agreement with Atairos and TS (together, the “Supporting Stockholders”), pursuant to which (i) Atairos agreed to execute and deliver a written consent to Bowlero, no later than the third business day following the date that Isos’s registration statement on Form S-4 becomes effective, in respect of all shares of Bowlero owned by Atairos in favor of the Merger and approving the Business Combination Agreement and the transactions contemplated thereby, and voting against any Company Acquisition Proposal (as defined in the Business Combination Agreement) and any other action that would reasonably be expected to materially impede or delay the Merger or the transactions contemplated by the Business Combination Agreement, and (ii) the Supporting Stockholders agreed to waive any rights of appraisal and dissenters’ rights relating to the Merger. The Stockholder Support Agreement also contains restrictions on transfers of the shares of Bowlero held by the Supporting Stockholders and provides that TS will make a Stock Election (as defined in the Business Combination) with respect to all shares of Bowlero common stock held by it and that Atairos will make a Cash Election (as defined in the Business Combination Agreement) for its shares of Bowlero common stock up to 100% of the Cash Election Consideration Cap (as defined in the Business Combination Agreement) and a Stock Election with respect to its remaining shares of Bowlero common stock.
Sponsor Support Agreement
In connection with the execution of the Business Combination Agreement, Isos entered into a sponsor support agreement with Bowlero, the Sponsor and LionTree (the “Sponsor Support Agreement”). Pursuant to the Sponsor Support Agreement, the Sponsor and LionTree each agreed: (i) to vote any shares of Isos in favor of the Transactions, (ii) not to redeem any shares of Isos in connection with the stockholder redemption, (iii) to waive its anti-dilution rights with respect to its Class B ordinary shares, par value $0.0001 per share under Isos’s memorandum and articles of association, (iv) to comply with its obligations under the letter agreement dated as of March 2, 2021 (the “Insider Letter”), by and among Isos, the Sponsor and LionTree, (v) to be subject to a lock-up period of twelve months following the Closing, as further provided in the Sponsor Support Agreement, and (vi) to forgive certain indebtedness owing by Isos to the Sponsor or LionTree at the Closing in excess of $1.5 million, in the aggregate.
In addition, pursuant to the Sponsor Support Agreement, the Sponsor will forfeit for cancellation 722,196 Class B ordinary shares plus, depending on the percentage of redemptions by holders of Isos Public Shares, up to an additional 1,203,659 Class B ordinary shares, and LionTree will forfeit for cancellation 83,443 Class B ordinary shares plus, depending on the percentage of redemptions by holders of Isos Public Shares, up to an additional 139,072 Class B ordinary shares. In addition, upon Closing, 1,444,391 of the Sponsor’s Class B ordinary shares and 1,189,037 of the Sponsor’s private placement warrants and 166,887 of LionTree’s Class B ordinary shares and 430,311 of LionTree’s private placement warrants will unvest at Closing. 50% of the unvested Class B ordinary shares and 50% of the private placement warrants of each of the Sponsor and LionTree that unvested at closing will revest only to the extent the closing price of New Bowlero Class A common stock exceeds $15.00 per share and $17.50 per share, respectively, and as further provided in the Sponsor Support Agreement prior to the fifth anniversary of the Closing (with any shares and/or warrants unvested as of such date being forfeited and cancelled).
Lock-Up Agreements
Contemporaneously with the execution of the Business Combination Agreement, Isos and Bowlero entered into Lock-Up Agreements (each a “Lock-Up Agreement”) with Bowlero’s existing stockholders, pursuant to which the securities of New Bowlero held by such stockholders following Closing will be locked-up and subject to transfer restrictions, subject to certain exceptions. The securities held by such stockholders will be locked-up until the earlier of: (i) the 180 day anniversary of the Closing, (ii) the date on which the closing price of New Bowlero Class A common stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like), for any 20 trading days within any 30-trading day period following the Closing; provided that if such condition is satisfied prior to the 90 day anniversary of the Closing, such condition shall
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only be deemed to be satisfied on the 90 day anniversary of the Closing, and (iii) the date on which New Bowlero consummates a liquidation, merger, share exchange, reorganization, tender offer or other similar transaction after the Closing which results in all of New Bowlero’s stockholders having the right to exchange their shares of common stock of New Bowlero for cash, securities or other property.
Registration Rights Agreement
Contemporaneously with the execution of the Business Combination Agreement, Isos entered into an amended and restated registration rights agreement (the “Registration Rights Agreement”) with certain security holders of Bowlero, including the Supporting Stockholders, and certain of its stockholders (the “Registration Rights Holders”) that will be effective upon the Closing.
Following the Closing, subject to several exceptions, including New Bowlero’s right to defer a demand registration, shelf registration or underwritten offering under certain circumstances, the Registration Rights Holders may require that New Bowlero register for public resale under the Securities Act all shares of Class A common stock that they request to be registered at any time, subject to the restrictions in the Lock-Up Agreements, so long as the securities being registered in each registration statement or sold in any underwritten offering are reasonably expected to produce aggregate proceeds of at least $50.0 million.
If New Bowlero becomes eligible to register the sale of its securities on Form S-3 under the Securities Act, the Registration Rights Holders have the right to require New Bowlero to register the sale of the New Bowlero common stock held by them on Form S-3, subject to offering size and other restrictions. The Registration Rights Holders also have the right to request marketed and non-marketed underwritten offerings using a shelf registration statement.
If New Bowlero proposes to file certain types of registration statements under the Securities Act with respect to an offering of equity securities (including for sale by New Bowlero or at the request of the Registration Rights Holders), New Bowlero will be required to use its reasonable best efforts to offer the parties to the Registration Rights Agreement the opportunity to register the sale of all or part of their shares on the terms and conditions set forth in the Registration Rights Agreement (customarily known as “piggyback rights”).
All expenses of registration under the Registration Rights Agreement, including the legal fees of counsel chosen by stockholders participating in a registration, will be paid by New Bowlero.
The registration rights granted in the Registration Rights Agreement are subject to customary restrictions including blackout periods and, if a registration is underwritten, any limitations on the number of shares to be included in the underwritten offering as reasonably advised by the managing underwriter or underwriters. The Registration Rights Agreement also contains customary indemnification and contribution provisions.
Stockholders Agreement
Contemporaneously with the execution of the Business Combination Agreement, Isos entered into a stockholders agreement (the “Stockholders Agreement”) with Atairos and TS and their related parties. The Stockholders Agreement will become effective upon consummation of the Business Combination. Pursuant to the terms of the Stockholders Agreement, each of Atairos and TS will have the right to designate nominees for election to the New Bowlero Board following the Business Combination at any meeting of its stockholders. The number of nominees that each of Atairos and TS will be entitled to nominate pursuant to the Stockholders Agreement is dependent on their respective beneficial ownership of New Bowlero Class A common stock and New Bowlero Class B common stock. For so long as Atairos and its affiliates own (i) 15% or more of the combined New Bowlero Class A common stock and New Bowlero Class B common stock, Atairos will be entitled to designate three directors to the New Bowlero Board and (ii) less than 15% but at least 5%, Atairos will be entitled to designate one director to the New Bowlero Board. For so long as TS and its affiliates own (i) 15% or more of the combined New Bowlero Class A common stock and New Bowlero Class B common stock, TS will be entitled to designate three directors to the New Bowlero Board and (ii) less than 15% but at least 5%, TS will be entitled to designate one director to the New Bowlero Board.
In addition, the Stockholders Agreement will grant to Atairos special governance rights for so long as Atairos and its affiliates collectively maintain beneficial ownership of at least 15% of the combined New Bowlero Class A common stock and New Bowlero Class B common stock, including, but not limited to, rights of approval over certain strategic transactions such as mergers or other similar transactions in significance that is above 15% of the
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total enterprise value of New Bowlero, joint ventures involving investment or contribution in excess of 15% of the total enterprise value of New Bowlero, incurring indebtedness above a certain threshold, increasing the size of the board of directors, and issuing capital stock representing more than 15% of the outstanding common stock or creating a capital stock that is senior to the common stock.
Background to the Business Combination
The terms of the Business Combination are the result of negotiations between the representatives of Isos and Bowlero. The following is a brief description of the background of these negotiations and the resulting Business Combination.
Isos was incorporated as a Cayman Islands exempted company on December 29, 2020. Isos was incorporated for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities.
On March 5, 2021, Isos consummated the IPO of 22,500,000 units (the “Units” and, with respect to the ordinary shares included in the Units being offered, the “Public Shares”), at $10.00 per Unit, generating gross proceeds of $225,000,000. Simultaneously with the closing of the IPO, Isos consummated the sale of 5,000,000 warrants (the “Private Placement Warrants”) at a price of $1.50 per Private Placement Warrant in a private placement to the Sponsor and LionTree Partners LLC, generating gross proceeds of $7,500,000. Isos granted the underwriters in the IPO a 45-day option to purchase up to 3,375,000 additional Units to cover over-allotments, if any. On March 10, 2021, the underwriters partially exercised the over-allotment option to purchase 2,983,700 Units (the “Over-Allotment Units”), generating an aggregate of gross proceeds of $29,837,000, for total gross proceeds of $254,837,000.
The Business Combination is the culmination of an extensive search for a potential transaction utilizing the substantial deal sourcing, investing and operating expertise of our management team to identify and combine with one or more businesses with high growth potential.
Prior to the consummation of the Initial Public Offering, neither Isos, nor anyone on its behalf, engaged in any substantive discussions, directly or indirectly, with any business combination target with respect to an initial business combination with Isos.
After the Initial Public Offering, our officers, directors and advisors commenced an active search for prospective businesses or assets to acquire in our initial business combination. Representatives of Isos were contacted by, and representatives of Isos contacted, numerous individuals, financial advisors and other entities who offered to present ideas for business combination opportunities. During the search phase, the Isos management team held numerous one on one meetings with individual Isos Board members to discuss potential targets for combination.
During this search process, Isos reviewed a list of over 200 potential target companies and was in contact with and/or held meetings with twenty-five (25) potential target companies. With respect to the companies Isos evaluated, Isos executed non-disclosure agreements with eleven (11) potential target companies and conducted due diligence and held substantive discussions with six (6) potential target businesses other than Bowlero.
On March 5, 2021, representatives of J.P. Morgan’s M&A Advisory Group, acting as financial advisor to Bowlero, spoke with representatives of Isos to introduce the opportunity for Isos to consider a transaction with Bowlero. After the conversation, Isos communicated to J.P. Morgan’s M&A Advisory Group that it had an interest in learning more about Bowlero and requested information so that Isos could determine its interest in a potential business combination with Bowlero.
On March 17, 2021, Isos and Bowlero executed a non-disclosure agreement. Following execution of the non-disclosure agreement, on March 22, 2021 Bowlero management gave a video presentation to Isos management describing Bowlero’s business, management, operations and market opportunity.
On March 24, 2021, Isos received access to a virtual data room containing more detailed information on Bowlero and brought their financial advisor, LionTree, into the process. Upon receipt of data room materials, Isos and LionTree began to thoroughly diligence the opportunity.
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On March 25, 2021, the Isos Board met to discuss among other things, the status of Isos’ search for a potential business combination target. Isos management reviewed the approach to and engagement with potential business combination targets. Among fourteen (14) potential targets that were discussed with the Board, Bowlero was highlighted among three (3) other targets where Isos management had attended a management presentation and continued to do work.
On March 29, 2021, representatives from LionTree spoke with representatives from J.P. Morgan’s M&A Advisory Group about the anticipated process and timing going forward.
On April 1, 2021, Isos and LionTree submitted initial financial diligence questions to J.P. Morgan’s M&A Advisory Group.
On April 4, 2021, LionTree presented its initial analysis on the opportunity to Isos Management.
On April 4, 2021, J.P. Morgan’s M&A Advisory Group shared written responses to the initial financial diligence questions.
On April 5, 2021, Isos and LionTree attended a video conference with members of Bowlero’s management and J.P. Morgan’s M&A Advisory Group to review the Bowlero financial model and the initial financial diligence questions that had been submitted on April 1, 2021.
On April 6, 2021, Isos retained Hughes Hubbard & Reed LLP (“HHR”) as legal counsel.
On April 6, 2021, J.P. Morgan’s M&A Advisory Group, at Bowlero’s request, provided additional diligence responses to Isos and LionTree.
On April 6, 2021, J.P. Morgan’s M&A Advisory Group, at Bowlero’s request, sent Isos and LionTree a process letter indicating a deadline of April 12, 2021 for non-binding indications of interest as well as a form letter of intent including a non-binding term sheet.
On April 7, 2021, J.P. Morgan’s M&A Advisory Group, at Bowlero’s request, provided additional diligence responses to Isos.
On April 8, 2021, LionTree presented to Isos management a revised set of materials reflecting additional information received during the initial diligence process.
On April 9, 2021, J.P. Morgan’s M&A Advisory Group presented trading statistics of publicly listed companies in the experiential, theme park and dining industries and a comparison of selected operating statistics of those companies to Bowlero’s operating statitistcis, via video conference.
On April 11, 2021, J.P. Morgan’s M&A Advisory Group sent Isos and LionTree the analysis presented on the April 9, 2021 video meeting via email.
Isos Management and LionTree undertook a review of materials available to date regarding Bowlero, the materials presented by J.P. Morgan’s M&A Advisory Group on April 9, 2021, the experiential entertainment industry and recent transactions and valuations they deemed relevant. Additionally, Isos consulted with HHR on the from letter of intent received from J.P. Morgan’s M&A Advisory Group. On April 12, 2021, Isos submitted a non-binding draft letter of intent (“Draft LOI”) to representatives of J.P. Morgan’s M&A Advisory Group. The Draft LOI indicated an indicative enterprise value of $2.8 billion and raising $500 million through a private investment in public entity (“PIPE”).
On April 14, 2021, Isos management provided an update to the Isos Board regarding the engagement with Bowlero and that an indication of interest, including the Draft LOI, had been submitted to Bowlero.
On April 15, 2021, at the request of Bowlero, J.P. Morgan’s M&A Advisory Group delivered feedback to Isos and LionTree indicating that it had received letters of intent from numerous parties but that only three (3) parties (including Isos) were receiving feedback on their respective letters of intent. J.P. Morgan’s M&A Advisory Group advised that Bowlero was asking these parties to resubmit revised letters of intent on April 17, 2021 based on their respective feedback.
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Over the course of the next several days, Isos, LionTree and HHR revised the Draft LOI taking into consideration the feedback received from J.P. Morgan’s M&A Advisory Group.
On April 17, 2021, Isos submitted a letter clarifying and amending certain provisions of the Draft LOI submitted on April 12, 2021 to representatives of J.P. Morgan’s M&A Advisory Group. The amendments included increasing the minimum cash condition from $600 million to $625 million, providing for a new equity incentive plan of 15% of the outstanding common stock immediately following the closing, and including an earnout to Bowlero’s shareholders representing an incremental 10% of the base shares that would be issued to Bowlero’s stockholders in the business combination, with such earnout to vest in equal tranches at $15.00 and $17.50 share price triggers. J.P. Morgan’s M&A Advisory Group had several clarifying questions. Isos addressed these questions and J.P. Morgan’s M&A Advisory Group asked that Isos submit a revised Draft LOI reflecting these clarifying questions including an updated net debt amount provided by J.P. Morgan’s M&A Advisory Group to Isos.
On April 18, 2021, Isos submitted a revised Draft LOI to J.P. Morgan’s M&A Advisory Group reflecting the amendments in the April 17, 2021 letter. Subsequently, Isos’s management was requested to make a presentation to the Bowlero Board of Directors covering topics including, but not limited to (i) the profile of key Isos team members and their background and skill-set relevant to Bowlero’s business, (ii) Isos’s perspectives on valuation, (iii) Isos’s view of how Bowlero should trade and how the transaction should be positioned with prospective PIPE investors, (iv) the role the Isos team would play in the PIPE marketing alongside Bowlero management, and (v) how Isos’s management could assist the company post-transaction. On April 21, 2021, Isos and its advisors presented materials to the Bowlero Board of Directors.
On April 24, 2021, J.P. Morgan’s M&A Advisory Group, at Bowlero’s request, provided Isos a mark-up of the revised Draft LOI. The mark-up included clarifying items, provided for the management transaction bonus of $39.25 million, and proposed changes to certain other terms, including an increase in the indicative enterprise value from $2.8 billion to $2.9 billion.
On April 25, 2021, Isos submitted a further revised Draft LOI reflecting the changes from J.P. Morgan’s M&A Advisory Group on April 24, 2021.
On April 26, 2021, Isos management indicated to the Isos Board that Isos had been selected to move ahead with a potential business combination with Bowlero. Both parties executed the further revised Draft LOI on a non-binding basis (the “LOI” or “Letter of Intent”).
On April 27, 2021, representatives of Isos, Bowlero, J.P. Morgan’s M&A Advisory Group, J.P. Morgan’s Equity Capital Market Group, and LionTree discussed preparation for the due diligence process, PIPE process and definitive documentation.
After signing the LOI, Isos reduced its interactions with other potential target companies as required by the LOI’s exclusivity provisions and over the next several weeks, Isos and its representatives continued their due diligence of Bowlero.
On May 4, 2021, Isos management provide the members of the Isos Board an update on its review including Isos management’s views on Bowlero and the potential growth drivers of the business, an overview of the proposed transaction, key highlights of the non-binding LOI and next steps and illustrative timing of a potential business combination.
On May 7, 2021, Isos retained a third-party advisor to assist Isos in its tax and financial due diligence efforts.
During the diligence review, Isos and its advisors submitted a detailed due diligence request list covering areas including but not limited to general corporate, business/operational, financial/accounting, tax, real property, contracts, intellectual property, information technology, employee benefits, labor matters, environmental matters, insurance, litigation, compliance, public company preparedness, and CFIUS/Trade. Isos and its representatives continued their due diligence review including reviewing all materials in the Data Room, requesting additional documentation, reviewing additional information provided, and holding multiple due diligence video and telephonic conferences with Bowlero’s management team, employees and advisors. Additional information was provided in the Data Room and a number of follow-up diligence calls were hosted over the next several weeks as requested by Isos and its advisors. Such diligence continued as requested by Isos up through negotiation and finalization of the definitive documentation and associated schedules.
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On May 12, 2021, J.P. Morgan’s Equity Capital Market Group and LionTree acting as Placement Agents for Isos began to contact potential PIPE investors.
On May 23, 2021, Isos management sent the Isos Board materials to be discussed at the upcoming board meeting on May 25, 2021.
On May 25, 2021, Isos management reviewed the materials previously sent to the Isos Board. During the meeting, the Isos management team again reviewed its approach to and engagement with potential targets, the transaction overview with Bowlero, an overview of the due diligence taking place including the retainment of HHR and a third-party advisor to assist in the diligence process, an update on the PIPE process as well as an update on the draft Business Combination Agreement.
On June 1, 2021, J.P. Morgan’s Equity Capital Market Group and LionTree provided an update on the PIPE process including both highlights and considerations from investors, as well as updated Isos on the PIPE market for SPACs generally.
On June 3, 2021 J.P. Morgan and LionTree provided another update on the PIPE process including received as well as potential indications of interest for the PIPE. The indications of interest received were almost entirely at valuations below the $2.9 billion valuation in the LOI. One indication had proposed an investment in the form of a convertible preferred security instead of the proposed common stock consideration for PIPE investors.
On June 8, 2021, J.P. Morgan’s Equity Capital Market Group and LionTree provided another update on the PIPE process including an illustrative common stock order book of approximately $250 million at a $2.6 billion post money enterprise value. Additionally, J.P. Morgan’s Equity Capital Market Group indicated that several investors were interested in a convertible preferred investment that could be offered in addition to the proposed common PIPE offering.
Over the next week, representatives of LionTree spoke with representatives of Apollo as it related to the existing Forward Purchase Contract, status of the PIPE process and negotiations among the parties. In these discussions, the parties contemplated the terms under which Apollo would increase its commitment from approximately $64 million to $100 million under the Forward Purchase Contract.
On June 15, 2021, J.P. Morgan’s Equity Capital Markets Group and LionTree provided another update on the status of the PIPE including continuing conversations with potential investors for both common stock and the convertible preferred investments.
Taking into consideration the update on the PIPE process including the level of interest at a $2.6 billion post-money enterprise valuation, members of J.P. Morgan’s M&A Advisory Group reached out to Isos management and suggested the Sponsor and LionTree consider the possibility of forfeiting certain of their founder shares and/or tying vesting of a portion of their founder shares to the percentage of redemptions from the trust account. Representatives of LionTree communicated to a representative of J.P. Morgan’s M&A Advisory Group that the Sponsor and LionTree were prepared to amend the already agreed to vesting of 25% of their founder shares, from 12.5% at a share price of $12.50 and 12.5% at a share price of $15.00, to the same number of shares at higher share price triggers (of $15.00 and $17.50, respectively). A representative of J.P. Morgan’s M&A Advisory Group then communicated to Isos management and LionTree a counterproposal regarding the Sponsor’s and LionTree’s economics, including accepting the change to the $15.00 and $17.50 price triggers proposed by the Sponsor and LionTree, but also including the forfeiture of 15% of the Sponsor’s and LionTree’s founder shares and subjecting 30% of their founder shares to forfeiture (pro rata, with the maximum forfeiture based on $80 million of redemptions). Isos management then communicated a counter-proposal to a member of J.P. Morgan’s M&A Advisory Group including the forfeiture of 10% of the Sponsor’s and LionTree’s founder shares and subjecting 15% of their founder shares to forfeiture (pro rata, with the maximum forfeiture based on $80 million of redemptions). A member of J.P. Morgan’s M&A Advisory Group reached out to Isos management and communicated that Bowlero would agree only to change the cap of forfeitable shares based on redemptions to 25% (rather than the 30% proposed by Bowlero). Isos agreed to the Bowlero proposal.
On June 18, 2021, the Isos and Bowlero reached agreement on a revised post-money valuation of $2.6 billion as well as modifications to select other terms. Following such agreement, a revised transaction summary and comparison to the previous transaction summary was provided to PIPE investors on June 21, 2021.
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On June 19, 2021, Isos management updated the Isos Board as to the progress on the potential business combination with Bowlero and requested an upcoming meeting of the Isos Board to further discuss the transaction.
During the next several days, the parties and their representatives continued and then finalized negotiation and drafting of definitive documentation including the Business Combination Agreement and ancillary agreements, the Common Subscription Agreements and the Preferred Subscription Agreements.
On June 28, 2021, Isos management sent a package of materials to the Isos Board for its review prior the June 30, 2021 meeting of the Isos Board.
On June 30, 2021, the Isos Board met to discuss the potential Business Combination with Bowlero. During this meeting, representatives from Maples and Calder LLP, Isos’s Cayman Islands legal counsel, reviewed Board of Director duties under Cayman Islands law, and representatives from HHR reviewed the Business Combination Agreement and ancillary agreements. Isos’s management presented its view on the transaction and its recommendation to enter into the Business Combination Agreement. There was discussion among the parties and HHR reviewed the proposed Board resolutions. The Isos Board then unanimously approved proceeding with the Business Combination and the related transactions, including the PIPE Offerings.
On July 1, 2021, Isos and Bowlero executed the Business Combination Agreement and the related agreements. Following execution of the agreements, Isos and Bowlero issued a press release announcing the execution of the Business Combination Agreement and Isos filed a Form 8-K with the SEC, including a copy of the press release, Business Combination Agreement and ancillary documentation.
The Isos Board’s Reasons for the Business Combination
The Isos Board considered a variety of factors in connection with its evaluation of the Business Combination. In light of the complexity of those factors, the Isos Board, as a whole, did not consider it practicable to, nor did it attempt to, quantify or otherwise assign relative weights to the specific factors it took into account in reaching its decision. Individual members of the Isos Board may have given different weight to different factors. Certain information presented in this section is forward-looking in nature and, therefore, should be read in light of the factors discussed under “Cautionary Note Regarding Forward-Looking Statements.”
Before reaching its decision, the Isos Board considered the results of the due diligence conducted by its management and advisors, which included:
• extensive meetings and calls with Bowlero’s management team and advisors regarding, among other things, operations, partnerships, plans and forecasts;
• review of material contracts and other documentation;
• financial, tax, legal, insurance, accounting, operational, business and other due diligence;
• consultation with Isos’s management and its legal counsel and LionTree;
• review of historical financial performance of Bowlero (including audited and unaudited financials) and Bowlero’s management projections for Bowlero’s business; and
• financial and valuation analyses of Bowlero and the Business Combination.
In the prospectus for the IPO, Isos had disclosed that, although it could pursue an acquisition opportunity in any industry or sector, it intended to focus on businesses in the digital media and entertainment sectors. As it related to Bowlero, the Isos Board determined that pursuing a potential business combination with Bowlero would be an attractive opportunity for Isos and its stockholders for a number of reasons, including, but not limited to, (i) Bowlero’s position as the world’s largest operator of bowling centers in a fragmented global market, (ii) Bowlero’s branded experience positioned to capitalize on the demand for experiential entertainment, (iii) Bowlero’s historical financials with consistent organic growth, high unit margin and strong free cash flow conversion, (iv) the opportunity to grow Bowlero across multiple organic and adjacent growth vectors, and (v) Bowlero’s experienced and proven management team.
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In addition, based on its review of the industry data and the operational, financial and other relevant information related to the Bowlero business provided by Bowlero and presented to the Isos Board, the factors considered by the Isos Board included, but not limited to, the following:
• Bowlero’s Leading Position in the Bowling Industry. Bowlero is the largest operator of bowling centers in the world, including 321 centers in North America (including current locations, locations in development, and locations under letters of intent) and 26 million guests as of and for the twelve-month period ended February 2020. The bowling industry is highly fragmented, with Bowlero’s footprint being eight times larger than its next largest competitor and with more than approximately 3,500 independent operators. This fragmentation presents a consolidation opportunity to drive further growth. Bowling is the largest participatory sport in the U.S., with approximately 70 million people bowling each year.
• Large and Growing Addressable Market. The transaction supports the continued expansion of Bowlero’s footprint in the $4.5 billion total addressable U.S. bowling market — which has grown 50% over last decade — while becoming the dominant player in the $11 billion global bowling market and capturing a growing piece of the $100 billion global out-of-home entertainment market.
• Premium Branded Experience. Bowlero has established itself as the premier operator in the bowling industry, attracting a robust and diverse demographic of consumers looking for premium entertainment. Consumers repeatedly visit Bowlero not just for its bowling offering, but for its full circle entertainment experience
• Incremental Upside Through PBA Ownership. The PBA benefits the leisure business by creating a virtuous cycle of recognition and engagement. The league carries strong brand equity and prestige among bowlers, which is carried over to centers. The PBA is currently a profitable standalone venture with a path to incremental sponsorship revenue and realizing greater value of its media rights
• Potential to Drive Growth Through Gaming and Sports Betting. Bowlero’s unique opportunity to create multiple ways for their customers to enjoy the gaming experience. This could include traditional sports betting on the PBA as well as in-center and peer-to-peer gaming and betting. As an example, Bowlero already has a partnership with Skillz, connecting 40mm Skillz players worldwide with Bowlero’s over 321 bowling centers and 26 million annual guests nationwide.
• Experienced and Capable Management Team. Following completion of the Business Combination, Bowlero will continue to be led by the proven senior management team as prior to the Business Combination. Michelle Wilson and George Barrios will join the New Bowlero Board, with their experience in premium experiential entertainment, global growth, media and entertainment, digital transformation and leading companies in the public market.
• Attractive Valuation. The Isos Board’s determination that if Bowlero is able to meet its financial projections, then Isos’s stockholders will have acquired their shares in New Bowlero at an attractive valuation, which would increase shareholder value.
• Other Alternatives. The Isos Board’s belief, after a thorough review of other business combination opportunities reasonably available to Isos, that the Business Combination represents an attractive potential business combination for Isos.
• Terms and Conditions of the Business Combination Agreement. The terms and conditions of the Business Combination Agreement and the Business Combination were the product of arm’s-length negotiations between the parties.
• Continued Ownership by Holders of Bowlero Capital Stock. The Isos Board considered that the holders of Bowlero Common Stock would continue to be significant shareholders of New Bowlero after Closing, with all holders of Bowlero Common Stock entering into Lock-Up Agreements.
• Involvement of the PIPE Investors. The Isos Board considered that the agreement of the investors in the PIPE Offerings, including Isos’s co-founders, LionTree, existing holders of Bowlero Capital Stock and new investors in the PIPE Offerings, to invest an aggregate of $345.0 million in New Bowlero at Closing was a validation of Bowlero’s valuation and future prospects.
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• Bowlero Being an Attractive Target. The Isos Board considered the fact that Bowlero (i) is of a sufficient size relevant to the public marketplace, (ii) has an experienced existing management team, (iii) has a significant total addressable market and expansion opportunities, and (iv) would benefit from the consummation of the Business Combination by becoming a public company and receiving the net proceeds of the Business Combination, which the Isos Board believed would allow Bowlero to effectuate its business plan and improve Bowlero’s ability to meet its financial projections.
In the course of its deliberations, in addition to the various other risks associated with the business of Bowlero, as described in the section titled “Risk Factors” appearing elsewhere in this proxy statement/prospectus, the Isos Board also considered a variety of uncertainties, risks and other potentially negative reasons relevant to the Business Combination, including the following:
• Macroeconomic Risks Generally. Macroeconomic uncertainty, particularly the potential impact of the COVID-19 pandemic and future COVID-19 developments, and the effects they could have on New Bowlero’s revenues and financial performance.
• Business Plan and Projections May Not be Achieved. The risk that Bowlero may not be able to execute on its business plan and realize the financial performance as set forth in the financial projections presented to management of Isos and the Isos Board.
• No Fairness Opinion. The risk that Isos did not obtain a fairness opinion in connection with the Business Combination.
• Liquidation. The risks and costs to Isos if the Business Combination is not completed, including the risk of diverting management focus and resources from other businesses combination opportunities, which could result in Isos being unable to effect a business combination within the completion window, which would require Isos to liquidate.
• Stockholder Vote and Other Actions. The risk that Isos Stockholders may object to and challenge the Business Combination and take action that may prevent or delay the Closing, including to vote down the Proposals at the Special Meeting or redeem their Isos Public Shares.
• Closing Conditions. The fact that completion of the Business Combination is conditioned on the satisfaction of certain closing conditions that are not within Isos’s control.
• Isos’s Stockholders Holding a Minority Position in the Post-Combination Company. The fact that existing Isos stockholders will hold a minority position in New Bowlero following completion of the Business Combination and that Mr. Shannon will control New Bowlero.
• Litigation. The possibility of litigation challenging the Business Combination or that an adverse judgment granting permanent injunctive relief could indefinitely enjoin consummation of the Business Combination.
• Fees and Expenses. The fees and expenses associated with completing the Business Combination.
• Redemptions. The risk that holders of Public Shares would exercise their redemption rights, thereby depleting the amount of cash available in the trust account.
• NYSE Listing. The potential inability to maintain the listing of New Bowlero’s securities on the NYSE following the Closing.
• Valuation. The risk that the Isos Board may not have properly valued Isos’s business.
• Distraction to Operations. The risk that the potential diversion of Bowlero’s management and employee attention as a result of the Business Combination may adversely affect Bowlero’s operations.
• Readiness to be a Public Company. As Bowlero has not previously been a public company, Bowlero may not have all the different types of employees necessary for it to timely and accurately prepare reports for filing with the SEC. There is a risk that Bowlero will not be able to hire the right people to fill in these gaps by the time of the Closing or that additional issues could arise after the Closing due to its failure to have hired these people in advance of Closing.
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In addition to considering the factors described above, the Isos Board also considered that:
• Interests of Certain Persons. The Sponsor, LionTree, and certain officers and directors of Isos may have interests in the Business Combination as individuals that are in addition to, and that may be different from, the interests of Isos’s stockholders (see section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination”).
After considering the foregoing, the Isos Board concluded, in its business judgment, that the potential benefits to Isos and its stockholders relating to the Business Combination outweighed the potentially negative factors and risks relating to the Business Combination.
Certain Forecasted Information for Bowlero
Bowlero provided Isos with internally prepared forecasts for the periods ending June 30th, 2021, 2022 and 2023 and December 31, 2022 and 2023. The forecasts were prepared solely for internal use, capital budgeting and other management purposes. The forecasts are subjective in many respects and therefore susceptible to varying interpretations and the need for periodic revision based on actual experience and business developments, and were not intended for third-party use, including by potential investors or existing stockholders. You are cautioned not to rely on the forecasts in making a decision regarding the transaction, as the forecasts may be materially different from actual results. Please also see “Cautionary Note Regarding Forward-Looking Statements.”
The forecasts reflect numerous assumptions, including assumptions with respect to general business, economic, market, regulatory and financial conditions, and various other factors, all of which are difficult to predict and many of which are beyond Bowlero’s control, such as the risks and uncertainties contained in the section entitled “Risk Factors.” Furthermore, the forecasts do not take into account any circumstances or events occurring after the date on which the projections were prepared, which was on or around May 15, 2021.
Bowlero’s forecast was based on several assumptions, including, among other things: the growth of the overall bowling market, of which Bowlero is the market leader, which has grown over 50% in the last decade; Bowlero’s ability to continue optimizing and strategically invest in its existing centers to drive growth; Bowlero’s plan to build new center’s in high growth markets, while opportunistically acquiring and modernizing existing centers at attractive values; Bowlero’s ability to strategically acquire other chain competitors in the Bowling ecosystem, Bowlero’s ability to optimize and further monetize its ownership of the Professional Bowler’s Association (PBA) and its associated media rights.
Bowlero believes that the assumptions used to derive its forecasts are both reasonable and supportable. In preparing the models, Bowlero’s management relied on a number of factors, including the executive team’s significant experience in the Bowling industry and the actual historical performance of Bowlero.
Although the assumptions and estimates on which the forecasts for revenues and costs are based are believed by Bowlero’s management to be reasonable and based on the best then currently available information, the financial forecasts are forward-looking statements that are based on assumptions that are inherently subject to significant uncertainties and contingencies, many of which are beyond Bowlero’s and Isos’s control. There will be differences between actual and forecasted results, and actual results may be materially greater or materially less than those contained in the forecasts. The inclusion of the forecasted financial information in this proxy statement/prospectus should not be regarded as an indication that Bowlero, Isos or their respective representatives considered or consider the forecasts to be a reliable prediction of future events, and reliance should not be placed on the forecasts.
The forecasts were disclosed to Isos for use as a component in its overall evaluation of Bowlero and are included in this proxy statement/prospectus on that account, subject to standard caveats with respect to forward-looking statements. Neither Bowlero’s management nor any of its representatives has made or makes any representation to any person regarding the ultimate performance of Bowlero compared to the information contained in the forecasts, and none of them intends to or undertakes any obligation to update or otherwise revise the forecasts to reflect circumstances existing after the date when made or to reflect the occurrence of future events in the event that any or all of the assumptions underlying the forecasts are shown to be in error. Accordingly, they should not be looked upon as “guidance” of any sort. New Bowlero will not refer back to these forecasts in its future periodic reports filed under the Exchange Act.
Bowlero does not as a matter of course make public projections as to future sales, earnings, or other results. However, management of Bowlero has prepared the prospective financial information set forth below to present to Isos for use as a component in its overall evaluation of Bowlero and are included in this proxy
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statement/prospectus for that reason. The accompanying prospective financial information was not prepared with a view toward public disclosure or with a view toward complying with the guidelines established by the American Institute of Certified Public Accountants with respect to prospective financial information. This information is not fact and should not be relied upon as being necessarily indicative of future results, and readers of this proxy statement/prospectus are cautioned not to place undue reliance on the prospective financial information.
Neither Bowlero’s independent auditors, nor any other independent accountants, have compiled, examined, or performed any procedures with respect to the prospective financial information contained herein, nor have they expressed any opinion or any other form of assurance on such information or its achievability, and assume no responsibility for, and disclaim any association with, the prospective financial information.
In connection with the consideration by the Isos Board of the proposed Business Combination Agreement, Isos’s management presented to the Isos Board the forecasts for 2021 – 2023 from Bowlero that were then available. The key elements of the forecasts considered at that time by the Isos Board are summarized below:
|
|
|
Fiscal Year Ending 6/30
|
|
($ in millions)
|
|
2021E
|
|
2022E
|
|
CY2022E
|
|
2023E
|
|
CY2023E
|
|
Revenue
|
|
$
|
386
|
|
$
|
772
|
|
$
|
859
|
|
$
|
904
|
|
$
|
949
|
|
Adjusted EBITDA
|
|
$
|
92
|
|
$
|
244
|
|
$
|
275
|
|
$
|
292
|
|
$
|
304
|
Bowlero Corporation Revenue in calendar year (“CY”) 2022 is projected to be $859 million, which represents a compound annual growth rate (CAGR) of 7.7% from CY2019 to CY2022. Existing center revenue is projected to be 98% of pre-pandemic peak in FY2022 and 105% of peak by CY2022. This assumption is supported by the performance of our centers, which have achieved an average of 124.8% of FY2019 Total Company revenue levels over the past nine weeks.
Over the last 8 years, the Company has grown through a combination of reinvestment in existing centers (upgrades, brand conversions and game room installations), new construction of centers and via acquisition.
The model assumes that the Company converts 10 centers per year and that it completes installing game rooms throughout the portfolio. In addition, the Company is projected to add a chain acquisition with $20 million in revenues in FY22 (closed deal), add 10 center acquisitions per year at $2.5 in revenue per center, and 6 new builds in FY2022 and 5 new builds per year starting in FY2023 at $5.6 million in revenue per center. The Company has opened 4 of the planned to be open by FY2022 new builds and the other two are under construction. The Company has already closed five of the center acquisitions and has 1 additional under PSA as well as additional active deals in the pipeline at varying stages of completeness.
The Company projects CY22 Center Level EBITDA to be $322 million, which represents a 10.8% CAGR from CY2019 to CY2022. EBITDA Margin is projected to improve 352 basis points from 34.6% in CY2019 to 38.2% in CY2022 driven by a 199 basis point improvement on Center Payroll Expense and Operating Expenses reductions, primarily in R&M and advertising expenses.
Total Company EBITDA is projected to be $275 million in CY2022, which represents an 11.7% CAGR from CY2019 to CY2022. Total Company EBITDA margin is expected to improve 330 basis points as SG&A improves 344 basis to 8.5% of Revenue driven by savings realized during the Coronavirus Pandemic and revenue growth.
Scale: Dollars in thousands
|
|
|
FY2019A
|
|
2019A(1)
|
|
FY2020A
|
|
FY2021E
|
|
FY2022E
|
|
2022E(1)
|
|
FY2023
|
|
2023E(1)
|
|
Total Revenue
|
|
$
|
666,120
|
|
$
|
684,824
|
|
$
|
518,259
|
|
$
|
385,966
|
|
$
|
771,850
|
|
$
|
858,678
|
|
$
|
903,593
|
|
$
|
949,485
|
|
Total Center Level EBITDA(2)
|
|
$
|
234,038
|
|
$
|
237,219
|
|
$
|
144,715
|
|
$
|
109,697
|
|
$
|
287,856
|
|
$
|
322,275
|
|
$
|
339,485
|
|
$
|
353,407
|
|
EBITDA(2)
|
|
$
|
151,785
|
|
$
|
154,603
|
|
$
|
77,576
|
|
$
|
54,824
|
|
$
|
220,420
|
|
$
|
251,763
|
|
$
|
268,460
|
|
$
|
279,367
|
|
Pro Forma Adjustments(3)
|
|
$
|
35,139
|
|
$
|
43,242
|
|
$
|
83,173
|
|
$
|
37,297
|
|
$
|
23,211
|
|
$
|
23,623
|
|
$
|
23,829
|
|
$
|
24,148
|
|
Consolidated Adjusted EBITDA(4)
|
|
$
|
186,924
|
|
$
|
197,845
|
|
$
|
160,749
|
|
$
|
92,121
|
|
$
|
243,631
|
|
$
|
275,386
|
|
$
|
292,290
|
|
$
|
303,515
|
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Comparable Company Analysis
In connection with its approval of the Business Combination Agreement, the Isos Board considered comparisons of illustrative enterprise valuations and the implied EBITDA multiples derived from comparable companies in the Out of Home Entertainment, Amusement, O&O Dining & Leisure, and Live Events/Sports sectors.
The Isos Board recognized that no company was identical in nature to Bowlero. The Isos Board also recognized that the information was reliant upon Bowlero and the comparable companies achieving their projections.
In connection with its approval of the Merger Agreement, the Isos Board was provided with, among other things, (i) estimated pro forma post-transaction enterprise value of New Bowlero at the transaction announcement and (ii) estimated pro forma enterprise value of New Bowlero as a multiple of estimated future EBITDA at the transaction announcement. The table below sets forth such information, along with the illustrative enterprise valuations and the implied EBITDA multiples of the comparable companies as of the date of announcement.
|
|
|
Enterprise Value
|
|
Enterprise Value/EBITDA
|
|
($ in billions)
|
|
At
Announcement(1)
|
|
Year
|
|
At
Announcement(1)
|
|
Bowlero(2)
|
|
$
|
2.6
|
|
CY 2022E
|
|
9.5x
|
|
|
|
|
|
|
|
|
|
|
Out of Home Entertainment
|
|
|
|
|
|
|
|
|
Live Nation Entertainment Inc.
|
|
$
|
24.8
|
|
CY 2022E
|
|
21.9x
|
|
Vail Resorts Inc.
|
|
|
15.6
|
|
CY 2022E
|
|
17.7x
|
|
Callaway Golf Co.
|
|
|
7.4
|
|
CY 2022E
|
|
18.4x
|
|
Dave & Busters Entertainment Inc.
|
|
|
2.5
|
|
CY 2022E
|
|
7.2x
|
|
|
|
|
|
|
|
|
|
|
Amusement
|
|
|
|
|
|
|
|
|
Six Flags Entertainment Corp.
|
|
$
|
6.8
|
|
CY 2022E
|
|
12.4x
|
|
Seaworld Entertainment Inc.
|
|
|
5.9
|
|
CY 2022E
|
|
10.5x
|
|
Cedar Fair L.P.
|
|
|
5.3
|
|
CY 2022E
|
|
9.5x
|
|
|
|
|
|
|
|
|
|
|
O&O Dining & Leisure
|
|
|
|
|
|
|
|
|
Darden Restaurants, Inc.
|
|
$
|
19.1
|
|
CY 2022E
|
|
11.7x
|
|
Texas Roadhouse Inc.
|
|
|
6.6
|
|
CY 2022E
|
|
13.8x
|
|
Cheesecake Factory Inc.
|
|
|
3.3
|
|
CY 2022E
|
|
10.9x
|
|
Chuy’s Holdings Inc.
|
|
|
0.7
|
|
CY 2022E
|
|
11.4x
|
|
|
|
|
|
|
|
|
|
|
Live Events/Sports
|
|
|
|
|
|
|
|
|
Liberty Formula One
|
|
$
|
12.7
|
|
CY 2022E
|
|
22.2x
|
|
World Wrestling Entertainment, Inc.
|
|
|
4.9
|
|
CY 2022E
|
|
13.7x
|
|
Manchester United Plc
|
|
|
3.1
|
|
CY 2022E
|
|
11.2x
|
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Satisfaction of 80% Test
It is a requirement under the Cayman Constitutional Documents and the NYSE Listed Company Manual that the business or assets acquired in an initial business combination have a fair market value equal to at least 80% of the balance of the funds in the trust account (excluding the deferred underwriting discounts and commissions and taxes payable on the income earned on the trust account) at the time of the execution of a definitive agreement for an initial business combination. Based on the pre-transaction enterprise value for Bowlero compared to the trust account balance (excluding deferred underwriters’ compensation) as of the date of the execution of the Business Combination Agreement, the Isos Board determined that this requirement was met. The Isos Board determined that the consideration being paid in the Business Combination, which amount was negotiated at arms-length, were fair to and in the best interests of Isos and its stockholders and appropriately reflected Bowlero’s value. In reaching this determination, the board concluded that it was appropriate to base such valuation in part on qualitative factors, such as management strength and depth, as well as quantitative factors such as Isos’s future growth outlook and historical financial results. The Isos Board believes that the financial skills and background of its members qualify it to conclude that the acquisition of Bowlero met this requirement.
Interests of the Sponsor Related Persons in the Business Combination
When you consider the recommendation of Isos’s board of directors in favor of approval of the BCA Proposal, you should keep in mind that the Sponsor, LionTree and Isos’s directors and executive officers have interests in such proposal that are different from, or in addition to, those of Isos shareholders and warrant holders generally. These interests include, among other things, the interests listed below:
• the 3,963,458 private placement warrants purchased by the Sponsor and the 1,434,370 private placement warrants purchased by LionTree in connection with the IPO for approximately $5.9 million and $2.2 million, respectively (which would be valued at approximately $4.2 million and $1.5 million, respectively, based on the $1.05 closing price of Isos warrants on September 10, 2021), will be worthless if a business combination is not consummated by March 5, 2023 (as may be extended);
• the fact that Sponsor paid a nominal amount for its 5,814,636 founder shares and LionTree paid a nominal amount for its 556,289 founder shares, which such founder shares (if unrestricted and freely tradeable), would be valued at approximately $57.8 million and $5.5 million, respectively, based on the $9.94 closing price of Isos Class A common stock on September 10, 2021, and that such shares will be worthless if a business combination is not consummated;
• the fact that Sponsor and LionTree have agreed not to redeem any of their founders shares in connection with a stockholder vote to approve a proposed initial business combination;
• the fact that upon consummation of the Business Combination, the Sponsor and LionTree are expected to hold an economic ownership in New Bowlero as further described in “Summary of the Proxy Statement/Prospectus — Ownership of New Bowlero following the Business Combination” through their ownership of founder shares as described above;
• the fact that upon completion of the Business Combination, an aggregate amount of $8.6 million in M&A advisory fees, $3.6 million in deferred underwriters’ compensation, and $1.8 million of placement agent fees (payable in connection with the PIPE Offerings) will be payable to LionTree;
• if the trust account is liquidated, including in the event Isos is unable to complete an initial business combination within the required time period, the Sponsor and LionTree have agreed to indemnify Isos to ensure that the proceeds in the trust account are not reduced below $10.00 per public share by the claims of prospective target businesses with which Isos has entered into an acquisition agreement or claims of any third party for services rendered or products sold to Isos , but only if such a vendor or target business has not executed a waiver of any and all rights to seek access to the trust account;
• the fact that Isos’s existing officers and directors will be eligible for continued indemnification and continued coverage under a directors’ and officers’ liability insurance policy after the business combination and pursuant to the Business Combination Agreement; and
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• George Barrios and Michelle Wilson, Isos’s Co-Chief Executive Officers, each of whom is currently a director of Isos, are expected to be directors of New Bowlero after the consummation of the Business Combination, in connection with which they may receive fees for their service as directors.
These interests may influence Isos’s officers and directors in making their recommendation with regard to Isos stockholders’ vote on the Proposals.
The Sponsor and LionTree have agreed to vote in favor of the Business Combination, regardless of how our public shareholders vote. Unlike some other blank check companies in which the initial shareholders agree to vote their shares in accordance with the majority of the votes cast by the public shareholders in connection with an initial business combination, the Sponsor and LionTree have agreed to, among other things, vote in favor of the Business Combination Agreement and the transactions contemplated thereby, in each case, subject to the terms and conditions contemplated by the Sponsor Support Agreement. As of the date of this proxy statement/prospectus, the Sponsor and LionTree collectively own 20.0% of Isos’s issued and outstanding ordinary shares.
Interests of the Bowlero Related Parties in the Business Combination
In considering the recommendation of Bowlero’s board of directors in favor of approval of the Business Combination and the BCA Proposal, you should keep in mind that certain members of the board of directors and executive officers of Bowlero (including Mr. Shannon), as well as Atairos have interests in such proposal that are different from, or in addition to, those of your interests as a stockholder. These interests include, among other things, the interests listed below:
• Certain of Bowlero’s directors and executive officers are expected to become directors and/or executive officers of New Bowlero upon the closing of the Business Combination.
• Certain of Bowlero’s executive officers hold stock options of Bowlero. The treatment of such equity awards in connection with the Business Combination is described in “The BCA Proposal — The Business Combination Agreement — Conversion/Exchange of Securities,” which description is incorporated by reference herein.
• Certain of Bowlero’s directors hold shares of Bowlero. The treatment of such shares in connection with the Business Combination is described in “The BCA Proposal — The Business Combination Agreement — Conversion/Exchange of Securities,” which description is incorporated by reference herein.
• Each of Mr. Shannon and Mr. Parker are eligible to receive a transaction bonus upon the consummation of the Business Combination. The amount of Mr. Shannon’s bonus is approximately $28.5 million, and is payable 50% in cash and 50% in the form of fully vested shares of New Bowlero Class B common stock. The amount of Mr. Parker’s bonus is approximately $10.8 million, and is payable in cash. Such transaction bonuses are described in “Executive Compensation,” which description is incorporated by reference herein.
• Each of Mr. Shannon and Mr. Parker are expected to enter into a new employment agreement that will be effective upon the closing of the Business Combination. The material terms that are anticipated to be included in such agreements are described in “Executive Compensation,” which description is incorporated by reference herein.
• Each of Mr. Shannon, Atairos and Mr. Parker will be entitled to receive 47.59%, 47.59% and 4.821% of the Earnout Shares, respectively, as described in “The BCA Proposal — The Business Combination Agreement — Conversion/Exchange of Securities.”
• Each of Mr. Shannon and Atairos will be entitled to receive Per Share Forfeited Share Consideration, which for each of Mr. Shannon and Atairos will be equal to 402,819.50 shares, assuming no redemptions, and 1,074,185 shares, assuming maximum redemptions.
• Mr. Shannon will have voting control as described in “Beneficial Ownership of Securities.”
• Each of Atairos and Mr. Shannon will have board nomination rights and Atairos will also have consent rights under the Stockholders Agreement.
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Vote Required for Approval
The approval of the BCA Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
The BCA Proposal is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, the BCA Proposal will have no effect, even if approved at the extraordinary general meeting.
Resolution
The full text of the resolution to be passed is as follows:
“RESOLVED, as an ordinary resolution, that Isos’s entry into the Business Combination Agreement, dated as of July 1, 2021 with Bowlero Corp. (“Bowlero”), a Delaware corporation (a copy of which is attached to the proxy statement/ prospectus as Annex A), pursuant to which, among other things, following the Domestication of Isos to Delaware, Bowlero will merge with and into Isos, with Isos surviving the merger, in accordance with and subject to the terms and conditions of the Business Combination Agreement, be approved, ratified and confirmed in all respects.”
Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF THE BCA PROPOSAL.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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THE DOMESTICATION PROPOSAL
Overview
As discussed in this proxy statement/prospectus, if the BCA Proposal is approved, then Isos is asking its shareholders to approve the Domestication Proposal. If, however, the Domestication Proposal is approved, but the BCA Proposal is not approved, then neither the Domestication nor the Merger will be consummated.
The board of directors of Isos has unanimously approved a change of Isos’s jurisdiction of incorporation by deregistering as an exempted company in the Cayman Islands and continuing and domesticating as a corporation incorporated under the laws of the State of Delaware. In accordance with Isos’s Plan of Domestication (included as an exhibit to the registration statement of which this proxy statement/prospectus is a part), to effect the Domestication, Isos will file a notice of deregistration with the Cayman Islands Registrar of Companies, together with the necessary accompanying documents, and file a certificate of incorporation and a certificate of corporate domestication with the Secretary of State of the State of Delaware, under which Isos will be domesticated and continue as a Delaware corporation.
As a result of and upon the effective time of the Domestication, (i) each outstanding Isos Class A ordinary share will be converted into one share of New Bowlero Class A common stock, (ii) each outstanding Isos Class B ordinary share will be converted into one share of New Bowlero Class A common stock, (iii) each warrant will automatically be modified to entitle the holder to acquire one share of New Bowlero Class A common stock (rather than one share of Isos Class A ordinary share), at $11.50 per share, (iv) each outstanding Isos unit that has not been previously separated will be cancelled and entitle the holder to one share of New Bowlero Class A common stock and one-third of a warrant to acquire New Bowlero Class A common stock, and (v) the governing documents of New Bowlero will be the Proposed Certificate of Incorporation and the Proposed Bylaws.
The Domestication Proposal, if approved, will approve a change of Isos’s jurisdiction of incorporation from the Cayman Islands to the State of Delaware. Accordingly, while Isos is currently governed by the Cayman Islands Companies Act, upon the Domestication, following the Domestication, Isos will be governed by the DGCL. We encourage shareholders to carefully consult the information set out below under “Comparison of Corporate Governance and Stockholder Rights.” Additionally, we note that if the Domestication Proposal is approved, then Isos will also ask its shareholders to approve the Organizational Documents Proposals (discussed below), which, if approved, will replace Isos’s current memorandum and articles of association under the Cayman Islands Companies Act with a new certificate of incorporation and bylaws under the DGCL. The Proposed Organizational Documents differ in certain material respects from the Cayman Constitutional Documents and we encourage shareholders to carefully consult the information set out below under “The Organizational Documents Proposals,” the Cayman Constitutional Documents of Isos and the Proposed Organizational Documents of New Bowlero attached hereto as Annexes B and C.
Reasons for the Domestication
Our board of directors believes that there are significant advantages to us that will arise as a result of a change of our domicile to Delaware. Further, our board of directors believes that any direct benefit that the DGCL provides to a corporation also indirectly benefits its stockholders, who are the owners of the corporation.
The board of directors of Isos believes that there are several reasons why a reincorporation in Delaware is in the best interests of Isos and its shareholders. As explained in more detail below, these reasons can be summarized as follows:
• Prominence, Predictability, and Flexibility of Delaware Law. For many years, Delaware has followed a policy of encouraging incorporation in its state and, in furtherance of that policy, has been a leader in adopting, construing, and implementing comprehensive, flexible corporate laws responsive to the legal and business needs of corporations organized under its laws. Many corporations have chosen Delaware initially as a state of incorporation or have subsequently changed corporate domicile to Delaware. Because of Delaware’s prominence as the state of incorporation for many major corporations, both the legislature and courts in Delaware have demonstrated the ability and a willingness to act quickly and effectively to meet changing business needs. The DGCL is frequently revised and updated
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to accommodate changing legal and business needs and is more comprehensive, widely used and interpreted than other state corporate laws. This favorable corporate and regulatory environment is attractive to businesses such as ours.
• Well-Established Principles of Corporate Governance. There is substantial judicial precedent in the Delaware courts as to the legal principles applicable to measures that may be taken by a corporation and to the conduct of a company’s board of directors, such as under the business judgment rule and other standards. Because the judicial system is based largely on legal precedents, the abundance of Delaware case law provides clarity and predictability to many areas of corporate law. We believe such clarity would be advantageous to New Bowlero, its board of directors and management to make corporate decisions and take corporate actions with greater assurance as to the validity and consequences of those decisions and actions. Further, investors and securities professionals are generally more familiar with Delaware corporations, and the laws governing such corporations, increasing their level of comfort with Delaware corporations relative to other jurisdictions. The Delaware courts have developed considerable expertise in dealing with corporate issues, and a substantial body of case law has developed construing Delaware law and establishing public policies with respect to corporate legal affairs. Moreover, Delaware’s vast body of law on the fiduciary duties of directors provides appropriate protection for New Bowlero’s stockholders from possible abuses by directors and officers.
• Increased Ability to Attract and Retain Qualified Directors. Reincorporation from the Cayman Islands to Delaware is attractive to directors, officers, and stockholders alike. New Bowlero’s incorporation in Delaware may make it more attractive to future candidates for the board of directors, because many such candidates are already familiar with Delaware corporate law from their past business experience. To date, we have not experienced difficulty in retaining directors or officers, but directors of public companies are exposed to significant potential liability. Thus, candidates’ familiarity and comfort with Delaware laws — especially those relating to director indemnification (as discussed below) — draw such qualified candidates to Delaware corporations. Our board of directors therefore believes that providing the benefits afforded directors by Delaware law will enable New Bowlero to compete more effectively with other public companies in the recruitment of talented and experienced directors and officers. Moreover, Delaware’s vast body of law on the fiduciary duties of directors will provide appropriate protection for our stockholders from possible abuses by directors and officers.
The frequency of claims and litigation pursued against directors and officers has greatly expanded the risks facing directors and officers of corporations in carrying out their respective duties. The amount of time and money required to respond to such claims and to defend such litigation can be substantial. While both Cayman and Delaware law permit a corporation to include a provision in its governing documents to reduce or eliminate the monetary liability of directors for breaches of fiduciary duty in certain circumstances, we believe that, in general, Delaware law is more developed and provides more guidance than Cayman law on matters regarding a company’s ability to limit director liability. As a result, we believe that the corporate environment afforded by Delaware will enable the surviving corporation to compete more effectively with other public companies in attracting and retaining new directors.
Expected Accounting Treatment of the Domestication
There will be no accounting effect or change in the carrying amount of the consolidated assets and liabilities of Isos as a result of the Domestication. The business, capitalization, assets and liabilities and financial statements of Isos immediately following the Domestication will be the same as those of Isos immediately prior to the Domestication.
Vote Required for Approval
The approval of the Domestication Proposal requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
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The Domestication Proposal is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, the Domestication Proposal will have no effect, even if approved by holders of ordinary shares.
Resolution
The full text of the resolution to be passed is as follows:
“RESOLVED, as a special resolution, that the Company be de-registered in the Cayman Islands pursuant to Article 47 of the Amended and Restated Articles of Association of the Company (as amended) and be registered by way of continuation as a corporation in the State of Delaware.”
Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF THE DOMESTICATION PROPOSAL.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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THE ORGANIZATIONAL DOCUMENTS PROPOSALS
If the Domestication Proposal is approved and the Transactions are to be consummated, Isos will replace the Cayman Constitutional Documents, under the Cayman Islands Companies Act, with the Proposed Organizational Documents of New Bowlero, under the DGCL.
Isos’s shareholders are asked to consider and vote upon and to approve by special resolution eight separate proposals (collectively, the “Organizational Documents Proposals”) in connection with the replacement of the Cayman Constitutional Documents with the Proposed Organizational Documents. The Organizational Documents Proposals are conditioned on the approval of each other Condition Precedent Approval. Therefore, if the BCA Proposal and the Domestication Proposal are not approved, the Organizational Documents Proposals will have no effect, even if approved by holders of ordinary shares.
The Proposed Organizational Documents differ materially from the Cayman Constitutional Documents. The following table sets forth a summary of the principal changes proposed between the Cayman Constitutional Documents and the Proposed Organizational Documents. This summary is qualified by reference to the complete text of the Cayman Constitutional Documents of Isos, the complete text of the Proposed Certification of Incorporation, a copy of which is attached to this proxy statement/prospectus as Annex B, and the complete text of the Proposed Bylaws, a copy of which is attached to this proxy statement/prospectus as Annex C. All shareholders are encouraged to read each of the Proposed Organizational Documents in its entirety for a more complete description of its terms. Additionally, as the Cayman Constitutional Documents are governed by the Cayman Islands Companies Act and the Proposed Organizational Documents will be governed by the DGCL, Isos encourages shareholders to carefully consult the information set out under the section titled “Comparison of Corporate Governance and Stockholder Rights.”
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Authorized Shares
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Cayman Constitutional Documents
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Proposed Organizational Documents
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(Organizational Documents Proposal 3A)
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The Cayman Constitutional Documents authorize 300,000,000 Isos Class A ordinary shares, 20,000,000 Isos Class B ordinary shares and 1,000,000 Isos preference shares.
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The Proposed Organizational Documents authorize 2,400,000,000 shares of capital stock of Isos (and following the Merger, New Bowlero), consisting of 2,000,000,000 shares of New Bowlero Class A common stock, 200,000,000 shares of New Bowlero Class B common stock, and 200,000,000 shares of New Bowlero preferred stock.
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Authorize the Board of Directors to Issue Preferred Stock Without Stockholder Consent
(Organizational Documents Proposal 3B)
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The Cayman Constitutional Documents authorize the issuance of 1,000,000 Isos preference shares with such designation, rights and preferences as may be determined from time to time by Isos’s board of directors. Accordingly, Isos’s board of directors is empowered under the Cayman Constitutional Documents, without shareholder approval, to issue Isos preference shares with dividend, liquidation, redemption, voting or other rights which could adversely affect the voting power or other rights of the holders of ordinary shares (except to the extent it may affect the ability of Isos to carry out a conversion of Isos Class B ordinary shares on the Closing Date, as contemplated by the Cayman Constitutional Documents).
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The Proposed Organizational Documents authorize the New Bowlero Board to issue all or any shares of New Bowlero preferred stock in one or more series and to fix for each such series such voting powers, full or limited, and such designations, preferences and relative participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as the New Bowlero Board may determine.
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Authorized Shares
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Cayman Constitutional Documents
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Proposed Organizational Documents
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Exclusive Forum Provision
(Organizational Documents Proposal 3C)
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The Cayman Constitutional Documents do not contain a provision adopting an exclusive forum for certain shareholder litigation.
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The Proposed Organizational Documents adopt Delaware as the exclusive forum for certain stockholder litigation.
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Takeovers by Interested Stockholders Provision
(Organizational Documents Proposal 3D)
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The Cayman Constitutional Documents do not provide restrictions on takeovers of Isos by a related shareholder following a business combination.
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The Proposed Organizational Documents will have New Bowlero elect not to be governed by Section 203 of the DGCL relating to takeovers by interested stockholders, but will provide other similar restrictions regarding takeovers by interested stockholders ((excluding (i) TS and Atairos, (ii) each of their respective affiliates and successors and (iii) any “group”, and any member of any such group, to which any such persons described in clauses (i) or (ii) are a party under Rule 13d-5 of the Exchange Act).
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Adoption of Supermajority Vote Requirement to Amend the Proposed Organizational Documents
(Organizational Documents Proposal 3E)
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The Cayman Constitutional Documents provide that amendments may be made by a special resolution under Cayman Islands law, being the affirmative vote of holders of a majority of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at a general meeting.
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The Proposed Organizational Documents require the affirmative vote of at least two-thirds of the voting power of the outstanding shares to (i) adopt, amend or repeal the Proposed Bylaws, and to (ii) amend, alter, repeal or rescind Section B of Article IV and Articles V, VI, VII, VIII, IX, X, XI and XII of the Proposed Certificate of Incorporation.
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Removal of Directors
(Organizational Documents Proposal 3F)
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The Cayman Constitutional Documents provide that prior to the consummation of the Business Combination, holders of Isos Class B ordinary shares may by an ordinary resolution remove any director, and that after the Business Combination, shareholders may by an ordinary resolution remove any director.
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The Proposed Organizational Documents permit the removal of a director at any time, with or without cause, only by (i) the affirmative vote of holders of a majority of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in an election of directors if the New Bowlero Class B common stock issued and outstanding represents at least 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders, and (ii) the affirmative vote of holders of at least
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Authorized Shares
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Cayman Constitutional Documents
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Proposed Organizational Documents
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two-thirds in voting power of all the then-issued and outstanding shares of stock of the Company entitled to vote thereon, voting together as a single class, if the issued and outstanding New Bowlero Class B common stock represents less than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders.
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Voting Rights of Common Stock
(Organizational Documents Proposal 3G)
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The Cayman Constitutional Documents provide that the holders of Isos Class A ordinary shares and Isos Class B ordinary shares are entitled to one vote per share on each matter properly submitted to Isos’s shareholders entitled to vote.
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The Proposed Certificate of Incorporation provides that holders of shares of New Bowlero Class B common stock will have 10 votes on each matter properly submitted to the stockholders entitled to vote and holders of shares of New Bowlero Class A common stock will have one vote on each matter properly submitted to the stockholders entitled to vote.
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Other Changes in Connection With Adoption of Proposed Organizational Documents
(Organizational Documents Proposal 3H)
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The Cayman Constitutional Documents include provisions related to Isos’s status as a blank check company prior to the consummation of a business combination.
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The Proposed Organizational Documents do not include such provisions related to Isos’s status as a blank check company, which no longer will apply upon consummation of the Transactions, as Isos will cease to be a blank check company at such time.
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Resolution
The full text of the resolution to be passed is as follows:
“RESOLVED, as a special resolution, that the Cayman Constitutional Documents currently in effect be amended and restated by the deletion in their entirety and the substitution in their place of the Proposed Certificate of Incorporation and Proposed Bylaws (copies of which are attached to the proxy statement/prospectus as Annex B and Annex C, respectively), with such principal changes as described in Organizational Documents Proposals 3A-3H, and that the name of New Bowlero be changed from ‘Isos Acquisition Corporation’ to ‘Bowlero Corp.’”
Implementation of each of the Organizational Documents Proposals, will result, upon the Domestication, in the wholesale replacement of the Cayman Constitutional Documents with the Proposed Organizational Documents. While certain material changes between the Cayman Constitutional Documents and the Proposed Organizational Documents have been unbundled into distinct organizational documents proposals or otherwise identified in these Organizational Documents Proposals, there are other differences between the Cayman Constitutional Documents and Proposed Organizational Documents (arising from, among other things, differences between the Cayman Islands Companies Act and the DGCL and the typical form of organizational documents under each such body of law) that will be approved (subject to the approval of the aforementioned related proposals and consummation of the Transactions) if our shareholders approve the Organizational Documents Proposal.
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ORGANIZATIONAL DOCUMENTS PROPOSAL 3A — APPROVAL OF AUTHORIZATION
OF CHANGE TO AUTHORIZED CAPITAL STOCK, AS SET FORTH IN THE
PROPOSED ORGANIZATIONAL DOCUMENTS
Overview
Organizational Documents Proposal 3A — to authorize the change in the authorized capital stock of Isos from 300,000,000 Isos Class A ordinary shares, 20,000,000 Isos Class B ordinary shares and 1,000,000 Isos preference shares to 2,400,000,000 shares of capital stock of Isos (and following the Merger, New Bowlero), consisting of 2,000,000,000 shares of New Bowlero Class A common stock, 200,000,000 shares of New Bowlero Class B common stock, and 200,000,000 shares of New Bowlero preferred stock.
As of the date of this proxy statement/prospectus, there are (i) 25,483,700 Isos Class A ordinary shares issued and outstanding, (ii) 6,370,925 Isos Class B ordinary shares issued and outstanding and (iii) no Isos preference shares issued and outstanding. In addition, as of the date of this proxy statement/prospectus, there is an aggregate of (x) 8,494,566 public warrants and 5,397,828 private placement warrants of Isos, in each case, issued and outstanding. Subject to the terms and conditions of the Warrant Agreement, the Isos warrants will be exercisable after giving effect to the Merger for one share of New Bowlero Class A common stock at an exercise price of $11.50 per share. No Isos warrants are exercisable until the later of 30 days after the Closing and 12 months following the closing of its initial public offering.
Pursuant to the Business Combination Agreement, Isos will issue an aggregate of up to 120,911,014 shares of New Bowlero common stock and 105,000 shares of New Bowlero preferred stock, and pursuant to the PIPE Offerings and the Forward Purchase Contract, New Bowlero will issue 25,000,000 shares of New Bowlero Class A common stock and 95,000 shares of New Bowlero preferred stock to the PIPE Investors.
In order to ensure that New Bowlero has sufficient authorized capital for future issuances, Isos’s board of directors has approved, subject to stockholder approval, that the Proposed Organizational Documents of Isos change the authorized capital stock of Isos from (i) from 300,000,000 Isos Class A ordinary shares, 20,000,000 Isos Class B ordinary shares and 1,000,000 Isos preference shares to (ii) 2,400,000,000 shares of capital stock of Isos (and following the Merger, New Bowlero), consisting of 2,000,000,000 shares of New Bowlero Class A common stock, 200,000,000 shares of New Bowlero Class B common stock, and 200,000,000 shares of New Bowlero preferred stock.
This summary is qualified by reference to the complete text of the Proposed Organizational Documents of New Bowlero, copies of which are attached to this proxy statement/prospectus as Annexes B and C. All stockholders are encouraged to read the Proposed Organizational Documents in their entirety for a more complete description of their terms.
Reasons for the Amendments
The principal purpose of this proposal is to provide for an authorized capital structure of New Bowlero that will enable it to continue as an operating company governed by the DGCL. Our board of directors believes that it is important for us to have available for issuance a number of authorized shares of common stock and preferred stock sufficient to support our growth and to provide flexibility for future corporate needs.
Vote Required for Approval
The approval of Organizational Documents Proposal 3A requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
Organizational Documents Proposal 3A is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, Organizational Documents Proposal 3A will have no effect, even if approved by holders of ordinary shares.
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Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF ORGANIZATIONAL DOCUMENTS PROPOSAL 3A.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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ORGANIZATIONAL DOCUMENTS PROPOSAL 3B — APPROVAL OF PROPOSAL REGARDING ISSUANCE OF NEW BOWLERO PREFERRED STOCK AT THE BOARD OF DIRECTORS’ DISCRETION, AS SET FORTH IN THE PROPOSED ORGANIZATIONAL DOCUMENTS
Overview
Organizational Documents Proposal 3B — to authorize the board of directors of New Bowlero to issue any or all shares of New Bowlero preferred stock in one or more classes or series, with such terms and conditions as may be expressly determined by the Board and as may be permitted by the DGCL.
Assuming the BCA Proposal and the Domestication Proposal are approved, our shareholders are also being asked to approve Organizational Documents Proposal 3B, which is, in the judgment of our board of directors, necessary to adequately address the needs of New Bowlero after the Business Combination.
If Organizational Documents Proposal 3A is approved, the number of authorized shares of New Bowlero preferred stock will be 200,000,000 shares. Approval of this Organizational Documents Proposal 3B will allow for issuance of any or all of these shares of New Bowlero preferred stock from time to time at the discretion of the board of directors, as may be permitted by the DGCL, and without further stockholder action. The shares of New Bowlero preferred stock would be issuable for any proper corporate purpose, including, among other things, future acquisitions, capital raising transactions consisting of equity or convertible debt, stock dividends or issuances under current and any future stock incentive plans, pursuant to which we may provide equity incentives to employees, officers and directors, and in certain instances may be used as an antitakeover defense.
This summary is qualified by reference to the complete text of the Proposed Organizational Documents of New Bowlero, copies of which are attached to this proxy statement/prospectus as Annexes B and C. All stockholders are encouraged to read the Proposed Organizational Documents in their entirety for a more complete description of their terms.
Reasons for the Amendments
Our board of directors believes that these additional shares will provide us with needed flexibility to issue shares in the future in a timely manner and under circumstances we consider favorable without incurring the risk, delay and potential expense incident to obtaining stockholder approval for a particular issuance.
Authorized but unissued preferred stock may enable the board of directors to render it more difficult or to discourage an attempt to obtain control of New Bowlero and thereby protect continuity of or entrench its management, which may adversely affect the market price of New Bowlero and its securities. If, in the due exercise of its fiduciary obligations, for example, the board of directors was to determine that a takeover proposal was not in the best interests of New Bowlero, such preferred stock could be issued by the board of directors without stockholder approval in one or more private placements or other transactions that might prevent or render more difficult or make more costly the completion of any attempted takeover transaction by diluting voting or other rights of the proposed acquirer or insurgent stockholder group, by creating a substantial voting block in institutional or other hands that might support the position of the board of directors, by effecting an acquisition that might complicate or preclude the takeover, or otherwise. Allowing the New Bowlero Board to issue the authorized preferred stock on its own volition will enable New Bowlero to have the flexibility to issue such preferred stock in the future for financing its business, for acquiring other businesses, for forming strategic partnerships and alliances and for stock dividends and stock splits. New Bowlero currently has no such plans, proposals, or arrangements, written or otherwise, to issue any of the additional authorized stock for such purposes.
Vote Required for Approval
The approval of Organizational Documents Proposal 3B requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
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Organizational Documents Proposal 3B is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, Organizational Documents Proposal 3B will have no effect, even if approved by holders of ordinary shares.
Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF ORGANIZATIONAL DOCUMENTS PROPOSAL 3B.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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ORGANIZATIONAL DOCUMENTS PROPOSAL 3C — APPROVAL OF PROPOSAL REGARDING ADOPTING DELAWARE AS THE EXCLUSIVE FORUM FOR CERTAIN STOCKHOLDER LITIGATION
Overview
Organizational Documents Proposal 3C — to authorize adopting Delaware as the exclusive forum for certain stockholder litigation.
The Proposed Organizational Documents stipulate that the Court of Chancery for the State of Delaware (the “Court of Chancery”) be the sole and exclusive forum (or, in the event that the Court of Chancery does not have jurisdiction, then another court of the State of Delaware or, if no court of the State of Delaware has jurisdiction, then the United States District Court for the District of Delaware) for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of New Bowlero, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer or stockholder of New Bowlero to New Bowlero or New Bowlero’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Proposed Certificate of Incorporation or the Proposed Bylaws, or (iv) any action asserting a claim governed by the internal affairs doctrine. The Proposed Certificate of Incorporation’s exclusive forum provisions do not apply to claims arising under the Securities Act, the Exchange Act, or any other claim for which the federal courts have exclusive jurisdiction.
This summary is qualified by reference to the complete text of the Proposed Organizational Documents of New Bowlero, copies of which are attached to this proxy statement/prospectus as Annexes B and C. All stockholders are encouraged to read the Proposed Organizational Documents in their entirety for a more complete description of their terms.
Reasons for the Amendments
Adopting Delaware as the exclusive forum for certain stockholder litigation is intended to assist New Bowlero in avoiding multiple lawsuits in multiple jurisdictions regarding the same matter. The ability to require such claims to be brought in a single forum will help to assure consistent consideration of the issues, the application of a relatively known body of case law and level of expertise and should promote efficiency and cost savings in the resolutions of such claims. Our board of directors believes that the Delaware courts are best suited to address disputes involving such matters given that after the Domestication, New Bowlero will be incorporated in Delaware. Delaware law generally applies to such matters and the Delaware courts have a reputation for expertise in corporate law matters. Delaware offers a specialized Court of Chancery to address corporate law matters, with streamlined procedures and processes, which help provide relatively quick decisions. This accelerated schedule can minimize the time, cost and uncertainty of litigation for all parties. The Court of Chancery has developed considerable expertise with respect to corporate law issues, as well as a substantial and influential body of case law construing Delaware’s corporate law and long-standing precedent regarding corporate governance. This provides stockholders and New Bowlero with more predictability regarding the outcome of intra-corporate disputes. In the event the Court of Chancery does not have jurisdiction, the other state courts located in Delaware would be the most appropriate forums because these courts have more expertise on matters of Delaware law compared to other jurisdictions; provided, that these exclusive forum provisions will not apply to suits brought to enforce any cause of action arising under the Securities Act or to any claim for which the federal courts have exclusive jurisdiction. In addition, this amendment would promote judicial fairness and avoid conflicting results, as well as make New Bowlero’s defense of applicable claims less disruptive and more economically feasible, principally by avoiding duplicative discovery.
Vote Required for Approval
The approval of Organizational Documents Proposal 3C requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
Organizational Documents Proposal 3C is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, Organizational Documents Proposal 3C will have no effect, even if approved by holders of ordinary shares.
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Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF ORGANIZATIONAL DOCUMENTS PROPOSAL 3C.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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ORGANIZATIONAL DOCUMENTS PROPOSAL 3D — APPROVAL OF PROPOSAL REGARDING ELECTION TO NOT BE GOVERNED BY SECTION 203 OF THE DGCL
Overview
Organizational Documents Proposal 3D — to authorize electing not to be governed by Section 203 of the DGCL relating to takeovers by interested stockholders and, instead, be governed by a provision substantially similar to Section 203 of the DGCL.
The Proposed Organizational Documents will cause New Bowlero to not to be governed by Section 203 of the DGCL and, instead, include a provision in the Proposed Certificate of Incorporation that is substantially similar to Section 203 of the DGCL.
This summary is qualified by reference to the complete text of the Proposed Organizational Documents of New Bowlero, copies of which are attached to this proxy statement/prospectus as Annexes B and C. All stockholders are encouraged to read the Proposed Organizational Documents in their entirety for a more complete description of their terms.
Reasons for the Amendments
Isos’s board of directors intends to shield stockholders from the coerciveness of front-end loaded two-tier offers by preventing the offeror from effecting the second step of the offer unless the target’s board of directors approves such transaction.
New Bowlero will not be subject to Section 203 of the DGCL, an anti-takeover law. Section 203 is a default provision of the DGCL that prohibits a publicly held Delaware corporation from engaging in a business combination, such as a merger, with “interested stockholders” (a person or group owning 15% or more of the corporation’s voting stock) for three years following the date that a person becomes an interested stockholder, unless: (i) before such stockholder becomes an “interested stockholder,” the board of directors approves the Transactions or the transaction that resulted in the stockholder becoming an interested stockholder; (ii) upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the outstanding voting stock of the corporation at the time of the transaction (excluding stock owned by certain persons); or (iii) at the time or after the stockholder became an interested stockholder, the board of directors and at least two-thirds of the disinterested outstanding voting stock of the corporation approves the transaction. While Section 203 is the default provision under the DGCL, the DGCL allows companies to opt out of Section 203 of the DGCL by including a provision in their certificate of incorporation expressly electing not to be governed by Section 203 of the DGCL.
Isos’s board of directors has elected to opt out of Section 203, but the board of directors believes that it is in the best interests of stockholders to have protections similar to those afforded by Section 203. These provisions will encourage any potential acquiror to negotiate with the board of directors and therefore provides an opportunity to possibly obtain a higher purchase price than would otherwise be offered in connection with a proposed acquisition of New Bowlero. Such provisions may make it more difficult for an acquiror to consummate certain types of unfriendly or hostile corporate takeovers or other transactions involving New Bowlero that have not been approved by the board of directors. The board of directors believes that while such provisions will provide some measure of protection against an interested stockholder that is proposing a two-tiered transaction structure that is unduly coercive, they would not ultimately prevent a potential takeover that enjoys the support of stockholders and that they will also help to prevent a third party from acquiring “creeping control” of New Bowlero without paying a fair premium to all stockholders.
Vote Required for Approval
The approval of Organizational Documents Proposal 3D requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
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Organizational Documents Proposal 3D is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, Organizational Documents Proposal 3D will have no effect, even if approved by holders of ordinary shares.
Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF ORGANIZATIONAL DOCUMENTS PROPOSAL 3D.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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ORGANIZATIONAL DOCUMENTS PROPOSAL 3E — APPROVAL OF PROPOSAL REGARDING ADOPTION OF SUPERMAJORITY VOTE REQURIEMENT TO AMEND THE PROPOSED ORGANIZATIONAL DOCUMENTS
Overview
Organizational Documents Proposal 3E — to approve provisions providing that the affirmative vote of at least two-thirds of the voting power of all the then-outstanding shares of capital stock entitled to vote generally in the election of directors will be required for stockholders to adopt, amend, or repeal certain provisions of the Proposed Certificate of Incorporation or the Proposed Bylaws.
This summary is qualified by reference to the complete text of the Proposed Organizational Documents of New Bowlero, copies of which are attached to this proxy statement/prospectus as Annexes B and C. All stockholders are encouraged to read the Proposed Organizational Documents in their entirety for a more complete description of their terms.
Reasons for the Amendments
The Cayman Constitutional Documents provide that amendments may be made by a special resolution under Cayman Islands law, being the affirmative vote of holders of a majority of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at a general meeting. The Proposed Organizational Documents require the affirmative vote of at least two-thirds of the voting power of the outstanding shares to (i) adopt, amend or repeal the Proposed Bylaws, and to (ii) amend, alter, repeal or rescind Section B of Article IV and Articles V, VI, VII, VIII, IX, X, XI and XII of the Proposed Certificate of Incorporation. The amendments are intended to protect the Proposed Bylaws and certain key provisions of the Proposed Certificate of Incorporation from arbitrary amendment and to prevent a simple majority of stockholders from taking actions that may be harmful to other stockholders or making changes to provisions that are intended to protect all stockholders.
Vote Required for Approval
The approval of Organizational Documents Proposal 3E requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
Organizational Documents Proposal 3E is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, Organizational Documents Proposal 3E will have no effect, even if approved by holders of ordinary shares.
Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF ORGANIZATIONAL DOCUMENTS PROPOSAL 3E.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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ORGANIZATIONAL DOCUMENTS PROPOSAL 3F — APPROVAL OF PROPOSAL REGARDING ADOPTION OF SUPERMAJORITY VOTE REQUIREMENT TO REMOVE DIRECTORS
Overview
Organizational Documents Proposal 3F — to approve provisions permitting the removal of a director only upon the affirmative vote of the holders of at least two-thirds in voting power of all the then- issued and outstanding shares of stock of the Company entitled to vote thereon, voting together as a single class, if the issued and outstanding New Bowlero Class B common stock represents less than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders.
This summary is qualified by reference to the complete text of the Proposed Organizational Documents of New Bowlero, copies of which are attached to this proxy statement/prospectus as Annexes B and C. All stockholders are encouraged to read the Proposed Organizational Documents in their entirety for a more complete description of their terms.
Reasons for the Amendments
The Cayman Constitutional Documents provide that prior to the consummation of the Business Combination, holders of Isos Class B ordinary shares may by an ordinary resolution remove any director, and that after the Business Combination, shareholders may by an ordinary resolution remove any director. Under the DGCL, unless a company’s certificate of incorporation provides otherwise, a director can be removed with or without cause by the holders of a majority of the shares then entitled to vote at an election of directors. The Proposed Organizational Documents permit the removal of a director at any time, with or without cause, only by (i) the affirmative vote of holders of a majority of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in an election of directors if the New Bowlero Class B common stock issued and outstanding represents at least 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders, and (ii) the affirmative vote of holders of at least two-thirds in voting power of all the then-issued and outstanding shares of stock of the Company entitled to vote thereon, voting together as a single class, if the issued and outstanding New Bowlero Class B common stock represents less than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders. Isos’s board of directors believes that such a standard will (i) increase board continuity and the likelihood that experienced board members with familiarity of New Bowlero’s business operations would serve on the board at any given time and (ii) make it more difficult for a potential acquiror or other person, group or entity to gain control of the New Bowlero Board.
Vote Required for Approval
The approval of Organizational Documents Proposal 3F requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
Organizational Documents Proposal 3F is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, Organizational Documents Proposal 3E will have no effect, even if approved by holders of ordinary shares.
Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF ORGANIZATIONAL DOCUMENTS PROPOSAL 3F.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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ORGANIZATIONAL DOCUMENTS PROPOSAL 3G — APPROVAL OF PROPOSAL REGARDING VOTING RIGHTS OF COMMON STOCK
Overview
Organizational Documents Proposal 3G — to approve provisions entitling Holders of shares of New Bowlero Class A common stock to cast one vote per share of New Bowlero Class A common stock and holders of shares of New Bowlero Class B common stock to cast 10 votes per share of New Bowlero Class B common stock on each matter properly submitted to New Bowlero’s stockholders entitled to vote, as opposed to each Isos Class A ordinary share and Isos Class B ordinary share being entitled to one vote per share on each matter properly submitted to Isos’s shareholders entitled to vote.
This summary is qualified by reference to the complete text of the Proposed Organizational Documents of New Bowlero, copies of which are attached to this proxy statement/prospectus as Annexes B and C. All stockholders are encouraged to read the Proposed Organizational Documents in their entirety for a more complete description of their terms.
Reasons for the Amendments
The Proposed Certificate of Incorporation provides that holders of shares of New Bowlero Class B common stock will have 10 votes on each matter properly submitted to the stockholders entitled to vote and holders of shares of New Bowlero Class A common stock will have one vote on each matter properly submitted to the stockholders entitled to vote. New Bowlero Class B common stock will be permitted to be held directly or indirectly only by Mr. Shannon (or by one or more of his Permitted Transferees (as defined in the Proposed Certificate of Incorporation)). Except for the issuance of shares of New Bowlero Class B common stock to Mr. Shannon, directly or indirectly, at the Effective Time, a dividend payable in accordance with Section 4 of Article Fourth of the Proposed Certificate of Incorporation, or a reclassification, subdivision or combination in accordance with Section 6 of Article Fourth of the Proposed Certificate of Incorporation, New Bowlero may not at any time after the Effective Time issue any additional shares of New Bowlero Class B common stock. Upon the consummation of the Merger, Mr. Shannon will directly or indirectly hold in the aggregate approximately 84.7% of the total voting power of our outstanding capital stock. We expect to maintain this concentrated voting power with Mr. Shannon for the foreseeable future.
The Isos board of directors believes that our proposed multi-class stock structure will preserve Bowlero’s existing founder-led governance structure, facilitate continued innovation and the risk-taking that it requires, permit us to continue to prioritize our long-term goals rather than short-term results, enhance the likelihood of continued stability in the composition of our board of directors and its policies, and discourage certain types of transactions that may involve an actual or threatened acquisition of New Bowlero, all of which we believe is essential to the long-term success of New Bowlero and to long-term stockholder value.
Vote Required for Approval
The approval of Organizational Documents Proposal 3G requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
Organizational Documents Proposal 3G is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, Organizational Documents Proposal 3G will have no effect, even if approved by holders of ordinary shares.
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Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF ORGANIZATIONAL DOCUMENTS PROPOSAL 3G.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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ORGANIZATIONAL DOCUMENTS PROPOSAL 3H — APPROVAL OF PROPOSAL
REGARDING OTHER CHANGES IN CONNECTION WITH ADOPTION OF THE
PROPOSED ORGANIZATIONAL DOCUMENTS
Overview
Organizational Documents Proposal 3H — to provide for certain additional changes, including, among other things, (i) changing the corporate name from “Isos Acquisition Corporation” to “Bowlero Corp.”, (ii) making New Bowlero’s corporate existence perpetual, and (iii) removing certain provisions related to ISOS’s status as a blank check company that will no longer be applicable upon consummation of the Transactions, all of which Isos’s board of directors believes is necessary to adequately address the needs of New Bowlero after the Transactions.
The Proposed Organizational Documents will not contain provisions related to a blank check company (including those related to operation of the trust account, winding up of Isos’s operations should Isos not complete a business combination by a specified date, and other such blank check-specific provisions as are present in the Cayman Constitutional Documents) because following the consummation of the Transactions, New Bowlero will not be a blank check company.
This summary is qualified by reference to the complete text of the Proposed Organizational Documents of New Bowlero, copies of which are attached to this proxy statement/prospectus as Annexes B and C. All stockholders are encouraged to read the Proposed Organizational Documents in their entirety for a more complete description of their terms.
Reasons for the Amendments
Isos’s board of directors believes that changing New Bowlero’s corporate name from “Isos Acquisition Corp.” to “Bowlero Corp.” and making corporate existence perpetual is desirable to reflect the Transactions with Bowlero and to clearly identify New Bowlero as the publicly traded entity.
Additionally, perpetual existence is the usual period of existence for corporations, and Isos’s board of directors believes that it is the most appropriate period for New Bowlero following the Transactions. The elimination of certain provisions related to Isos’s status as a blank check company is desirable because these provisions will serve no purpose following the Transactions. For example, the Proposed Organizational Documents do not include the requirement to dissolve New Bowlero and allow it to continue as a corporate entity with perpetual existence following consummation of the Transactions. Perpetual existence is the usual period of existence for public corporations, and Isos’s board of directors believes it is the most appropriate period for New Bowlero following the Transactions. In addition, certain other provisions in Isos’s current organizational documents require that proceeds from Isos’s initial public offering be held in the trust account until a business combination or liquidation of Isos has occurred. These provisions cease to apply once the Transactions are consummated and are therefore not included in the Proposed Organizational Documents.
Vote Required for Approval
The approval of Organizational Documents Proposal 3H requires a special resolution under Cayman Islands Companies Act, being the affirmative vote of holders of at least two-thirds of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
Organizational Documents Proposal 3H is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, Organizational Documents Proposal 3G will have no effect, even if approved by holders of ordinary shares.
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Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF ORGANIZATIONAL DOCUMENTS PROPOSAL 3H.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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THE DIRECTOR ELECTION PROPOSAL
Overview
As discussed in this proxy statement/prospectus, if the BCA Proposal and each of the Organizational Documents Proposals are approved, to consider and vote upon a proposal to elect nine directors, who, upon consummation of the Business Combination, will be the directors of New Bowlero (“Director Election Proposal”).
Assuming the BCA Proposal and each of the Organizational Documents Proposals are approved, Isos’s stockholders are also being asked to approve and adopt the Director Election Proposal.
Nominees
As contemplated by the Business Combination Agreement, the New Bowlero Board following consummation of the Business Combination will consist of nine directors:
• Thomas F. Shannon
• Brett I. Parker
• John A. Young
• Three designees to be designated by Atairos pursuant to the Stockholders Agreement, who will be Michael J. Angelakis, Rachael A. Wagner and Robert J. Bass.
• George Barrios
• Michelle Wilson
• One additional individual to be nominated in accordance with the Stockholders Agreement, who will be Sandeep Mathrani.
Accordingly, our board of directors has nominated each of Thomas F. Shannon, Brett I. Parker, John A. Young, Michael J. Angelakis, Rachael A. Wagner, Robert J. Bass, George Barrios, Michelle Wilson and Sandeep Mathrani to serve as our directors upon the consummation of the Business Combination, in each case, in accordance with the terms and subject to the conditions of the Organizational Documents. For more information on the experience of each of these director nominees, please see the section titled “Management of New Bowlero Following the Business Combination” of this proxy statement/prospectus.
Vote Required for Approval
The approval of the Director Election Proposal requires the affirmative vote (attending virtually or by proxy) of the holders of a plurality of the votes cast at the extraordinary general meeting. This means that the nine nominees will be elected if they receive more affirmative votes than any other nominee for the same position. Votes marked “FOR” a nominee will be counted in favor of that nominee. Proxies will have full discretion to cast votes for other persons in the event any nominee is unable to serve. Abstentions or failure to vote by proxy or to vote virtually at the extraordinary general meeting and broker non-votes will have no effect on the vote since a plurality of the votes cast is required for the election of each nominee.
The Director Election Proposal is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, the Director Election Proposal will have no effect, even if approved at the extraordinary general meeting.
Resolution
The full text of the resolution to be passed is as follows:
“RESOLVED, as an ordinary resolution, that Thomas F. Shannon, Brett I. Parker, John A. Young, Michael J. Angelakis, Rachael A. Wagner, Robert J. Bass, George Barrios, Michelle Wilson, and Sandeep Mathrani be appointed as directors of the Company upon the effectiveness of the Business Combination.”
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Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF THE DIRECTOR ELECTION PROPOSAL.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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THE STOCK ISSUANCE PROPOSAL
Assuming the Business Combination Proposal is approved, Isos’s stockholders are also being asked to approve the issuance of (a) 15,000,000 shares of New Bowlero Class A common stock and 95,000 shares of New Bowlero preferred stock to the PIPE Investors, (b) 120,911,014 of New Bowlero common stock and 105,000 shares of New Bowlero preferred stock to the Bowlero Stockholders pursuant to the Business Combination Agreement, (c) 15,384,615 shares of New Bowlero Class A common stock issuable upon conversion of the New Bowlero preferred stock to be issued pursuant to the Business Combination Agreement or to be issued and sold in the Preferred PIPE Offering, and (d) 10,000,000 shares of New Bowlero Class A common to be sold pursuant to the Forward Purchase Contract.
Why Isos Needs Stockholder Approval
The Isos Board is seeking stockholder approval in order to comply with Section 312.03(c) of the NYSE Listed Company Manual. Under Section 312.03(c) of the NYSE Listed Company Manual, stockholder approval is required prior to the issuance of common stock, or of securities convertible into or exercisable for common stock, in any transaction or series of related transactions if such securities are not issued in a public offering for cash and (a) have, or will have upon issuance, voting power equal to or in excess of 20% of the voting power outstanding before the issuance of such stock or securities convertible into or exercisable for common stock; or (b) the number of shares of common stock to be issued is, or will be upon the issuance, equal to or in excess of 20% of the number of shares of common stock outstanding before the issuance of the common stock or securities convertible into or exercisable for common stock. Isos will issue shares representing 20% or more of the number of outstanding shares of Isos common stock prior to the issuance, or 20% or more of its voting power prior to the issuance, pursuant to the Business Combination Agreement and the PIPE Offerings.
Effect of Proposal on Current Stockholders
If the Stock Issuance Proposal is adopted, up to an aggregate of 98,903,420 shares of New Bowlero Class A common stock and 62,392,209 shares of New Bowlero Class B common stock may be issued in connection with the Business Combination, the PIPE Offerings and pursuant to the Forward Purchase Contract, representing up to 506% of the Isos ordinary shares outstanding on the date hereof. The issuance of such shares would result in significant dilution to our stockholders, and result in our stockholders having a smaller percentage interest in our voting power, liquidation value and aggregate book value.
Vote Required for Approval
The approval of the Stock Issuance Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
The Stock Issuance Proposal is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, the Stock Issuance Proposal will have no effect, even if approved at the extraordinary general meeting.
Resolution
The full text of the resolution to be passed is as follows:
“RESOLVED, as an ordinary resolution, that for the purposes of complying with the rules of the NYSE, the issuance of shares of New Bowlero common stock and New Bowlero preferred stock pursuant to the Business Combination Agreement, the PIPE Offerings and the Forward Purchase Contract, including to Bowlero Stockholders, the PIPE Investors and the Forward Purchase Contract investors, and the issuance of New Bowlero Class A common stock upon conversion of the New Bowlero preferred stock to be issued pursuant to the Business Combination Agreement and to be issued and sold in the Preferred PIPE Offering be approved in all respects.”
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Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF THE STOCK ISSUANCE PROPOSAL.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as ashareholder. See the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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THE INCENTIVE PLAN PROPOSAL
Overview
Our board of directors approved the Bowlero Corp. 2021 Omnibus Incentive Plan (the “Incentive Plan”), effective as of the consummation of the Business Combination, subject to the approval of our shareholders. The purpose of the Incentive Plan is to (i) attract and retain key personnel by providing them the opportunity to acquire an equity interest in the Company or other incentive compensation measured by reference to the value of shares in the Company or a targeted dollar value if denominated in cash and (ii) align the interests of key personnel with those of the Company’s shareholders. We are seeking shareholder approval of the Incentive Plan (i) in order for incentive stock options to meet the requirements of the Code and (ii) in order to comply with the NYSE Listing Rules.
We believe that the Incentive Plan is essential to our success. Equity awards are intended to motivate high levels of performance and align the interests of our directors, employees and consultants with those of our shareholders by giving them an equity stake in the Company and providing a means of recognizing their contributions to the success of the Company. The Board of Directors of Isos and management believe that equity awards are necessary to remain competitive in our industry and are essential to recruiting and retaining the highly qualified employees who help the Company meet its goals.
If approved by our shareholders, the Incentive Plan will become effective upon the consummation of the Business Combination.
Summary of the Incentive Plan
Set forth below is a summary of the material terms of the Incentive Plan. This summary is qualified in its entirety by reference to the complete text of the Incentive Plan, a copy of which is attached to this proxy statement/prospectus statement as Annex K. We urge our shareholders to read carefully the entire Incentive Plan before voting on this proposal.
Administration. The compensation committee of our board of directors will administer the Incentive Plan. The compensation committee will have the authority to determine the terms and conditions of any agreements evidencing any awards granted under the Incentive Plan and to adopt, alter and repeal rules, guidelines and practices relating to the Incentive Plan. The compensation committee will have full discretion to administer and interpret the Incentive Plan and to adopt such rules, regulations and procedures as it deems necessary or advisable and to determine, among other things, the time or times at which the awards may be exercised and whether and under what circumstances an award may be exercised.
Eligibility. Any current or prospective employees, directors, officers, consultants or advisors of New Bowlero who are selected by the compensation committee will be eligible for awards under the Incentive Plan. The compensation committee will have the sole and complete authority to determine who will be granted an award under the Incentive Plan.
Number of Shares Authorized. Pursuant to the Incentive Plan, we have reserved an aggregate number of shares of our common stock for issuance of awards to be granted thereunder (the “Initial Pool”) equal to the sum of (i) 15% of the outstanding shares of our common stock immediately following the consummation of the Business Combination, plus (ii) the number of Earnout Shares issued under the Business Combination Agreement to holders of Bowlero stock options, plus (iii) the number of shares covered by the stock options that are expected to be granted to Mr. Shannon and Mr. Parker at or shortly after the consummation of the Business Combination (see below under “New Plan Benefits”), subject to an annual increase equal to the lesser of (a) 2% of the aggregate number of shares of our common stock outstanding on the final day of the immediately preceding calendar year and (b) such smaller number of shares as is determined by our board of directors. The number of shares in the Initial Pool will not be determinable until the consummation of the Business Combination but is expected to be approximately 28,704,788 shares. The number of shares that may be issued with respect to incentive stock options under the Incentive Plan is equal to the Initial Pool. The maximum grant date fair value of cash and equity awards that may be awarded to a non-employee director under the Incentive Plan during any one fiscal year, taken together with any cash fees paid to such non-employee director during such fiscal year, in respect of service as a member of the board of directors during such year will be $500,000. If any award granted under the Incentive Plan expires, terminates, or is canceled or forfeited without being settled, vested (in the case of restricted stock) or exercised, shares of our
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common stock subject to such award will again be made available for future grants. However, any shares that are surrendered or tendered to pay the exercise price of an award or to satisfy withholding taxes owed, or any shares reserved for issuance, but not issued, with respect to settlement of a stock appreciation right, will not again be available for grants under the Incentive Plan.
Change in Capitalization. If there is a change in our capitalization in the event of a stock or extraordinary cash dividend, recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, split-off, spin-off, combination, repurchase or exchange of shares of our common stock or other relevant change in capitalization (including a change in control, as defined in Incentive Plan) or applicable law or circumstances, such that the compensation committee determines that an adjustment to the terms of the Incentive Plan (or awards thereunder) is necessary or appropriate, then the compensation committee shall make adjustments in a manner that it deems equitable, including by: (i) adjusting the number of shares reserved for issuance under the Incentive Plan, the number of shares covered by awards then outstanding under the Incentive Plan, the limitations on awards under the Incentive Plan, the exercise price of outstanding options, the strike price of outstanding stock appreciation rights or any applicable performance measures or criteria, (ii) providing for a substitution or assumption of awards under the Incentive Plan (iii) accelerating the delivery, vesting and/or exercisability of, lapse of restrictions and/or other conditions on, or termination of, awards under the Incentive Plan, (iv) providing for a period of time not exceeding ten (10) days for the exercise of awards under the Incentive Plan prior to the occurrence of such event (v) cancelling any awards under the Incentive Plan in exchange for consideration equal to value of the underlying award, or (vi) such other equitable substitution or adjustments as the compensation committee may determine appropriate.
Awards Available for Grant. The compensation committee may grant awards of nonqualified stock options, incentive (qualified) stock options, stock appreciation rights (“SARs”), restricted stock awards, restricted stock units, other stock-based awards, other cash-based awards or any combination of the foregoing. Awards may be granted under the Incentive Plan in assumption of, or in substitution for, outstanding awards previously granted by an entity acquired by the Company or with which the Company combines, which are referred to herein as “Substitute Awards.”
Stock Options. The compensation committee will be authorized to grant options to purchase shares of our common stock that are either “qualified,” meaning they are intended to satisfy the requirements of Section 422 of the Code for incentive stock options, or “nonqualified,” meaning they are not intended to satisfy the requirements of Section 422 of the Code. All options granted under the Incentive Plan shall be nonqualified unless the applicable award agreement expressly states that the option is intended to be an incentive stock option. Options granted under the Incentive Plan will be subject to the terms and conditions established by the compensation committee. Under the terms of the Incentive Plan, the exercise price of the options will not be less than the fair market value (or 110% of the fair market value in the case of a qualified option granted to a 10% shareholder) of our common stock at the time of grant (except with respect to Substitute Awards). Options granted under the Incentive Plan will be subject to such terms, including the exercise price and the conditions and timing of exercise, as may be determined by the compensation committee and specified in the applicable award agreement. The maximum term of an option granted under the Incentive Plan will be 10 years from the date of grant (or five years in the case of a qualified option granted to a 10% shareholder), provided that if the term of a nonqualified option would expire at a time when trading in the shares of our common stock is prohibited by the Company’s insider trading policy, the option’s term shall be extended automatically until the 30th day following the expiration of such prohibition (as long as such extension shall not violate Section 409A of the Code). Payment in respect of the exercise of an option may be made in cash, by check, by cash equivalent and/or by delivery of shares of our common stock valued at the fair market value at the time the option is exercised, or any combination of the foregoing, provided that such shares are not subject to any pledge or other security interest, or by such other method as the compensation committee may permit in its sole discretion, including (i) by delivery of other property having a fair market value equal to the exercise price and all applicable required withholding taxes, (ii) if there is a public market for the shares of our common stock at such time, by means of a broker-assisted cashless exercise mechanism or (iii) by means of a “net exercise” procedure effected by withholding the minimum number of shares otherwise deliverable in respect of an option that are needed to pay the exercise price and all applicable required withholding taxes, based upon the fair market value of the withheld shares on the date of exercise. In all events of cashless or net exercise, any fractional shares of common stock will be settled in cash.
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Stock Appreciation Rights. The compensation committee will be authorized to award SARs under the Incentive Plan. SARs will be subject to the terms and conditions established by the compensation committee. A SAR is a contractual right that allows a participant to receive, in the form of either cash, shares or any combination of cash and shares, the appreciation, if any, in the value of a share over a certain period of time. An option granted under the Incentive Plan may include SARs, and SARs may also be awarded to a participant independent of the grant of an option. SARs granted in connection with an option shall be subject to terms similar to the option corresponding to such SARs, including with respect to vesting and expiration. Except as otherwise provided by the compensation committee (in the case of Substitute Awards or SARs granted in tandem with previously granted options), the strike price per share of our common stock underlying each SAR shall not be less than 100% of the fair market value of such share, determined as of the date of grant and the maximum term of a SAR granted under the Incentive Plan will be 10 years from the date of grant.
Restricted Stock. The compensation committee will be authorized to grant restricted stock under the Incentive Plan, which will be subject to the terms and conditions established by the compensation committee. Restricted stock is common stock that is generally non-transferable and is subject to other restrictions determined by the compensation committee for a specified period. Any accumulated dividends will be payable at the same time that the underlying restricted stock vests.
Restricted Stock Unit Awards. The compensation committee will be authorized to grant restricted stock unit awards, which will be subject to the terms and conditions established by the compensation committee. A restricted stock unit award, once vested, may be settled in a number of shares of our common stock equal to the number of units earned, in cash equal to the fair market value of the number of shares of our common stock earned in respect of such restricted stock unit award or in a combination of the foregoing, at the election of the compensation committee. Restricted stock units may be settled at the expiration of the period over which the units are to be earned or at a later date selected by the compensation committee. To the extent provided in an award agreement, the holder of outstanding restricted stock units shall be entitled to be credited with dividend equivalent payments upon the payment by us of dividends on shares of our common stock, either in cash or, at the sole discretion of the compensation committee, in shares of our common stock having a fair market value equal to the amount of such dividends (or a combination of cash and shares), and interest may, at the sole discretion of the compensation committee, be credited on the amount of cash dividend equivalents at a rate and subject to such terms as determined by the compensation committee, which accumulated dividend equivalents (and interest thereon, if applicable) shall be payable at the same time that the underlying restricted stock units are settled.
Other Stock-Based Awards and Other Cash-Based Awards. The compensation committee will be authorized to grant awards of unrestricted shares of our common stock, rights to receive grants of awards at a future date, other awards denominated in shares of our common stock, or awards that provide for cash payments based in whole or in part on the value of our common stock under such terms and conditions as the compensation committee may determine and as set forth in the applicable award agreement.
Effect of a Change in Control. Unless otherwise provided in an award agreement, or any applicable employment, consulting, change in control, severance or other agreement between us and a participant, in the event of a change in control (as defined in the Incentive Plan), the compensation committee may, in addition to, or as an alternative to, the actions described under the “Change in Capitalization” section above, provide for (i) continuation or assumption of such outstanding awards under the Incentive Plan by the surviving corporation or its parent, (ii) substitution by the surviving corporation or its parent of awards with substantially the same terms and value as the outstanding awards under the Incentive Plan, (iii) acceleration of the vesting (including the lapse of any restrictions, with any performance criteria or other performance conditions deemed met at target) or right to exercise any stock options or stock appreciation rights immediately prior to the change in control, or (iv) in the case of a stock option or stock appreciation right, cancelation in consideration of a payment in cash or other consideration to the holder of such stock option or stock appreciation right equal to the intrinsic value (as defined in the Incentive Plan) of such stock option or stock appreciation right as of the change in control. Notwithstanding the above, the compensation committee shall exercise such discretion over the timing of settlement of any award subject to Section 409A of the Code at the time such award is granted.
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Nontransferability. Each award may be exercised during the participant’s lifetime by the participant or, if permissible under applicable law, by the participant’s guardian or legal representative. No award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a participant other than by will or by the laws of descent and distribution unless the compensation committee permits the award to be transferred to a permitted transferee (as defined in the Incentive Plan).
Amendment. The Incentive Plan will have a term of 10 years. The board of directors may amend, suspend or terminate the Incentive Plan at any time, subject to shareholder approval if necessary to comply with any tax, exchange rules, or other applicable regulatory requirement. No amendment, suspension or termination will materially and adversely affect the rights of any participant or recipient of any award without the consent of the participant or recipient.
The compensation committee may, to the extent consistent with the terms of any applicable award agreement, waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any award theretofore granted or the associated award agreement, prospectively or retroactively; provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of any participant with respect to any award theretofore granted will not to that extent be effective without the consent of the affected participant; and provided further that, without shareholder approval, (i) no amendment or modification may reduce the exercise price of any option or the strike price of any SAR, (ii) the compensation committee may not cancel any outstanding option and replace it with a new option (with a lower exercise price) or cancel any SAR and replace it with a new SAR (with a lower strike price) or, in each case, with another award or cash in a manner that would be treated as a repricing (for compensation disclosure or accounting purposes), (iii) the compensation committee may not take any other action considered a repricing for purposes of the shareholder approval rules of the applicable securities exchange on which our common shares are listed and (iv) the compensation committee may not cancel any outstanding option or SAR that has a per-share exercise price or strike price (as applicable) at or above the fair market value of a share of our common stock on the date of cancellation and pay any consideration to the holder thereof. However, shareholder approval is not required with respect to clauses (i), (ii), (iii) and (iv) above with respect to certain adjustments on changes in capitalization.
Clawback/Forfeiture. Awards may be subject to clawback or forfeiture to the extent (i) the participant engaged in or engages in activity that is in conflict with or adverse to the interests of the Company, including fraud or conduct contributing to any financial restatements or irregularities, (ii) the participant violates a non-competition, non-solicitation, non-disparagement or non-disclosure covenant or agreement with the Company, (iii) the participant is terminated for Cause (as defined in the Incentive Plan), (iv) required by applicable law (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act) and/or the rules and regulations of NYSE or other applicable securities exchange, or (v) if so required pursuant to a written policy adopted by the Company or the provisions of an award agreement.
Summary of Federal Income Tax Consequences of Awards
The following is a brief summary of the principal United States federal income tax consequences of awards and transactions under the Plan. This summary is not intended to be exhaustive and, among other things, does not describe local, state or foreign tax consequences.
Stock Options and Stock Appreciation Rights. A participant will not recognize any income at the time an NSO or SAR is granted, nor will the Company be entitled to a deduction at that time.
• When a nonqualified option is exercised, the participants will recognize ordinary income in an amount equal to the excess of the fair market value of the shares received as of the date of exercise over the exercise price.
• When an incentive stock option (“ISO”) is exercised, a participant will not recognize any income at the time of grant or exercise. However, the excess of the fair market value of the shares received on the date of exercise over the exercise price paid could create a liability under the alternative minimum tax.
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• If a participant disposes of the shares acquired on exercise of an ISO after the later of two years after the date of grant of the ISO or one year after the date of exercise of the ISO (the “holding period”), the gain (i.e., the excess of the proceeds received on sale over the exercise price paid), if any, will be long-term capital gain eligible for favorable tax rates.
• If the participant disposes of the shares prior to the end of the holding period, the disposition is a “disqualifying disposition”. The participant will then recognize ordinary income in the year of the disqualifying disposition equal to the excess, if any, of the lesser of (i) the fair market value of the shares received on the date of exercise or (ii) the amount received for the shares, over the exercise price paid. The balance of the gain or the loss, if any, will be long-term or short-term capital gain or loss, depending on how long the shares were held by the participant prior to disposition. If a participant recognizes ordinary income as a result of a disqualifying disposition, the Company will be entitled to a deduction in the same amount as the participant recognizes ordinary income.
• When a SAR is exercised, a participant will recognize ordinary income in an amount equal to the cash received or, if the SAR is paid in shares, the fair market value of the shares received as of the date of exercise.
Upon the exercise of stock options or SARs, the compensation committee may require that the participant pay the Company an amount sufficient to satisfy any applicable tax withholding obligations (as calculated at the applicable minimum statutory rate). The compensation committee may also accept payment of tax withholding obligations through any of the exercise price payment methods described in the Incentive Plan.
The Company will be entitled to a tax deduction with respect to an nonqualified option in the same amount as the participant recognizes income. The Company is not entitled to a deduction as a result of the grant or exercise of an ISO.
• Restricted Stock Units and Restricted Stock: A participant will not recognize any income at the time an RSU or award of restricted stock is granted, nor will the Company be entitled to a deduction at that time.
• Upon settlement of an RSU: The participant will recognize ordinary income in an amount equal to the fair market value of the shares received or, if the RSU is paid in cash, the amount payable.
• Upon vesting of shares of restricted stock: In the year in which shares of restricted stock are no longer subject to a substantial risk of forfeiture (i.e., in the year that the shares vest), the participant will recognize ordinary income in an amount equal to the excess of the fair market value of the shares on the date of vesting over the amount, if any, the participant paid for the shares. A participant may, however, elect within 30 days after being granted restricted stock to recognize ordinary income in the year of receipt instead of the year of vesting. If an election is made, the amount of income recognized by the participant will be equal to the excess of the fair market value of the shares on the date of receipt over the amount, if any, the participant paid for the shares.
Payroll taxes are required to be withheld from the participant on the amount of ordinary income recognized by the participant. The Company will be entitled to a tax deduction in the same amount as the participant recognizes income.
Cash Awards. A participant will not recognize any income at the time a cash-based award is granted. The participant will recognize income at the time that cash is paid to the participant pursuant to a cash-based award, in the amount paid. The Company will satisfy the participant’s tax withholding obligations by withholding cash from the payment. The Company will be entitled to a tax deduction in the same amount as the participant recognizes income.
New Plan Benefits
The table below sets forth the number of shares of our common stock subject to the stock options that are expected to be granted to Mr. Shannon and Mr. Parker under the Incentive Plan at or shortly after the consummation of the Business Combination. The number of shares subject to the options shown in the table are on a pre-conversion basis and do not reflect the conversion of shares contemplated by the Business Combination Agreement. The number of shares subject to the options following the conversion is not yet determinable. When converted, the option granted
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to Mr. Shannon will relate to Class B shares of our common stock, and the option granted to Mr. Parker will relate to Class A shares of our common stock. The fair market value of these options will depend on future stock prices and therefore these values are not currently determinable.
As discussed above under “Employment Agreements with Named Executive Officers,” we expect to enter into a new employment agreement with each of Mr. Shannon and Mr. Parker, which will provide each executive with an additional initial equity grant under the Incentive Plan. The number of shares subject to each of the grants has not yet been determined. Grants under the Incentive Plan to other participants, and any additional grants to Mr. Shannon and Mr. Parker, will be made at the discretion of the plan administrator and are not currently determinable.
|
Name and Principal Position
|
|
Number of
Shares Subject
to Options on a
Pre-Conversion
Basis
|
|
Thomas F. Shannon Chairman,
Chief Executive Officer, Director
|
|
18,881
|
|
Brett I. Parker
Vice Chairman, President, Chief Financial Officer, Secretary and Director
|
|
7,162
|
Equity Compensation Plan Information
No shares of our common stock were covered by awards outstanding under any equity compensation plan as of June 27, 2021. The following table provides information about the options to purchase shares of common stock of Bowlero Corp. outstanding under the Bowlmor AMF Corp. 2017 Stock Incentive (the “2017 Plan”) as of June 27, 2021.
|
Plan Category
|
|
Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants and Rights
|
|
Weighted Average Exercise Price of Outstanding Options, Warrants and Rights
|
|
Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans
|
|
Equity compensation plans approved by security holders
|
|
1,990,333
|
|
$
|
212.86
|
|
45,825
|
|
Equity compensation plans not approved by security holders
|
|
—
|
|
|
—
|
|
—
|
Vote Required for Approval
The Incentive Plan Proposal may be approved by an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
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The Incentive Plan Proposal is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, the Incentive Plan Proposal will have no effect, even if approved at the extraordinary general meeting.
Resolution
The full text of the resolution to be passed is as follows:
“RESOLVED, as an ordinary resolution, that Isos’s adoption of the Incentive Plan be approved, ratified and confirmed in all respects.”
Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF THE INCENTIVE PLAN PROPOSAL.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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THE ESPP PROPOSAL
Overview
Our board of directors approved the Bowlero Corp. Employee Stock Purchase Plan (the “ESPP”) and adopt the ESPP, effective as of the consummation of the Business Combination, subject to the approval of our shareholders. The purpose of the ESPP is to provide eligible employees of the Company and certain designated subsidiaries with a convenient opportunity to purchase shares of our common stock. We believe by providing eligible employees with an opportunity to increase their proprietary interest in the success of the Company, the ESPP will motivate employees to offer their maximum effort to the Company and help focus them on the creation of long-term value consistent with the interests of our shareholders.
If approved by our shareholders, the ESPP will become effective upon the consummation of the Business Combination.
Summary of the Employee Stock Purchase Plan
Set forth below is a summary of the material terms of the ESPP. This summary is qualified in its entirety by reference to the complete text of the ESPP, a copy of which is attached to this proxy statement/prospectus statement as Annex L. We urge our shareholders to read carefully the entire ESPP before voting on this proposal.
Administration. The compensation committee of our board of directors will administer the ESPP. The ESPP is implemented through a series of offerings under which eligible employees are granted purchase rights to purchase shares of our common stock on specified dates during such offerings. Under the ESPP, the plan administrator has full discretion to administer and interpret the ESPP and to adopt such rules, regulations and procedures as it deems necessary or advisable and to determine, among other things, the duration, frequency, start date and end dates of offering periods.
Eligibility. Generally, all regular employees, including executive officers, employed by the Company or one of the Company’s designated subsidiaries, will be eligible to participate in the ESPP and may contribute, normally through payroll deductions, an aggregate amount equal to their contribution for the purchase of our common stock under the ESPP. Unless otherwise determined by the plan administrator, common stock will be purchased for the accounts of employees participating in the ESPP at a price per share equal to not less than the lesser of (i) 85% of the fair market value of a share of common stock on the first trading date of an offering or (ii) 85% of the fair market value of a share of common stock on the date of purchase.
Number of Shares Authorized. Pursuant to the ESPP, we have reserved an aggregate number of shares of our common stock for issuance of awards to be granted thereunder equal to 3% of the outstanding shares of our common stock immediately following the consummation of the Business Combination (the “Initial ESPP Pool”), subject to an annual increase equal to the lesser of (a) 1% of the aggregate number of shares of our common stock outstanding on the final day of the immediately preceding calendar year, (b) 1,753,487 shares and (c) such smaller number of shares as is determined by our board of directors. The number of shares in the Initial Pool will not be determinable until the consummation of the Business Combination but is expected to be approximately 5,260,462 shares.
Limitations. Employees may have to satisfy one or more of the following service requirements before participating in the ESPP, as determined by the plan administrator, including: (i) being customarily employed for more than 20 hours per week; (ii) being customarily employed for more than five months per calendar year; (iii) continuous employment for a period of at least sixty days; or (iv) classified as an employee for tax purposes. No employee will be eligible for the grant of any purchase rights under the ESPP if immediately after such rights are granted, such employee has voting power over 5% or more of our capital stock measured by vote or value pursuant to Section 424(d) of the Code.
Changes to Capital Structure. In the event that there occurs a change in the Company’s capital structure through such actions as a stock split, merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, large nonrecurring cash dividend, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other similar equity restructuring transactions, the plan administrator will make appropriate adjustments to (i) the class(es) and maximum number of shares reserved under the ESPP, (ii) the class(es) and maximum number of shares by which the share reserve may increase
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automatically each year, (iii) the class(es) and maximum number of shares and purchase price applicable to all outstanding offerings and purchase rights and (iv) the class(es) and number of shares that are subject to purchase limits under ongoing offerings.
Corporate Transactions. In the event of a corporate transaction, as defined in the ESPP, any then-outstanding rights to purchase shares under the ESPP may be assumed, continued or substituted by any surviving or acquiring entity (or its parent company). If the surviving or acquiring entity (or its parent company) elects not to assume, continue or substitute such purchase rights, then each offering period in progress will be shortened and a new purchase date will be set by the compensation committee, and such purchase rights will terminate immediately.
ESPP Amendment or Termination. Our board of directors will have the authority to amend or terminate the ESPP, provided that except in certain circumstances such amendment or termination may not materially impair any outstanding purchase rights without the holder’s consent. The Company must obtain shareholder approval of any amendment to the ESPP to the extent required by applicable law or listing rules.
Certain Federal Income Tax Consequences of Participating in the ESPP
The following brief summary of the effect of U.S. federal income taxation upon the participant and the Company with respect to the shares purchased under the ESPP does not purport to be complete and does not discuss the tax consequences of a participant’s death or the income tax laws of any state or non-U.S. jurisdiction in which the participant may reside.
The ESPP, and the right of U.S. participants to make purchases thereunder, is intended to qualify under the provisions of Sections 421 and 423 of the Code. Under these provisions, no income will be taxable to a participant until the shares purchased under the ESPP are sold or otherwise disposed of. Upon sale or other disposition of the shares, the participant generally will be subject to tax in an amount that depends upon whether the sale occurs before or after expiration of the holding periods described in the following sentence. If the shares are sold or otherwise disposed of more than two years from the first day of the applicable offering and one year from the applicable date of purchase, the participant will recognize ordinary income measured as the lesser of (1) the excess of the fair market value of the shares at the time of such sale or disposition over the purchase price, or (2) the excess of the fair market value of a share on the offering date that the right was granted over the purchase price for the right as determined on the offering date. Any additional gain will be treated as long-term capital gain. If the shares are sold or otherwise disposed of before the expiration of either of these holding periods, the participant will recognize ordinary income generally measured as the excess of the fair market value of the shares on the date the shares are purchased over the purchase price. Any additional gain or loss on such sale or disposition will be long-term or short-term capital gain or loss, depending on how long the shares have been held from the date of purchase. The Company generally will not entitled to a deduction for amounts taxed as ordinary income or capital gain to a participant, except to the extent of ordinary income recognized by participants upon a sale or disposition of shares prior to the expiration of the holding periods described above.
ESPP Benefits
Purchase rights are subject to an eligible employee’s discretion, including an employee’s decision not to participate in the ESPP, and awards under the ESPP are not determinable. Directors who are not employees are not eligible to participate in, and will not receive any benefit under, the ESPP.
Vote Required for Approval
The ESPP Proposal may be approved by an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
The ESPP Proposal is conditioned on the approval of each of the Condition Precedent Proposals. Therefore, if each of the Condition Precedent Approvals is not approved, the ESPP Proposal will have no effect, even if approved at the extraordinary general meeting.
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Resolution
The full text of the resolution to be passed is as follows:
“RESOLVED, as an ordinary resolution, that Isos’s adoption of the ESPP be approved, ratified and confirmed in all respects.”
Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF THE ESPP PROPOSAL.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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THE ADJOURNMENT PROPOSAL
The Adjournment Proposal allows Isos’s board of directors to submit a proposal to approve, by ordinary resolution, the adjournment of the extraordinary general meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event, based on the tabulated votes, there are not sufficient votes at the time of the extraordinary general meeting to approve the Condition Precedent Proposals. The purpose of the Adjournment Proposal is to permit further solicitation of proxies and votes and to provide additional time for the Sponsor and/or its affiliates to make purchases of ordinary shares or other arrangements that would increase the likelihood of obtaining a favorable vote on the proposals to be put to the extraordinary general meeting. See the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination”.
Consequences if the Adjournment Proposal is Not Approved
If the Adjournment Proposal is presented to the extraordinary general meeting and is not approved by the shareholders, Isos’s board of directors may not be able to adjourn the extraordinary general meeting to a later date in the event that, based on the tabulated votes, there are not sufficient votes at the time of the extraordinary general meeting to approve the Condition Precedent Proposals. In such events, the Business Combination would not be completed.
Vote Required for Approval
The approval of the Adjournment Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the ordinary shares represented in person or by proxy and entitled to vote thereon and who vote at the extraordinary general meeting. Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting.
The Adjournment Proposal is not conditioned upon any other proposal.
Resolution
The full text of the resolution to be passed is as follows:
“RESOLVED, as an ordinary resolution, that the adjournment of the extraordinary general meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event that there are insufficient votes for the approval of one or more proposals at the extraordinary general meeting be approved”.
Recommendation of the Isos Board of Directors
THE ISOS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ISOS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF THE ADJOURNMENT PROPOSAL.
The existence of financial and personal interests of one or more of Isos’s directors may result in a conflict of interest on the part of such director(s) between what he, she or they may believe is in the best interests of Isos and its shareholders and what he, she or they may believe is best for himself, herself or themselves in determining to recommend that shareholders vote for the proposals. In addition, Isos’s officers have interests in the Business Combination that may conflict with your interests as a shareholder. See the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination” for a further discussion of these considerations.
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U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a discussion of the material U.S. federal income tax considerations generally applicable to Isos shareholders of Class A ordinary shares and warrants of the Domestication and exercise of redemption rights. The following discussion also summarizes certain U.S. federal income tax consequences for U.S. Holders and Non-U.S. Holders of owning and disposing of shares of New Bowlero common stock or warrants after the Domestication. This section applies only to Isos shareholders that hold their Class A ordinary shares or warrants as capital assets for U.S. federal income tax purposes (generally, property held for investment). This discussion does not discuss all aspects of U.S. federal income taxation that may be relevant to holders in light of their particular circumstances or status including:
• financial institutions or financial services entities;
• broker-dealers;
• the Sponsor or its affiliates;
• foreign corporations with respect to which there are one or more United States shareholders within the meaning of Treasury Regulations Section 1.367(b)-3(b)(1)(ii);
• taxpayers that are subject to the mark-to-market accounting rules;
• tax-exempt entities;
• governments or agencies or instrumentalities thereof;
• insurance companies;
• regulated investment companies or real estate investment trusts;
• expatriates or former long-term residents of the United States;
• persons that actually or constructively own five percent or more of our voting shares or five percent or more of the total value of all classes of our shares, except as specifically discussed under the caption heading “— Effects of Section 367 on U.S. Holders”;
• persons that acquired our securities pursuant to an exercise of employee share options or upon payout of a restricted stock unit, in connection with employee share incentive plans or otherwise as compensation;
• persons that hold our securities as part of a straddle, constructive sale, hedging, conversion or other integrated or similar transaction;
• persons whose functional currency is not the U.S. dollar;
• controlled foreign corporations; or
• passive foreign investment companies.
This discussion, as well as the opinion of Hughes Hubbard & Reed LLP described below, is based on the Code, proposed, temporary and final Treasury Regulations promulgated under the Code, and judicial and administrative interpretations thereof, all as of the date hereof. All of the foregoing is subject to change or differing interpretations, which could apply retroactively and could affect the tax considerations described herein. This discussion does not address the special tax accounting rules under Section 451(b) of the Code, the alternative minimum tax, or U.S. federal taxes other than those pertaining to U.S. federal income taxation (such as estate or gift taxes, or the Medicare tax on investment income), nor does it address any aspects of U.S. state or local or non-U.S. taxation.
We have not and do not intend to seek any rulings from the IRS regarding the Domestication or an exercise of redemption rights. There can be no assurance that the IRS will not take positions inconsistent with the considerations discussed below or that any such positions would not be sustained by a court.
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This discussion does not consider the tax treatment of partnerships (or any entities or arrangements characterized as partnerships for U.S. federal income tax purposes) or persons who hold our securities through such entities or arrangements. If a partnership (or any entity or arrangement characterized as a partnership for U.S. federal income tax purposes) holds Isos Class A ordinary shares or warrants, the tax treatment of such partnership and a person treated as a partner of such partnership will generally depend on the status of the partner and the activities of the partnership. Partnerships holding any Isos Class A ordinary shares or warrants and persons that are treated as partners of such partnerships are urged to consult with their tax advisors as to the particular U.S. federal income tax consequences of the Domestication and an exercise of redemption rights to them.
EACH HOLDER IS URGED TO CONSULT WITH ITS OWN TAX ADVISOR WITH RESPECT TO THE PARTICULAR TAX CONSEQUENCES TO SUCH HOLDER OF THE DOMESTICATION, AN EXERCISE OF REDEMPTION RIGHTS AND THE BUSINESS COMBINATION, INCLUDING THE EFFECTS OF U.S. FEDERAL, STATE, LOCAL AND NON-U.S. TAX LAWS.
U.S. HOLDERS
As used herein, a “U.S. Holder” is a beneficial owner of Isos Class A ordinary shares or warrants who or that is, for U.S. federal income tax purposes:
• an individual citizen or resident of the United States,
• a corporation (or other entity that is treated as a corporation for U.S. federal income tax purposes) that is created or organized (or treated as created or organized) in or under the laws of the United States or any state thereof or the District of Columbia,
• an estate whose income is subject to U.S. federal income tax regardless of its source, or
• a trust if (1) a U.S. court can exercise primary supervision over the administration of such trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (2) it has a valid election in place to be treated as a U.S. person.
Effects of the Domestication to U.S. Holders
The discussion under this heading “— Effects of the Domestication to U.S. Holders” constitutes the opinion of Hughes Hubbard & Reed LLP, special U.S. tax counsel to Isos, insofar as they address the material U.S. federal income tax considerations of the Domestication for beneficial owners of Isos shareholders of Class A ordinary shares and warrants, and discuss matters of U.S. federal income tax law and regulations or legal conclusions with respect thereto, based on, and subject to qualifications, assumptions and limitations stated herein and in the opinion included as Exhibit 8.1 hereto, as well as representations and covenants of Isos (the “Domestication Tax Opinion”). If any of the assumptions, representations or covenants on which the Domestication Tax Opinion is based is or becomes incorrect, incomplete, inaccurate or is otherwise not complied with or there is a subsequent change in applicable law, the validity of the Domestication Tax Opinion may be adversely affected and the tax consequences of the Domestication could differ from those described herein. An opinion of counsel is not binding on the IRS or any court, and there can be no certainty that the IRS will not challenge the conclusions reflected in the Domestication Tax Opinion or that a court would not sustain such a challenge.
The U.S. federal income tax consequences of the Domestication will depend primarily upon whether the domestication qualifies as a “reorganization” within the meaning of Section 368 of the Code.
Under Section 368(a)(1)(F) of the Code, a reorganization includes a “mere change in identity, form, or place of organization of one corporation, however effected” (an “F Reorganization”). Pursuant to the Domestication, Isos will change its jurisdiction of incorporation from the Cayman Islands to Delaware.
The Domestication should qualify as an F Reorganization.
Assuming the Domestication qualifies as an F Reorganization, U.S. Holders of Isos Class A ordinary shares or warrants generally should not recognize gain or loss for U.S. federal income tax purposes on the Domestication, except as provided below under the caption headings “— Effects of Section 367 on U.S. Holders” and “— PFIC Considerations,” and the Domestication should be treated for U.S. federal income tax purposes as if Isos
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(i) transferred all of its assets and liabilities to New Bowlero in exchange for all of the outstanding common stock and warrants of New Bowlero; and (ii) then distributed such common stock and warrants of New Bowlero to the holders of securities of Isos in liquidation of Isos. The taxable year of Isos will be deemed to end on the date of the Domestication.
If the Domestication fails to qualify as an F Reorganization, subject to the PFIC rules described in further detail below, a U.S. Holder generally would recognize gain or loss with respect to its Isos Class A ordinary shares or warrants in an amount equal to the difference, if any, between the fair market value of the corresponding shares of New Bowlero common stock or warrants received or deemed received in the Domestication and the U.S. Holder’s adjusted tax basis in its Isos Class A ordinary shares or warrants converted or deemed converted therefor. In such event, such U.S. Holder’s basis in the shares of New Bowlero common stock or warrants would be equal to their respective fair market values on the date of the Domestication and such U.S. Holder’s holding period for New Bowlero common stock or warrants would begin on the day following the date of the Domestication. The remainder of this discussion assumes that the Domestication will qualify as an F Reorganization.
Because the Domestication will occur immediately prior to the redemption of U.S. Holders that exercise redemption rights with respect to Isos Class A ordinary shares, U.S. Holders exercising such redemption rights will be subject to the potential tax consequences of the Domestication. All holders considering exercising redemption rights with respect to their public shares are urged to consult with their tax advisors with respect to the potential tax consequences to them of the Domestication and exercise of redemption rights.
Basis and Holding Period Considerations
Assuming the Domestication qualifies as an F Reorganization: (i) the tax basis of a share of New Bowlero common stock or warrant received or deemed received by a U.S. Holder in the Domestication will equal the U.S. Holder’s tax basis in the Isos Class A ordinary share or warrant converted or deemed converted therefor, increased by any amount included in the income of such U.S. Holder as a result of Section 367 of the Code (as discussed below) and (ii) the holding period for a share of New Bowlero common stock or warrant received or deemed received by a U.S. Holder will include such U.S. Holder’s holding period for the Isos Class A ordinary share or warrant converted or deemed converted therefor.
Effects of Section 367 on U.S. Holders
Section 367 of the Code applies to certain transactions involving foreign corporations, including a domestication of a foreign corporation in an F Reorganization. Section 367 of the Code imposes United States federal income tax on certain United States persons in connection with transactions that would otherwise be tax-free. Section 367(b) of the Code will generally apply to U.S. Holders on the date of the Domestication. Because the Domestication will occur immediately prior to the redemption of holders that exercise redemption rights with respect to Isos Class A ordinary shares, U.S. Holders exercising such redemption rights will be subject to the potential tax consequences of Section 367 of the Code as a result of the Domestication.
A. “U.S. Shareholders” of Isos
Subject to the PFIC discussion below, a U.S. Holder who, on the date of the Domestication beneficially owns (actually or constructively) 10% or more of the total combined voting power of all classes of Isos stock entitled to vote or 10% or more of the total value of all classes of Isos stock (a “U.S. Shareholder”), must include in income as a dividend the “all earnings and profits amount” attributable to the Isos Class A ordinary shares it directly owns, within the meaning of the Treasury Regulations under Section 367 of the Code. A U.S. Holder’s ownership of Isos warrants will be taken into account in determining whether such U.S. Holder is a U.S. Shareholder. Complex attribution rules apply in determining whether a U.S. Holder is a U.S. Shareholder and all U.S. Holders are urged to consult with their tax advisors with respect to these attribution rules.
A U.S. Shareholder’s all earnings and profits amount with respect to its Isos Class A ordinary shares is the net positive earnings and profits (if any) of Isos (as determined under Treasury Regulations under Section 367) attributable to such Isos Class A ordinary shares (as determined under Treasury Regulations under Section 367) but without regard to any gain that would be realized on a sale or exchange of such Isos Class A ordinary shares. Treasury Regulations under Section 367 provide that the all earnings and profits amount attributable to a shareholder’s stock is determined according to the principles of Section 1248 of the Code. In general, Section 1248
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of the Code and the Treasury Regulations thereunder provide that the amount of earnings and profits attributable to a block of stock (as defined in Treasury Regulations under Section 1248 of the Code) in a foreign corporation is the ratably allocated portion of the foreign corporation’s earnings and profits generated during the period the shareholder held the block of stock.
Isos does not expect to have significant, if any, cumulative net earnings and profits on the date of the Domestication. If Isos’s cumulative net earnings and profits through the date of the Domestication is less than or equal to zero, then a U.S. Shareholder should not be required to include in gross income the all earnings and profits amount with respect to its Isos Class A ordinary shares. If Isos’s cumulative net earnings and profits are greater than zero, then a U.S. Shareholder would be required to include all of its earnings and profits amount in income as a deemed dividend under Treasury Regulations under Section 367 as a result of the Domestication.
B. U.S. Holders that Own Less Than 10 Percent of Isos
Subject to the PFIC discussion below, a U.S. Holder who, on the date of the Domestication, beneficially owns (actually or constructively) Isos Class A ordinary shares with a fair market value of $50,000 or more and is not a U.S. Shareholder will recognize gain (but not loss) with respect to its Class A ordinary shares in the Domestication or, in the alternative, may elect to recognize the “all earnings and profits” amount attributable to such holder’s Isos Class A ordinary shares as described below.
Unless such a U.S. Holder makes the “all earnings and profits election” as described below, such U.S. Holder generally must recognize gain (but not loss) with respect to New Bowlero common stock received in the Domestication in an amount equal to the excess of the fair market value of such New Bowlero common stock over the U.S. Holder’s adjusted tax basis in the Isos Class A ordinary shares deemed surrendered in exchange therefor.
In lieu of recognizing any gain as described in the preceding paragraph, a U.S. Holder may elect to include in income the all earnings and profits amount attributable to its Isos Class A ordinary shares under Section 367(b) of the Code. There are, however, strict conditions for making this election. This election must comply with applicable Treasury Regulations and generally must include, among other things:
(i) a statement that the Domestication is a Section 367(b) exchange (within the meaning of the applicable Treasury Regulations);
(ii) a complete description of the Domestication;
(iii) a description of any stock, securities or other consideration transferred or received in the Domestication;
(iv) a statement describing the amounts required to be taken into account for U.S. federal income tax purposes;
(v) a statement that the U.S. Holder is making the election that includes (A) a copy of the information that the U.S. Holder received from Isos establishing and substantiating the U.S. Holder’s all earnings and profits amount with respect to the U.S. Holder’s Isos Class A ordinary shares and (B) a representation that the U.S. Holder has notified Isos (or New Bowlero) that the U.S. Holder is making the election; and
(vi) certain other information required to be furnished with the U.S. Holder’s tax return or otherwise furnished pursuant to the Code or the Treasury Regulations; provided that if Isos has never had earnings and profits, a U.S. Holder may, in lieu of the information described in clauses (iv) through (vi) above, provide a statement from New Bowlero that Isos never had any earning and profits.
In addition, the election must be attached by an electing U.S. Holder to its timely filed U.S. federal income tax return for the year of the Domestication, and (unless the U.S. Holder has received a statement from New Bowlero to the effect that Isos never had any earnings and profits) the U.S. Holder must send notice of making the election to New Bowlero no later than the date such tax return is filed. In connection with this election, New Bowlero intends to provide each U.S. Holder eligible to make such an election with information regarding Isos’s earnings and profits upon request.
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Isos does not expect to have significant, if any, cumulative earnings and profits through the date of the Domestication and if that proves to be the case, U.S. Holders who make this election are not expected to have a significant, if any, income inclusion under Section 367(b) of the Code, provided that the U.S. Holder properly executes the election and complies with the applicable notice requirements.
EACH U.S. HOLDER IS URGED TO CONSULT WITH ITS TAX ADVISOR REGARDING WHEN AND WHETHER TO MAKE THIS ELECTION AND, IF THE ELECTION IS DETERMINED TO BE ADVISABLE, THE APPROPRIATE FILING REQUIREMENTS WITH RESPECT TO THIS ELECTION AND THE CONSEQUENCES OF MAKING AN ELECTION.
C. U.S. Holders that Own Isos Class A Ordinary Shares with a Fair Market Value of Less Than $50,000
Subject to the “— PFIC Considerations” discussion below, a U.S. Holder who, on the date of the Domestication, beneficially owns (actually or constructively) Isos Class A ordinary shares with a fair market value less than $50,000 should not be required to recognize any gain or loss under Section 367 of the Code in connection with the Domestication, and generally should not be required to include any part of the all earnings and profits amount in income.
Tax Consequences for U.S. Holders of Warrants
Subject to the considerations described above relating to a U.S. Holder’s ownership of warrants being taken into account in determining whether such U.S. Holder is a U.S. Shareholder for purposes of Section 367(b) of the Code, and the “— PFIC Considerations” discussion below, a U.S. Holder of warrants should not be subject to U.S. federal income tax as a result of the Domestication.
ALL U.S. HOLDERS ARE URGED TO CONSULT WITH THEIR TAX ADVISORS WITH RESPECT TO THE EFFECT OF SECTION 367 OF THE CODE TO THEIR PARTICULAR CIRCUMSTANCES.
PFIC Considerations
In addition to the discussion under the heading “— Effects of Section 367 on U.S. Holders” above, the Domestication could be a taxable event to U.S. Holders under the PFIC provisions of the Code.
A. Definition of a PFIC
Subject to the start-up exception described in the next paragraph, a foreign (i.e., non-U.S.) corporation will be classified as a PFIC for U.S. federal income tax purposes if either (i) at least 75% of its gross income in a taxable year, including its pro rata share of the gross income of any corporation in which it is considered to own at least 25% of the shares by value, is passive income or (ii) at least 50% of its assets in a taxable year (generally determined based on fair market value and averaged quarterly over the year), including its pro rata share of the assets of any corporation in which it is considered to own at least 25% of the shares by value are held for the production of, or produce, passive income. Passive income generally includes dividends, interest, rents and royalties (other than rents or royalties derived from the active conduct of a trade or business) and gains from the disposition of passive assets. For purposes of these rules, interest income earned by Isos would be considered to be passive income and cash held by Isos would be considered to be a passive asset.
Under the start-up exception, a foreign corporation that would otherwise be treated as a PFIC will not be a PFIC for the first taxable year that the corporation has gross income (the “start-up year”), if (1) no predecessor of the corporation was a PFIC; (2) it is established to the satisfaction of the IRS that it will not be a PFIC for either of the first two taxable years following the start-up year; and (3) the corporation is not in fact a PFIC for either of those years.
B. PFIC Status of Isos
Based upon the composition of its income and assets, and upon a review of its financial statements, Isos believes that, but for application of the start-up exception described below, it would likely be considered a PFIC for its current taxable year.
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An election to have Isos’s current taxable year begin on the date of its formation, December 29, 2020, is expected to be made. If the Domestication is completed in the current taxable year and the IRS respects the taxable year election, Isos believes that it will satisfy the requirements for the start-up exception for the current taxable year and, therefore, it should not be treated as a PFIC for the current taxable year. Even if the IRS does not respect the taxable year election, Isos may still be able to satisfy the start-up exception because it did not have gross income in 2020. However, the IRS or a court is not bound by Isos’s position. Further, such determination is factual in nature and subject to change. Therefore, no assurance can be provided that Isos will not be treated as a PFIC.
The applicability of the start-up exception is subject to substantial uncertainty and U.S. Holders are urged to consult with their own tax advisors in this regard. In the case that Isos were to be determined to be a PFIC, U.S. Holders could be subject to adverse PFIC rules as a result of the Domestication.
These rules are discussed in the immediately following paragraphs.
C. Effects of PFIC Rules on the Domestication
Section 1291(f) of the Code requires that, to the extent provided in Treasury Regulations, a United States person who disposes of stock of a PFIC (including for this purpose converting warrants for newly issued warrants in the Domestication) recognize gain notwithstanding any other provision of the Code. No final Treasury Regulations are currently in effect under Section 1291(f) of the Code. However, proposed Treasury Regulations under Section 1291(f) of the Code have been promulgated with a retroactive effective date. If finalized in their current form, those proposed Treasury Regulations may require gain recognition to U.S. Holders of Isos Class A ordinary shares and warrants upon the Domestication if:
(i) Isos were classified as a PFIC at any time during such U.S. Holder’s holding period in such Isos Class A ordinary shares or warrants, and
(ii) the U.S. Holder had not timely made (a) a QEF Election (as defined below) for the first taxable year in which the U.S. Holder owned such Isos Class A ordinary shares or in which Isos was a PFIC, whichever is later (or a QEF Election along with a purging election), or (b) a mark-to-market election (as defined below) with respect to such Isos Class A ordinary shares. Generally, Treasury Regulations provide that neither election applies to Isos warrants. The tax on any such recognized gain would be imposed based on a complex set of computational rules designed to offset the tax deferral with respect to the undistributed earnings of Isos.
Under these rules:
• the U.S. Holder’s gain will be allocated ratably over the U.S. Holder’s holding period for such U.S. Holder’s Isos Class A ordinary shares or warrants;
• the amount of gain allocated to the U.S. Holder’s taxable year in which the U.S. Holder recognized the gain, or to the period in the U.S. Holder’s holding period before the first day of the first taxable year in which Isos was a PFIC, will be taxed as ordinary income;
• the amount of gain allocated to other taxable years (or portions thereof) of the U.S. Holder and included in such U.S. Holder’s holding period would be taxed at the highest tax rate in effect for that year and applicable to the U.S. Holder; and
• an additional tax equal to the interest charge generally applicable to underpayments of tax will be imposed on the U.S. Holder in respect of the tax attributable to each such other taxable year of such U.S. Holder.
Any “all earnings and profits amount” included in income by a U.S. Holder as a result of the Domestication (discussed under the heading “— Effects of Section 367 on U.S. Holders” above) would generally be treated as gain subject to these rules.
It is difficult to predict whether, in what form and with what effective date, final Treasury Regulations under Section 1291(f) of the Code may be adopted or how any such Treasury Regulations would apply. Therefore, if Isos is treated as a PFIC, U.S. Holders of Isos Class A ordinary shares that have not made a timely QEF Election (or a QEF Election along with a purging election) or a mark-to-market election (each as defined below) may, pursuant to
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the proposed Treasury Regulations, be subject to taxation under the PFIC rules on the Domestication with respect to their Isos Class A ordinary shares and warrants under the PFIC rules in the manner set forth above. A U.S. Holder that made a QEF Election (or a QEF Election along with a purging election) would generally not be subject to the adverse PFIC rules discussed above with respect to its Isos Class A ordinary shares but rather would include annually in gross income its pro rata share of the ordinary earnings and net capital gain of Isos, whether or not such amounts are actually distributed.
The application of the PFIC rules to warrants is unclear. A proposed Treasury Regulation issued under the PFIC rules generally treats an “option” (which would include an Isos warrant) to acquire the stock of a PFIC as stock of the PFIC, while a final Treasury Regulation issued under the PFIC rules provides that the QEF Election does not apply to options and no mark-to-market election (as described below) is currently available with respect to options. Therefore, it is possible that the proposed Treasury Regulations if finalized in their current form would apply to cause gain recognition with respect to Isos warrants as a result of the Domestication.
Any gain recognized by a U.S. Holder of Isos Class A ordinary shares or warrants as a result of the Domestication pursuant to PFIC rules would be taxable income to such U.S. Holder, taxed under the PFIC rules in the manner set forth above, with no corresponding receipt of cash.
ALL U.S. HOLDERS ARE URGED TO CONSULT WITH THEIR TAX ADVISORS REGARDING THE POTENTIAL EFFECTS OF THE PFIC RULES ON THE DOMESTICATION, INCLUDING THE IMPACT OF ANY PROPOSED OR FINAL TREASURY REGULATIONS.
D. QEF Election and Mark-to-Market Election
The impact of the PFIC rules on a U.S. Holder of Isos Class A ordinary shares (but not warrants) if Isos is classified as a PFIC will depend on whether the U.S. Holder has made a timely and effective election to treat Isos as a “qualified electing fund” under Section 1295 of the Code for the taxable year that is the first year in the U.S. Holder’s holding period of Isos Class A ordinary shares during which Isos qualified as a PFIC (a “QEF Election”) or, if in a later taxable year, the U.S. Holder made a QEF Election along with a purging election. A purging election creates a deemed sale of the U.S. Holder’s Isos Class A ordinary shares at their then fair market value and requires the U.S. Holder to recognize gain pursuant to the purging election subject to the special PFIC tax and interest charge rules described above. As a result of any such purging election, the U.S. Holder would have a new basis and holding period in its Isos Class A ordinary shares. U.S. Holders are urged to consult with their tax advisors as to the application of the rules governing purging elections to their particular circumstances.
A U.S. holder that makes a QEF election is required to include in income on an annual basis its share of the PFIC’s net capital gain and ordinary income, if any. A U.S. Holder’s ability to make a QEF Election (or a QEF Election along with a purging election) with respect to Isos is contingent upon, among other things, the provision by New Bowlero (as successor to Isos) of a “PFIC Annual Information Statement” to such U.S. Holder. New Bowlero intends to provide such information. To the extent that there is uncertainty as to whether Isos is a PFIC, a U.S. Holder may preserve its ability to make a retroactive QEF Election by filing a protective statement setting forth the U.S. Holder’s reasonable belief that Isos is not a PFIC in accordance with applicable Treasury Regulations with its timely filed tax return. As discussed further above, a U.S. Holder is not able to make a QEF Election with respect to Isos warrants.
The impact of the PFIC rules on a U.S. Holder of Isos Class A ordinary shares may also depend on whether the U.S. Holder has made an election under Section 1296 of the Code. U.S. Holders who hold (actually or constructively) stock of a foreign corporation that is classified as a PFIC may annually elect to mark such stock to its market value if such stock is “marketable stock,” generally, stock that is regularly traded on a national securities exchange that is registered with the SEC, including the NYSE, or on a foreign exchange or market that the IRS determines has rules sufficient to ensure that the market price represents a legitimate and sound fair market value (a “mark-to-market election”). No assurance can be given that the Isos Class A ordinary shares are considered to be marketable stock for purposes of the mark-to-market election or whether the other requirements of this election are satisfied. If such an election is available and has been made, such U.S. Holders will generally not be subject to the special taxation rules of Section 1291 of the Code discussed herein. Instead, in general, the U.S. Holder will include as ordinary income each year the excess, if any, of the fair market value of its Isos Class A ordinary shares at the end of its taxable year over its adjusted tax basis in its Isos Class A ordinary shares. The U.S. Holder also will recognize
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an ordinary loss in respect of the excess, if any, of its adjusted tax basis in its Isos Class A ordinary shares over the fair market value of its Isos Class A ordinary shares at the end of its taxable year (but only to the extent of the net amount of previously included income as a result of the mark-to-market election). The U.S. Holder’s basis in its Isos Class A ordinary shares will be adjusted to reflect any such income or loss amounts, and any further gain recognized on a sale or other taxable disposition of its Isos Class A ordinary shares will be treated as ordinary income. However, if the mark-to-market election is not made by the U.S. Holder for the first taxable year of its holding period for the PFIC stock, then the Section 1291 rules will apply to certain dispositions of, distributions on and other amounts taxable with respect to Class A ordinary shares. A mark-to-market election is not available with respect to warrants.
THE RULES DEALING WITH PFICS ARE VERY COMPLEX AND ARE IMPACTED BY VARIOUS FACTORS IN ADDITION TO THOSE DESCRIBED ABOVE. ALL U.S. HOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS REGARDING THE CONSEQUENCES TO THEM OF THE PFIC RULES, INCLUDING, WITHOUT LIMITATION, THE APPLICABILITY OF THE START-UP EXCEPTION, WHETHER A QEF ELECTION (OR A QEF ELECTION ALONG WITH A PURGING ELECTION), A MARK-TO-MARKET ELECTION OR ANY OTHER ELECTION IS AVAILABLE AND THE CONSEQUENCES TO THEM OF ANY SUCH ELECTION, AND THE IMPACT OF ANY PROPOSED OR FINAL PFIC TREASURY REGULATIONS.
Effects to U.S. Holders of Exercising Redemption Rights
The U.S. federal income tax consequences to a U.S. Holder of Isos Class A ordinary shares (which will be exchanged for New Bowlero common stock in the Domestication) that exercises its redemption rights to receive cash from the trust account in exchange for all or a portion of its New Bowlero common stock will depend on whether the redemption qualifies as a sale of New Bowlero common stock redeemed under Section 302 of the Code or is treated as a distribution under Section 301 of the Code. If the redemption qualifies as a sale of such U.S. Holder’s shares of New Bowlero common stock redeemed, such U.S. Holder will generally recognize capital gain or capital loss equal to the difference, if any, between the amount of cash received and such U.S. Holder’s tax basis in New Bowlero common stock redeemed.
Whether a redemption qualifies for sale treatment will depend largely on the total number of shares of New Bowlero common stock treated as owned by the U.S. Holder (including any shares constructively owned by the U.S. Holder as a result of owning warrants) relative to all of our shares outstanding both before and after such redemption. The redemption of shares of New Bowlero common stock generally will be treated as a sale of such shares (rather than as a corporate distribution) if such redemption (i) is “substantially disproportionate” with respect to the U.S. Holder, (ii) results in a “complete termination” of the U.S. Holder’s interest in New Bowlero or (iii) is “not essentially equivalent to a dividend” with respect to the U.S. Holder. These tests are explained more fully below.
In determining whether any of the foregoing tests is satisfied, a U.S. Holder takes into account not only shares of New Bowlero common stock actually owned by the U.S. Holder, but also shares of New Bowlero common stock that are constructively owned by it. A U.S. Holder may constructively own, in addition to shares owned directly, shares owned by certain related individuals and entities in which the U.S. Holder has an interest or that have an interest in such U.S. Holder, as well as any shares the U.S. Holder has a right to acquire by exercise of an option, which would generally include shares of New Bowlero common stock which could be acquired pursuant to the exercise of the warrants that it owns at the time of the redemption.
For a redemption to meet the substantially disproportionate test, the percentage of New Bowlero’s issued and outstanding voting shares actually and constructively owned by the U.S. Holder immediately following the redemption of shares of New Bowlero common stock must, among other requirements, be less than 80% of the percentage of our issued and outstanding voting shares actually and constructively owned by the U.S. Holder immediately before the redemption. There will be a complete termination of a U.S. Holder’s interest if either (i) all of shares of New Bowlero common stock actually and constructively owned by the U.S. Holder are redeemed or (ii) all of such shares actually owned by the U.S. Holder are redeemed and the U.S. Holder is eligible to waive, and effectively waives in accordance with specific rules, the attribution of shares owned by certain family members and the U.S. Holder does not constructively own any other shares of New Bowlero common stock. The redemption of the shares of New Bowlero common stock will not be essentially equivalent to a dividend with respect to a U.S. Holder if it results in a “meaningful reduction” of the U.S. Holder’s proportionate interest in New Bowlero. Whether the redemption will result in a meaningful reduction of a U.S. Holder’s proportionate interest in New Bowlero will
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depend on the particular facts and circumstances. However, the IRS has indicated in a published ruling that even a small reduction in the proportionate interest of a small minority shareholder in a publicly held corporation that exercises no control over corporate affairs may constitute such a “meaningful reduction.” A U.S. Holder is urged to consult with its tax advisor as to the tax consequences of a redemption.
If none of the foregoing tests is satisfied, then the redemption will be treated as a corporate distribution. Such distribution will generally be treated as a dividend for U.S. federal income tax purposes to the extent the distribution is paid out of New Bowlero’s current or accumulated earnings and profits (as determined under U.S. federal income tax principles). Distributions in excess of any such earnings and profits will generally be applied against and reduce the U.S. Holder’s basis in its other New Bowlero common stock (but not below zero) and, to the extent in excess of such basis, will be treated as capital gain from the sale or exchange of such redeemed shares. After the application of those rules, any remaining tax basis of the U.S. Holder in New Bowlero common stock redeemed will generally be added to the U.S. Holder’s adjusted tax basis in its remaining New Bowlero common stock, or, if it has none, to the U.S. Holder’s adjusted tax basis in its warrants or possibly in other New Bowlero common stock constructively owned by such U.S. Holder.
Because the Domestication will occur immediately prior to the redemption of U.S. Holders that exercise redemption rights, U.S. Holders exercising redemption rights will be subject to the potential tax consequences of Section 367 of the Code as a result of the Domestication as well as potential tax consequences of the U.S. federal income tax rules relating to PFICs (discussed further above).
ALL U.S. HOLDERS ARE URGED TO CONSULT WITH THEIR TAX ADVISORS AS TO THE TAX CONSEQUENCES TO THEM OF A REDEMPTION OF ALL OR A PORTION OF THEIR NEW BOWLERO COMMON STOCK PURSUANT TO AN EXERCISE OF REDEMPTION RIGHTS.
Distributions on Shares of New Bowlero Class A Common Stock
A U.S. Holder generally will be required to include in gross income as a dividend the amount of any cash distribution paid with respect to shares of New Bowlero Class A common stock, to the extent the distribution is paid out of New Bowlero’s current or accumulated earnings and profits (as determined under U.S. federal income tax principles). A distribution in excess of current and accumulated earnings and profits will constitute a return of capital that will be applied against and reduce (but not below zero) the U.S. Holder’s adjusted tax basis in its shares of New Bowlero Class A common stock. Any remaining excess will be treated as gain realized on the sale or other disposition of the shares of New Bowlero Class A common stock and will be treated as described under “— Sale, Exchange or Other Disposition of Shares of New Bowlero Class A Common Stock and New Bowlero Warrants” below.
A dividend that New Bowlero pays to a U.S. Holder that is a taxable corporation generally will qualify for the dividends received deduction if the requisite holding period is satisfied. With certain exceptions (including, but not limited to, a dividend treated as investment income for purposes of investment interest deduction limitations), and provided certain holding period requirements are met, a dividend that New Bowlero pays to a non-corporate U.S. Holder may be taxed as “qualified dividend income” at the preferential tax rate accorded to long-term capital gains. It is unclear whether the redemption rights with respect to the Isos Class A common shares converted into New Bowlero Class A common stock may have suspended the running of the applicable holding period for these purposes.
Sale, Exchange or Other Disposition of Shares of New Bowlero Class A Common Stock and New Bowlero Warrants
Upon a sale or other taxable disposition of shares of New Bowlero Class A common stock or New Bowlero warrants, a U.S. Holder generally will recognize capital gain or loss. Any such capital gain or loss generally will be long-term capital gain or loss if the U.S. Holder’s holding period for the shares of New Bowlero Class A common stock or New Bowlero warrants so disposed of exceeds one year. It is unclear, however, whether the redemption rights described herein with respect to the Isos Class A ordinary shares converted into New Bowlero Class A common stock may have suspended the running of the applicable holding period for this purpose. Long-term capital gains recognized by non-corporate U.S. Holders will be eligible to be taxed at reduced rates. The deductibility of capital losses is subject to limitations.
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Generally, the amount of gain or loss recognized by a U.S. Holder is an amount equal to the difference between (i) the sum of the amount of cash and the fair market value of any property received in such disposition and (ii) the U.S. Holder’s adjusted tax basis in its shares of New Bowlero Class A common stock or New Bowlero warrants so disposed of. See “— Basis and Holding Period Considerations” above for discussion of a U.S. Holder’s adjusted tax basis in its shares of New Bowlero Class A common stock and/or New Bowlero warrants following the Domestication. See “— Exercise, Lapse or Redemption of New Bowlero Warrants” below for a discussion regarding a U.S. Holder’s tax basis in shares of New Bowlero common stock acquired pursuant to the exercise of New Bowlero warrants.
Exercise, Lapse or Redemption of New Bowlero Warrants
Except as discussed below with respect to the cashless exercise of a New Bowlero warrant, a U.S. Holder generally will not recognize taxable gain or loss on the exercise of a New Bowlero warrant. The U.S. Holder’s tax basis in the share of New Bowlero Class A common stock received upon exercise of a New Bowlero warrant generally will be an amount equal to the sum of the U.S. Holder’s adjusted tax basis in the New Bowlero warrant and the exercise price of such New Bowlero warrant. A U.S. Holder’s adjusted tax basis in a New Bowlero warrant is described under “— Basis and Holding Period Considerations” above. It is unclear whether the U.S. Holder’s holding period for the shares of New Bowlero Class A common stock received upon exercise of the New Bowlero warrants will begin on the date following the date of exercise or on the date of exercise of the New Bowlero warrants; in either case, the holding period will not include the period during which the U.S. Holder held the New Bowlero warrants. If a New Bowlero warrant is allowed to lapse unexercised, a U.S. Holder generally will recognize a capital loss equal to such U.S. Holder’s tax basis in the New Bowlero warrant.
The tax consequences of a cashless exercise of a New Bowlero warrant are not clear under current tax law. A cashless exercise may be tax-free, either because the exercise is not a realization event or because the exercise is treated as a recapitalization for U.S. federal income tax purposes. In either tax-free situation, a U.S. Holder’s basis in the shares of New Bowlero Class A common stock received would equal the holder’s basis in the New Bowlero warrants. If the cashless exercise were treated as not being a realization event, it is unclear whether a U.S. Holder’s holding period in the shares of New Bowlero Class A common stock will commence on the date following the date of exercise or on the date of exercise of the New Bowlero warrant. If the cashless exercise were treated as a recapitalization, the holding period of the shares of New Bowlero Class A common stock would include the holding period of the New Bowlero warrants.
It is also possible that a cashless exercise could be treated in part as a taxable exchange in which gain or loss would be recognized. In such event, a U.S. Holder could be deemed to have surrendered a number of New Bowlero warrants having an aggregate fair market value equal to the exercise price for the total number of New Bowlero warrants to be exercised, and the U.S. Holder would recognize capital gain or loss in an amount equal to the difference between the fair market value of the New Bowlero warrants deemed surrendered and the U.S. Holder’s tax basis in such New Bowlero warrants. In that case, a U.S. Holder’s tax basis in the shares of New Bowlero Class A common stock received would equal the sum of the U.S. Holder’s tax basis in the New Bowlero warrants exercised and the exercise price of such New Bowlero warrants. It is unclear whether a U.S. Holder’s holding period for the shares of New Bowlero Class A common stock would commence on the date following the date of exercise or on the date of exercise of the New Bowlero warrants; in either case, the holding period would not include the period during which the U.S. Holder held the New Bowlero warrants. There may also be alternative characterizations of any such taxable exchange that would result in similar tax consequences, except that a U.S. Holder’s gain or loss would be short-term.
Due to the absence of authority on the U.S. federal income tax treatment of a cashless exercise, including when a U.S. Holder’s holding period would commence with respect to the shares of New Bowlero Class A common stock received, there can be no assurance which, if any, of the alternative tax consequences and holding periods described above would be adopted by the IRS or a court of law. Accordingly, U.S. Holders are urged to consult with their tax advisors regarding the tax consequences of a cashless exercise.
If New Bowlero redeems New Bowlero warrants for cash pursuant to the redemption provisions described in the section of this proxy statement/prospectus entitled “Description of Securities after the Business Combination — Warrants” or if New Bowlero purchases public warrants in an open market transaction, such
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redemption or purchase generally will be treated as a taxable disposition to the U.S. Holder, taxed as described above under “— Sale, Exchange or Other Disposition of Shares of New Bowlero Class A Common Stock and New Bowlero Warrants.”
Possible Constructive Distributions. The terms of each New Bowlero warrant provide for an adjustment to the number of shares of New Bowlero Class A common stock for which the New Bowlero warrant may be exercised or to the exercise price of the New Bowlero warrant in certain events, as discussed in the section of this proxy statement/prospectus entitled “Description of Securities after the Business Combination — Warrants”. An adjustment which has the effect of preventing dilution generally is not a taxable event. Nevertheless, a U.S. Holder of the New Bowlero warrants would be treated as receiving a constructive distribution from New Bowlero if, for example, the adjustment increases New Bowlero warrant holders’ proportionate interest in New Bowlero assets or earnings and profits (e.g., through an increase in the number of shares of New Bowlero Class A common stock that would be obtained upon exercise) as a result of a distribution of cash to the holders of shares of New Bowlero Class A common stock which is taxable to such holders as described under “Distributions on Shares of New Bowlero Class A Common Stock” above. Such constructive distribution would be subject to tax as described under that section in the same manner as if the U.S. Holders of the New Bowlero warrants received a cash distribution from New Bowlero equal to the fair market value of such increased interest.
NON-U.S. HOLDERS
As used herein, a “non-U.S. Holder” is a beneficial owner (other than a partnership or entity or arrangement treated as a partnership for U.S. federal income tax purposes) of Isos Class A ordinary shares or warrants that is not a U.S. Holder.
Effects of the Domestication to Non-U.S. Holders
We do not expect the Domestication to result in any U.S. federal income tax consequences to non-U.S. Holders of Isos common stock and warrants.
The following describes U.S. federal income tax considerations relating to the ownership and disposition of New Bowlero common stock and warrants by a non-U.S. Holder after the Domestication.
Distributions
In general, any distributions made to a non-U.S. Holder with respect to New Bowlero common stock, to the extent paid out of New Bowlero’s current or accumulated earnings and profits (as determined under U.S. federal income tax principles), will constitute dividends for U.S. federal income tax purposes and, provided such dividends are not effectively connected with such non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, attributable to a U.S. permanent establishment or fixed base maintained by such non-U.S. Holder), will be subject to withholding tax from the gross amount of the dividend at a rate of 30%, unless such non-U.S. Holder is eligible for a reduced rate of withholding tax under an applicable income tax treaty and provides proper certification of its eligibility for such reduced rate (usually on an IRS Form W-8BEN or W-8BEN-E, as applicable). Any distribution not constituting a dividend will be treated first as reducing (but not below zero) the non-U.S. Holder’s adjusted tax basis in its New Bowlero common stock and then, to the extent such distribution exceeds the non-U.S. Holder’s adjusted tax basis, as gain realized from the sale or other disposition of such New Bowlero common stock, which will be treated as described under “— Sale, Exchange or Other Disposition of New Bowlero Common Stock and Warrants” below.
Dividends paid by New Bowlero to a non-U.S. Holder that are effectively connected with such non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, attributable to a U.S. permanent establishment or fixed base maintained by such non-U.S. Holder) will generally not be subject to U.S. withholding tax, provided such non-U.S. Holder complies with certain certification and disclosure requirements (usually by providing an IRS Form W-8ECI). Instead, such dividends will generally be subject to U.S. federal income tax, net of certain deductions, at the same graduated individual or corporate rates applicable to U.S. Holders. If the non-U.S. Holder is a corporation, dividends that are effectively connected income may also be subject to a “branch profits tax” at a rate of 30% (or such lower rate as may be specified by an applicable income tax treaty).
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Sale, Exchange or Other Disposition of New Bowlero Common Stock and Warrants
A non-U.S. Holder will generally not be subject to U.S. federal income tax on gain realized on a sale or other disposition of New Bowlero common stock or warrants unless:
(i) such non-U.S. Holder is an individual who was present in the United States for 183 days or more in the taxable year of such disposition and certain other requirements are met, in which case any gain realized will generally be subject to a flat 30% U.S. federal income tax;
(ii) the gain is effectively connected with a trade or business of such non-U.S. Holder in the United States (and, if required by an applicable income tax treaty, attributable to a U.S. permanent establishment or fixed base maintained by such non-U.S. Holder), in which case such gain will be subject to U.S. federal income tax, net of certain deductions, at the same graduated individual or corporate rates applicable to U.S. Holders, and any such gain of a non-U.S. Holder that is a corporation may be subject to an additional “branch profits tax” at a rate of 30% (or such lower rate as may be specified by an applicable income tax treaty); or
(iii) New Bowlero is or has been a U.S. real property holding corporation at any time during the shorter of the five-year period preceding such disposition and such non-U.S. Holder’s holding period and either (A) New Bowlero’s common stock is not regularly traded on an established securities market or (B) such non-U.S. Holder has owned or is deemed to have owned, at any time during the shorter of the five-year period preceding such disposition and such non-U.S. Holder’s holding period, more than 5% of outstanding New Bowlero common stock.
If the third bullet point above applies to a non-U.S. Holder, gain recognized by such non-U.S. holder on the sale, exchange or other disposition of New Bowlero common stock or warrants will be subject to tax at generally applicable U.S. federal income tax rates. In addition, a buyer of such New Bowlero common stock or warrants from a non-U.S. Holder may be required to withhold U.S. income tax at a rate of 15% of the amount realized upon such disposition. New Bowlero will be classified as a U.S. real property holding corporation if the fair market value of its “United States real property interests” equals or exceeds 50% of the sum of the fair market value of its worldwide real property interests and its other assets used or held for use in a trade or business, as determined for U.S. federal income tax purposes. We do not expect that New Bowlero will be classified as a U.S. real property holding corporation immediately following the Business Combination. However, such determination is factual in nature and subject to change and no assurance can be provided as to whether New Bowlero will be a U.S. real property holding corporation with respect to a non-U.S. holder following the Business Combination or at any future time.
Effects to Non-U.S. Holders of Exercising Redemption Rights
The U.S. federal income tax consequences to a non-U.S. Holder of New Bowlero common stock that exercises its redemption rights to receive cash from the trust account in exchange for all or a portion of its New Bowlero common stock will depend on whether the redemption qualifies as a sale of New Bowlero’s common stock redeemed, as described above under “U.S. Holders — Effects to U.S. Holders of Exercising Redemption Rights.” If such a redemption qualifies as a sale of New Bowlero common stock, the U.S. federal income tax consequences to the non-U.S. Holder will be as described above under “Non-U.S. Holders — Sale, Exchange or Other Disposition of New Bowlero Common Stock and Warrants.” If such a redemption does not qualify as a sale of New Bowlero common stock, the non-U.S. Holder will be treated as receiving a distribution, the U.S. federal income tax consequences of which are described above under “Non-U.S. Holders — Distributions.” Because the treatment of a redemption may not be certain or determinable at the time of redemption, redeemed non-U.S. Holders may be subject to withholding tax on the gross amount received in such redemption. Non-U.S. Holders may be exempt from such withholding tax if they are able to properly certify that they meet the requirements of an applicable exemption (e.g., because such non-U.S. Holders are not treated as receiving a dividend under the Section 302 tests described above under “U.S. Holders — Effects to U.S. Holders of Exercising Redemption Rights”).
Exercise, Lapse or Redemption of New Bowlero Warrants
The U.S. federal income tax treatment of a non-U.S. Holder’s exercise of New Bowlero warrants, or the lapse of New Bowlero warrants held by a non-U.S. Holder, generally will correspond to the U.S. federal income tax treatment of the exercise or lapse of New Bowlero warrants held by a U.S. Holder, as described above
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under “— U.S. Holders — Exercise, Lapse or Redemption of New Bowlero Warrants,” although to the extent a cashless exercise results in a taxable exchange, the consequences would be similar to those described above under “— Sale, Exchange or Other Disposition of Shares of New Bowlero Class A Common Stock and New Bowlero Warrants.” If New Bowlero redeems New Bowlero warrants for cash or if it purchases New Bowlero warrants in an open market transaction, such redemption or purchase generally will be treated as a disposition to the non-U.S. Holder, the consequences of which would be similar to those described above under “— Sale, Exchange or Other Disposition of Shares of New Bowlero Class A Common Stock and New Bowlero Warrants.”
Possible Constructive Distributions
The terms of each New Bowlero warrant provide for an adjustment to the number of shares of New Bowlero Class A common stock for which the New Bowlero warrant may be exercised or to the exercise price of the warrant in certain events, as discussed in the section of this prospectus captioned “Description of Securities after the Business Combination — Warrants.” As described above under “— U.S. Holders — Possible Constructive Distributions,” certain adjustments with respect to the New Bowlero warrants can give rise to a constructive distribution. Any constructive distribution received by a non-U.S. Holder would be subject to U.S. federal income tax (including any applicable withholding) in the same manner as if such non-U.S. Holder received a cash distribution from New Bowlero equal to the fair market value of such increased interest. If withholding applies to any constructive distribution received by a non-U.S. Holder, it is possible that the tax would be withheld from any amount paid to or held on behalf of the non-U.S. Holder by the applicable withholding agent. The rules governing constructive distributions as a result of certain adjustments with respect to a New Bowlero warrant are complex, and non-U.S. Holders are urged to consult with their tax advisors on the tax consequences of any such constructive distribution with respect to a New Bowlero warrant.
Information Reporting Requirements and Backup Withholding
Information returns will be filed with the IRS in connection with payments of dividends on and the proceeds from a sale or other disposition of New Bowlero common stock. A non-U.S. Holder may have to comply with certification procedures to establish that it is not a United States person for U.S. federal income tax purposes or otherwise establish an exemption in order to avoid information reporting and backup withholding requirements or to claim a reduced rate of withholding under an applicable income tax treaty. The amount of any backup withholding from a payment to a non-U.S. Holder will generally be allowed as a credit against such non-U.S. Holder’s U.S. federal income tax liability and may entitle such non-U.S. Holder to a refund, provided that the required information is furnished by such non-U.S. Holder to the IRS in a timely manner.
Foreign Account Tax Compliance Act
Sections 1471 through 1474 of the Code and the Treasury Regulations and administrative guidance promulgated thereunder (commonly referred as the “Foreign Account Tax Compliance Act” or “FATCA”) generally impose withholding at a rate of 30% in certain circumstances on dividends in respect of securities (including New Bowlero common stock or warrants) which are held by or through certain foreign financial institutions (including investment funds), unless any such institution (i) enters into, and complies with, an agreement with the IRS to report, on an annual basis, information with respect to interests in, and accounts maintained by, the institution that are owned by certain U.S. persons and by certain non-U.S. entities that are wholly or partially owned by U.S. persons and to withhold on certain payments, or (ii) if required under an intergovernmental agreement between the United States and an applicable foreign country, reports such information to its local tax authority, which will exchange such information with the U.S. authorities. An intergovernmental agreement between the United States and an applicable foreign country may modify these requirements. Accordingly, the entity through which New Bowlero common stock or warrants are held will affect the determination of whether such withholding is required. Similarly, dividends in respect of New Bowlero common stock or warrants held by an investor that is a non-financial non-U.S. entity that does not qualify under certain exceptions will generally be subject to withholding at a rate of 30% under FATCA, unless such entity either (i) certifies to the applicable withholding agent that such entity does not have any “substantial United States owners” (as defined under applicable Treasury Regulations) or (ii) provides certain information regarding the entity’s “substantial United States owners,” which will in turn be provided to the U.S. Department of Treasury.
All holders are urged to consult with their tax advisors regarding the possible implications of FATCA on their investment in New Bowlero common stock or warrants.
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INFORMATION ABOUT ISOS
Unless the context otherwise requires, all references in this section to the “Company,” “we,” “us” or “our” refer to Isos Acquisition Corporation.
General
We are a blank check company incorporated on December 29, 2020 as a Cayman Islands exempted company for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses, which we refer to throughout this prospectus as our initial business combination. We have not identified any potential business combination target and we have not, nor has anyone on our behalf, initiated any substantive discussions, directly or indirectly, with any potential business combination target.
While we may pursue an acquisition opportunity in any industry or sector, we intend to focus on businesses in the digital media and entertainment sectors that complement our management team’s expertise and will benefit from our operational experience. We intend to capitalize on the ability of our management team to identify, acquire and operate a business in the media and entertainment industries, as well as adjacencies in this industry which includes direct-to-consumer businesses, consumer brands undergoing digital transformation, digitally-enabled marketplaces, services, and platforms, among areas of focus. We believe the significant experience and relationships of our management team will facilitate completing a compelling initial business combination. The business executives that comprise our management team are recognized leaders in the digital media and entertainment industries and have experience in scaling, transforming and driving growth in prominent companies in these domains.
On March 3, 2021, we closed the IPO for the sale of an aggregate of 22,500,000 public units and on March 10, 2021 we issued and sold an additional 2,983,700 public units pursuant to a partial exercise of the underwriters’ over-allotment option, at a price of $10.00 per unit, each unit consisting of one Isos Class A ordinary share and one-third of a public warrant, each whole public warrant permitted the holders thereof to purchase one Isos Class A ordinary share for $11.50 per share, yielding gross proceeds of approximately $254.8 million. Simultaneous with the closing of the IPO, we consummated the sale of 5,000,000 placement warrants at a price of $1.50 per warrant ($7,500,000 in the aggregate) in a private placement. $254.8 million of the proceeds of the IPO and the concurrent private placement have been deposited in the trust account.
On March 3, 2021, Isos’s units started trading on the New York Stock Exchange under the symbol “ISOS.U.” On April 23, 2021, the Isos’s Class A ordinary shares and warrants started trading on the New York Stock Exchange under the symbols “ISOS” and “ISOS WS,” respectively.
Initial Business Combination
So long as we obtain and maintain a listing for our securities on the NYSE, we must complete one or more business combinations having an aggregate fair market value of at least 80% of the value of the assets held in the trust account (excluding taxes payable on the interest earned on the trust account) at the time of our signing a definitive agreement in connection with our initial business combination. The Isos Board will make the determination as to the fair market value of our initial business combination. The Isos Board believes that the financial skills and background of its members qualify it to conclude that the Business Combination with Bowlero met this requirement.
Stockholder Approval of Business Combination
Isos is seeking shareholder approval of the Business Combination at the extraordinary general meeting, at which shareholders may elect to redeem their shares, regardless of if or how they vote in respect of the BCA Proposal, into their pro rata portion of the trust account, calculated as of two business days prior to the consummation of the Business Combination including interest earned on the funds held in the trust account and not previously released to us (net of taxes payable). Isos will consummate the Business Combination only if we have net tangible assets of at least $5,000,001 upon such consummation and the Condition Precedent Proposals are approved. Notwithstanding the foregoing, a public shareholder, together with any affiliate of such public shareholder or any other person with whom such public shareholder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Exchange Act), will be restricted from redeeming its public shares with respect to more than an aggregate
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of 15% of the public shares. Accordingly, if a public shareholder, alone or acting in concert or as a group, seeks to redeem more than 15% of the public shares, then any such shares in excess of that 15% limit would not be redeemed for cash.
The Sponsor and LionTree have agreed to, among other things, vote in favor of the Business Combination Agreement and the transactions contemplated thereby, in each case, subject to the terms and conditions contemplated by the Sponsor Support Agreement. As of the date of this proxy statement/prospectus, the Sponsor owns 20.0% of the issued and outstanding ordinary shares.
At any time at or prior to the Business Combination, during a period when they are not then aware of any material nonpublic information regarding us or Isos’s securities, the Sponsor, LionTree, Bowlero Stockholders, or their directors, officers, advisors or respective affiliates may purchase public shares from institutional and other investors who vote, or indicate an intention to vote, against any of the Condition Precedent Proposals, or execute agreements to purchase such shares from such investors in the future, or they may enter into transactions with such investors and others to provide them with incentives to acquire public shares or vote their public shares in favor of the Condition Precedent Proposals. Such a purchase may include a contractual acknowledgement that such shareholder, although still the record holder of Isos’s shares, is no longer the beneficial owner thereof and therefore agrees not to exercise its redemption rights. In the event that the any such persons purchase shares in privately negotiated transactions from public shareholders who have already elected to exercise their redemption rights, such selling shareholder would be required to revoke their prior elections to redeem their shares. The purpose of such share purchases and other transactions would be to increase the likelihood of (1) satisfaction of the requirement that holders of a majority of the ordinary shares, represented in person or by proxy and entitled to vote at the extraordinary general meeting, vote in favor of the BCA Proposal, the Director Election Proposal, the Stock Issuance Proposal, the Incentive Plan Proposal, the ESPP Proposal and the Adjournment Proposal, (2) satisfaction of the requirement that holders of at least two-thirds of the ordinary shares, represented in person or by proxy and entitled to vote at the extraordinary general meeting, vote in favor of the Domestication Proposal and the Organizational Documents Proposals, (3) satisfaction of the requirement that the Minimum Available Cash Amount condition is satisfied, (4) otherwise limiting the number of public shares electing to redeem and (5) Isos’s net tangible assets (as determined in accordance with Rule 3a5 1(g)(1) of the Exchange Act) being at least $5,000,001.
Redemption of Public Shares and Liquidation if no Initial Business Combination
Our amended and restated memorandum and articles of association provides that we will have only 24 months from the closing of the IPO to consummate an initial business combination. If we do not consummate an initial business combination within 24 months from the closing of the IPO, we will: (i) cease all operations except for the purpose of winding up; (ii) as promptly as reasonably possible but not more than ten business days thereafter, redeem the public shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the trust account, including interest earned on the funds held in the trust account and not previously released to us to pay our income taxes, if any (less up to $100,000 of interest to pay dissolution expenses), divided by the number of the then-outstanding public shares, which redemption will completely extinguish public shareholders’ rights as shareholders (including the right to receive further liquidation distributions, if any); and (iii) as promptly as reasonably possible following such redemption, subject to the approval of our remaining shareholders and our board of directors, liquidate and dissolve, subject in each case to our obligations under Cayman Islands law to provide for claims of creditors and the requirements of other applicable law. There will be no redemption rights or liquidating distributions with respect to our warrants, which will expire worthless if we fail to consummate an initial business combination within 24 months from the closing of the IPO. Our amended and restated memorandum and articles of association provides that, if a resolution of the company’s shareholders is passed pursuant to the Companies Act of the Cayman Islands to commence the voluntary liquidation of the company, we will follow the foregoing procedures with respect to the liquidation of the trust account as promptly as reasonably possible but not more than ten business days thereafter, subject to applicable Cayman Islands law.
The Sponsor and each member of our founding team have entered into an agreement with us, pursuant to which they have agreed to waive their rights to liquidating distributions from the trust account with respect to any founder shares they hold if we fail to consummate an initial business combination within 24 months from the closing of this offering (although they will be entitled to liquidating distributions from the trust account with respect to any public shares they hold if we fail to complete our initial business combination within 24 months from the closing of this offering).
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We expect that all costs and expenses associated with implementing our plan of dissolution, as well as payments to any creditors, will be funded from amounts held outside the trust account plus up to $100,000 of funds from the trust account available to us to pay dissolution expenses, although we cannot assure you that there will be sufficient funds for such purpose.
Although we will seek to have all vendors, service providers (excluding our independent registered public accounting firm), prospective partner businesses and other entities with which we do business execute agreements with us waiving any right, title, interest or claim of any kind in or to any monies held in the trust account for the benefit of our public shareholders, there is no guarantee that they will execute such agreements or even if they execute such agreements that they would be prevented from bringing claims against the trust account including but not limited to fraudulent inducement, breach of fiduciary responsibility or other similar claims, as well as claims challenging the enforceability of the waiver, in each case in order to gain an advantage with respect to a claim against our assets, including the funds held in the trust account. If any third party refuses to execute an agreement waiving such claims to the monies held in the trust account, our founding team will perform an analysis of the alternatives available to it and will only enter into an agreement with a third party that has not executed a waiver if our founding team believes that such third party’s engagement would be significantly more beneficial to us than any alternative. Examples of possible instances where we may engage a third party that refuses to execute a waiver include the engagement of a third party consultant whose particular expertise or skills are believed by our founding team to be significantly superior to those of other consultants that would agree to execute a waiver or in cases where our founding team is unable to find a service provider willing to execute a waiver. The underwriters will not execute agreements with us waiving such claims to the monies held in the trust account. In addition, there is no guarantee that such entities will agree to waive any claims they may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with us and will not seek recourse against the trust account for any reason. In order to protect the amounts held in the trust account, our sponsor has agreed that it will be liable to us if and to the extent any claims by a vendor for services rendered or products sold to us, or a prospective partner business with which we have discussed entering into a transaction agreement, reduce the amounts in the trust account to below the lesser of (i) $10.00 per public share and (ii) the actual amount per public share held in the trust account as of the date of the liquidation of the trust account if less than $10.00 per public share due to reductions in the value of the trust assets, in each case net of the interest that may be withdrawn to pay our tax obligations, provided that such liability will not apply to any claims by a third party or prospective partner business who executed a waiver of any and all rights to seek access to the trust account nor will it apply to any claims under our indemnity of the underwriters of this offering against certain liabilities, including liabilities under the Securities Act. In the event that an executed waiver is deemed to be unenforceable against a third party, our sponsor will not be responsible to the extent of any liability for such third party claims. However, we have not asked the Sponsor to reserve for such indemnification obligations, nor have we independently verified whether our sponsor has sufficient funds to satisfy its indemnity obligations and we believe that our sponsor’s only assets are securities of our company. The Sponsor may not be able to satisfy those obligations. None of our officers or directors will indemnify us for claims by third parties including, without limitation, claims by vendors and prospective partner businesses.
In the event that the proceeds in the trust account are reduced below the lesser of (i) $10.00 per public share and the actual amount per public share held in the trust account as of the date of the liquidation of the trust account if less than $10.00 per public share due to reductions in the value of the trust assets, in each case net of the interest that may be withdrawn to pay our tax obligations, and our sponsor asserts that it is unable to satisfy its indemnification obligations or that it has no indemnification obligations related to a particular claim, our independent directors would determine whether to take legal action against the Sponsor to enforce its indemnification obligations. While we currently expect that our independent directors would take legal action on our behalf against our sponsor to enforce its indemnification obligations to us, it is possible that our independent directors in exercising their business judgment may choose not to do so in any particular instance. Accordingly, we cannot assure you that due to claims of creditors the actual value of the per-share redemption price will not be less than $10.00 per public share.
We will seek to reduce the possibility that the Sponsor will have to indemnify the trust account due to claims of creditors by endeavoring to have all vendors, service providers (excluding our independent registered public accounting firm), prospective partner businesses or other entities with which we do business execute agreements with us waiving any right, title, interest or claim of any kind in or to monies held in the trust account. Our sponsor will also not be liable as to any claims under our indemnity of the underwriters of the IPO against certain liabilities, including liabilities under the Securities Act.
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If we file a bankruptcy or winding-up petition or an involuntary bankruptcy or winding-up petition is filed against us that is not dismissed, the proceeds held in the trust account could be subject to applicable bankruptcy or insolvency law, and may be included in our bankruptcy or insolvency estate and subject to the claims of third parties with priority over the claims of our shareholders. To the extent any bankruptcy or insolvency claims deplete the trust account, we cannot assure you we will be able to return $10.00 per public share to our public shareholders. Additionally, if we file a bankruptcy or winding-up petition or an involuntary bankruptcy or winding-up petition is filed against us that is not dismissed, any distributions received by shareholders could be viewed under applicable debtor/creditor and/or bankruptcy or insolvency laws as either a “preferential transfer” or a “fraudulent conveyance.”
Our public shareholders will be entitled to receive funds from the trust account only (i) in the event of the redemption of our public shares if we do not consummate an initial business combination within 24 months from the closing of the IPO, (ii) in connection with a shareholder vote to amend our amended and restated memorandum and articles of association (A) to modify the substance or timing of our obligation to provide holders of our Class A ordinary shares the right to have their shares redeemed in connection with our initial business combination or to redeem 100% of our public shares if we do not complete our initial business combination within 24 months from the closing of this offering or (B) with respect to any other provision relating to the rights of holders of our Class A ordinary shares or pre-initial business combination activity, and (iii) if they redeem their respective shares for cash upon the completion of the initial business combination. Public shareholders who redeem their Class A ordinary shares in connection with a shareholder vote described in clause (ii) in the preceding sentence shall not be entitled to funds from the trust account upon the subsequent completion of an initial business combination or liquidation if we have not consummated an initial business combination within 24 months from the closing of the IPO, with respect to such Class A ordinary shares so redeemed. In no other circumstances will a shareholder have any right or interest of any kind to or in the trust account.
Facilities
We do not own any real estate or other physical properties materially important to our operation. We currently maintain our executive offices at 55 Post Road W, Suite 200, Westport, CT 06880. We have agreed to pay an affiliate of our sponsor a total of $51,667 per month for office space, secretarial, administrative support and salaries to be paid to employees of the affiliate of our sponsor for due diligence and related services in connection with our search for a target company (for the avoidance of any doubt, no salaries or fees will be paid from the monthly fee to members of our management team). We consider our current office space adequate for our current operations.
Employees
We currently have three executive officers. These individuals are not obligated to devote any specific number of hours to our matters but they intend to devote as much of their time as they deem necessary to our affairs until we have completed our initial business combination. The amount of time they will devote in any time period will vary based on whether a partner business has been selected for our initial business combination and the stage of the business combination process we are in. We do not intend to have any full time employees prior to the completion of our initial business combination. Additionally, no employee of our sponsor, including any person that receives a portion of the $51,667 monthly payment we will make to the affiliate of our sponsor, is required to devote any time to our operations and our search for a business combination.
Competition
If we succeed in effecting the Business Combination, in all likelihood, New Bowlero will face significant competition from Bowlero’s competitors. We cannot assure you that, subsequent to the Business Combination, New Bowlero will have the resources or ability to compete effectively. Information regarding the competition Bowlero is facing is set forth in the sections titled “Information about Bowlero — Competition.”
Legal Proceedings
There is no material litigation, arbitration or governmental proceeding currently pending or to our knowledge, threatened against us or any members of our management team in their capacity as such.
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MANAGEMENT OF ISOS
Unless otherwise indicated or the context otherwise requires, references in this section to “we,” “the company,” “our,” “us” and other similar terms refer to Isos Acquisition Corporation.
Officers and Directors
Our officers and directors are as follows:
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Name
|
|
Age
|
|
Position
|
|
Michelle Wilson
|
|
56
|
|
Co-Chief Executive Officer; Co-Chairman
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George Barrios
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56
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Co-Chief Executive Officer; Co-Chairman
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Winston Meade
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43
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|
Chief Financial Officer
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Derek Chang
|
|
53
|
|
Director
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Barbara Daniel
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|
55
|
|
Director
|
|
Jacqueline Hernández
|
|
54
|
|
Director
|
|
Perkins Miller
|
|
53
|
|
Director
|
|
Dan Reed
|
|
45
|
|
Director
|
|
John Rose
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|
63
|
|
Director
|
George Barrios has been our Co-Chief Executive Officer since inception. Mr. Barrios most recently served as Co-President of the WWE from February 2018 to January 30, 2020. Prior to his current position, he was the Chief Strategy & Financial Officer of the WWE from November 2013 to February 2018, and Chief Financial Officer from March 2008 to November 2013. Before that, he was Vice President and Treasurer of The New York Times Company from January 2007 to March 2008. Mr. Barrios joined The New York Times Company in April 2002 as Chief Financial Officer of a subsidiary, which published, among other things, The Boston Globe. Prior to that, he was President and Chief Operating Officer of Netsilicon, Inc. from September 2000 to September 2001, a publicly held software development company, where he helped to stabilize the business prior to its merger with Digi International Inc. in 2001. From 1994 to 2000, Mr. Barrios served in several senior capacities for Praxair, Inc., a large supplier of industrial gasses. Earlier in his career, he held various leadership roles in strategy and operations at Time Warner/HBO, Inc. Mr. Barrios holds a B.A. degree and an M.B.A. from the University of Connecticut.
Michelle Wilson has been our Co-Chief Executive Officer since inception. Prior to her current position, Ms. Wilson served as Co-President and Board member at WWE from February 2018 to January 2020. She served as Chief Revenue & Marketing Officer from November 2013 to February 2018, and Chief Marketing Officer from February 2009 to February 2018. From August 2001 to February 2009, she was Chief Marketing Officer of the United States Tennis Association where she was instrumental in making the U.S. Open the highest attended annual sporting event in the world with more than 700,000 fans in attendance every year. She was pivotal in the implementation of several innovations for the sport, including in-stadium video screens, blue courts, instant replay and the 2004 launch of the U.S. Open Series. From April 2000 to July 2001, she was Vice President of Marketing for the XFL. Earlier in her career, Ms. Wilson held positions at the National Basketball Association in its domestic and international consumer products groups as well as roles at Nabisco and Johnson & Johnson. Ms. Wilson holds a B.S.E. in Chemical Engineering from the University of Pennsylvania and an M.B.A. from the Harvard Business School.
Winston Meade has been our Chief Financial Officer since April 2021. Mr. Meade has more than 20 years of mergers and acquisitions experience across several industries. Since February 2021, Mr. Meade has served as Managing Director of Isos Capital Management L.P. (“Isos Capital Management”), an investment firm focusing on the media, entertainment and sports industries. Prior to Isos Capital Management, Mr. Meade served as Managing Director at Stephens Inc. from March 2017 to December 2020 and served as a Managing Director with UBS Investment Bank from June 2000 to March 2017. Mr. Meade has a Bachelor of Arts degree in Economics from the University of Virginia.
Derek Chang is one of our independent directors. Since May 2021, Mr. Chang has served as the Chief Executive Officer of Friend MTS, a leading global provider of content protection services. From June 2018 to May 2020, Mr. Chang served as Chief Executive Officer of NBA China. Chang was formerly a senior executive with Scripps Networks Interactive, DIRECTV, Charter Communications, the YES Network and TCI Communications.
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Mr. Chang serves on the Board of Directors of Liberty Media Corporation and the Professional Fighters League. He has previously served on the Board of Directors of Vobile Inc. and Starz. Mr. Chang holds a B.A. degree in History from Yale University and an M.B.A. from the Stanford Graduate School of Business.
Jacqueline Hernández is one of our independent directors. Ms. Hernández is a global strategist, brand builder and change agent. She was named among FORTUNE’s Most Powerful Latinas, The Hollywood Reporter’s Power 100 Women in Entertainment, and Advertising Age’s 100 Most Influential Women in Advertising. Ms. Hernández is Chief Executive Officer & Co-Founder of New Majority Ready LLC. Since May 2019, Ms. Hernández has served as Chief Executive Officer of NewMajorityReady, LLC, a marketing and content development firm. From October 2017 to April 2019, Ms. Hernández served as president of Combate Americas, an American mixed martial arts (MMA) sports franchise and media company. She previously served as Chief Marketing Officer, Hispanic Enterprises & Content at NBCUniversal from May 2014 to March 2017 and as Chief Operating Officer of NBCUniversal Telemundo Enterprises, from May 2008 to May 2014. Ms. Hernández also served as Publisher, Head of Business Operations, P&L and Revenue at People en Español from March 2004 to April 2008; and previously held various leadership roles at TIME, CNN and Turner. Ms. Hernández holds a B.A. degree from Tufts University and an M.B.A. from Baruch College.
Dan Reed is one of our independent directors. Mr. Reed is a global sports and media executive with 20 years of experience driving innovation in disruptive environments. He was named among the “50 Most Influential People in Sports Business” by Sports Business Journal. Since June 2018, Mr. Reed has served as Vice President of Global Sports and Media Partnerships at Facebook, Inc. and previously served as Director, Global Sports Partnerships at Facebook from September 2014 to June 2018. From 2007 to 2014, Mr. Reed served as President of NBA G League and as a Management Consultant at Kearney, an American management consulting firm. Mr. Reed holds a B.A. degree in Economics and American Studies from Northwestern University and an M.B.A. from Harvard Business School.
Barbara Daniel is one of our independent directors. Ms. Daniel is a global media and entertainment executive with 25 years of experience across strategy, mergers and acquisitions and corporate finance. Ms. Daniel has been Senior Vice President and Head of Corporate Strategy at SiriusXM since September 2015. From 2010 to 2011, Ms. Daniel served as Senior Vice President, Corporate Treasurer at E*TRADE Financial Corporation, an electronic trading platform, and from 2006 to 2010, she served as Chief Financial Officer at CIFC Asset Management LLC, a corporate and structured credit investment firm. Ms. Daniel also previously served as Managing Director, Investment Banking at JPMorgan Chase advising Telecom, Media and Technology start-ups and Fortune 100 companies. She currently serves on the Board of Directors for SiriusXM Canada Holdings Inc. and SoundCloud. Ms. Daniel holds a B.A. degree in Economics from William and Mary University and an M.B.A. from Cornell University — S.C. Johnson Graduate School of Management.
Perkins Miller is one of our independent directors. Mr. Miller is an e-commerce & media tech executive. He has broad experience launching and operating complex ventures, including large-scale ecommerce, major media tech, and pure start-ups. Mr. Miller has served as the Chief Executive Officer of Fandom Inc., a global entertainment media platform, since February 2019. Previously, Mr. Miller served as General Manager of North America and Americas at StubHub, Inc., an American ticket exchange and resale company, from May 2016 to February 2019. Mr. Miller served as Chief Digital Officer and Head of Media Operations at NFL, from May 2014 to April 2016, and Executive Vice President of Digital Media at WWE, from August 2012 to April 2014. Mr. Miller previously served as Chief Operating Officer at Vocativ, an American media and technology company, and Chief Operating Officer at Universal Sports. Miller holds a B.A. degree from Middlebury College.
John Rose is one of our independent directors. Mr. Rose is a consultant to a broad set of technology, media, and telecommunications companies. He led a multiyear effort with the World Economic Forum to define and address issues and opportunities related to big data. Mr. Rose has served as a Managing Director and Senior Partner (Media sector) at Boston Consulting Group since October 2004. He previously served as Executive Vice President, Strategy and Corp Development, New Media, Industry and Government Affairs, and Global Asset Management at EMI Group; and Director and Co-leader of the Global Media and Entertainment Practice at McKinsey & Company. Mr. Rose is currently the Non-Executive Vice Chairman of The Video Call Center, LLC, a media technology company. Mr. Rose holds a Master of Public Policy & Management from Yale University School of Management and a B.A. degree from Wesleyan University.
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Number and terms of office of officers and directors
Our board of directors is divided into three classes, with only one class of directors being appointed in each year, and with each class (except for those directors appointed prior to our first annual general meeting) serving a three-year term. The term of office of the first class of directors, consisting of Messrs. Chang and Reed and Ms. Daniel will expire at our first annual general meeting. The term of office of the second class of directors, consisting of Ms. Hernández and Mr. Rose, will expire at our second annual general meeting. The term of office of the third class of directors, consisting of Ms. Wilson and Mr. Barrios, will expire at our third annual general meeting.
Prior to the completion of an initial business combination, any vacancy on the board of directors may be filled by a nominee chosen by holders of a majority of our founder shares. In addition, prior to the completion of an initial business combination, holders of a majority of our founder shares may remove a member of the board of directors for any reason.
Our officers are appointed by the board of directors and serve at the discretion of the board of directors, rather than for specific terms of office. Our board of directors is authorized to appoint persons to the offices set forth in our amended and restated memorandum and articles of association as it deems appropriate. Our amended and restated memorandum and articles of association provides that our officers may consist of one or more chairman of the board, chief executive officer, chief financial officer, chief business officer, president, vice presidents, secretary, treasurer and such other offices as may be determined by the board of directors.
Director independence
The rules of the NYSE require that a majority of our board of directors be independent. An “independent director” is defined generally as a person other than an officer or employee of the company or its subsidiaries or any other individual having a relationship with the company which in the opinion of the company’s board of directors, could interfere with the director’s exercise of independent judgment in carrying out the responsibilities of a director. We have “independent directors” as defined in the NYSE’s listing standards and applicable SEC rules. Our board of directors has determined that Messrs. Chang, Reed and Rose and Mses. Daniel and Hernández are “independent directors” as defined in the NYSE listing standards and applicable SEC rules.
Our independent directors have regularly scheduled meetings at which only independent directors are present.
Committees of the board of directors
Our board of directors has three standing committees: an audit committee, a nominating and corporate governance committee and a compensation committee.
Subject to phase-in rules and a limited exception, the rules of the NYSE and Rule 10A-3 of the Exchange Act require that the audit committee of a listed company be comprised solely of independent directors. Subject to phase-in rules and a limited exception, the rules of the NYSE require that the compensation committee of a listed company be comprised solely of independent directors. Each committee operates under a charter that has been approved by our board of directors and has the composition and responsibilities described below.
Audit Committee
We have established an audit committee of the board of directors. Barbara Daniel, John Rose and Perkins Miller serve as members of our audit committee. Our board of directors has determined that each of Barbara Daniel, John Rose and Perkins Miller are independent. Barbara Daniel serves as the chair of the audit committee. Each member of the audit committee meets the financial literacy requirements of the NYSE and our board of directors has determined that Barbara Daniel qualifies as an “audit committee financial expert” as defined in applicable SEC rules and has accounting or related financial management expertise.
The audit committee is responsible for:
• meeting with our independent registered public accounting firm regarding, among other issues, audits, and adequacy of our accounting and control systems;
• monitoring the independence of the independent registered public accounting firm;
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• verifying the rotation of the lead (or coordinating) audit partner having primary responsibility for the audit and the audit partner responsible for reviewing the audit as required by law;
• inquiring and discussing with management our compliance with applicable laws and regulations;
• pre-approving all audit services and permitted non-audit services to be performed by our independent registered public accounting firm, including the fees and terms of the services to be performed;
• appointing or replacing the independent registered public accounting firm;
• determining the compensation and oversight of the work of the independent registered public accounting firm (including resolution of disagreements between management and the independent auditor regarding financial reporting) for the purpose of preparing or issuing an audit report or related work;
• establishing procedures for the receipt, retention and treatment of complaints received by us regarding accounting, internal accounting controls or reports which raise material issues regarding our financial statements or accounting policies;
• monitoring compliance on a quarterly basis with the terms of this offering and, if any noncompliance is identified, immediately taking all action necessary to rectify such noncompliance or otherwise causing compliance with the terms of this offering; and
• reviewing and approving all payments made to our existing shareholders, executive officers or directors and their respective affiliates. Any payments made to members of our audit committee will be reviewed and approved by our board of directors, with the interested director or directors abstaining from such review and approval.
Nominating and Corporate Governance committee
We have established a nominating and corporate governance committee. The members of our nominating and corporate governance are Perkins Miller and Jacqueline Hernández. Perkins Miller serves as chair of the nominating and corporate governance committee.
The primary purposes of our nominating and corporate governance committee is to assist the board in:
• identifying, screening and reviewing individuals qualified to serve as directors and recommending to the board of directors candidates for nomination for appointment at the annual general meeting or to fill vacancies on the board of directors;
• developing and recommending to the board of directors and overseeing implementation of our corporate governance guidelines;
• coordinating and overseeing the annual self-evaluation of the board of directors, its committees, individual directors and management in the governance of the company; and
• reviewing on a regular basis our overall corporate governance and recommending improvements as and when necessary.
The nominating and corporate governance committee will be governed by a charter that complies with the rules of the NYSE.
Compensation committee
We have established a compensation committee of our board of directors. The members of our compensation committee are Derek Chang, Dan Reed, and Jacqueline Hernández. Derek Chang serves as chair of the compensation committee.
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Our board of directors has determined that each of Derek Chang, Dan Reed and Jacqueline Hernández are independent. We have adopted a compensation committee charter, which details the principal functions of the compensation committee, including:
• reviewing and approving on an annual basis the corporate goals and objectives relevant to our Chief Executive Officer’s compensation, evaluating our Chief Executive Officer’s performance in light of such goals and objectives and determining and approving the remuneration (if any) of our Chief Executive Officer based on such evaluation;
• reviewing and approving the compensation of all of our other Section 16 executive officers; reviewing our executive compensation policies and plans;
• implementing and administering our incentive compensation equity-based remuneration plans;
• assisting management in complying with our proxy statement and annual report disclosure requirements;
• approving all special perquisites, special cash payments and other special compensation and benefit arrangements for our executive officers and employees;
• producing a report on executive compensation to be included in our annual proxy statement; and reviewing, evaluating and recommending changes, if appropriate, to the remuneration for directors.
None of our executive officers currently serves, and in the past year has not served, as a member of the compensation committee of any entity that has one or more executive officers serving on our board of directors.
Code of ethics
We have adopted a Code of Ethics applicable to our directors, officers and employees. A copy of the Code of Ethics will be provided without charge upon request from us. We intend to disclose any amendments to or waivers of certain provisions of our Code of Ethics in a Current Report on Form 8-K.
Corporate governance guidelines
Our board of directors has adopted corporate governance guidelines in accordance with the corporate governance rules of the NYSE that serve as a flexible framework within which our board of directors and its committees operate. These guidelines covers a number of areas including board membership criteria and director qualifications, director responsibilities, board agenda, roles of the chairman of the board, chief executive officer and presiding director, meetings of independent directors, committee responsibilities and assignments, board member access to management and independent advisors, director communications with third parties, director compensation, director orientation and continuing education, evaluation of senior management and management succession planning. A copy of our corporate governance guidelines will be posted on our website.
Conflicts of interest
Under Cayman Islands law, directors and officers owe the following fiduciary duties:
• duty to act in good faith in what the director or officer believes to be in the best interests of the company as a whole;
• duty to exercise powers for the purposes for which those powers were conferred and not for a collateral purpose;
• directors should not improperly fetter the exercise of future discretion;
• duty not to put themselves in a position in which there is a conflict between their duty to the company and their personal interests; and
• duty to exercise independent judgment.
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In addition to the above, directors also owe a duty of care which is not fiduciary in nature. This duty has been defined as a requirement to act as a reasonably diligent person having both the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by that director in relation to the company and the general knowledge skill and experience of that director.
As set out above, directors have a duty not to put themselves in a position of conflict and this includes a duty not to engage in self-dealing, or to otherwise benefit as a result of their position. However, in some instances what would otherwise be a breach of this duty can be forgiven and/or authorized in advance by the shareholders provided that there is full disclosure by the directors. This can be done by way of permission granted in the amended and restated memorandum and articles of association or alternatively by shareholder approval at general meetings.
Certain of our officers and directors presently have, and any of them in the future may have additional, fiduciary or contractual obligations to other entities, including entities that are affiliates of our sponsor, pursuant to which such officer or director is or will be required to present a business combination opportunity to such entity. Accordingly, if any of our officers or directors becomes aware of a business combination opportunity which is suitable for an entity to which he or she has then-current fiduciary or contractual obligations, he or she may be required to honor his or her fiduciary or contractual obligations to present such business combination opportunity to such entity. We do not believe, however, that the fiduciary duties or contractual obligations of our officers or directors will materially affect our ability to complete our initial business combination.
Below is a table summarizing the entities to which our executive officers and directors currently have fiduciary duties, contractual obligations or other material management relationships:
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Individual
|
|
Entity
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|
Entity’s business
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|
Affiliation
|
|
Barbara Daniel
|
|
Sirius XM Canada Holdings, Inc.
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|
Radio broadcasting
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Director
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|
|
|
SoundCloud Limited
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|
Audio distribution platform
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|
Director
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|
|
|
|
|
|
|
|
|
Jacqueline Hernández
|
|
NewMajorityRead, LLC
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|
Marketing and Content Development
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|
Chief Executive Officer
|
|
|
|
Redbox Automated Retail LLC
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|
Video Rental Company
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|
Director
|
|
|
|
Estrella Media, Inc.
|
|
Media
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|
Director
|
|
|
|
|
|
|
|
|
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Perkins Miller
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|
Fandom Inc.
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|
Entertainment
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|
Chief Executive Officer and Director
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|
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|
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|
|
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John Rose
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Boston Consulting Group
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Consulting
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Managing Director
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|
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The Video Call Center, LLC
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|
Media Technology
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Non-Executive Chairman
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Derek Chang
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|
Vobile Group Limited
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Software-as-a- Service
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Director
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MANAGEMENT’S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF ISOS
The following discussion of Isos’s financial condition and results of operations should be read in conjunction with Isos’s financial statements and notes to those statements included in this proxy statement/prospectus. This discussion contains forward-looking statements that involve risks and uncertainties. Please see “Cautionary Note Regarding Forward-Looking Statements” and “Risk Factors” in this proxy statement/prospectus. Unless otherwise indicated or the context otherwise requires, references in this section to “we,” “our,” “us, “the Company” and similar terms are to Isos Acquisition Corporation before the Business Combination, except where the context requires otherwise.
Overview
We are a blank check company incorporated on December 29, 2020 as a Cayman Islands exempted company for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses. We have not selected any business combination partner and we have not, nor has anyone on our behalf, initiated any substantive discussions, directly or indirectly, with any business combination partner. We intend to effectuate our initial business combination using cash from the proceeds of this offering and the sale of the private placement warrants, our shares, debt or a combination of cash, equity and debt.
The issuance of additional shares in a business combination:
• may significantly dilute the equity interest of investors in this offering, which dilution would increase if the anti-dilution provisions in the Class B ordinary shares resulted in the issuance of Class A ordinary shares on a greater than one-to-one basis upon conversion of the Class B ordinary shares;
• may subordinate the rights of holders of Class A ordinary shares if preference shares are issued with rights senior to those afforded our Class A ordinary shares;
• could cause a change in control if a substantial number of our Class A ordinary shares are issued, which may affect, among other things, our ability to use our net operating loss carry forwards, if any, and could result in the resignation or removal of our present officers and directors;
• may have the effect of delaying or preventing a change of control of us by diluting the share ownership or voting rights of a person seeking to obtain control of us;
• may adversely affect prevailing market prices for our units, Class A ordinary shares and/or warrants; and
• may not result in adjustment to the exercise price of our warrants.
Similarly, if we issue debt or otherwise incur significant debt, it could result in:
• default and foreclosure on our assets if our operating revenues after an initial business combination are insufficient to repay our debt obligations;
• acceleration of our obligations to repay the indebtedness even if we make all principal and interest payments when due if we breach certain covenants that require the maintenance of certain financial ratios or reserves without a waiver or renegotiation of that covenant;
• our immediate payment of all principal and accrued interest, if any, if the debt is payable on demand;
• our inability to obtain necessary additional financing if the debt contains covenants restricting our ability to obtain such financing while the debt is outstanding;
• our inability to pay dividends on our Class A ordinary shares;
• using a substantial portion of our cash flow to pay principal and interest on our debt, which will reduce the funds available for dividends on our Class A ordinary shares if declared, expenses, capital expenditures, acquisitions and other general corporate purposes;
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• limitations on our flexibility in planning for and reacting to changes in our business and in the industry in which we operate;
• increased vulnerability to adverse changes in general economic, industry and competitive conditions and adverse changes in government regulation; and
• limitations on our ability to borrow additional amounts for expenses, capital expenditures, acquisitions, debt service requirements, execution of our strategy and other purposes and other disadvantages compared to our competitors who have less debt.
We expect to incur significant costs in the pursuit of our initial business combination. We cannot assure you that our plans to raise capital or to complete our initial business combination will be successful.
Results of Operations
As of June 30, 2021, we have not commenced any operations. All activity for the period from December 29, 2020 (inception) through June 30, 2021 relates to our formation and initial public offering. We will not generate any operating revenues until after the completion of our initial business combination, at the earliest. We will generate non-operating income in the form of interest income from the proceeds derived from the initial public offering and placed in the trust account.
For the three months ended June 30, 2021, we had net income of $2,803,140 which was comprised of operating costs of $380,526, trust interest income of $3,541, unrealized gain on change in fair value of warrants of $4,889,502, and unrealized loss on change in fair value of the Forward Purchase Contract of $1,709,377.
For the six months ended June 30, 2021, we had net income of $1,886,252 which was comprised of operating costs of $475,353, trust interest income of $3,541, warrant issuance costs of $638,847, unrealized gain on change in fair value of warrants of $4,455,365, and unrealized loss on change in fair value of the Forward Purchase Contract of $1,458,454.
Liquidity and Capital Resources
As of June 30, 2021, we had approximately $1.8 million in our operating bank account, and working capital of approximately $1.9 million.
Prior to the completion of the IPO, our liquidity needs had been satisfied through a capital contribution from the Sponsor of $25,000, to cover certain offering costs, for the founder shares, the loan under an unsecured promissory note from the Sponsor of $125,267. The promissory note from the Sponsor was paid in full on March 15, 2021. Subsequent to the consummation of the IPO and Private Placement, our liquidity needs have been satisfied through the proceeds from the consummation of the Private Placement not held in the trust account.
In addition, in order to finance transaction costs in connection with a Business Combination, our Sponsor or an affiliate of the Sponsor, or certain of our officers and directors may, but are not obligated to, provide us Working Capital Loans. To date, there were no amounts outstanding under any Working Capital Loans.
Based on the foregoing, management believes that we will have sufficient working capital and borrowing capacity to meet our needs through the earlier of the consummation of a Business Combination or one year from this proxy statement/prospectus. Over this time period, we will be using these funds for paying existing accounts payable, identifying and evaluating prospective initial Business Combination candidates, performing due diligence on prospective target businesses, paying for travel expenditures, selecting the target business to merge with or acquire, and structuring, negotiating and consummating the Business Combination.
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Critical Accounting Policies and Estimates
The preparation of the unaudited condensed financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the unaudited condensed financial statements and the reported amounts of expenses during the reporting period. Actual results could differ from those estimates. We have identified the following as our critical accounting policies:
Ordinary Shares Subject to Possible Redemption
The Company accounts for its ordinary shares subject to possible redemption in accordance with the guidance in Accounting Standards Codification (“ASC”) Topic 480 “Distinguishing Liabilities from Equity.” Ordinary shares subject to mandatory redemption (if any) is classified as a liability instrument and is measured at fair value. Conditionally redeemable ordinary shares (including ordinary shares that feature redemption rights that are either within the control of the holder or subject to redemption upon the occurrence of uncertain events not solely within the Company’s control) is classified as temporary equity. At all other times, ordinary shares is classified as shareholders’ equity. The Company’s ordinary shares feature certain redemption rights that is considered to be outside of the Company’s control and subject to the occurrence of uncertain future events. Accordingly, ordinary shares subject to possible redemption is presented at redemption value as temporary equity, outside of the shareholders’ equity section of the Company’s balance sheet.
Net Income Per Ordinary Share
Net income per ordinary share is computed by dividing net income by the weighted average number of ordinary shares outstanding for each of the periods. The calculation of diluted income per ordinary share does not consider the effect of the warrants issued in connection with the (i) IPO, (ii) exercise of the overallotment and (iii) the Private Placement since the exercise price of the warrants is higher than the market price. The warrants are exercisable to purchase 13,892,395 shares of ordinary shares in the aggregate.
Derivative Financial Instruments
The Company accounts for warrants as either equity-classified or liability-classified instruments based on an assessment of the warrant’s specific terms and applicable authoritative guidance in ASC 480, Distinguishing Liabilities from Equity (“ASC 480”) and ASC 815, Derivatives and Hedging (“ASC 815”). The assessment considers whether the warrants are freestanding financial instruments pursuant to ASC 480, meet the definition of a liability pursuant to ASC 480, and whether the warrants meet all of the requirements for equity classification under ASC 815, including whether the warrants are indexed to the Company’s own ordinary shares, among other conditions for equity classification. This assessment, which requires the use of professional judgment, is conducted at the time of warrant issuance and as of each subsequent quarterly period end date while the warrants are outstanding.
For issued or modified warrants that meet all of the criteria for equity classification, the warrants are required to be recorded as a component of additional paid-in capital at the time of issuance. For issued or modified warrants that do not meet all the criteria for equity classification, the warrants are required to be recorded at their initial fair value on the date of issuance, and each balance sheet date thereafter. Changes in the estimated fair value of the warrants are recognized as a non-cash gain or loss on the statements of operations. The initial fair value of the private and public warrants was estimated using a Monte Carlo simulation (see Note 7 to financial statements Isos’s unaudited financial statements for the quarter ended June 30, 2021 included in this proxy statement/prospectus).
Off-Balance Sheet Arrangements
As of June 30, 2021, we did not have any off-balance sheet arrangements as defined in Item 303(a)(4)(ii) of Regulation S-K.
JOBS Act
The JOBS Act contains provisions that, among other things, relax certain reporting requirements for qualifying public companies. We will qualify as an “emerging growth company” and under the JOBS Act will be allowed to
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comply with new or revised accounting pronouncements based on the effective date for private (not publicly traded) companies. We are electing to delay the adoption of new or revised accounting standards, and as a result, we may not comply with new or revised accounting standards on the relevant dates on which adoption of such standards is required for non-emerging growth companies. As a result, our financial statements may not be comparable to companies that comply with new or revised accounting pronouncements as of public company effective dates.
Additionally, we are in the process of evaluating the benefits of relying on the other reduced reporting requirements provided by the JOBS Act. Subject to certain conditions set forth in the JOBS Act, if, as an “emerging growth company,” we choose to rely on such exemptions we may not be required to, among other things, (i) provide an auditor’s attestation report on our system of internal controls over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act, (ii) provide all of the compensation disclosure that may be required of non-emerging growth public companies under the Dodd-Frank Wall Street Reform and Consumer Protection Act, (iii) comply with any requirement that may be adopted by the PCAOB regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements (auditor discussion and analysis) and (iv) disclose certain executive compensation related items such as the correlation between executive compensation and performance and comparisons of the chief executive officer’s compensation to median employee compensation. These exemptions will apply for a period of five years following the completion of our initial public offering or until we are no longer an “emerging growth company,” whichever is earlier.
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INFORMATION ABOUT BOWLERO
In this section, “we,” “us” and “our” refer to Bowlero Corp. prior to the Merger and to New Bowlero following the Business Combination.
Overview
We are the world’s largest operator of bowling entertainment centers. Since the original Bowlmor Lanes opened in 1938 in Greenwich Village, New York City, our journey continues to revolutionize bowling entertainment. We operate traditional bowling centers and more upscale entertainment concepts with lounge seating, arcades, enhanced food and beverage offerings, and more robust customer service for individuals and group events, as well as hosting and overseeing professional and non-professional bowling tournaments and related broadcasting. The Company’s bowling business is the Company’s one reporting segment.
Competitive Strengths
We believe our key competitive strengths include our highly loyal customers, strong branding, diverse product offerings, ideal geographic locations, proven business model and experienced management team, all of which with a solid track record of sustainable growth and generating positive earnings before interest, taxes, depreciation, and amortization, Adjusted EBITDA and cash flows from operations prior to the impact from the closure of centers due to COVID-19 during fiscal years 2020 and 2021. Net losses in fiscal years 2021 and 2020 were $126 million and $91 million, respectively, which were driven by the closure of our centers due to COVID-19.
Loyal Customers: With over 28-million-plus guests we serve each year, we are well positioned in highly attractive markets across North America to capitalize on the very large addressable markets for bowling and out-of-home entertainment. With our strong market position, we are able to leverage our competitive strengths to grow our business, by among other things, differentiating our bowling, dining and amusement video game entertainment offerings for our retail, league and group event customers. Retail consists of our walk-in customers and is by far our largest and most diverse audience. Leagues remain a large and stable source of recurring revenue and Group Events, such as birthday parties and holiday events, are a consistent revenue stream with significant growth potential.
Strong Branding: Our centers operate under different brand names and our strong branding plays an integral role in the success of our business. The Bowlero and Bowlmor Lanes branded centers offer a more upscale entertainment concept with lounge seating, enhanced food and beverage offerings, and a more robust customer service for individual and group events. The AMF centers are traditional bowling centers in an updated format.
Diverse Product Offerings: We attribute our success to our many completive strengths and our ongoing efforts to grow and revitalize all aspects of the bowling industry. We are well positioned in the market place with our well located centers, combined with our strong branding and highly loyal customer base. We have made significant investments over the years in upgrading and converting our centers and training our staff to provide our guests with world-class customer experience. Our gaming operations pioneer in-center gaming, apps and new technology to bring gaming into our centers and beyond our bowling centers. Our food and beverage offerings are a key element to the overall experience at our centers for which we are well positioned for the price, quality and value. Our iconic branding extends to media, as we own, operate and produce all the content for the Professional Bowlers Association (PBA Tour). As the leader in bowling entertainment, the PBA is a strategic part of our operations, as the PBA has thousands of members and millions of fans across the globe. The PBA is the major sanctioning body for the sport of professional ten-pin bowling in the United States, a membership organization for professional bowlers, and the PBA oversees professional bowling tournaments and related broadcasting.
Proven Business Model: A core tenant of our long-term strategy to increase profitability is to grow our size and scale in order to improve our operating profit margins through leveraging our fixed costs. Prior to the impact of the COVID-19 pandemic, the Company’s average revenue growth rate from 2014 to March 2020 (inclusive of acquisitions and new centers) was 13.4% and on a same-store basis averaged 3.9% annually over the same period. As a result of the COVID-19 pandemic, the Company was forced to close all of its locations on March 17, 2020. The centers in Georgia reopened in late April 2020, and over the course of the next 15 months the balance of the locations reopened. During this time, the share of pre-pandemic revenue of both the reopened centers, as well as the total company, steadily increased. As of May 2021, the Company achieved more than 100% of pre-pandemic revenue levels. Over the past 9 weeks ending on August 15, 2021, the Company’s average revenue growth rate (inclusive of
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acquisitions and new centers) was 24.8% and on a same-store basis averaged 19.9%. We remain focused on creating long-term shareholder value by driving organic growth through conversions and upgrading of centers to more upscale entertainment concepts offering a broader range of offerings, as well as through the opening of new centers. Additionally, we have implemented several initiatives, including self-service kiosks, robotic process automation, digital platform streamlining the booking and automated payment process and other technologies to optimize our resources so as to operate with a leaner staffing model further improving margins and operating cash flows
A key part of our growth strategy is through acquisitions, as we continually evaluate potential acquisitions that strategically fit within the Company’s overall growth strategy. We also have an established blueprint for in-market acquisitions, including entering markets through direct purchases or through leasing arrangements. To that end, the Company entered into an agreement on May 28, 2021 to acquire Bowl America Incorporated (NYSE American: BWL-A) which operates 17 bowling centers in Florida, Virginia and Maryland. The Company completed this acquisition on August 18, 2021.
Proven Management Team: Our executive management team is well proven and highly experienced with a long successful track record for driving positive results for increased shareholder value and world-class experience for our customers. Our founder keeps the entrepreneurial drive for our ongoing success. Our management team is committed to constantly improving our world-class company. We also have a team of skilled, loyal and committed managers and employees at each of our centers. We have developed and maintain as a key initiative the training of our center managers and employees to attract and retain talent, create high-performance center leadership team and maintain a culture to build upon our inspiring purpose, vision and values.
Our Industry
We operate in the leisure industry, which includes entertainment, restaurants and amusements. The leisure industry is comprised of a large number of venues ranging from small to heavily themed destinations. We are the world’s largest owner/operator of bowling centers and we are approximately 8 times larger than the next largest operator of U.S. based bowling centers. Our addressable market is estimated to be $11 billion for bowling and over $100 billion for the out-of-home entertainment. We believe we are well positioned with our competitive advantages to grow in excess of the market our revenues and profitably with the secular shift in consumer spending to experiential.
COVID-19
We believe our bowling centers provide ideal venues for entertainment, even during the COVID-19 pandemic, when considering social distancing and other such requirement. Our centers are large open buildings with the structural separation of lanes and ventilation systems, which became apparent with the strong rebound in our business as we were allowed to return to operation after the COVID-19 mandated closures.
E-commerce or online shopping continues to increase and negatively impact consumer traffic at traditional “brick and mortar” retail sites located in regional malls, lifestyle centers, big box shopping centers and entertainment centers. Vacancies have also increased due to the COVID-19 pandemic. A decline in development or closures of businesses in these settings or a decline in visitors to retail areas near our centers could negatively affect our sales.
Foreign Operations
We have six centers in Mexico and two in Canada as of August 31, 2021 (the same number we had as of June 27, 2021). We had seven centers in Mexico and two in Canada as of June 28, 2020. Our Mexican and Canadian centers, combined, represented approximately $1.2 million and $7.1 million in revenues for the fiscal years 2021 and 2020, respectively, and combined net assets of $24.4 thousand and $3.6 million as of June 27, 2021 and June 28, 2020, respectively. Our foreign operations are subject to various risks of conducting businesses in foreign countries, including changes in foreign currencies, laws, regulations, and economic and political stability. See “Risk Factors” for more information regarding the risks.
Competition
The family dining and entertainment industries are highly competitive, with a number of major national and regional chains operating in each of these spaces. In this regard, we compete for customers on the basis of (a) our
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name recognition; (b) the price, quality, variety and perceived value of our food and entertainment offerings; (c) the quality of our customer service; and (d) the convenience and attractiveness of our facilities. Although there are other concepts that presently utilize the combined family dining and entertainment format, these competitors primarily operate on a regional or market-by-market basis. To a lesser extent, we also compete directly and/or indirectly with other dining and entertainment formats, including full-service and quick-service restaurants appealing to families with young children, the quick service pizza segment, movie theaters, themed amusement attractions, and other entertainment facilities.
We believe that our principal competitive strengths consist of our established and well recognized brand, the quality and value of the food and service we provide, the quality and variety of our entertainment offerings, the location and attractiveness of our stores and the cleanliness, and whole family fun we offer our guests.
Intellectual Property
We own various trademarks, used in connection with our business, which have been registered with the appropriate patent and trademark offices. The duration of such trademarks is unlimited, subject to continued use and renewal. To further protect our brand, we have registered Internet domain names, including www.bowlero.com. We believe that we hold the necessary rights for protection of the trademarks considered essential to conduct our business. We believe our trade name and our ownership of trademarks are an important competitive advantage, and we actively seek to protect our interests in such property.
Seasonality
Our operating results fluctuate seasonally. We typically generate our highest sales volumes during the third quarter of each fiscal year due to the timing of leagues, holidays and changing weather conditions. School operating schedules, holidays and weather conditions may also affect our sales volumes in some operating regions differently than others. Because of the seasonality of our business, results for any quarter are not necessarily indicative of the results that may be achieved for our full fiscal year
Government Regulation
We and our franchisees are subject to various federal, state and local laws and regulations affecting the development and operation of our centers. For a discussion of government regulation risks to our business, see “Risk Factors.”
Employees
As of August 31, 2021, we employed approximately 7,531 employees, including approximately 7,077 in the operation of our centers and approximately 399 in our corporate offices. We have 55 employees who are members of a union. We believe that our employee relations are satisfactory, and we have not experienced any work stoppages at any of our centers. Each center typically employs a center manager, two operation managers, a facilities manager who oversees the maintenance of the facility and bowling equipment, and approximately 20 to 30 associates to handle food and beverage preparation, customer service and maintenance on the machines. Our staffing requirements are seasonal, and the number of people we employ at our stores will fluctuate throughout the year.
Legal Proceedings
From time to time, we are involved in various inquiries, investigations, claims, lawsuits and other legal proceedings that are incidental to the conduct of our business. These matters typically involve claims from customers, employees or other third parties involved in operational issues common to the retail, restaurant and entertainment industries. Such matters typically represent actions with respect to contracts, intellectual property, taxation, employment, employee benefits, personal injuries and other matters. A number of such claims may exist at any given time, and there are currently a number of claims and legal proceedings pending against us. In the opinion of our management, after consultation with legal counsel, the amount of liability with respect to claims or proceedings currently pending against us is not expected to have a material effect on our consolidated financial condition, results of operations or cash flows.
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Executive Officers and Directors OF BOWLERO
In this section, “we,” “us” and “our” refer to Bowlero Corp. prior to the Business Combination and to New Bowlero following the Business Combination.
Officers and Directors
The directors and executive officers of Bowlero are as follows as of the date of this proxy statement/prospectus:
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Name
|
|
Age
|
|
Position
|
|
Thomas F. Shannon
|
|
56
|
|
Chairman, Chief Executive Officer, Director
|
|
Brett I. Parker
|
|
43
|
|
Vice Chairman, President, Chief Financial Officer, Secretary and Director
|
|
Larry Ross
|
|
69
|
|
Regional Vice President
|
|
Josh Silverstein
|
|
46
|
|
Regional Vice President
|
|
Jeffrey Kostelni
|
|
55
|
|
Chief Accounting Officer
|
|
John A. Young
|
|
56
|
|
Director
|
|
Michael J. Angelakis
|
|
57
|
|
Director
|
|
Rachael A. Wagner
|
|
39
|
|
Director
|
|
Brandon Hedvat
|
|
33
|
|
Director
|
Thomas F. Shannon is the founder, Chairman, Chief Executive Officer and Director of Bowlero Corp Mr. Shannon founded the Company with the acquisition of Bowlmor Lanes in 1997 and has grown the Company into the world’s largest operator of bowling entertainment centers. Mr. Shannon is a graduate of the American University and has an MBA from the Darden School at the University of Virginia.
Brett I. Parker has been the Chief Financial Officer of the Company since 2001, and subsequently promoted to Vice Chairman, President, Chief Financial Officer and Secretary. Mr. Parker is also a Director of the Company. Prior to joining the Company, Mr. Parker worked for RehabManager.com as a business development analyst. Mr. Parker is a graduate of Cornell University with a Bachelor of Science degree in Applied Economics and Business Management with a concentration in Business Management and Marketing.
Larry Ross has been the Senior Vice President of Operations with the Company since 2014 and joined the company as a regional vice president. Mr. Ross’ prior positions included a regional vice president with AMF and the director of operations with Fair Lanes. Mr. Ross graduated with a bachelor of science degree from the University of Baltimore and attended Loyola college in Baltimore working toward a master’s degree.
Josh Silverstein has been a Senior Vice President with Bowlero Corp. since 2013. Mr. Silverstein started his career with Bowlmor Lanes in 2006 as General Manger and was subsequently promoted to various roles with increasing responsibilities. Prior to these roles, Mr. Silverstein was the Director of Restaurant Operations with House of Blues Ent. for 6 years. Mr. Silverstein started his management career in 1998 in Las Vegas holding the position of Beverage Manager with Wynn Resorts and eventually F&B Manager with Harrah’s entertainment. Mr. Silverstein earned his Bachelor of Science Degree in Hospitality Management at the William F Harrah College of Hospitality at the University of Las Vegas, Nevada.
Jeffrey Kostelni has been Chief Accounting Officer since 2018 and Corporate Controller of the Company since 2015. Prior to joining the Company, Mr. Kostelni has served as Treasurer, Vice President of Finance, Corporate Controller and other positions for Measurement Specialties, Inc., a sensor manufacturer from 2004 to 2015, Bontex, Inc., an international specialty fiberboard manufacturer, from 1994 to 2004, and held various positions in the audit department of Deloitte & Touche, a public accounting firm, from 1988 to 1993. Mr. Kostelni holds a Bachelor of Science degree in Accountancy from Villanova University and is a Certified Public Accountant.
John A. Young has been a director of Bowlero and its predecessor entities since 2013. He is the retired President, CEO and Director of Colfax Corporation (NYSE:CFX). He was one of the co-founders of Colfax and served as its Chief Financial Officer from 1995 to 2000 and as its Chief Executive Officer from 2000 until 2010. After leaving Colfax, he served as a Senior Advisor to Oaktree Capital Management from 2011 until 2016 and has been a director of multiple privately owned businesses in the industrial, recreational products and healthcare
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industries. Prior to employment with Colfax, Mr. Young was Director of Corporate Development at AMF Industries and was an M&A Associate at Chase Manhattan Bank. Mr. Young is a graduate of the University of Virginia with a Bachelor of Science Degree in Finance from the McIntire School and an MBA from the Darden School, where he was a Shermet Scholar.
Michael J. Angelakis has been a director of Bowlero since 2017. He is the Chairman and Chief Executive Officer of Atairos. He also serves as a Senior Advisor to the Executive Management Committee of Comcast Corporation. Prior to founding Atairos, he served as Comcast’s Vice Chairman and Chief Financial Officer. In those roles, Michael was responsible for many strategic, financial, administrative and other areas within Comcast. During his tenure at Comcast, Michael was recognized by Institutional Investor magazine as one of “America’s Best Chief Financial Officers” six out of eight years. Prior to joining Comcast, Michael served as a Managing Director and a member of the Management and Investment Committees of Providence Equity Partners, one of the leading private equity firms investing in technology, media and communications companies around the world. Before joining Providence, Michael was Chief Executive Officer of State Cable TV Corporation and Aurora Telecommunications. He also served as Vice President at Manufacturers Hanover Trust Company in New York, where he oversaw one of the bank’s media and communications portfolios. Additionally, Michael spent several years in London developing Manufacturers Hanover’s acquisition finance and merchant banking activities throughout Western Europe. He is a member of the Board of Directors of the following public companies: Exxon Mobil Corporation (NYSE: XOM) and TriNet Group (NYSE: TNET), as well as the following private companies: Arcis Golf, Learfield IMG College, The Orogen Group, ProQuest Corporation, and Spectra Holdings. Previously, Michael was the Chairman of the Board for the Federal Reserve Bank of Philadelphia, a member of the Board of Directors of Duke Energy, Groupon Corporation (NASDAQ: GRPN), and Hewlett Packard Enterprises (NYSE: HPE), and a trustee of Babson College. Michael is a graduate of Babson College and the Owner/President Management Program at the Harvard Business School.
Rachael A. Wagner has been a director of Bowlero since 2017. She is a Partner at Atairos. Ms. Wagner joined Atairos from Lindsay Goldberg, where she participated in all major investment functions, including origination, transaction execution and portfolio company development. Ms. Wagner was a Managing Director at Lindsay Goldberg and served as a Director on several portfolio company boards across a wide range of industries, including food & beverage manufacturing, specialty distribution, government services, and downstream energy. Prior to joining Lindsay Goldberg, Ms. Wagner worked at Lion Capital and in the Private Equity group at Blackstone. She previously served as a member of the Board of Directors of Oxford University’s Saïd Business School and as a member of the Council on Foreign Relations. Ms. Wagner is a member of the Board of Directors of Arcis Golf. She received her Master of Business Administration degree and an MSc in Comparative Social Policy from Oxford University, where she was a Rhodes Scholar, and her Bachelor’s degree from Harvard University.
Brandon Hedvat has been a director of Bowlero since 2020. He is a Director at Atairos. Brandon joined Atairos from Carlyle’s Equity Opportunity Fund, where he invested across a variety of industries in the middle market including industrials, metals & mining, software, and media & telecommunications. Prior to joining Carlyle, Brandon was an Analyst in the Technology, Media and Telecommunications M&A group at Barclays where he advised clients on mergers and acquisitions and other strategic initiatives, specializing primarily in the wireless and tower sectors. He received his Masters of Science in Systems Science Engineering from the University of Pennsylvania. In addition, he graduated from the University of Pennsylvania after completing the Jerome Fisher Joint-Degree Program in Management & Technology, earning both a Bachelor of Science in Economics and Bachelor of Science in Systems Science & Engineering.
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MANAGEMENT’S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF BOWLERO
The following discussion and analysis provides information that management believes is relevant to an assessment and understanding of Bowlero Corp.’s consolidated results of operations and financial condition. The discussion should be read in conjunction with “Selected Historical Consolidated Financial Information of Bowlero” and Bowlero Corp.’s consolidated financial statements and notes thereto included elsewhere in this proxy statement/prospectus. This discussion contains forward-looking statements and involves numerous risks and uncertainties, including, but not limited to, those described under the heading “Risk Factors.” Actual results may differ materially from those contained in any forward-looking statements. Unless the context otherwise requires, references in this “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Bowlero” to “we”, “us”, “our”, the “Company”, and “Bowlero” are intended to mean the business and operations of Bowlero Corp. and its consolidated subsidiaries. Unless otherwise indicated, all financial information in this section is presented in thousands.
OVERVIEW
Bowlero Corp. is the world’s largest operator of bowling entertainment centers. The Company operates traditional bowling centers and more upscale entertainment concepts with lounge seating, arcades, enhanced food and beverage offerings, and more robust customer service for individuals and group events, as well as hosting and overseeing professional and non-professional bowling tournaments and related broadcasting.
The Company remains focused on creating long-term shareholder value through continued organic growth through conversion and upgrading of centers to more upscale entertainment concepts offering a broader range of offerings, as well as through the opening of new centers and through acquisitions. A core tenant of our long-term strategy to increase profitability is to grow the size and scale of the Company in order to improve our leverage of Selling, General and Administrative expenses (“SG&A”). Prior to the impact of the COVID-19 pandemic, the Company’s average revenue growth rate from 2014 to March 2020 (inclusive of acquisitions and new centers) was 13.4% and on a same-store basis averaged 3.9% annually over the same period. For fiscal year 2021, the Company has seen positive trends for revenue growth as we continue to re-open our centers, as well as positive growth from acquisitions and new centers. On August 16, 2021, we completed the Bowl America acquisition, effectively bringing in an additional 14 centers. We continue to see strong momentum for future demand, and since May 2021, we have recovered to better than pre-pandemic performance. While we generated a strong financial performance prior to the COVID-19 pandemic, the impact of COVID-19, its variants, the governmental actions imposed in response to the virus, and the resulting consequences on our consumer’s risk tolerance toward health and safety matters remains uncertain. Refer to the section titled “Risk Factors” for further information.
Impact of COVID-19
In mid-March of fiscal year 2020, the Company temporarily suspended all operations in compliance with local, state, and federal governmental restrictions to prevent the spread of the novel coronavirus known as COVID-19. Starting in April 2020, the Company began reopening centers and restoring operations. As of August 31, 2021, all but two of our centers are open. Although almost all of our centers are open, they are not operating at full capacity due to, among other factors, social distancing requirements, limited hours of operation, limitations on available offerings, and other operational restrictions. The temporary suspension of our operations and subsequent operational restrictions have had an adverse impact on the Company’s profitability and cash flows. The Company continues to take incremental actions to address these evolving impacts and the governmental actions imposed in response to COVID-19 and its variants. We cannot predict with certainty how fast customers will return to our centers, or if we would need to re-impose restrictions due to the continued spread of the COVID-19 virus and variants of the COVID-19 virus. The Company continues to monitor health authority requirements when evaluating the protocols we have in place.
While the future impact of the COVID-19 situation is not known, as centers remain open and operating, we continue to see favorable trends with increasing sales and positive center-level cash flows due, in part, to a revamped operating model that is being executed at lower cost. We continue to monitor the situation closely and it is possible that we will implement further measures.
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Trends
There are a number of trends that we expect to materially affect our future operating results, including changing economic conditions with the resulting impact on our sales, profitability, and capital spending, changes in our debt levels and applicable interest rates, and prices of labor, raw materials and other costs. Additionally, sales and results of operations could be impacted by acquisitions and restructuring projects. Restructuring can include various projects, including closure of centers not performing well, cost reductions through staffing reductions, and optimizing and allocating resources to improve profitability.
The following graph details the Company’s trailing fifty-two week revenues, net loss, EBITDA and Adjusted Earnings Before Interest, Taxes, Depreciation and Amortization (“Adjusted EBITDA”) on a quarterly basis over the previous quarters. EBITDA represents Net income (loss) before Interest, Income Taxes, Depreciation and Amortization, Share-based Compensation, EBITDA from Closed Centers, Foreign Currency Exchange Loss (Gain), Asset Disposition Loss (Gain), Transactional and other advisory costs, Charges attributed to new initiatives, Extraordinary unusual non-recurring gains or losses.
EBITDA and Adjusted EBITDA are non-GAAP financial measures that are not in accordance with, or alternatives to, measures prepared in accordance with GAAP. The Company believes certain financial measures which meet the definition of non-GAAP financial measures provide important supplemental information. The Company considers EBITDA and Adjusted EBITDA as important financial measures because they provide a financial measure of the quality of the Company’s earnings. Other companies may calculate EBITDA and Adjusted EBITDA differently than we do, which might limit their usefulness as a comparative measure. EBITDA and Adjusted EBITDA are used by management in addition to and in conjunction with the results presented in accordance with GAAP. Additionally, we believe trailing fifty-two week Adjusted EBITDA provides the current run-rate for trending purposes, rather than annualizing the respective quarters, as the Company’s business is seasonal with the second and third fiscal quarters being higher than the first and last quarters.
We have presented both EBITDA and Adjusted EBITDA solely as supplemental disclosures because we believe these measures allow for a more complete analysis of results of operations and assist investors and analysts in comparing our operating performance across reporting periods on a consistent basis by excluding items that we do not believe are indicative of our core operating performance, such as Interest, Income Taxes, Depreciation
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and Amortization, Share-based Compensation, EBITDA from Closed Centers, Foreign Currency Exchange Loss (Gain), Asset Disposition Loss (Gain), Transactional and other advisory costs, Charges attributed to new initiatives, Extraordinary unusual non-recurring gains or losses, Contra Rent Expense, and Non-income other taxes but after the benefit of run-rate Savings for Optimization Projects and Adjustments for Renovated and De novo facilities.
EBITDA and Adjusted EBITDA have their limitations as analytical tools, and you should not consider them in isolation or as a substitute for analysis of our results as reported under GAAP. Some of these limitations are that EBITDA, Adjusted EBITDA and trailing fifty-two week Adjusted EBITDA:
• do not reflect every expenditure, future requirements for capital expenditures or contractual commitments;
• do not reflect changes in our working capital needs;
• do not reflect the interest expense, or the amounts necessary to service interest or principal payments, on our outstanding debt;
• do not reflect income tax (benefit) expense, and because the payment of taxes is part of our operations, tax expense is a necessary element of our costs and ability to operate;
• do not reflect non-cash equity compensation, which will remain a key element of our overall equity based compensation package; and
• do not reflect the impact of earnings or charges resulting from matters we consider not to be indicative of our ongoing operations.
Refer to notes below for additional details concerning the respective items for EBITDA and Adjusted EBITDA.
The following table details trailing fifty-two week revenue, net loss, EBITDA and Adjusted EBITDA on a quarterly basis, as well as quarterly net revenues and net (loss) income and a non-GAAP reconciliation of quarterly EBITDA and Adjusted EBITDA to net (loss) income, the closest applicable GAAP financial measures.
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BOWLERO CORP.
Thirteen week and Trailing fifty-two week Revenues, Net (loss) income, EBITDA, and Adjusted EBITDA
Unaudited
|
(in thousands)
|
|
September 29,
2019
|
|
December 29, 2019
|
|
March 29, 2020
|
|
June 28, 2020
|
|
September 27, 2020
|
|
December 27, 2020
|
|
March 28, 2021
|
|
June 27, 2021
|
|
Consolidated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
148,570
|
|
|
184,842
|
|
|
175,893
|
|
|
|
11,126
|
|
|
49,931
|
|
|
73,988
|
|
|
112,212
|
|
|
159,103
|
|
|
Net (loss) income
|
|
$
|
(19,719
|
)
|
|
6,448
|
|
|
7,127
|
|
|
|
(84,748
|
)
|
|
(40,772
|
)
|
|
(49,137
|
)
|
|
(23,091
|
)
|
|
(13,461
|
)
|
|
Adjustments:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense
|
|
|
19,665
|
|
|
19,805
|
|
|
20,549
|
|
|
|
20,623
|
|
|
21,173
|
|
|
22,253
|
|
|
22,303
|
|
|
23,128
|
|
|
Income tax expense (benefit)
|
|
|
153
|
|
|
153
|
|
|
363
|
|
|
|
7,594
|
|
|
124
|
|
|
106
|
|
|
103
|
|
|
(1,368
|
)
|
|
Depreciation and amortization
|
|
|
21,102
|
|
|
21,772
|
|
|
22,928
|
|
|
|
23,432
|
|
|
22,451
|
|
|
22,538
|
|
|
22,990
|
|
|
23,872
|
|
|
Share-based compensation
|
|
|
869
|
|
|
852
|
|
|
855
|
|
|
|
855
|
|
|
849
|
|
|
696
|
|
|
826
|
|
|
793
|
|
|
Closed center EBITDA(1)
|
|
|
1,116
|
|
|
1,885
|
|
|
1,029
|
|
|
|
970
|
|
|
579
|
|
|
904
|
|
|
806
|
|
|
1,750
|
|
|
Foreign currency exchange (gain) loss
|
|
|
—
|
|
|
(236
|
)
|
|
309
|
|
|
|
(57
|
)
|
|
2
|
|
|
(195
|
)
|
|
104
|
|
|
(99
|
)
|
|
Asset disposition loss (gain)
|
|
|
66
|
|
|
219
|
|
|
371
|
|
|
|
690
|
|
|
1
|
|
|
(142
|
)
|
|
64
|
|
|
31
|
|
|
Transactional and other advisory costs(2)
|
|
|
1,308
|
|
|
1,087
|
|
|
1,487
|
|
|
|
1,480
|
|
|
1,510
|
|
|
731
|
|
|
1,852
|
|
|
6,644
|
|
|
Charges attributed to new initiatives(3)
|
|
|
299
|
|
|
230
|
|
|
179
|
|
|
|
116
|
|
|
132
|
|
|
116
|
|
|
136
|
|
|
147
|
|
|
Extraordinary unusual non-recurring losses (gains)(4)
|
|
|
72
|
|
|
673
|
|
|
(1,567
|
)
|
|
|
19,737
|
|
|
(19,024
|
)
|
|
(1,647
|
)
|
|
1,294
|
|
|
859
|
|
|
Contra rent expense(5)
|
|
|
(5,881
|
)
|
|
(6,433
|
)
|
|
(6,560
|
)
|
|
|
(6,256
|
)
|
|
(6,861
|
)
|
|
337
|
|
|
531
|
|
|
688
|
|
|
EBITDA
|
|
$
|
19,050
|
|
|
46,455
|
|
|
47,070
|
|
|
|
(15,564
|
)
|
|
(19,836
|
)
|
|
(3,440
|
)
|
|
27,918
|
|
|
42,984
|
|
|
Non-income other taxes(6)
|
|
|
4,845
|
|
|
5,183
|
|
|
5,055
|
|
|
|
4,473
|
|
|
4,923
|
|
|
4,893
|
|
|
5,644
|
|
|
5,451
|
|
|
Optimization run-rate savings(7)
|
|
|
4,097
|
|
|
2,360
|
|
|
8,414
|
|
|
|
8,258
|
|
|
(1,754
|
)
|
|
(3,603
|
)
|
|
3,194
|
|
|
16,818
|
|
|
De novo adjustment(8)
|
|
|
1,644
|
|
|
2,038
|
|
|
3,273
|
|
|
|
1,732
|
|
|
(1,378
|
)
|
|
(2,182
|
)
|
|
1,254
|
|
|
12,930
|
|
|
Renovated facility adjustment(9)
|
|
|
2,194
|
|
|
2,148
|
|
|
4,006
|
|
|
|
4,018
|
|
|
(852
|
)
|
|
(2,439
|
)
|
|
1,505
|
|
|
12,828
|
|
|
Adjusted EBITDA
|
|
$
|
31,830
|
|
|
58,184
|
|
|
67,818
|
|
|
|
2,917
|
|
|
(18,897
|
)
|
|
(6,771
|
)
|
|
39,515
|
|
|
91,011
|
|
|
Trailing fifty-two week Net loss
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(90,892
|
)
|
|
(111,945
|
)
|
|
(167,530
|
)
|
|
(197,748
|
)
|
|
(126,461
|
)
|
|
Trailing fifty-two week Adjusted EBITDA
|
|
|
|
|
|
|
|
|
|
|
|
$
|
160,749
|
|
|
110,022
|
|
|
45,067
|
|
|
16,764
|
|
|
104,858
|
|
|
Trailing fifty-two week Revenues
|
|
|
|
|
|
|
|
|
|
|
|
$
|
520,431
|
|
|
421,792
|
|
|
310,938
|
|
|
247,257
|
|
|
395,234
|
|
|
Trailing fifty-two week Net loss as a % of Trailing fifty-two week Revenues
|
|
|
|
|
|
|
|
|
|
|
|
|
-17
|
%
|
|
-27
|
%
|
|
-54
|
%
|
|
-80
|
%
|
|
-32
|
%
|
|
Trailing fifty-two week Adjusted EBITDA as a % of Trailing fifty-two week Revenues
|
|
|
|
|
|
|
|
|
|
|
|
|
31
|
%
|
|
26
|
%
|
|
14
|
%
|
|
7
|
%
|
|
27
|
%
|
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EBITDA represents Net income (loss) before Interest, Income Taxes, Depreciation and Amortization, Share-based Compensation, EBITDA from Closed Centers, Foreign Currency Exchange Loss (Gain), Asset Disposition Loss (Gain), Transactional and other advisory costs, Charges attributed to new initiatives, Extraordinary unusual non-recurring gains or losses, and Contra Rent Expense. Refer to notes below for additional details concerning the respective items for EBITDA and Contra Rent Expense.
Adjusted EBITDA starts with EBITDA defined in the previous paragraph and adjusted to be before Non-income other taxes but after the benefit of run-rate Savings for Optimization Projects and Adjustments for De novo and Renovated facilities. Refer to notes below for additional details concerning the respective items for Adjusted EBITDA.
Notes to Adjusted EBITDA:
(1) The closed center adjustment is to remove EBITDA for closed centers. Closed centers are those centers that are closed for a variety of reasons, including permanent closure, newly acquired or built centers prior to opening, centers closed for renovation or rebranding and conversion. Closed centers do not include centers closed in compliance with local, state and federal government restrictions due to COVID-19. If a center is not open on the last day of the reporting period, it will be considered closed for that reporting period. If the center is closed on the first day of the reporting period for permanent closure, the center will be considered closed for that reporting period.
(2) The adjustment for transaction costs and other advisory costs is to remove charges incurred in connection with any transaction, including mergers, acquisitions, refinancing, amendment or modification to indebtedness, dispositions and costs in connection with an initial public offering, in each case, regardless of whether consummated.
(3) The adjustment for charges is to remove charges attributed to new initiatives include charges with the undertaking and/or implementation of new initiatives, business optimization activities, cost savings initiatives, cost rationalization programs, operating expense reductions and/or synergies and/or similar initiatives and/or programs (including in connection with any integration, restructuring or transition, any reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, any office or facility opening and/or pre-opening), including any inventory optimization program and/or any curtailment, any business optimization charge, any restructuring charge (including any charges relating to any tax restructuring), any charge relating to the closure or consolidation of any office or facility (including but not limited to rent termination costs, moving costs and legal costs), any systems implementation charge, any severance charge, any one time compensation charge, any charge relating to entry into a new market, any charge relating to any strategic initiative or contract, any charge relating to any entry into new markets and contracts, any lease run-off charge, any charge associated with improvements to information technology (IT) or accounting functions, losses related to temporary decreases in work volume and expenses related to maintaining underutilized personnel, any charge relating to a new contract, any consulting charge and/or any corporate development charge; provided, that, in the case of any such charge, the results of any such action relating to such charge are projected by in good faith to be achieved within 24 months of the undertaking.
(4) The adjustment for extraordinary unusual non-recurring gains or losses is to remove extraordinary gains and losses, which include any gain or charge from any extraordinary item as determined in good faith by the Company and/or any non-recurring or unusual item as determined in good faith by the Company and/or any charge associated with and/or payment of any legal settlement, fine, judgment or order.
(5) Contra rent expense is an adjustment to report rent expense on a cash basis (cash rent expense). The Contra rent is calculated to adjust for such non-cash items as straight-lined rent and other non-cash operating and capital lease items. The adjustments in Contra rent to derive cash rent can be positive or negative adjustments, and as for example, rent expense is increased by including cash payments to landlords in cash rent that would otherwise go to amortization and interest expense.
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Table of Contents
(6) The adjustment for non-income other tax (benefit) expense is to remove non-income related taxes, including property taxes.
(7) Optimization run-rate savings are adjustments to include pro forma run-rate cost savings, operating expense reductions, operational improvements and cost synergies that are reasonably identifiable, factually supportable and projected in good faith to result from actions that have been taken or are expected to be taken within 24 months with respect to, among other things, transactions, any cost savings initiative, restructuring, cost savings initiative or similar initiative or specified transaction.
(8) A de novo facility is a newly constructed center. The de novo adjustment is an annualized amount for the first 18 months following the opening of a de novo (new) facility which is based on the greater of actual Adjusted EBITDA attributable to such de novo facility for each month such de novo facility has been in operation and the 12-month average Adjusted EBITDA determined in good faith for all similar facilities that have been in operation for a period of at least 18 months. The total of de novo and Renovated facility adjustments shall not, for any period, exceed an amount equal to 15% of Consolidated Adjusted EBITDA for such period, calculated prior to giving effect to such add-backs.
(9) A renovated facility is a center that has been renovated and the renovated facility adjustment is to reflect an amount annualized over the greater of actual Consolidated Adjusted EBITDA attributable to performance gains for such facility for each month such facility has been in operation post-renovation and the 12-month average Adjusted EBITDA attributable to performance gains for all similar facilities that have been in operation for a period of at least 18 months determined in good faith. The total of de novo and renovated facility adjustments shall not, for any period, exceed an amount equal to 15% of Consolidated Adjusted EBITDA for such period, calculated prior to giving effect to such add-backs.
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Fiscal Year Ended June 27, 2021 Compared To Fiscal Year Ended June 28, 2020
The Company reports on a fiscal year with each quarter generally comprised of one 5-week period and two 4-week periods. Fiscal years 2021 and 2020 were fifty-two weeks and ended on June 27, 2021 (“fiscal 2021”) and June 28, 2020 (“fiscal 2020”), respectively.
Analysis of Consolidated Statement of Operations. The following is a discussion and analysis of the Company’s consolidated statement of operations in comparing fiscal 2021 to fiscal 2020. The following table sets forth certain items from operations in our consolidated statements of operations for the years ended June 27, 2021 and June 28, 2020, respectively:
|
(in thousands)
|
|
Fiscal Year Ended
|
|
%(1)
|
|
Change
|
|
June 27,
2021
|
|
%(1)
|
|
June 28,
2020
|
|
|
Revenues
|
|
$
|
395,234
|
|
|
100.0
|
%
|
|
$
|
520,431
|
|
|
100.0
|
%
|
|
$
|
(125,197
|
)
|
|
Costs of revenues
|
|
|
374,255
|
|
|
94.7
|
%
|
|
|
443,265
|
|
|
85.2
|
%
|
|
|
(69,010
|
)
|
|
Gross profit
|
|
|
20,979
|
|
|
5.3
|
%
|
|
|
77,166
|
|
|
14.8
|
%
|
|
|
(56,187
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating (income) expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative
expenses
|
|
|
78,335
|
|
|
19.8
|
%
|
|
|
84,103
|
|
|
16.2
|
%
|
|
|
(5,768
|
)
|
|
Asset impairment
|
|
|
386
|
|
|
0.1
|
%
|
|
|
1,653
|
|
|
0.3
|
%
|
|
|
(1,267
|
)
|
|
(Gain) loss on sale or disposal of assets
|
|
|
(46
|
)
|
|
0.0
|
%
|
|
|
1,346
|
|
|
0.3
|
%
|
|
|
(1,392
|
)
|
|
Income from joint
venture
|
|
|
(223
|
)
|
|
(0.1
|
)%
|
|
|
(143
|
)
|
|
0.0
|
%
|
|
|
(80
|
)
|
|
Management fee
income
|
|
|
(146
|
)
|
|
0.0
|
%
|
|
|
(524
|
)
|
|
(0.1
|
)%
|
|
|
378
|
|
|
Other expense
|
|
|
1,500
|
|
|
0.4
|
%
|
|
|
959
|
|
|
0.2
|
%
|
|
|
541
|
|
|
Loss on refinance of
debt
|
|
|
—
|
|
|
0.0
|
%
|
|
|
1,172
|
|
|
0.2
|
%
|
|
|
(1,172
|
)
|
|
Gain on sale of
short-term
investments
|
|
|
—
|
|
|
0.0
|
%
|
|
|
(3,388
|
)
|
|
(0.7
|
)%
|
|
|
3,388
|
|
|
Business interruption insurance recoveries
|
|
|
(20,188
|
)
|
|
(5.1
|
)%
|
|
|
(6,025
|
)
|
|
(1.2
|
)%
|
|
|
(14,163
|
)
|
|
Total operating expense, net
|
|
|
59,618
|
|
|
15.1
|
%
|
|
|
79,153
|
|
|
15.2
|
%
|
|
|
(19,535
|
)
|
|
Operating loss
|
|
|
(38,639
|
)
|
|
(9.8
|
)%
|
|
|
(1,987
|
)
|
|
(0.4
|
)%
|
|
|
(36,652
|
)
|
|
Interest expense, net
|
|
|
88,857
|
|
|
22.5
|
%
|
|
|
80,642
|
|
|
15.5
|
%
|
|
|
8,215
|
|
|
Loss before tax
|
|
|
(127,496
|
)
|
|
(32.3
|
)%
|
|
|
(82,629
|
)
|
|
(15.9
|
)%
|
|
|
(44,867
|
)
|
|
Income tax (benefit) expense
|
|
|
(1,035
|
)
|
|
(0.3
|
)%
|
|
|
8,263
|
|
|
1.6
|
%
|
|
|
(9,298
|
)
|
|
Net loss
|
|
$
|
(126,461
|
)
|
|
(32.0
|
)%
|
|
$
|
(90,892
|
)
|
|
(17.5
|
)%
|
|
$
|
(35,569
|
)
|
Revenues: For fiscal 2021, revenues totaled $395,234 and represented a decrease of $125,197, or 24.1%, over the prior fiscal year. The overall decrease in revenues is due to the continued impact of the COVID-19 pandemic and restrictions put in place through state and local government policies. Beginning in April 2020, the Company began to reopen centers and restoring operations.
Cost of Revenues: The Company’s cost of revenues include certain costs that are not variable or less variable with changes in revenues, and include depreciation, amortization, property taxes, supplies, insurance, and utilities, as well as variable costs such as labor, food and beverage costs, prize funds, production expenses and amusement costs. The decrease in cost of revenues of $69,010, or 15.6%, is due to the decrease in revenues due to the closure of centers due to the COVID-19 pandemic as well as cost control measures implemented in response to the COVID-19
197
Table of Contents
pandemic, which include but are not limited to reducing inventory purchases, and obtaining rent abatements or deferrals. Cost of revenues as a percent of revenues increased from 85.2% in fiscal 2020 to 94.7% in fiscal 2021 due to a larger portion of our cost of revenues being fixed.
Selling, general and administrative expenses (“SG&A”): SG&A expenses include employee related costs with payroll and benefits as well as depreciation and amortization (excluding those related to our center operations), media and promotional expenses. SG&A expenses decreased $5,768, or 6.9%, to $78,335 due to the swift implementation of cost control measures implemented in response to COVID-19. Total SG&A expenses as a percent of net sales for the year ended June 27, 2021 was approximately 19.8%, as compared to 16.2% for the corresponding period last year. The increase in SG&A as a percentage of revenue reflects the larger proportion of our SG&A costs being fixed and not variable with changes in revenue.
Other expenses: Other expenses consist of, among other things, business acquisition expenses and transaction related costs associated with purchasing centers, and foreign currency exchange gains and losses. The increase in other expenses reflects the increased acquisition activity for the Company in fiscal 2020 as compared to fiscal 2021.
Gain on sale of short term investment: During fiscal 2020, the Company acquired stock in a publicly traded company that was an acquisition target and subsequently sold the stock for a gain of $3,388 since the acquisition was not consummated. The Company did not make any similar purchases in fiscal 2021.
Business interruption insurance proceeds: With the closure of our centers due to the COVID-19 pandemic, the Company collected and recognized as income $20,188 in business interruption insurance proceeds during fiscal 2021, as compared to $6,025 in fiscal year 2020.
Interest expense, net: Interest expense relates to interest on debt and capital leases. Interest expense increased $8,215, or 10.2%, to $88,857. This is primarily the result of our increased debt levels during fiscal 2021 to increase the Company’s liquidity during the COVID-19 pandemic. Total average outstanding debt increased to approximately $877,611 during the fiscal 2021 as compared to $784,061 during fiscal 2020. The Company’s weighted average interest rate on debt was approximately 5.52% for the year ended June 27, 2021, as compared to 5.80% during the same period last year.
Income Taxes: Income tax (benefit) expense and deferred tax assets and liabilities reflect management’s assessment of future taxes expected to be paid on items reflected in the Company’s financial statements. The Company records the tax effect of discrete items and items that are reported net of their tax effects in the period in which they occur.
The $9,298 decrease in income tax expense is due to reductions of $3,535 in deferred U.S. federal income tax expense and $5,775 in deferred state and local income tax expense, which mainly reflects lower income tax expense attributed to higher U.S. and foreign losses before tax during fiscal 2021 as compared to fiscal 2020.
No provisions for United States income taxes have been made with respect to earnings that are planned to be reinvested indefinitely outside the United States.
The amount of income taxes the Company pays is subject to audits by federal, state and foreign tax authorities, which often result in proposed assessments. Management performs a comprehensive review of its tax positions and accrues estimated amounts for contingent tax liabilities. Based on these reviews, the results of discussions and resolutions of matters with certain tax authorities and the closure of tax years subject to tax audit, reserves are adjusted as necessary.
Liquidity and Capital Resources
We manage our liquidity through assessing available cash-on-hand, our ability to generate cash and our ability to borrow to fund operating, investing and financing activities. The Company remains in a positive financial position with available cash balances, and we have taken proactive measures to enhance our liquidity. We obtained a $150,000 Incremental Liquidity Facility on September 25, 2020, and obtained a covenant waiver with our lenders through March 31, 2022 for our leverage-based financial covenant. We also obtained rent deferrals or abatements on a substantial number of our leases due to the effects of the COVID-19 pandemic. Furthermore, in response to the pandemic, the Company obtained waivers from our sale-leaseback partners for a requirement to deliver additional letters of credit if the Company’s debt to earnings before EBITDA exceed certain levels. A core tenant
198
Table of Contents
of our long-term strategy is to grow the size and scale of the Company in order to improve our operating profit margins through leveraging our fixed costs. As such, one of the Company’s known cash requirements is for capital expenditures related to the construction of the new centers and upgrading and converting existing centers. We believe our financial position, generation of cash, available cash on hand, existing credit facility, and access to potentially obtain additional financing from sale-lease-back transactions will provide sufficient capital resources to fund our operational requirements, capital expenditures, and material short and long-term commitments for the foreseeable future. However, there are a number of factors that may hinder our ability to access these capital resources, including but not limited to the ongoing impacts of COVID-19 on our business, our degree of leverage, and potential borrowing restrictions imposed by our lenders. Refer to the section titled “Risk Factors” for further information.
At June 27, 2021, we had approximately $187,093 of available cash. The Company has maintained higher available cash balances than in past years in response to maintain higher liquidity during the COVID pandemic.
The following compares the primary categories of the consolidated statements of cash flows for the years ended June 27, 2021 and June 28, 2020:
|
|
|
Fiscal Year Ended
|
|
$
Change
|
|
%
Change
|
|
(in thousands)
|
|
June 27,
2021
|
|
June 28,
2020
|
|
|
Net cash provided by operating activities
|
|
$
|
58,232
|
|
|
$
|
18,822
|
|
|
$
|
39,410
|
|
|
209.38
|
%
|
|
Net cash used in investing activities
|
|
|
(46,676
|
)
|
|
|
(129,395
|
)
|
|
|
82,719
|
|
|
(63.93
|
)%
|
|
Net cash provided by financing activities
|
|
|
34,805
|
|
|
|
137,263
|
|
|
|
(102,458
|
)
|
|
(74.64
|
)%
|
|
Effect of exchange rate changes on cash
|
|
|
27
|
|
|
|
(177
|
)
|
|
|
204
|
|
|
(115.25
|
)%
|
|
Net change in cash and cash equivalents
|
|
$
|
46,388
|
|
|
$
|
26,513
|
|
|
$
|
19,875
|
|
|
74.96
|
%
|
During fiscal 2021, net cash provided from operations totaled $58,232, as compared to $18,822 during the prior fiscal year. The increase in cash provided by operating activities reflects the strong recovery in consumer demand as we re-opened our centers, higher proceeds business interruption insurance, and favorable changes in working capital, partially offset by increased costs from re-opening those centers.
Investing activities utilized $46,676, reflecting our investments in centers, center conversions, and one acquisition. The decrease in the current period as compared to the prior period was primarily due to reductions in center conversion costs, fewer acquisitions, and no proceeds from the sale of short-term investments.
Financing activities provided $34,805 in cash as the Company borrowed additional funds under its Incremental Liquidity Facility, which was entered into on September 25, 2020, as part of the Company’s response to the COVID-19 pandemic to increase liquidity. The decrease in cash provided by financing activities reflects no additional term loan borrowings during fiscal 2021 as compared to $103,828 in term loan borrowings during fiscal 2020.
Aggregate Contractual Obligations
As of June 27, 2021, the Company’s contractual obligations, including payments due by period, are as follows:
|
(in thousands)
|
|
Payment due by period
|
|
Total
|
|
Less than 1 year
|
|
1 – 3 years
|
|
3 – 5 years
|
|
> 5 years
|
|
Contractual Obligations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt obligations
|
|
$
|
885,387
|
|
$
|
8,211
|
|
$
|
56,275
|
|
$
|
820,901
|
|
$
|
—
|
|
Interest obligation on long-term
debt
|
|
|
115,478
|
|
|
39,658
|
|
|
75,516
|
|
|
304
|
|
|
—
|
|
Capital lease obligations
|
|
|
1,197,575
|
|
|
31,410
|
|
|
66,379
|
|
|
71,458
|
|
|
1,028,328
|
|
Operating lease obligations
|
|
|
900,369
|
|
|
54,194
|
|
|
110,971
|
|
|
107,572
|
|
|
627,632
|
|
Interest rate swaps and caps
|
|
|
8,869
|
|
|
8,159
|
|
|
710
|
|
|
—
|
|
|
—
|
|
Self-insurance liabilities
|
|
|
17,363
|
|
|
13,136
|
|
|
2,699
|
|
|
604
|
|
|
924
|
|
Asset Retirement Obligation
|
|
|
4,467
|
|
|
352
|
|
|
4,115
|
|
|
—
|
|
|
—
|
|
Total
|
|
$
|
3,129,508
|
|
$
|
155,120
|
|
$
|
316,665
|
|
$
|
1,000,839
|
|
$
|
1,656,884
|
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Table of Contents
The above contractual obligation table excludes certain contractual obligations, such as possible interest on Series A Redeemable Convertible Preferred Stock, since these contractual commitments are not accrued as liabilities at June 27, 2021 or are otherwise indeterminable. These contractual obligations are accrued as liabilities when the respective contingencies are determinable.
During fiscal 2021, we deferred $10,402 of future minimum rental payments under non-cancelable operating lease agreements and $12,061 of capital lease obligations from fiscal 2021 to be paid in fiscal years 2023, 2024 and 2025, at an interest rate of LIBOR plus 3% per annum. These deferrals are excluded from the table above.
During fiscal 2021, we borrowed $45,000 of additional funds under the $150,000 Incremental Liquidity Facility. There have been no other additional borrowings since the fiscal year ended June 28, 2020.
Off-Balance Sheet Arrangements
As June 27, 2021, we did not have any off-balance sheet arrangements as defined in Item 303(a)(4)(ii) of Regulation S-K.
Quantitative and Qualitative Disclosures about Market Risk
The Company is exposed to market risk from changes in, among other things, the ongoing effect of the COVID-19 pandemic, interest rates, credit risk, labor costs, health insurance claims and foreign currency exchange rates, which could impact its results of operations and financial condition. The Company attempts to address its exposure to these risks through its normal operating and financing activities.
Interest Rate Risk: Under our term and revolving credit facilities, we are exposed to a certain level of interest rate risk. Interest on the principal amount of our borrowings under our revolving credit facility loan accrue at a LIBOR based rate plus a margin. We have hedged our variable interest rate exposure to a fixed rate for approximately $650,000 of our debt with interest rate swaps and caps. For that portion debt that is not fixed with the hedging, our results will be adversely affected by any increase in interest rates.
Credit Risk: Financial instruments that potentially subject the Company to significant concentrations of credit risk consist of cash and temporary investments, and interest rate swaps and caps. The Company is exposed to credit losses in the event of nonperformance by counter parties to its financial instruments. The Company places cash and temporary investments with various high-quality financial institutions. Although the Company does not obtain collateral or other security to secure these obligations, it does periodically monitor the third-party depository institutions that hold our cash and cash equivalents. Our emphasis is primarily on safety and liquidity of principal and secondarily on maximizing yield on those funds.
CRITICAL ACCOUNTING ESTIMATES
Our results of operations and financial condition as reflected in the consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles. Preparation of financial statements requires management to make estimates, judgements, and assumptions affecting the reported amounts of assets, liabilities, revenues, expenses and the disclosures of contingent assets and liabilities. We base these estimates and judgments on historical experience and assumptions believed to be reasonable under current facts and circumstances. Actual results, however, may differ from the estimated amounts we have recorded. We regularly evaluate these estimates, judgements, and assumptions.
The following discussion provides information on our critical accounting estimates that require management’s most difficult, subjective or complex judgments, and which may result in materially different results under different assumptions and conditions. Additionally, we expect that the COVID-19 outbreak in March 2020 will impact future assumptions and estimates made related to the critical accounting estimates listed below, though the extent of those impacts is uncertain at this time.
Impairment of Long-Lived Assets
Long-lived assets other than goodwill and indefinite-lived intangible assets (such as Bowlero and Professional Bowler Association trade names and liquor licenses), including property and equipment and other definite-lived intangibles such as trade names and customer relationships are reviewed for impairment when events or changes
200
Table of Contents
in circumstances indicate the carrying value of an asset may not be recoverable. The COVID-19 pandemic did not result in an impairment of long-lived assets since the COVID-19 situation was considered temporary and the Company’s overall business is expected to recover.
For long-lived assets, an impairment is indicated when the estimated total undiscounted cash flows associated with the asset or group of assets is less than carrying value. If impairment exists, an adjustment is made to write the asset down to its fair value, and a loss is recorded as the difference between the carrying value and fair value. The Company recognized impairment charges of $386 and $1,653 in fiscal 2021 and 2020, respectively. The 2021 and 2020 impairments relate to long-lived assets for closed centers and liquor licenses. We estimated the fair value of these assets utilizing the market approach using orderly liquidation values or broker quotes for sale of similar properties. We then compared these fair values to the related carrying value of the long-lived assets.
Goodwill Impairment
Goodwill is recognized for the excess of the purchase price over the fair value of tangible and identifiable intangible assets acquired and liabilities assumed of businesses acquired.
Management assesses goodwill for impairment at the reporting unit level on an annual basis during the fourth quarter or more frequently under certain circumstances. The Company’s bowling business is the Company’s one reportable segment and reporting unit.
For 2021 and 2020, the Company performed a quantitative assessment of goodwill using the income approach due to the economic impact of the COVID-19 pandemic with the temporary closure of our centers. The Company considers the COVID-19 situation to be temporary and the Company’s overall business is expected to recover. Our one reporting unit is substantially in excess of carrying value and not considered at risk of failing. There were no impairment charges for goodwill recorded in fiscal 2021 or 2020.
Impairment of Indefinite-lived Intangible Assets
Management assesses impairment of indefinite-lived intangible assets, including Bowlero and Professional Bowlers Association trade names, on an annual basis during the fourth quarter or more frequently under certain circumstances.
We assessed macroeconomic conditions, industry and market considerations, cost factors that could have a negative impact, overall financial performance including actual results and trends, and other relevant entity specific events. For 2021 and 2020, the Company performed a quantitative assessment of indefinite-lived intangible assets due to the economic impact of the COVID-19 pandemic with the temporary closure of our centers. The Company considers the COVID-19 situation to be temporary and the Company’s overall business is expected to recover. There were no impairment charges for indefinite-lived intangible assets recorded in fiscal 2021 or 2020.
Recently Adopted Accounting Standards
In April 2020, the FASB issued interpretive guidance in response to the COVID-19 pandemic. The Staff Q&A titled, Accounting for Lease Concessions Related to the Effects of the COVID-19 Pandemic, permits entities to elect to not evaluate whether lease-related relief that lessors provide to mitigate the economic effects of COVID-19 on lessees is a lease modification under Accounting Standards Codification (ASC 840). This election is available for concessions related to the effects of the COVID-19 pandemic that do not result in a substantial increase in the rights of the lessor or our obligations as the lessee, i.e. the total payments required by the modified contract are substantially the same or less than the total payments required by the original contract. The FASB staff expects that reasonable judgement will be exercised in making those determinations, and expects that there will be multiple ways to account for those deferrals, none of which the staff believes are more preferable than the others. Two of those methods are:
a) Account for the concessions as if no changes to the lease were made. Under that account, a lessor would increase its lease receivable, and a lessee would increase its liabilities as receivables/payments accrue. In its income statement, a lessor would continue to recognize income, and a lessee would continue to recognize expense during the deferral period.
b) Account for the deferred payments as variable lease payments.
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Table of Contents
Where applicable, the Company adopted option (a) above and continues to recognize rent expense. As of June 27, 2021, we had deferred cash rent payments of $22,463, which are included in Other long-term liabilities on the consolidated balance sheets.
Recently Issued Accounting Standards
In February 2016, the FASB released ASU 2016-02, Leases (Topic 842), completing its project to overhaul lease accounting. The ASU codifies Topic 842, which will replace the guidance in ASC 840. In June 2020, the FASB issued ASU 2020-05, Revenue from Contracts with Customers (Topic 606) and Leases (Topic 842): Effective Dates for Certain Entities, which defers the effective date of ASU 2016-02 for certain entities that have not yet issued their financial statements (or made financial statements available for issuance) reflecting the adoption of ASU 2016-02. The main provision of ASU 2020-05 allows entities to elect to adopt the guidance for fiscal years beginning after December 15, 2021. Early application continues to be permitted, which means that an entity may choose to implement Topic 842 before the deferred effective date. The Company has not adopted Topic 842, which is effective for the Company on July 4, 2022 (the beginning of the Company’s fiscal year 2023). While the Company expects the adoption of Topic 842 to add right-of-use assets and lease liabilities to the consolidated balance sheet, it is currently evaluating the implications of this standard.
Emerging Growth Company Accounting Election
Section 102(b)(1) of the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”) exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies are required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company can choose not to take advantage of the extended transition period and comply with the requirements that apply to non-emerging growth companies, and any such election to not take advantage of the extended transition period is irrevocable. Isos is an “emerging growth company” as defined in Section 2(a) of the Securities Act of 1933, as amended, and has elected to take advantage of the benefits of this extended transition period. Following the consummation of the Business Combination, Bowlero is expected to remain an emerging growth company at least through the end of the 2022 fiscal year and is expected to continue to take advantage of the benefits of the extended transition period. This may make it difficult or impossible to compare Bowlero’s financial results with the financial results of another public company that is either not an emerging growth company or is an emerging growth company that has chosen not to take advantage of the extended transition period exemptions for emerging growth companies because of the potential differences in accounting standards used.
202
Table of Contents
MANAGEMENT OF NEW BOWLERO FOLLOWING THE BUSINESS COMBINATION
Management and Board of Directors
Upon consummation of the Business Combination, the business and affairs of New Bowlero will be managed by or under the direction of New Bowlero Board. The directors and executive officers of New Bowlero Board upon consummation of the Business Combination will include the following.
|
Name
|
|
Age
|
|
Position
|
|
Thomas F. Shannon
|
|
56
|
|
Chairman, Chief Executive Officer, Director
|
|
Brett I. Parker
|
|
43
|
|
President, Chief Financial Officer, Secretary, Treasurer and Director
|
|
Nicole Weinberger
|
|
37
|
|
Chief Customer Officer & CEO, Professional Bowlers Association
|
|
Michael J. Angelakis
|
|
57
|
|
Director
|
|
George Barrios
|
|
56
|
|
Director
|
|
Robert J. Base
|
|
72
|
|
Director
|
|
Sandeep Mathrani
|
|
59
|
|
Director
|
|
Rachael A. Wagner
|
|
39
|
|
Director
|
|
Michelle Wilson
|
|
56
|
|
Director
|
|
John A. Young
|
|
56
|
|
Director
|
Thomas F. Shannon is the founder, Chairman, Chief Executive Officer and a director of Bowlero. Mr. Shannon will become a director of New Bowlero upon consummation of the Business Combination. Mr. Shannon founded Bowlero with the acquisition of Bowlmor Lanes in 1997 and has grown Bowlero into the world’s largest operator of bowling entertainment centers. Mr. Shannon is a graduate of the American University and has an MBA from the Darden School at the University of Virginia.
Brett I. Parker has been the Chief Financial Officer of Bowlero since 2001, and subsequently promoted to Vice Chairman, President, Chief Financial Officer and Secretary. He will serve as President, Chief Financial Officer, Secretary and Treasurer of New Bowlero. Mr. Parker is also a director of Bowlero and he will become a director of New Bowlero upon consummation of the Business Combination. Prior to joining Bowlero, Mr. Parker worked for RehabManager.com as business development analyst. Mr. Parker is a graduate of Cornell University with a Bachelor of Science degree in Applied Economics and Business Management with a concentration in Business Management and Marketing.
Nicole Weinberger has been the Chief Customer Officer of Bowlero since 2017, and has served as the Chief Executive Officer of the Professional Bowlers’ Association since 2019. She will serve as Chief Customer Officer of New Bowlero, and will continue to serve as the Chief Executive Officer of the Professional Bowlers’ Association. Ms. Weinberger has also been a founding member of Chief, a think tank for women leaders in business, since 2019. Prior to her current roles, Ms. Weinberger was a Vice President of Marketing for Bowlmor AMF from 2013 until 2017. Ms. Weinberger is a graduate of Tulane University with a Bachelor of Arts degree in Communications.
Michael J. Angelakis has been a director of Bowlero since 2017. Mr. Angelakis will become a director of New Bowlero upon consummation of the Business Combination. He is the Chairman and Chief Executive Officer of Atairos. He also serves as a Senior Advisor to the Executive Management Committee of Comcast Corporation. Prior to founding Atairos, he served as Comcast’s Vice Chairman and Chief Financial Officer. In those roles, Michael was responsible for many strategic, financial, administrative and other areas within the Comcast. During his tenure at Comcast, Michael was recognized by Institutional Investor magazine as one of “America’s Best Chief Financial Officers” six out of eight years. Prior to joining Comcast, Michael served as a Managing Director and a member of the Management and Investment Committees of Providence Equity Partners, one of the leading private equity firms investing in technology, media and communications companies around the world. Before joining Providence, Michael was Chief Executive Officer of State Cable TV Corporation and Aurora Telecommunications. He also served as Vice President at Manufacturers Hanover Trust Company in New York, where he oversaw one of the bank’s media and communications portfolios. Additionally, Michael spent several years in London developing Manufacturers Hanover’s acquisition finance and merchant banking activities throughout Western Europe. He is a member of the Board of Directors of the following public companies: Exxon Mobil Corporation (NYSE: XOM) and TriNet Group (NYSE: TNET), as well as the following private companies: Arcis Golf, Learfield IMG College, The Orogen Group, ProQuest Corporation, and Spectra Holdings. Previously, Michael was the Chairman of the
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Board for the Federal Reserve Bank of Philadelphia, a member of the Board of Directors of Duke Energy, Groupon Corporation (NASDAQ: GRPN), and Hewlett Packard Enterprises (NYSE: HPE), and a trustee of Babson College. Michael is a graduate of Babson College and the Owner/President Management Program at the Harvard Business School.
Robert J. Bass will become a director of New Bowlero upon closing of the Business Combination. Mr. Bass served as a vice chairman of Deloitte & Touche LLP from 2006 through June 2012, and was a partner in Deloitte from 1982 through June 2012, where he specialized in e-commerce, mergers and acquisitions, SEC filings and related issues. At Deloitte, Mr. Bass was responsible for all services provided to Forstmann Little and its portfolio companies and was the advisory partner for Blackstone, DIRECTV, 24 Hour Fitness, McKesson, IMG and CSC. In addition, he has been an advisory partner for RR Donnelley, Automatic Data Processing, Community Health Systems, and Avis Budget. Mr. Bass has served on the board of directors of Groupon (NASDAQ: GRPN) since June 2012, and is both a member of the compensation committee and chairman of the audit committee. He has served as a member of the audit committee of Apex Tool Group, LLC since December 2014, including as chairman of the audit committee since April 2015 and the board of directors and as chairman of the audit committee of Redfin Corporation (NASDAQ: RDFN) since October 2016. Mr. Bass has also served on the board of trustees of Blackstone Secured Lending Fund since July 2018 and is chairman of the audit committee and a member of the nominating/governance committee and the compensation committee. He has served on the board of trustees of Blackstone Private Credit Fund since August 2020 and is chairman of the audit committee and a member of the nominating/governance committee and the compensation committee. Previously, Mr. Bass served on the board of directors of Sims Metal Management (ASX: SGM.AX) from September 2013 to December 2018 and was a member of the risk and audit committee from September 2013, including serving as chairman of the risk and audit committee from November 2014, and he also served on the board of directors and as chairman of the audit committee of New Page Corporation from January 2013 (emergence from chapter XI) to January 2015 (sale of the company). Mr. Bass is a certified public accountant licensed in New York and Connecticut. He is a member of the American Institute of Certified Public Accountants and the Connecticut State Society of Certified Public Accountants.
George Barrios will become a director of New Bowlero upon consummation of the Business Combination. He has been the Co-Chief Executive Officer of Isos since inception. Mr. Barrios most recently served as Co-President of the WWE from February 2018 to January 30, 2020. Prior to his current position, he was the Chief Strategy & Financial Officer of the WWE from November 2013 to February 2018, and Chief Financial Officer from March 2008 to November 2013. Before that, he was Vice President and Treasurer of The New York Times Company from January 2007 to March 2008. Mr. Barrios joined The New York Times Company in April 2002 as Chief Financial Officer of a subsidiary, which published, among other things, The Boston Globe. Prior to that, he was President and Chief Operating Officer of Netsilicon, Inc. from September 2000 to September 2001, a publicly held software development company, where he helped to stabilize the business prior to its merger with Digi International Inc. in 2001. From 1994 to 2000, Mr. Barrios served in several senior capacities for Praxair, Inc., a large supplier of industrial gasses. Earlier in his career, he held various leadership roles in strategy and operations at Time Warner/HBO, Inc. Mr. Barrios holds a B.A. degree and an M.B.A. from the University of Connecticut.
Sandeep Mathrani will become a director of New Bowlero upon consummation of the Business Combination. Mr. Mathrani currently serves as the WeWork (NYSE: WEWK) CEO and a member of its board since February 2020. Prior to WeWork, he served as CEO of Brookfield Properties Retail Group and as Vice Chairman, Brookfield Properties from August 2018 to February 2020. Prior to that, he served as CEO of GGP Inc. for eight years, during which he oversaw the company’s strategic rebranding in 2017 to a retail real estate company, as well as the successful $9.25 billion acquisition of GGP by Brookfield Property Partners in 2018. Before joining GGP in 2010, Mr. Mathrani was President of Retail for Vornado Realty Trust, where he oversaw the firm’s U.S. retail real estate division. Before that, he spent nearly a decade as Executive Vice President at Forest City Ratner. Mr. Mathrani currently serves as a member of the board of directors of Dick’s Sporting Goods (NYSE: DKS) and Tanger Factory Outlet Center, Inc. (NYSE: SKT). Mr. Mathrani served on the executive board and the board of trustees for the International Council of Shopping Centers, the executive board and 2019 chair of the National Association of Real Estate Investment Trusts, as well as on the board of directors for Host Hotels & Resorts, Inc. (Nasdaq: HST). He holds a Master of Engineering, Master of Management Science and Bachelor of Engineering from Stevens Institute of Technology.
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Rachael A. Wagner has been a director of Bowlero since 2017. Ms. Wagner will become a director of New Bowlero upon consummation of the Business Combination. She is a Partner at Atairos. Ms. Wagner joined Atairos from Lindsay Goldberg, where she participated in all major investment functions, including origination, transaction execution and portfolio company development. Ms. Wagner was a Managing Director at Lindsay Goldberg and served as a Director on several portfolio company boards across a wide range of industries, including food & beverage manufacturing, specialty distribution, government services, and downstream energy. Prior to joining Lindsay Goldberg, Ms. Wagner worked at Lion Capital and in the Private Equity group at Blackstone. She previously served as a member of the Board of Directors of Oxford University’s Saïd Business School and as a member of the Council on Foreign Relations. Ms. Wagner is a member of the Board of Directors of Arcis Golf. She received her Master of Business Administration degree and an MSc in Comparative Social Policy from Oxford University, where she was a Rhodes Scholar, and her Bachelor’s degree from Harvard University.
Michelle Wilson will become a director of New Bowlero upon consummation of the Business Combination. Michelle Wilson has been the Co-Chief Executive Officer of Isos since inception. Prior to her position with ISOS, Ms. Wilson served as Co-President and Board member at WWE from February 2018 to January 2020. She served as Chief Revenue & Marketing Officer from November 2013 to February 2018, and Chief Marketing Officer from February 2009 to February 2018. From August 2001 to February 2009, she was Chief Marketing Officer of the United States Tennis Association where she was instrumental in making the U.S. Open the highest attended annual sporting event in the world with more than 700,000 fans in attendance every year. She was pivotal in the implementation of several innovations for the sport, including in-stadium video screens, blue courts, instant replay and the 2004 launch of the U.S. Open Series. From April 2000 to July 2001, she was Vice President of Marketing for the XFL. Earlier in her career, Ms. Wilson held positions at the National Basketball Association in its domestic and international consumer products groups as well as roles at Nabisco and Johnson & Johnson. Ms. Wilson holds a B.S.E. in Chemical Engineering from the University of Pennsylvania and an M.B.A. from the Harvard Business School.
John A. Young has been a director of Bowlero and its predecessor entities since 2013. Mr. Young will become a director of New Bowlero upon consummation of the Business Combination. He is the retired President, CEO and Director of Colfax Corporation (NYSE:CFX). He was one of the co-founders of Colfax and served as its Chief Financial Officer from 1995 to 2000 and Chief Executive Officer from 2000 until 2010. After leaving Colfax, he served as a Senior Advisor to Oaktree Capital Management from 2011 until 2016 and has been a director of multiple privately owned businesses in the industrial, recreational products and healthcare industries. Prior to employment with Colfax, Mr. Young was Director of Corporate Development at AMF Industries and was an M&A Associate at Chase Manhattan Bank. Mr. Young is a graduate of the University of Virginia with a Bachelor of Science Degree in Finance from the McIntire School and an MBA from the Darden School, where he was a Shermet Scholar.
Role of Board in Risk Oversight
The board of directors has extensive involvement in the oversight of risk management related to us and our business and accomplishes this oversight through the regular reporting to the board of directors by the audit committee. The audit committee represents the board of directors by periodically reviewing our accounting, reporting and financial practices, including the integrity of our financial statements, the surveillance of administrative and financial controls and our compliance with legal and regulatory requirements. Through its regular meetings with management, including the finance, legal, internal audit and information technology functions, the audit committee reviews and discusses all significant areas of our business and summarizes for the board of directors all areas of risk and the appropriate mitigating factors. In addition, our board of directors receives periodic detailed operating performance reviews from management.
Controlled Company
After completion of the Business Combination, Mr. Shannon, directly or indirectly, will continue to control more than 50% of our combined voting power. As a result, New Bowlero will be a “controlled company” for the purposes of NYSE’s rules and corporate governance standards. As a “controlled company,” we will be permitted not to comply with certain corporate governance requirements, including (1) those that would otherwise require our board of directors to have a majority of independent directors, (2) those that would require that we establish a compensation committee composed entirely of independent directors and with a written charter addressing the committee’s purpose and responsibilities and (3) those that would require we have a nominating and corporate
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governance committee comprised entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities, or otherwise ensure that the nominees for directors are determined or recommended to our board of directors by the independent members of our board of directors. Although we do not currently intend to available ourselves of any of the exemptions available to controlled companies, we may choose to do so in the future at our discretion. Accordingly, you will not have the same protections afforded to stockholders of companies that are subject to all of these corporate governance requirements. In the event that we cease to be a “controlled company” and our shares of common stock continue to be listed on NYSE, we will be required to comply with these provisions within the applicable transition periods if we had chosen to utilize any of these exemptions.
Director Independence
Upon consummation of the Business Combination, we expect our independent directors, as such term is defined by the NYSE rules, will be Robert J. Bass, Sandeep Mathrani, John A. Young, Michael J. Angelakis and Rachael A. Wagner.
Board Composition
Upon consummation of the Business Combination, the New Bowlero Board will consist of nine members. The authorized number of directors may be increased or decreased by our board of directors in accordance with our certificate of incorporation. At any meeting of the board of directors, except as otherwise required by law, a majority of the total number of directors then in office will constitute a quorum for all purposes.
The Stockholders Agreement grants each of Atairos and TS, which is controlled by Mr. Shannon, the right to designate nominees for election to our board of directors. The number of nominees that each of Atairos and TS will be entitled to nominate pursuant to the Stockholders Agreement is dependent on their respective beneficial ownership of the New Bowlero Class A common stock and the New Bowlero Class B common stock. For so long as Atairos and its affiliates own (i) 15% or more of the combined New Bowlero Class A common stock and the New Bowlero Class B common stock, Atairos will be entitled to designate three directors to our board of directors and (ii) less than 15% but at least 5%, Atairos will be entitled to designate one director to our board of directors. For so long as TS and its affiliates own (i) 15% or more of the combined New Bowlero Class A common stock and the New Bowlero Class B common stock, TS will be entitled to designate three directors our board of directors and (ii) less than 15% but at least 5%, TS will be entitled to designate one director to our board of directors.
Upon consummation of the Business Combination, Atairos designees to the New Bowlero Board will be Michael J. Angelakis, Rachael A. Wagner and Robert J. Bass. TS designees to the New Bowlero Board will be Thomas F. Shannon, Brett I. Parker and Sandeep Mathrani.
Board Committees
Following the completion of the Business Combination, the board committees will include an audit committee, a compensation committee and a nominating and corporate governance committee.
Audit Committee
Following the completion of the Business Combination, our audit committee will consist of Robert J. Bass (chair), John A. Young and . Our board of directors has determined that Robert J. Bass qualifies as an “audit committee financial expert” as such term is defined in Item 407(d)(5) of Regulation S-K and that Robert J. Bass, John A. Young and are independent as defined in Rule 10A-3 of the Exchange Act and under NYSE listing standards. The principal duties and responsibilities of our audit committee will be as follows:
• to prepare the annual audit committee report to be included in our annual proxy statement;
• to oversee and monitor our financial reporting process;
• to oversee and monitor the integrity of our financial statements and internal control system;
• to oversee and monitor the independence, retention, performance and compensation of our independent registered public accounting firm;
• to oversee and monitor the performance, appointment and retention of our internal audit function;
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• to discuss, oversee and monitor policies with respect to risk assessment and risk management;
• to oversee and monitor our compliance with legal and regulatory matters; and
• to provide regular reports to the board.
The audit committee will also have the authority to retain counsel and advisors to fulfill its responsibilities and duties and to form and delegate authority to subcommittees.
Compensation Committee
Following the completion of the Business Combination, our compensation committee will consist of John A. Young (chair), and (the “Compensation Committee”). The principal duties and responsibilities of the Compensation Committee will be as follows:
• to review and make recommendations to the full board of directors regarding our compensation policies and programs;
• to review and approve the compensation of our chief executive officer and other officers, including all material benefits, option or stock award grants and perquisites and all material employment agreements;
• to review and approve our incentive compensation plans, pension plans and equity-based compensation plans;
• to administer incentive compensation, pension plans and equity-based compensation plans;
• to review and approve financial and other performance targets that must be met;
• to review and make recommendations to the full board of directors regarding compensation of non-executive directors; and
• to prepare an annual compensation committee report and take such other actions as are necessary and consistent with the governing law and our organizational documents.
Nominating and Corporate Governance Committee
Following the completion of the Business Combination, our nominating and corporate governance committee will consist of, and Michael J. Angelakis. The principal duties and responsibilities of the nominating and corporate governance committee will be as follows:
• to identify candidates qualified to become directors of the Company, consistent with criteria approved by our board of directors;
• to review and recommend to the board of directors a succession plan for the chief executive officer and other executive officers;
• to recommend to our board of directors nominees for election as directors at the next annual meeting of stockholders or a special meeting of stockholders at which directors are to be elected, as well as to recommend directors to serve on the committees of the board;
• to recommend to our board of directors candidates to fill vacancies and newly created directorships on the board of directors;
• to develop, review and assess annually the adequacy of the Company’s corporate governance principles and guidelines and recommend to our board of directors any changes deemed appropriate; and
• to oversee the evaluation of our board of directors.
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Code of Business Conduct and Ethics
Following the completion of the Business Combination, our board of directors will adopt a code of business conduct and ethics that will apply to all of our directors, officers and employees and is intended to comply with the relevant listing requirements for a code of conduct, as well as qualify as a “code of ethics” as defined by the rules and regulations of the SEC and NYSE. The code of business conduct and ethics will contain general guidelines for conducting our business consistent with the highest standards of business ethics. We intend to disclose future amendments to certain provisions of our code of business conduct and ethics, or waivers of such provisions applicable to any principal executive officer, principal financial officer, principal accounting officer and controller or persons performing similar functions, and our directors, on our website at https://www.bowlero.com. Following the completion of the Business Combination, the code of business conduct and ethics will be available on our website.
Compensation Committee Interlocks and Insider Participation
No member of the compensation committee was at any time during fiscal year 2021, or at any other time, one of our officers or employees. We are parties to certain transactions with Atairos and TS described in “Certain Relationships and Related Person Transactions.” None of our executive officers has served as a director or member of a compensation committee (or other committee serving an equivalent function) of any entity, one of whose executive officers served as a director of our board of directors or member of our compensation committee.
Limitation on Liability and Indemnification Matters
New Bowlero’s articles of incorporation that will become effective immediately following the consummation of the Business Combination contain provisions that limit the liability of the directors of the New Bowlero for damages to the fullest extent permitted by Delaware law. Consequently, New Bowlero’s directors will not be personally liable to New Bowlero or its stockholders for damages as a result of an act or failure to act in his or her capacity as a director, unless:
• the presumption that directors are acting in good faith, on an informed basis, and with a view to the interests of New Bowlero has been rebutted; and
• it is proven that the directors’ act or failure to act constituted a breach of his or her fiduciary duties as a director and such breach involved intentional misconduct, fraud or a knowing violation of law.
Compensation of Directors and Officers
Following the completion of the Business Combination, we expect New Bowlero’s executive compensation program will reflect Bowlero’s compensation policies and philosophies, as they may be modified and updated from time to time.
Following the completion of the Business Combination, we expect that decisions with respect to the compensation of our executive officers, including our named executive officers, will be made by the compensation committee of New Bowlero Board. Bowlero’s executive compensation programs for the fiscal year 2021 are further described below under “Executive Compensation — Bowlero’s Executive Officer and Director Compensation.”
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EXECUTIVE COMPENSATION
Isos’s Executive Officer and Director Compensation
None of our executive officers or directors have received any cash compensation for services rendered to us. Our sponsor, executive officers and directors, or any of their respective affiliates will be reimbursed for any out-of-pocket expenses incurred in connection with activities on our behalf such as identifying potential partner businesses and performing due diligence on suitable business combinations. For the period from the closing of the IPO through the earlier of consummation of our initial business combination and our liquidation, we pay an affiliate of our sponsor $51,667 per month for office space, secretarial, administrative and due diligence and related services provided to members of our management team. Our audit committee reviews on a quarterly basis all payments that were made by us to our sponsor, executive officers or directors, or our or their affiliates. Any such payments prior to an initial business combination are made using funds held outside the trust account. Other than quarterly audit committee review of such reimbursements, we have not, and do not expect to have any, additional controls in place governing our reimbursement payments to our directors and executive officers for their out-of-pocket expenses incurred in connection with our activities on our behalf in connection with identifying and consummating an initial business combination. Other than these payments and reimbursements, no compensation of any kind, including finder’s and consulting fees, will be paid by the company to our sponsor, executive officers and directors, or any of their respective affiliates, prior to completion of our initial business combination.
For more information about the interests of the Sponsor and Isos’s directors and officers in the Business Combination, see the section titled “The BCA Proposal — Interests of the Sponsor Related Persons in the Business Combination.”
Bowlero’s Executive Officer and Director Compensation
Summary Compensation Table
The following table presents information regarding the compensation of the named executive officers of Bowlero Corp. for the fiscal year ended June 27, 2021.
|
Name and Principal Position
|
|
Year
|
|
Salary
($)
|
|
Non-Equity Incentive Plan Compensation ($)(1)
|
|
All Other Compensation ($)(2)
|
|
Total
($)
|
|
Thomas F. Shannon
Chairman & Chief Executive Officer, Director
|
|
2021
|
|
1,232,862
|
|
2,377,757
|
|
49,822
|
|
1,282,684
|
|
Brett I. Parker
Vice Chairman, President, Chief Financial Officer, Secretary and Director
|
|
2021
|
|
968,634
|
|
1,868,229
|
|
29,052
|
|
997,686
|
|
Nicole Weinberger
Chief Customer Officer & CEO, Professional Bowlers Association
|
|
2021
|
|
319,538
|
|
100,838
|
|
3,806
|
|
323,344
|
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Outstanding Equity Awards at Fiscal Year End
The following table provides information about the options to purchase shares of common stock of Bowlero Corp. granted to the named executive officers of Bowlero Corp. under the 2017 Plan (as defined below) that were outstanding as of June 27, 2021.
|
Thomas F. Shannon
|
|
169,723
—
—
—
|
|
24,246
—
—
—
|
|
64,656
143,457
492,619
541,881
|
|
77.62
102.51
196.72
335.13
|
|
09/27/2029
01/07/2032
01/07/2032
01/07/2032
|
|
Brett I. Parker
|
|
56,574
—
—
—
|
|
8,082
—
—
—
|
|
21,552
47,819
164,206
180,627
|
|
77.62
102.51
196.72
335.13
|
|
09/27/2029
01/07/2032
01/07/2032
01/07/2032
|
|
Nicole Weinberger
|
|
1,810
|
|
259
|
|
690
|
|
77.62
|
|
09/27/2029
|
Employment Agreements with Named Executive Officers
Bowlero Corp. entered into an employment agreement, dated as of June 6, 2017, with each of Mr. Shannon and Mr. Parker. We anticipate that either Isos or Bowlero Corp. will enter into a new employment agreement with each executive, which will become effective on the consummation of the Business Combination, and which will supersede the executive’s current employment agreement. Each of the new employment agreements is expected to be substantially in the form of the executive’s current employment agreement, with such additions, variations and changes as Bowlero Corp. and the executive, in consultation with Isos, mutually agree. The following is a summary of the material terms of each executive’s current employment agreement and his contemplated new agreement.
Thomas F. Shannon
Mr. Shannon’s current employment agreement provides for his employment as President and Chief Executive Officer and his service as a member of the board of directors of Bowlero Corp. (initially, as Chairman). His current title is Chairman, Chief Executive Officer and Director. Under his new employment agreement, he will be employed as founder and Chief Executive Officer of the Company and will be nominated to serve as a member of the board of directors of the Company. The initial term of his current employment agreement is scheduled to expire on the sixth anniversary of the effective date (which is July 3, 2023), subject to automatic renewal for successive one-year periods unless either party provides at least six months’ notice of non-renewal. His new employment agreement will be scheduled to expire on the third anniversary of the effective date, subject to automatic renewal for successive one year periods unless either party provides at least 90 days’ notice of non-renewal.
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Mr. Shannon’s current employment agreement provides for an initial annual base salary of $1,141,865.40, subject to an annual increase of 2% or, if greater, the rate of the consumer price index for the New York-Northern New Jersey-Long Island area. His current base salary is $1,238,415,33. The initial base salary under Mr. Shannon’s new employment agreement will be determined in consultation with an independent compensation consultant, but will not be less than his current base salary, and will be reviewed annually for possible increase. Under his current employment agreement, Mr. Shannon is eligible for an annual bonus for each fiscal year in an amount determined based on actual EBITDA for the year measured against budgeted EBITDA for the year, with a maximum bonus equal to 200% of the target amount. His new employment agreement will set forth target and maximum bonus opportunities, which will be determined in consultation with an independent compensation consultant, with a maximum bonus opportunity of not less than 200% of his current base salary. The actual amount of any bonus that Mr. Shannon earns will be determined by our compensation committee in accordance with the terms of the Company’s annual incentive plan, with overall corporate performance goals the same as for other senior executives.
Under his current employment agreement, Mr. Shannon received an initial equity grant under the 2017 Plan (as defined below) in the form of options to purchase 5.25% of the fully diluted shares of common stock of Bowlero Corp Mr. Shannon’s new employment agreement will provide for an initial equity grant under the Incentive Plan to be determined based on a peer group study to be done by a compensation consultant in consultation with our compensation committee. In addition, Mr. Shannon will receive an option grant with respect to 18,881 (on a pre-conversion basis) of the unallocated shares reserved under the 2017 Plan, to be issued under the Incentive Plan. When converted, this option will relate to Class B shares of our common stock. The estimated number of such shares of New Bowlero Class B common stock is 468,089.
Mr. Shannon’s current employment agreement provides that he is entitled to participate in all employee benefit plans made available to executive officers generally, reimbursement or payment for reasonable expenses incurred by him relating to negotiating and preparing the employment agreement and any related arrangement, four weeks of vacation per year (or such greater vacation benefits as may be provided to other senior executives), and a car allowance of $3,000 per month. His new employment agreement will provide for these same entitlements, except that the agreement will not provide for a car allowance. He will also be entitled to reimbursement or payment for reasonable expenses incurred by him relating to negotiating and preparing the new employment agreement, the Business Combination Agreement and any related arrangements, up to $350,000.
Mr. Shannon’s current employment agreement provides for severance benefits if his employment is terminated by Bowlero Corp. without “cause” or by him for “good reason” (as such terms are defined in the agreement). These severance benefits include (i) continued payment of base salary and car allowance for the greater of 12 months and the remainder of the then-current term of employment, (ii) payment or reimbursement of premiums for him and his eligible dependent for continued health plan coverage under COBRA for the period that the base salary payments continue (but in no event beyond the period that COBRA coverage is required to be provided) and (iii) a prorated portion of the annual bonus for the year in which the termination occurs, to the extent earned based on actual performance. Mr. Shannon’s entitlement to these severance benefits is conditioned on his execution of a mutual release of claims in the form attached to the agreement, and his not materially breaching the restrictive covenants in the agreement (described below). The severance benefits under his new employment agreement will be discussed and confirmed after review with an independent compensation consultant.
The restrictive covenants in Mr. Shannon’s current employment agreement include confidentiality, non-competition, invention assignment and non-solicitation of customers, employees and consultants. Mr. Shannon’s new employment agreement will include similar covenants.
Mr. Shannon’s current employment agreement provides for partial reimbursement of any excise tax imposed on him under Section 4999 of the Internal Revenue Code due to any “excess” payments that he receives in connection with a change in control transaction. The consummation of the Business Combination will not constitute a change in control for this purpose. Mr. Shannon’s new employment agreement will not provide for any such excise tax reimbursement.
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Brett I. Parker
Mr. Parker’s current employment agreement has, and his new employment agreement is expected to have, the same terms as Mr. Shannon’s agreements, except as described below.
Mr. Parker’s current employment agreement provides for his employment as Executive Vice President and Chief Financial Officer and his service as a member of the board of directors of Bowlero Corp. (initially, as Vice Chairman). Mr. Parker was subsequently promoted to Vice Chairman, President, Chief Financial Officer, Secretary and Director. Under his new employment agreement, he will be employed as President and Chief Financial Officer of the Company and will be nominated to serve as a member of the board of directors of the Company. Mr. Parker’s current employment agreement provides for an initial annual base salary of $819,190.32, subject to an annual increase of 2% or, if greater, the rate of the consumer price index for the New York-Northern New Jersey-Long Island area. His current annual base salary is $973,035.90. Under his current employment agreement, Mr. Parker is eligible for an annual bonus for each fiscal year in an amount determined based on actual EBITDA for the year measured against budgeted EBITDA for the year, with a maximum bonus equal to 200% of the target amount. His new employment agreement will set forth target and maximum bonus opportunities, which will be determined in consultation with an independent compensation consultant, with a maximum bonus opportunity of not less than 200% of his current base salary. The actual amount of any bonus that Mr. Parker earns will be determined by our compensation committee in accordance with the terms of the Company’s annual incentive plan, with overall corporate performance goals the same as for other senior executives.
Under his current employment agreement, Mr. Parker received an initial equity grant under the 2017 Plan (as defined below) in the form of options to purchase 1.75% of the fully diluted shares of common stock of Bowlero Corp In addition, Mr. Parker will receive an option grant with respect to 7,162 (on a pre-conversion basis) of the unallocated shares reserved under the 2017 Plan, to be issued under the Incentive Plan. When converted, this option will relate to Class A shares of our common stock. The estimated number of such shares of New Bowlero Class A common stock is 177,551.
Mr. Parker’s current employment agreement provides that he is entitled to participate in all employee benefit plans made available to executive officers generally, reimbursement or payment for reasonable expenses incurred by him relating to negotiating and preparing the employment agreement and any related arrangement, four weeks of vacation per year (or such greater vacation benefits as may be provided to other senior executives), and a car allowance of $1,500 per month, which his new employment agreement will not provide for. He will also be entitled to reimbursement or payment for reasonable expenses incurred by Mr. Parker relating to negotiating and preparing the new employment agreement and any related arrangement, up to $125,000.
Mr. Parker’s current employment agreement provides for severance benefits if his employment is terminated by Bowlero Corp. without “cause” or by him for “good reason” (as such terms are defined in the agreement). These severance benefits include (i) continued payment of base salary and car allowance for the greater of 12 months and the remainder of the then-current term of employment, (ii) payment or reimbursement of premiums for him and his eligible dependent for continued health plan coverage under COBRA for the period that the base salary payments continue (but in no event beyond the period that COBRA coverage is required to be provided) and (iii) a prorated portion of the annual bonus for the year in which the termination occurs, to the extent earned based on actual performance. Mr. Parker’s entitlement to these severance benefits is conditioned on his execution of a mutual release of claims in the form attached to the agreement, and his not materially breaching the restrictive covenants in the agreement (described below). The severance benefits under his new employment agreement will be discussed and confirmed after review with an independent compensation consultant.
The restrictive covenants in Mr. Parker’s current employment agreement include confidentiality, non-competition, invention assignment and non-solicitation of customers, employees and consultants. Mr. Parker’s new employment agreement will include similar covenants.
Mr. Parker’s current employment agreement provides for partial reimbursement of any excise tax imposed on him under Section 4999 of the Internal Revenue Code due to any “excess” payments that he receives in connection with a change in control transaction. The consummation of the Business Combination will not constitute a change in control for this purpose. Mr. Parker’s new employment agreement will not provide for any such excise tax reimbursement.
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Bowlmor AMF Corp. 2017 Stock Incentive 2017 Plan
The Bowlmor AMF Corp. 2017 Stock Incentive 2017 Plan (the “2017 Plan”) was adopted on September 29, 2017, and was last amended on January 7, 2020. The 2017 Plan provides for the discretionary grant of stock options and other share-based awards to key employees and other service providers of Bowlero Corp.
Pursuant to the Business Combination Agreement, New Bowlero will assume the 2017 Plan as of the Effective Time, and each stock option granted under the 2017 Plan that is outstanding as of immediately prior to the Effective Time for which the holder elected to have assumed by New Bowlero will be assumed by New Bowlero and converted into an option, issued under the 2017 Plan, to purchase shares of New Bowlero common stock and the contingent right to receive a number of Earnout Shares following the Closing (see “The BCA Proposal — The Business Combination Agreement — Conversion/Exchange of Securities”).
Authorized Shares. The maximum number of shares of common stock of Bowlero Corp. that may be issued under the 2017 Plan is 2,036,158 shares. To the extent that any shares covered by an award are not issued because the award is forfeited, canceled or expires without being exercised, such shares will not be deemed to have been issued for purposes of determining the maximum number of shares available for issuance under the 2017 Plan. The maximum number of shares that may be issued under incentive stock options is 200,000 shares. No new awards will be granted under the 2017 Plan once the Business Combination is consummated.
Administration. The board of directors of Bowlero Corp., or a duly authorized committee thereof, has the authority to administer the 2017 Plan. The plan authorizes the administrator to determine which eligible persons are to receive awards, the types of award, the number of shares covered by each award, the provisions of the award agreements, and the terms, conditions, performance criteria and restrictions of the award; to modify, amend, cancel or suspend awards; to interpret the plan; to prescribe, amend and rescind any rules and regulations relating to the plan; to determine to what extent and under what circumstances awards may be settled in cash, shares or other property; to determine whether, to what extent and under what circumstances amounts payable with respect to any award will or may be deferred; to cancel and regrant, accelerate vesting or otherwise adjust the exercise price of an award previously granted under the plan; and to make all other determinations and findings deemed necessary or advisable for the administration of the plan. The administrator may waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any award granted under the plan, provided that any such action that materially adversely impairs the rights of any participant requires the consent of the participant.
Stock Options. The administrator is authorized to grant stock options under the 2017 Plan, which will be evidenced by an award agreement. Unless otherwise determined by the administrator with respect to a stock option that is intended to be subject to Section 409A of the Code, the exercise price per share of a stock option may not be less than the fair market value of a share on the date of grant. The terms and conditions of a stock option, including the number of shares, the vesting schedule (including treatment on termination of service), the terms and conditions on which the option will be exercisable, and the expiration date, will be set forth in the award agreement. A participant may exercise an option by paying the exercise price in cash or, solely to the extent permitted by the award agreement or otherwise by the administrator, (i) in shares of common stock of Bowlero Corp. owned by the participant or which may be received by the participant upon the exercise of the option, (ii) in other property acceptable to the administrator or (iii) by any combination thereof.
Adjustments for Certain Transactions. If any corporate transaction or distribution (including, without limitation, any stock split, stock dividend, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split up, spin off, repurchase, combination or exchange of shares of common stock or other securities of Bowlero Corp., or sale or transfer of all or substantially all of Bowlero Corp.’s assets or business, but not including ordinary cash dividends) affects the shares of common stock of Bowlero Corp. such that an adjustment is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the 2017 Plan, then the administrator will (a) in such manner as it may deem equitable, adjust any or all of (i) the number of shares of common stock or other securities of Bowlero Corp. (or number and kind of other securities or property) with respect to which awards may be granted under the plan, (ii) the number of shares of common stock or other securities of Bowlero Corp. (or number and kind of other securities and property) subject to outstanding awards and (iii) the exercise price or other terms and conditions of any award or (b) if deemed appropriate, may make provision for a cash payment to the holder of an outstanding award in full satisfaction of such award.
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Change in Control. In the event of a “change in control” (as defined in the 2017 Plan), the administrator has full discretion, subject to applicable regulatory approvals and the terms of any award agreement, to take whatever actions it deems necessary or appropriate with respect to outstanding awards, including: (a) to provide for full or partial accelerated vesting of any award or portion thereof, either immediately prior to the change in control or following the change in control; (b) to provide for the assumption of an award (or portions thereof) or the issuance of substitute awards with similar rights and features of the surviving or acquiring company; (c) to provide for the cash-out and cancelation of any vested award (or portion thereof) immediately prior to the change in control, which cash-out may be subject to any escrow, earn-out or other contingent or deferred payment arrangement that is contemplated by the change in control; (d) subject to any special vesting provisions of the applicable award agreement, to cancel, without consideration, any unvested award and any other award that is not otherwise exercised on or prior to the change in control; or I subject to any express provisions of the applicable award agreement, to take any other actions as the administrator deems necessary or advisable in connection with the change in control, including taking different actions with respect to different participants, awards and portions of awards.
Transferability. Except as otherwise expressly permitted by the administrator, no award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a participant other than by will or by the laws of descent and distribution. A stock option may be exercised during the lifetime of the participant only by him or her or by his or her legal representative.
Amendment and Termination of the Plan. The board of directors of Bowlero Corp. may at any time amend, suspend or terminate the 2017 Plan. However, no such amendment, alteration, suspension, discontinuation or termination may be made without approval by the stockholders of Bowlero Corp. if such approval is necessary to comply with any tax or regulatory requirement for which or with which the board of directors deems it necessary or desirable to qualify or comply. In addition, any such amendment, alteration, suspension, discontinuation or termination that would materially adversely impair the rights of any participant requires the consent of the participant. The 2017 Plan will continue in effect until July 3, 2027, unless earlier terminated by the board of directors; provided that, following any termination of the plan, the terms of the plan will continue to apply to any award for as long as the award remains outstanding pursuant to its terms. Following the Closing, no further grants will be made under the 2017 Plan.
Transaction Bonuses
Bowlero Corp. entered into a letter agreement, dated July 1, 2021, with each of Mr. Shannon and Mr. Parker, which provides for a transaction bonus payable upon the consummation of the Business Combination. The amount of Mr. Shannon’s bonus is $28,456,250, and is payable 50% in cash and 50% in the form of fully vested shares of New Bowlero Class B common stock. The amount of Mr. Parker’s bonus is $10,793,750, and is payable in cash. If the employment of Mr. Shannon or Mr. Parker is terminated by Bowlero Corp. for “cause” or by the executive without “good reason” (as such terms are defined in the executive’s employment agreement) prior to the Closing, he will not be eligible to receive the transaction bonus.
Director Compensation
Independent directors of the Company are paid $72,000 annually in advance in quarterly installments. Mr. John Young was the Company’s only independent director for a six year period of employment.
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BENEFICIAL OWNERSHIP OF SECURITIES
The following table sets forth information regarding the beneficial ownership of Isos ordinary shares as of August 31, 2021 by:
• each person who is known to be the beneficial owner of more than 5% of Isos ordinary shares;
• each of Isos’s current executive officers and directors; and
• all executive officers and directors of Isos as a group pre-Business Combination.
Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within 60 days.
The beneficial ownership of Isos ordinary shares pre-Business Combination is based on 31,854,625 Isos ordinary shares issued and outstanding as of August 31, 2021, which includes an aggregate of 6,370,925 Isos Class B ordinary shares outstanding as of such date.
Pre-Business Combination Beneficial Ownership Table of Isos
|
|
|
Isos Class A
ordinary shares
|
|
Isos Class B
ordinary shares(6)
|
|
Approximate Percentage of outstanding ordinary shares
|
|
Name and Address of Beneficial Owner(1)
|
|
Number of Shares Beneficially Owned
|
|
% of Class
|
|
Number of Shares Beneficially Owned
|
|
% of Class
|
|
|
Directors and Executive Officers
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
George Barrios(2)
|
|
—
|
|
*
|
%
|
|
5,814,636
|
|
91.3
|
%
|
|
18.3
|
%
|
|
Michelle Wilson(2)(3)
|
|
100
|
|
*
|
|
|
5,814,636
|
|
91.3
|
|
|
18.3
|
|
|
Derek Chang
|
|
—
|
|
*
|
|
|
—
|
|
*
|
|
|
*
|
|
|
Barbara Daniel
|
|
—
|
|
*
|
|
|
—
|
|
*
|
|
|
*
|
|
|
Jacqueline Hernandez
|
|
—
|
|
*
|
|
|
—
|
|
*
|
|
|
*
|
|
|
Perkins Miller
|
|
—
|
|
*
|
|
|
—
|
|
*
|
|
|
*
|
|
|
Dan Reed
|
|
—
|
|
*
|
|
|
—
|
|
*
|
|
|
*
|
|
|
John Rose
|
|
—
|
|
*
|
|
|
—
|
|
*
|
|
|
*
|
|
|
All executive officers and directors as a group (8 individuals)
|
|
—
|
|
*
|
%
|
|
5,814,636
|
|
91.3
|
%
|
|
18.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5% or More Shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Isos Acquisition Sponsor LLC
|
|
—
|
|
*
|
%
|
|
5,814,636
|
|
91.3
|
%
|
|
18.3
|
%
|
|
Millenium Group Management LLC(4)
|
|
1,225,000
|
|
4.8
|
%
|
|
—
|
|
*
|
|
|
3.8
|
%
|
|
Citadel Advisors LLC and related persons and entities(5)
|
|
1,684,549
|
|
6.6
|
%
|
|
—
|
|
*
|
|
|
5.3
|
%
|
|
Sculptor Capital LP(5)
|
|
1,508,666
|
|
5.9
|
%
|
|
—
|
|
*
|
|
|
4.7
|
%
|
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Table of Contents
The following table set forth information regarding the expected beneficial ownership of shares of New Bowlero common stock immediately following consummation of the Business Combination (assuming a “no redemption” scenario and assuming a “maximum redemption” scenario as described below) by:
• each person who is expected to be the beneficial owner of more than 5% of New Bowlero’s common shares
• each person who will become an executive officer or director of New Bowlero post-Business Combination; and
• all executive officers and directors of New Bowlero post-Business Combination.
Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within 60 days.
The expected beneficial ownership of New Bowlero’s common stock post-Business Combination assumes two scenarios:
• Assuming No Redemption: This presentation assumes that no shares of Isos Class A ordinary shares are redeemed in connection with the Business Combination.
• Assuming Maximum Redemption: This presentation assumes that 7,983,800 shares of Isos Class A ordinary shares are redeemed in connection with the Business Combination.
The “No Redemption” scenario assumes 31,048,995 shares of New Bowlero Class A common stock being issued to existing Isos shareholders in the Business Combination (representing the total number of issued and outstanding Isos ordinary shares, less 805,630 shares being forfeited at Closing), and the “Maximum Redemption”
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Table of Contents
scenario assumes 21,725,174 shares of New Bowlero Class A common stock being issued to Isos shareholders in the Business Combination (representing the total number of issued and outstanding shares, less 2,145,651 shares being forfeited at Closing and the assumed maximum of 7,983,800 shares being redeemed), in each case based on the number of Isos ordinary shares outstanding as of June 30, 2021, as well as the issuance and sale of 15,000,000 shares of New Bowlero Class A common stock to the Common PIPE Investors and the issuance and sale of 10,000,000 shares of New Bowlero Class A common stock pursuant to the Forward Purchase Contract.
Based on the foregoing assumptions, we estimate that there would be 112,956,515 shares of New Bowlero Class A common stock and 62,392,209 shares of New Bowlero Class B common stock issued and outstanding immediately following the consummation of the Business Combination in the “no redemption” scenario, and 112,286,509 shares of New Bowlero Class A common stock and 63,062,215 shares of New Bowlero Class B common stock issued and outstanding immediately following the consummation of the Business Combination in the “maximum redemption” scenario. If the actual facts are different from the foregoing assumptions, ownership figures in New Bowlero and the columns under “Following the Business Combination, the PIPE Offerings and the Forward Purchase Contract transaction” in the table that follows will be different. The following table does not reflect the beneficial ownership of any shares of New Bowlero Class A common stock issuable upon exercise of public warrants or private placement warrants, including those to be purchased pursuant to the Forward Purchase Contract, as such securities are not exercisable or convertible within 60 days of , 2021.
Unless otherwise indicated, Bowlero believes that all persons named in the table below have sole voting and investment power with respect to the voting securities beneficially owned by them.
|
|
|
Beneficial Ownership Table of Bowlero Following the Business Combination, the PIPE Offering
and the Forward Purchase Contract transaction
|
|
New Bowlero
Class A
common stock
(Assuming No
Redemption)
|
|
New Bowlero
Class A
common stock
(Assuming Maximum Redemption)
|
|
New Bowlero
Class B
common stock
(Assuming No
Redemption)
|
|
New Bowlero
Class B
common stock
(Assuming Maximum
Redemption)
|
|
Combined Voting Power
of New Bowlero Following
Business Combination,
the PIPE Offerings and
the Forward Purchase
Contract transaction(3)
|
|
Name of beneficial Owner(1)(2)
|
|
Number
|
|
Percent
|
|
Number
|
|
Percent
|
|
Number
|
|
Percent
|
|
Number
|
|
Percent
|
|
Assuming No
Redemption
|
|
Assuming Maximum Redemption
|
|
5% Stockholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A-B Parent LLC (Atairos)(4)
|
|
62,314,245
|
|
51
|
|
70,968,051
|
|
59
|
|
—
|
|
—
|
|
—
|
|
—
|
|
3
|
%
|
|
4
|
%
|
|
Cobalt Recreation LLC(5)
|
|
—
|
|
—
|
|
—
|
|
—
|
|
62,392,209
|
|
100
|
|
63,062,215
|
|
100
|
|
85
|
%
|
|
86
|
%
|
|
Named Executive Officers and Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas F. Shannon(5)
|
|
—
|
|
—
|
|
—
|
|
—
|
|
62,392,209
|
|
100
|
|
63,062,215
|
|
100
|
|
85
|
%
|
|
86
|
%
|
|
Brett I. Parker
|
|
3,091,407
|
|
3
|
|
3,091,407
|
|
3
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|
—
|
|
|
Nicole Weinberger
|
|
46,983
|
|
—
|
|
46,983
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|
—
|
|
|
John A. Young
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|
—
|
|
|
George Barrios(6)
|
|
3,648,049
|
|
3
|
|
2,446,828
|
|
2
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|
—
|
|
|
Michelle Wilson(6)(7)
|
|
3,648,149
|
|
3
|
|
2,446,928
|
|
2
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|
—
|
|
|
Michael J. Angelakis(4)
|
|
62,314,245
|
|
51
|
|
70,968,051
|
|
59
|
|
—
|
|
—
|
|
—
|
|
—
|
|
3
|
%
|
|
4
|
%
|
|
Rachael A. Wagner
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|
—
|
|
|
Robert J. Bass
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|
—
|
|
|
Sandeep Mathrani
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|
—
|
|
|
All current directors and executive officers as a group (10 persons)
|
|
69,100,784
|
|
57
|
|
76,553,369
|
|
64
|
|
62,392,209
|
|
100
|
|
63,062,215
|
|
100
|
|
88
|
%
|
|
90
|
%
|
217
Table of Contents
218
Table of Contents
CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS
Isos
Founder Shares
The Sponsor and LionTree paid a nominal amount for their 6,370,925 founder shares. The founder shares will automatically convert into shares of New Bowlero Class A common stock at the time of the consummation of the Business Combination and are subject to certain transfer restrictions described herein. The Sponsor and LionTree have agreed that their founder shares will be subject to a lock-up period of twelve months following the Closing, as further provided in the Sponsor Support Agreement.
Private Placement
Simultaneously with the closing of the IPO, the Sponsor and LionTree purchased an aggregate of 5,000,000 private placement warrants for an aggregate purchase price of $7,500,000. The private placement warrants are identical to the warrants comprising part of the units sold in the IPO, except that the Sponsor and LionTree have agreed not to transfer, assign or sell any of the private placement warrants (except to certain permitted transferees) until 30 days after the completion of the initial business combination. The private placement warrants are also not redeemable by Isos so long as they are held by the Sponsor, LionTree or their permitted transferees.
Underwriting Agreement
Pursuant to an underwriting agreement dated March 2, 2021 between Isos and J.P. Morgan Securities LLC, for itself and on behalf of the underwriters named therein, Isos paid LionTree a total of $2.0 million for its services as an underwriter in the IPO, and Isos agreed to pay LionTree an additional $3.6 million in deferred underwriting compensation upon Closing of the Business Combination.
PIPE Subscription Agreements
Contemporaneously with the execution of the Business Combination Agreement, Isos entered into the Common PIPE Subscription Agreements with LionTree and each of Isos’s co-founders, George Barrios and Michelle Wilson, pursuant to which they agreed to purchase an aggregate of 500,000 shares of New Bowlero Class A common stock in the Common PIPE Offering at a price of $10.00 per share, for an aggregate purchase price of $5.0 million.
Sponsor Support Agreement
In connection with the execution of the Business Combination Agreement, Isos entered into the Sponsor Support Agreement with Bowlero, the Sponsor and LionTree. Pursuant to the Sponsor Support Agreement, the Sponsor and LionTree each agreed: (i) to vote any shares of Isos in favor of the Transactions, (ii) not to redeem any shares of Isos in connection with the stockholder redemption, (iii) to waive its anti-dilution rights with respect to its Class B ordinary shares under Isos’s memorandum and articles of association, (iv) to comply with its obligations under the Insider Letter dated as of March 2, 2021, (v) to be subject to a lock-up period of twelve months following the Closing, as further provided in the Sponsor Support Agreement, and (vi) to forgive certain indebtedness owing by Isos to the Sponsor or LionTree at the Closing in excess of $1.5 million, in the aggregate.
In addition, pursuant to the Sponsor Support Agreement, the Sponsor will forfeit for cancellation 722,196 Class B ordinary shares plus, depending on the percentage of redemptions by holders of Isos Public Shares, up to an additional 1,203,659 Class B ordinary shares, and LionTree will forfeit for cancellation 83,443 Class B ordinary shares plus, depending on the percentage of redemptions by holders of Isos Public Shares, up to an additional 139,072 Class B ordinary shares. In addition, upon Closing, 1,444,391 of the Sponsor’s Class B ordinary shares and 1,189,037 of the Sponsor’s private placement warrants and 166,887 of LionTree’s Class B ordinary shares and 430,311 of LionTree’s private placement warrants will unvest at Closing. 50% of the unvested Class B ordinary shares and 50% of the private placement warrants of each of the Sponsor and LionTree that unvested at closing will revest only to the extent the closing price of New Bowlero Class A common stock exceeds $15.00 per share and $17.50 per share, respectively, and as further provided in the Sponsor Support Agreement prior to the fifth anniversary of the Closing (with any shares and/or warrants unvested as of such date being forfeited and cancelled).
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Table of Contents
Engagement Letters
Pursuant to an engagement letter, dated May 11, 2021, as amended on June 30, 2021, Isos engaged LionTree to act as co-placement agent for the PIPE Offerings for a placement fee equal to approximately $1.8 million in aggregate, payable upon closing of the PIPE Offerings.
Pursuant to an engagement letter dated June 28, 2021, Isos engaged LionTree to act as exclusive financial advisor in connection with the proposed Business Combination for a transaction fee of $8.6 million, payable upon Closing of the Business Combination.
Bowlero
Stockholders Agreement
In connection with the execution of the Business Combination Agreeement, Isos entered into a Stockholders Agreement with Atairos and TS that provides for certain rights, including director appointment rights, for Atairos and TS. The Stockholders Agreement will become effective upon the consummation of the merger. See “The BCA Proposal — Related Agreements — Stockholders Agreement,” which disclosure is incorporated herein by reference.
Registration Rights Agreement
Contemporaneously with the execution of the Business Combination Agreement, Isos entered into an amended and restated registration rights agreement with certain securityholders of Bowlero, including the Supporting Stockholders, and certain of its stockholders that will be effective upon the Closing. See “The BCA Proposal — Related Agreements — Registration Rights Agreement,” which disclosure is incorporated herein by reference.
Indemnification Agreements
New Bowlero intends to enter into separate indemnification agreements with its directors and executive officers, in addition to the indemnification provided for in the Proposed Certificate of Incorporation and the Proposed Bylaws. These agreements, among other things, will require New Bowlero to indemnify New Bowlero’s directors and executive officers for certain expenses, including attorneys; fees, judgments, fines and settlement amounts incurred by a director or executive officer in any action or proceeding arising out of their services as one of the New Bowlero’s directors or executive officers or as a director or executive officer of any other company or enterprise to which the person provides services at New Bowlero’s request. New Bowlero believes that these charter provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers.
The limitation of liability and indemnification provisions in the Proposed Certificate of Incorporation and the Proposed Bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against directors and officers, even though an action, if successful, might benefit New Bowlero and its stockholders. A stockholder’s investment may decline in value to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
New Bowlero preferred stock
Certain shares of Bowlero common stock held by Atairos will be converted into New Bowlero preferred stock having an aggregate initial liquidation preference of $105.0 million upon closing of the Business Combination.
Executive compensation and director compensation
See “Executive Compensation” and “The BCA Proposal — Interests of the Bowlero Related Parties in the Business Combination” for information on compensation arrangements with our executive officers and directors, which include, among other things, stock awards, transaction bonuses, agreements with executive officers and certain other benefits.
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Policies and Procedures for Related Party Transactions
Upon the consummation of the Business Combination, we will adopt a written Related Person Transaction Policy (the “policy”), which will set forth our policy with respect to the review, approval, ratification and disclosure of all material related person transactions by our audit committee. In accordance with the policy, our audit committee will have overall responsibility for implementation of and compliance with the policy.
For purposes of the policy, a “related person transaction” is a transaction, arrangement or relationship (or any series of similar transactions, arrangements or relationships) in which we were, are or will be a participant and the amount involved exceeded, exceeds or will exceed $120,000 and in which any related person (as defined in the policy) had, has or will have a direct or indirect material interest. A “related person transaction” does not include any employment relationship or transaction involving an executive officer and any related compensation resulting solely from that employment relationship that has been reviewed and approved by our board of directors or compensation committee and any transaction where our general counsel has determined that the rates or charges involved are determined by competitive bids.
The policy will require that notice of a proposed related person transaction be provided to our general counsel prior to entry into such transaction. If our general counsel determines that such transaction is a related person transaction, the proposed transaction will be submitted to our audit committee for consideration. Under the policy, our audit committee may approve only those related person transactions that are in, or not inconsistent with, our best interests and the best interests of our stockholders. In the event that we become aware of a related person transaction that has not been previously reviewed, approved or ratified under the policy and that is ongoing or is completed, the transaction will be submitted to the audit committee so that it may determine whether to ratify, rescind or terminate the related person transaction.
The policy will also provide that the audit committee review certain previously approved or ratified related person transactions that are ongoing to determine whether the related person transaction remains in our best interests and the best interests of our stockholders. Additionally, we will make periodic inquiries of directors and executive officers with respect to any potential related person transaction of which they may be a party or of which they may be aware.
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COMPARISON OF CORPORATE GOVERNANCE AND STOCKHOLDER RIGHTS
Isos is an exempted company incorporated under the Cayman Islands Companies Act. The Cayman Islands Companies Act and the Cayman Constitutional Documents govern the rights of its shareholders. The Cayman Islands Companies Act differs in some material respects from laws generally applicable to United States corporations and their stockholders. In addition, the Cayman Constitutional Documents will differ in certain material respects from the Proposed Organizational Documents. As a result, when you become a stockholder of New Bowlero, your rights will differ in some regards as compared to when you were a shareholder of Isos.
Below is a summary chart outlining important similarities and differences in the corporate governance and stockholder/shareholder rights associated with each of Isos and New Bowlero according to applicable law or the organizational documents of Isos and New Bowlero.
This summary is qualified by reference to the complete text of the Cayman Constitutional Documents of Isos attached as an exhibit to this proxy statement/prospectus, the complete text of the Proposed Certificate of Incorporation, a copy of which is attached to this proxy statement/prospectus as Annex B and the complete text of the Proposed Bylaws, a copy of which is attached to this proxy statement/prospectus as Annex C. You should review each of the Proposed Organizational Documents, as well as the Delaware corporate law and corporate laws of the Cayman Islands, including the Cayman Islands Companies Act, to understand how these laws apply to New Bowlero and Isos, respectively.
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Delaware
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Cayman Islands
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Stockholder/Shareholder Approval of Transactions
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Mergers generally require approval of a majority of the voting power of all outstanding shares.
Mergers in which less than 20% of the acquirer’s stock is issued generally do not require acquirer stockholder approval.
Mergers in which one corporation owns 90% or more of a second corporation may be completed without the vote of the second corporation’s board of directors or stockholders.
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Mergers require a special resolution, and any other authorization as may be specified in the relevant articles of association. Parties holding certain security interests in the constituent companies must also consent.
All mergers (other than parent/subsidiary mergers) require shareholder approval — there is no exception for smaller mergers.
Where a bidder has acquired 90% or more of the shares in a Cayman Islands company, it can compel the acquisition of the shares of the remaining shareholders and thereby become the sole shareholder.
A Cayman Islands company may also be acquired through a “scheme of arrangement” sanctioned by a Cayman Islands court and approved by 50%+1 in number and 75% in value of shareholders in attendance and voting at a shareholders’ meeting.
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Stockholder/Shareholder Votes for Routine Matters
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Generally, approval of routine corporate matters that are put to a stockholder vote require the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter.
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Under the Cayman Islands Companies Act and Isos’s amended and restated memorandum and articles of association law, routine corporate matters may be approved by an ordinary resolution (being a resolution passed by a simple majority of the shareholders as being entitled to do so).
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Delaware
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Cayman Islands
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Appraisal Rights
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Generally, a stockholder of a publicly traded corporation does not have appraisal rights in connection with a merger.
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Minority shareholders that dissent from a merger are entitled to be paid the fair market value of their shares, which if necessary may ultimately be determined by the court.
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Inspection of Books and Records
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Any stockholder may inspect the corporation’s books and records for a proper purpose during the usual hours for business.
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Shareholders generally do not have any rights to inspect or obtain copies of the register of shareholders or other corporate records of a company.
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Stockholder/Shareholder Lawsuits
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A stockholder may bring a derivative suit subject to procedural requirements (including adopting Delaware as the exclusive forum as per Organizational Documents Proposal 3C).
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In the Cayman Islands, the decision to institute proceedings on behalf of a company is generally taken by the company’s board of directors. A shareholder may be entitled to bring a derivative action on behalf of the company, but only in certain limited circumstances.
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Fiduciary Duties of Directors
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Directors must exercise a duty of care and duty of loyalty and good faith to the company and its stockholders.
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A director owes fiduciary duties to a company, including to exercise loyalty, honesty and good faith to the company as a whole.
In addition to fiduciary duties, directors of Isos owe a duty of care, diligence and skill.
Such duties are owed to the company but may be owed direct to creditors or shareholders in certain limited circumstances.
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Indemnification of Directors and Officers
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A corporation is generally permitted to indemnify its directors and officers acting in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation.
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A Cayman Islands company generally may indemnify its directors or officers except with regard to fraud or willful default.
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Limited Liability of Directors
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Permits limiting or eliminating the monetary liability of a director to a corporation or its stockholders, except with regard to breaches of duty of loyalty, intentional misconduct, unlawful repurchases or dividends, or improper personal benefit.
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Liability of directors may be unlimited, except with regard to their own fraud or willful default.
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Delaware
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Cayman Islands
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Business Combination or Anti-takeover Statutes
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Section 203 is a default provision of the DGCL that prohibits a publicly held Delaware corporation from engaging in a business combination, such as a merger, with “interested stockholders” (a person or group owning 15% or more of the corporation’s voting stock) for three years following the date that person becomes an interested stockholder, unless: (i) before such stockholder becomes an “interested stockholder,” the board of directors approves the business combination or the transaction that results in the stockholder becoming an interested stockholder; (ii) upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the outstanding voting stock of the corporation at the time of the transaction (excluding stock owned by certain persons); or (iii) at the time or after the stockholder became an interested stockholder, the board of directors and at least two-thirds of the disinterested outstanding voting stock of the corporation approves the transaction.
New Bowlero has opted out of the protections of Section 203 of the DGCL.
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There are none.
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DESCRIPTION OF SECURITIES AFTER THE BUSINESS COMBINATION
As a result of the Business Combination, Isos shareholders who receive shares of New Bowlero Class A common stock or New Bowlero Class B common stock in the transactions will become New Bowlero stockholders. Your rights as New Bowlero stockholders will be governed by Delaware law and by New Bowlero’s certificate of incorporation and bylaws. The following description of the material terms of New Bowlero’s securities, including the common stock to be issued in the Business Combination, reflects the anticipated state of affairs upon completion of the Business Combination. We urge you to read the applicable provisions of Delaware law and the Proposed Certificate of Incorporation and Proposed Bylaws (which are attached as Annexes B and C respectively, to this proxy statement/prospectus) carefully and in their entirety because they describe your rights as a holder of shares of New Bowlero Class A common stock or New Bowlero Class B common stock.
Authorized and Outstanding Capital Stock
New Bowlero’s certificate of incorporation will authorize the issuance of 2,400,000,000 shares of all classes of New Bowlero’s capital stock, consisting of:
• 2,000,000,000 shares of New Bowlero Class A common stock, par value $0.0001 per share;
• 200,000,000 shares of New Bowlero Class B common stock, par value $0.0001 per share; and
• 200,000,000 shares of preferred stock, par value $0.0001 per share.
As of August 31, 2021, Isos had outstanding 25,483,700 Isos Class A ordinary shares, 6,370,925 Isos Class B ordinary shares, and 13,892,394 warrants, consisting of 8,494,566 public warrants and 5,397,828 private placement warrants.
Assuming that none of Isos’s outstanding Class A ordinary shares are redeemed in connection with the Business Combination and the respective numbers of Isos shares and Isos warrants outstanding immediately prior to the consummation of the Business Combination are the same as they were on the record date, we expect that, immediately after the consummation of the Business Combination, there will be outstanding approximately 112,956,515 shares of New Bowlero Class A common stock, approximately 62,392,209 shares of New Bowlero Class B common stock, and approximately 13,892,394 warrants to purchase shares of New Bowlero Class A common stock. Assuming that 31.3% of Isos’s outstanding Class A ordinary shares are redeemed in connection with the Business Combination and the respective numbers of Isos shares and Isos warrants outstanding immediately prior to the consummation of the Business Combination are the same as they were on the record date (other than such redeemed ordinary shares), we expect that, immediately after the consummation of the Business Combination, there will be outstanding approximately 112,286,509 shares of New Bowlero Class A common stock, approximately 63,062,215 shares of New Bowlero Class B common stock, and approximately 13,892,398 warrants to purchase shares of New Bowlero Class A common stock.
Common Stock
New Bowlero will have two classes of authorized common stock: New Bowlero Class A common stock and New Bowlero Class B common stock. Generally, New Bowlero Class B common stock can only be issued to, transferred to, and held by Thomas F. Shannon and TS, or trusts or legal entities through which the right to vote the shares of New Bowlero Class B common stock held thereby is exercised exclusively by Thomas F. Shannon or TS (Thomas F. Shannon, TS and any trust or legal entity, an “Eligible Holder”). Each outstanding share of New Bowlero Class B common stock will automatically convert into one share New Bowlero Class A common stock upon the earliest to occur: (i) Mr. Shannon ceasing to beneficially own at least 10% of New Bowlero common stock, (ii) death or disability of Mr. Shannon, (iii) Mr. Shannon being terminated for cause as the Chief Executive Officer, and (iv) 15th anniversary of the issuance of New Bowlero Class B common stock.
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Voting Rights
New Bowlero Class A common stock
Holders of New Bowlero Class A common stock will be entitled to one (1) vote for each share of New Bowlero Class A common stock held of record by such holder on all matters voted upon by New Bowlero’s stockholders.
New Bowlero Class B common stock
Holders of New Bowlero Class B common stock will be entitled to ten (10) votes for each share of New Bowlero Class B common stock held of record by such holder on all matters voted upon by New Bowlero’s stockholders.
Stockholder Votes
Holders of New Bowlero common stock generally will vote together as a single class on all matters submitted to a vote of New Bowlero’s stockholders (including the election and removal of directors), unless otherwise provided in New Bowlero’s certificate of incorporation or required by applicable law. Any action or matter submitted to a vote of New Bowlero’s stockholders will be approved if the number of votes cast in favor of the action or matter exceeds the number of votes cast in opposition to the action or matter, except that New Bowlero’s directors will be elected by a plurality of the votes cast. Holders of New Bowlero Class A common stock will not be entitled to cumulate their votes in the election of New Bowlero’s directors.
Delaware law could require holders of a class of New Bowlero’s capital stock to vote separately as a class on any proposed amendment of New Bowlero’s certificate of corporation if the amendment would increase or decrease the par value of the shares of that class or would alter or change the powers, preferences or special rights of the shares of that class in a manner that affects them adversely.
Stockholder Action by Written Consent
The Proposed Certificate of Incorporation prohibits stockholders to act by written consent if New Bowlero Class B common stock represents less than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders. In such circumstances, any action required or permitted to be taken by New Bowlero’s stockholders must be effected at a duly called annual or special meeting of stockholders and may not be taken or effected by written consent.
Special Meetings of Stockholders
The Proposed Certificate of Incorporation provides that, except as otherwise required by applicable law, special meetings of New Bowlero’s stockholders may be called only by the New Bowlero Board, the Chairperson of the New Bowlero Board, New Bowlero’s Chief Executive Officer or President, or, at any time that New Bowlero Class B common stock represents at least 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders, the holders of shares representing a majority of the voting power of all of the outstanding shares of capital stock of New Bowlero.
Economic Rights
Except as otherwise expressly provided in New Bowlero’s certificate of incorporation or required by applicable law, shares of each class of New Bowlero common stock will have the same rights, powers and preferences and rank equally, share ratably and be identical in all respects as to all matters, including the following:
Dividends and Distributions; Rights upon Liquidation
Subject to the rights of holders of any outstanding series of New Bowlero preferred stock, the holders of shares of each class of New Bowlero common stock will be entitled to receive ratably, on a per share basis, any dividend or distribution (including upon the liquidation, dissolution or winding up of New Bowlero) paid by New Bowlero, except that, if a dividend or distribution is paid in the form of shares (or options, warrants or other rights to acquire
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shares) of New Bowlero common stock, then holders of New Bowlero Class A common stock will receive shares (or options, warrants or other rights to acquire shares) of New Bowlero Class A common stock and holders of New Bowlero Class B common stock will receive shares (or options, warrants or other rights to acquire shares) of New Bowlero Class B common stock.
Subdivisions, Combinations and Reclassifications
If New Bowlero subdivides or combines any class of New Bowlero common stock with any other class of New Bowlero common stock, subject to the rights of holders of any outstanding series of New Bowlero preferred stock, then each class of New Bowlero common stock must be subdivided or combined in the same proportion and manner.
Conversion
Optional Conversion
Holders of New Bowlero Class B common stock will have the right to convert shares of their New Bowlero Class B common stock into fully paid and non-assessable shares of New Bowlero Class A common stock, on a one-to-one basis, at the option of the holder at any time.
Automatic Conversion
Generally, shares of New Bowlero Class B common stock will convert automatically into New Bowlero Class A common stock upon (i) Thomas F. Shannon ceasing to beneficially own, at least 10% of the number of shares of New Bowlero common stock outstanding at such time; (ii) the death or disability of Thomas F. Shannon; (iii) the employment of Thomas F. Shannon as the Chief Executive of New Bowlero being terminated for cause; and (iv) fifteenth anniversary of the Effective Time.
Conversion Policies and Procedures
New Bowlero may establish from time to time certain restrictions, policies and procedures relating to the general administration of its multi-class structure and the conversion of New Bowlero Class B common shares to New Bowlero Class A common shares.
Registration Rights
Certain New Bowlero stockholders will be party to a registration rights agreement with New Bowlero that will be effective upon the consummation of the Business Combination. The registration rights agreement will grant certain New Bowlero stockholders the right to require, subject to certain conditions and limitations, that New Bowlero register for resale securities held by such stockholders and certain “piggyback” registration rights with respect to registrations initiated by New Bowlero. The registration of shares of New Bowlero Class A common stock pursuant to the exercise of the registration rights provided under the registration rights agreement would enable the applicable New Bowlero stockholders to resell such shares without restriction under the Securities Act when the applicable registration statement is declared effective. New Bowlero will bear the expenses incurred in connection with the filing of any registration statements pursuant to the registration rights agreement.
Other Rights
The Proposed Certificate of Incorporation and the Proposed Bylaws do not provide for any preemptive or subscription rights with respect to New Bowlero common stock, and there are no redemption or sinking fund provisions applicable to New Bowlero common stock. Upon completion of the Business Combination, all the outstanding shares of New Bowlero common stock will be validly issued, fully paid and non-assessable.
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Preferred Stock
The Proposed Certificate of Incorporation authorizes the New Bowlero Board, to the fullest extent permitted by applicable law, to issue up to an aggregate of 200,000,000 shares of New Bowlero preferred stock in one or more series from time to time by resolution, without further action by New Bowlero’s stockholders, and to fix the powers (which may include full, limited or no voting power), designations, preferences and relative, participating, optional or other special rights, if any, of the shares of each such series (which rights may be greater than the rights of any or all of the classes of New Bowlero common stock) and any qualifications, limitations or restrictions thereto. The issuance of New Bowlero preferred stock could adversely affect the voting power of holders of our common stock and the likelihood that such holders will receive dividend payments or payments upon liquidation. In addition, the issuance of preferred stock could have the effect of delaying, deterring or preventing a change of control or other corporate action. New Bowlero will issue Preferred PIPE Shares in the Preferred PIPE Offering and will issue New Bowlero preferred stock to Atairos in exchange for certain shares of Bowlero Common Stock in connection with the Merger upon closing of the Business Combination.
Dividends
Holders of the New Bowlero preferred stock will be entitled to receive, when, as and if declared by the New Bowlero Board out of funds legally available for such dividends, cumulative cash dividends at an annual rate of 5.5% on the stated amount per share plus the amount of any accrued and unpaid dividends on such share, accumulating on a daily basis and payable semi-annually on June 30 and December 31, respectively, in each year. Such a dividend will accumulate, whether or not declared. Any dividends not paid in cash will be added to the liquidation value of the New Bowlero preferred stock.
Holders of the New Bowlero preferred stock will also be entitled to such dividends paid to holders of New Bowlero common stock to the same extent as if such holders of New Bowlero preferred stock had converted their shares New Bowlero preferred stock into New Bowlero common stock (without regard to any limitations on conversions) and had held such shares of New Bowlero common stock on the record date for such dividends and distributions. Such payments will be made concurrently with the dividend or distribution to the holders of the New Bowlero common stock.
Holders of the New Bowlero preferred stock will be entitled to vote together as a single class with the holders of New Bowlero common stock, with each such holder entitled to cast the number of votes equal to the number of votes such holder would have been entitled to cast if such holder were the holder of a number of shares of New Bowlero common stock equal to the whole number of shares of New Bowlero common stock that would be issuable upon conversion of such holder’s shares of New Bowlero preferred stock.
So long as any shares of New Bowlero preferred stock are outstanding, a vote or the consent of at least two holders not affiliated with each other, representing a majority of the New Bowlero preferred stock will be required for (i) effecting or validating any amendment, modification or alteration to the Proposed Certificate of Incorporation that would authorize or create, or increase the authorized amount of, any shares of any class or series or any securities convertible into shares of any class or series of capital stock that would rank senior or pari passu to the New Bowlero preferred stock with respect to dividend payments or upon the occurrence of a liquidation, (ii) effecting or validating any amendment, alteration or repeal or change to the rights, preferences, or privileges of the New Bowlero preferred stock, (iii) effecting or validating any amendment, alteration or repeal of any provision of the Proposed Certificate of Incorporation or Proposed Bylaws that would have an adverse effect on the rights, preferences, privileges or voting power of New Bowlero preferred stock or the holders thereof in any material respect, or (iv) any action or inaction that would constitute a Fundamental Change (as defined in the New Bowlero preferred stock Certificate of Designations), with certain exceptions.
Liquidation
Upon liquidation, New Bowlero preferred stock will rank senior to the New Bowlero common stock, and will have the right to be paid, out of the assets of the Company legally available for distribution to its stockholders, an amount equal to the Liquidation Preference (as defined in New Bowlero preferred stock Certificate of Designations) per share of New Bowlero preferred stock.
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Other Rights
New Bowlero will have a right to effect a mandatory conversion of New Bowlero preferred stock after the second anniversary of the issuance date if the last reported price per share of the New Bowlero common stock exceeds 130% of the conversion price on each of at least 20 trading days during a 30-day consecutive trading days period.
Election, Appointment and Removal of Directors
All directors of New Bowlero will be elected by the holders of all classes of New Bowlero common stock, voting together as a single class, by: prior to the time when the New Bowlero Class B Common Stock issued and outstanding represents less than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders (the “Voting Threshold Time”), the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of capital stock of the New Bowlero entitled to vote generally in an election of directors or (b) from and after the Voting Threshold Time, the affirmative vote of the holders of at least two-thirds (66 and 2/3%) of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in an election of directors (the “Required Vote”).
The Proposed Certificate of Incorporation provides that subject to the Stockholders Agreement, and the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, the Board of Directors or any individual director may be removed from office at any time, with or without cause, but only by the Required Vote.
The Proposed Certificate of Incorporation provides that vacant directorships, including vacancies resulting from any increase in the total number of directors constituting the New Bowlero Board, may be filled only by the affirmative vote of a majority of the directors comprising the New Bowlero Board then in office.
Committees of the Board of Directors
The New Bowlero Board will establish and maintain an audit committee, a nominating and corporate governance committee and a compensation committee, and may establish such other committees as it determines from time to time.
Anti-Takeover Effects of the Proposed Certificate of Incorporation and the Proposed Bylaws
The Proposed Certificate of Incorporation and Proposed Bylaws contain certain provisions that may delay, discourage or impede efforts by another person or entity to acquire control of New Bowlero. We believe that these provisions, which are summarized below, will discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage persons or entities seeking to acquire control of us to first negotiate with the New Bowlero Board, which we believe may result in improvement of the terms of any such acquisition in favor of New Bowlero’s stockholders. However, these provisions also give the New Bowlero Board the power to discourage acquisitions that some stockholders may favor.
Authorized but Unissued Capital Stock
The authorized but unissued shares of our common stock and our preferred stock will be available for future issuance without stockholder approval, subject to any limitations imposed by the listing standards of the securities exchange on which New Bowlero’s equity securities are then listed for trading. These additional shares of capital stock may be used for a variety of corporate purposes, including growth acquisitions, corporate finance transactions, and issuances under our Incentive Plan and ESPP. The existence of authorized but unissued and unreserved capital stock could discourage or impede an attempt to obtain control of New Bowlero by means of a proxy contest, tender offer, merger, or otherwise.
Amendment of Certificate of Incorporation or Bylaws
The DGCL generally provides that the affirmative vote of a majority of the outstanding shares entitled to vote on amendments to a corporation’s certificate of incorporation or bylaws is required to approve such amendment, unless a corporation’s certificate of incorporation or bylaws, as applicable, imposes a higher voting standard.
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The Proposed Certificate of Incorporation provides that certain provisions thereof may be adopted, amended, altered or repealed only upon the affirmative vote of the holders of at least two-thirds of the voting power of all of the outstanding shares of capital stock of New Bowlero. Such provisions include those relating to (i) multi-class structure of New Bowlero’s common stock, (ii) the New Bowlero Board (including their election, appointment and removal), (iii) meetings of stockholders, (iv) indemnification of directors and liability of directors, (v) New Bowlero’s waiver of the corporate opportunity doctrine, (vi) forum selection, (vii) election not to be governed by Section 203 of the DGCL and (viii) amendment provision.
The Proposed Bylaws provides that New Bowlero’s bylaws may be adopted, amended, altered or repealed by the New Bowlero Board or by the affirmative vote of the holders of at least two-thirds of the voting power of all of the outstanding shares of capital stock of New Bowlero.
These provisions may have the effect of deterring hostile takeovers or delaying or preventing changes of control of New Bowlero or its management such as a merger, reorganization or tender offer. These provisions are intended to enhance the likelihood of continued stability in the composition of the New Bowlero Board and its policies and to discourage certain types of transactions that may involve an actual or threatened acquisition of New Bowlero and to reduce New Bowlero’s vulnerability to an unsolicited acquisition proposal. These provisions are also intended to discourage certain tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers for New Bowlero’s shares and, as a consequence, may inhibit fluctuations in the market price of New Bowlero’s shares that could result from actual or rumored takeover attempts. Such provisions may also have the effect of preventing changes in management.
Multi-Class Structure
As described above, the Proposed Certificate of Incorporation provides for a multi-class stock structure, which will give New Bowlero’s founder and Chief Executive Officer and certain of his affiliated entities and trusts, for so long as they continue to collectively beneficially own shares representing a majority of the voting power of all of the outstanding shares of capital stock of New Bowlero, significant influence over all matters requiring stockholder approval, including the election of New Bowlero’s directors and significant corporate transactions, such as a merger or other sale of New Bowlero or all or substantially all of its assets.
No Cumulative Voting for Directors
The DGCL provides that stockholders are not entitled to cumulate votes in the election of directors unless a corporation’s certificate of incorporation provides otherwise. The Proposed Certificate of Incorporation does not provide for cumulative voting. As a result, the holders of shares of New Bowlero common stock representing a majority of the voting power of all of the outstanding shares of capital stock of New Bowlero will be able to elect all of the directors then standing for election.
Vacancies on the Board of Directors
The Proposed Certificate of Incorporation authorizes only the New Bowlero Board to fill vacant directorships, including vacancies resulting from any increase in the total number of directors of the New Bowlero Board. These provisions could prevent a stockholder from increasing the total number of New Bowlero’s directors and then gaining control of the New Bowlero Board.
Special Meetings of Stockholders, Action by Written Consent, and Advance Notice Requirements for Stockholder Proposals
Special Meetings of Stockholders
The Proposed Certificate of Incorporation permits special meetings of New Bowlero’s stockholders to be called only by the New Bowlero Board, the Chairperson of the New Bowlero Board, New Bowlero’s Chief Executive officer or President, or, at any time that New Bowlero Class B common stock represents at least 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders, the holders of shares representing a majority of the voting power of all of the outstanding shares
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of capital stock of New Bowlero. These provisions might delay the ability of New Bowlero’s stockholders to force consideration of a proposal or to take any action, including with respect to the removal of any of New Bowlero’s directors from office.
Stockholder Action by Written Consent
The Proposed Certificate of Incorporation provides that New Bowlero’s stockholders may act by written consent only if the New Bowlero Class B common stock represents more than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders. As a result, if the New Bowlero Class B common stock represents less than 50% of the voting power of New Bowlero’s outstanding capital stock entitled to vote in the election of directors at an annual meeting of stockholders, New Bowlero’s stockholders would not be able to take action by written consent on any matter and would only be able to take action at an annual or special meeting of stockholders.
Advance Notice Requirement for Stockholder Proposals and Director Nominations
The Proposed Bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of stockholders, including proposed nominations of candidates for election to the New Bowlero Board. In order for any matter to be “properly brought” before a meeting (and thereby considered or acted upon at such meeting), a stockholder will have to comply with certain advance notice requirements and provide New Bowlero with certain information. Stockholders at an annual meeting will only be permitted consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of the New Bowlero Board or by a stockholder of record on the record date for the meeting who is entitled to vote at the meeting and has delivered a timely notice, in the form and manner specified in the Proposed Bylaws, of such stockholder’s intention to bring such business before the meeting. These provisions might preclude New Bowlero’s stockholders from bringing matters before our annual meeting of stockholders or from nominating candidates for election to the New Bowlero Board, or might discourage or impede an attempt by a potential acquirer of New Bowlero to conduct a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise obtain control of New Bowlero.
Business Combinations
New Bowlero has elected not to be subject to Section 203 of the DGCL. Under Section 203 of the DGCL, a corporation will not be permitted to engage in a business combination with any interested stockholder for a period of three years following the time that such interested stockholder became an interested stockholder, unless:
(1) prior to such time, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder,
(2) upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer, or
(3) at or subsequent to such time the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66⅔% of the outstanding voting stock which is not owned by the interested stockholder.
Generally, a “business combination” includes a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. Subject to certain exceptions, an “interested stockholder” is a person who, together with that person’s affiliates and associates, owns, or within the previous three years owned, 15% or more of New Bowlero’s outstanding voting stock. For purposes of this section only, “voting stock” has the meaning given to it in Section 203 of the DGCL.
Because New Bowlero has opted out of Section 203 of the DGCL in the Proposed Certificate of Incorporation, Section 203 of the DGCL will not apply to New Bowlero. However, the Proposed Certificate of Incorporation will
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include a provision containing substantially similar restrictions as Section 203 of the DGCL, except that (i) TS and Atairos, (ii) each of their respective affiliates and successors and (iii) any “group”, and any member of any such group, to which any such persons described in clauses (i) or (ii) are a party under Rule 13d-5 of the Exchange Act will not be “interested stockholders”.
Warrants
Isos Warrants
At the effective time of the Domestication, each warrant to purchase Isos ordinary shares (each, a “Isos Warrant”) that is issued and outstanding immediately prior to the effective time of the Domestication and not terminated pursuant to its terms will be converted into a warrant to purchase shares of common stock of New Bowlero on the same terms and conditions (including as to vesting and exercisability) as are in effect with respect to such Isos Warrant immediately prior to the effective time.
As of August 31, 2021, 13,892,394 warrants to purchase Isos ordinary shares were outstanding.
Public Stockholders’ Warrants
There are currently outstanding an aggregate of 8,494,566 public warrants, which, following the consummation of the Business Combination, will entitle the holder to acquire New Bowlero Class A common stock. Each whole warrant will entitle the registered holder to purchase one share of New Bowlero Class A common stock at a price of $11.50 per share, subject to adjustment as discussed below, beginning 30 days after the consummation of the Business Combination, provided that New Bowlero has an effective registration statement under the Securities Act covering the Class A common stock issuable upon exercise of the warrants and a current prospectus relating to such Class A common stock is available (or New Bowlero permits holder to exercise their respective warrants on a cashless basis under the circumstances specified in the warrant agreement) and such shares are registered, qualified or exempt from registration under the securities, or blue sky, laws of the state of residence of the holder. Pursuant to the warrant agreement, a holder may exercise its warrants only for a whole number of shares of New Bowlero Class A common stock. This means only a whole warrant may be exercised at a given time by a warrant holder. No fractional warrants will be issued upon separation of the units and only whole warrants will trade. Accordingly, unless holder has at least five units, such holder will not be able to receive or trade a whole warrant. The warrants will expire five years after the completion of the Business Combination, at 5:00 p.m., New York City time, or earlier upon redemption or liquidation.
Redemption of Warrants for Cash
Once the warrants become exercisable, New Bowlero may call the warrants for redemption for cash:
• in whole and not in part;
• at a price of $0.01 per warrant;
• upon not less than 30 days’ prior written notice of redemption (the “30-day redemption period”) to each warrant holder; and
• if, and only if, the reported closing price of New Bowlero Class A common stock equals or exceeds $18.00 per share (as adjusted for stock sub-divisions, stock capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within a 30-trading day period ending three business days before New Bowlero sends the notice of redemption to the warrant holders.
If and when the warrants become redeemable by New Bowlero, New Bowlero may exercise its redemption right even if New Bowlero is unable to register or qualify the underlying securities for sale under all applicable state securities laws.
New Bowlero has established the last of the redemption criterion discussed above to prevent a redemption call unless there is at the time of the call a significant premium to the warrant exercise price. If the foregoing conditions
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are satisfied and New Bowlero issues a notice of redemption of the warrants, each warrant holder will be entitled to exercise his, her or its warrant prior to the scheduled redemption date. However, the price of New Bowlero Class A common stock may fall below the $18.00 redemption trigger price (as adjusted for stock sub-divisions, stock capitalizations, reorganizations, recapitalizations and the like) as well as the $11.50 warrant exercise price after the redemption notice is issued.
Redemption procedures and cashless exercise
If New Bowlero calls the warrants for redemption as described above, New Bowlero’s management will have the option to require any holder that wishes to exercise his, her or its warrant to do so on a “cashless basis.” In determining whether to require all holders to exercise their warrants on a “cashless basis,” New Bowlero’s management will consider, among other factors, New Bowlero’s cash position, the number of warrants that are outstanding and the dilutive effect on New Bowlero’s stockholders of issuing the maximum number of shares of New Bowlero Class A common stock issuable upon the exercise of its warrants. If New Bowlero management takes advantage of this option, all holders of warrants would pay the exercise price by surrendering their warrants for that number of shares of New Bowlero Class A common stock equal to the quotient obtained by dividing (x) the product of the number of New Bowlero Class A common stock underlying the warrants, multiplied by the excess of the “historical fair market value” of New Bowlero Class A common stock over the exercise price of the warrants by (y) the historical fair market value. The “historical fair market value” will mean the average reported closing price of New Bowlero Class A common stock for the 10 trading days ending on the third trading day prior to the date on which the notice of redemption is sent to the holders of warrants. If New Bowlero management takes advantage of this option, the notice of redemption will contain the information necessary to calculate the number of shares of New Bowlero Class A common stock to be received upon exercise of the warrants, including the “historical fair market value” in such case. Requiring a cashless exercise in this manner will reduce the number of shares to be issued and thereby lessen the dilutive effect of a warrant redemption.
New Bowlero believes this feature is an attractive option to New Bowlero if New Bowlero does not need the cash from the exercise of the warrants after the Business Combination. If New Bowlero calls the New Bowlero warrants for redemption and New Bowlero’s management does not take advantage of this option, the holders of the private placement warrants and their permitted transferees would still be entitled to exercise their private placement warrants for cash or on a cashless basis using the same formula described above that other warrant holders would have been required to use had all warrant holders been required to exercise their warrants on a cashless basis, as described in more detail below.
A holder of a warrant may notify New Bowlero in writing in the event it elects to be subject to a requirement that such holder will not have the right to exercise such warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the warrant agent’s actual knowledge, would beneficially own in excess of 4.9% or 9.8% (as specified by the holder) of the New Bowlero Class A common stock outstanding immediately after giving effect to such exercise.
If the number of outstanding shares of New Bowlero Class A common stock is increased by a share capitalization payable in shares of New Bowlero Class A common stock, or by a split-up of common stock or other similar event, then, on the effective date of such share capitalization, split-up or similar event, the number of shares of New Bowlero Class A common stock issuable on exercise of each warrant will be increased in proportion to such increase in the outstanding shares of common stock. A rights offering to holders of common stock entitling holders to purchase New Bowlero Class A common stock at a price less than the fair market value will be deemed a share capitalization of a number of shares of New Bowlero Class A common stock equal to the product of (i) the number of shares of New Bowlero Class A common stock actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for New Bowlero Class A common stock) and (ii) the quotient of (x) the price per share of New Bowlero Class A common stock paid in such rights offering and (y) the historical fair market value. For these purposes (i) if the rights offering is for securities convertible into or exercisable for shares of New Bowlero Class A common stock, in determining the price payable for New Bowlero Class A common stock, there will be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) historical fair market value means the
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volume weighted average price of shares of New Bowlero Class A common stock as reported during the 10 trading day period ending on the trading day prior to the first date on which New Bowlero Class A common stock trades on the applicable exchange or in the applicable market, regular way, without the right to receive such rights.
In addition, if New Bowlero, at any time while the warrants are outstanding and unexpired, pays a dividend or make a distribution in cash, securities or other assets to the holders of New Bowlero Class A common stock on account of such New Bowlero Class A common stock (or other securities into which the warrants are convertible), other than (a) as described above, (b) certain ordinary cash dividends, (c) to satisfy the redemption rights of the holders of Class A common stock in connection with the Business Combination, or (d) in connection with the redemption of New Bowlero’s public shares upon New Bowlero’s failure to complete the Business Combination, then the warrant exercise price will be decreased, effective immediately after the effective date of such event, by the amount of cash and/or the fair market value of any securities or other assets paid on each share of New Bowlero Class A common stock in respect of such event.
If the number of outstanding shares of New Bowlero Class A common stock is decreased by a consolidation, combination or reclassification of New Bowlero Class A common stock or other similar event, then, on the effective date of such consolidation, combination, reverse share split, reclassification or similar event, the number of shares of New Bowlero Class A common stock issuable on exercise of each warrant will be decreased in proportion to such decrease in outstanding share of New Bowlero Class A common stock.
Whenever the number of shares of New Bowlero Class A common stock purchasable upon the exercise of the warrants is adjusted, as described above, the warrant exercise price will be adjusted by multiplying the warrant exercise price immediately prior to such adjustment by a fraction (x) the numerator of which will be the number of shares of New Bowlero Class A common stock purchasable upon the exercise of the warrants immediately prior to such adjustment, and (y) the denominator of which will be the number of shares of New Bowlero Class A common stock so purchasable immediately thereafter.
In case of any reclassification or reorganization of the outstanding New Bowlero Class A common stock (other than those described above or that solely affects the par value of such New Bowlero Class A common stock), or in the case of any merger or consolidation of New Bowlero with or into another corporation (other than a consolidation or merger in which New Bowlero is the continuing corporation and that does not result in any reclassification or reorganization of the issued and outstanding New Bowlero Class A common stock), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of New Bowlero as an entirety or substantially as an entirety in connection with which New Bowlero is dissolved, the holders of the warrants will thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the warrants and in lieu of New Bowlero Class A common stock immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of New Bowlero Class A common stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the warrants would have received if such holder had exercised their warrants immediately prior to such event. If less than 70% of the consideration receivable by the holders of New Bowlero Class A common stock in such a transaction is payable in the form of New Bowlero Class A common stock in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the registered holder of the warrant properly exercises the warrant within thirty days following public disclosure of such transaction, the warrant exercise price will be reduced as specified in the warrant agreement based on the Black-Scholes Warrant Value (as defined in the warrant agreement) of the warrant. The purpose of such exercise price reduction is to provide additional value to holders of the warrants when an extraordinary transaction occurs during the exercise period of the warrants pursuant to which the holders of the warrants otherwise do not receive the full potential value of the warrants.
The warrants will be issued in registered form under a warrant agreement between Continental Stock Transfer & Trust Company, as warrant agent, and New Bowlero. The warrant agreement provides that the terms of the warrants may be amended without the consent of any holder for the purpose of (i) curing any ambiguity or correct any defective provision, or mistake, including to conform the provisions of the warrant agreement to the description of the terms of the warrants and the warrant agreement set forth herein, (ii) adjusting the provisions relating to cash dividends on New Bowlero Class A common stock as contemplated by and in accordance with the
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warrant agreement or (iii) adding or changing any provisions with respect to matters or questions arising under the warrant agreement as the parties to the warrant agreement may deem necessary or desirable and that the parties deem to not adversely affect the rights of the registered holders of the warrants, provided that the approval by the holders of at least 65% of the then outstanding public warrants is required to make any change that adversely affects the interests of the registered holders of public warrants, and, solely with respect to any amendment to the terms of the private placement warrants, a majority of the then outstanding private placement warrants. You should review a copy of the warrant agreement, which will be filed as an exhibit to the registration statement of which this prospectus is a part, for a complete description of the terms and conditions applicable to the warrants.
The warrants may be exercised upon surrender of the warrant certificate on or prior to the expiration date at the offices of the warrant agent, with the exercise form on the reverse side of the warrant certificate completed and executed as indicated, accompanied by full payment of the exercise price (or on a cashless basis, if applicable), by certified or official bank check payable to New Bowlero, for the number of warrants being exercised. The warrant holders do not have the rights or privileges of holders of common stock and any voting rights until they exercise their warrants and receive New Bowlero Class A common stock. After the issuance of New Bowlero Class A common stock upon exercise of the warrants, each holder will be entitled to one vote for each share held of record on all matters to be voted on by stockholders.
The warrants issued pursuant to the Forward Purchase Contract will have the same terms as the public warrants (including with respect to term, exercise price, redemptions and manner of exercise).
Private Placement Warrants
The private placement warrants (including the New Bowlero Class A common stock issuable upon exercise of the private placement warrants) will not be transferable, assignable or salable until thirty (30) days after the Business Combination (except in limited circumstances) and they will not be redeemable by New Bowlero for cash so long as they are held by the Sponsor, members of the Sponsor or their permitted transferees.
The initial purchasers of the private placement warrants, or their permitted transferees, have the option to exercise the private placement warrants on a cashless basis. Except as described in this section, the private placement warrants have terms and provisions that are identical to those of the warrants sold in the Business Combination, including that they may be redeemed for shares of New Bowlero Class A common stock. If the private placement warrants are held by holders other than the Sponsor or their permitted transferees, the private placement warrants will be redeemable by New Bowlero and exercisable by the holders on the same basis as the warrants included in the units being sold in the Business Combination.
Any amendment to the terms of the private placement warrants or any provision of the warrant agreement with respect to the private placement warrants will require a vote of holders of at least 50% of the number of the then-outstanding private placement warrants.
If holders of the private placement warrants elect to exercise them on a cashless basis, they would pay the exercise price by surrendering his, her or its warrants for that number of Class A ordinary shares equal to the quotient obtained by dividing (x) the product of the number of Class A ordinary shares underlying the warrants, multiplied by the excess of the “historical fair market value” (defined below) over the exercise price of the warrants by (y) the historical fair market value. The “historical fair market value” will mean the average reported closing price of the Class A ordinary shares for the 10 trading days ending on the third trading day prior to the date on which the notice of warrant exercise is sent to the holders of warrants
Exclusive Forum
The Proposed Certificate of Incorporation provides that, unless New Bowlero otherwise consents in writing, the Chancery Court (or, in the event that the Chancery Court does not have jurisdiction, another court of the State of Delaware or, if no court of the State of Delaware has jurisdiction, then the United States District Court for the District of Delaware) will be the sole and exclusive forum for resolution of (a) any derivative action or proceeding brought on behalf of New Bowlero, (b) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, employee, agent or stockholder of New Bowlero to New Bowlero or any of
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New Bowlero’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL, the Proposed Certificate of Incorporation or the Proposed Bylaws or (d) any action asserting a claim governed by the “internal affairs doctrine”.
The Proposed Certificate of Incorporation’s exclusive forum provisions do not apply to claims arising under the Securities Act, the Exchange Act, or any other claim for which the federal courts have exclusive jurisdiction.
Limitations on Liability and Indemnification of Officers and Directors
The DGCL authorizes corporations to limit or eliminate the personal liability of directors and stockholders of corporations for monetary damages for breaches of directors’ fiduciary duties, subject to certain exceptions. The Proposed Certificate of Incorporation includes a provision that eliminates, to the fullest extent permitted by the DGCL (as currently in effect or as it may in the future be amended), the personal liability of New Bowlero’s directors for damages for any breach of fiduciary duty as a director.
The Proposed Certificate of Incorporation and the Proposed Bylaws provide that, to the fullest extent permitted by the DGCL (as currently in effect or as it may in the future be amended), New Bowlero must indemnify and hold harmless and advance expenses to any of its directors and officers who is involved in any action, suit or proceeding by reason of the fact that he or she is or was a director or officer of New Bowlero or, while serving as a director or officer of New Bowlero, is or was serving at the request of New Bowlero as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity. New Bowlero also is authorized to carry directors’ and officers’ liability insurance providing indemnification for New Bowlero’s directors, officers, and certain employees for some liabilities. New Bowlero believes that these indemnification and advancement provisions and insurance are useful to attract and retain qualified directors and executive officers.
The limitation of liability, advancement and indemnification provisions in the Proposed Certificate of Incorporation and the Proposed Bylaws may discourage stockholders from bringing lawsuits against New Bowlero’s directors for breach of their fiduciary duties. These provisions also may have the effect of reducing the likelihood of derivative litigation against New Bowlero’s directors and officers, even though such an action, if successful, might otherwise benefit New Bowlero and its stockholders. In addition, your investment in New Bowlero may be adversely affected to the extent that New Bowlero pays the costs of settlement and damage awards against directors and officer pursuant to these indemnification provisions.
There is currently no pending material litigation or proceeding involving any of New Bowlero’s directors, officers, or employees for which indemnification is sought.
Corporate Opportunities
The Proposed Certificate of Incorporation provides for the renouncement by New Bowlero of any interest or expectancy of New Bowlero in, or being offered an opportunity to participate, in any matter, transaction, or interest that is presented to, or acquired, created, or developed by, or which otherwise comes into the possession of, any director of New Bowlero who is also a director, officer principal, partner, member, manager, employee, agent and/or other representative of Atairos and its related parties, unless such matter, transaction, or interest is presented to, or acquired, created, or developed by, or otherwise comes into the possession of, that director first in that director’s capacity as a director of New Bowlero.
Dissenters’ Rights of Appraisal and Payment
Under the DGCL, with certain exceptions, New Bowlero’s stockholders will have appraisal rights in connection with a merger or consolidation of New Bowlero. Pursuant to the DGCL, stockholders who properly demand and perfect appraisal rights in connection with such merger or consolidation will have the right to receive payment of the fair value of their shares as determined by the Delaware Court of Chancery.
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Stockholders’ Derivative Actions
Under the DGCL, any of New Bowlero’s stockholders may bring an action in New Bowlero’s name to procure a judgment in New Bowlero’s favor, also known as a derivative action, provided that the stockholder bringing the action is a holder of New Bowlero’s shares at the time of the transaction to which the action relates or such stockholder’s stock thereafter devolved by operation of law.
Transfer Agent and Warrant Agent
Continental Stock Transfer & Trust Company will be the transfer agent for New Bowlero Class A common stock and the warrant agent for New Bowlero warrants.
Listing of New Bowlero Class A common stock and New Bowlero Warrants
Application will be made for the shares of New Bowlero Class A common stock and New Bowlero warrants to be approved for listing on the NYSE under the symbols “BOWL” and “BOWL.WS,” respectively.
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PRICE RANGE AND DIVIDENDS OF SECURITIES
Isos
Price Range of Isos’s Securities
Isos’s units, Class A ordinary shares, and warrants are currently listed on the NYSE under the symbols “ISOS.U,” “ISOS,” and “ISOS WS,” respectively. The units commenced public trading on the NYSE on March 3, 2021. The Class A ordinary shares and warrants each commenced separate public trading on the NYSE on April 23, 2021.
The closing price of Isos’s units, Class A ordinary shares and warrants on June 30, 2021, the last trading day before announcement of the execution of the Business Combination Agreement, was $10.19, $9.88 and $1.00, respectively. The closing price of Isos’s units, Class A ordinary shares and warrants on September 10, 2021, was $10.27, $9.94 and $1.05, respectively.
Holders of Isos Capital Stock
As of the Record Date, there were holders of record of Isos ordinary shares, holders of record of Isos’s warrants and holders of record of Isos’s units.
Dividend Policy of Isos
Isos has not paid any cash dividends on its common stock to date and does not intend to pay cash dividends prior to the completion of its initial business combination (including the Business Combination).
Bowlero
Bowlero has not paid any cash dividends on the Bowlero Common Stock to date and does not intend to pay cash dividends on Bowlero Common Stock prior to the completion of the Business Combination.
Dividend Policy of the Company Following the Business Combination
The payment of cash dividends on New Bowlero common stock in the future will be dependent upon the revenues and earnings, if any, capital requirements and general financial condition of New Bowlero subsequent to completion of the Business Combination. The payment of any cash dividends on New Bowlero common stock subsequent to the Business Combination will be within the discretion of the New Bowlero Board. The New Bowlero Board is not currently contemplating and does not anticipate declaring stock dividends on New Bowlero common stock nor is it currently expected that the New Bowlero Board will declare any dividends in the foreseeable future. Further, the ability of New Bowlero to declare dividends may be limited by the terms of financing or other agreements entered into by New Bowlero or its subsidiaries, from time to time.
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APPRAISAL RIGHTS
Isos’s stockholders do not have appraisal rights in connection with the Business Combination or the domestication under Cayman Islands law or under the DGCL.
LEGAL MATTERS
Certain legal matters relating to the validity of the New Bowlero Class A and Class B common stock to be issued hereunder will be passed upon for Isos by Hughes Hubbard & Reed LLP.
EXPERTS
The financial statements of Isos Acquisition Corporation as of December 31, 2020, and for the period from December 29, 2020 (inception) through December 31, 2020 appearing in this proxy statement/prospectus have been audited by Marcum LLP, an independent registered public accounting firm, as set forth in their report appearing elsewhere in this proxy statement/prospectus, and are included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Bowlero Corp. and subsidiaries as of June 27, 2021 and June 28, 2020, and for each of the fiscal years then ended, have been included herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, appearing elsewhere herein, and upon the authority of said firm as experts in accounting and auditing.
TRANSFER AGENT AND REGISTRAR
The transfer agent for Isos’s securities is Continental Stock Transfer & Trust Company.
SUBMISSION OF SHAREHOLDER PROPOSALS
The Isos Board is aware of no other matter that may be brought before the extraordinary general meeting. Only business that is specified in the notice of the extraordinary general meeting to shareholders may be transacted at the extraordinary general meeting.
FUTURE SHAREHOLDER PROPOSALS
If the Business Combination is completed, you will be entitled to attend and participate in New Bowlero’s annual meetings of stockholders. If New Bowlero holds a 2021 annual meeting of stockholders, it will provide notice of or otherwise publicly disclose the date on which the 2021 annual meeting will be held. If the 2021 annual meeting of stockholders is held, stockholder proposals will be eligible for consideration by the directors for inclusion in the proxy statement for New Bowlero’s 2021 annual meeting of stockholders in accordance with Rule 14a-8 under the Exchange Act.
SHAREHOLDER COMMUNICATIONS
Stockholders and interested parties may communicate with the Isos Board, any committee chairperson or the non-management directors as a group by writing to the board or committee chairperson in care of Isos Acquisition Corporation, 55 Post Road West, Suite 200, Westport, CT 06880.
Following the Closing, such communications should be sent to care of Bowlero Corp., 7313 Bell Creek Road, Mechanicsville, VA 23111.
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DELIVERY OF DOCUMENTS TO SHAREHOLDERS
Pursuant to the rules of the SEC, Isos and servicers that it employs to deliver communications to Isos’s shareholders are permitted to deliver to two or more stockholders sharing the same address a single copy of this proxy statement/prospectus. Upon written or oral request, Isos will deliver a separate copy of this proxy statement/prospectus to any shareholder at a shared address to which a single copy of this proxy statement/prospectus was delivered and who wishes to receive separate copies in the future. Shareholders receiving multiple copies of this proxy statement/prospectus may likewise request that Isos deliver single copies of Isos’s proxy statement in the future. Stockholders may notify Isos of their requests by calling or writing Isos at its principal executive offices at 55 Post Road West, Suite 200, Westport, CT 06880.
WHERE YOU CAN FIND MORE INFORMATION
Isos files reports, proxy statements and other information with the SEC as required by the Exchange Act. You can read Isos’s SEC filings, including this proxy statement/prospectus, over the Internet at the SEC’s website at http://www.sec.gov.
If you would like additional copies of this proxy statement/prospectus or if you have questions about the business combination or the Proposals to be presented at the extraordinary general meeting, you should contact Isos’s proxy solicitation agent at the following address and telephone number:
Morrow Sodali LLC
Telephone: (800) 662-5200
(banks and brokers call collect at (203) 658-9400)
Email: ISOS@info.morrowsodali.com
If you are an Isos shareholder and would like to request documents, please do so by , 2021, in order to receive them before the extraordinary general meeting. If you request any documents from Isos, Isos will mail them to you by first class mail, or another equally prompt means.
All information contained in this proxy statement/prospectus relating to Isos has been supplied by Isos, and all such information relating to Bowlero has been supplied by Bowlero. Information provided by either Isos or Bowlero does not constitute any representation, estimate or projection of any other party.
This document is a proxy statement/prospectus of Isos for the extraordinary general meeting. Isos has not authorized anyone to give any information or make any representation about the Business Combination, Isos or Bowlero that is different from, or in addition to, that contained in this proxy statement/prospectus. Therefore, if anyone does give you information of this sort, you should not rely on it. The information contained in this document speaks only as of the date of this document unless the information specifically indicates that another date applies.
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INDEX TO FINANCIAL STATEMENTS
ISOS ACQUISITION CORPORATION
Bowlero Corp.
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Page
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Bowlero Corp. Consolidated Financial Statements
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Report of Independent Registered Public Accounting Firm
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F-36
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Consolidated Balance Sheets as of June 27, 2021 and June 28, 2020
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F-37
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Consolidated Statements of Operations for the years ended June 27, 2021 and June 28, 2020
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F-38
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Consolidated Statements of Comprehensive Loss for the years ended June 27, 2021
and June 28, 2020
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F-39
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Consolidated Statements of Cash Flows for the years ended June 27, 2021 and June 28, 2020
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F-40
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Consolidated Statements of Redeemable Convertible Preferred Stock, Redeemable Common Stock and Stockholders’ Equity (Deficit) for the years ended June 27, 2021 and June 28, 2020
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F-41
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Notes to Consolidated Financial Statements
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F-42 – F-65
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F-1
Table of Contents
Report of independent registered public accounting firm
To the Shareholder and Board of Directors of Isos Acquisition Corporation
Opinion on the Financial Statements
We have audited the accompanying balance sheet of Isos Acquisition Corporation (the “Company”) as of December 31, 2020, the related statements of operations, shareholders’ equity and cash flows for the period December 29, 2020 (inception) through December 31, 2020 and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2020, and the results of its operations and its cash flows for the period from December 29, 2020 (inception) through December 31, 2020 in conformity with accounting principles generally accepted in the United States of America.
Explanatory Paragraph — Going Concern
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As more fully described in Note 1 to the financial statements, the Company’s ability to execute its business plan is dependent upon its completion of the proposed initial public offering described in Note 3 to the financial statements. The Company has a working capital deficiency as of December 31, 2020 and lacks the financial resources it needs to sustain operations for a reasonable period of time, which is considered to be one year from the issuance date of the financial statements. These conditions raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans with regard to these matters are also described in Notes 1 and 3. The financial statements do not include any adjustments that might become necessary should the Company be unable to continue as a going concern.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provides a reasonable basis for our opinion.
/s/ Marcum LLP
Marcum LLP
We have served as the Company’s auditor since 2021.
Houston, TX
January 20, 2021, except as to Note 8 as to which the date is March 4, 2021
F-2
Table of Contents
Isos Acquisition Corporation
Balance sheet
December 31, 2020
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ASSETS
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Deferred offering costs
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$
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47,500
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Total Assets
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$
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47,500
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LIABILITIES AND SHAREHOLDER’S EQUITY
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Current liabilities:
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Accrued offering costs and expenses
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$
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5,000
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Promissory note related party
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22,500
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Total Current Liabilities
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27,500
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Commitments and Contingencies
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Shareholder’s Equity:
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Preference shares, $0.0001 par value; 1,000,000 shares authorized; none issued and outstanding
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—
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Class A ordinary shares, $0.0001 par value; 300,000,000 shares authorized; none issued and outstanding
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—
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Class B ordinary shares, $0.0001 par value; 20,000,000 shares authorized; 6,468,750 shares issued and outstanding(1)
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647
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Additional paid-in capital
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24,353
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Accumulated deficit
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(5,000
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)
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Total Shareholder’s Equity
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20,000
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Total Liabilities and Shareholder’s Equity
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$
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47,500
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The accompanying notes are an integral part of these financial statements.
F-3
Table of Contents
Isos Acquisition Corporation
Statement of operations
For the period from December 29, 2020 (inception) through December 31, 2020
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Formation costs
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$
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5,000
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Net loss
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$
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(5,000
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)
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Basic and diluted weighted average Class B ordinary shares outstanding(1)
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5,625,000
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Basic and diluted net loss per share
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$
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(0.00
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)
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The accompanying notes are an integral part of these financial statements.
F-4
Table of Contents
Isos Acquisition Corporation
Statement of changes in shareholder’s equity
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Class B
Ordinary Shares
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Additional Paid-In Capital
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Accumulated Deficit
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Total Shareholder’s Equity
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Shares(1)
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Amount
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Balance as of December 29, 2020 (inception)
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$
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$
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$
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$
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Class B ordinary shares issued to Sponsor
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6,468,750
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647
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24,353
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25,000
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Net loss
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—
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(5,000
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)
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(5,000
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)
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Balance as of December 31, 2020
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6,468,750
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$
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647
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$
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24,353
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$
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(5,000
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)
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$
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20,000
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The accompanying notes are an integral part of these financial statements.
F-5
Table of Contents
Isos Acquisition Corporation
Statement of cash flows
For the period from December 29, 2020 (inception) through December 31, 2020
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Cash Flows from Operating Activities:
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Net loss
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$
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(5,000
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)
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Adjustments to reconcile net loss to net cash used from operating activities
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Formation costs paid by Sponsor in exchange for issuance of Class B ordinary shares
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5,000
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Net cash used in operating activities
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$
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Net Change in Cash
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$
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Cash, December 29, 2020 (inception)
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Cash – end of the period
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$
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Supplemental disclosure of cash flow information:
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Deferred offering costs paid by Sponsor in exchange for issuance of Class B ordinary shares
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$
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20,000
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Deferred offering costs included in accrued expenses
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$
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5,000
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Deferred offering costs paid by Sponsor loan
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$
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22,500
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The accompanying notes are an integral part of these financial statements.
F-6
Table of Contents
Isos Acquisition Corporation
Notes to Financial Statements
NOTE 1 — ORGANIZATION, BUSINESS OPERATION AND GOING CONCERN
Isos Acquisition Corporation (the “Company”) was incorporated as a Cayman Islands exempted company on December 29, 2020. The Company was incorporated for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities (the “Business Combination”). The Company has not selected any Business Combination partner and the Company has not, nor has anyone on its behalf, initiated any substantive discussions, directly or indirectly, with any Business Combination partner.
As of December 31, 2020, the Company had not commenced any operations. All activity for the period from December 29, 2020 (inception) through December 31, 2020 relates to the Company’s formation and the proposed initial public offering described below. The Company will not generate any operating revenues until after the completion of its initial Business Combination, at the earliest. The Company will generate non-operating income in the form of interest income on cash and cash equivalents from the proceeds derived from the Proposed Public Offering (as defined below). The Company has selected December 31 as its fiscal year end.
The Company’s sponsor is Isos Acquisition Sponsor LLC, a Delaware limited liability company (the “Sponsor”). The Company’s ability to commence operations is contingent upon obtaining adequate financial resources through a proposed public offering of 22,500,000 units at $10.00 per unit (the “Units”) (or 25,875,000 units if the underwriters’ over-allotment option is exercised in full), which is discussed in Note 3 (the “Proposed Public Offering”), and the sale of 5,000,000 warrants (or 5,450,001 warrants if the underwriters’ over-allotment option is exercised in full) (the “Private Placement Warrants”), each exercisable to purchase one Class A ordinary share at $11.50 per share, at a price of $1.50 per Private Placement Warrant in a private placement to the Sponsor that will close simultaneously with the Proposed Public Offering. The Company’s management has broad discretion with respect to the specific application of the net proceeds of the Proposed Public Offering and the sale of Private Placement Warrants, although substantially all of the net proceeds are intended to be applied generally toward consummating a Business Combination.
The Company must complete one or more initial Business Combinations having an aggregate fair market value of at least 80% of the value of the assets held in the Trust Account (as defined below) (excluding the deferred underwriting commissions and taxes payable on the interest earned on the Trust Account) at the time of the agreement to enter into the initial Business Combination. However, the Company will only complete a Business Combination if the post-transaction company owns or acquires 50% or more of the issued and outstanding voting securities of the target or otherwise acquires a controlling interest in the target sufficient for it not to be required to register as an investment company under the Investment Company Act 1940, as amended (the “Investment Company Act”). There is no assurance that the Company will be able to complete a Business Combination successfully.
Upon the closing of the Proposed Public Offering, management has agreed that an amount equal to at least $10.00 per Unit sold in the Proposed Public Offering, including the proceeds of the Private Placement Warrants, will be held in a trust account (“Trust Account”) and will only be invested in United States “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act having a maturity of 185 days or less or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act which invest only in direct U.S. government treasury obligations. The Trust Account is intended as a holding place for funds pending the earliest to occur of either: (i) the completion of the initial Business Combination; (ii) the redemption of any public shares properly tendered in connection with a shareholder vote to amend the Company’s amended and restated memorandum and articles of association (A) to modify the substance or timing of the Company’s obligation to provide holders of the Class A ordinary shares the right to have their shares redeemed in connection with the initial Business Combination or to redeem 100% of the public shares if the Company does not complete the initial Business Combination within 24 months from the closing of the Proposed Public Offering or (B) with respect to any other provision relating to the rights of holders of the Class A ordinary shares or pre-initial Business Combination activity, and (iii) the redemption of the public shares if the Company has not consummated an initial business within 24 months from the closing of the Proposed Public Offering, subject to applicable law.
F-7
Table of Contents
Isos Acquisition Corporation
Notes to Financial Statements
NOTE 1 — ORGANIZATION, BUSINESS OPERATION AND GOING CONCERN (cont.)
The Company will provide its public shareholders with the opportunity to redeem all or a portion of their public shares upon the completion of the initial Business Combination either (i) in connection with a general meeting called to approve the Business Combination or (ii) by means of a tender offer. The decision as to whether the Company will seek shareholder approval of a proposed Business Combination or conduct a tender offer will be made by the Company, solely in its discretion. The shareholders will be entitled to redeem their shares at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account calculated as of two business days prior to the consummation of the initial Business Combination, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay the income taxes, if any, divided by the number of then issued and outstanding public shares, subject to the limitations. The amount in the Trust Account is initially anticipated to be $10.00 per public share.
The Class A ordinary shares subject to redemption will be recorded at a redemption value and classified as temporary equity upon the completion of the Proposed Public Offering, in accordance with Financial Accounting Standards Board’s (“FASB”) Accounting Standards Codification (“ASC”) Topic 480 “Distinguishing Liabilities from Equity.” In such case, the Company will proceed with a Business Combination if the Company has net tangible assets of at least $5,000,001 upon such consummation of a Business Combination and, if the Company seeks shareholder approval, a majority of the issued and outstanding shares voted are voted in favor of the Business Combination.
The Company will have 24 months from the closing of the Proposed Public Offering to complete the initial Business Combination (the “Combination Period”). However, if the Company is unable to complete the initial Business Combination within the Combination Period, the Company will (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible, but not more than ten business days thereafter, redeem the public shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay income taxes, if any (less up to $100,000 of interest to pay dissolution expenses), divided by the number of then-outstanding public shares, which redemption will completely extinguish public shareholders’ rights as shareholders (including the right to receive further liquidating distributions, if any), and (3) as promptly as reasonably possible following such redemption, subject to the approval of the remaining shareholders and board of directors, liquidate and dissolve, subject in each case to the Company’s obligations under Cayman Islands law to provide for claims of creditors and the requirements of other applicable law.
The Sponsor and the Company’s founding team have entered into a letter agreement with the Company, pursuant to which they have agreed to waive their redemption rights with respect to their founder shares (as described in Note 5) and any public shares purchased during or after the Proposed Public Offering in connection with (i) the completion of the initial Business Combination and (ii) a shareholder vote to approve an amendment to the amended and restated memorandum and articles of association (A) that would modify the substance or timing of the Company’s obligation to provide holders of the Class A ordinary shares the right to have their shares redeemed in connection with the initial Business Combination or to redeem 100% of the Company’s public shares if the Company does not complete the initial Business Combination within the Combination Period or (B) with respect to any other provision relating to the rights of holders of the Class A ordinary shares or pre-initial Business Combination activity. Additionally, the Sponsor has agreed to waive its rights to liquidating distributions from the Trust Account with respect to its founder shares if the Company fails to complete the initial Business Combination within the Combination Period (although they will be entitled to liquidating distributions from the Trust Account with respect to any public shares they hold if the Company fails to complete the initial Business Combination within the Combination Period). If the Company submits the initial Business Combination to the public shareholders for a vote, the Sponsor and each member of the founding team have agreed to vote their founder shares and any public shares purchased during or after the Proposed Public Offering in favor of the initial Business Combination.
The Sponsor has agreed that it will be liable to the Company if and to the extent any claims by a third party (excluding the Company’s independent registered public accounting firm) for services rendered or products sold to the Company, or a prospective partner business with which the Company has discussed entering into a transaction agreement, reduce the amounts in the Trust Account to below the lessor of (i) $10.00 per public share and (ii) the
F-8
Table of Contents
Isos Acquisition Corporation
Notes to Financial Statements
NOTE 1 — ORGANIZATION, BUSINESS OPERATION AND GOING CONCERN (cont.)
actual amount per share held in the Trust Account as of the date of the liquidation of the Trust Account if less than $10.00 per public share due to reductions in the value of the trust assets, in each case net of the interest that may be withdrawn to pay the Company’s tax obligations, provided that such liability will not apply to any claims by a third party or prospective partner business who executed a waiver of any and all rights to seek access to the Trust Account nor will it apply to any claims under the Company’s indemnity of the underwriters of the Proposed Public Offering against certain liabilities, including liabilities under the Securities Act of 1933, as amended, (the “Securities Act”). Moreover, in the event that an executed waiver is deemed to be unenforceable against a third party, the Sponsor will not be responsible to the extent of any liability for such third party claims. The Company has not asked the Sponsor to reserve for such indemnification obligations, or has the Company independently verified whether the Sponsor has sufficient funds to satisfy its indemnity obligations and the Company believes that the Sponsor’s only assets are securities of the Company. The Sponsor may not be able to satisfy those obligations.
Going Concern Consideration
As of December 31, 2020, the Company had no cash and a working capital deficit of $27,500 (excluding deferred offering costs). The Company has incurred and expects to continue to incur significant costs in pursuit of its financing and acquisition plans. These conditions raise substantial doubt about the Company’s ability to continue as a going concern. Management plans to address this uncertainty through a Proposed Public Offering as discussed in Note 3. There is no assurance that the Company’s plans to raise capital or to consummate a Business Combination will be successful within the Combination Period. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Risks and Uncertainties
Management is currently evaluating the impact of the COVID-19 pandemic and has concluded that while it is reasonably possible that the virus could have a negative effect on the Company’s financial position, results of its operations and/or search for a target company, the specific impact is not readily determinable as of the date of these financial statements. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
NOTE 2 — SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The accompanying financial statements are presented in conformity with accounting principles generally accepted in the United States of America (“US GAAP”) and pursuant to the rules and regulations of the SEC.
Emerging Growth Company Status
The Company is an “emerging growth company,” as defined in Section 2(a) of the Securities Act, as modified by the Jumpstart our Business Startups Act of 2012, (the “JOBS Act”), and it may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in its periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved.
Further, Section 102(b)(1) of the JOBS Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies (that is, those that have not had a Securities Act registration statement declared effective or do not have a class of securities registered under the Exchange Act) are required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company can elect to opt out of the extended transition period and comply with the requirements
F-9
Table of Contents
Isos Acquisition Corporation
Notes to Financial Statements
NOTE 2 — SIGNIFICANT ACCOUNTING POLICIES (cont.)
that apply to non-emerging growth companies but any such election to opt out is irrevocable. The Company has elected not to opt out of such extended transition period which means that when a standard is issued or revised and it has different application dates for public or private companies, the Company, as an emerging growth company, can adopt the new or revised standard at the time private companies adopt the new or revised standard. This may make comparison of the Company’s financial statements with another public company which is neither an emerging growth company nor an emerging growth company which has opted out of using the extended transition period difficult or impossible because of the potential differences in accounting standards used.
Use of Estimates
The preparation of financial statements in conformity with US GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of expenses during the reporting period. Actual results could differ from those estimates.
Cash and Cash Equivalents
The Company considers all short-term investments with an original maturity of three months or less when purchased to be cash equivalents. The Company did not have any cash equivalents as of December 31, 2020.
Deferred Offering Costs
Deferred offering costs consist of legal and accounting expenses incurred through the balance sheet date that are directly related to the Proposed Public Offering and that will be charged to shareholders’ equity upon the completion of the Proposed Public Offering. Should the Proposed Public Offering prove to be unsuccessful, these deferred costs, as well as additional expenses to be incurred, will be charged to operations.
Net Loss Per Share
The Company complies with accounting and disclosure requirements of FASB ASC Topic 260, “Earnings Per Share.” Net loss per share is computed by dividing net loss by the weighted average number of ordinary shares outstanding during the period, excluding ordinary shares subject to forfeiture by the Sponsor. Weighted average shares were reduced for the effect of an aggregate of 843,750 ordinary shares that are subject to forfeiture if the over-allotment option is not exercised by the underwriters (see Note 5). At December 31, 2020, the Company did not have any dilutive securities and other contracts that could, potentially, be exercised or converted into ordinary shares and then share in the earnings of the Company. As a result, diluted loss per share is the same as basic loss per share for the period presented.
Fair Value of Financial Instruments
The fair value of the Company’s assets and liabilities, which qualify as financial instruments under FASB ASC 820, “Fair Value Measurements and Disclosures,” approximates the carrying amounts represented in the balance sheet, primarily due to its short-term nature.
Income Taxes
The Company accounts for income taxes under FASB ASC 740, “Income Taxes” (“ASC 740”). ASC 740 requires the recognition of deferred tax assets and liabilities for both the expected impact of differences between the financial statement and tax basis of assets and liabilities and for the expected future tax benefit to be derived from tax loss and tax credit carry forwards. ASC 740 additionally requires a valuation allowance to be established when it is more likely than not that all or a portion of deferred tax assets will not be realized.
F-10
Table of Contents
Isos Acquisition Corporation
Notes to Financial Statements
NOTE 2 — SIGNIFICANT ACCOUNTING POLICIES (cont.)
ASC 740 also clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s financial statements and prescribes a recognition threshold and measurement process for financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. For those benefits to be recognized, a tax position must be more-likely-than-not to be sustained upon examination by taxing authorities. ASC 740 also provides guidance on derecognition, classification, interest and penalties, accounting in interim period, disclosure and transition. Based on the Company’s evaluation, it has been concluded that there are no significant uncertain tax positions requiring recognition in the Company’s financial statements. Since the Company was incorporated on December 29, 2020, the evaluation was performed for upcoming 2020 tax year which will be the only period subject to examination.
The Company recognizes accrued interest and penalties related to unrecognized tax benefits as income tax expense. There were no unrecognized tax benefits and no amounts accrued for interest and penalties as of December 31, 2020. The Company is currently not aware of any issues under review that could result in significant payments, accruals or material deviation from its position.
There is currently no taxation imposed on income by the Government of the Cayman Islands. In accordance with Cayman federal income tax regulations, income taxes are not levied on the Company. Consequently, income taxes are not reflected in the Company’s financial statements.
Recent Accounting Pronouncements
Management does not believe that any recently issued, but not effective, accounting standards, if currently adopted, would have a material effect on the Company’s financial statements.
NOTE 3 — PROPOSED PUBLIC OFFERING
Pursuant to the Proposed Public Offering, the Company intends to offer for sale 22,500,000 Units, (or 25,875,000 Units if the underwriters’ over-allotment option is exercised in full) at a price of $10.00 per Unit. Each Unit consists of one Class A ordinary share and one-third of one redeemable warrant. Each whole warrant entitles the holder to purchase one Class A ordinary share at a price of $11.50 per share, subject to adjustment. The warrants will become exercisable on the later of 30 days after the completion of the initial Business Combination or 12 months from the closing of the Proposed Public Offering, and will expire five years after the completion of the initial Business Combination or earlier upon redemption or liquidation.
NOTE 4 — PRIVATE PLACEMENT
The Company’s Sponsor has agreed to purchase an aggregate of 3,666,667 warrants (or 4,002,383 warrants if the over-allotment option is exercised in full) and LionTree Partners has agreed to purchase an aggregate of 1,333,333 Private Placement Warrants (or 1,447,618 warrants if the underwriters’ over-allotment option is exercised in full) at a price of $1.50 per Private Placement Warrants, for an aggregate purchase price of $7,500,000 (or $8,175,000 if the underwriters’ over-allotment option is exercised in full).
The Private Placement Warrants (including the Class A ordinary shares issuable upon exercise of the Private Placement Warrants) will not be transferable, assignable or saleable until 30 days after the completion of the initial Business Combination and they will not be redeemable by the Company (except as described below in Note 7 Redemption of warrants when the price per Class A ordinary share equals or exceeds $10.00”) so long as they are held by the Sponsor or its permitted transferees. The Sponsor, or its permitted transferees, has the option to exercise the Private Placement Warrants on a cashless basis. If the Private Placement Warrants are held by holders other than the Sponsor or its permitted transferees, the Private Placement Warrants will be redeemable by the Company in all redemption scenarios and exercisable by the holders on the same basis as the warrants included in the Units being sold in the Proposed Public Offering.
F-11
Table of Contents
Isos Acquisition Corporation
Notes to Financial Statements
NOTE 5 — RELATED PARTY TRANSACTIONS
Founder Shares
In December 2020, the Sponsor paid $25,000, or approximately $0.004 per share, to cover certain offering costs in consideration for 5,750,000 Class B ordinary shares, par value $0.0001. Up to 750,000 founder shares are subject to forfeiture by the Sponsor depending on the extent to which the underwriters’ over-allotment option is exercised. In March 2021, the Company effected a stock dividend of approximately 0.125 shares for each share of Class B common stock outstanding, resulting in the initial stockholders holding an aggregate of 6,468,750 founder shares (up to 843,750 shares of which are subject to forfeiture depending on the extent to which the underwriters’ over-allotment option is exercised).
The Sponsor and the Company’s founding team have entered into a letter agreement with the Company, pursuant to which they have agreed to waive their redemption rights with respect to their founder shares (as described in Note 5) and any public shares purchased during or after the Proposed Public Offering in connection with (i) the completion of the initial Business Combination and (ii) a shareholder vote to approve an amendment to the amended and restated memorandum and articles of association (A) that would modify the substance or timing of the Company’s obligation to provide holders of the Class A ordinary shares the right to have their shares redeemed in connection with the initial Business Combination or to redeem 100% of the Company’s public shares if the Company does not complete the initial Business Combination within the Combination Period or (B) with respect to any other provision relating to the rights of holders of the Class A ordinary shares or pre-initial Business Combination activity. Additionally, the Sponsor has agreed to waive its rights to liquidating distributions from the Trust Account with respect to its founder shares if the Company fails to complete the initial Business Combination within the Combination Period (although they will be entitled to liquidating distributions from the Trust Account with respect to any public shares they hold if the Company fails to complete the initial Business Combination within the Combination Period). If the Company submits the initial Business Combination to the public shareholders for a vote, the Sponsor and each member of the founding team have agreed to vote their founder shares and any public shares purchased during or after the Proposed Public Offering in favor of the initial Business Combination.
Except as described herein, the Sponsor and the founding team have agreed not to transfer, assign or sell any of their founder shares until the earliest of: (1) one year after the completion of the initial Business Combination; and (2) subsequent to the initial Business Combination (x) if the closing price of the Class A ordinary shares equals or exceeds $12.00 per share (as adjusted for share divisions, share capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the initial Business Combination or (y) the date on which the Company completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of the public shareholders having the right to exchange their ordinary shares for cash, securities or other property.
Promissory Note — Related Party
On December 30, 2020, the Sponsor agreed to loan the Company up to $300,000 to be used for a portion of the expenses of the Proposed Public Offering. These loans are non-interest bearing, unsecured and are due at the earlier of June 30, 2021 or the closing of the Proposed Public Offering. The loan will be repaid upon the closing of the Proposed Public Offering out of the $2,000,000 of offering proceeds that has been allocated to the payment of offering expenses. As of December 31, 2020, the Company had borrowed $22,500 under the promissory note.
Working Capital Loans
In addition, in order to finance transaction costs in connection with an intended Business Combination, the Sponsor or an affiliate of the Sponsor, or certain of the Company’s officers and directors may, but are not obligated to, loan the Company funds as may be required (“Working Capital Loans”). If the Company completes the initial Business Combination, the Company may repay the Working Capital Loans out of the proceeds of the Trust Account released to the Company. In the event that the initial Business Combination does not close, the Company may use a portion of the working capital held outside the Trust Account to repay the Working Capital Loans but no proceeds
F-12
Table of Contents
Isos Acquisition Corporation
Notes to Financial Statements
NOTE 5 — RELATED PARTY TRANSACTIONS (cont.)
from the Trust Account would be used to repay the Working Capital Loans. Up to $1,500,000 of such Working Capital Loans may be convertible into warrants of the post-Business Combination company at a price of $1.50 per warrant at the option of the lender. Such warrants would be identical to the Private Placement Warrants. As of December 31, 2020, the Company had no borrowings under the Working Capital Loans.
Administrative Service Fee
Subsequent to the closing of the Proposed Public Offering, the Company will pay an affiliate of the Sponsor $51,667 per month for office space, secretarial and administrative services provided to members of the Company’s management team. Upon completion of the initial Business Combination or the Company’s liquidation, the Company will cease paying these monthly fees.
NOTE 6 — COMMITMENTS & CONTINGENCIES
Registration and Shareholder Rights
The holders of the founder shares, Private Placement Warrants, Class A ordinary shares underlying the Private Placement Warrants, any warrants that may be issued on conversion of Working Capital Loans (and any Class A ordinary shares issuable upon the exercise of the Private Placement Warrants or warrants issued upon conversion of the Working Capital Loans), and securities issuable pursuant to the forward purchase agreement (as described below) will be entitled to registration rights pursuant to a registration and shareholder rights agreement to be signed prior to or on the effective date of the Proposed Public Offering. The holders of these securities are entitled to make up to three demands, excluding short form demands, that the Company registers such securities. Notwithstanding anything to the contrary, LionTree Partners may only make a demand on one occasion and only during the five-year period beginning on the effective date of the registration statement of which this prospectus forms a part. In addition, the holders have certain “piggy-back” registration rights with respect to registration statements filed subsequent to the completion of the initial Business Combination; provided, however, that LionTree Partners may participate in a “piggy-back” registration only during the seven-year period beginning on the effective date of the registration statement of which this prospectus forms a part.
Underwriters Agreement
The Company will grant the underwriters a 45-day option from the date of the prospectus to purchase up to an additional 3,375,000 Units to cover over-allotments, if any.
The underwriters will be entitled to a cash underwriting discount of two percent (2%) of the gross proceeds of the Proposed Public Offering, or $4,500,000 (or $5,175,000 if the underwriters’ over-allotment is exercised in full). Additionally, the underwriters will be entitled to a deferred underwriting discount of 3.5% of the gross proceeds of the Proposed Public Offering upon the completion of the Company’s initial Business Combination.
Forward Purchase Agreement
In connection with the consummation of this offering, we entered into a forward purchase agreement with affiliates of Apollo, which we refer to herein as the forward purchaser, that will provide for the purchase of units at $10.00 per unit in a private placement to occur concurrently with the closing of our initial business combination. The forward purchase agreement provides that the forward purchaser will purchase units in a minimum amount equal to 25% of the units sold in this offering, up to 7,500,000 units, for an aggregate purchase price of up to $75,000,000. The contingent forward purchase units and their component securities would be identical to the units being sold in this offering, except that the contingent forward purchase units and their component securities would be subject to transfer restrictions and certain registration rights, as described herein. The funds from the sale of contingent forward purchase units may be used as part of the consideration to the sellers in the initial business combination.
F-13
Table of Contents
Isos Acquisition Corporation
Notes to Financial Statements
NOTE 7 — SHAREHOLDERS’ EQUITY
Preference shares — The Company is authorized to issue 1,000,000 preference shares with a par value of $0.0001 and with such designations, voting and other rights and preferences as may be determined from time to time by the Company’s board of directors. As of December 31, 2020, there were no preference shares issued or outstanding.
Class A Ordinary Shares — The Company is authorized to issue 300,000,000 Class A ordinary shares with a par value of $0.0001 per share. At December 31, 2020, there were no Class A ordinary shares issued or outstanding.
Class B Ordinary Shares — The Company is authorized to issue 20,000,000 Class B ordinary shares with a par value of $0.0001 per share. Holders are entitled to one vote for each Class B ordinary share. At December 31, 2020, there were 5,750,000 Class B ordinary shares issued and outstanding. Of the 5,750,000 Class B ordinary shares, an aggregate of up to 750,000 shares are subject to forfeiture to the Company for no consideration to the extent that the underwriters’ over-allotment option is not exercised in full or in part, so that the initial shareholders will collectively own 20% of the Company’s issued and outstanding ordinary shares after the Proposed Public Offering. In March 2021, the Company effected a stock dividend of approximately 0.125 shares for each share of Class B common stock outstanding, resulting in the initial stockholders holding an aggregate of 6,468,750 founder shares (up to 843,750 shares of which are subject to forfeiture depending on the extent to which the underwriters’ over-allotment option is exercised).
Holders of Class A ordinary shares and holders of Class B ordinary shares will vote together as a single class, which each share entitling the holder to one vote.
The Class B ordinary shares will automatically convert into Class A ordinary shares immediately following the consummation of the initial Business Combination at a ratio such that the number of Class A ordinary shares issuable upon conversion of all founder shares will equal, in the aggregate, on an as-converted basis, 20% of the sum of (i) the total number of ordinary shares issued and outstanding upon completion of the Proposed Public Offering, plus (ii) the sum of the total number of Class A ordinary shares issued or deemed issued or issuable upon conversion or exercise of any equity-linked securities or rights issued or deemed issued, by the Company in connection with or in relation to the consummation of the initial Business Combination, excluding any Class A ordinary shares or equity-linked securities exercisable for or convertible into Class A ordinary shares issued, deemed issued, or to be issued, to any seller in the initial Business Combination any Private Placement Warrants issued to the Sponsor, members of the founding team or any of their affiliates upon conversion of working capital loans and any securities issued pursuant to the forward purchase agreement. In no event will the Class B ordinary shares convert into Class A ordinary shares at a rate of less than one to one.
Warrants — No warrants are currently outstanding. Each whole warrant entitles the holder to purchase one Class A ordinary share at a price of $11.50 per share, subject to adjustment as discussed herein. In addition, if (x) the Company issues additional Class A ordinary shares or equity-linked securities for capital raising purposes in connection with the closing of the initial Business Combination at an issue price or effective issue price of less than $9.20 per Class A ordinary share (with such issue price or effective issue price to be determined in good faith by the board of directors and, in the case of any such issuance to the initial shareholders or their affiliates, without taking into account any founder shares held by the initial shareholders or such affiliates, as applicable, prior to such issuance including any transfer or reissuance of such shares) (the “Newly Issued Price”), (y) the aggregate gross proceeds from such issuances represent more than 50% of the total equity proceeds, and interest thereon, available for the funding of the initial Business Combination, and (z) the volume weighted average trading price of the Class A ordinary shares during the 10 trading day period starting on the trading day after the day on which the Company consummates the initial Business Combination (such price, the “Market Value”) is below $9.20 per share, the exercise price of the warrants will be adjusted (to the nearest cent) to be equal to 115% of the higher of the Market Value and the Newly Issued Price, and the $10.00 and the $18.00 per share redemption trigger prices described below under “Redemption of warrants for Class A ordinary shares when the price per Class A ordinary share equals or exceeds $10.00” and “Redemption of warrants for Class A ordinary shares when the price per Class A ordinary share equals or exceeds $18.00” will be adjusted (to the nearest cent) to be equal to 100% and 180% of the higher of the Market Value and the Newly Issued Price, respectively.
F-14
Table of Contents
Isos Acquisition Corporation
Notes to Financial Statements
NOTE 7 — SHAREHOLDERS’ EQUITY (cont.)
The warrants will become exercisable on the later of one year from the closing of the Proposed Public Offering and 30 days after the completion of its initial Business Combination, and will expire five years after the completion of the Company’s initial Business Combination, at 5:00 p.m., New York City time, or earlier upon redemption or liquidation.
The Company has agreed that as soon as practicable, but in no event later than 20 business days after the closing of the initial Business Combination, the Company will use the commercially reasonable efforts to file with the SEC a registration statement covering the Class A ordinary shares issuable upon exercise of the warrants, and the Company will use the commercially reasonable efforts to cause the same to become effective within 60 business days after the closing of the initial Business Combination and to maintain the effectiveness of such registration statement, and a current prospectus relating to those Class A ordinary shares until the warrants expire or are redeemed, as specified in the warrant agreement; provided that if the Class A ordinary shares are, at the time of any exercise of a warrant, not listed on a national securities exchange such that they satisfy the definition of a “covered security” under Section 18(b)(1) of the Securities Act, the Company may, at the Company›s option, require holders of public warrants who exercise their warrants to do so on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act and, in the event the Company so appoint, the Company will not be required to file or maintain in effect a registration statement. If a registration statement covering the Class A ordinary shares issuable upon exercise of the warrants is not effective by the 60th day after the closing of the initial Business Combination, warrant holders may, until such time as there is an effective registration statement and during any period when the Company will have failed to maintain an effective registration statement, exercise warrants on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act or another exemption, but the Company will use the best efforts to register or qualify the shares under applicable blue sky laws to the extent an exemption is not available.
Redemptions of warrants for cash when the price per Class A ordinary share equals or exceeds $18.00. Once the warrants become exercisable, the Company may redeem the outstanding warrants (except as described herein with respect to the Private Placement Warrants):
• in whole and not in part;
• at a price of $0.01 per warrant;
• upon not less than 30 days› prior written notice of redemption (the “30-day redemption period”); and
• if, and only if, the last reported sales price of the Class A ordinary shares equals or exceeds $18.00 per share (as adjusted for share sub-divisions, share capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period ending on the third trading day prior to the date on which the Company sends the notice of the redemption to the warrant holders (the “Reference Value”).
Redemption of warrants for Class A ordinary shares when the price per Class A ordinary share equals or exceeds $10.00. Once the warrants become exercisable, the Company may redeem the outstanding warrants:
• in whole and not in part;
• at $0.10 per warrant upon a minimum of 30 days› prior written notice of redemption; provided that holders will be able to exercise their warrants on a cashless basis prior to redemption and receive that number of shares determined by reference to the table sets forth in the “Description of Securities — Warrants — Public Shareholders’ Warrants” section, based on the redemption date and the “fair market value” (as defined below) of the Class A ordinary shares;
• if, and only if, the closing price of the Class A ordinary shares equals or exceeds $10.00 per public share (as adjusted per share subdivisions, share dividends, reorganizations, recapitalizations and the like) on the trading day before the Company sends the notice of redemption to the warrant holders; and
F-15
Table of Contents
Isos Acquisition Corporation
Notes to Financial Statements
NOTE 7 — SHAREHOLDERS’ EQUITY (cont.)
• if the Reference Value is less than $18.00 per share (as adjusted for share splits, share dividends, rights issuances, subdivisions, reorganizations, recapitalizations and the like), the Private Placement Warrants must also be concurrently called for redemption on the same terms as the outstanding public warrants, as described above.
The “fair market value” of the Class A ordinary shares shall mean the volume-weighted average price of the Class A ordinary shares for the 10 trading days immediately following the date on which the notice of redemption is sent to the holders of warrants. This redemption feature differs from the typical warrant redemption features used in other blank check offerings. The Company will provide the warrant holders with the final fair market value no later than one business day after the 10-day trading period described above ends. In no event will the warrants be exercisable in connection with this redemption feature for more than 0.361 Class A ordinary shares per warrant (subject to adjustment).
NOTE 8 — SUBSEQUENT EVENTS
On February 25, 2021, the Company issued 576,786 Class B ordinary shares to Lion Tree Partners for nominal consideration (up to 176,786 of which are subject to forfeiture depending on the extent to which the underwriters’ over-allotment option is exercised) and cancelled such same amount of Class B ordinary shares held by the Sponsor.
In March 2021, the Company effected a stock dividend of approximately 0.125 shares for each share of Class B common stock outstanding, resulting in the initial stockholders holding an aggregate of 6,468,750 founder shares (up to 843,750 shares of which are subject to forfeiture depending on the extent to which the underwriters’ over-allotment option is exercised). The financial statements have been retroactively restated to reflect the stock dividend occurred in March 2021.
F-16
Table of Contents
ISOS ACQUISITION CORPORATION
CONDENSED BALANCE SHEETS
|
|
|
June 30,
2021
|
|
December 31,
2020
|
|
|
|
(unaudited)
|
|
|
|
Assets
|
|
|
|
|
|
|
|
|
Current assets
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
1,803,856
|
|
$
|
|
|
|
Prepaid expenses
|
|
|
195,905
|
|
|
|
|
|
Deferred offering costs
|
|
|
|
|
|
47,500
|
|
|
Total current assets
|
|
|
1,999,761
|
|
|
47,500
|
|
|
|
|
|
|
|
|
|
|
|
Marketable securities held in Trust Account
|
|
|
254,841,541
|
|
|
|
|
|
Prepaid expenses, non-current
|
|
|
126,370
|
|
|
|
|
|
Total Assets
|
|
$
|
256,967,672
|
|
$
|
47,500
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities and Shareholders’ Equity
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
Accrued offering costs and expenses
|
|
$
|
61,164
|
|
$
|
5,000
|
|
|
Due to related party
|
|
|
1,000
|
|
|
|
|
|
Promissory note – related party
|
|
|
|
|
|
22,500
|
|
|
Total current liabilities
|
|
|
62,164
|
|
|
27,500
|
|
|
Forward Purchase Agreement liability
|
|
|
1,512,408
|
|
|
|
|
|
Warrant liability
|
|
|
13,966,330
|
|
|
|
|
|
Deferred underwriting discount
|
|
|
8,919,295
|
|
|
|
|
|
Total liabilities
|
|
|
24,460,197
|
|
|
27,500
|
|
|
|
|
|
|
|
|
|
|
|
Commitments and Contingencies (Note 8)
|
|
|
|
|
|
|
|
|
Class A ordinary shares subject to possible redemption, 22,750,747 shares and 0 shares at redemption value, at June 30, 2021 and December 31, 2020, respectively
|
|
|
227,507,470
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders’ Equity:
|
|
|
|
|
|
|
|
|
Preference shares, $0.0001 par value; 1,000,000 shares authorized; none issued and outstanding
|
|
|
|
|
|
|
|
|
Class A ordinary shares, $0.0001 par value; 300,000,000 shares authorized; 2,732,953 shares and 0 shares issued and outstanding (excluding 22,750,747 shares and 0 shares subject to possible redemption) at June 30, 2021 and December 31, 2020, respectively
|
|
|
273
|
|
|
|
|
|
Class B ordinary shares, $0.0001 par value; 20,000,000 shares authorized; 6,370,925 shares and 6,468,750 shares issued and outstanding at June 30, 2021 and December 31, 2020, respectively
|
|
|
637
|
|
|
647
|
|
|
Additional paid-in capital
|
|
|
3,117,843
|
|
|
24,353
|
|
|
Retained Earnings (Accumulated deficit)
|
|
|
1,881,252
|
|
|
(5,000
|
)
|
|
Total shareholders’ equity
|
|
|
5,000,005
|
|
|
20,000
|
|
|
Total Liabilities and Shareholders’ Equity
|
|
$
|
256,967,672
|
|
$
|
47,500
|
|
The accompanying notes are an integral part of these unaudited condensed financial statements.
F-17
Table of Contents
ISOS ACQUISITION CORPORATION
CONDENSED STATEMENTS OF OPERATIONS
(Unaudited)
|
|
|
Three months
ended
June 30,
2021
|
|
Six months
ended
June 30,
2021
|
|
Formation and operating costs
|
|
$
|
380,526
|
|
|
$
|
475,353
|
|
|
Loss from Operations
|
|
|
(380,526
|
)
|
|
|
(475,353
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
Trust interest income
|
|
|
3,541
|
|
|
|
3,541
|
|
|
Warrant issuance costs
|
|
|
—
|
|
|
|
(638,847
|
)
|
|
Unrealized loss on change in fair value of FPA
|
|
|
(1,709,377
|
)
|
|
|
(1,458,454
|
)
|
|
Unrealized gain on change in fair value of warrants
|
|
|
4,889,502
|
|
|
|
4,455,365
|
|
|
Total other income
|
|
|
3,183,666
|
|
|
|
2,361,605
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
2,803,140
|
|
|
$
|
1,886,252
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted weighted average shares outstanding, ordinary share subject to redemption
|
|
|
22,470,433
|
|
|
|
14,141,692
|
|
|
Basic and diluted net income per share
|
|
$
|
—
|
|
|
$
|
|
|
|
Basic and diluted weighted average shares outstanding, ordinary share
|
|
|
9,384,192
|
|
|
|
8,619,700
|
|
|
Basic and diluted net income per share
|
|
$
|
0.30
|
|
|
$
|
0.22
|
|
The accompanying notes are an integral part of these unaudited condensed financial statements.
F-18
Table of Contents
ISOS ACQUISITION CORPORATION
CONDENSED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY
(unaudited)
|
|
|
Class A
Ordinary Shares
|
|
Class B
Ordinary Shares
|
|
Additional Paid-in
Capital
|
|
(Accumulated Deficit)/Retained Earnings
|
|
Total Shareholders’ Equity
|
|
Shares
|
|
Amount
|
|
Shares
|
|
Amount
|
|
|
Balance as of December 31, 2020
|
|
|
|
|
$
|
|
|
|
6,468,750
|
|
|
$
|
647
|
|
|
$
|
24,353
|
|
|
$
|
(5,000
|
)
|
|
$
|
20,000
|
|
|
Sale of 22,500,000 Units through initial public offering
|
|
22,500,000
|
|
|
|
2,250
|
|
|
—
|
|
|
|
|
|
|
|
224,997,750
|
|
|
|
|
|
|
|
225,000,000
|
|
|
Sale of 2,983,700 Units through over-allotment
|
|
2,983,700
|
|
|
|
298
|
|
|
—
|
|
|
|
|
|
|
|
29,836,702
|
|
|
|
|
|
|
|
29,837,000
|
|
|
Sale of 5,397,828 Private Placement Warrants to Sponsor in private placement
|
|
—
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
8,096,742
|
|
|
|
|
|
|
|
8,096,742
|
|
|
Underwriting fee
|
|
—
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
(5,096,742
|
)
|
|
|
|
|
|
|
(5,096,742
|
)
|
|
Deferred underwriting fee
|
|
—
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
(8,919,295
|
)
|
|
|
|
|
|
|
(8,919,295
|
)
|
|
Offering costs charged to the shareholders’ equity
|
|
—
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
(479,680
|
)
|
|
|
|
|
|
|
(479,680
|
)
|
|
Initial classification of warrant liability
|
|
—
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
(18,421,695
|
)
|
|
|
|
|
|
|
(18,421,695
|
)
|
|
Reclassification of offering costs related to warrants
|
|
—
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
638,847
|
|
|
|
|
|
|
|
638,847
|
|
|
Initial classification of FPA liability
|
|
—
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
(53,954
|
)
|
|
|
|
|
|
|
(53,954
|
)
|
|
Forfeiture of founder shares
|
|
—
|
|
|
|
|
|
|
(97,825
|
)
|
|
|
(10
|
)
|
|
|
10
|
|
|
|
|
|
|
|
—
|
|
|
Net loss
|
|
—
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
(916,888
|
)
|
|
|
(916,888
|
)
|
|
Change in Class A ordinary shares subject to possible redemption
|
|
(22,470,433
|
)
|
|
|
(2,247
|
)
|
|
—
|
|
|
|
|
|
|
|
(224,702,083
|
)
|
|
|
|
|
|
|
(224,704,330
|
)
|
|
Balance as of March 31, 2021
|
|
3,013,267
|
|
|
$
|
301
|
|
|
6,370,925
|
|
|
$
|
637
|
|
|
$
|
5,920,955
|
|
|
$
|
(921,888
|
)
|
|
$
|
5,000,005
|
|
|
Net income
|
|
—
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
2,803,140
|
|
|
|
2,803,140
|
|
|
Change in Class A ordinary shares subject to possible redemption
|
|
(280,314
|
)
|
|
|
(28
|
)
|
|
—
|
|
|
|
|
|
|
|
(2,803,112
|
)
|
|
|
|
|
|
|
(2,803,140
|
)
|
|
Balance as of June 30, 2021
|
|
2,732,953
|
|
|
$
|
273
|
|
|
6,370,925
|
|
|
$
|
637
|
|
|
$
|
3,117,843
|
|
|
$
|
1,881,252
|
|
|
$
|
5,000,005
|
|
The accompanying notes are an integral part of these unaudited condensed financial statements.
F-19
Table of Contents
ISOS ACQUISITION CORPORATION
CONDENSED STATEMENT OF CASH FLOWS
|
|
|
For the six months ended June 30,
2021
|
|
|
|
(unaudited)
|
|
Cash flows from Operating Activities:
|
|
|
|
|
|
Net income
|
|
$
|
1,886,252
|
|
|
Adjustments to reconcile net income to net cash used in operating activities:
|
|
|
|
|
|
Trust interest income
|
|
|
(3,541
|
)
|
|
Unrealized loss on change in fair value of FPA
|
|
|
1,458,454
|
|
|
Unrealized gain on change in fair value of warrants
|
|
|
(4,455,365
|
)
|
|
Warrant issuance costs
|
|
|
638,847
|
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
Prepaid expenses
|
|
|
(322,275
|
)
|
|
Accrued offering cost and expenses
|
|
|
206,431
|
|
|
Due to related party
|
|
|
1,000
|
|
|
Net cash used in operating activities
|
|
|
(590,197
|
)
|
|
|
|
|
|
|
|
Cash Flows from Investing Activities:
|
|
|
|
|
|
Investment held in Trust Account
|
|
|
(254,838,000
|
)
|
|
Net cash used in investing activities
|
|
|
(254,838,000
|
)
|
|
|
|
|
|
|
|
Cash flows from Financing Activities:
|
|
|
|
|
|
Proceeds from Initial Public Offering, net of underwriters’ fees
|
|
|
249,740,258
|
|
|
Proceeds from private placement
|
|
|
8,096,742
|
|
|
Repayment to promissory note to related party
|
|
|
(125,267
|
)
|
|
Payments of offering costs
|
|
|
(479,680
|
)
|
|
Net cash provided by financing activities
|
|
|
257,232,053
|
|
|
|
|
|
|
|
|
Net change in cash
|
|
|
1,803,856
|
|
|
Cash, beginning of the period
|
|
|
|
|
|
Cash, end of the period
|
|
$
|
1,803,856
|
|
|
|
|
|
|
|
|
Supplemental disclosure of noncash investing and financing activities:
|
|
|
|
|
|
Deferred underwriting commissions charged to additional paid in capital
|
|
$
|
8,919,295
|
|
|
Initial value of Class A ordinary shares subject to possible redemption
|
|
$
|
224,704,330
|
|
|
Change in value of Class A ordinary shares subject to possible redemption
|
|
$
|
2,803,140
|
|
|
Forfeiture of founder shares
|
|
$
|
10
|
|
|
Deferred offering costs paid by Sponsor loan
|
|
$
|
102,767
|
|
|
Initial classification of warrant liability
|
|
$
|
18,421,695
|
|
|
Initial classification of FPA liability
|
|
$
|
53,954
|
|
The accompanying notes are an integral part of these unaudited condensed financial statements.
F-20
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 1 — Organization and Business Operations
Organization and General
Isos Acquisition Corporation (the “Company”) was incorporated as a Cayman Islands exempted company on December 29, 2020. The Company was incorporated for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities (the “Business Combination”). On July 1, 2021, the Company entered into a business combination agreement (the “BCA”) with Bowlero Corp. (“Bowlero”) pursuant to which Bowerlo will merge with and into the Company (as described below).
The Company’s sponsor is Isos Acquisition Sponsor LLC, a Delaware limited liability company (the “Sponsor”).
The Company has selected December 31 as its fiscal year end.
As of June 30, 2021, the Company had not commenced any operations. All activity for the period from December 29, 2020 (inception) through June 30, 2021 relates to the Company’s formation and the Initial Public Offering (“IPO”) described below, and, since the closing of the IPO, the search for a prospective Business Combination and its negotiation of the Business Combination Agreement. The Company will not generate any operating revenues until after the completion of its initial Business Combination, at the earliest. The Company will generate non-operating income in the form of interest income on cash and cash equivalents from the proceeds derived from the IPO and will recognize changes in the fair value of warrant liability as other income (expense).
On July 1, 2021, the Company (which shall transfer by way of continuation to and domesticate as a Delaware corporation) entered into the Business Combination Agreement with Bowlero, the world’s largest owner and operator of bowling centers as well as owner of the Professional Bowlers Association. Following the Business Combination, the Company will be renamed “Bowlero” and its common stock and warrants are expected to remain listed on the New York Stock Exchange under the new ticker symbol “BOWL” and “BOWL WS”, respectively. The Business Combination is structured as a merger of the Company and Bowlero, with Bowlero merging with and into the Company, with the Company surviving, following the Company domesticating as a Delaware corporation. Bowlero Stockholders will receive, as consideration for the Business Combination, a mix of cash, shares of the Company’s common stock and shares of the Company’s preferred stock.
It is anticipated that, immediately following consummation of the Business Combination, the Company’s public shareholders are expected to own approximately 14.5% of the outstanding Bowlero common stock, Bowlero stockholders (without taking into account any public shares held by Bowlero stockholders prior to the consummation of the Business Combination, but including stock issued to Bowlero management as equity incentive bonuses in connection with the Business Combination and the related transactions) are expected to own approximately 68.9% of the outstanding Bowlero common stock, and Isos Acquisition Sponsor LLC and LionTree are expected to collectively own approximately 2.3% of the outstanding Bowlero common stock.
Financing
The registration statement for the Company’s IPO was declared effective on March 2, 2021 (the “Effective Date”). On March 5, 2021, the Company consummated the IPO of 22,500,000 units (the “Units” and, with respect to the ordinary shares included in the Units being offered, the “Public Shares”), at $10.00 per Unit, generating gross proceeds of $225,000,000, which is discussed in Note 4.
Simultaneously with the closing of the IPO, the Company consummated the sale of 5,000,000 warrants (the “Private Placement Warrants”) at a price of $1.50 per Private Placement Warrant in a private placement to the Sponsor and LionTree Partners LLC, generating gross proceeds of $7,500,000, which is discussed in Note 5.
F-21
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 1 — Organization and Business Operations (cont.)
The Company granted the underwriters in the IPO a 45-day option to purchase up to 3,375,000 additional Units to cover over-allotments, if any. On March 10, 2021, the underwriters partially exercised the over-allotment option to purchase 2,983,700 Units (the “Over-allotment Units”), generating an aggregate of gross proceeds of $29,837,000, and incurred $596,742 in cash underwriting fees and $1,044,295 in deferred underwriting fees.
Transaction costs amounted to $14,495,717 consisting of $5,096,742 of underwriting discount, $8,919,295 of deferred underwriting discount, and $479,680 of other offering costs.
Trust Account
Following the closing of the IPO on March 5, 2021 and the underwriters’ partial exercise of over-allotment option on March 10, 2021, $254,837,000 ($10.00 per Unit) from the net proceeds of the sale of the Units in the IPO and the sale of the Private Placement Warrants and $1,000 overfunded by the Sponsor was placed in a Trust Account, which can only be invested in United States “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act having a maturity of 185 days or less or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act which invest only in direct U.S. government treasury obligations. $1,000 was overfunded by the Sponsor.
The Trust Account is intended as a holding place for funds pending the earliest to occur of either: (i) the completion of the initial Business Combination; (ii) the redemption of any public shares properly tendered in connection with a shareholder vote to amend the Company’s amended and restated memorandum and articles of association (A) to modify the substance or timing of the Company’s obligation to provide holders of the Class A ordinary shares the right to have their shares redeemed in connection with the initial Business Combination or to redeem 100% of the public shares if the Company does not complete the initial Business Combination within 24 months from the closing of the IPO (the “Combination Period”) or (B) with respect to any other provision relating to the rights of holders of the Class A ordinary shares or pre-initial Business Combination activity, and (iii) the redemption of the public shares if the Company has not consummated an initial Business Combination within the Combination Period, subject to applicable law.
Initial Business Combination
The Company must complete one or more initial Business Combinations having an aggregate fair market value of at least 80% of the value of the assets held in the Trust Account (excluding the deferred underwriting commissions and taxes payable on the interest earned on the Trust Account) at the time of the agreement to enter into the initial Business Combination. However, the Company will only complete a Business Combination if the post-transaction company owns or acquires 50% or more of the issued and outstanding voting securities of the target or otherwise acquires a controlling interest in the target sufficient for it not to be required to register as an investment company under the Investment Company Act 1940, as amended (the “Investment Company Act”). There is no assurance that the Company will be able to complete a Business Combination successfully.
The Class A ordinary shares subject to redemption were recorded at a redemption value and classified as temporary equity upon the completion of the IPO, in accordance with Financial Accounting Standards Board’s (“FASB”) Accounting Standards Codification (“ASC”) Topic 480 “Distinguishing Liabilities from Equity.” In such case, the Company will proceed with a Business Combination if the Company has net tangible assets of at least $5,000,001 upon such consummation of a Business Combination and, if the Company seeks shareholder approval, a majority of the issued and outstanding shares voted are voted in favor of the Business Combination.
If the Company is unable to complete the initial Business Combination within the Combination Period, the Company will (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible, but not more than ten business days thereafter, redeem the public shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay income taxes, if any (less up to $100,000 of interest to pay dissolution expenses), divided by the number of then-outstanding public shares, which redemption will
F-22
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 1 — Organization and Business Operations (cont.)
completely extinguish public shareholders’ rights as shareholders (including the right to receive further liquidating distributions, if any), and (3) as promptly as reasonably possible following such redemption, subject to the approval of the remaining shareholders and board of directors, liquidate and dissolve, subject in each case to the Company’s obligations under Cayman Islands law to provide for claims of creditors and the requirements of other applicable law.
The Sponsor and the Company’s founding team have entered into a letter agreement with the Company, pursuant to which they have agreed to waive their redemption rights with respect to their founder shares (as described in Note 6) and any public shares purchased during or after the IPO in connection with (i) the completion of the initial Business Combination and (ii) a shareholder vote to approve an amendment to the amended and restated memorandum and articles of association (A) that would modify the substance or timing of the Company’s obligation to provide holders of the Class A ordinary shares the right to have their shares redeemed in connection with the initial Business Combination or to redeem 100% of the Company’s public shares if the Company does not complete the initial Business Combination within the Combination Period or (B) with respect to any other provision relating to the rights of holders of the Class A ordinary shares or pre-initial Business Combination activity. Additionally, the Sponsor has agreed to waive its rights to liquidating distributions from the Trust Account with respect to its founder shares if the Company fails to complete the initial Business Combination within the Combination Period (although they will be entitled to liquidating distributions from the Trust Account with respect to any public shares they hold if the Company fails to complete the initial Business Combination within the Combination Period). If the Company submits the initial Business Combination to the public shareholders for a vote, the Sponsor and each member of the founding team have agreed to vote their founder shares and any public shares purchased during or after the IPO in favor of the initial Business Combination.
The Sponsor has agreed that it will be liable to the Company if and to the extent any claims by a third party (excluding the Company’s independent registered public accounting firm) for services rendered or products sold to the Company, or a prospective partner business with which the Company has discussed entering into a transaction agreement, reduce the amounts in the Trust Account to below the lessor of (i) $10.00 per public share and (ii) the actual amount per share held in the Trust Account as of the date of the liquidation of the Trust Account if less than $10.00 per public share due to reductions in the value of the trust assets, in each case net of the interest that may be withdrawn to pay the Company’s tax obligations, provided that such liability will not apply to any claims by a third party or prospective partner business who executed a waiver of any and all rights to seek access to the Trust Account nor will it apply to any claims under the Company’s indemnity of the underwriters of the IPO against certain liabilities, including liabilities under the Securities Act of 1933, as amended, (the “Securities Act”). Moreover, in the event that an executed waiver is deemed to be unenforceable against a third party, the Sponsor will not be responsible to the extent of any liability for such third-party claims. The Company has not asked the Sponsor to reserve for such indemnification obligations, or has the Company independently verified whether the Sponsor has sufficient funds to satisfy its indemnity obligations and the Company believes that the Sponsor’s only assets are securities of the Company. The Sponsor may not be able to satisfy those obligations.
Liquidity and Capital Resources
As of June 30, 2021, the Company had approximately $1.8 million in its operating bank account and working capital of approximately $1.9 million.
Prior to the completion of the IPO, the Company’s liquidity needs had been satisfied through a capital contribution from the Sponsor of $25,000, to cover certain offering costs, for the founder shares (see Note 6), the loan under an unsecured promissory note from the Sponsor of $125,267 (see Note 6). The promissory note from the Sponsor was paid in full on March 15, 2021. Subsequent to the consummation of the IPO and Private Placement, the Company’s liquidity needs have been satisfied through the proceeds from the consummation of the Private Placement not held in the Trust Account.
F-23
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 1 — Organization and Business Operations (cont.)
In addition, in order to finance transaction costs in connection with a Business Combination, the Company’s Sponsor or an affiliate of the Sponsor, or certain of the Company’s officers and directors may, but are not obligated to, provide the Company Working Capital Loans (see Note 6). To date, there were no amounts outstanding under any Working Capital Loans.
Based on the foregoing, management believes that the Company will have sufficient working capital and borrowing capacity to meet its needs through the earlier of the consummation of a Business Combination or one year from this filing. Over this time period, the Company will be using these funds for paying existing accounts payable, paying for travel expenditures, and consummating the Business Combination with Bowlero.
Risks and Uncertainties
Management continues to evaluate the impact of the COVID-19 pandemic and has concluded that while it is reasonably possible that the virus could have a negative effect on the Company’s financial position, results of its operations, cash flows and/or search for a target company, the specific impact is not readily determinable as of the date of the condensed financial statements. The condensed financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Note 2 — Revision of Previously Issued Financial Statements
On April 12, 2021, the Staff of the Securities and Exchange Commission together issued a statement regarding the accounting and reporting considerations for warrants issued by special purpose acquisition companies entitled “Staff Statement on Accounting and Reporting Considerations for Warrants Issued by Special Purpose Acquisition Companies (“SPACs”)” (the “SEC Statement”). Specifically, the SEC Statement focused on certain settlement terms and provisions related to certain tender offers following a Business Combination, which terms are similar to those contained in the warrant agreement, dated as of March 2, 2021, between the Company and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agreement”). As a result of the SEC Statement, the Company reevaluated the accounting treatment of (i) the 8,494,567 Public Warrants, (ii) the 5,397,828 Private Placement Warrants, and (iii) the Forward Purchase Warrants (See Note 4, Note 5 and Note 8). The Company previously accounted for all Warrants as components of equity.
In further consideration of the guidance in Accounting Standards Codification (“ASC”) 815-40, Derivatives and Hedging; Contracts in Entity’s Own Equity (“ASC 815-40”), the Company concluded that a provision in the Warrant Agreement related to certain tender or exchange offers precludes the Warrants from being accounted for as components of equity. As the Warrants meet the definition of a derivative as contemplated in ASC 815-40, the Warrants should be recorded as derivative liabilities on the Balance Sheet and measured at fair value at inception (on the date of the IPO) and at each reporting date in accordance with ASC 820, Fair Value Measurement, with changes in fair value recognized in the statement of operations in the period of change.
The Company’s management and the audit committee of the Company’s Board of Directors concluded that it is appropriate to revise the Company’s previously issued audited balance sheet as of March 5, 2021 as previously reported in its Form 8-K.
|
|
|
As Previously Reported
|
|
Adjustment
|
|
As Revised
|
|
Balance Sheet at March 5, 2021, as restated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Forward Purchase Agreement liability
|
|
$
|
|
|
|
$
|
53,954
|
|
|
$
|
53,954
|
|
|
Warrant Liability
|
|
|
|
|
|
|
16,576,773
|
|
|
|
16,576,773
|
|
|
Class A ordinary shares subject to possible redemption
|
|
|
214,639,150
|
|
|
|
(16,625,000
|
)
|
|
|
198,014,150
|
|
|
Class A ordinary share
|
|
|
104
|
|
|
|
166
|
|
|
|
270
|
|
|
Additional paid-in capital
|
|
|
5,024,690
|
|
|
|
566,360
|
|
|
|
5,591,050
|
|
|
Accumulated deficit
|
|
$
|
(25,438
|
)
|
|
$
|
(566,524
|
)
|
|
$
|
(591,962
|
)
|
F-24
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 3 — Significant Accounting Policies
Basis of Presentation
The accompanying unaudited condensed financial statements are presented in U.S. dollars in conformity with accounting principles generally accepted in the United States of America (“GAAP”) for financial information and pursuant to the rules and regulations of the SEC. Accordingly, they do not include all of the information and footnotes required by GAAP. In the opinion of management, the unaudited condensed financial statements reflect all adjustments, which include only normal recurring adjustments necessary for the fair statement of the balances and results for the periods presented. Operating results for the three and six months ended June 30, 2021 are not necessarily indicative of the results that may be expected through December 31, 2021.
The accompanying unaudited condensed financial statements should be read in conjunction with the audited financial statements and notes thereto included in the Form 8-K and the final prospectus filed by the Company with the SEC on March 12, 2021 and March 4, 2021, respectively.
Emerging Growth Company Status
The Company is an “emerging growth company,” as defined in Section 2(a) of the Securities Act, as modified by the Jumpstart our Business Startups Act of 2012, (the “JOBS Act”), and it may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in its periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved.
Further, Section 102(b)(1) of the JOBS Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies (that is, those that have not had a Securities Act registration statement declared effective or do not have a class of securities registered under the Exchange Act) are required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company can elect to opt out of the extended transition period and comply with the requirements that apply to non-emerging growth companies but any such election to opt out is irrevocable. The Company has elected not to opt out of such extended transition period which means that when a standard is issued or revised and it has different application dates for public or private companies, the Company, as an emerging growth company, can adopt the new or revised standard at the time private companies adopt the new or revised standard. This may make comparison of the Company’s financial statements with another public company which is neither an emerging growth company nor an emerging growth company which has opted out of using the extended transition period difficult or impossible because of the potential differences in accounting standards used.
Use of Estimates
The preparation of these unaudited condensed financial statements in conformity with US GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the balance sheet. Actual results could differ from those estimates.
Marketable securities held in Trust Account
At June 30, 2021, the assets held in the Trust Account were substantially held in mutual funds comprised of U.S. Treasury Bills, classified as trading securities. Trading securities are presented on the balance sheet at fair value at the end of each reporting period. Gains and losses resulting from the change in fair value of these securities are included in Trust interest income in the statement of operations. The estimated fair values of investments held in the Trust Account are determined using available market information.
F-25
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 3 — Significant Accounting Policies (cont.)
Fair Value Measurements
Fair value is defined as the price that would be received for sale of an asset or paid for transfer of a liability, in an orderly transaction between market participants at the measurement date. GAAP establishes a three-tier fair value hierarchy, which prioritizes the inputs used in measuring fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurements) and the lowest priority to unobservable inputs (Level 3 measurements). These tiers include:
• Level 1, defined as observable inputs such as quoted prices (unadjusted) for identical instruments in active markets;
• Level 2, defined as inputs other than quoted prices in active markets that are either directly or indirectly observable such as quoted prices for similar instruments in active markets or quoted prices for identical or similar instruments in markets that are not active; and
• Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions, such as valuations derived from valuation techniques in which one or more significant inputs or significant value drivers are unobservable.
In some circumstances, the inputs used to measure fair value might be categorized within different levels of the fair value hierarchy. In those instances, the fair value measurement is categorized in its entirety in the fair value hierarchy based on the lowest level input that is significant to the fair value measurement.
The fair value of the Company’s certain assets and liabilities, which qualify as financial instruments under ASC 820, “Fair Value Measurements and Disclosures,” approximates the carrying amounts represented in the balance sheet. The fair values of cash and cash equivalents, prepaid expenses, due to related party are estimated to approximate the carrying values as of June 30, 2021 due to the short maturities of such instruments.
The Company’s Private Placement Warrants liability and forward purchase agreements (FPA) liability are based on a valuation model utilizing management judgment and pricing inputs from observable and unobservable markets with less volume and transaction frequency than active markets. Significant deviations from these estimates and inputs could result in a material change in fair value. The fair value of the warrant liability and FPA liability is classified as level 3. See Note 7 for additional information on assets and liabilities measured at fair value.
Concentration of Credit Risk
Financial instruments that potentially subject the Company to concentrations of credit risk consist of a cash account in a financial institution, which, at times, may exceed the Federal Depository Insurance Coverage of $250,000. At June 30, 2021 and December 31, 2020, the Company has not experienced losses on this account and management believes the Company is not exposed to significant risks on such account.
Ordinary Shares Subject to Possible Redemption
The Company accounts for its ordinary shares subject to possible redemption in accordance with the guidance in Accounting Standards Codification (“ASC”) Topic 480 “Distinguishing Liabilities from Equity.” Ordinary shares subject to mandatory redemption (if any) is classified as a liability instrument and is measured at fair value. Conditionally redeemable ordinary shares (including ordinary shares that feature redemption rights that are either within the control of the holder or subject to redemption upon the occurrence of uncertain events not solely within the Company’s control) is classified as temporary equity. At all other times, ordinary shares is classified as shareholders’ equity. The Company’s ordinary shares feature certain redemption rights that is considered to be outside of the Company’s control and subject to the occurrence of uncertain future events. Accordingly, ordinary shares subject to possible redemption is presented at redemption value as temporary equity, outside of the shareholders’ equity section of the Company’s balance sheet.
F-26
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 3 — Significant Accounting Policies (cont.)
Net Income Per Ordinary Share
Net income per ordinary share is computed by dividing net income by the weighted average number of ordinary shares outstanding for each of the periods. The calculation of diluted income per ordinary share does not consider the effect of the warrants issued in connection with the (i) IPO, (ii) exercise of overallotment and (iii) Private Placement since the exercise price of the warrants is higher than the market price. The warrants are exercisable to purchase 13,892,395 ordinary shares in the aggregate.
The Company’s statement of operations includes a presentation of income per share for ordinary shares subject to possible redemption in a manner similar to the two-class method of income per ordinary share. Net income per ordinary share, basic and diluted, for redeemable ordinary shares is calculated by dividing the interest income earned on the Trust Account, by the weighted average number of redeemable ordinary shares outstanding since original issuance. Net income per ordinary share, basic and diluted, for non-redeemable ordinary shares is calculated by dividing the net income, adjusted for income attributable to redeemable ordinary shares, by the weighted average number of non-redeemable ordinary shares outstanding for the periods. Non-redeemable ordinary shares include the founder shares as these ordinary shares do not have any redemption features and do not participate in the income earned on the Trust Account.
|
|
|
Three Months
Ended
June 30,
2021
|
|
Six Months
Ended
June 30,
2021
|
|
Redeemable Class A Ordinary Shares
|
|
|
|
|
|
|
|
|
|
Numerator: Earnings allocable to redeemable Class A ordinary shares
|
|
|
|
|
|
|
|
|
|
Interest earned on marketable securities held in Trust Account
|
|
$
|
3,161
|
|
|
$
|
3,161
|
|
|
Less: Company portion available to pay taxes
|
|
|
(3,161
|
)
|
|
|
(3,161
|
)
|
|
Net income allocable to shares subject to possible redemption
|
|
$
|
|
|
|
$
|
|
|
|
Denominator: weighted average redeemable Class A ordinary shares
|
|
|
|
|
|
|
|
|
|
Basic and diluted weighted average shares outstanding
|
|
|
22,470,433
|
|
|
|
14,141,692
|
|
|
Basic and diluted net income per share
|
|
$
|
|
|
|
$
|
|
|
|
Non-Redeemable Class A and Class B Ordinary Shares
|
|
|
|
|
|
|
|
|
|
Numerator: Net income minus net earnings
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
2,803,140
|
|
|
$
|
1,886,252
|
|
|
Less: Income allocable to ordinary shares subject to possible redemption
|
|
|
|
|
|
|
|
|
|
Non-redeemable net income
|
|
$
|
2,803,140
|
|
|
$
|
1,886,252
|
|
|
Weighted average shares outstanding, basic and diluted
|
|
|
9,384,192
|
|
|
|
8,619,700
|
|
|
Basic and diluted net income per common share
|
|
$
|
0.30
|
|
|
$
|
0.22
|
|
Offering Costs associated with the Initial Public Offering
The Company complies with the requirements of the ASC 340-10-S99-1 and SEC Staff Accounting Bulletin (“SAB”) Topic 5A — “Expenses of Offering”. Offering costs consist principally of professional and registration fees incurred through the balance sheet date that are related to the IPO and were charged to shareholders’ equity upon the completion of the IPO. Offering costs are allocated to the separable financial instruments issued in the IPO based on a relative fair value basis compared to total proceeds received. Offering costs associated with warrant liabilities is expensed, and offering costs associated with the Class A ordinary shares are charged to the shareholders’ equity.
F-27
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 3 — Significant Accounting Policies (cont.)
Derivative Financial Instruments
The Company evaluates its financial instruments to determine if such instruments are derivatives or contain features that qualify as embedded derivatives in accordance with ASC Topic 815, “Derivatives and Hedging”. Derivative instruments are recorded at fair value on the grant date and re-valued at each reporting date, with changes in the fair value reported in the statements of operations. Derivative assets and liabilities are classified on the balance sheet as current or non-current based on whether or not net-cash settlement or conversion of the instrument could be required within 12 months of the balance sheet date. The Company has determined the warrants are a derivative instrument.
FASB ASC 470-20, Debt with Conversion and Other Options addresses the allocation of proceeds from the issuance of convertible debt into its equity and debt components. The Company applies this guidance to allocate IPO proceeds from the Units between Class A ordinary shares and warrants, using the residual method by allocating IPO proceeds first to fair value of the warrants and then the Class A ordinary shares.
Income Taxes
The Company accounts for income taxes under FASB ASC 740, “Income Taxes” (“ASC 740”). ASC 740 requires the recognition of deferred tax assets and liabilities for both the expected impact of differences between the financial statement and tax basis of assets and liabilities and for the expected future tax benefit to be derived from tax loss and tax credit carry forwards. ASC 740 additionally requires a valuation allowance to be established when it is more likely than not that all or a portion of deferred tax assets will not be realized.
ASC 740 also clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s financial statements and prescribes a recognition threshold and measurement process for financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. For those benefits to be recognized, a tax position must be more-likely-than-not to be sustained upon examination by taxing authorities. ASC 740 also provides guidance on derecognition, classification, interest and penalties, accounting in interim period, disclosure and transition. Based on the Company’s evaluation, it has been concluded that there are no significant uncertain tax positions requiring recognition in the Company’s financial statements. Since the Company was incorporated on December 29, 2020, the evaluation was performed for upcoming 2021 tax year which will be the only period subject to examination.
The Company recognizes accrued interest and penalties related to unrecognized tax benefits as income tax expense. There were no unrecognized tax benefits and no amounts accrued for interest and penalties as of June 30, 2021 and December 31, 2020. The Company is currently not aware of any issues under review that could result in significant payments, accruals or material deviation from its position.
There is currently no taxation imposed on income by the Government of the Cayman Islands. In accordance with Cayman federal income tax regulations, income taxes are not levied on the Company.
Recent Accounting Pronouncements
Management does not believe that any recently issued, but not effective, accounting standards, if currently adopted, would have a material effect on the Company’s unaudited condensed financial statement.
Note 4 — Initial Public Offering
Pursuant to the IPO, the Company sold 22,500,000 Units at a price of $10.00 per Unit. Each Unit consists of one Class A ordinary share and one-third of one redeemable warrant. Each whole warrant entitles the holder to purchase one Class A ordinary share at a price of $11.50 per share, subject to adjustment. The warrants will become exercisable on the later of 30 days after the completion of the initial Business Combination or 12 months from the closing of the IPO, and will expire five years after the completion of the initial Business Combination or earlier upon redemption or liquidation.
F-28
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 4 — Initial Public Offering (cont.)
On March 10, 2021, the underwriters partially exercised the over-allotment option to purchase 2,983,700 units
Following the closing of the IPO on March 5, 2021 and the underwriters’ partial exercise of over-allotment option on March 10, 2021, $254,837,000 ($10.00 per Unit) from the net proceeds of the sale of the Units in the IPO and the sale of the Private Placement Warrants was placed in a Trust Account, which can only be invested in United States “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act having a maturity of 185 days or less or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act which invest only in direct U.S. government treasury obligations. $1,000 was overfunded by the Sponsor and the Company intends to return it back to the Sponsor immediately.
Public Warrants
Each whole warrant entitles the holder to purchase one Class A ordinary share at a price of $11.50 per share, subject to adjustment as discussed herein. In addition, if (x) the Company issues additional Class A ordinary shares or equity-linked securities for capital raising purposes in connection with the closing of the initial Business Combination at an issue price or effective issue price of less than $9.20 per Class A ordinary share (with such issue price or effective issue price to be determined in good faith by the board of directors and, in the case of any such issuance to the initial shareholders or their affiliates, without taking into account any founder shares held by the initial shareholders or such affiliates, as applicable, prior to such issuance including any transfer or reissuance of such shares) (the “Newly Issued Price”), (y) the aggregate gross proceeds from such issuances represent more than 50% of the total equity proceeds, and interest thereon, available for the funding of the initial Business Combination, and (z) the volume weighted average trading price of the Class A ordinary shares during the 10 trading day period starting on the trading day after the day on which the Company consummates the initial Business Combination (such price, the “Market Value”) is below $9.20 per share, the exercise price of the warrants will be adjusted (to the nearest cent) to be equal to 115% of the higher of the Market Value and the Newly Issued Price, and the $10.00 and the $18.00 per share redemption trigger prices described below under “Redemption of warrants for Class A ordinary shares when the price per Class A ordinary share equals or exceeds $10.00” and “Redemption of warrants for Class A ordinary shares when the price per Class A ordinary share equals or exceeds $18.00” will be adjusted (to the nearest cent) to be equal to 100% and 180% of the higher of the Market Value and the Newly Issued Price, respectively.
The warrants will become exercisable on the later of one year from the closing of the IPO and 30 days after the completion of its initial Business Combination, and will expire five years after the completion of the Company’s initial Business Combination, at 5:00 p.m., New York City time, or earlier upon redemption or liquidation.
The Company has agreed that as soon as practicable, but in no event later than 20 business days after the closing of the initial Business Combination, the Company will use the commercially reasonable efforts to file with the SEC a registration statement covering the Class A ordinary shares issuable upon exercise of the warrants, and the Company will use the commercially reasonable efforts to cause the same to become effective within 60 business days after the closing of the initial Business Combination and to maintain the effectiveness of such registration statement, and a current prospectus relating to those Class A ordinary shares until the warrants expire or are redeemed, as specified in the warrant agreement; provided that if the Class A ordinary shares are, at the time of any exercise of a warrant, not listed on a national securities exchange such that they satisfy the definition of a “covered security” under Section 18(b)(1) of the Securities Act, the Company may, at the Company’s option, require holders of public warrants who exercise their warrants to do so on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act and, in the event the Company so appoint, the Company will not be required to file or maintain in effect a registration statement. If a registration statement covering the Class A ordinary shares issuable upon exercise of the warrants is not effective by the 60th day after the closing of the initial Business Combination, warrant holders may, until such time as there is an effective registration statement and during any period when the Company will have failed to maintain an effective registration statement, exercise warrants on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act or another exemption, but the Company will use the best efforts to register or qualify the shares under applicable blue sky laws to the extent an exemption is not available.
F-29
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 4 — Initial Public Offering (cont.)
Redemptions of warrants for cash when the price per Class A ordinary share equals or exceeds $18.00.
Once the warrants become exercisable, the Company may redeem the outstanding warrants (except as described herein with respect to the Private Placement Warrants):
• in whole and not in part;
• at a price of $0.01 per warrant;
• upon not less than 30 days’ prior written notice of redemption (the “30-day redemption period”); and
• if, and only if, the last reported sales price of the Class A ordinary shares equals or exceeds $18.00 per share (as adjusted for share sub-divisions, share capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period ending on the third trading day prior to the date on which the Company sends the notice of the redemption to the warrant holders (the “Reference Value”).
Redemption of warrants for Class A ordinary shares when the price per Class A ordinary share equals or exceeds $10.00.
Once the warrants become exercisable, the Company may redeem the outstanding warrants:
• in whole and not in part;
• at $0.10 per warrant upon a minimum of 30 days’ prior written notice of redemption; provided that holders will be able to exercise their warrants on a cashless basis prior to redemption and receive that number of shares determined based on the redemption date and the “fair market value” (as defined below) of the Class A ordinary shares;
• if, and only if, the closing price of the Class A ordinary shares equals or exceeds $10.00 per public share (as adjusted per share subdivisions, share dividends, reorganizations, recapitalizations and the like) on the trading day before the Company sends the notice of redemption to the warrant holders; and
• if the Reference Value is less than $18.00 per share (as adjusted for share splits, share dividends, rights issuances, subdivisions, reorganizations, recapitalizations and the like), the Private Placement Warrants must also be concurrently called for redemption on the same terms as the outstanding public warrants, as described above.
The “fair market value” of the Class A ordinary shares shall mean the volume-weighted average price of the Class A ordinary shares for the 10 trading days immediately following the date on which the notice of redemption is sent to the holders of warrants. This redemption feature differs from the typical warrant redemption features used in other blank check offerings. The Company will provide the warrant holders with the final fair market value no later than one business day after the 10-day trading period described above ends. In no event will the warrants be exercisable in connection with this redemption feature for more than 0.361 Class A ordinary shares per warrant (subject to adjustment).
Note 5 — Private Placement
Simultaneously with the closing of the IPO, the Sponsor purchased 3,666,667 Private Placement Warrants at a price of $1.50 per Private Placement Warrant, and LionTree Partners LLC purchased 1,333,333 Private Placement Warrants at a price of $1.50 per Private Placement Warrant, for an aggregate purchase price of $7,500,000, in a private placement. The proceeds from the Private Placement Warrants was added to the proceeds from the IPO held in the Trust Account.
Pursuant to the underwriters’ partial exercise of the over-allotment option on March 10, 2021, the Sponsor purchased an additional 296,793 Private Placement Warrants and LionTree Partners LLC purchased an additional 101,035 Private Placement Warrants.
F-30
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 5 — Private Placement (cont.)
The Private Placement Warrants (including the Class A ordinary shares issuable upon exercise of the Private Placement Warrants) will not be transferable, assignable or saleable until 30 days after the completion of the initial Business Combination and they will not be redeemable by the Company (except as described below in Note 7 Redemption of warrants when the price per Class A ordinary share equals or exceeds $10.00) so long as they are held by the Sponsor or its permitted transferees. The Sponsor, or its permitted transferees, has the option to exercise the Private Placement Warrants on a cashless basis. If the Private Placement Warrants are held by holders other than the Sponsor or its permitted transferees, the Private Placement Warrants will be redeemable by the Company in all redemption scenarios and exercisable by the holders on the same basis as the warrants included in the Units being sold in the IPO.
Note 6 — Related Party Transactions
Founder Shares
In December 2020, the Sponsor paid $25,000, or approximately $0.004 per share, to cover certain offering costs in consideration for 5,750,000 Class B ordinary shares, par value $0.0001. Up to 750,000 founder shares were subject to forfeiture by the Sponsor depending on the extent to which the underwriters’ over-allotment option was exercised. In March 2021, the Company effected a stock dividend of approximately 0.125 shares for each Class B ordinary share outstanding, resulting in the initial stockholders holding an aggregate of 6,468,750 founder shares (up to 843,750 shares of which are subject to forfeiture depending on the extent to which the underwriters’ over-allotment option is exercised). On March 8, 2021, the underwriters partially exercised the over-allotment option to purchase 2,983,700 units. As a result, 97,825 founder shares was forfeited as of June 30, 2021.
The Sponsor and the Company’s founding team have entered into a letter agreement with the Company, pursuant to which they have agreed to waive their redemption rights with respect to their founder shares (as described in Note 6) and any public shares purchased during or after the IPO in connection with (i) the completion of the initial Business Combination and (ii) a shareholder vote to approve an amendment to the amended and restated memorandum and articles of association (A) that would modify the substance or timing of the Company’s obligation to provide holders of the Class A ordinary shares the right to have their shares redeemed in connection with the initial Business Combination or to redeem 100% of the Company’s public shares if the Company does not complete the initial Business Combination within the Combination Period or (B) with respect to any other provision relating to the rights of holders of the Class A ordinary shares or pre-initial Business Combination activity. Additionally, the Sponsor has agreed to waive its rights to liquidating distributions from the Trust Account with respect to its founder shares if the Company fails to complete the initial Business Combination within the Combination Period (although they will be entitled to liquidating distributions from the Trust Account with respect to any public shares they hold if the Company fails to complete the initial Business Combination within the Combination Period). If the Company submits the initial Business Combination to the public shareholders for a vote, the Sponsor and each member of the founding team have agreed to vote their founder shares and any public shares purchased during or after the IPO in favor of the initial Business Combination.
Except as described herein, the Sponsor and the founding team have agreed not to transfer, assign or sell any of their founder shares until the earliest of: (1) one year after the completion of the initial Business Combination; and (2) subsequent to the initial Business Combination (x) if the closing price of the Class A ordinary shares equals or exceeds $12.00 per share (as adjusted for share divisions, share capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the initial Business Combination or (y) the date on which the Company completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of the public shareholders having the right to exchange their ordinary shares for cash, securities or other property.
Due to Related Party
The Company’s Sponsor overfunded to the Trust Account of $1,000 as of June 30, 2021. The Company intends to return it back to the Sponsor immediately.
F-31
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 6 — Related Party Transactions (cont.)
Promissory Note — Related Party
On December 30, 2020, the Sponsor agreed to loan the Company up to $300,000 to be used for a portion of the expenses of the IPO. These loans are non-interest bearing, unsecured and are due at the earlier of June 30, 2021 or the closing of the IPO. Pursuant to the IPO, $3,000,000 of cash was supposed to be held outside of the Trust Account and available for working capital purposes.
The Company received $2,502,509 and another $497,491 was due from the Sponsor as of March 5, 2021. As of March 5, 2021, the Company had borrowed $125,267 under the promissory note. The promissory note from the Sponsor was paid in full on March 15, 2021.
Working Capital Loans
In addition, in order to finance transaction costs in connection with an intended Business Combination, the Sponsor or an affiliate of the Sponsor, or certain of the Company’s officers and directors may, but are not obligated to, loan the Company funds as may be required (“Working Capital Loans”). If the Company completes the initial Business Combination, the Company may repay the Working Capital Loans out of the proceeds of the Trust Account released to the Company. In the event that the initial Business Combination does not close, the Company may use a portion of the working capital held outside the Trust Account to repay the Working Capital Loans but no proceeds from the Trust Account would be used to repay the Working Capital Loans. Up to $1,500,000 of such Working Capital Loans may be convertible into warrants of the post-Business Combination company at a price of $1.50 per warrant at the option of the lender. Such warrants would be identical to the Private Placement Warrants. As of June 30, 2021 and December 31, 2020, the Company had no borrowings under the Working Capital Loans.
Administrative Service Fee
Commencing on the date the securities of the Company were first listed on The New York Stock Exchange, the Company has paid an affiliate of the Sponsor $51,667 per month for office space, secretarial and administrative services provided to members of the Company’s management team. Upon completion of the initial Business Combination or the Company’s liquidation, the Company will cease paying these monthly fees. The Company paid $155,001 and $206,668 during the three and six months ended June 30, 2021, respectively.
Note 7 — Fair Value Measurements
The following table presents information about the Company’s asset and liabilities that were measured at fair value on a recurring basis as of June 30, 2021, and indicates the fair value hierarchy of the valuation techniques the Company utilized to determine such fair value.
|
|
|
June 30,
2021
|
|
Quoted
Prices In
Active
Markets
(Level 1)
|
|
Significant
Other
Observable
Inputs
(Level 2)
|
|
Significant
Other
Unobservable
Inputs
(Level 3)
|
|
Asset:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money Market Funds held in Trust Account
|
|
$
|
254,841,541
|
|
$
|
254,841,541
|
|
$
|
|
|
$
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FPA Liability
|
|
$
|
1,512,408
|
|
$
|
|
|
$
|
|
|
$
|
1,512,408
|
|
Warrant Liability – Private Placement Warrants
|
|
|
5,471,763
|
|
|
|
|
|
|
|
|
5,471,763
|
|
Warrant Liability – Public Warrants
|
|
|
8,494,567
|
|
|
8,494,567
|
|
|
|
|
|
|
|
|
|
$
|
15,478,738
|
|
$
|
8,494,567
|
|
$
|
|
|
$
|
6,984,171
|
F-32
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 7 — Fair Value Measurements (cont.)
The Warrants are accounted for as liabilities in accordance with ASC 815-40 and are presented within warrant liabilities on the Condensed Balance Sheet. The warrant liabilities are measured at fair value at inception and on a recurring basis, with changes in fair value presented within change in fair value of warrants in the Condensed Statements of Operations.
Initial Measurement
The Company established the initial fair value of the Public Warrants and Private Placement Warrants on March 5, 2021, the date of the Company’s IPO and on March 10, 2021 for the additional purchase of Private Placement Warrants. The initial fair value of the Public Warrants and Private Placement Warrants were established using a Monte Carlo simulation model. The Warrants were classified as Level 3 at the initial measurement date due to the use of unobservable inputs.
The key inputs into the Monte Carlo simulation as of March 5, 2021 and March 10, 2021 were as follows:
|
Input
|
|
Warrant Liability
|
|
FPA Liability
|
|
Expected term (years)
|
|
|
6.2
|
|
|
|
1.2
|
|
|
Expected volatility
|
|
|
24.2
|
%
|
|
|
24.4
|
%
|
|
Risk-free interest rate
|
|
|
1.1
|
%
|
|
|
0.1
|
%
|
|
Stock price
|
|
$
|
9.56
|
|
|
$
|
9.56
|
|
Subsequent Measurement
The fair value of the Public Warrants at June 30, 2021 is classified as Level 1 due to the use of an observable market quote in an active market. As of June 30, 2021, the aggregate value of Public Warrants was $8,494,567.
The fair value of the Private Placement Warrants and FPA liability were established using a Monte Carlo simulation model.
The key inputs into the Monte Carlo simulation as of June 30, 2021 were as follows:
|
Input
|
|
Warrant
Liability
|
|
FPA Liability
|
|
Expected term (years)
|
|
|
5.5
|
|
|
|
0.5
|
|
|
Expected volatility
|
|
|
18.7
|
%
|
|
|
|
|
|
Risk-free interest rate
|
|
|
1.0
|
%
|
|
|
0.1
|
%
|
|
Stock price
|
|
$
|
9.88
|
|
|
$
|
9.88
|
|
|
Warrant value
|
|
|
|
|
|
$
|
1.01
|
|
The following table sets forth a summary of the changes in the fair value of the Level 3 liability for the six months ended June 30, 2021:
|
|
|
Warrant Liability
|
|
FPA Liability
|
|
Fair value as of December 31, 2020
|
|
$
|
|
|
|
$
|
|
|
Initial fair value of warrant liability and FPA liability
|
|
|
18,421,695
|
|
|
|
53,954
|
|
Transfer out of Level 3 to Level 1
|
|
|
(8,494,567
|
)
|
|
|
|
|
Change in fair value
|
|
|
(4,455,365
|
)
|
|
|
1,458,454
|
|
Fair value as of June 30, 2021
|
|
$
|
5,471,763
|
|
|
$
|
1,512,408
|
F-33
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 8 — Commitments and Contingencies
Registration and Shareholder Rights
The holders of the founder shares, Private Placement Warrants, Class A ordinary shares underlying the Private Placement Warrants, any warrants that may be issued on conversion of Working Capital Loans (and any Class A ordinary shares issuable upon the exercise of the Private Placement Warrants or warrants issued upon conversion of the Working Capital Loans), and securities issuable pursuant to the forward purchase agreement (as described below) will be entitled to registration rights pursuant to a registration and shareholder rights agreement signed on March 2, 2021. The holders of these securities are entitled to make up to three demands, excluding short form demands, that the Company registers such securities. Notwithstanding anything to the contrary, LionTree Partners LLC may only make a demand on one occasion and only during the five-year period beginning on March 2, 2021. In addition, the holders have certain “piggy-back” registration rights with respect to registration statements filed subsequent to the completion of the initial Business Combination; provided, however, that LionTree Partners LLC may participate in a “piggy-back” registration only during the seven-year period beginning on March 2, 2021.
Underwriting Agreement
The Company granted the underwriters a 45-day option from March 2, 2021 to purchase up to an additional 3,375,000 units to cover over-allotments.
On March 5, 2021, the Company paid a fixed underwriting discount of $4,500,000, which was calculated as two percent (2%) of the gross proceeds of the IPO. Additionally, the underwriters will be entitled to a deferred underwriting discount of 3.5% of the gross proceeds of the IPO held in the Trust Account, or $7,875,000, upon the completion of the Company’s initial Business Combination.
On March 8, 2021, the underwriters partially exercised the over-allotment option to purchase 2,983,700 units.
Forward Purchase Agreement
In connection with the consummation of the IPO, the Company entered into a forward purchase agreement (the “Original FPA”) with affiliates of Apollo that provided for the purchase of units at $10.00 per unit in a private placement to occur concurrently with the closing of the initial Business Combination. The Original FPA provided that the Apollo affiliates party to the Original FPA would purchase units in a minimum amount equal to 25% of the units sold in the IPO, up to 7,500,000 units, for an aggregate purchase price of up to $75,000,000. The contingent forward purchase units and their component securities would be identical to the Units being sold in the IPO, except that the contingent forward purchase units and their component securities would be subject to transfer restrictions and certain registration rights, as described herein. The funds from the sale of contingent forward purchase units may be used as part of the consideration to the sellers in the initial Business Combination. On July 1, 2021, the Company and certain affiliates of Apollo (the “forward purchasers”) amended and restated the Original FPA (as amended and restated, the “FPA”) pursuant to which the forward purchasers agreed to increase the number of units that would be issued and sold under the FPA to 10,000,000 units, for an aggregate gross purchase price of $100,000,000.
The FPA is accounted as either assets or liabilities in accordance with ASC 815-40 and are presented as FPA asset on the Balance Sheet. The FPA is measured at fair value at inception and on a recurring basis, with changes in fair value presented within change in fair value of FPA in the Statement of Operations.
Business Combination Agreement
On July 1, 2021, the Company (which shall transfer by way of continuation to and domesticate as a Delaware corporation) entered into a business combination agreement (the “Business Combination Agreement”) with Bowlero Corp. (“Bowlero”). Following the Business Combination, the Company will be renamed “Bowlero” and its common stock and warrants are expected to remain listed on the New York Stock Exchange under the new ticker symbol
F-34
Table of Contents
ISOS ACQUISITION CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
Note 8 — Commitments and Contingencies (cont.)
“BOWL” and “BOWL WS”, respectively. The Business Combination is structured as a merger of the Company and Bowlero, with Bowlero merging with and into the Company, with the Company surviving, following the Company domesticating as a Delaware corporation. Bowlero’s stockholders will receive, as consideration for the Business Combination, a mix of cash, shares of the Company’s common stock and shares of the Company’s preferred stock.
Note 9 — Shareholders’ Equity
Preference Shares — The Company is authorized to issue 1,000,000 preference shares with a par value of $0.0001 and with such designations, voting and other rights and preferences as may be determined from time to time by the Company’s board of directors. As of June 30, 2021 and December 31, 2020, there were no preference shares issued or outstanding.
Class A Ordinary Shares — The Company is authorized to issue 300,000,000 Class A ordinary shares with a par value of $0.0001 per share. As of June 30, 2021 and December 31, 2020, there were 2,732,953 and 0 shares of Class A ordinary shares issued and outstanding, excluding 22,750,747 and 0 shares of Class A ordinary shares subject to possible redemption.
Class B Ordinary Shares — The Company is authorized to issue 20,000,000 Class B ordinary shares with a par value of $0.0001 per share. Holders are entitled to one vote for each Class B ordinary share. In December 2020, the Sponsor paid $25,000, or approximately $0.004 per share, to cover certain offering costs in consideration for 5,750,000 Class B ordinary shares, par value $0.0001. Up to 750,000 founder shares are subject to forfeiture by the Sponsor depending on the extent to which the underwriters’ over-allotment option is exercised. In March 2021, the Company effected a stock dividend of approximately 0.125 shares for each Class B ordinary share outstanding, resulting in the initial stockholders holding an aggregate of 6,468,750 founder shares (up to 843,750 shares of which are subject to forfeiture depending on the extent to which the underwriters’ over-allotment option is exercised). At March 5, 2021, there were 6,468,750 Class B ordinary shares issued and outstanding. On March 8, 2021, the underwriters partially exercised the over-allotment option to purchase 2,983,700 units. As a result, 97,825 founder shares was forfeited as of June 30, 2021.
Holders of Class A ordinary shares and holders of Class B ordinary shares will vote together as a single class, which each share entitling the holder to one vote.
The Class B ordinary shares will automatically convert into Class A ordinary shares immediately following the consummation of the initial Business Combination at a ratio such that the number of Class A ordinary shares issuable upon conversion of all founder shares will equal, in the aggregate, on an as-converted basis, 20% of the sum of (i) the total number of ordinary shares issued and outstanding upon completion of the IPO, plus (ii) the sum of the total number of Class A ordinary shares issued or deemed issued or issuable upon conversion or exercise of any equity-linked securities or rights issued or deemed issued, by the Company in connection with or in relation to the consummation of the initial Business Combination, excluding any Class A ordinary shares or equity-linked securities exercisable for or convertible into Class A ordinary shares issued, deemed issued, or to be issued, to any seller in the initial Business Combination any Private Placement Warrants issued to the Sponsor, members of the founding team or any of their affiliates upon conversion of Working Capital Loans and any securities issued pursuant to the forward purchase agreement. In no event will the Class B ordinary shares convert into Class A ordinary shares at a rate of less than one to one.
Note 10 — Subsequent Events
The Company evaluated subsequent events and transactions that occurred after the balance sheet date up to the date that the financial statements were issued. Based upon this review, except for the Business Combination Agreement with Bowlero described in Note 1, the Company did not identify any subsequent events that would have required adjustment or disclosure in the financial statements.
F-35
Table of Contents
Report of Independent Registered Public Accounting Firm
To the Stockholders and Board of Directors
Bowlero Corp.:
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of Bowlero Corp. and subsidiaries (the Company) as of June 27, 2021 and June 28, 2020, the related consolidated statements of operations, comprehensive loss, cash flows, and redeemable convertible preferred stock, redeemable common stock and stockholders’ equity (deficit) for each of the fiscal years then ended, and the related notes (collectively, the consolidated financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of June 27, 2021 and June 28, 2020, and the results of its operations and its cash flows for each of the years then ended, in conformity with U.S. generally accepted accounting principles.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB and in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ KPMG LLP
We have served as the Company’s auditor since 2002.
Richmond, Virginia
September 20, 2021
F-36
Table of Contents
Bowlero Corp.
Consolidated Balance Sheets
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share and per share amounts)
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Assets
|
|
|
|
|
|
|
|
|
|
Current assets:
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
187,093
|
|
|
$
|
140,705
|
|
|
Accounts and notes receivable, net of allowance for doubtful accounts of
$204 and $197, respectively
|
|
|
3,300
|
|
|
|
3,758
|
|
|
Inventories, net
|
|
|
8,310
|
|
|
|
8,167
|
|
|
Prepaid expenses and other current assets
|
|
|
8,056
|
|
|
|
7,703
|
|
|
Assets held-for-sale
|
|
|
686
|
|
|
|
1,307
|
|
|
Total current assets
|
|
|
207,445
|
|
|
|
161,640
|
|
|
|
|
|
|
|
|
|
|
|
|
Property and equipment, net
|
|
|
424,723
|
|
|
|
453,331
|
|
|
Property and equipment under capital leases, net
|
|
|
284,077
|
|
|
|
290,389
|
|
|
Intangible assets, net
|
|
|
96,057
|
|
|
|
101,797
|
|
|
Goodwill
|
|
|
726,156
|
|
|
|
724,932
|
|
|
Investment in joint venture
|
|
|
1,230
|
|
|
|
1,217
|
|
|
Deferred income tax assets
|
|
|
—
|
|
|
|
115
|
|
|
Other assets
|
|
|
42,550
|
|
|
|
43,025
|
|
|
Total assets
|
|
$
|
1,782,238
|
|
|
$
|
1,776,446
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities, Redeemable Convertible Preferred Stock,
|
|
|
|
|
|
|
|
|
|
Redeemable Common Stock and Stockholders’ (Deficit) Equity
|
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
29,489
|
|
|
$
|
16,954
|
|
|
Accrued expenses
|
|
|
63,650
|
|
|
|
40,712
|
|
|
Current maturities of long-term debt
|
|
|
5,058
|
|
|
|
5,260
|
|
|
Other current liabilities
|
|
|
9,176
|
|
|
|
8,449
|
|
|
Total current liabilities
|
|
|
107,373
|
|
|
|
71,375
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt, net
|
|
|
870,528
|
|
|
|
830,586
|
|
|
Long-term obligations under capital leases
|
|
|
374,598
|
|
|
|
361,706
|
|
|
Other long-term liabilities
|
|
|
87,749
|
|
|
|
56,121
|
|
|
Deferred income tax liabilities
|
|
|
11,867
|
|
|
|
12,846
|
|
|
Total liabilities
|
|
|
1,452,115
|
|
|
|
1,332,634
|
|
|
|
|
|
|
|
|
|
|
|
|
Redeemable Convertible Preferred Stock:
|
|
|
|
|
|
|
|
|
|
Series A Preferred stock ($0.0001 par value, 200,000 shares authorized,106,378 shares issued and outstanding as of June 27, 2021 and June 28, 2020, respectively)
|
|
|
141,162
|
|
|
|
133,147
|
|
|
|
|
|
|
|
|
|
|
|
|
Redeemable Common Stock:
|
|
|
|
|
|
|
|
|
|
Common stock ($0.0001 par value, 2,069,000 shares issued and outstanding as of June 27, 2021 and June 28, 2020, respectively)
|
|
|
464,827
|
|
|
|
160,601
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders’ (deficit) equity:
|
|
|
|
|
|
|
|
|
|
Common stock ($0.0001 par value, 20,000,000 shares authorized, 5,911,428 shares issued and outstanding as of June 27, 2021 and June 28, 2020, respectively, inclusive of the 2,069,000 redeemable shares of common stock)
|
|
|
1
|
|
|
|
1
|
|
|
Additional paid-in capital
|
|
|
—
|
|
|
|
271,776
|
|
|
Accumulated deficit
|
|
|
(266,463
|
)
|
|
|
(102,701
|
)
|
|
Accumulated other comprehensive loss
|
|
|
(9,404
|
)
|
|
|
(19,012
|
)
|
|
Total stockholders’ (deficit) equity
|
|
|
(275,866
|
)
|
|
|
150,064
|
|
|
Total liabilities, redeemable convertible preferred stock, redeemable common stock and stockholder’s (deficit) equity
|
|
$
|
1,782,238
|
|
|
$
|
1,776,446
|
|
See accompanying notes to consolidated financial statements.
Bowlero Corp.
F-37
Table of Contents
Consolidated Statements of Operations
Fiscal Years Ended June 27, 2021 and June 28, 2020
(Amounts in thousands, except share and per share amounts)
|
|
|
Fiscal Year Ended
|
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Revenues
|
|
$
|
395,234
|
|
|
$
|
520,431
|
|
|
|
|
|
|
|
|
|
|
|
|
Costs of revenues
|
|
|
374,255
|
|
|
|
443,265
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
20,979
|
|
|
|
77,166
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating (income) expenses:
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expenses
|
|
|
78,335
|
|
|
|
84,103
|
|
|
Asset impairment
|
|
|
386
|
|
|
|
1,653
|
|
|
(Gain) loss on sale or disposal of assets
|
|
|
(46
|
)
|
|
|
1,346
|
|
|
Income from joint venture
|
|
|
(223
|
)
|
|
|
(143
|
)
|
|
Management fee income
|
|
|
(146
|
)
|
|
|
(524
|
)
|
|
Other expense
|
|
|
1,500
|
|
|
|
959
|
|
|
Loss on refinance of debt
|
|
|
—
|
|
|
|
1,172
|
|
|
Gain on sale of short-term investments
|
|
|
—
|
|
|
|
(3,388
|
)
|
|
Business interruption insurance recoveries
|
|
|
(20,188
|
)
|
|
|
(6,025
|
)
|
|
Total operating expense, net
|
|
|
59,618
|
|
|
|
79,153
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating loss
|
|
|
(38,639
|
)
|
|
|
(1,987
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense, net
|
|
|
88,857
|
|
|
|
80,642
|
|
|
Loss before income tax (benefit) expense
|
|
|
(127,496
|
)
|
|
|
(82,629
|
)
|
|
Income tax (benefit) expense
|
|
|
(1,035
|
)
|
|
|
8,263
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(126,461
|
)
|
|
$
|
(90,892
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Redeemable convertible preferred stock dividends
(undeclared and cumulative)
|
|
|
(8,015
|
)
|
|
|
(8,556
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Net loss attributable to common stockholders
|
|
$
|
(134,476
|
)
|
|
$
|
(99,448
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per share attributable to common
stockholders, basic and diluted
|
|
$
|
(22.75
|
)
|
|
$
|
(16.82
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-average shares used in computing net loss per share attributable to common stockholders, basic and diluted
|
|
|
5,911,428
|
|
|
|
5,911,428
|
|
See accompanying notes to consolidated financial statements.
F-38
Table of Contents
Bowlero Corp.
Consolidated Statements of Comprehensive Loss
Fiscal Years Ended June 27, 2021 and June 28, 2020
(Amounts in thousands)
|
|
|
Fiscal Year Ended
|
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Net loss
|
|
$
|
(126,461
|
)
|
|
$
|
(90,892
|
)
|
|
Other comprehensive income (loss), net of income tax:
|
|
|
|
|
|
|
|
|
|
Unrealized loss on derivatives
|
|
|
(371
|
)
|
|
|
(9,128
|
)
|
|
Reclassification to earnings
|
|
|
9,002
|
|
|
|
5,160
|
|
|
Foreign currency translation adjustment
|
|
|
977
|
|
|
|
(1,040
|
)
|
|
Other comprehensive income (loss)
|
|
|
9,608
|
|
|
|
(5,008
|
)
|
|
Total comprehensive loss
|
|
$
|
(116,853
|
)
|
|
$
|
(95,900
|
)
|
See accompanying notes to consolidated financial statements.
F-39
Table of Contents
Bowlero Corp.
Consolidated Statements of Cash Flows
Fiscal Years Ended June 27, 2021 and June 28, 2020
(Amounts in thousands)
|
|
|
Fiscal Year Ended
|
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Operating activities
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(126,461
|
)
|
|
$
|
(90,892
|
)
|
|
Adjustments to reconcile net loss to net cash provided by operating activities:
|
|
|
|
|
|
|
|
|
|
Asset impairment
|
|
|
386
|
|
|
|
1,653
|
|
|
Depreciation and amortization
|
|
|
91,851
|
|
|
|
89,234
|
|
|
(Gain) loss on sale or disposal of assets, net
|
|
|
(46
|
)
|
|
|
1,346
|
|
|
Gain on short-term investments
|
|
|
—
|
|
|
|
(3,388
|
)
|
|
Income from joint venture
|
|
|
(223
|
)
|
|
|
(143
|
)
|
|
Loss on refinance of debt
|
|
|
—
|
|
|
|
1,172
|
|
|
Amortization of deferred financing costs
|
|
|
3,431
|
|
|
|
2,898
|
|
|
Amortization of deferred rent incentive
|
|
|
(1,766
|
)
|
|
|
(1,499
|
)
|
|
Non-cash interest expense on capital lease obligation
|
|
|
6,986
|
|
|
|
6,565
|
|
|
Amortization of deferred sale lease-back gain
|
|
|
(1,204
|
)
|
|
|
(1,200
|
)
|
|
Deferred income taxes
|
|
|
(1,418
|
)
|
|
|
7,402
|
|
|
Stock based compensation
|
|
|
3,164
|
|
|
|
3,431
|
|
|
Distributions from joint venture
|
|
|
210
|
|
|
|
148
|
|
|
Changes in assets and liabilities, net of business acquisitions:
|
|
|
|
|
|
|
|
|
|
Accounts receivable and notes receivable, net
|
|
|
458
|
|
|
|
(833
|
)
|
|
Inventories
|
|
|
(137
|
)
|
|
|
(91
|
)
|
|
Prepaids, other current assets and other assets
|
|
|
(2,184
|
)
|
|
|
6,610
|
|
|
Accounts payable and accrued expenses
|
|
|
40,073
|
|
|
|
(16,995
|
)
|
|
Other current liabilities
|
|
|
725
|
|
|
|
(198
|
)
|
|
Other long-term liabilities
|
|
|
44,387
|
|
|
|
13,602
|
|
|
Net cash provided by operating activities
|
|
|
58,232
|
|
|
|
18,822
|
|
|
|
|
|
|
|
|
|
|
|
|
Investing activities
|
|
|
|
|
|
|
|
|
|
Purchases of property and equipment
|
|
|
(43,137
|
)
|
|
|
(119,668
|
)
|
|
Proceeds from sale of property and equipment
|
|
|
1,273
|
|
|
|
617
|
|
|
Purchases of intangible assets
|
|
|
(60
|
)
|
|
|
(43
|
)
|
|
Proceeds from sale of intangibles
|
|
|
140
|
|
|
|
21
|
|
|
Purchase of short-term investments
|
|
|
—
|
|
|
|
(15,773
|
)
|
|
Proceeds from sale of short-term investments
|
|
|
—
|
|
|
|
19,161
|
|
|
Acquisitions, net of cash acquired
|
|
|
(4,892
|
)
|
|
|
(13,710
|
)
|
|
Net cash used in investing activities
|
|
|
(46,676
|
)
|
|
|
(129,395
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Financing activities
|
|
|
|
|
|
|
|
|
|
Payments of long-term debt
|
|
|
(8,211
|
)
|
|
|
(5,893
|
)
|
|
Proceeds from long-term debt
|
|
|
—
|
|
|
|
103,828
|
|
|
Payments of deferred financing costs
|
|
|
(1,984
|
)
|
|
|
(525
|
)
|
|
Proceeds from revolver
|
|
|
—
|
|
|
|
39,853
|
|
|
Proceeds from incremental liquidity facility
|
|
|
45,000
|
|
|
|
—
|
|
|
Net cash provided by financing activities
|
|
|
34,805
|
|
|
|
137,263
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of exchange rates on cash
|
|
|
27
|
|
|
|
(177
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Net increase in cash and equivalents
|
|
|
46,388
|
|
|
|
26,513
|
|
|
Cash and cash equivalents at beginning of year
|
|
|
140,705
|
|
|
|
114,192
|
|
|
Cash and cash equivalents at end of year
|
|
$
|
187,093
|
|
|
$
|
140,705
|
|
See accompanying notes to consolidated financial statements.
F-40
Table of Contents
Bowlero Corp.
Consolidated Statements of Redeemable Convertible Preferred Stock, Redeemable Common Stock and Stockholders’ Equity (Deficit)
Fiscal Years Ended June 27, 2021 and June 28, 2020
(Amounts in thousands)
|
|
|
Redeemable
Common
Stock
|
|
Redeemable
Convertible
Preferred
Stock
|
|
Common
stock
|
|
Additional
Paid-in
capital
|
|
Accumulated
deficit
|
|
Accumulated
other
comprehensive
loss
|
|
Total
stockholders’
equity (deficit)
|
|
Balance, June 30, 2019
|
|
$
|
212,093
|
|
|
$
|
124,591
|
|
$
|
1
|
|
$
|
225,409
|
|
|
$
|
(11,809
|
)
|
|
$
|
(14,004
|
)
|
|
$
|
199,597
|
|
|
Net loss
|
|
|
—
|
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
(90,892
|
)
|
|
|
—
|
|
|
|
(90,892
|
)
|
|
Foreign currency translation adjustment
|
|
|
—
|
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
—
|
|
|
|
(1,040
|
)
|
|
|
(1,040
|
)
|
|
Unrealized loss on derivatives
|
|
|
—
|
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
—
|
|
|
|
(9,128
|
)
|
|
|
(9,128
|
)
|
|
Reclassification to earnings
|
|
|
—
|
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
—
|
|
|
|
5,160
|
|
|
|
5,160
|
|
|
Accrued dividends on redeemable convertible preferred stock
|
|
|
—
|
|
|
|
8,556
|
|
|
—
|
|
|
(8,556
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
(8,556
|
)
|
|
Change in fair value of redeemable common stock
|
|
|
(51,492
|
)
|
|
|
—
|
|
|
—
|
|
|
51,492
|
|
|
|
—
|
|
|
|
—
|
|
|
|
51,492
|
|
|
Stock based compensation
|
|
|
—
|
|
|
|
—
|
|
|
—
|
|
|
3,431
|
|
|
|
—
|
|
|
|
—
|
|
|
|
3,431
|
|
|
Balance, June 28, 2020
|
|
$
|
160,601
|
|
|
$
|
133,147
|
|
$
|
1
|
|
$
|
271,776
|
|
|
$
|
(102,701
|
)
|
|
$
|
(19,012
|
)
|
|
$
|
150,064
|
|
|
Net loss
|
|
|
—
|
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
(126,461
|
)
|
|
|
—
|
|
|
|
(126,461
|
)
|
|
Foreign currency translation adjustment
|
|
|
—
|
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
—
|
|
|
|
977
|
|
|
|
977
|
|
|
Unrealized loss on derivatives
|
|
|
—
|
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
—
|
|
|
|
(371
|
)
|
|
|
(371
|
)
|
|
Reclassification to earnings
|
|
|
—
|
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
|
—
|
|
|
|
9,002
|
|
|
|
9,002
|
|
|
Accrued dividends on redeemable convertible preferred stock
|
|
|
—
|
|
|
|
8,015
|
|
|
—
|
|
|
(8,015
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
(8,015
|
)
|
|
Change in fair value of redeemable common stock
|
|
|
304,226
|
|
|
|
—
|
|
|
—
|
|
|
(304,226
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
(304,226
|
)
|
|
Stock based compensation
|
|
|
—
|
|
|
|
—
|
|
|
—
|
|
|
3,164
|
|
|
|
—
|
|
|
|
—
|
|
|
|
3,164
|
|
|
Reclass of negative APIC to accumulated deficit
|
|
|
—
|
|
|
|
—
|
|
|
—
|
|
|
37,301
|
|
|
|
(37,301
|
)
|
|
|
—
|
|
|
|
—
|
|
|
Balance, June 27, 2021
|
|
$
|
464,827
|
|
|
$
|
141,162
|
|
$
|
1
|
|
$
|
—
|
|
|
$
|
(266,463
|
)
|
|
$
|
(9,404
|
)
|
|
$
|
(275,866
|
)
|
See accompanying notes to consolidated financial statements.
F-41
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(1) Organization and Impact of COVID-19
Bowlero Corp., a Delaware corporation, and its subsidiaries (Bowlero Corp. and subsidiaries are referred to collectively as we, our, the Company, Bowlero Corp. or Bowlero) are the world’s largest operator of bowling entertainment centers.
The Company operates bowling centers under different brand names. The AMF branded centers are traditional bowling centers and the Bowlmor and Bowlero branded centers offer a more upscale entertainment concept with lounge seating, enhanced food and beverage offerings, and more robust customer service for individuals and group events. Additionally, within the brands, there exists a spectrum where some AMF branded centers are more upscale and some Bowlero branded centers are more traditional. All of our centers, regardless of branding, are managed in a fully integrated and consistent basis since all of our centers are in the same business of operating bowling entertainment. The following summarizes the Company’s centers by country and major brand as of the fiscal years ended June 27, 2021 and June 28, 2020:
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
AMF & other
|
|
136
|
|
148
|
|
Bowlmor
|
|
14
|
|
15
|
|
Bowlero
|
|
133
|
|
124
|
|
Total centers in the United States
|
|
283
|
|
287
|
|
Mexico (AMF)
|
|
6
|
|
7
|
|
Canada (AMF and Bowlero)
|
|
2
|
|
2
|
|
Total
|
|
291
|
|
296
|
Impact of COVID-19
In mid-March of fiscal year 2020, the Company temporarily suspended all operations in compliance with local, state, and federal governmental restrictions to prevent the spread of the novel coronavirus and variants collectively known as COVID-19. Starting in April 2020, the Company began reopening centers and restoring operations. As of August 31, 2021, all but two of our centers were reopened and have remained open. Some centers are not operating at full capacity due to, among other factors, social distancing requirements, limited hours of operation, limitations on available offerings, and other operational restrictions. The temporary suspension of our operations and subsequent operational restrictions have had an adverse impact on the Company’s profitability and cash flows, for which the Company has taken and continues to take actions to address.
While the future impact of the COVID-19 situation is not known, as centers remain open and operating, we continue to monitor the situation closely and it is possible that we will implement further measures.
(2) Significant Accounting Policies
Principles of Consolidation: The consolidated financial statements and related notes include the accounts of Bowlero Corp. and the subsidiaries it controls. Control is determined based on ownership rights or, when applicable, based on whether the Company is considered to be the primary beneficiary of a variable interest entity. The Company’s interest in 20% to 50% owned companies that are not controlled are accounted for using the equity method, unless the Company does not sufficiently influence the management of the investee. All significant intercompany balances and transactions have been eliminated in consolidation.
Fiscal Year: The Company reports on a fiscal year with each quarter generally comprised of one 5-week period and two 4-week periods. Fiscal years 2021 and 2020 were fifty-two weeks and ended on June 27, 2021 and June 28, 2020, respectively.
F-42
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(2) Significant Accounting Policies (cont.)
Use of Estimates: The preparation of the consolidated financial statements in conformity with U.S. generally accepted accounting principles (GAAP) requires management to make estimates and assumptions that affect the amounts reported in the balance sheets, statement of operations and accompanying notes. Significant estimates made by management include cash flow projections; the fair value of assets and liabilities in acquisitions; derivatives with hedge accounting; stock based compensation; depreciation and impairment of long-lived assets; carrying amount and recoverability analyses of property and equipment, assets held for sale, goodwill and other intangible assets; valuation of deferred tax assets and liabilities and income tax uncertainties; and reserves for litigation, claims and self-insurance costs. Significant assumptions also include the Company’s position that the COVID-19 pandemic is temporary. Actual results could differ from those estimates.
Fair-value Estimates: We have various financial instruments included in our financial statements. Financial instruments are carried in our financial statements at either cost or fair value. We estimate fair value of assets using the following hierarchy using the highest level possible:
Level 1: Quoted prices in active markets that are accessible at the measurement date for identical assets and liabilities.
Level 2: Observable prices that are based on inputs not quoted on active markets, but are corroborated by market data.
Level 3: Unobservable inputs are used when little or no market data is available.
Cash and Cash Equivalents: The Company considers all highly liquid investments with a maturity date of three months or less when purchased to be cash equivalents. The Company had cash equivalents of $86,003 and $128,903 at June 27, 2021 and June 28, 2020, respectively. The Company accepts a range of debit and credit cards, and these transactions are generally transmitted to a bank for reimbursement within 24 hours. The payments due from the banks for these debit and credit card transactions are generally received, or settled, within 24 to 48 hours of the transmission date. The Company considers all debit and credit card transactions that settle in less than seven days to be cash equivalents. Amounts due from the banks for these transactions classified as cash equivalents totaled $8,534 and $1,237 at June 27, 2021 and June 28, 2020, respectively.
Accounts Receivable: The Company records accounts receivable at the invoiced amount. Accounts receivable do not bear interest unless specified in a formal agreement. An allowance for doubtful accounts is provided based on management’s best estimate of the amount of probable credit losses in the existing accounts receivable. The Company determines the allowance based on a number of factors, including historical write-off experience and its knowledge of specific customer accounts. Past-due balances meeting specific criteria are reviewed individually for collectability. The Company reviews all other balances on a pooled basis. Accounts are written off once collection efforts have been exhausted and the potential for recovery is considered remote. Actual uncollectable accounts could exceed the Company’s estimates, and changes to estimates are accounted for in the period of change. The Company does not have any off-balance sheet credit exposures to its customers.
Inventories: Inventory, which includes operational items such as food and beverages, is valued at the lower of cost or market, with cost determined using an average cost method.
Property and Equipment: Property and equipment are recorded at cost. Depreciation is calculated principally on the straight-line method based on the estimated useful lives of individual assets or classes of assets.
Leased property and equipment meeting capital lease criteria are capitalized at the lower of the present value of the related lease payments or the fair value of the leased asset at the inception of the lease. Amortization of capital lease assets is calculated on the straight-line method based on the lesser of the estimated useful life or the lease term.
F-43
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(2) Significant Accounting Policies (cont.)
Leasehold improvements are recorded at cost. Amortization of leasehold improvements is calculated principally on the straight-line method over the lesser of the estimated useful life of the leasehold improvement or the lease term. Renewal periods are included in the lease term when the renewal is determined to be reasonably assured.
Internal costs, including compensation and employee benefits for employees directly associated with capital projects, are capitalized and amortized over the estimated useful life of the asset.
Part of the costs related to the development or purchase of internal-use software is capitalized and depreciated over the estimated useful life of the software. Costs that are capitalized include external direct costs of materials and services to develop or obtain the software, and internal costs, including compensation and employee benefits for employees directly associated with a software development project.
Estimated useful lives of property and equipment are as follows:
|
Buildings and improvements
|
|
2 – 39 years
|
|
Leasehold improvements
|
|
lesser of asset’s useful life or lease term (1 month – 20 years)
|
|
Equipment, furniture, and fixtures
|
|
2 – 15 years
|
|
Internal-use software
|
|
3 – 5 years
|
Expenditures for routine maintenance and repairs that do not improve or extend the life of an asset are expensed as incurred. Improvements are capitalized and amortized over the lesser of the remaining life of the asset or, if applicable, the lease term. Upon retirement or sale of an asset, its cost and related accumulated depreciation are removed from property and equipment and any gain or loss is recognized.
The Company’s policy is to capitalize interest cost incurred on debt during the construction of major projects. Interest cost will be capitalizable for all assets that require a period of time to get them ready for their intended use (an acquisition period). The amount capitalized in an accounting period is determined by applying the capitalization rate to the accumulated expenditures for the asset during the period. The capitalization rates used is based on the rates applicable to borrowings outstanding during the capitalization period.
Goodwill and Intangible Assets: Goodwill is recognized for the excess of the purchase price over the fair value of tangible and identifiable intangible assets acquired and liabilities assumed of businesses acquired.
Indefinite-lived intangible assets include liquor licenses and the Bowlero and Professional Bowlers Association trade names. Liquor licenses to which values are ascribed are brokered licenses that are on a quota system. Bowlero is the corporate name of the Company and the brand name associated with many of the Company’s bowling centers. Professional Bowlers Association is the brand name of the entity owned by the Company associated with the main sanctioning body for ten-pin bowling. The fair value of the trade names stems from the customer appeal and revenue streams derived from these brands.
Finite-lived intangible assets primarily includes Bowlmor, AMF and other trade names of the acquisitions, customer relationships and management contracts, which have remaining useful lives ranging from 1 to 10 years. Finite-lived intangible assets are amortized based on the pattern in which the economic benefits are used or on a straight-line basis.
Favorable and Unfavorable leases: Favorable and unfavorable leases are included in other assets and other long-term liabilities, respectively, and are amortized on a straight-line basis, over remaining lease terms, which range from 1 to 40 years.
Impairment of Goodwill, Intangible and Long-Lived Assets: Goodwill is not amortized but is tested at least annually for impairment at the reporting unit level. The Company has determined it has one reporting unit, operating a bowling entertainment business.
F-44
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(2) Significant Accounting Policies (cont.)
We perform our annual goodwill impairment test at fiscal year-end. For 2021 and 2020, the Company performed a quantitative assessment of goodwill using the income approach. There were no impairment charges for goodwill recorded in fiscal years 2021 or 2020.
Indefinite-lived intangible assets are tested for impairment annually at fiscal year-end. For 2021 and 2020, the Company performed a quantitative analysis over indefinite-lived intangible assets. There were no impairment charges for indefinite-lived intangible assets recorded in fiscal years 2021 or 2020.
Long-lived assets other than goodwill (such as property and equipment) and other definite-lived intangibles are reviewed for impairment when events or changes in circumstances indicate the carrying value of an asset may not be recoverable.
For long-lived assets, an impairment is indicated when the estimated total undiscounted cash flows associated with the asset or group of assets is less than carrying value. If impairment exists, an adjustment is made to write the asset down to its fair value, and a loss is recorded as the difference between the carrying value and fair value. The Company recognized impairment charges of $386 and $1,653 in fiscal years 2021 and 2020, respectively. The impairment charges in fiscal years 2021 and 2020 relate to long-lived assets and liquor licenses. We estimated the fair value of these assets utilizing the market approach using orderly liquidation values or broker quotes for sale of similar properties. We then compared these fair values to the related carrying value of the long-lived assets. The impairments were not the result of the COVID-19 pandemic since the COVID-19 situation was considered temporary and the Company’s overall business is expected to recover.
Derivatives: We are exposed to interest rate risk. To manage these risks, we entered into interest rate swap derivative transactions to manage the interest rate risk associated with a portion of our outstanding debt. The interest rate swaps are designated for accounting purposes as cash flow hedges of forecasted floating interest payments on variable rate debt.
For financial derivative instruments that are designated as a cash flow hedge for accounting purposes, the effective portion of the gain or loss on the financial derivative instrument is reported as a component of other comprehensive income and reclassified into earnings in the same line item associated with the forecasted transaction, and in the same period or periods during which the forecasted transaction affects earnings. Gains and losses on the financial derivative representing either hedge ineffectiveness or hedge components excluded from the assessment of effectiveness are recognized in current earnings.
We have entered into interest rate swap agreements that effectively modified our exposure to interest rate risk by converting a portion of our interest payments on floating rate debt to a fixed rate basis, thus reducing the impact of interest rate changes on future interest expense. These agreements typically involved the receipt of floating rate amounts in exchange for fixed interest rate payments over the life of the agreements without an exchange of the underlying principal amount.
Self-Insurance Programs: The Company is self-insured for a portion of its general liability, workers’ compensation and certain health care exposures. We also purchase stop-loss insurance coverage through third-party insurers. The undiscounted costs of these self-insurance programs are accrued based upon estimates of settlements and costs for known and anticipated claims. For claims that exceed the deductible amount, the Company records a receivable representing expected recoveries pursuant to the stop-loss coverage and a corresponding gross liability for its legal obligation to the claimant, since the Company is not legally relieved of our obligation to the claimant. The Company recorded gross estimated liabilities of $17,363 and $13,079 at June 27, 2021 and June 28, 2020, respectively, to cover known general liability, health and workers’ compensation claims, and the estimate of claims incurred but not reported. Corresponding stop-loss receivables for expected recoveries of self-insured claims in the amounts of $4,780 and $3,775 were recorded at June 27, 2021 and June 28, 2020, respectively.
F-45
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(2) Significant Accounting Policies (cont.)
The short-term portion of the self-insurance liabilities is included in accrued expenses in the accompanying consolidated balance sheets. The long-term portion is included in other long-term liabilities in the accompanying consolidated balance sheets. The stop-loss receivable is included in other assets.
Asset Retirement Obligation (ARO): The Company has asset removal obligations that are required under certain lease contracts to remove equipment and leasehold improvements, as well as clean up the premises upon vacating a center when taken out of operation. Most of these obligations are not expected to be paid until several years in the future and will be funded from general company resources. The ARO is an estimate of expected costs based on a number of assumptions requiring professional judgement. When the liability is initially recorded, we capitalize this cost by increasing the carrying amount of the related properties and equipment. Over time, the liability is increased for the changes in its present value, and the capitalized cost in property and equipment is depreciated over the useful life of the related asset.
The Company recognizes changes to the liability as an accretion due to the passage of time in operating expenses. Changes due to passage of time are calculated by applying an interest method of allocation using the discount rate used in the calculation of the ARO. The Company recognizes changes to the liability arising from revisions to the timing, amount of expected undiscounted cash flows or discount rate as an increase or decrease to the carrying amounts of the ARO and the related asset retirement capitalized cost. The current portion of the asset retirement obligation is included in accrued expenses in the consolidated balance sheets. The long-term portion is included within other long-term liabilities in the consolidated balance sheets.
Income Taxes: The Company utilizes the asset and liability approach in accounting for income taxes. We recognize income taxes in each of the jurisdictions in which we have a presence. For each jurisdiction, we estimate the actual amount of income taxes currently payable or receivable, as well as deferred income tax assets and liabilities. Deferred tax assets and liabilities are recorded to recognize the expected future tax benefits or costs of events that have been, or will be, reported in different years for financial statement purposes than tax purposes. Deferred tax assets and liabilities are determined based on the difference between the financial statement and tax bases of assets and liabilities using enacted tax rates in effect for the year in which these items are expected to reverse. We review our deferred tax assets to determine if it is more-likely-than-not that they will be realized. If we determine it is not more-likely-than-not that a deferred tax asset will be realized, we record a valuation allowance to reverse the previously recognized tax benefit.
The Company recognizes tax benefits related to uncertain tax positions if we believe it is more likely than not the benefit will be realized. Recognized income tax positions are measured at the largest amount that is greater than 50% likely of being realized. Changes in recognition or measurement are reflected in the period in which a change in judgment occurs.
Revenue Recognition: The Company adopted Financial Accounting Standards Board (FASB) Accounting Standard Update (ASU) 2014-09, Revenue from Contracts with Customers as of July 1, 2019.
The following table presents the Company’s revenue disaggregated by major revenue categories:
|
|
|
Fiscal Year Ended
|
|
|
|
June 27,
2021
|
|
% of revenues
|
|
June 28,
2020
|
|
% of revenues
|
|
Major revenue categories:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bowling
|
|
$
|
203,730
|
|
52
|
%
|
|
$
|
270,102
|
|
52
|
%
|
|
Food and beverage
|
|
|
128,393
|
|
32
|
%
|
|
|
179,460
|
|
34
|
%
|
|
Amusement
|
|
|
48,414
|
|
12
|
%
|
|
|
62,407
|
|
12
|
%
|
|
Media
|
|
|
14,697
|
|
4
|
%
|
|
|
8,462
|
|
2
|
%
|
|
Total revenues
|
|
$
|
395,234
|
|
100
|
%
|
|
$
|
520,431
|
|
100
|
%
|
F-46
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(2) Significant Accounting Policies (cont.)
Bowling revenue — The Company recognizes revenue for providing bowling services to customers in exchange for consideration that is recognized as revenue on the day that the services are performed and payments are received from the customer. Any prepayments for bowling revenue are recognized as deferred revenue and recognized when earned.
Food and beverage revenue — Sales of food and beverages at our bowling centers are recognized at a point-in-time.
Amusement revenue — Amusement revenue includes amounts earned through arcades and other games. Similar to bowling and food and beverage revenue, almost all of our revenue is earned at a point-in-time. We record deferred revenue for events where we collect cash in advance of the Company’s satisfaction of its performance obligation, which would occur on the date of the event. These deferred amounts are not material to our financial statements and the amounts are typically all earned in the subsequent period. The Company provides customers game-play tokens and game cards, which are subject to breakage and redemptions. Please see further details below on our accounting policies regarding these items.
Media revenue — The Company earns media revenue from sanctioning official PBA tournaments and licensing media content to our customers, which include television networks and multi-year contracts. The Company considers each tournament as a separate performance obligation as each tournament’s pricing is negotiated separately and represents stand-alone selling price based on the terms of the contract and the relative nature services provided. Media revenue is generated through producing and licensing distribution rights to customers, which is recognized at the point-in-time the Company produces and delivers programming for a respective tournament. Tournament revenue includes sponsorships, entry and host fees. Fees received for sponsorships and tournaments are recognized as deferred revenue until the respective tournament occurs, at which point, the Company recognizes those fees as revenue.
The Company sells gift and game cards that do not expire. Gift and game card revenue is recognized as gift and game cards or game-play tokens are redeemed by customers. The Company accrues unearned revenue as a liability for the unredeemed tickets that may be redeemed or used in the future. Gift and game card sales are recorded as an unearned gift and game card revenue liability when sold. Unearned gift and game card revenue or deferred revenue is reported in accrued expenses in the consolidated balance sheets and is disclosed in Note 7. The Company recognized revenue of $5,044 during the fiscal year ended June 27, 2021 that was included in the beginning of fiscal year 2021 deferred revenue. Gift and game card revenue is not material to the consolidated financial statements. The Company recognizes breakage revenue for unredeemed gift and game cards on a pro-rated basis based on historical redemption patterns. Breakage is the amount not used or redeemed by the customer. Breakage income from game and gift cards is included in operating revenue. Breakage income is not material to the consolidated financial statements.
Taxes collected from customers and remitted to government authorities are excluded from revenue in the consolidated statement of operations. The remittance obligation is included in accrued liabilities until the taxes are sent to the appropriate taxing authorities.
The Company also has a loyalty program called the Most Valuable Bowler (MVB) program. MVB participants earn rewards in the form of coupons or points based on their cumulative spend with an expiration date. The loyalty program creates material rights, which are valued as separate performance obligations and deferred until use or expiration. The deferred portion is included in deferred revenue and is not material to the financial statements.
From time to time, the Company offers discount vouchers through outside vendors. Revenue for these vouchers is recognized as revenue when the voucher is redeemed by the guest or as breakage on a pro-rated basis based on historical redemption patterns. Revenue is recognized for the gross amount paid by customers for purchased vouchers. The fee paid to the outside vendors, in the form of the discount, is recognized in cost of revenues. We recognize this revenue on a gross basis, as we are responsible for providing the service desired by the customer.
F-47
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(2) Significant Accounting Policies (cont.)
Costs of Revenues: The Company’s costs of revenues all relate to center operations and are comprised primarily of fixed costs that are not variable or less variable with changes in revenues, and include depreciation, amortization, property taxes, supplies, insurance and utilities. Variable costs included within costs of revenues primarily comprise labor, food and beverage costs, supplies, prize funds, tournament production expenses and amusement costs.
Selling, General and Administrative Expenses (SG&A): SG&A expenses are comprised primarily of employee costs, media and promotional expenses, and depreciation and amortization (excluding those related to our center operations), and other miscellaneous expenses. A portion of SG&A costs are not variable in nature and do not fluctuate significantly with changes in revenue, and include such expenses as depreciation, amortization and certain compensation.
Other Expenses: Other expenses comprise various costs primarily including professional fees and transactional related expenses associated with business acquisitions, and foreign currency gains/losses.
Stock Based Compensation: Stock based compensation is based on the grant-date fair value estimated in accordance with applicable accounting standards for stock compensation. Bowlero Corp. recognizes stock based compensation on a straight-line basis over the requisite service period for time-based awards and recognizes the cost for performance-based awards upon the consummation of a liquidity event. The Company has adopted the provision of the applicable standard to not recognize the effect of forfeitures until they occur. All compensation expense for an award will be recognized by the time it becomes fully vested. Stock based compensation is recorded in cost of revenues and selling, general and administrative expenses in the consolidated statement of operation based on the employees’ respective functions. The Company records deferred tax assets for awards that result in deductions on the Company’s income tax returns, based on the amount of compensation cost recognized and the Company’s statutory tax rate in the jurisdiction in which it will receive a deduction.
We use the Black-Scholes-Merton option pricing model to calculate the fair value of stock options. This option valuation model requires the use of subjective assumptions, including the estimated fair value of the underlying common stock, the expected stock price volatility, and the expected term of the option. The estimated fair value of the underlying common stock was based on third-party valuations. Our volatility estimates are based on a peer group of companies. We estimate the expected term of our time-based awards to be the weighted average mid-point between the vesting date and the end of the contractual term. We use this method to estimate the expected term since we do not have sufficient historical exercise data. We estimate the expected term of our performance based awards to be seven years representing the estimated time to liquidity.
Advertising and Television Costs: Costs for advertising are expensed when incurred and recorded as operating expenses. Total advertising expenses for fiscal years 2021 and 2020 were $3,576 and $9,057, respectively. Advertising expense is included within costs of revenues on the consolidated statement of operations. Television spending, including costs associated with bowling tournaments that are televised, are capitalized as prepaid costs and expensed at the time the event takes place.
Tenant Improvement Incentives: The Company has leasehold improvement allowances of $15,100 and $15,850 as of June 27, 2021 and June 28, 2020, respectively, from landlords recorded as liabilities in other current liabilities and other long-term liabilities and amortized as a reduction of rent expense over the life of the lease.
Foreign Currency Translation: The Company’s financial statements are reported in U.S. dollars. Our foreign subsidiaries maintain their records in the currency of the country in which they operate.
Assets and liabilities of foreign subsidiaries are translated into U.S. dollars using rates of exchange at the balance sheet date. Translation adjustments are recorded in other comprehensive income (loss). Revenues and expenses are translated at rates of exchange in effect during the year. Transaction gains and losses are recorded in net income (loss).
F-48
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(2) Significant Accounting Policies (cont.)
Business Interruption Insurance: The Company recognized $20,188 and $6,025 of business interruption insurance recoveries as other operating income in the consolidated statements of operations during fiscal years 2021 and 2020, respectively, as a result of the insured claim resulting from the temporarily suspension of operations in compliance with local, state, and federal governmental restrictions to prevent the spread of the COVID-19 pandemic.
Variable Interest Entity: The Company has an ownership interest in a variable interest entity (VIE), Thousand Oaks Company (Thousand Oaks). The Company accounts for its 50% ownership interest in Thousand Oaks, a joint venture in Texas with C & C Co., under the equity method of accounting. The Company is not the primary beneficiary of Thousand Oaks since it does not have the power to direct activities of the VIE that most significantly impact the VIE’s economic performance. Further, the Company and its equity at-risk investor partner either absorb the losses or receive the benefits of the VIE on a proportionate basis. Under the equity method of accounting, the Company does not consolidate the VIE but recognizes its proportionate share of the profits and losses of the unconsolidated VIE. The nature of the Company’s involvement with Thousand Oaks does not meet the criteria of sponsorship for a qualifying special purpose entity in regards to the transfer of financial assets. Thousand Oaks is a self-sustaining bowling center. The assets of Thousand Oaks are used in the joint venture’s operations, and the VIE relationship does not expose the Company to risks outside of those inherent in normal operations.
Net Loss Per Share Attributable to Common Stockholders: Net loss per share attributable to common stockholders is computed based on the weighted average number of basic and diluted shares outstanding during each period. The net loss used in the computation is increased by the dividends accumulated during the fiscal year on the Company’s Series A Redeemable Convertible Preferred Stock. Since the Company has reported net losses for both periods presented, all potentially dilutive securities have been excluded from the calculation of the diluted net loss per share attributable to common stockholders as their effect is antidilutive and accordingly, basic and diluted net loss per share attributable to common stockholders is the same for both periods presented.
Recently Adopted Accounting Standards: In April 2020, the FASB issued interpretive guidance in response to the COVID-19 pandemic. The Staff Q&A titled, Accounting for Lease Concessions Related to the Effects of the COVID-19 Pandemic, permits entities to elect to not evaluate whether lease-related relief that lessors provide to mitigate the economic effects of COVID-19 on lessees is a lease modification under Accounting Standards Codification (ASC 840). This election is available for concessions related to the effects of the COVID-19 pandemic that do not result in a substantial increase in the rights of the lessor or our obligations as the lessee, i.e. the total payments required by the modified contract are substantially the same or less than the total payments required by the original contract. The FASB staff expects that reasonable judgement will be exercised in making those determinations, and expects that there will be multiple ways to account for those deferrals, none of which the staff believes are more preferable than the others. Two of those methods are:
a) Account for the concessions as if no changes to the lease were made. Under that account, a lessor would increase its lease receivable, and a lessee would increase its liabilities as receivables/payments accrue. In its income statement, a lessor would continue to recognize income, and a lessee would continue to recognize expense during the deferral period.
b) Account for the deferred payments as variable lease payments.
Where applicable, the Company adopted option (a) above and continues to recognize rent expense. As of June 27, 2021 we had deferred cash rent payments of $22,463, which are included in other long-term liabilities on the consolidated balance sheets. See Note 10, Commitments and Contingencies for further information.
Recently Issued Accounting Standards: In February 2016, the FASB released ASU 2016-02, Leases (Topic 842), completing its project to overhaul lease accounting. The ASU codifies Topic 842, which will replace the guidance in ASC 840. In June 2020, the FASB issued ASU 2020-05, Revenue from Contracts with Customers (Topic 606) and Leases (Topic 842): Effective Dates for Certain Entities, which defers the effective date of ASU
F-49
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(2) Significant Accounting Policies (cont.)
2016-02 for certain entities that have not yet issued their financial statements (or made financial statements available for issuance) reflecting the adoption of ASU 2016-02. The main provision of ASU 2020-05 allows entities to elect to adopt the guidance for fiscal years beginning after December 15, 2021. Early application continues to be permitted, which means that an entity may choose to implement Topic 842 before the deferred effective date. The Company has not adopted Topic 842, which is effective for the Company in fiscal year 2023. While the Company expects the adoption of Topic 842 to add right-of-use assets and lease liabilities to the consolidated balance sheet, it is currently evaluating the implications of this standard.
(3-A) Immaterial Corrections
In fiscal year 2021, the Company identified misstatements in prior years in goodwill, additional paid-in capital, property and equipment under capital leases, and long-term obligations under capital leases. The Company determined the misstatements were immaterial to the previously issued consolidated financial statements and the Company has corrected the misstatements in the accompanying fiscal year 2020 consolidated financial statements.
The Company determined goodwill resulting from the pushdown accounting with the Atairos acquisition in fiscal year 2018 was overstated by $86,862. This misstatement also resulted in the overstatement of additional paid-in capital in the same amount. The misstatement also impacted the goodwill amounts reported in Note 4, Goodwill and Other Intangible Assets, to the consolidated financial statements.
The Company determined property and equipment under capital leases and long-term obligations under capital leases were understated by $5,215 in fiscal year 2020. The misstatements also impacted the operating and capital lease amounts reported in Note 10, Commitments and Contingencies, and the deferred income tax assets and liabilities reported in Note 9, Income Taxes, to the consolidated financial statements.
In addition, the Company has corrected a misstatement in the fair value of options granted in fiscal year 2020 in Note 15, Stock Based Compensation.
(3-B) Acquisitions
The Company continually evaluates potential acquisitions that strategically fit within the Company’s existing portfolio of centers as a key part of the Company’s overall growth strategy. The Company has completed acquisitions in fiscal years 2021 and 2020. Business combinations are accounted for under the acquisition method of accounting which, among other things, results in the recognition of goodwill. This goodwill arises because the purchase prices for these businesses reflect, among other factors, future earnings and cash flow potential of these businesses, the multiple to earnings, cash flow and the complementary strategic fit and resulting synergies these businesses bring to existing operations.
2021 Acquisition: The Company acquired the following business (“2021 Acquisition”) in fiscal year 2021 for a total purchase price of $2,765.
|
Date of Acquisition
|
|
Location
|
|
Purchase Price
|
|
Business
|
|
June 14, 2021
|
|
California
|
|
$
|
2,765
|
|
Bowling Center
|
Consideration was paid from available cash on hand. The Company recorded $69 in transaction related costs as a component of other operating expenses in the consolidated statement of operations for the year ended June 27, 2021. The balance sheets reflect assets acquired and liabilities assumed recorded at fair values and resulting recognition of goodwill.
F-50
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(3-B) Acquisitions (cont.)
The following table summarizes the fair value of the assets acquired and the liabilities assumed as a result of acquisition accounting for the acquisition listed above:
|
Current assets
|
|
$
|
90
|
|
Property and equipment
|
|
|
181
|
|
Identifiable intangible assets
|
|
|
465
|
|
Goodwill
|
|
|
2,350
|
|
Total assets acquired
|
|
|
3,086
|
|
|
|
|
|
|
Current liabilities
|
|
|
326
|
|
Total liabilities assumed
|
|
|
326
|
|
Total fair value, net of cash of $5
|
|
$
|
2,760
|
During fiscal year 2021, the Company paid $2,760 related to the 2021 Acquisition and $2,132 in acquisition payments related to 2020 and 2019 acquisitions, which is noted as Acquisitions, net of cash acquired, on the consolidated statement of cash flows for the fiscal year ended June 27, 2021.
2020 Acquisitions: The Company acquired the following businesses (collectively “2020 Acquisitions”) in fiscal year 2020 for a total purchase price of $13,813.
|
Date of Acquisition
|
|
Location
|
|
Purchase Price
|
|
Business
|
|
July 15, 2019
|
|
Michigan
|
|
$
|
5,375
|
|
Bowling Center
|
|
September 9, 2019
|
|
Washington
|
|
|
8,438
|
|
Professional Bowlers Association (“PBA”)
|
|
|
|
|
|
$
|
13,813
|
|
|
Consideration was cash from available cash on hand. The Company recorded $638 in transaction related costs as a component of other operating expenses in the consolidated statement of operations for the year ended June 28, 2020. The Company’s consolidated balance sheets reflect assets acquired and liabilities assumed recorded at fair values and resulting recognition of goodwill.
The following table summarizes the fair value of the assets acquired and the liabilities assumed as a result of acquisition accounting for the acquisitions listed above:
|
Current assets
|
|
$
|
179
|
|
Property and equipment
|
|
|
1,153
|
|
Identifiable intangible assets
|
|
|
5,160
|
|
Goodwill
|
|
|
10,942
|
|
Total assets acquired
|
|
|
17,434
|
|
|
|
|
|
|
Current liabilities
|
|
|
2,242
|
|
Deferred acquisition payments
|
|
|
1,482
|
|
Total liabilities assumed
|
|
|
3,724
|
|
Total fair value, net of cash of $103
|
|
$
|
13,710
|
The Company’s accounting for the allocations of the purchase price at the date of 2021 and 2020 Acquisitions is based upon its understanding of the fair value of the acquired assets and assumed liabilities. The Company obtains this information during due diligence and through other sources. In the months after closing, as the Company obtains additional information about these assets and liabilities, including third-party valuations of tangible and intangible assets, it is able to more accurately allocate the purchase price.
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Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(3-B) Acquisitions (cont.)
The following summarizes key valuation approaches and assumptions utilized in calculating the fair values of 2021 and 2020 acquisitions:
Property and equipment — Buildings and site improvements are valued using the cost approach and land is valued at its highest and best use by the market or sales comparison approach. The fair value of tangible personal property was determined primarily using variations of the cost approach. Certain assets with an active secondary market were valued using the market approach.
Intangible assets — Certain of the acquired assets are intangible in nature, including trade names, non-competition, customer, members, sponsorship and media relationships, and liquor licenses.
Trade names: The Company recorded trade names for which the fair value was determined using the relief-from-royalty method, which is considered a Level 3 fair value measurement due to the use of unobservable inputs. Significant assumptions used in the calculation include: revenue projections, a royalty rate based on qualitative factors and the market-derived royalty rates, discount rate based on the Company’s weighted average cost of capital (WACC) adjusted for risks commonly inherent in trade names and an indefinite life for Professional Bowlers Association trade name as management intends to use the trade name in perpetuity.
Non-Competition: The Company recorded the fair value of non-competition agreements for 2021 and 2020 Acquisitions using the differential discounted cash flow method income approach, a Level 3 fair value measurement due to the use of unobservable inputs. Significant assumptions used in the fair value calculations for non-competition agreements include: potential competitor impact on revenue and expense projections, discount rate based on the Company’s WACC adjusted for risks commonly inherent in intangible assets, specifically non-compete agreements.
Customer, member, sponsorship and media relationships: The Company recorded the fair value of customer relationships for bowling leagues and relationships for members, sponsors and media using the excess earnings income approach and discounted cash flow method considered Level 3 fair value measurements due to the use of unobservable inputs. Significant assumptions used in the fair value calculations for relationships include: revenue and expense projections, customer retention rate for leagues, discount rate based on the Company’s WACC adjusted for risks inherent in intangible assets, specifically customer relationships and the remaining useful life.
Liquor licenses: The Company recorded the fair value of brokered liquor licenses using the market approach. Significant assumptions used in the calculation include approximation based on recent sales of liquor licenses in the respective jurisdictions and assignment of an indefinite useful life as licenses do not expire and can be sold to third parties.
Pro forma Financial Data (Unaudited): The following represents the Company’s pro forma consolidated net loss from operations, net of income taxes, for the years ended June 27, 2021 and June 28, 2020, based on purchase accounting information assuming the 2021 and 2020 acquisitions occurred as of July 1, 2019, giving effect to acquisition accounting adjustments. The pro forma data is for informational purposes only and may not necessarily reflect results of operations had the acquired companies been operated as part of the Company since July 1, 2019.
|
|
|
Fiscal Year Ended
|
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Revenues
|
|
$
|
395,981
|
|
|
$
|
522,200
|
|
|
Net loss
|
|
|
(127,079
|
)
|
|
|
(91,208
|
)
|
|
|
|
|
|
|
|
|
|
|
F-52
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(4) Goodwill and Other Intangible Assets
Goodwill:
The changes in the carrying amount of goodwill for the fiscal years ended June 27, 2021 and June 28, 2020:
|
Balance June 30, 2019
|
|
$
|
712,583
|
|
|
Goodwill resulting from acquisitions
|
|
|
10,942
|
|
|
Foreign currency translation adjustment
|
|
|
1,407
|
|
|
Balance as of June 28, 2020
|
|
$
|
724,932
|
|
|
Goodwill resulting from acquisitions
|
|
|
2,350
|
|
|
Foreign currency translation adjustment
|
|
|
(1,126
|
)
|
|
Balance as of June 27, 2021
|
|
$
|
726,156
|
|
Intangible Assets:
|
|
|
June 27, 2021
|
|
June 28, 2020
|
|
|
|
Weighted
average
life
(in years)
|
|
Gross
carrying
amount
|
|
Accumulated
amortization
|
|
Net
carrying
amount
|
|
Weighted
average
life
(in years)
|
|
Gross
carrying
amount
|
|
Accumulated
amortization
|
|
Net
carrying
amount
|
|
Finite-lived intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
AMF trade name
|
|
1
|
|
$
|
9,900
|
|
$
|
(7,920
|
)
|
|
|
1,980
|
|
2
|
|
$
|
9,900
|
|
$
|
(5,940
|
)
|
|
$
|
3,960
|
|
Bowlmor trade name
|
|
6
|
|
|
6,500
|
|
|
(2,600
|
)
|
|
|
3,900
|
|
7
|
|
|
6,500
|
|
|
(1,950
|
)
|
|
|
4,550
|
|
Other acquisition trade
names
|
|
7
|
|
|
1,010
|
|
|
(173
|
)
|
|
|
837
|
|
8
|
|
|
850
|
|
|
(88
|
)
|
|
|
762
|
|
Customer relationships
|
|
3
|
|
|
18,370
|
|
|
(10,471
|
)
|
|
|
7,899
|
|
4
|
|
|
18,370
|
|
|
(7,841
|
)
|
|
|
10,529
|
|
Management contracts
|
|
2
|
|
|
1,800
|
|
|
(1,150
|
)
|
|
|
650
|
|
3
|
|
|
1,800
|
|
|
(863
|
)
|
|
|
937
|
|
Non-compete agreements
|
|
4
|
|
|
1,200
|
|
|
(514
|
)
|
|
|
686
|
|
5
|
|
|
1,080
|
|
|
(294
|
)
|
|
|
786
|
|
PBA member, sponsor &
media relationships
|
|
8
|
|
|
1,400
|
|
|
(322
|
)
|
|
|
1,078
|
|
9
|
|
|
1,400
|
|
|
(144
|
)
|
|
|
1,256
|
|
|
|
4
|
|
|
40,180
|
|
|
(23,150
|
)
|
|
|
17,030
|
|
5
|
|
|
39,900
|
|
|
(17,120
|
)
|
|
|
22,780
|
|
Indefinite-lived intangible assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liquor licenses
|
|
|
|
|
9,027
|
|
|
—
|
|
|
|
9,027
|
|
|
|
|
9,017
|
|
|
—
|
|
|
|
9,017
|
|
PBA trade name
|
|
|
|
|
3,100
|
|
|
—
|
|
|
|
3,100
|
|
|
|
|
3,100
|
|
|
—
|
|
|
|
3,100
|
|
Bowlero trade name
|
|
|
|
|
66,900
|
|
|
—
|
|
|
|
66,900
|
|
|
|
|
66,900
|
|
|
—
|
|
|
|
66,900
|
|
|
|
|
|
|
79,027
|
|
|
—
|
|
|
|
79,027
|
|
|
|
|
79,017
|
|
|
—
|
|
|
|
79,017
|
|
|
|
|
|
$
|
119,207
|
|
$
|
(23,150
|
)
|
|
$
|
96,057
|
|
|
|
$
|
118,917
|
|
$
|
(17,120
|
)
|
|
$
|
101,797
|
Total amortization expense for finite-lived intangible assets for the fiscal years ended 2021 and 2020 was $6,030 and $6,045, respectively.
Other assets and liabilities:
The Company has favorable leases of $34,618 and $37,693, net of $12,300 and $9,225 accumulated amortization, reported in other assets in the consolidated balance sheets for the fiscal years ended June 27, 2021 and June 28, 2020, respectively. Total amortization expenses for fiscal years 2021 and 2020 was $3,075.
F-53
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(4) Goodwill and Other Intangible Assets (cont.)
The Company has unfavorable leases of $1,096 and $1,554, net of $5,135 and $4,677 accumulated amortization, reported in other long-term liabilities in the consolidated balance sheets for the fiscal years ended June 27, 2021 and June 28, 2020, respectively. Total amortization expense for fiscal years 2021 and 2020 was $458 and $502, respectively.
The estimated aggregate amortization expense for finite-lived intangibles, favorable and unfavorable leases recorded at June 27, 2021, for the next five fiscal years is as follows:
|
|
|
2022
|
|
2023
|
|
2024
|
|
2025
|
|
2026
|
|
Thereafter
|
|
Amortization expense
|
|
$
|
8,481
|
|
$
|
6,416
|
|
$
|
6,275
|
|
$
|
3,410
|
|
$
|
3,169
|
|
$
|
22,801
|
(5) Property and Equipment
As of June 27, 2021 and June 28, 2020, property and equipment consists of:
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Land
|
|
$
|
19,879
|
|
|
$
|
17,987
|
|
|
Buildings and improvements
|
|
|
16,666
|
|
|
|
15,857
|
|
|
Leasehold improvements
|
|
|
313,441
|
|
|
|
286,874
|
|
|
Equipment, furniture, and fixtures
|
|
|
315,719
|
|
|
|
299,029
|
|
|
Internal-use software
|
|
|
19,307
|
|
|
|
15,806
|
|
|
Construction in progress
|
|
|
28,141
|
|
|
|
38,388
|
|
|
|
|
|
713,153
|
|
|
|
673,941
|
|
|
Accumulated depreciation
|
|
|
(287,919
|
)
|
|
|
(219,363
|
)
|
|
Property and equipment, net of accumulated depreciation
|
|
|
425,234
|
|
|
|
454,578
|
|
|
Less: Assets held for sale – property and equipment
|
|
|
(511
|
)
|
|
|
(1,247
|
)
|
|
Property and equipment, net
|
|
$
|
424,723
|
|
|
$
|
453,331
|
|
Total assets held for sale at June 27, 2021 and June 28, 2020 of $686 and $1,307, includes liquor licenses of $175 and $60, respectively.
Depreciation expense related to property and equipment was $70,334 and $68,290 for fiscal years 2021 and 2020, respectively.
Total interest cost capitalized during fiscal year 2021 and fiscal year 2020 was $706 and $1,188, respectively, as reported in consolidated statements of operations.
(6) Supplemental Cash Flow Information
The table below presents supplemental cash flow information for each reporting periods:
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Cash paid during the period for:
|
|
|
|
|
|
|
|
|
Interest
|
|
$
|
81,685
|
|
$
|
76,985
|
|
|
Income taxes, net of refunds
|
|
|
818
|
|
|
695
|
|
|
Noncash investing and financing transactions:
|
|
|
|
|
|
|
|
|
Capital additions in accounts payable
|
|
|
4,193
|
|
|
7,417
|
|
|
Capital leased asset and liabilities
|
|
|
5,401
|
|
|
1,904
|
|
|
Change in fair value of interest rate swap
|
|
|
8,631
|
|
|
(3,968
|
)
|
F-54
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(7) Accrued Expenses
As of June 27, 2021 and June 28, 2020, accrued expenses consist of:
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Compensation
|
|
$
|
13,577
|
|
$
|
3,012
|
|
Taxes and licenses
|
|
|
9,646
|
|
|
9,754
|
|
Insurance
|
|
|
8,285
|
|
|
7,606
|
|
Customer deposits
|
|
|
7,114
|
|
|
3,324
|
|
Deferred revenue
|
|
|
5,885
|
|
|
5,044
|
|
Interest
|
|
|
4,693
|
|
|
4,143
|
|
Professional fees
|
|
|
4,473
|
|
|
614
|
|
Deferred rent
|
|
|
4,384
|
|
|
2,650
|
|
Utilities
|
|
|
3,399
|
|
|
1,734
|
|
Other
|
|
|
1,842
|
|
|
2,476
|
|
Asset retirement obligations
|
|
|
352
|
|
|
355
|
|
Total accrued expenses
|
|
$
|
63,650
|
|
$
|
40,712
|
(8) Debt
The following table summarizes the Company’s debt structure as of June 27, 2021 and June 28, 2020:
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
First Lien Credit Facility Revolver (Maturing July 3, 2022)
|
|
$
|
39,853
|
|
|
$
|
39,853
|
|
|
First Lien Credit Facility Term Loan (Maturing July 3, 2024 and bearing variable rate interest; 4.55% and 5.17% at June 27, 2021 and June 28, 2020, respectively, excluding impact of hedging)
|
|
|
800,534
|
|
|
|
808,746
|
|
|
Incremental Liquidity Facility (Maturing July 3, 2024)
|
|
|
45,000
|
|
|
|
—
|
|
|
|
|
|
885,387
|
|
|
|
848,599
|
|
|
Less:
|
|
|
|
|
|
|
|
|
|
Unamortized financing costs
|
|
|
(9,800
|
)
|
|
|
(12,753
|
)
|
|
Current portion of unamortized financing costs
|
|
|
3,152
|
|
|
|
2,951
|
|
|
Current maturities of long-term debt
|
|
|
(8,211
|
)
|
|
|
(8,211
|
)
|
|
Total long-term debt
|
|
$
|
870,528
|
|
|
$
|
830,586
|
|
As of June 27, 2021, minimum repayments of debt are as follows:
|
2022
|
|
|
8,211
|
|
2023
|
|
|
48,064
|
|
2024
|
|
|
8,211
|
|
2025
|
|
|
820,901
|
|
|
|
$
|
885,387
|
Incremental Liquidity Facility: On September 25, 2020, the Company entered into a $150,000 Incremental Liquidity Facility with JP Morgan Chase Bank, N.A. as the lender with a maturity date of July 3, 2024 at an interest rate of the applicable LIBOR rate plus an initial applicable margin of 3.00%. The loan is structured as a revolver, with $45,000 utilized at the closing date and with the remaining $105,000 available subject to approval by Atairos as credit support provider and the prior satisfaction of certain conditions. The Incremental Liquidity Facility is secured on a pari passu first lien basis with the existing credit facility (with respect to assets of Bowlero Corp. and its guarantor subsidiaries).
F-55
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(8) Debt (cont.)
November 2019 First Lien Credit Facility Term Loan: On November 20, 2019, the Company amended the July 2018 Credit Agreement to borrow an additional $105,000 as an incremental term loan to be used for general corporate purposes. JP Morgan Chase Bank, N.A. is the administrative agent and sole issuing lender for the Amended 2019 Credit Agreement. The incremental term loan was fully funded by JP Morgan Chase Bank, N.A. on the closing date and thereafter made assignments to other participating lenders. The expanded $812,850 First Lien Credit Facility is repaid on a quarterly basis on the last business day of the last month of each calendar quarter in principal payments of $2,053 with the remaining balance maturing and fully payable on July 3, 2024.
First Lien Credit Facility Revolver: The November 2019 Credit Agreement did not alter the $50,000 revolving line of credit (“Revolver”) or its maturity date of July 3, 2022. Outstanding standby letters of credit as of June 27, 2021, totaling $9,100 are guaranteed by JP Morgan Chase Bank, N.A. and limit borrowings under the Revolver to $40,900. The Company has $39,853 in borrowings outstanding under the Revolver as of June 27, 2021.
Obligations owed under the First Lien Credit Facility bear interest at a rate per annum equal to the applicable LIBOR rate, subject to a floor of 1.00%, plus an applicable margin of 3.75% to 4.25% depending on the leverage level. Interest on loans under the First Lien Facility bearing interest based upon the Base Rate will be due quarterly, and interest on loans bearing interest based upon the LIBOR rate will be due on the last day of each relevant interest period or, if sooner, on the respective dates that fall every three months after the beginning of such interest period. The Base Rate means a rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such day plus 0.50%, (b) to the extent ascertainable, the Published LIBOR Rate plus 1.00%, (c) the Prime Rate and (d) solely with respect to the expanded term loan under the July 2018 Credit Agreement, 2.00%.
Pursuant to the First Lien Credit Agreement collateral and guarantee requirement, obligations owed under the First Lien Credit Facilities are secured by a first priority security interest on substantially all assets of Bowlero Corp. and the guarantor subsidiaries. The First Lien Credit Agreement contains customary events of default, restrictions on indebtedness, liens, investments, asset dispositions, dividends and affirmative and negative covenants.
On June 10, 2020, the Company entered into an amendment to the November 2019 Credit Agreement that, among other things, provided the Company a Covenant Waiver Period through June 26, 2021 that waived application of the leverage-based financial covenant for so long as Bowlero satisfied certain minimum liquidity tests and complied with certain other requirements. The Covenant Waiver Period was subsequently extended to the last day of the fiscal quarter ending March 31, 2022 in connection with entry into the above mentioned Incremental Liquidity Facility. Based on this extension and assuming satisfaction of the waiver requirements, the Company’s next financial covenant test will occur on March 31, 2022, if the testing conditions are then triggered.
(9) Income Taxes
Total loss before income taxes consists of:
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Loss before tax:
|
|
|
|
|
|
|
|
|
|
U.S.
|
|
$
|
(123,360
|
)
|
|
$
|
(81,208
|
)
|
|
Foreign
|
|
|
(4,136
|
)
|
|
|
(1,421
|
)
|
|
Total loss before tax
|
|
$
|
(127,496
|
)
|
|
$
|
(82,629
|
)
|
F-56
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(9) Income Taxes (cont.)
Income tax (benefit) expense consists of the following:
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Current income tax provision:
|
|
|
|
|
|
|
|
|
|
State and local
|
|
$
|
505
|
|
|
$
|
732
|
|
|
Foreign
|
|
|
(122
|
)
|
|
|
129
|
|
|
Total current provision
|
|
|
383
|
|
|
|
861
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred income tax provision:
|
|
|
|
|
|
|
|
|
|
U.S. Federal
|
|
|
9
|
|
|
|
3,544
|
|
|
State and local
|
|
|
(1,707
|
)
|
|
|
4,068
|
|
|
Foreign
|
|
|
280
|
|
|
|
(210
|
)
|
|
Total deferred provision
|
|
|
(1,418
|
)
|
|
|
7,402
|
|
|
Total income tax (benefit) expense
|
|
$
|
(1,035
|
)
|
|
$
|
8,263
|
|
A reconciliation of the beginning and ending amount of unrecognized tax benefits for the fiscal years ended June 27, 2021 and June 28, 2020 was as follows:
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Balance at beginning of year
|
|
$
|
22
|
|
$
|
21
|
|
Additions for tax positions of prior years
|
|
|
4
|
|
|
1
|
|
Reductions for tax positions of prior years
|
|
|
—
|
|
|
—
|
|
Tax settlements
|
|
|
—
|
|
|
—
|
|
Balance at end of year
|
|
$
|
26
|
|
$
|
22
|
The amount of unrecognized tax benefits that, if recognized, would impact the effective tax rate at June 27, 2021 was $5, along with $21 affecting deferred taxes. The amount of unrecognized tax benefits that, if recognized, would impact the effective tax rate at June 28, 2020 was $1, along with $21 affecting deferred taxes. Bowlero recognizes accrued interest and penalties associated with uncertain tax positions as part of the tax expense. Interest and penalties were $36 in fiscal year 2021 and $3 in fiscal year 2020. The federal and state statutes of limitations are still open for fiscal year ended July 1, 2018 and thereafter.
The 2021 and 2020 provision for income taxes differs from the amount computed by applying the statutory rate to the income before income taxes primarily due to the changes in the valuation allowance and state and local taxes.
|
|
|
June 27, 2021
|
|
June 28, 2020
|
|
U.S. federal statutory rate
|
|
$
|
(26,774
|
)
|
|
21.0
|
%
|
|
$
|
(17,352
|
)
|
|
21.0
|
%
|
|
State and local tax net of federal benefit
|
|
|
(6,190
|
)
|
|
4.9
|
|
|
|
3,792
|
|
|
(4.6
|
)
|
|
Deferred tax asset valuation allowance
|
|
|
34,060
|
|
|
(26.7
|
)
|
|
|
21,606
|
|
|
(26.7
|
)
|
|
Uncertain tax positions
|
|
|
2
|
|
|
0.0
|
|
|
|
2
|
|
|
0.0
|
|
|
Foreign tax rate difference
|
|
|
(1,251
|
)
|
|
1.0
|
|
|
|
215
|
|
|
0.3
|
|
|
Other
|
|
|
(882
|
)
|
|
0.7
|
|
|
|
—
|
|
|
0.0
|
|
|
Effective tax rate
|
|
$
|
(1,035
|
)
|
|
0.81
|
%
|
|
$
|
8,263
|
|
|
(10.0
|
)%
|
As of June 27, 2021, the Company had a net consolidated income tax receivable of $119 reflected in other current assets and a non-current consolidated income tax liability of $26 reflected in other long-term liabilities. As of June 28, 2020, the Company had a net consolidated income tax payable of $423 reflected in other current liabilities and a non-current consolidated income tax payable of $22 reflected in other long-term liabilities.
F-57
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(9) Income Taxes (cont.)
The tax effects of temporary differences and carryforwards that give rise to significant components of deferred income tax assets and liabilities consist of:
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Deferred income tax assets:
|
|
|
|
|
|
|
|
Reserves not currently deductible
|
|
$
|
40,458
|
|
$
|
20,610
|
|
Capital lease liability
|
|
|
98,545
|
|
|
94,107
|
|
Net operating loss, interest, and tax credit carryforwards
|
|
|
132,184
|
|
|
127,686
|
|
Subtotal
|
|
|
271,187
|
|
|
242,403
|
|
Less: Valuation allowance
|
|
|
166,323
|
|
|
129,902
|
|
Total net deferred income tax assets
|
|
|
104,864
|
|
|
112,501
|
|
|
|
|
|
|
|
|
|
Deferred income tax liabilities:
|
|
|
|
|
|
|
|
Property and equipment
|
|
|
85,377
|
|
|
90,471
|
|
Favorable and unfavorable leases
|
|
|
8,886
|
|
|
9,596
|
|
Goodwill and intangibles
|
|
|
22,468
|
|
|
25,165
|
|
Total deferred income tax liabilities
|
|
|
116,731
|
|
|
125,232
|
|
Net deferred income tax liabilities
|
|
$
|
11,867
|
|
$
|
12,731
|
As of June 27, 2021, the Company has U.S. tax credit carryforwards of $209, U.S. federal net operating loss carryforwards (NOLs) of $546,452, and interest carryforward of $24,340. The tax credits were generated in the July 1, 2007 and June 29, 2008 tax years. The credits have a 20-year federal carryover period and will begin to expire starting in the fiscal year ending 2027. The NOL carryforwards will begin to expire in 2022. The interest carryforward does not expire.
Realization of deferred tax assets associated with deductible temporary differences, net operating losses and other carryforwards is dependent on generating sufficient future taxable income. Based on the historical losses of the Company and limitations placed on NOLs due to changes in ownership in 2004 and 2017, the Company believes it is more-likely-than-not that the Company will not realize the benefit of certain deferred tax assets, and, accordingly, has established a valuation allowance against certain deferred tax assets of $166,323 as of June 27, 2021 and $129,902 as of June 28, 2020. It is currently estimated that $369,624 of the Company’s NOLs are subject to limitation due to the changes in ownership that occurred in 2004 and 2017 and that $195,900 of this amount may expire unused even if there is sufficient taxable income to absorb such NOLs.
As of June 27, 2021, the Company has not recorded an income tax liability on certain undistributed earnings of its foreign subsidiaries. It is expected that these earnings will be permanently reinvested in the operations within the respective country. The Company has not calculated the deferred tax liability that would come due if the earnings were distributed to the U.S. as the calculations are not material.
(10) Commitments and Contingencies
Operating Leases: The Company leases certain facilities under non-cancelable operating leases, as well as certain office equipment and automobiles under non-cancelable operating leases, which expire at various dates through 2058. Most of the Company’s leases include options that allow it to extend the lease term beyond the initial base period, subject to terms agreed upon at lease inception. For leases that contain predetermined fixed escalations of the minimum rentals and payments that can be required upon failure to renew or extend at the expiration of the lease term, the Company recognizes the related rental expense on a straight-line basis and records the difference between the recognized rental expense and amounts payable under the leases as accrued rent expense
F-58
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(10) Commitments and Contingencies (cont.)
within other long-term liabilities on the consolidated balance sheets. There was accrued rent expense of $33,128 and $18,652 within other long-term liabilities on the consolidated balance sheets as of June 27, 2021 and June 28, 2020, respectively. Certain leases require contingent payments that depend on factors that are not measurable at the inception of the lease, such as percentage of sales, and are excluded from minimum lease payments but are included in the determination of total rental expense when it is probable that the expense has been incurred and the amount is reasonably estimated. Future payments for maintenance, insurance, taxes and other expenses to which the Company is obligated are excluded from minimum lease payments.
The Company incurred operating lease rent expense of $58,114 and $61,700 in fiscal years 2021 and 2020, respectively. Future minimum rental payments under non-cancelable operating lease agreements as of June 27, 2021 are as follows(1):
|
Fiscal year ended:
|
|
|
|
2022
|
|
|
54,194
|
|
2023
|
|
|
55,898
|
|
2024
|
|
|
55,073
|
|
2025
|
|
|
54,926
|
|
2026
|
|
|
52,646
|
|
Thereafter
|
|
|
627,632
|
|
Total
|
|
$
|
900,369
|
There were no sale-leaseback transactions in fiscal years 2021 and 2020.
Capital Leases: The Company is the lessee for land and buildings under leases determined to be capital leases. Additionally, the Company constructs centers on leased land and may receive reimbursements from a landlord for the cost of the structure. In cases where reimbursement from a landlord results in substantial underfunding of costs incurred for the construction of the structure, the Company is deemed to have continuing involvement and the transaction qualifies as a financing under sale-leaseback accounting. The landlord reimbursement and/or the cost of the shell given to the Company are considered financings. The Company had 194 and 193 centers and other equipment leases classified as capital leases at June 27, 2021 and June 28, 2020, respectively. The corresponding capital lease liability was $374,639 and $361,737, respectively, of which $41 and $31 are included in current liabilities on the Company’s consolidated balance sheets specifically for the equipment leases. The company does not have any current liabilities for our center leases because the rental payments are less than the interest accretion on the liability. The interest on the financing lease obligation is recognized over the term of the lease. As of June 27, 2021 and June 28, 2020, assets held under capital leases totaled $284,077 and $290,389, respectively, net of accumulated amortization of $34,609 and $21,855, respectively. Amortization expense related to capital leased assets was $12,870 and $12,326 for fiscal years 2021 and 2020, respectively, and is included in costs of revenues in the consolidated statements of operations. The range of lease expiration dates on capital lease obligations is from fiscal years 2023 to 2047.
F-59
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(10) Commitments and Contingencies (cont.)
As of June 27, 2021, the aggregate maturities of capital lease obligations (principal and interest) for the succeeding five fiscal years and thereafter are as follows(1):
|
Fiscal year ended:
|
|
|
|
2022
|
|
|
31,410
|
|
2023
|
|
|
33,102
|
|
2024
|
|
|
33,277
|
|
2025
|
|
|
35,357
|
|
2026
|
|
|
36,101
|
|
Thereafter
|
|
|
1,028,328
|
|
Total rent payments
|
|
|
1,197,575
|
|
|
|
|
|
|
Capital lease interest expense
|
|
|
822,977
|
|
Total
|
|
$
|
374,598
|
Asset Retirement Obligation: The following table presents the asset retirement obligation activity for the years ended June 27, 2021 and June 28, 2020:
|
|
|
2021
|
|
2020
|
|
Balance at beginning of the year
|
|
$
|
4,199
|
|
|
$
|
4,132
|
|
|
Additional obligations incurred
|
|
|
216
|
|
|
|
12
|
|
|
Obligations settled in current period
|
|
|
(62
|
)
|
|
|
(143
|
)
|
|
Changes in estimates, including timing and renewals
|
|
|
(182
|
)
|
|
|
(92
|
)
|
|
Accretion expense
|
|
|
296
|
|
|
|
290
|
|
|
Balance at the end of the year
|
|
$
|
4,467
|
|
|
$
|
4,199
|
|
Litigation and Claims: The Company currently and from time to time is subject to claims and actions arising in the ordinary course of its business, including general liability, fidelity, workers’ compensation, employment claims, and Americans with Disabilities Act (ADA) claims. The Company has insurance to cover general liability and workers’ compensation claims and reserves for claims and actions in the ordinary course. The insurance is subject to a self-insured retention. In some actions, plaintiffs request punitive or other damages that may not be covered by insurance.
In management’s opinion, there are no claims or actions that are expected to have a material adverse impact on the Company’s financial position or results of operations.
(11) Employee Benefit Plans
The Company sponsors a defined contribution 401(k) plan to which certain U.S. employees may make voluntary contributions based on their compensation. The Company provided a matching contribution of 20% of the employee’s contributions up to 8% effective April 1, 2018 to eligible employees. During the fiscal years 2021 and 2020, the Company had $7 and $336, respectively, in matching 401(k) expense contributions. The Company’s matching contribution was suspended on April 4, 2020 and remained suspended during the fiscal year ended June 27, 2021.
F-60
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(12) Fair Value of Financial Instruments
Debt
The fair value and carrying value of our debt as of June 27, 2021 and June 28, 2020 are as follows:
|
|
|
June 27,
2021
|
|
June 28,
2020
|
|
Carrying value
|
|
$
|
885,387
|
|
$
|
848,599
|
|
Fair value
|
|
$
|
887,102
|
|
$
|
746,766
|
The fair value of our debt is estimated based on an aggregate index provided by JP Morgan Chase Bank, N.A. The index is based on trading levels of the syndicated multiple lenders buying and selling their participation levels of funding (Level 2).
There were no transfers in or out of any of the levels of the valuation hierarchy in fiscal years 2021 and 2020.
Derivatives
The Company’s interest rate swap agreements are valued in accordance with applicable accounting standards for hedge accounting. The Company obtains fair value information regarding the interest rate swap agreements using a model based on observable inputs; therefore, the resulting obligation is classified within Level 2 of the fair value hierarchy at June 27, 2021 and June 28, 2020 and their fair value is disclosed in Note 14.
The following table presents information as of June 27, 2021 and June 28, 2020 about the Company’s derivative liabilities measured at fair value on a recurring basis and indicate the level in the fair value hierarchy in which the Company classifies the fair value measurement:
|
|
|
June 27, 2021
|
|
June 28, 2020
|
|
|
|
Other
Current
Liabilities
|
|
Other
Long-Term
Liabilities
|
|
Liabilities
|
|
Other
Current
Liabilities
|
|
Other
Long-Term
Liabilities
|
|
Liabilities
|
|
Level 2:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest rate swaps and caps
|
|
$
|
8,159
|
|
$
|
710
|
|
$
|
8,869
|
|
$
|
8,171
|
|
$
|
9,327
|
|
$
|
17,498
|
Redeemable Common Stock
Our common stock is not listed on an established public trading market, therefore, market prices are not available. The Company utilizes an independent valuation specialist to determine the fair market value of our redeemable common stock based upon our estimated enterprise value using the income approach, which includes the use Level 3 inputs. As a result, the redeemable common stock is classified within Level 3 of the fair value hierarchy at June 27, 2021 and June 28, 2020. Key assumptions used in estimating the fair value of our redeemable common stock included projected revenue growth and costs and expenses, which were based on internal projections, historical performance, and the business environment, as well as the selection of an appropriate discount rate based on weighted-average cost of capital and company-specific risk premium. See Note 13, Redeemable Convertible Preferred Stock, Redeemable Common Stock and Stockholders’ Equity, for further information.
Other Financial Instruments
Other financial instruments include cash and cash equivalents, accounts and notes receivable, accounts payable and accrued expenses. The financial statement carrying amounts of these items approximate the fair value due to their short duration.
F-61
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(13) Redeemable Convertible Preferred Stock, Redeemable Common Stock and Stockholders’ Equity
The total number of shares of common stock that the Company authorized to issue is 20,000,000 shares at a $0.0001 par value per share (Common Stock), of which 5,911,428 shares are issued and outstanding as of June 27, 2021 and June 28, 2020. Holders of the Common Stock are entitled to one vote for each share held. There are no dividends with regards to the Common Stock so long as any shares of Series A Redeemable Convertible Preferred Stock (Preferred Stock) remain issued and outstanding other than dividends payable in the form of Common Stock or other capital that is junior to the Preferred Stock.
Redeemable Convertible Preferred Stock
Effective July 3, 2017, the Company authorized 200,000 shares of Preferred Stock at a $0.0001 par value per share of which 106,378 shares are issued and outstanding as of June 27, 2021 and June 28, 2020. There are no voting rights associated with the Preferred Stock.
Dividends accumulate on a daily basis commencing from the July 3, 2017 issue date. The dividend rate is 8% for the first 3 years. Effective November 15, 2019, the rate following the first three years was amended from 10% to 6%.
In the event of a liquidation, dissolution or winding up of the Company and/or a sale of the Company each share of Preferred Stock shall receive a liquidation preference equal to the Original Issue Price of $1,000 per share, plus all accumulated and unpaid dividends before any payments are made to holders of Common Stock. Dividends on preferred stock have not been declared and are not currently payable. The Company had $34,784 and $26,769 of cumulative dividends in arrears on Preferred Stock as of June 27, 2021 and June 28, 2020, respectively.
The Preferred Stock is redeemable at the option of the Company at any time on or after July 3, 2020.
In the event of a public offering and sale of common stock pursuant to an effective registration statement (Public Offering), each outstanding share of the Preferred Stock shall automatically be converted into such number of common stock as determined by dividing the liquidation preference of each share of Preferred stock immediately prior to the Public Offering by the price per share of the common stock sold in such Public Offering. If the Public Offering occurs subsequent to July 3, 2023, then the denominator in the aforementioned equation shall instead equal the product of 0.95 and the price per share of the common stock sold in the Public Offering.
The Company has classified the Preferred Stock as temporary equity as the shares have certain redemption features that are not solely in the control of the Company. The Preferred Stock is not currently redeemable because the deemed liquidation provision is considered a substantive condition that is contingent on the event and it is not currently probable that it will become redeemable.
Redeemable Common Stock
The Company issued 2,069,000 shares to its Chairman and CEO on July 3, 2017, which are included in the 5,911,428 shares of Common Stock issued and outstanding as of June 27, 2021 and June 28, 2020. These shares are subject to a repurchase option in the event of the Chairman’s death or disability. The amount presented in temporary equity represents the estimated fair value of those shares as of June 27, 2021 and June 28, 2020. Due to the increase in the estimated fair value of the Company’s common stock at June 27, 2021, the amounts classified as temporary equity for the common shares subject to redemption result in a significant decrease in Additional paid-in capital. The Company’s obligation to repurchase these shares will terminate upon the occurrence of a Change of Control or upon the consummation of a Public Offering. The increase in the repurchase obligation was recorded via adjustments to additional paid-in capital.
F-62
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(14) Derivatives
The Company uses interest rate swaps and cap agreements to convert a portion of its variable interest rate exposure to fixed rates to protect the Company from future interest rate increases. The Company’s interest rate swap and cap agreements consist of the following:
|
|
|
June 27, 2021
|
|
June 28, 2020
|
|
|
|
Notional
Amounts
|
|
Expiration
|
|
Notional
Amounts
|
|
Expiration
|
|
Interest rate swaps
|
|
$
|
552,500
|
|
June 30, 2022
|
|
$
|
561,000
|
|
June 30, 2022
|
|
Interest rate caps
|
|
$
|
97,500
|
|
March 31, 2022
|
|
$
|
99,000
|
|
March 31, 2021
|
|
Total notional amounts
|
|
$
|
650,000
|
|
|
|
$
|
660,000
|
|
|
Under the swap agreements, the Company pays a fixed rate of interest of 2.561% and receives an average variable rate of the one-month LIBOR adjusted monthly. Under the interest rate cap agreements, the Company pays a fixed rate fee of 0.179% on the notional amount and has a strike rate of 3.00%.
The fair values of the swap and cap agreements as of June 27, 2021 and June 28, 2020 were liabilities of $8,869 and $17,498, respectively, and are included in other current liabilities and other long-term liabilities in the consolidated balance sheets.
The reclassifications from accumulated other comprehensive income into income during the fiscal years 2021 and 2020 were $9,002 and $5,160, respectively, to interest expense. The fair value of the Swap and Cap Agreements excludes accrued interest and takes into consideration current interest rates and current likelihood of the swap counterparties’ compliance with its contractual obligations
(15) Stock Based Compensation
The 2017 Stock Incentive Plan (2017 Plan) was approved on September 29, 2017 and is a broad-based plan that provides for the grant of non-qualified stock options to our executives and certain other employees for up to a maximum of 656,825 shares. The 2017 Plan was subsequently amended on January 7, 2020 to 2,036,158 shares. The 2017 Plan is administered by the Board of Directors, which approves grants to individuals, number of options, terms, conditions, performance measures, and other provisions of the award. Awards are generally granted based on the individual’s performance. Stock options granted under the 2017 Plan have a maximum contractual term of twelve years from the date of grant, an exercise price not less than the fair value of the stock on the grant date and generally vest over four years in equal quarterly installments for the time-based options and upon occurrence of a liquidity event for the performance-based options.
The Company has not recorded any compensation cost for the performance-based options as the liquidity event is not deemed probable until the occurrence of the liquidity event.
F-63
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(15) Stock Based Compensation (cont.)
A summary of stock options outstanding at June 27, 2021, and changes during the year then ended is presented below:
|
|
|
Number of
shares
|
|
Weighted
Average
Exercise
Price
|
|
Weighted
Average
Remaining
Contractual
Term (in years)
|
|
Outstanding at June 30, 2019
|
|
431,972
|
|
|
$
|
77.62
|
|
10
|
|
Granted
|
|
1,576,318
|
|
|
|
248.49
|
|
11
|
|
Exercised
|
|
—
|
|
|
|
—
|
|
—
|
|
Forfeited and canceled
|
|
(4,020
|
)
|
|
|
77.62
|
|
—
|
|
Outstanding at June 28, 2020
|
|
2,004,270
|
|
|
$
|
212.00
|
|
9
|
|
Granted
|
|
2,758
|
|
|
|
80.78
|
|
11
|
|
Exercised
|
|
—
|
|
|
|
—
|
|
—
|
|
Forfeited and canceled
|
|
(21,178
|
)
|
|
|
77.62
|
|
—
|
|
Outstanding at June 27, 2021
|
|
1,985,850
|
|
|
$
|
213.16
|
|
10
|
|
Vested and unvested expected to vest at June 27, 2021
|
|
1,985,850
|
|
|
|
213.16
|
|
10
|
|
Exercisable at June 27, 2021
|
|
289,902
|
|
|
|
77.73
|
|
8
|
The fair value of options granted during fiscal year 2021 was $112, with weighted average grant date fair value of $41.67 per share for time-based awards and $37.78 per share for performance-based awards.
The fair value of options granted during fiscal year 2020 was $29,130, with a weighted average grant date fair value of $35.03 per share for time-based awards and $18.43 per share for performance-based awards.
The total grant date fair value of options vested during the years ended June 27, 2021 and June 28, 2020 were $3,164 and $3,431, net of forfeitures, respectively. There were 21,178 and 4,020 shares forfeited in fiscal years 2021 and 2020, respectively.
In the consolidated statements of operations, $3,140 and $3,394 of compensation cost was recorded in selling, general and administrative expenses and $24 and $37 was recorded in cost of revenues in fiscal years 2021 and 2020, respectively. The tax related benefit recorded during the years ended June 27, 2021 and June 28, 2020 was $839 and $910, respectively.
As of June 27, 2021 and June 28, 2020, the total compensation cost related to non-vested time-based awards not yet recognized was $992 and $4,626, respectively, and is expected to be recognized on a straight-line basis over the next four years. As of the same dates, the total compensation cost related to non-vested performance-based awards not yet recognized was $33,042 and $33,151, respectively, and would only be recognized upon the consummation of a liquidity event.
The fair value of options at the date of grant was estimated using the Black-Scholes model with the following ranges of weighted average assumptions:
|
|
|
Options granted
during the fiscal
year ended
June 27,
2021
|
|
Expected term in years
|
|
5
|
|
|
Interest rate
|
|
0.54
|
%
|
|
Volatility
|
|
71.5
|
%
|
|
Dividend yield
|
|
—
|
|
F-64
Table of Contents
BOWLERO CORP.
Notes to Consolidated Financial Statements
June 27, 2021 and June 28, 2020
(Amounts in thousands, except share amounts or otherwise noted)
(15) Stock Based Compensation (cont.)
The expected volatility is based on historical volatilities of companies considered comparable to the Company. The risk-free interest rates are based on the U.S. Treasury yield curve in effect at the time of grant for periods corresponding with the expected life of the option. The average expected life represents the weighted average period of time that options granted are expected to be outstanding.
(16) Segment Information
The Company has one reporting segment, which consists of operating a bowling entertainment business. Operating segments are identified as components of an enterprise about which separate discrete financial information is available for evaluation by the chief operating decision maker (“CODM”) in making decisions regarding resource allocation and assessing performance. Management continually assesses the Company’s operating structure, and this structure could be modified further based on future circumstances and business conditions. Our CODM assesses performance based on consolidated as well as bowling center-level revenue and operating profit.
The Company attributes revenue to individual countries based on the Company’s bowling center locations. The Company’s bowling centers are located in the United States, Mexico, and Canada. The Company’s revenues generated outside of the United States and invoiced in Mexico and Canada for fiscal years 2021 and 2020 were $1,223 and $7,057, respectively. The Company’s long-lived assets in Mexico and Canada based on country of location, which includes property and equipment, but excludes intangible assets and goodwill, net of related depreciation and amortization totaled $22,333 and $19,300, at June 27, 2021 and June 28, 2020, respectively.
(17) Concentrations
The Company’s operations are based primarily throughout the United States. Our sales outside of the United States for fiscal years 2021 and 2020 were less than 2% of total revenue and net assets outside of the United States as of June 27, 2021 and June 28, 2020 were $24 and $3,551, respectively. The Company does not have any concentration of sales with any single customer.
(18) Subsequent Events
On July 1, 2021, Isos Acquisition Corporation, a special purpose acquisition company, entered into a definitive agreement for a business combination (the “Business Combination Agreement”) that upon closing of the transaction would result in Bowlero becoming a publicly listed company to be named “Bowlero” on the New York Stock Exchange (“NYSE”) under the new ticker symbols BOWL and BOWL WS for the common stock and public warrants, respectively. The boards of directors of both Bowlero and Isos have approved the proposed transaction, which is expected to close in October 2021, subject to, among other things, the approval by Isos’ stockholders and satisfaction or waiver of the other conditions stated in the definitive documentation.
On August 16, 2021, the Company and Bowl America Incorporated (“Bowl America”) consummated an Agreement and Plan of Merger (the “Merger Transaction”). Cash in the amount of $8.53 per share of Bowl America common stock issued and outstanding immediately prior to closing, including both Class A Common Stock and Class B Common stock, or $44,023 was paid by the Company as consideration and Bowl America became a wholly-owned subsidiary of the Company. Bowl America was a publicly traded Company with its Class A Common Stock trading on the NYSE American exchange under trading symbol BWL-A. Upon closing, Bowl America’s Class A Common Stock was no longer listed or traded on any public exchange. The Company is currently in process of finalizing the preliminary accounting for this transaction and expects to complete its preliminary accounting of the assets acquired and liabilities assumed by the end of the first quarter of fiscal year 2022.
F-65
Table of Contents
Annex A
Execution Version
BUSINESS COMBINATION AGREEMENT*
dated as of
July 1, 2021
by and between
ISOS ACQUISITION CORPORATION
and
BOWLERO CORP.
Table of Contents
TABLE OF CONTENTS
|
|
|
|
|
Annex A
Page
|
|
Article I
|
|
CERTAIN DEFINITIONS
|
|
A-2
|
|
1.01
|
|
Definitions
|
|
A-2
|
|
1.02
|
|
Terms Defined Elsewhere in This Agreement
|
|
A-17
|
|
1.03
|
|
Construction
|
|
A-20
|
|
1.04
|
|
Knowledge
|
|
A-20
|
|
Article II
|
|
DOMESTICATION; THE MERGER; CLOSING
|
|
A-20
|
|
2.01
|
|
Domestication
|
|
A-20
|
|
2.02
|
|
The Merger
|
|
A-21
|
|
2.03
|
|
Effects of the Merger
|
|
A-21
|
|
2.04
|
|
Closing
|
|
A-21
|
|
2.05
|
|
Governing Documents
|
|
A-21
|
|
2.06
|
|
Directors and Officers of the Surviving Company
|
|
A-21
|
|
Article III
|
|
CONVERSION OF SECURITIES; EXCHANGE OF COMPANY SECURITIES
|
|
A-22
|
|
3.01
|
|
Conversion of Securities
|
|
A-22
|
|
3.02
|
|
Consideration Election Procedure
|
|
A-24
|
|
3.03
|
|
Exchange of Company Securities
|
|
A-25
|
|
3.04
|
|
Stock Transfer Books
|
|
A-27
|
|
3.05
|
|
Payment of Expenses
|
|
A-27
|
|
3.06
|
|
Appraisal Rights
|
|
A-28
|
|
3.07
|
|
Earnout Shares
|
|
A-28
|
|
Article IV
|
|
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
|
|
A-29
|
|
4.01
|
|
Corporate Organization of the Company; Subsidiaries
|
|
A-29
|
|
4.02
|
|
Due Authorization
|
|
A-30
|
|
4.03
|
|
No Conflict
|
|
A-30
|
|
4.04
|
|
Governmental Authorities; Consents
|
|
A-30
|
|
4.05
|
|
Capitalization
|
|
A-30
|
|
4.06
|
|
Financial Statements
|
|
A-32
|
|
4.07
|
|
Undisclosed Liabilities
|
|
A-32
|
|
4.08
|
|
Litigation and Proceedings
|
|
A-33
|
|
4.09
|
|
Compliance with Laws
|
|
A-33
|
|
4.10
|
|
Intellectual Property and Data Security
|
|
A-34
|
|
4.11
|
|
Contracts; No Defaults
|
|
A-36
|
|
4.12
|
|
Employees; Company Benefit Plans
|
|
A-38
|
|
4.13
|
|
Taxes
|
|
A-39
|
|
4.14
|
|
Brokers’ Fees
|
|
A-40
|
|
4.15
|
|
Insurance
|
|
A-40
|
|
4.16
|
|
Real Property; Assets
|
|
A-40
|
|
4.17
|
|
Environmental Matters
|
|
A-41
|
|
4.18
|
|
Absence of Changes
|
|
A-42
|
|
4.19
|
|
Affiliate Agreements
|
|
A-42
|
|
4.20
|
|
Information Supplied
|
|
A-42
|
|
4.21
|
|
Takeover Statutes and Charter Provisions
|
|
A-42
|
Annex A-i
Table of Contents
|
|
|
|
|
Annex A
Page
|
|
4.22
|
|
No Outside Reliance
|
|
A-43
|
|
4.23
|
|
No Additional Representations and Warranties
|
|
A-43
|
|
Article V
|
|
REPRESENTATIONS AND WARRANTIES OF ACQUIROR
|
|
A-43
|
|
5.01
|
|
Corporate Organization
|
|
A-43
|
|
5.02
|
|
Due Authorization
|
|
A-44
|
|
5.03
|
|
No Conflict
|
|
A-44
|
|
5.04
|
|
Litigation and Proceedings
|
|
A-45
|
|
5.05
|
|
Compliance with Laws
|
|
A-45
|
|
5.06
|
|
Employee Benefit Plans
|
|
A-45
|
|
5.07
|
|
Governmental Authorities; Consents
|
|
A-45
|
|
5.08
|
|
Financial Ability; Trust Account
|
|
A-45
|
|
5.09
|
|
Taxes
|
|
A-46
|
|
5.10
|
|
Brokers’ Fees
|
|
A-47
|
|
5.11
|
|
Acquiror SEC Reports; Financial Statements; Sarbanes-Oxley Act
|
|
A-47
|
|
5.12
|
|
Business Activities; Absence of Changes
|
|
A-48
|
|
5.13
|
|
Registration Statement
|
|
A-48
|
|
5.14
|
|
No Outside Reliance
|
|
A-48
|
|
5.15
|
|
Capitalization
|
|
A-49
|
|
5.16
|
|
NYSE Stock Market Quotation
|
|
A-49
|
|
5.17
|
|
Contracts; No Defaults
|
|
A-50
|
|
5.18
|
|
Title to Property
|
|
A-50
|
|
5.19
|
|
Investment Company Act
|
|
A-50
|
|
5.20
|
|
Affiliate Agreements
|
|
A-50
|
|
5.21
|
|
Takeover Statutes and Charter Provisions
|
|
A-50
|
|
5.22
|
|
Forward Purchase Contract; PIPE Investment Amount; Preferred Investment Amount; Subscription Agreements
|
|
A-51
|
|
5.23
|
|
No Additional Representation or Warranties
|
|
A-51
|
|
Article VI
|
|
COVENANTS OF THE COMPANY
|
|
A-51
|
|
6.01
|
|
Conduct of Business
|
|
A-51
|
|
6.02
|
|
No Claim Against the Trust Account
|
|
A-54
|
|
6.03
|
|
Requisite Approval
|
|
A-55
|
|
6.04
|
|
Anti-Takeover Matters
|
|
A-55
|
|
6.05
|
|
No Trading
|
|
A-55
|
|
6.06
|
|
Exclusivity
|
|
A-55
|
|
6.07
|
|
Cash Election Consideration Cap Increase
|
|
A-56
|
|
Article VII
|
|
COVENANTS OF ACQUIROR
|
|
A-56
|
|
7.01
|
|
Indemnification and Insurance
|
|
A-56
|
|
7.02
|
|
Conduct of Acquiror During the Interim Period
|
|
A-57
|
|
7.03
|
|
Trust Account; Proceeds and Related Available Equity
|
|
A-58
|
|
7.04
|
|
Acquiror NYSE Listing
|
|
A-59
|
|
7.05
|
|
Acquiror Public Filings
|
|
A-59
|
|
7.06
|
|
Financing
|
|
A-59
|
|
7.07
|
|
Section 16 Matters
|
|
A-60
|
|
7.08
|
|
Director and Officer Indemnity
|
|
A-60
|
|
7.09
|
|
Exclusivity
|
|
A-60
|
Annex A-ii
Table of Contents
|
|
|
|
|
Annex A
Page
|
|
7.10
|
|
Acquiror Warrants
|
|
A-60
|
|
7.11
|
|
Termination of Certain Agreements
|
|
A-60
|
|
7.12
|
|
Employment Agreements
|
|
A-60
|
|
7.13
|
|
Preferred COD
|
|
A-60
|
|
Article VIII
|
|
JOINT COVENANTS
|
|
A-61
|
|
8.01
|
|
HSR Act and Regulatory Approvals
|
|
A-61
|
|
8.02
|
|
Support of Transaction
|
|
A-62
|
|
8.03
|
|
Preparation of Registration Statement; Special Meeting
|
|
A-62
|
|
8.04
|
|
Tax Matters
|
|
A-64
|
|
8.05
|
|
Confidentiality; Publicity
|
|
A-65
|
|
8.06
|
|
Post-Closing Cooperation; Further Assurances
|
|
A-65
|
|
8.07
|
|
Inspection
|
|
A-66
|
|
8.08
|
|
Acquiror Omnibus Incentive Plan.
|
|
A-66
|
|
8.09
|
|
Stockholder Litigation.
|
|
A-66
|
|
Article IX
|
|
CONDITIONS TO OBLIGATIONS
|
|
A-67
|
|
9.01
|
|
Conditions to Obligations of All Parties
|
|
A-67
|
|
9.02
|
|
Additional Conditions to Obligations of Acquiror
|
|
A-67
|
|
9.03
|
|
Additional Conditions to the Obligations of the Company
|
|
A-68
|
|
Article X
|
|
TERMINATION/EFFECTIVENESS
|
|
A-69
|
|
10.01
|
|
Termination
|
|
A-69
|
|
10.02
|
|
Effect of Termination
|
|
A-70
|
|
Article XI
|
|
MISCELLANEOUS
|
|
A-70
|
|
11.01
|
|
Waiver
|
|
A-70
|
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11.02
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Notices
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A-70
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11.03
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Assignment
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A-71
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11.04
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Rights of Third Parties
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A-71
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11.05
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Governing Law
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A-71
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11.06
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Captions; Counterparts
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A-71
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11.07
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Schedules and Exhibits
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A-71
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11.08
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Entire Agreement
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A-71
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11.09
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Amendments
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A-72
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11.10
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Severability
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A-72
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11.11
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Jurisdiction; WAIVER OF TRIAL BY JURY
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A-72
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11.12
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Enforcement
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A-72
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11.13
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Non-Recourse
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A-72
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11.14
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Nonsurvival of Representations, Warranties and Covenants
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A-73
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11.15
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Acknowledgements
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A-73
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11.16
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Conflicts and Privilege
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A-74
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Annex A-iii
Table of Contents
Exhibits
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Exhibit A
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—
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Acquiror Certificate of Incorporation
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Exhibit B
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—
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Acquiror Bylaws
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Exhibit C
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—
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Preferred COD
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Exhibit D-1
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—
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Form of Common Subscription Agreement
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Exhibit D-2
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—
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Form of Preferred Subscription Agreement
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Exhibit E
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—
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Form of Sponsor Support Agreement
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Exhibit F
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—
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Form of Registration Rights Agreement
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Exhibit G
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—
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Form of Stockholders’ Agreement
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Exhibit H
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—
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Form of Lock-Up Agreement
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Exhibit I
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—
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Form of Stockholder Support Agreement
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Exhibit J
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—
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Form of Acquiror Omnibus Incentive Plan
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Exhibit K
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—
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Form of Acquiror Employee Stock Purchase Plan
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Annex A-iv
Table of Contents
BUSINESS COMBINATION AGREEMENT
This Business Combination Agreement (this “Agreement”), dated as of July 1, 2021, is entered into by and between ISOS ACQUISITION CORPORATION, a Cayman Islands exempted company (which shall transfer by way of continuation to and domesticate as a Delaware corporation in accordance herewith, “Acquiror”), and BOWLERO CORP., a Delaware corporation (the “Company”). Except as otherwise indicated, capitalized terms used but not defined herein shall have the meanings set forth in Article I of this Agreement.
RECITALS
WHEREAS, Acquiror is a blank check company incorporated to acquire one or more operating businesses through a Business Combination;
WHEREAS, immediately prior to the Closing, on the Closing Date, (a) Acquiror will transfer by way of continuation to and domesticate as a Delaware corporation in accordance with Section 388 of the Delaware General Corporation Law (the “DGCL”) and Part XII of the Cayman Islands Companies Act (As Revised) (the “Domestication”) and (b) in connection with such Domestication, the Acquiror Certificate of Incorporation in substantially the form attached hereto as Exhibit A and the Acquiror Bylaws in substantially the form attached hereto as Exhibit B will become the governing documents of Acquiror;
WHEREAS, in connection with the Domestication, Acquiror Class B Common Stock shall automatically convert into shares of Acquiror Class A Common Stock;
WHEREAS, immediately following the completion of the Domestication, Acquiror shall file the Preferred COD in substantially the form attached hereto as Exhibit C with the Secretary of State of the State of Delaware for the designation and creation of the Acquiror Preferred Stock;
WHEREAS, as of the date of this Agreement, Cobalt Recreation LLC, a Delaware limited liability company (“TS”), and A-B Parent LLC, a Delaware limited liability company (“Atairos”), own 100% of the issued and outstanding capital stock of the Company;
WHEREAS, upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, Acquiror and the Company will enter into a business combination transaction pursuant to which the Company will merge with and into Acquiror (the “Merger”), with Acquiror surviving the Merger (the “Surviving Company”);
WHEREAS, the respective board of directors of each of Acquiror and the Company have approved, declared advisable and resolved to recommend to their shareholders and stockholders respectively the Transactions upon the terms and subject to the conditions of this Agreement and, in the case of the Company, in accordance with the DGCL;
WHEREAS, contemporaneously with the execution and delivery of this Agreement, Acquiror and the FP Investors entered into the Forward Purchase Contract, pursuant to which the FP Investors, upon the terms and conditions set forth therein, are required to purchase an aggregate of 10,000,000 “Units”, at a price of $10.00 per Unit, which Units are comprised of 10,000,000 shares of Acquiror Class A Common Stock and 3,333,333 Acquiror Warrants (to be addressed in accordance with Section 7.10), for an aggregate purchase price of $100,000,000, in a private placement to be consummated concurrently with the Closing;
WHEREAS, contemporaneously with the execution and delivery of this Agreement, in connection with the Transactions, (a) Acquiror and each of the parties subscribing for Acquiror Class A Common Stock thereunder (the “Common Subscribers”) have entered into certain subscription agreements, dated as of the date hereof (the “Common Subscription Agreements”), each substantially in the form set forth on Exhibit D-1, pursuant to which the Common Subscribers, upon the terms and subject to the conditions set forth therein, shall purchase shares of Acquiror Class A Common Stock at no less than $10.00 per share in a private placement or placements of Acquiror Class A Common Stock, and (b) Acquiror and each of the parties subscribing for Acquiror Preferred Stock thereunder (the “Preferred Subscribers” and together with the Common Subscribers and Atairos, the “Subscribers”) have entered into certain subscription agreements, dated as of the date hereof (the “Preferred Subscription Agreements” and together with the Common Subscription Agreements, the “Subscription Agreements”), each substantially in the form set forth on Exhibit D-2, pursuant to which Preferred Subscribers, upon the terms and
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subject to the conditions set forth therein, shall purchase shares of Acquiror Preferred Stock at no less than $1,000 per share in a private placement or placements of Acquiror Preferred Stock, in each case, to be consummated concurrently with the Closing and for which the Company is an express third party beneficiary;
WHEREAS, contemporaneously with the execution and delivery of this Agreement, in connection with the Transactions, the Company, Acquiror and Sponsor have entered into a Sponsor Support Agreement, dated as of the date hereof (the “Sponsor Support Agreement”), substantially in the form attached hereto as Exhibit E, providing that, among other things, Sponsor will vote its Acquiror Class B Common Stock in favor of this Agreement and the Transactions;
WHEREAS, contemporaneously with the execution and delivery of this Agreement, in connection with the Transactions, Acquiror, the Company, and certain Company Stockholders have entered into that certain Registration Rights Agreement (the “Registration Rights Agreement”), in the form set forth on Exhibit F to be effective upon the Closing;
WHEREAS, contemporaneously with the execution and delivery of this Agreement, in connection with the Transactions, Acquiror, Sponsor, TS and Atairos have entered into that certain Stockholders’ Agreement (the “Stockholders’ Agreement”) in the form set forth on Exhibit G, to be effective upon the Closing;
WHEREAS, pursuant to the Acquiror Governing Documents, Acquiror shall provide an opportunity to its shareholders to have their Acquiror Class A Common Stock redeemed for the consideration, and on the terms and subject to the conditions and limitations, set forth in this Agreement, the Acquiror Governing Documents, the Trust Agreement, and the Proxy Statement in conjunction with, inter alia, obtaining approval from the shareholders of Acquiror for the Merger (the “Offer”);
WHEREAS, contemporaneously with the execution and delivery of this Agreement, Acquiror, Sponsor and certain Company Stockholders (including TS and Atairos) have entered into Lock-Up Agreements (the “Lock-Up Agreements”) in the form set forth on Exhibit H, to be effective upon the Closing;
WHEREAS, following the execution and delivery of this Agreement, in connection with the Transactions, Acquiror and the Requisite Stockholders will enter into Stockholder Support Agreements (the “Stockholder Support Agreements”), substantially in the form set forth on Exhibit I, pursuant to which, among other things, certain Requisite Stockholders will vote their Company Shares in favor of this Agreement, the Merger and the other Transactions;
WHEREAS, prior to the consummation of the Transactions, Acquiror shall, subject to obtaining the Acquiror Stockholder Approval, adopt an omnibus incentive plan (the “Acquiror Omnibus Incentive Plan”) and an employee stock purchase plan (the “Acquiror Employee Stock Purchase Plan”), substantially in the form set forth on Exhibit J and Exhibit K, respectively;
WHEREAS, each of the parties intends that, for U.S. federal income tax purposes, (i) this Agreement shall constitute a “plan of reorganization” within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations promulgated thereunder, (ii) the Domestication shall constitute a transaction treated as a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code and (iii) the Merger shall constitute a “reorganization” within the meaning of Section 368(a) of the Code (collectively, the “Intended Tax Treatment”), and this Agreement is hereby adopted as a “plan of reorganization” within the meaning of Treasury Regulation Section 1.368-2(g).
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement, and intending to be legally bound hereby, Acquiror and the Company agree as follows:
Article I
CERTAIN DEFINITIONS
1.01 Definitions. As used herein, the following terms shall have the following meanings:
“Acquiror Benefit Plan” means each Benefit Plan that is (a) maintained or contributed to by Acquiror for the benefit of any employee, director or individual independent contractor of Acquiror or (b) for which Acquiror has any Liability.
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“Acquiror Board” means the board of directors of Acquiror.
“Acquiror Business Combination Proposal” shall mean any inquiry, proposal, offer or indication of interest, written or oral, from any Person (other than the Company or any of its Affiliates) concerning a Business Combination.
“Acquiror Bylaws” means the bylaws of Acquiror following the Domestication in substantially the form attached hereto as Exhibit B.
“Acquiror Certificate of Incorporation” means the certificate of incorporation of Acquiror following the Domestication in substantially the form attached hereto as Exhibit A.
“Acquiror Class A Common Stock” means (i) prior to the Domestication, the Class A ordinary shares, par value $0.0001 per share, of Acquiror, and (ii) following the Domestication, the Class A Common Stock of Acquiror, par value $0.0001 per share, authorized pursuant to the Acquiror Certificate of Incorporation.
“Acquiror Class B Common Stock” means (i) prior to the Domestication, the Class B ordinary shares of Acquiror, par value $0.0001 per share, and (ii) following the Domestication, the Class A Common Stock of Acquiror, par value $0.0001 per share, authorized pursuant to the Acquiror Certificate of Incorporation.
“Acquiror Domestication Documents” means the documents required to be filed with the Registrar of Companies of the Cayman Islands under Part XII of the Cayman Islands Companies Act (As Revised) in connection with the Domestication.
“Acquiror Governing Documents” means, at any time prior to the Domestication, the Amended and Restated Memorandum and Articles of Association of Acquiror, and at any time following the Domestication, the Acquiror Certificate of Incorporation and the Acquiror Bylaws, in each case as in effect at such time and as may be amended from time to time in accordance with the terms of this Agreement.
“Acquiror Material Adverse Effect” means any Effect that has a material adverse effect on (i) the assets, business, liabilities, results of operations or financial condition of Acquiror; provided, however, that in no event would any of the following (or the effect of any of the following), alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, an “Acquiror Material Adverse Effect” (except in the case of clauses (a), (b), (d), (f) and (g), in each case, to the extent that such change disproportionately affects Acquiror as compared to other similarly situated Persons operating in the industries in which Acquiror operates (in which case solely the incremental disproportionate impact or impacts may be taken into account in determining whether there has been an Acquiror Material Adverse Effect)): (a) any change or development in applicable Laws or GAAP or any official interpretation thereof, (b) any change or development in interest rates or economic, political, legislative, regulatory, business, financial, commodity, currency or market conditions generally affecting the economy or the industry in which Acquiror operates, (c) the announcement or the execution of this Agreement, the pendency or consummation of the Merger or the performance of this Agreement, including the impact thereof on relationships, contractual or otherwise, with the Acquiror’s customers, suppliers, licensors, distributors, partners, providers and employees (provided that the exceptions in this clause (c) shall not be deemed to apply to references to “Acquiror Material Adverse Effect” in the representations and warranties set forth in Section 5.03, 5.07, and 5.17(b), and, to the extent related thereto, the condition in Section 9.03(a)), (d) any change generally affecting any of the industries or markets in which Acquiror operates or the economy as a whole, (e) the taking of any action required to be taken by this Agreement, or failure to take any action prohibited by this Agreement (other than Section 7.02, unless consented to by the Company) (provided that the exception in this clause (e) shall not be deemed to apply to references to “Acquiror Material Adverse Effect” in the representations and warranties set forth in Section 5.03, 5.07, and 5.17(b), and, to the extent related thereto, the condition in Section 9.03(a)), (f) any earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire or other natural disaster, epidemic, disease outbreak, pandemic (including COVID-19), public health emergencies, government required shutdowns, weather condition, explosion fire, act of God or other force majeure event, (g) any national or international political or social conditions (including any escalation thereof), including (i) large scale civil unrest, (ii) the engagement by the United States or such other countries in hostilities, whether or not pursuant to the declaration of a national emergency or war, or (iii) the occurrence of any military or terrorist attack (including any internet or “cyber” attack or hacking) upon the United States or such other country, or any territories, possessions, or diplomatic or consular offices of the United States or such other countries or upon any United States or such other country military installation, equipment or personnel, and (h) any failure of Acquiror to meet any projections,
Annex A-3
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forecasts or budgets; provided that this clause (h) shall not prevent or otherwise affect a determination that any Effect underlying such failure to meet projections or forecasts has resulted in, or contributed to, or would reasonably be expected to result in or contribute to, an Acquiror Material Adverse Effect (to the extent such change or effect is not otherwise excluded from this definition of Acquiror Material Adverse Effect), or (ii) the ability of Acquiror to timely perform its obligations under this Agreement or the other Transaction Documents to which it is a party or to consummate the Transactions.
“Acquiror Ordinary Resolution” means an ordinary resolution under Cayman Islands law, being the affirmative vote of a majority of the votes cast by the Acquiror Stockholders who attend and vote at the Special Meeting.
“Acquiror Preferred Stock” means the series of preferred stock of Acquiror titled “Series A Convertible Preferred Stock”, par value $0.0001 per share, the terms of which are in the Preferred COD.
“Acquiror Related Parties” means any of Acquiror’s or Sponsor’s former, current or future general or limited partners, shareholders, stockholders, Controlling Persons, direct or indirect equityholders, managers, members, directors, officers, employees, Affiliates, affiliated (or commonly advised) funds, representatives, agents or any their respective assignees or successors or any former, current or future general or limited partner, stockholder, Controlling Person, direct or indirect equityholder, manager, member, director, officer, employee, Affiliate, affiliated (or commonly advised) fund, representative, agent, assignee or successor of any of the foregoing.
“Acquiror Representations” means the representations and warranties of Acquiror set forth in Article V of this Agreement, as qualified by the Acquiror Schedules in accordance with (and subject to) Section 11.07. For the avoidance of doubt, the Acquiror Representations are solely made by Acquiror.
“Acquiror Schedules” means sections of the disclosure letter of Acquiror.
“Acquiror Special Resolution” means a special resolution under Cayman Islands law, being the affirmative vote of at least two-thirds of the votes cast by the Acquiror Stockholders who attend and vote at the Special Meeting.
“Acquiror Stockholder” means a holder of Acquiror Class A Common Stock or Acquiror Class B Common Stock.
“Acquiror Warrant” means a warrant entitling the holder to purchase one share of Acquiror Class A Common Stock per warrant.
“Action” means any lawsuit, claim, action, cause of action, demand, judgment, suit, assessment, arbitration, complaint, citation, summons, subpoena, litigation or proceeding (whether civil, criminal, administrative or judicial, whether formal or informal, whether public or private), at law or in equity, in each case that is commenced, brought, conducted or heard by or before any Governmental Authority.
“Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, Controls, is Controlled by, or is under common Control with, such specified Person, through one or more intermediaries or otherwise; provided, that (other than for purposes of Section 8.05(b), Section 8.07 Article X and Section 11.13) in no event shall the Company or any of its Subsidiaries be considered an Affiliate of any portfolio company or investment entity, fund or equivalent affiliated with Atairos Group, Inc. nor shall any portfolio company or investment entity, fund or equivalent affiliated with Atairos Group, Inc., be considered to be an Affiliate of the Company or any of its Subsidiaries.
“Aggregate Closing Common Stock Consideration” means the aggregate number of shares of Surviving Company Class A Common Stock and Surviving Company Class B Common Stock into which Company Common Stock is converted pursuant to Section 3.01(b) (other than Earnout Shares) or Section 3.01(d)(i)(2).
“Anti-Corruption Laws” means any applicable Laws relating to anti-bribery or anti-corruption (governmental or commercial), including Laws that prohibit the corrupt payment, offer, promise, or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any representative of a foreign or domestic Governmental Authority or commercial entity to obtain a business advantage, including the U.S. Foreign Corrupt Practices Act and all national and international Laws enacted to implement the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions.
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“Anti-Money Laundering Laws” means all applicable U.S. laws that: (A) limit the use of and/or seek the forfeiture of proceeds from illegal transactions; (B) regulate commercial transactions with comprehensively sanctioned countries or sanctioned individuals identified by the U.S. Treasury Department as being terrorists, narcotics dealers or otherwise engaged in activities contrary to the interests of the United States; (C) require identification and documentation of the parties with whom a financial institution conducts business; or (D) are designed to disrupt the flow of funds through financial institutions to terrorist organizations.
“Antitrust Law” means the HSR Act, the Federal Trade Commission Act, the Sherman Act, the Clayton Act and any applicable foreign antitrust Laws and all other applicable Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
“Apollo Fee Letter” means that certain letter agreement, dated as of the date hereof, by and among Acquiror, Apollo SPAC Fund I, L.P., Apollo Atlas Master Fund, LLC and Apollo A-N Credit Fund (Delaware), L.P.
“Applicable Surviving Company Common Stock” means (i) with respect to Thomas F. Shannon and TS and its Affiliates, Surviving Company Class B Common Stock, and (ii) with respect to all other holders of Company Common Stock (including Atairos and its Affiliates), Surviving Company Class A Common Stock.
“Atairos Preferred Exchange Shares” means a number of shares of Company Common Stock held by Atairos with an aggregate value (based on the Per Share Merger Consideration Value) equal to the Preferred Exchange Amount.
“Benefit Plan” means each (i) “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA), (ii) any other employee benefit plan, agreement, arrangement, program, policy or practice, including without limitation each bonus, retirement, deferred compensation, equity or equity-based compensation (including without limitation stock option, stock purchase, stock award, stock appreciation, phantom stock, restricted stock or restricted stock unit), severance, pension, savings, profit sharing, incentive compensation, retention, change-in-control, vacation, paid time off, holiday pay, medical, dental, vision, prescription drug, life insurance, death benefit, cafeteria, flexible spending, dependent care, fringe benefit, disability, sick pay, workers compensation, unemployment, employee loan or educational assistance plan, agreement, arrangement, program, policy or practice and (iii) any employment, consulting or other individual services agreement.
“Business” means the business of the Company and its Subsidiaries as conducted as of the date of this Agreement.
“Business Combination” means “business combination” as such term is defined in the Acquiror Governing Documents as of the date of this Agreement.
“Business Data” means all data and information that is (a) Personal Information or (b) confidential, proprietary, sensitive or non-public Proprietary Information.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Law to close.
“Cardholder Data” means all data considered as “cardholder data” or “Sensitive Authentication Data” by the PCI Security Standards Council.
“Cash Election Consideration Cap” means the sum of (a) $289,000,000, plus (b) the amount, if any, by which (i) the Option Election Consideration Cap exceeds (ii) the aggregate Option Spread of the Cash Electing Options, minus (c) the product of (i) 95% multiplied by (ii) the Redemption Amount as such sum may be adjusted for any election made by the Company pursuant to Section 9.03(g).
“Closing Acquiror Cash” means, without duplication, an amount equal to (a) the funds contained in the Trust Account as of immediately prior to the Effective Time; minus (b) the aggregate amount of cash proceeds that will be required to satisfy the redemption of any shares of Acquiror Class A Common Stock pursuant to the Offer (to the extent not already paid); plus (c) the amount actually received by Acquiror pursuant to the Forward Purchase Contract prior to or substantially concurrently with the Closing; plus (d) the amount of the PIPE Investment Amount
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actually received by Acquiror prior to or substantially concurrently with the Closing (including amounts received pursuant to Section 7.03(b)); plus (e) the amount of the Preferred Investment Amount actually received by Acquiror prior to or substantially concurrently with the Closing.
“Company Acquisition Proposal” shall mean any inquiry, proposal, offer or indication of interest, written or oral, from any Person (other than Acquiror or any of its Affiliates) concerning (a) any acquisition or purchase, direct or indirect, of (i) 20% or more of the consolidated assets of the Group Companies or (ii) 20% or more of any class of equity or voting securities of (A) the Company or (B) one or more Subsidiaries of the Company holding assets constituting, individually or in the aggregate, 20% or more of the consolidated assets of the Group Companies; (b) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in any Person beneficially owning 20% or more of any class of equity or voting securities of (i) the Company or (ii) one or more Subsidiaries of the Company holding assets constituting, individually or in the aggregate, 20% or more of the consolidated assets of the Group Companies; or (c) a merger, consolidation, share exchange, business combination, sale of substantially all the assets, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving (i) the Company or (ii) one or more Subsidiaries of the Company holding assets constituting, individually or in the aggregate, 20% or more of the consolidated assets of the Group Companies, in each case, except as permitted in Section 6.01.
“Company Affiliated Person” shall mean (a) any former or present director, manager, trustee or officer of any of the Group Companies, (b) beneficial owner (within the meaning of Section 13(d) of the Exchange Act) of 5% or more of the capital stock or equity interests of any of the Group Companies or (c) Affiliate, “associate” or member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any of the foregoing.
“Company Benefit Plan” means each Benefit Plan (a) that is sponsored, maintained or contributed to by the Company, any of its Subsidiaries or any of their Affiliates, or to which the Company, any of its Subsidiaries or any of their Affiliates is required to contribute or is a party to, for the benefit of any Company Employee or any current or former employee, director or individual independent contractor of the Company or any of its Subsidiaries or their spouses, beneficiaries or dependents or (b) for which the Company or any of its Subsidiaries has any Liability.
“Company Board” means the board of directors of the Company.
“Company Charter” means the Company’s Amended and Restated Certificate of Incorporation, as amended and as in effect as of the date of this Agreement.
“Company Common Stock” means the common stock of the Company, $0.0001 par value per share.
“Company Employee” means an employee of the Company or any of its Subsidiaries.
“Company IP” means, collectively, all Owned IP and Licensed IP.
“Company IT Systems” means all IT Systems owned, controlled, held, licensed, used or leased by the Company or any of its Subsidiaries.
“Company Material Adverse Effect” means any Effect that has a material adverse effect on (i) the assets, business, liabilities, results of operations or financial condition of the Group Companies, taken as a whole; provided, however, that in no event would any of the following (or the effect of any of the following), alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “Company Material Adverse Effect” (except in the case of clauses (a), (b), (d), (f) and (g), in each case, to the extent that such change disproportionately affects the Group Companies, taken as a whole, as compared to other similarly situated Persons operating in the indoor family entertainment center industry (in which case solely the incremental disproportionate impact or impacts may be taken into account in determining whether there has been a Company Material Adverse Effect)): (a) any change or development in applicable Laws or GAAP or any official interpretation thereof, (b) any change or development in interest rates or economic, political, legislative, regulatory, business, financial, commodity, currency or market conditions generally affecting the economy or the industry in which the Company operates, (c) the announcement or the execution of this Agreement, the pendency or consummation of the Merger or the performance of this Agreement, including the impact thereof on relationships, contractual or otherwise, with the Company’s customers, suppliers, licensors, distributors, partners, providers and employees
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(provided that the exceptions in this clause (c) shall not be deemed to apply to references to “Company Material Adverse Effect” in the representations and warranties set forth in Section 4.03, 4.04 or 4.11(b), and, to the extent related thereto, the condition in Section 9.02(a)), (d) any change generally affecting any of the industries or markets in which the Company or its Subsidiaries operate or the economy as a whole, (e) the taking of any action required to be taken by this Agreement, or failure to take any action prohibited by this Agreement (other than Section 6.01 or with the prior written consent of Acquiror) (provided that the exceptions in this clause (e) shall not be deemed to apply to references to “Company Material Adverse Effect” in the representations and warranties set forth in Section 4.03, 4.04 or 4.11(b), and, to the extent related thereto, the condition in Section 9.02(a)), (f) any earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire or other natural disaster, epidemic, disease outbreak, pandemic (including COVID-19), public health emergencies, government required shutdowns, weather condition, explosion fire, act of God or other force majeure event, (g) any national or international political or social conditions (including any escalation thereof), including (i) large scale civil unrest, (ii) the engagement by the United States or such other countries in hostilities, whether or not pursuant to the declaration of a national emergency or war, or (iii) the occurrence of any military or terrorist attack (including any internet or “cyber” attack or hacking) upon the United States or such other country, or any territories, possessions, or diplomatic or consular offices of the United States or such other countries or upon any United States or such other country military installation, equipment or personnel, and (h) any failure of the Company and its Subsidiaries, taken as a whole, to meet any projections, forecasts or budgets; provided that this clause (h) shall not prevent or otherwise affect a determination that any Effect underlying such failure to meet projections or forecasts has resulted in, or contributed to, or would reasonably be expected to result in or contribute to, a Company Material Adverse Effect (to the extent such Effect is not otherwise excluded from this definition of Company Material Adverse Effect), or (ii) the ability of TS, Atairos or any of the Group Companies to timely perform their obligations under this Agreement or the other Transaction Documents to which such Person is a party or to consummate the Transactions.
“Company Option Plan” means the 2017 Bowlmor AMF Corp. Stock Incentive Plan.
“Company Options” means all options (whether or not vested or exercisable) to purchase Company Common Stock from the Company outstanding immediately prior to the Effective Time under the Company Option Plan.
“Company Outstanding Shares” means the total number of issued and outstanding shares of Company Common Stock as of immediately prior to the Closing, plus the total number of shares of Company Common Stock issuable upon the exercise of all Participating Company Options using the treasury method of accounting. For the avoidance of doubt, “Company Outstanding Shares” shall not include any shares of Company Common Stock issuable (but not issued) upon the conversion of any Company Preferred Stock.
“Company Preferred Stock” means the preferred stock of the Company, $0.0001 par value per share, including the Company Series A Preferred Stock.
“Company Privacy Policies” means, collectively, (a) all of the Company’s and its Subsidiaries’ data privacy and security policies, notices, terms, agreements, commitments and statements regarding the Processing of Protected Information or otherwise relating to the privacy of any Person, whether applicable internally, or linked to, available from or published on any websites, applications or platforms, in connection with the distribution, licensing, or sale of any products or services, or otherwise made available by or on behalf of Company or any Subsidiary to any Person and (b) all public statements, notices and representations (including on any websites, applications or platforms or in connection with the distribution, licensing, or sale of any products or services) or other policies, notices, terms, agreements, statements or commitments adopted by or applicable to Company or any Subsidiary pertaining to data privacy or any Processing of Protected Information.
“Company Related Parties” means the Company, its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, Controlling Persons, managers, members, directors, officers, employees, Affiliates, representatives, agents or any of their respective assignees or successors or any former, current or future general or limited partner, stockholder, Controlling Person, manager, member, director, officer, employee, Affiliate, representative, agent, assignee or successor of any of the foregoing.
“Company Representations” means the representations and warranties of the Company and its Subsidiaries set forth in Article IV of this Agreement, as qualified by the Schedules in accordance with (and subject to) Section 11.07. For the avoidance of doubt, the Company Representations are solely made by the Company.
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“Company’s Required Funds” means five hundred and twenty million dollars ($520,000,000).
“Company Securities” means the Company Common Stock, the Company Preferred Stock and the Company Options.
“Company Series A Preferred Stock” means the shares of the Company Preferred Stock designated as Series A Preferred Stock in the Company Charter.
“Company Shares” means the shares of the Company Common Stock and the Company Preferred Stock.
“Company Source Code” means any Software included in the Owned IP, in form other than object code form, including related programmer comments and annotations, help text, data and data structures, instructions and procedural, object-oriented and other code comprising such Software.
“Company Stockholder” means the holder of a share of Company Common Stock or Company Preferred Stock.
“Company Stockholder Approval” means the approval and adoption of the Merger, this Agreement and the Transactions by the requisite affirmative vote or written consent of the Company Stockholders in accordance with the DGCL and the Company Charter.
“Company Suppliers” means any of the Company’s or its Subsidiaries’ respective contractors, vendors, processors, service providers, manufacturers, distributors, assemblers, retailers, re-sellers, agents, independent contractors or other direct or indirect providers of any products or services.
“Confidentiality Agreement” means that certain letter agreement, dated March 17, 2021, by and between Acquiror and the Company.
“Contracts” means any contracts, agreements, subcontracts, licenses, instruments, documents, indentures, notes, bonds, leases, mortgages, undertakings, obligations (contingent or otherwise), in each case, including any extension, renewal, amendment or other modification thereof and whether written or oral.
“Control” (including the terms “Controls”, “Controlled by”, “Controlling” and “under common Control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract (including proxies or powers of attorney) or otherwise.
“COVID-19” shall mean SARS-CoV-2, coronavirus or COVID-19, and any evolutions, variations or mutations thereof or related or associated health conditions, epidemics, pandemic or disease outbreaks.
“COVID-19 Measures” means any quarantine, “shelter in place,” “non-essential business order,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any other Law, decree, judgment, injunction or other order, directive, guidelines or recommendations by any Governmental Authority or industry group in connection with or in response to COVID-19, including the Coronavirus Aid, Relief, and Economic Security Act (CARES).
“Data Processing Agreement” means any Contract to which any of the Group Companies is a party involving any collection, use, disclosure or other Processing of Protected Information or Proprietary Information.
“Data Requirements” means all (a) Privacy and Security Laws, (b) Company Privacy Policies, (c) IT and Security Policies, (d) Data Processing Agreements and (e) Contracts to which any of the Group Companies is a party or by which any of the Group Companies or any of their respective properties are bound with any Company Suppliers, customers, clients, users, licensees or other Persons that are applicable to or otherwise implicate any Processing of Protected Information.
“Data Security Incident” means any actual or reasonably suspected (a) breaches of security or other unauthorized access to, or use of, or other compromise to, the integrity or availability of any IT Systems (including any Company IT Systems), (b) unauthorized access to, or unauthorized acquisition, modification, loss, theft, corruption, or other Processing of, any Protected Information or (c) compromise, intrusion, misuse, interference or unauthorized access to any Company IT Systems or any unauthorized Processing of any Protected Information or
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other business information hosted, stored on or accessed therefrom, including any ransomware attack, distributed denial-of-service attack or any other similar incident, in each instance, regardless of whether any such an incident or breach triggers any notice or reporting obligations under applicable Laws.
“Earnout Pro Rata Portion” means the Stockholder Earnout Pro Rata Portion and the Non-Stockholder Earnout Pro Rata Portion, as applicable.
“Earnout Shares” means the shares of Applicable Surviving Company Common Stock that may be issued pursuant to Section 3.07 and Annex I.
“Effect” means any event, change, circumstance, development, occurrence, state of facts, condition or effect.
“Environmental Claim” means any written claim, proceeding, complaint or notice of violation alleging violation of, or Liability under, any Environmental Laws.
“Environmental Laws” means all foreign federal, state or local Laws, arising out of or relating to: (a) emissions, discharges, releases or threatened releases of any Hazardous Material into the environment (including ambient air, surface water, ground water, land surface or subsurface strata); and (b) the manufacture, processing, distribution, use, generation, treatment, storage, disposal, transport or handling of any Hazardous Material.
“Environmental Permits” means the Permits required under Environmental Laws.
“Equity Value” means $1,601,053,751.89.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any Person, trade or business which is considered a single employer with the Company or any Subsidiary of the Company under Section 4001 of ERISA or Section 414 of the Code.
“Exchange Act” means the Securities Exchange Act of 1934.
“Existing Credit Agreements” means the Existing First Lien Credit Agreement and the Existing Incremental Liquidity Facility Credit Agreement.
“Existing First Lien Credit Agreement” means that certain First Lien Credit Agreement, dated as of July 3, 2017, by and among the Company, Kingpin Intermediate Holdings LLC, JPMorgan Chase Bank, N.A., and lenders from time to time party thereto, as amended by (i) that certain First Incremental Amendment, dated as of March 28, 2018 (ii) that certain Second Amendment, dated as of July 5, 2018, (iii) that certain Third Incremental Amendment, dated as of November 20, 2019, (iv) that certain Fourth Amendment, dated as of June 10, 2020, and (v) that certain Fifth Amendment, dated as of September 25, 2020 (as amended, restated, supplemented or otherwise modified from time to time).
“Existing Incremental Liquidity Facility Credit Agreement” means that certain First Lien Credit Agreement, dated as of September 25, 2020, by and among the Company, Kingpin Intermediate Holdings LLC, JPMorgan Chase Bank, N.A. and the lenders from time to time party thereto (as amended, restated, supplemented or otherwise modified from time to time).
“Existing Stockholders’ Agreement” means that certain Stockholders’ Agreement, dated as of June 6, 2017, by and among the Company, TS, Atairos, Thomas F. Shannon and Atairos Group, Inc.
“Forward Purchase Contract” means that certain Amended and Restated Forward Purchase Contract, dated as of the date hereof, by and among Acquiror and the FP Investors.
“FP Investors” means Apollo Credit Strategies Master Fund Ltd., Apollo PPF Credit Strategies, LLC, Apollo Atlas Master Fund, LLC, Apollo A-N Credit Fund (Delaware), L.P. and Apollo SPAC Fund I, L.P.
“Fraud” means intentional common law fraud (and not constructive fraud or negligent or reckless misrepresentation or omission) under Delaware law with respect to the making by the applicable party of the representations in Article IV or Article V of this Agreement or any certificate delivered in accordance with Section 9.02(c) or Section 9.03(c) of this Agreement (as applicable).
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“GAAP” means United States generally accepted accounting principles, consistently applied.
“Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs. For example, the “Governing Documents” of a corporation are its certificate of incorporation and by-laws, the “Governing Documents” of a limited partnership are its limited partnership agreement and certificate of limited partnership, the “Governing Documents” of a limited liability company are its operating agreement and certificate of formation and the “Governing Documents” of an exempted company are its memorandum and articles of association.
“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, arbitrator, court or tribunal.
“Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any Governmental Authority.
“Group Companies” means the Company and its Subsidiaries, and “Group Company” means any of them.
“Hazardous Materials” means any solid, liquid or gaseous material, alone or in combination, mixture or solution, which is now or hereafter listed, defined, identified or regulated as “hazardous”, “toxic”, a “pollutant”, a “contaminant” or words of similar meaning pursuant to any Environmental Law, including petroleum, petroleum products, by-products or derivatives, asbestos, and polychlorinated biphenyls, urea formaldehyde and radon.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and regulations promulgated thereunder.
“Indebtedness” means, with respect to any Person, without duplication, any obligations (whether or not contingent) consisting of (a) the outstanding principal amount of and accrued and unpaid interest on, and other payment obligations for, borrowed money, or payment obligations issued or incurred in substitution or exchange for payment obligations for borrowed money, (b) payment obligations evidenced by any promissory note, bond, debenture, mortgage or other debt instrument or debt security or similar instruments, (c) contingent reimbursement obligations with respect to letters of credit, bankers’ acceptance or similar facilities (in each case to the extent drawn), (d) the termination value of interest rate protection agreements and currency obligation swaps, hedges or similar arrangements (without duplication of other indebtedness supported or guaranteed thereby), (e) with respect to each of the foregoing, any unpaid interest, breakage costs, termination, prepayment or redemption penalties or premiums, or other unpaid fees or obligations and (f) all Indebtedness of third parties that are not Affiliates of the Group Companies referred to in clauses (a) through (e) above guaranteed directly or indirectly, jointly or severally. For the avoidance of doubt, Indebtedness shall not include Taxes.
“Information or Document Request” means any request or demand for the production, delivery or disclosure of documents or other evidence, or any request or demand for the production of witnesses for interviews or depositions or other oral or written testimony, by any Regulatory Consent Authority relating to the Transactions or by any third party challenging the Transactions, including any so called “second request” for additional information or documentary material or any civil investigative demand made or issued by the Antitrust Division of the United States Department of Justice or the United States Federal Trade Commission or any subpoena, interrogatory or deposition.
“Intellectual Property” means any and all of the following as may exist, be created, or recognized, in any jurisdiction throughout the world: (a) all patents, patent applications, patent disclosures and rights in inventions, utility models, utility model applications, statutory invention registrations, certificates of invention, rights in designs, design registrations and applications, and all other governmental grants for the protection of any inventions and industrial designs, and any and all reissues, divisions, renewals, extensions, provisionals, non-provisionals, reexaminations, restorations, continuations and continuations in part of any of the foregoing, (b) all Proprietary Information, (c) all Trademarks, (d) all Internet domain names, including all rights therein and all registrations thereof, (e) all copyrights, copyrightable subject matter, works of authorship, mask works, rights of publicity and all other rights in any works of authorship and all derivative works, translations, adaptations and combinations of any of the foregoing, all applications and registrations and applications therefor, and renewals, extensions and reversions thereof, (f) all moral and economic rights of authors and inventors, however denominated, (g) all rights in databases and data collections, (h) all other intellectual property and proprietary rights in all forms and media, and all goodwill
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associated therewith, now known or hereafter recognized in any jurisdiction worldwide, (i) any similar or equivalent rights to any of the foregoing, including those arising under international treaties and convention rights, (j) all rights and powers to assert, defend and recover title to any of the foregoing, (k) all rights to assert, defend, sue, and recover damages for any past, present and future infringement, misuse, misappropriation, impairment, unauthorized use or other violation of any rights in or to any of the foregoing, (l) all proceeds, income, royalties, damages and payments now or hereafter due and payable under or in respect of all of the foregoing (including with respect to past, present or future infringement, misuse, misappropriation, impairment, unauthorized use or other violation thereof) and (m) all administrative rights arising from the foregoing, including the right to prosecute applications and oppose, interfere with or challenge the applications of others, the rights to obtain renewals, continuations, divisions, reversions, restorations and extensions of legal protection pertaining to any of the foregoing.
“Intervening Event” means any Effect occurring or arising after the date of this Agreement that is material to the Acquiror and (a) was not known and was not reasonably foreseeable by any member of the Acquiror Board as of or prior to the execution of this Agreement (or the consequences (or magnitude) of which were not known and were not reasonably foreseeable by the Acquiror Board), which becomes known to the Acquiror Board prior to the time the Acquiror Stockholder Approval is obtained and (b) does not in any way involve or relate to (i) an Acquiror Business Combination Proposal, (ii) any actions taken, or not taken (due to prohibition), pursuant to this Agreement, including clearance of the Transactions under the HSR Act or any other applicable Laws and any action in connection therewith taken pursuant to or required to be taken pursuant to Section 8.01, (iii) any changes in the market price or trading volume of Acquiror Class A Common Stock or Acquiror Class B Common Stock or the major stock indexes in the U.S. market, (iv) any changes in Acquiror’s credit ratings, (v) the PIPE Investment Amount, the Preferred Investment Amount, the Subscription Agreements or the Forward Purchase Contract, (vi) any redemptions of Acquiror Class A Common Stock or (vii) any Effect that may not be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur (it being understood that with respect to each of the foregoing clauses (iii) through (vi), the Effect giving rise or contributing to such excluded change or event may be taken into account when determining whether an Intervening Event has occurred to the extent not otherwise excluded from this definition).
“IRS“ means the United States Internal Revenue Service.
“IT and Security Policies” mean any and all policies, programs, standards, controls, terms, commitments, requirements and procedures established, implemented or maintained by, or otherwise applicable to, Company or any of its Subsidiaries relating to IT Systems (e.g., acceptable use policies, access terms, terms of service, etc.), data protection, data privacy, data security, cybersecurity, incident response, breach notification, business interruption, disaster recovery or business continuity.
“IT Systems” means information technology systems, resources, Software, hardware, devices, networks, equipment, including all servers, workstations, routers, hubs, switches, data lines, dashboards, portals, storage, databases, mail servers and firewalls.
“Law” means any statute, law, ordinance, treaty, code, rule, regulation or Governmental Order, in each case, of any Governmental Authority.
“Liability” shall mean any liability, debt, loss, damage, claim, cost, expense or obligation of any nature (including costs of investigation and defense and attorney’s fees, costs and expenses), in each case, whether direct or indirect, known or unknown, accrued or unaccrued, fixed or contingent or liquidated or unliquidated.
“Licensed IP” means all Intellectual Property licensed or otherwise made available to the Company or any of its Subsidiaries (in whole or in part) by any Person.
“Lien” means any lien, mortgage, charge, deed of trust, pledge, hypothecation, encumbrances, easement, right of way, purchase option, right of first refusal, covenant, restriction, security interest, collateral assignments, title defect, title retention devices (including the interest of a seller having substantially the same economic effect as any of the foregoing), encroachment or other survey defect, or other lien, claims or encumbrance of any kind whether consensual, statutory or otherwise, and whether filed, recorded or perfected under applicable Law (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset), except for (a) any restrictions arising under any applicable Securities Laws, and (b) any Taxes not yet due or payable.
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“Malicious Code” means any program routine, device, code or instructions or other undisclosed feature, including any time bomb, virus, software lock, self-destruction, drop-device, malicious logic, “denial of service” or phishing attacks, worm, Trojan horse, trap door, “disabling”, “lock out”, “metering” device, undocumented code, or any malicious code that is code that is able to delete, damage, disable, corrupt, deactivate, interfere with or otherwise harm any IT Systems with which same interacts.
“Milestone” means each of the $15.00 Share Price Milestone and the $17.50 Share Price Milestone.
“Non-Scheduled Licenses” means any (a) license for “shrink-wrap,” “click-through” or other “off-the-shelf” software that is not customized and commercially available to the public generally with annual license, maintenance, support and other fees of less than $20,000 in the aggregate, (b) licenses entered into in the ordinary course of business, (c) licensing relating to Open Source Software and (d) website, software or “app” terms of service, terms of use, end user license agreement or similar terms located on third party, social networking or similar publicly available platforms involving the royalty-free license or access without charge to non-customized and commercially available software.
“Non-Stockholder Earnout Holder” means a Person entitled to a Non-Stockholder Earnout Pro Rata Portion of the Earnout Shares as of the Effective Time.
“Non-Stockholder Earnout Pro Rata Portion” means, with respect to:
(a) each holder (other than TS, Atairos and Brett I. Parker and their respective Permitted Transferees (as defined in the Stockholders’ Agreement, and in the case of Brett I. Parker, applying such definition of Permitted Transferee to Brett I. Parker on a mutatis mutandis basis relative to Thomas F. Shannon)) of outstanding shares of Company Common Stock (or of Cancelled Options) as of immediately prior to the Effective Time, a fraction expressed as a percentage equal to (i) the number of shares of Applicable Surviving Company Common Stock into which such holder’s shares of Company Common Stock may be converted in accordance with Section 3.01(b) (or in consideration for which such Cancelled Options may be cancelled pursuant to Section 3.01(d) assuming that all holders of Cancelled Options had made the Option Stock Election) divided by (ii) the sum of (x) the total number of shares of Applicable Surviving Company Common Stock into which all outstanding shares of Company Common Stock may be converted in accordance with Section 3.01(b) (calculated as if (A) the Preferred Exchange Amount were zero and (B) each holder of Company Common Stock made a Stock Election with respect to each share of Company Common Stock held by such holder) (or in consideration for which such Company Options may be cancelled pursuant to Section 3.01(d) assuming that all holders of Cancelled Options had made the Option Stock Election), plus (y) the total number of shares of Applicable Surviving Company Common Stock that would have been issued at the Effective Time in respect of each Converted Option assuming that the holder of such Converted Option had elected to have the provisions of Section 3.01(d)(i)(2) apply; and
(b) each holder (other than Thomas F. Shannon and Brett I. Parker and their Permitted Transferees (as defined in the Stockholders’ Agreement, and in the case of Brett I. Parker, applying such definition of Permitted Transferee to Brett I. Parker on a mutatis mutandis basis relative to Thomas F. Shannon)) of outstanding Company Options as of immediately prior to the Effective Time that are converted into Converted Options pursuant to Section 3.01(e), a fraction expressed as a percentage equal to (i) the number of shares of Applicable Surviving Company Common Stock that would have been issued at the Effective Time in respect of each Converted Option assuming that the holder of such Converted Option had elected to have the provisions of Section 3.01(d)(i)(2) apply, divided by (ii) the sum of (x) the total number of shares of Applicable Surviving Company Common Stock into which all outstanding shares of Company Common Stock may be converted in accordance with Section 3.01(b) (calculated as if (A) the Preferred Exchange Amount were zero and (B) each holder of Company Common Stock made a Stock Election with respect to each share of Company Common Stock held by such holder) (or in consideration for which Company Options may be cancelled pursuant to Section 3.01(d) assuming that all holders of Cancelled Options had made the Option Stock Election), plus (y) the total number of shares of Applicable Surviving Company Common Stock that would have been issued at the Effective Time in respect of each Converted Option assuming that the holder of such Converted Option had elected to have the provisions of Section 3.01(d)(i)(2) apply. For purposes of clauses (a)(ii)(x) and (b)(ii)(x) of this definition, “outstanding shares of Company Common Stock” shall be deemed to include all shares of Company Common Stock that would be outstanding at the time of measurement if the “Mandatory Conversion Time” (as such term is defined in the Company Charter) had occurred as of immediately prior to the time of measurement and that the “price per share of the Common Stock sold in such public offering” contemplated by the Company Charter were the Per Share Merger Consideration Value
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“NYSE” means the New York Stock Exchange, or any other substantially equivalent national securities exchange registered under Section 6 of the Exchange Act (such as NASDAQ).
“Open Source Software” means all Software and other materials that are distributed as “free software”, “open source software,” “shareware” or under a similar licensing or distribution model (including the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), GNU Affero General Public License (AGPL), MIT License (MIT), Apache License, Artistic License, BSD Licenses and any other license for Software that meets the “Open Source Definition” promulgated by the Open Source Initiative or that includes similar terms).
“Option Election Consideration Cap” means (a) $20,000,000.00 minus (b) the product of (i) 5% multiplied by (ii) the Redemption Amount, as adjusted for any election made by the Company pursuant to Section 9.03(g); provided that if any Participating Company Options are exercised prior to the Closing, the dollar amount set forth in clause (a) of this definition shall be reduced in proportion to the total number of shares of Company Common Stock underlying such exercised Participating Company Options (calculated using the treasury method of accounting) relative to the total number of shares of Company Common Stock underlying all Participating Company Options outstanding on the date hereof (calculated using the treasury method of accounting), and the dollar amount set forth in clause (a) of the Cash Election Consideration Cap shall be increased by a corresponding dollar amount.
“Option Spread” means, with respect to a Company Option, the product of (a) the number of shares of Company Common Stock subject to such Company Option immediately before the Effective Time multiplied by (b) the excess of (i) the Per Share Merger Consideration Value over (ii) the per share exercise price of such Company Option.
“Owned IP” means all Intellectual Property owned or purported to be owned (in whole or in part) by the Company or any of its Subsidiaries.
“PCAOB” means the Public Company Accounting Oversight Board and any division or subdivision thereof.
“PCI Requirements” means the standards and binding guidelines established by the Payment Card Industry (“PCI”), including the PCI Data Security Standard (“PCI-DSS”) and the Payment Application Data Security Standard (“PA-DSS”).
“Per Share Forfeited Share Consideration” means, (a) with respect to each share of Company Common Stock owned by Atairos as of immediately prior to the Effective Time, a number of shares of Applicable Surviving Company Common Stock equal to (i) 50% multiplied by the number Forfeited Shares (as defined in the Sponsor Support Agreement) divided by (ii) the total number of shares of Company Common Stock owned by Atairos, (b) with respect to each share of Company Common Stock held by TS or Thomas F. Shannon as of immediately prior to the Effective Time, a number of shares of Applicable Surviving Company Common Stock equal to (i) 50% multiplied by the number Forfeited Shares (as defined in the Sponsor Support Agreement) divided by (ii) the total number of shares of Company Common Stock held by TS or Thomas F. Shannon as of immediately prior to the Effective Time; and (c) with respect to each share of Company Common Stock held by any other Person, 0.
“Per Share Merger Consideration Value” means (a) the Equity Value divided by (b) the Company Outstanding Shares.
“Per Share Preferred Stock Cash Consideration” means an amount in cash equal to the Series A Per Share Liquidation Preference as of the Effective Time.
“Per Share Stock Consideration” means a number of shares of Applicable Surviving Company Common Stock equal to (i) the Per Share Merger Consideration Value divided by (ii) ten (10).
“Permits” means all permits, licenses, certificates of authority, authorizations, approvals, registrations and other similar consents issued by or obtained from a Governmental Authority.
“Permitted Liens” means (i) statutory or common law Liens of mechanics, materialmen, warehousemen, landlords, carriers, repairmen, construction contractors and other similar Liens (A) that relate to amounts not yet delinquent or (B) that are being contested in good faith through appropriate Actions and appropriate reserves for the amount being contested have been established in accordance with GAAP, (ii) Liens arising under original purchase
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price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business, (iii) Liens for Taxes not yet due and payable or which are being contested in good faith through appropriate Actions, and in each case for which appropriate reserves have been established in accordance with GAAP, (iv) non-monetary Liens, encumbrances and restrictions on real property (including, without limitation, easements, covenants, rights of way and similar restrictions of record) that do not, individually or in the aggregate, materially interfere with the present uses of such real property, (v) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business, (vi) requirements and restrictions of zoning, building and other applicable Laws and municipal bylaws, and development, site plan, subdivision or other agreements with municipalities, which are not violated in any material respect by the current use or occupancy of any Real Property, (viii) statutory Liens of landlords securing unpaid rent, (ix) Liens securing Indebtedness outstanding under any Existing Credit Agreement, (x) in the case of the Leased Real Property, any Lien to which fee simple interest (or any superior leasehold interest) is subject; (xi) any Lien arising under the Existing Stockholders’ Agreement, (xi) such imperfections of title, easements, encumbrances, Liens or restrictions that do not materially impair or interfere with the current use of the Group Companies’ assets that are subject thereto and (xii) Liens described on Schedule 1.01(c).
“Person” means any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, Governmental Authority or other entity of any kind.
“Personal Information” means all (a) data and information that identifies, relates to, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with an identifiable natural person or household, (b) data and information considered “personal information,” “personally identifiable information”, “individually identifiable health information,” “protected health information”, “user data”, “customer data”, “sensitive data”, “individual data”, “personal financial information” or “personal data” (or similar term or terminology), under any Privacy and Security Laws, (c) Cardholder Data or (d) data and information protected by, covered by or subject to any Laws.
“Preferred COD” means the Certificate of Designations of the Company for the designation and creation of the Acquiror Preferred Stock in substantially the form attached hereto as Exhibit C.
“Preferred Exchange Amount” means $105,000,000.
“Preferred Stock Cash Consideration” means an amount in cash equal to the Series A Per Share Liquidation Preference multiplied by the number of shares of Company Series A Preferred Stock issued and outstanding.
“Privacy and Security Laws” means any and all (a) Laws and binding industry self-regulatory principles applicable to or otherwise concerning data privacy, data secrecy, data protection, information security, data disposal, data transfers, data breaches (including incident reporting and breach notification), behavioral advertising, digital advertising, cross-device tracking, direct marketing, e-mails, text messages, telemarketing or consumer protection, (b) Laws applicable to collecting, accessing, using, disclosing, electronically transmitting, securing, sharing, transferring, storing and/or otherwise Processing Protected Information, (c) PCI Requirements or (d) binding guidance issued by a Governmental Authority that pertains to one of the Laws, rules or standards referenced in clause (a) or (b).
“Process” or “Processing” means, with respect to data, the use, collection, creation, processing, receipt, storage, hosting, recording, organization, structuring, licensing, aggregation, anonymizing, monitoring, alteration, transfer, transmission, retrieval, disclosure, dissemination, inspection, analysis, disposal, erasure or destruction of such data.
“Proprietary Information” means all trade secrets, confidential or proprietary information, inventions (whether patentable or unpatentable and whether or not reduced to practice), know-how, methodologies, processes, techniques, ideas, discoveries, research and reports, specifications, algorithms, programming code, plans, proposals, invention disclosures, improvements, models, devices, prototypes, data analysis, schematics, tools, sketches, drawings, samples, data compilations, databases, data maps, data extracts, data annotations, build instructions, current and anticipated customer and product requirements, technology and system data, metadata, methods, network configurations, analyses and architectures, programs, protocols, product and service specifications, plans and roadmaps, financial, technical, marketing and business data and information, sales, pricing, projection and cost information, customer, client, employee, individual data, Personal Information, personnel, vendor, supplier, partner and other information and lists.
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“Protected Information” means all data and information that (a) is Business Data or (b) is subject to any Data Requirements or any confidentiality, non-disclosure or similar obligation applicable to the Company or any of its Subsidiaries.
“Proxy Statement” means the proxy statement filed by Acquiror on Schedule 14A as part of the Registration Statement with respect to the Special Meeting for the purpose of soliciting proxies from Acquiror Stockholders to approve the Proposals (which shall also provide the Acquiror Stockholders with the opportunity to redeem their shares of Acquiror Class A Common Stock in conjunction with a stockholder vote on the Merger).
“Redeeming Stockholder” means an Acquiror Stockholder who demands that Acquiror redeem its Acquiror Class A Common Stock for cash in connection with the Transactions and in accordance with the Acquiror Governing Documents.
“Redemption Amount” means an amount determined by the Company up to the amount, if any, by which the Closing Acquiror Cash is less than $600,000,000.
“Regulatory Consent Authorities” means the Antitrust Division of the United States Department of Justice, the United States Federal Trade Commission or any other Governmental Authority with jurisdiction over enforcement of any applicable Antitrust Law, as applicable.
“Related Party” means a Company Related Party or an Acquiror Related Party, as applicable.
“Remedial Action” means all action required under applicable Environmental Laws: (x) to cleanup, remove, treat or in any other way remediate any chemical, Hazardous Material or waste containing any chemical or Hazardous Material in the environment; (y) to prevent the release of any chemical, Hazardous Material or waste containing any chemical or Hazardous Material so that they do not endanger or otherwise adversely affect the environment or public health or welfare; or (z) to perform pre-remedial studies, investigations or monitoring, in or under any real property, assets or facilities.
“Representative” means, as to any Person, any of the officers, directors, managers, employees, counsel, accountants, financial advisors, lenders, debt financing sources and consultants of such Person.
“Requisite Stockholders” means the persons or entities listed on Schedule 1.01(d).
“Sanctioned Person” means at any time any Person (a) listed on any sanctions-related list of designated or blocked persons; (b) resident in or organized under the laws of a country or territory that is the subject of comprehensive restrictive Sanctions from time to time (which includes, as of the date of this Agreement, Cuba, Iran, North Korea, Syria and the Crimea region); or (c) majority-owned or controlled by any of the foregoing.
“Sanctions” means those trade, economic and financial sanctions laws, regulations, embargoes, and restrictive measures (in each case having the force of law) administered, enacted or enforced from time to time by (a) the United States (including without limitation the Department of Treasury, Office of Foreign Assets Control), (b) the European Union and enforced by its member states, (c) the United Nations, (d) Her Majesty’s Treasury, or (e) other similar Governmental Authority from time to time.
“Schedules” means sections of the disclosure letter of the Company and its Subsidiaries.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933.
“Securities Laws” means the securities laws of any state, federal or foreign entity and the rules and regulations promulgated thereunder.
“Series A Per Share Liquidation Preference” has the meaning set forth in the Company Charter.
“Significant Capital Lease” means any lease to which any of the Group Companies is a party that is required by GAAP (as in effect on the dated of this agreement) to be recorded as a capitalized lease and which has an outstanding principal balance as of the date of this Agreement of at least $25,000,000;
Annex A-15
Table of Contents
“Software” means all computer software, programs, applications, scripts, middleware, firmware, interfaces, tools, operating systems, systems, specifications, network tools, data, databases, firmware, designs and documentation thereto, software code of any nature (including all source code, object code, interpreted code, data files, rules, definitions and methodology derived from the foregoing) and any derivations, updates, enhancements and customization of any of the foregoing, together with all processes, technical data, algorithms, APIs, subroutines, operating procedures, report formats, development tools, templates and user interfaces.
“Special Meeting” means an extraordinary general meeting of the Acquiror to be held for the purpose of approving the Proposals.
“Sponsor” means Isos Acquisition Sponsor LLC, a Delaware limited liability company.
“Sponsor Shares” means (i) prior to the Domestication, Class B ordinary shares, par value $0.0001 per share, of Acquiror, and (ii) following the Domestication, the Class A Common Stock of Acquiror, par value $0.0001 per share, authorized pursuant to the Acquiror Certificate of Incorporation.
“Stockholder Earnout Holder” means a Person entitled to a Stockholder Earnout Pro Rata Portion of the Earnout Shares as of the Effective Time.
“Stockholder Earnout Pro Rata Portion” means, with respect to (i) TS and Thomas F. Shannon, collectively, (A) 47.59% multiplied by (B) 100% minus the aggregate Non-Stockholder Earnout Pro Rata Portion, (ii) Atairos, (A) 47.59% multiplied by (B) 100% minus the aggregate Non-Stockholder Earnout Pro Rata Portion and (iii) Brett I. Parker (A) 4.82% multiplied by (B) 100% minus the aggregate Non-Stockholder Earnout Pro Rata Portion. The Stockholder Earnout Pro Rata Portion attributable to TS and Thomas F. Shannon shall be allocated among such Persons on a pro rata basis based on their relative ownership of shares of Company Common Stock (calculated as if Thomas F. Shannon made an Option Stock Election with respect to each Company Option held by him).
“Subsidiary” means, with respect to a Person, (a) solely for purposes of Section 4.03(b), Section 4.06, Section 4.07, Section 4.08, Section 4.09, Section 4.18(a), Section 4.20 and Section 6.01, any Affiliate directly or indirectly Controlled by such Person that is a concession company, (b) any corporation or other organization (including a limited liability company or a partnership), whether incorporated or unincorporated, of which such Person directly or indirectly owns or controls a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization or (c) any organization of which such Person or any of its Subsidiaries is, directly or indirectly, a general partner or managing member.
“Surviving Company Class A Common Stock” means the common stock of the Surviving Company, $0.0001 par value per share, designated as Class A Common Stock in the Surviving Company Certificate of Incorporation.
“Surviving Company Class B Common Stock” means the common stock of the Surviving Company, $0.0001 par value per share, designated as Class B Common Stock in the Surviving Company Certificate of Incorporation.
“Surviving Company Preferred Stock” means the series of preferred stock of the Surviving Company titled “Series A Convertible Preferred Stock”, par value $0.0001 per share.
“Tax” means any federal, state, provincial, territorial, local, foreign and other net income, alternative or add-on minimum, franchise, gross income, adjusted gross income or gross receipts, employment, unemployment, compensation, utility, social security (or similar), withholding, payroll, ad valorem, transfer, windfall profits, franchise, license, branch, excise, severance, production, stamp, occupation, premium, personal property, real property, capital stock, profits, disability, registration, value added, capital gains, goods and services, estimated, customs duties, sales, use, or other tax, governmental fee or other like assessment, together with any interest, penalty, fine, levy, impost, duty, charge, addition to tax or additional amount imposed with respect thereto by a Governmental Authority.
“Tax Opinion” means an opinion of Tax Opinion Counsel, in form and substance reasonably satisfactory to the Company and Acquiror, dated as of the Closing Date, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion, the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
Annex A-16
Table of Contents
“Tax Opinion Counsel” means Paul, Weiss, Rifkind, Wharton & Garrison LLP (or if Paul, Weiss, Rifkind, Wharton & Garrison LLP is unable to or prior to the Closing does not deliver the Tax Opinion, Hughes Hubbard & Reed LLP).
“Tax Return” means any return, report, statement, refund, claim, disclosure, declaration, information report or return, estimate or other document filed or required to be filed with a Governmental Authority with respect to Taxes, including any schedule or attachment thereto and including any amendments thereof.
“Trademarks” means all trademarks, service marks, trade names, business names, corporate names and other source or business identifiers, trade dress, look and feel, product and service names, logos, brand names, designs, slogans, common law trademarks and service marks and other distinctive identification and/or indicia of origin and/or source, whether or not registered, including all common law rights thereto, and all applications, renewals, extensions and registrations therefor, and all goodwill associated with or related to any of the foregoing or the business connected with the use of and symbolized by the foregoing.
“Tranche 2 Options” means, collectively, the Company Options described on Schedule 1.01(e).
“Transaction Documents” means, collectively, this Agreement, the Confidentiality Agreement, the Stockholders’ Agreement, the Forward Purchase Contract, the Subscription Agreements, the Sponsor Support Agreement, the Registration Rights Agreement, the Stockholder Support Agreements, the Lock-Up Agreements and any other document contemplated thereby or any document or instrument delivered in connection hereunder or thereunder.
“Transactions” means, collectively, the Merger and the other transactions contemplated by this Agreement or any of the other Transaction Documents.
“Treasury Regulations” means the regulations promulgated under the Code.
“Warrant Agreement” means that certain Warrant Agreement, dated as of March 2, 2021, between Acquiror and Continental Stock Transfer& Trust Company, as warrant agent.
“Willful Breach” means, with respect to any agreement, a party’s knowing and intentional material breach of any of its representations or warranties as set forth in such agreement, or such party’s material breach of any of its covenants or other agreements set forth in such agreement, which material breach constitutes, or is a consequence of, a purposeful act or failure to act by such party with the knowledge that the taking of such act or failure to take such act would cause a material breach of such agreement.
1.02 Terms Defined Elsewhere in This Agreement. For purposes of this Agreement, the following terms have meanings set forth in the sections indicated:
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Term
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Section
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$15.00 Earnout Shares
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Annex I
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$15.00 Share Price Milestone
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Annex I
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$15.00 Share Price Milestone Date
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Annex I
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$17.50 Earnout Shares
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Annex I
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$17.50 Share Price Milestone
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Annex I
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$17.50 Share Price Milestone Date
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Annex I
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Acceleration Event
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Annex I
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Acquiror
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Preamble
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Acquiror Adjournment Proposal
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8.03(d)
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Acquiror Affiliate Agreement
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5.20
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Acquiror Board Recommendation
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8.03(g)
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Acquiror Change in Recommendation
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8.03(g)
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Acquiror Change in Recommendation Notice
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8.03(g)
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Acquiror Change in Recommendation Notice Period
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8.03(g)
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Acquiror Cure Period
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10.01(c)
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Acquiror Debt Limit
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7.02(a)(viii)
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Acquiror Employee Stock Purchase Plan
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Recitals
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Annex A-17
Table of Contents
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Term
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Section
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Acquiror Employee Stock Purchase Plan Proposal
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8.03(d)
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Acquiror Parties
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11.16(a)
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Acquiror Omnibus Incentive Plan
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Recitals
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Acquiror Omnibus Incentive Plan Proposal
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8.03(d)
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Acquiror Public Stockholders
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6.02
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Acquiror SEC Reports
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5.11(a)
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Acquiror Stockholder Approval
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5.02(b)
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Additional Proposal
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8.03(d)
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Agreement
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Preamble
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Aggregate Cash Election Amount
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3.01(b)(i)
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Atairos
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Recitals
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Audited Financial Statements
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4.06(a)
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Cancelled Option
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3.01(d)(i)
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Cancelled Shares
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3.01(c)
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Cash Electing Option
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3.01(d)(i)(1)
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Cash Electing Share
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3.01(b)(i)
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Cash Election
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3.01(b)(i)
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Cash Fraction
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3.01(b)(i)
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Certificate of Merger
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2.02
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Change of Control
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Annex I
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Closing
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2.04
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Closing Date
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2.04
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Closing Preferred Stock Consideration
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3.01(b)(ii)
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Code
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Recitals
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Common Subscribers
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Recitals
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Common Subscription Agreements
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Recitals
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Company
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Preamble
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Company Affiliate Agreement
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4.19
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Company Board Recommendation
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6.03
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Company Cure Period
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10.01(b)
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Company Parties
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11.16(b)
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Company Registered IP
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4.10(d)
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Company Stockholders Meeting
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6.03
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Converted Option
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3.01(e)(i)
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Davis Polk
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11.16(b)
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Defending Party
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8.09
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DGCL
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Recitals
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Dissenting Shares
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3.06(a)
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Domestication
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Recitals
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Domestication Proposal
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8.03(d)
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Earnout Shares
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Annex I
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Effective Time
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2.02
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Election Date
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3.02(c)
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Exchange Agent
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3.03(a)
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Exchange Fund
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3.03(a)
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Financial Statements
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4.06(a)
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Form of Election
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3.02(b)
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Governing Document Proposal
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8.03(d)
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HHR
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11.16(a)
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Insurance Policies
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4.15
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Annex A-18
Table of Contents
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Term
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Section
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Intended Tax Treatment
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Recitals
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Interim Period
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6.01
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Last Audited Balance Sheet Date
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4.06(a)
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Last Unaudited Balance Sheet Date
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4.06(a)
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Leased Real Property
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4.16(c)
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Letter of Transmittal
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3.03(b)
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Lock-Up Agreements
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Recitals
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Material Contracts
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4.11(a)
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Material Lease
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4.16(c)
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Merger
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Recitals
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NYSE Proposal
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8.03(d)
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Offer
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Recitals
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Option Cash Election
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3.01(d)(i)(1)
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Option Stock Election
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3.01(d)(i)(2)
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Outstanding Acquiror Expenses
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3.05(b)
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Outstanding Company Expenses
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3.05(a)
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Owned Real Property
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4.17
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Per Share Cash Election Consideration
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3.01(b)(i)
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PIPE Investment Amount
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5.22
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Preferred Investment Amount
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5.22
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Preferred Subscribers
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Recitals
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Preferred Subscription Agreements
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Recitals
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Proposals
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8.03(d)
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PWRW&G
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11.16(b)
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Real Property
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4.17
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Registration Rights Agreement
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Recitals
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Registration Statement
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1.01(a)
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Released Claims
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6.02
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Stock Election
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3.01(b)(ii)
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Stockholders’ Agreement
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Recitals
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Stockholder Support Agreement
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Recitals
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Subscribers
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Recitals
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Subscription Agreements
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Recitals
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Sponsor Support Agreement
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Recitals
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Surviving Company
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Recitals
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Surviving Company Board
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2.06
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Surviving Company Bylaws
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2.05(b)
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Surviving Company Certificate of Incorporation
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2.05(a)
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Surviving Provisions
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10.02
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Terminating Acquiror Breach
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10.01(c)
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Terminating Company Breach
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10.01(b)
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Termination Date
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10.01(b)
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Transaction Proposal
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8.03(d)
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Trust Account
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5.08
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Trust Agreement
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5.08
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Trustee
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5.08
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TS
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Recitals
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Unaudited Interim Financial Statements
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1.01(a)
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Unaudited Financial Statements
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4.06(a)
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Written Consent
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6.03
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Annex A-19
Table of Contents
1.03 Construction.
(a) Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, (iv) the terms “Article,” “Section,” “Schedule,” “Exhibit” and “Annex” refer to the specified Article, Section, Schedule, Exhibit or Annex of or to this Agreement unless otherwise specified, (v) the word “including” shall mean “including without limitation” and (vi) the word “or” shall be disjunctive but not exclusive.
(b) Unless the context of this Agreement otherwise requires, references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto.
(c) Unless the context of this Agreement otherwise requires, references to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation.
(d) The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent and no rule of strict construction shall be applied against any party.
(e) Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day.
(f) All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.
(g) The phrases “delivered,” “provided to,” “furnished to,” “made available” and phrases of similar import when used herein, unless the context otherwise requires, mean that a copy of the information or material referred to has been provided no later than one calendar day prior to the date of this Agreement to the party to which such information or material is to be provided or furnished (i) in the virtual “data room” set up by the Company in connection with this Agreement or (ii) by delivery to such party or its legal counsel via electronic mail or hard copy form.
(h) With respect to any Person acquired by the Company or any of its Subsidiaries after the date of this Agreement and disclosed on Schedule 6.01(h), (i) no representations and warranties (including those set forth in Article IV) are made with respect to any such Person, (ii) for purposes of determining whether the conditions set forth in Section 9.02(a) and Section 9.02(b) have been satisfied, any such Person shall be excluded, and (iii) any such Person shall be the subject of any covenant contained in this Agreement only from and after the closing of such acquisition.
1.04 Knowledge.
As used herein, the phrase “to the knowledge” shall mean the actual knowledge of, in the case of the Company, the persons set forth on Schedule 1.04(a), and in the case of Acquiror, the persons set forth on Acquiror Schedule 1.04(b), in each case, after reasonable inquiry.
Article II
DOMESTICATION; THE MERGER; CLOSING
2.01 Domestication. Subject to receipt of the Acquiror Stockholder Approval, prior to the Closing, Acquiror shall cause the Domestication to become effective in accordance with Section 388 of the DGCL and Part XII of the Cayman Islands Companies Act (As Revised), including by (a) filing with the Delaware Secretary of State a Certificate of Domestication with respect to the Domestication, together with the Acquiror Certificate of Incorporation in the form attached hereto as Exhibit A, in each case, in accordance with the provisions thereof and the DGCL, (b) completing and making and procuring all those filings required to be made with the Registrar of Companies of the Cayman Islands under Part XII of the Cayman Islands Companies Act (As Revised) in connection with the Domestication and (c) obtaining a certificate of de-registration from the Registrar of Companies of the Cayman Islands. In accordance with applicable Law, the Domestication shall provide that at the effective time of the Domestication, by virtue of the Domestication, and without any action on the part of any Acquiror
Annex A-20
Table of Contents
Stockholder, (i) each Class A ordinary share of Acquiror outstanding immediately prior to the effective time of the Domestication shall be converted into one (1) share of Acquiror Class A Common Stock, (ii) each Class B ordinary share of Acquiror outstanding immediately prior to the effective time of the Domestication shall be converted into one (1) share of Acquiror Class A Common Stock and (iii) the Governing Documents of the Acquiror shall be the Acquiror Certificate of Incorporation and the Acquiror Bylaws. For the avoidance of doubt, prior to Closing, Acquiror shall cause the Acquiror Bylaws to be in the form attached hereto as Exhibit B until thereafter amended in accordance with the provisions thereof, the Acquiror Certificate of Incorporation and the DGCL. The Company will reasonably cooperate with Acquiror with respect to the Domestication. Immediately following the completion of the Domestication, Acquiror shall file the Preferred COD in accordance with the DGCL with the Secretary of State of the State of Delaware.
2.02 The Merger. Upon the terms and subject to the conditions set forth in this Agreement, following the Domestication and in accordance with the DGCL, at the Effective Time, the Company shall be merged with and into Acquiror. As a result of the Merger, the separate corporate existence of the Company shall cease and Acquiror shall continue as the Surviving Company. At the Closing and following the Domestication, Acquiror shall file a certificate of merger with respect to the Merger in accordance with this Agreement and the DGCL (the “Certificate of Merger”) with the Secretary of State of the State of Delaware. The Merger shall become effective immediately upon filing of the Certificate of Merger (the “Effective Time”).
2.03 Effects of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers, franchises, licenses and authority of the Company shall vest in the Surviving Company, and all of the debts, liabilities, obligations, restrictions, disabilities and duties of the Company shall become the debts, liabilities, obligations, restrictions, disabilities and duties of the Surviving Company.
2.04 Closing. Subject to the terms and conditions of this Agreement, the closing of the Merger and the other Transactions contemplated by the Transaction Documents to be effected at or immediately prior to or immediately following the Effective Time or otherwise on the date of the Merger (the “Closing”) shall take place electronically through the exchange of documents via email or facsimile on the date which is five (5) Business Days after the date on which all conditions set forth in Article IX shall have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver thereof) or such other time and place as Acquiror and the Company may mutually agree in writing. The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date.” Subject to the satisfaction or waiver of all of the conditions set forth in Article IX of this Agreement, and provided this Agreement has not theretofore been terminated pursuant to its terms, on the Closing Date, Acquiror shall cause the Certificate of Merger to be executed, acknowledged and filed with the Secretary of State of the State of Delaware as provided in Sections 251 and 103 of the DGCL.
2.05 Governing Documents. At the Effective Time:
(a) the Acquiror Certificate of Incorporation shall become the certificate of incorporation of the Surviving Company until thereafter supplemented or amended in accordance with its terms and the DGCL, except that references to the name of Acquiror shall be replaced with references to the name of the Company (the “Surviving Company Certificate of Incorporation”); and
(b) the Acquiror Bylaws shall become the bylaws of the Surviving Company until thereafter supplemented or amended in accordance with its terms, the Surviving Company Certificate of Incorporation and the DGCL (subject to Section 7.01), except that references to the name of Acquiror shall be replaced with references to the name of the Company (the “Surviving Company Bylaws”).
2.06 Directors and Officers of the Surviving Company. Except as otherwise agreed in writing by the Company and Acquiror prior to the Closing, Acquiror shall take all actions necessary or appropriate to cause the individuals set forth on Schedule 2.06 (the “Designated Individuals”) to be members of the board of directors of the Surviving Company (the “Surviving Company Board”), and the officers of the Surviving Company as of immediately following the Effective Time to be comprised of the individuals set forth on Schedule 2.06 effective as of the Closing, each to hold office in accordance with the DGCL and the Surviving Company Certificate of Incorporation, the Surviving Company Bylaws and the Stockholders’ Agreement and until their respective successors are, in the case of the directors, duly elected or appointed and qualified and, in the case of the officers, duly appointed;
Annex A-21
Table of Contents
provided that, in each case, (a) there are no material changes after the date of this Agreement with respect to a Designated Individual such that such Designated Individual is ineligible to serve on the Surviving Company Board or as an officer of the Surviving Company, as applicable, under applicable Laws and listing requirements and (b) such Designated Individual remains willing to serve on the Surviving Company Board or as an officer of the Surviving Company, as applicable. If the Company wishes to designate any individual, other than a Designated Individual, to be a member of the Surviving Company Board or an officer of the Surviving Company, in each case, as of immediately following the Effective Time, Acquiror shall take all actions necessary or appropriate to cause such individual to be a member of the Surviving Company Board or an officer of the Surviving Company up to the maximum number specified in the Surviving Company Certificate of Incorporation and Surviving Company Bylaws if so specified; provided that (x) such individual is not ineligible to serve on the Surviving Company Board or as an officer of the Surviving Company, as applicable, under applicable Laws and listing requirements, (y) such individual is willing to serve on the Surviving Company Board or as an officer of the Surviving Company, as applicable, and (z) in the case of an individual designated to be a member of the Surviving Company Board, such designation complies with the terms of the Stockholders’ Agreement, which compliance will be determined by delivery by the Company of a certificate to that fact.
Article III
CONVERSION OF SECURITIES; EXCHANGE OF COMPANY SECURITIES
3.01 Conversion of Securities.
(a) Conversion of Company Preferred Stock. At the Effective Time, by virtue of the Merger and without any action on the part of Acquiror, the Company or Company Stockholders, each share of Company Preferred Stock that is issued and outstanding immediately prior to the Effective Time (other than the Dissenting Shares and the Cancelled Shares) shall be converted into the right to receive an amount in cash, without interest, equal to the Per Share Preferred Stock Cash Consideration. All of the shares of Company Preferred Stock converted into the right to receive consideration as described in this Section 3.01(a) shall no longer be outstanding and shall cease to exist, and each holder of shares of Company Preferred Stock shall thereafter cease to have any rights with respect to such securities, except the right to receive the Per Share Preferred Stock Cash Consideration into which such share of Company Preferred Stock shall have been converted.
(b) Conversion of Company Common Stock. At the Effective Time, by virtue of the Merger and without any action on the part of Acquiror, the Company or Company Stockholders, each share of Company Common Stock (other than Treasury Stock or shares of Company Common Stock held by Acquiror) that is issued and outstanding immediately prior to the Effective Time (other than the Dissenting Shares and the Cancelled Shares) shall be converted into the right to receive (A) subject to the provisions of Annex I, the contingent right to receive a number of Earnout Shares following the Closing in accordance with Section 3.07 and Annex I, (B) the following:
(i) if the holder of such share of Company Common Stock makes a proper and timely election in accordance with Section 3.02 to receive cash (a “Cash Election”) with respect to such share of Company Common Stock, which election has not been revoked pursuant to Section 3.02 (each such share, a “Cash Electing Share”), an amount in cash for such Cash Electing Share, without interest, equal to the Per Share Merger Consideration Value (the ”Per Share Cash Election Consideration”); provided, however, that if (A) the sum of the aggregate number of Dissenting Shares and the aggregate number of Cash Electing Shares, multiplied by (B) the Per Share Cash Election Consideration (such product, the “Aggregate Cash Election Amount”) exceeds the Cash Election Consideration Cap, then each Cash Electing Share shall be converted into the right to receive (1) an amount in cash, without interest, equal to the product of (aa) the Per Share Cash Election Consideration and (bb) a fraction, the numerator of which shall be the Cash Election Consideration Cap and the denominator of which shall be the Aggregate Cash Election Amount (such fraction, the “Cash Fraction”) and (2) a number of validly issued, fully paid and nonassessable shares of Applicable Surviving Company Common Stock equal to the product of (x) the Per Share Stock Consideration and (y) one (1) minus the Cash Fraction; and
(ii) if the holder of such share makes a proper election to receive shares of Applicable Surviving Company Common Stock (a “Stock Election”) with respect to such share of Company Common Stock, which election has not been revoked pursuant to Section 3.02, or the holder of such share fails to make a Cash Election or Stock Election with respect to such share in accordance with the procedures set forth in Section 3.02, the Per Share Stock Consideration; and
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(C) the Per Share Forfeited Share Consideration.
All of the shares of Company Common Stock converted into the right to receive consideration as described in this Section 3.01(b) shall no longer be outstanding and shall cease to exist, and each holder of shares of Company Common Stock shall thereafter cease to have any rights with respect to such securities, except the right to receive the applicable consideration described in this Section 3.01(b) into which such share of Company Common Stock shall have been converted. Notwithstanding the foregoing, the Atairos Preferred Exchange Shares shall be converted, in the aggregate, into the right to receive a number of shares of Acquiror Preferred Stock having an aggregate initial liquidation preference equal to the Preferred Exchange Amount (the “Closing Preferred Stock Consideration”).
(c) Treasury Stock and Company Common Stock held by Acquiror. At the Effective Time, by virtue of the Merger and without any action on the part of any holder thereof, (i) each share of Company Common Stock and each share of Company Preferred Stock held in the treasury of the Company and (ii) each share of Company Common Stock held by Acquiror shall, in each case, be canceled without any conversion thereof and no payment or distribution shall be made with respect thereto (such Company Shares, the “Cancelled Shares”).
(d) Cancellation of Company Options.
(i) Prior to the Effective Time, the Company shall provide each holder of Company Options (other than the Tranche 2 Options) (each a “Participating Company Option”) with the opportunity to elect, pursuant to such procedures as the Company shall reasonably determine, (i) whether to have the provisions of Section 3.01(d)(i)(1) apply, (ii) whether to have the provisions of Section 3.01(d)(i)(2) apply or (iii) whether to have the provisions of Section 3.01(e) apply. To the extent a holder of a Participating Company Option does not make an election, then Section 3.01(d)(i)(2) shall apply to such Participating Company Option. At the Effective Time, each Participating Company Option that is outstanding immediately prior to the Effective Time for which the holder of such Participating Company Option has elected to have the provisions of this Section 3.01(d)(i)(1) or Section 3.01(d)(i)(2) apply, or for which such holder does not make an election, shall be cancelled (each, a “Cancelled Option”) in consideration for the right to receive (A) subject to the provisions of Annex I, the contingent right to receive a number of Earnout Shares following the Closing in accordance with Section 3.07 and Annex I and (B) the following:
(1) if the holder of such Cancelled Option elects to have the provisions of Section 3.01(d)(i)(1) apply (an “Option Cash Election”) with respect to such Cancelled Option (each such Cancelled Option, a “Cash Electing Option”), an amount in cash for such Cash Electing Option, without interest, equal to the Option Spread with respect to such Cash Electing Option, except that if the aggregate Option Spread with respect to all Cash Electing Options exceeds the Option Election Consideration Cap, then the amount of cash payable with respect to such Cash Electing Option shall be reduced on a prorated basis, and the amount of such Option Spread that is not payable in cash due to such reduction shall be paid to such holder in a number of validly issued, fully paid and nonassessable shares of Applicable Surviving Company Common Stock equal to (x) such amount that is not payable in cash divided by (y) $10; and
(2) if the holder of such Cancelled Option elects to have the provisions of Section 3.01(d)(i)(2) apply (an “Option Stock Election”) with respect to such Company Option, or the holder of such Cancelled Option fails to make an Option Cash Election or Option Stock Election with respect to such Cancelled Option, a number of validly issued, fully paid and nonassessable shares of Applicable Surviving Company Common Stock equal to (x) the Option Spread with respect to such Cancelled Option divided by (y) $10.
(ii) At the Effective Time, each Tranche 2 Option that is outstanding immediately prior to the Effective Time shall be cancelled without payment to the holder thereof.
(iii) Prior to the Effective Time, the Company shall take all actions reasonably necessary to effect the transactions anticipated by this Section 3.01(d) under the Company Option Plan and any Contract applicable to any Company Option (whether written or oral, formal or informal), including delivering all required notices, obtaining all necessary approvals and consents, and delivering evidence reasonably satisfactory to Acquiror that all necessary determinations by the Company Board or applicable committee thereof to cancel Company Options in accordance with this Section 3.01(d) have been made.
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(e) Assumption of Company Options.
(i) At the Effective Time, each Participating Company Option that is outstanding immediately prior to the Effective Time for which the holder of such Participating Company Option has elected to have the provisions of this Section 3.01(e) apply shall be assumed by the Surviving Company and converted into (A) an option to purchase shares of Applicable Surviving Company Common Stock (each, a “Converted Option”) and (B) the contingent right to receive a number of Earnout Shares following the Closing in accordance with Section 3.07 and Annex I.
(ii) Each Converted Option will be issued under the Company Option Plan and will have and be subject to the same terms and conditions as were applicable to the applicable Participating Company Option immediately before the Effective Time, except that (A) from the Effective Time, each Converted Option will be fully vested and immediately exercisable for that number of shares of Applicable Surviving Company Common Stock equal to the product (rounded down to the nearest whole number) of (x) the number of shares of Company Common Stock subject to the Company Option immediately before the Effective Time and (y) the Per Share Stock Consideration; and (B) the per share exercise price for each share of Applicable Surviving Company Common Stock issuable upon exercise of the Converted Option will be equal to the quotient (rounded up to the nearest whole cent) obtained by dividing (x) the exercise price per share of Company Common Stock of such Company Option immediately before the Effective Time by (y) the Per Share Stock Consideration; provided, however, that the exercise price and the number of shares of Applicable Surviving Company Common Stock purchasable under each Converted Option will be determined in a manner consistent with the requirements of Section 409A of the Code and the applicable regulations promulgated thereunder.
(iii) In connection with the assumption of the Converted Options pursuant to this Section 3.01(e), the Company and Acquiror shall cause the Surviving Company to assume the Company Option Plan as of the Effective Time. Prior to the Effective Time, the Company shall take all actions reasonably necessary to effect the transactions anticipated by this Section 3.01(e) under the Company Option Plan and any Contract applicable to any Company Option (whether written or oral, formal or informal), including delivering all required notices, obtaining all necessary approvals and consents, and delivering evidence reasonably satisfactory to Acquiror that all necessary determinations by the Company Board or applicable committee thereof to assume and convert Company Options in accordance with this Section 3.01(e) have been made.
(f) Treatment of Acquiror Class A Common Stock. At the Effective Time, by virtue of the Merger and without any action on the part of any holder thereof, each share of Acquiror Class A Common Stock issued and outstanding immediately prior to the Effective Time shall remain outstanding as an issued and outstanding share of the Surviving Company Class A Common Stock and each share of Acquiror Preferred Stock issued and outstanding immediately prior to the Effective Time shall remain outstanding as an issued and outstanding share of the Surviving Company Preferred Stock. For the avoidance of doubt, immediately prior to the Effective Time (after effectiveness of the Domestication), there shall be no outstanding Acquiror Class B Common Stock.
3.02 Consideration Election Procedure.
(a) On or prior to the Election Date, each Company Stockholder entitled to receive consideration pursuant to Section 3.01(b) shall be entitled to specify the number of such holder’s shares of Company Common Stock (other than Atairos Preferred Exchange Shares) with respect to which such holder makes a Cash Election or a Stock Election by complying with the procedures set forth in this Section 3.02.
(b) Acquiror shall prepare and file as an exhibit to the Registration Statement, a form of election (the “Form of Election”) in form and substance reasonably acceptable to the Company. Acquiror shall cause the Exchange Agent to mail or otherwise deliver the Form of Election to each holder of record (as of such mailing) of Company Common Stock no later than the earlier of: (i) five (5) days following the effectiveness of the Registration Statement and (ii) twenty (20) days prior to the Election Date. Each Company Stockholder entitled to receive consideration pursuant to Section 3.01(b) may use the Form of Election to make a Cash Election or a Stock Election. In the event that any such Company Stockholder fails to make a Cash Election or a Stock Election with respect to any or all Company Common Stock held or beneficially owned by such holder (other than Atairos Preferred Exchange Shares), then such holder shall be automatically deemed to have made a Stock Election with respect to those shares.
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(c) Any applicable Company Stockholder’s election pursuant to the Form of Election will be deemed properly made only if the Exchange Agent has received at its designated office, by 5:00 p.m. (New York time) on the Business Day that is two (2) Business Days prior to the Closing or such other date as Acquiror and the Company will, prior to the Closing, mutually agree (the “Election Date”), a Form of Election properly completed and signed in accordance with the instructions therein and any other properly completed and executed documents required to be delivered by such Company Stockholder pursuant to this Agreement. Acquiror and the Company shall publicly announce the anticipated Election Date at least ten (10) Business Days prior to the anticipated Election Date. If the Closing Date is delayed to a subsequent date, the Election Date shall be similarly delayed to a subsequent date, and Acquiror and the Company shall promptly announce any such delay and, when determined, the rescheduled Election Date; provided, that such subsequent announcement may be made five (5) Business Days prior to the Election Date.
(d) Any Form of Election may be revoked or changed by the person submitting it, by written notice received by the Exchange Agent prior to the Election Date. In the event a Form of Election is validly revoked prior to the Election Date, the holders of the shares of Company Common Stock represented by such Form of Election shall be deemed to have made a Stock Election with respect to those shares, except to the extent a subsequent election is properly made prior to the Election Date. Any Cash Election or Stock Election as of the Election Date is final and irrevocable, unless (i) otherwise consented to in writing by the Company (which such consent may, in the Company’s sole discretion, be provided or denied), or (ii) this Agreement is validly terminated in accordance with Article X, in which case all Cash Elections and Stock Elections shall automatically be revoked concurrently with the termination of this Agreement. Without limiting the application of any other transfer restrictions that may otherwise exist, after a Cash Election or a Stock Election is validly made or deemed to be made with respect to any shares of Company Common Stock, no further registration of transfers of such shares shall be made on the stock transfer books of the Company until the Closing, unless and until such Cash Election or Stock Election is validly revoked in accordance with this Section 3.02.
(e) The Company shall have sole discretion to determine if a Cash Election or a Stock Election is not properly made, changed or revoked with respect to any shares of Company Common Stock (none of the Company, Acquiror, or the Exchange Agent being under any duty to notify any holder of Company Common Stock of any applicable defect). In the event the Company makes a reasonable determination that a Cash Election or a Stock Election was not properly made (including as a result of the Exchange Agent not receiving a Form of Election by the Election Deadline), such Cash Election or Stock Election shall be deemed to be ineffective, and the shares of Company Common Stock covered by such Cash Election or Stock Election shall, for purposes hereof, be deemed to have made a Stock Election.
3.03 Exchange of Company Securities.
(a) Exchange Agent. Prior to the Effective Time, Acquiror shall enter into an agreement (in form and substance reasonably satisfactory to the Company) with a bank or trust company that shall be designated by the Company and is reasonably satisfactory to Acquiror (the “Exchange Agent”) to act as exchange agent for the payment of consideration to each Company Stockholder entitled to receive such consideration pursuant to Section 3.01(b). On or prior to the Closing Date, Acquiror shall provide notice to the Exchange Agent, for the benefit of the holders of Company Common Stock, of the aggregate exchange of such holders’ Company Common Stock in accordance with this Article III for all of the Aggregate Closing Common Stock Consideration and for the Closing Preferred Stock Consideration, and shall deposit or cause to be deposited an amount in cash payable by Acquiror pursuant to Section 3.01(a), Section 3.01(b) and Section 3.03(h) and all of the Aggregate Closing Common Stock Consideration (such amount of cash and such shares of Applicable Surviving Company Common Stock hereinafter referred to as the “Exchange Fund”). Acquiror shall cause the Exchange Agent, pursuant to irrevocable instructions, to pay the amount in cash payable by Acquiror pursuant to Section 3.01(a), Section 3.01(b) and Section 3.03(h) or the Per Share Stock Consideration or Closing Preferred Stock Consideration, as applicable, out of the Exchange Fund in accordance with the applicable provisions contained in this Agreement. The Exchange Fund shall not be used for any other purpose. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Acquiror; provided that such investments shall be in obligations of or guaranteed by the United States of America in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively, in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the foregoing and, in any such case, no such instrument shall have a maturity exceeding three
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(3) months. To the extent such fund increases for any reason above the level required to make prompt payment of any outstanding Per Share Preferred Stock Cash Consideration to be paid pursuant to Section 3.01(a) or Per Share Cash Election Consideration to be paid in pursuant to Section 3.01(b)(i), the Surviving Company shall, following such prompt payment, be the sole owner of any amounts left over in such Exchange Fund.
(b) Exchange Procedures. Concurrently with the mailing or other delivery of the Form of Election, Acquiror shall direct the Exchange Agent to mail to each holder of Company Common Stock or Company Preferred Stock entitled to receive the Per Share Stock Consideration, the Per Share Preferred Stock Cash Consideration, the Per Share Cash Election Consideration or the Closing Preferred Stock Consideration, as applicable, pursuant to Section 3.01, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and the risk of loss and title shall pass, only upon proper transfer of each share to the Exchange Agent, and which letter of transmittal will be in customary form and have such other provisions as mutually agreed to by the Company and Acquiror) for use in such exchange (each, a “Letter of Transmittal”). Each holder of shares of Company Common Stock and Company Preferred Stock that have been converted into the right to receive the Per Share Stock Consideration, the Per Share Preferred Stock Cash Consideration, the Per Share Cash Election Consideration or the Closing Preferred Stock Consideration, as applicable, pursuant to Section 3.01, shall be entitled to receive such Per Share Stock Consideration, the Per Share Preferred Stock Cash Consideration, the Per Share Cash Election Consideration or the Closing Preferred Stock Consideration, as applicable, upon receipt of a duly completed and validly executed Letter of Transmittal and such other documents as may reasonably be requested by the Exchange Agent. If a Company Stockholder has delivered to the Exchange Agent a properly completed and executed Form of Election and Letter of Transmittal in accordance with Section 3.02 and this Section 3.03 prior to the Closing Date, Acquiror shall cause the Exchange Agent to deliver to such Company Stockholder on the Closing Date the Per Share Stock Consideration, the Per Share Preferred Stock Cash Consideration, the Per Share Cash Election Consideration or the Closing Preferred Stock Consideration, as applicable, into which such Company Stockholder’s Company Common Stock and Company Preferred Stock have been converted into the right to receive pursuant to Section 3.01. No interest shall be paid or accrued upon the transfer of any share.
(c) No Further Rights in Company Common Stock or Company Preferred Stock. The Per Share Stock Consideration, the Per Share Preferred Stock Cash Consideration, the Per Share Cash Election Consideration, the shares of Acquiror Preferred Stock and the Closing Preferred Stock Consideration, as applicable, payable upon conversion of the Company Shares in accordance with the terms hereof shall be deemed to have been paid and issued in full satisfaction of all rights pertaining to such Company Shares.
(d) Adjustments to Per Share Consideration. The Per Share Stock Consideration, the Per Share Preferred Stock Cash Consideration, the Per Share Cash Election Consideration or the Closing Preferred Stock Consideration shall be equitably adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend, subdivision, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to shares of Company Common Stock, Company Preferred Stock, Acquiror Class A Common Stock, Acquiror Class B Common Stock or the Acquiror Preferred Stock occurring on or after the date hereof and prior to the Effective Time (including any of the foregoing in connection with the Domestication); provided, however, that this Section 3.03(d) shall not be construed to permit Acquiror or the Company to take any action with respect to their respective securities that is prohibited by the terms and conditions of this Agreement.
(e) Termination of Exchange Fund. Any portion of the Exchange Fund that remains undistributed to the holders of Company Common Stock for one-year after the Effective Time shall be delivered to the Surviving Company, upon demand, and any holders of Company Shares who have not theretofore complied with this Section 3.03 shall thereafter look only to the Surviving Company for the Per Share Stock Consideration, the Per Share Preferred Stock Cash Consideration, the Per Share Cash Election Consideration or the Closing Preferred Stock Consideration, as applicable. Any portion of the Exchange Fund remaining unclaimed by holders of Company Shares as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Authority shall, to the extent permitted by applicable Law, become the property of the Surviving Company free and clear of any claims or interest of any person previously entitled thereto.
(f) No Liability. Neither the Exchange Agent nor the Surviving Company shall be liable to any holder of Company Shares for any such Company Shares (or dividends or distributions with respect thereto) or cash delivered to a public official pursuant to any abandoned property, escheat or similar Law in accordance with this Section 3.03.
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(g) Withholding Rights. Notwithstanding anything in this Agreement to the contrary, each of the Surviving Company, the Company and the Exchange Agent shall be entitled to deduct and withhold from amounts (including shares, options or other property) otherwise payable, issuable or transferable pursuant to this Agreement to any holder of Company Options or Company Shares such amounts as it is required to deduct and withhold with respect to such payment, issuance or transfer under the Code or any provision of state, local or non U.S. Tax Law; provided, however, that, except as a result of a failure to deliver the IRS Form W-9 required under Section 8.04(d), before making any deduction or withholding pursuant to this Section 3.03(g), the Surviving Company and the Exchange Agent, as applicable, shall give the Company at least five (5) days prior written notice of any anticipated deduction or withholding (together with any legal basis therefor) to provide the Company with sufficient opportunity to provide any forms or other documentation or take such other steps in order to avoid such deduction or withholding and shall reasonably consult and cooperate with the Company in good faith to attempt to reduce or eliminate any amounts that would otherwise be deducted or withheld pursuant to this Section 3.03(g). To the extent that amounts are so deducted or withheld and timely paid to the applicable Governmental Authority in accordance with applicable Law, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid, issued or transferred to the holder of the Company Securities (or intended recipients of compensatory payments) in respect of which such deduction and withholding was made. In the case of any such payment payable to employees of the Company or its Affiliates in connection with the Merger treated as compensation, the parties shall cooperate to pay such amounts through the Company’s or its Subsidiary’s payroll to facilitate applicable withholding. To the extent that any withholding is required to be made with respect to consideration consisting of shares of Applicable Surviving Company Stock, the Surviving Company may take reasonable steps to satisfy its withholding obligation, including holding back shares and selling them in order to make required tax payments or alternatively conditioning delivery of such shares on the recipient paying sufficient cash to the Surviving Company to enable it to make the required tax payments.
(h) Fractional Shares. No certificates or scrip or shares representing fractional shares of Applicable Surviving Company Common Stock shall be issued upon the exchange of Company Common Stock and such fractional share interests will not entitle the owner thereof to vote or to have any rights of a stockholder of the Surviving Company or a holder of shares of Applicable Surviving Company Common Stock. Each holder of Company Common Stock who would otherwise have been entitled to receive a fraction of a share of Applicable Surviving Company Common Stock (after aggregating all fractional shares that would otherwise be received by such holders into whole shares) shall receive, in lieu thereof, an amount in cash equal to such fractional amount multiplied by the average weighted price per share of Acquiror Class A Common Stock on the NYSE (as reported by Bloomberg, L.P. or, if not reported by Bloomberg, L.P., in another authoritative source mutually selected by Acquiror and the Company) on each of the five (5) consecutive trading days ending with the last complete trading day prior to the Closing Date.
3.04 Stock Transfer Books. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of Company Shares thereafter on the records of the Company. From and after the Effective Time, the holders of Company Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Company Common Stock or Company Preferred Stock, except as otherwise provided in this Agreement or by Law.
3.05 Payment of Expenses.
(a) No sooner than five (5) nor later than two (2) Business Days prior to the Closing Date, the Company shall provide to Acquiror a written report setting forth a list of all of the following fees, costs, expenses and disbursements incurred by or on behalf of the Company in connection with or relating to the preparation, negotiation and execution of this Agreement and the consummation of the Transactions (together with the invoices and wire transfer instructions for the payment thereof), solely to the extent such fees and expenses are incurred and expected to remain unpaid as of the close of business on the Business Day immediately preceding the Closing Date: (i) the fees and disbursement of outside counsel incurred in connection with the Transactions, (ii) the fees and expenses of any other agents, advisors, accountants, consultants, experts, financial advisors and other service providers engaged by the Company in connection with the Transactions and (iii) transaction bonuses to the persons and in the amounts set forth on Schedule 3.05 (collectively, the “Outstanding Company Expenses”). On the Closing Date, following the Closing, the Surviving Company shall pay or cause to be paid, by wire transfer of immediately available funds, all such Outstanding Company Expenses.
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(b) No sooner than five (5) nor later than two (2) Business Days prior to the Closing Date, Acquiror shall provide to the Company a written report setting forth a list of all fees, costs, expenses and disbursements incurred by or on behalf of Acquiror or Sponsor for outside counsel, agents, advisors, accountants, consultants, experts, financial advisors and other service providers engaged by or on behalf of Acquiror or Sponsor incurred in connection with or relating to the preparation, negotiation and execution of this Agreement and the consummation of the Transactions (together with written invoices and wire transfer instructions for the payment thereof) (collectively, the “Outstanding Acquiror Expenses”). On the Closing Date, the Surviving Company shall pay or cause to be paid, by wire transfer of immediately available funds, all such Outstanding Acquiror Expenses. On the Closing Date, the Surviving Company shall repay in full the outstanding amount, without interest, due under all loans (if any) made by the Sponsor or any of its Affiliates to Acquiror that are incurred as expressly permitted by Section 7.02(a)(viii), by payment to the payee designated by the Sponsor by wire transfer of immediately available funds to the account designated by the Sponsor, and Acquiror shall cause all other loans, whether or not made by the Sponsor or its Affiliates, made to Acquiror to be forgiven in full effective as of Closing.
(c) Except as set forth in this Section 3.05 or elsewhere in this Agreement, all expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such expenses, whether or not the Merger or any other Transaction is consummated.
3.06 Appraisal Rights.
(a) Notwithstanding any provision of this Agreement to the contrary and to the extent available under the DGCL, Company Shares that are outstanding immediately prior to the Effective Time and that are held by Company Stockholders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have demanded properly in writing appraisal for such Company Shares in accordance with Section 262 of the DGCL and otherwise complied with all of the provisions of the DGCL relevant to the exercise and perfection of dissenters’ rights (such Company Shares, the “Dissenting Shares”) shall not be converted into, and such stockholders shall have no right to receive, the Per Share Stock Consideration, the Per Share Preferred Stock Cash Consideration, the Per Share Cash Election Consideration or the Closing Preferred Stock Consideration, as applicable, unless and until such stockholder fails to perfect or withdraws or otherwise loses his, her or its right to appraisal and payment under the DGCL. Any stockholder of the Company who fails to perfect or who effectively withdraws or otherwise loses his, her or its rights to appraisal of his, her or its Dissenting Shares under Section 262 of the DGCL shall thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive, (i) in the case of any Dissenting Shares which are Company Common Stock, the Per Share Stock Consideration, and (ii) in the case of any Dissenting Shares which are Company Preferred Stock, the Per Share Preferred Stock Cash Consideration, in each case, without any interest thereon.
(b) Prior to the Closing, the Company shall give Acquiror (i) prompt notice of any demands for appraisal received by the Company and any withdrawals of such demands, and (ii) the opportunity to participate in all negotiations and proceedings with respect to demands for appraisal under the DGCL. The Company shall not, except with the prior written consent of Acquiror (which consent shall not be unreasonably withheld, conditioned or delayed), make any payment with respect to any demands for appraisal or offer to settle or settle any such demands.
3.07 Earnout Shares. The Surviving Company will issue within five (5) Business Days following the occurrence of the $15.00 Share Price Milestone and/or the $17.50 Share Price Milestone, as applicable, to each holder of Company Common Stock that had immediately prior to the Effective Time an Earnout Pro Rata Portion exceeding zero (0) a number of shares of Applicable Surviving Company Common Stock in accordance with Annex I hereto. In accordance with Annex I hereto, within five (5) Business Days following the Closing Date, the Surviving Company will issue under the Acquiror Omnibus Incentive Plan to each holder of Company Options (other than Thomas F. Shannon and his Permitted Transferees (as defined in the Stockholders’ Agreement)) that had immediately prior to the Effective Time an Earnout Pro Rata Portion exceeding zero (0) a number of Earnout Shares assuming the achievement of the $15.00 Share Price Milestone and the $17.50 Share Price Milestone, and based on the holder’s Earnout Pro Rata Portion, which Earnout Shares shall be subject to forfeiture to the extent the $15.00 Share Price Milestone and the $17.50 Share Price Milestone, as applicable, are not achieved within the timeframe set forth in Annex I. The issuance of the Earnout Shares or vesting of Earnout Shares, as applicable, shall be subject to withholding pursuant to Section 3.03(g). Notwithstanding anything contained herein to the contrary, except as otherwise agreed in writing by the Company or determined by the Surviving Company Board, (a) if any Non-Stockholder Earnout Holder is not employed by a Group Company on the $15.00 Share Price Milestone
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Date then such Non-Stockholder Earnout Holder’s Earnout Shares shall be forfeited prior to vesting and shall be reallocated to the Stockholder Earnout Holders in accordance with their respective Stockholder Earnout Pro Rata Portion (and such additional Earnout Shares shall be deemed to be part of such Stockholder Earnout Holders’ respective Earnout Pro Rata Portion for purposes of Annex I) and (b) if any Non-Stockholder Earnout Holder is not employed by a Group Company on the $17.50 Share Price Milestone Date then such Non-Stockholder Earnout Holder’s $17.50 Earnout Shares shall be forfeited prior to vesting and shall be reallocated to the Stockholder Earnout Holders in accordance with their respective Stockholder Earnout Pro Rata Portion (and such additional Earnout Shares shall be deemed to be part of such Stockholder Earnout Holders’ respective Earnout Pro Rata Portion for purposes of Annex I). The parties intend that none of the rights to receive the Earnout Shares and any interest therein shall be deemed to be a “security” for purposes of any securities Law of any jurisdiction. The right to receive the Earnout Shares are deemed contractual rights in connection with the Merger and the parties do not view the right to receive the Earnout Shares as an investment by the holders thereof. The right to receive the Earnout Shares will not be represented by any physical certificate or similar instrument. The right to receive the Earnout Shares does not represent an equity or ownership interest in any entity. No interest in the right to receive the Earnout Shares may be sold, transferred assigned, pledged, hypothecated, encumbered or otherwise disposed of, except by operation of law, and any attempt to do so shall be null and void. For the avoidance of doubt, once issued, the Earnout Shares shall be considered a “security” for purposes of any securities Law of any jurisidiction and the restrictions set forth in the foregoing sentence shall not apply to such issued Earnout Shares.
Article IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as qualified by the Schedules in accordance with (and subject to) Section 11.07, the Company represents and warrants to Acquiror as follows:
4.01 Corporate Organization of the Company; Subsidiaries.
(a) The Company is duly incorporated, is validly existing and in good standing under the Laws of Delaware. The Company has the requisite corporate power and authority to own, lease or operate all of its assets and properties and to conduct its business as it is now being conducted, except, in each case, as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Governing Documents of the Company, as previously delivered by the Company to Acquiror, are true, correct and complete and are in effect as of the date of this Agreement. The Company is, and at all times has been, in compliance in all material respects with all restrictions, covenants, terms and provisions set forth in its Governing Documents. The Company is duly licensed or qualified and in good standing as a foreign corporation in all jurisdictions in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified, except where failure to be so licensed or qualified has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) A complete list of each Subsidiary of the Company and its jurisdiction of incorporation, formation or organization, as applicable, as of the date hereof is set forth on Schedule 4.01(b). The Subsidiaries of the Company have been duly formed or organized and are validly existing and in good standing under the Laws of their jurisdiction of formation or organization and have the requisite power and authority to own, lease or operate all of their respective assets and properties and to conduct their respective businesses as they are now being conducted, except, in each case, as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. True, correct and complete copies of the Governing Documents of the Company’s Subsidiaries, have been previously made available to Acquiror by the Company, and are in effect as of the date of this Agreement. Each Subsidiary of the Company is, and at all times have been, in compliance in all material respects with all restrictions, covenants, terms and provisions set forth in their respective Governing Documents. Each Subsidiary of the Company is duly licensed or qualified as a foreign corporation (or other entity, if applicable) in each jurisdiction in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified, except where the failure to be so licensed or qualified has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
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4.02 Due Authorization.
(a) The Company has all requisite corporate and entity power and authority to execute and deliver this Agreement and each other Transaction Document to which it is a party and to perform its obligations hereunder and thereunder, as applicable, and to consummate the Transactions. The execution, delivery and performance of this Agreement and such Transaction Document by the Company and the consummation of the Transactions has been duly and validly authorized and approved by the Company Board and, except for the Company Stockholder Approval, no other company or corporate proceeding on the part of the Company is or will be necessary to authorize this Agreement and each Transaction Document to which the Company is or will be a party and the Transactions. The Company Stockholder Approval is the only vote or approval of the holders of any class or series of capital stock of the Company necessary to adopt this Agreement and any Transaction Document and to approve the Transactions. This Agreement has been, and each Transaction Document to which the Company is or will be a party has been or will be on or prior to Closing, duly and validly executed and delivered by the Company and, assuming due authorization and execution by each other party hereto and/or thereto, as applicable, constitutes, or on or prior to Closing, as applicable, will constitute a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
(b) On or prior to the date of this Agreement, the Company Board has duly adopted resolutions (i) determining that this Agreement and/or the other Transaction Documents to which the Company is or will be a party and the Transactions are advisable and fair to, and in the best interests of, the Company and its stockholders and (ii) authorizing and approving the execution, delivery and performance by the Company of each such Transaction Document and the consummation of the Transactions.
4.03 No Conflict. Subject to the receipt of the Company Stockholder Approval and the consents, approvals, authorizations and other requirements set forth in Section 4.04 or on Schedule 4.03, the execution, delivery and performance of this Agreement and each Transaction Document to which a Group Company is a party and the consummation of the Transactions do not and will not (a) conflict with or violate any provision of, or result in the breach of, the certificate of formation, bylaws or other Governing Documents of such Group Company, (b) conflict with or result in any violation of any provision of any Law, Permit or Governmental Order applicable to such Group Company, or any of its properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, or result in the acceleration or trigger of any payment, posting of collateral (or right to require the posting of collateral), time of payment, vesting or increase in the amount of any compensation or benefit payable pursuant to, any of the terms, conditions or provisions of any Contract, or any Real Property document to which such Group Company is a party or by which any of its assets or properties may be bound or affected or (d) result in the creation of any Lien upon any of the properties, equity interests or assets of such Group Company, except (in the case of clauses (b), (c) or (d) above) for such violations, conflicts, breaches or defaults which has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
4.04 Governmental Authorities; Consents. No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority or notice, approval, consent waiver or authorization from any Governmental Authority is required on the part of the Group Companies with respect to any Group Company’s execution, delivery or performance of this Agreement or the other Transaction Documents to which it is a party or the consummation of the Transactions, except for (a) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (b) applicable requirements of the HSR Act and any other applicable Antitrust Law and (c) any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
4.05 Capitalization.
(a) The entire authorized capital stock of the Company consists of 20,000,000 shares of Company Common Stock, 5,911,428 shares of which are issued and outstanding as of the date of this Agreement, and 200,000 shares of Company Preferred Stock, of which 150,000 shares are designated as Company Series A Preferred
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Stock and of which 106,378 shares are issued and outstanding as of the date of this Agreement. All of the issued and outstanding shares of Company Common Stock and Company Series A Preferred Stock (i) have been duly authorized and validly issued and are fully paid and nonassessable, (ii) were issued in compliance in all material respects with applicable Securities Laws, (iii) were not issued in breach or violation of any preemptive rights or Contract and (iv) are fully vested (to the extent such concept is applicable).
(b) Schedule 4.05(b) lists as of the date of this Agreement (i) each outstanding Company Option, including grant date, number of shares of Company Common Stock subject to the Company Option and exercise price. Other than the Company Options and the Company Preferred Stock, there are (x) no subscriptions, calls, options, warrants, rights or other securities (including debt securities) convertible into or exchangeable or exercisable for shares of Company Common Stock or the equity interests of the Company, or any other Contracts to which the Company is a party or by which the Company is bound, or any other commitment, calls, conversion rights, rights of exchange or other agreements of any character to which the Company is bound providing for the issuance or sale of any shares of capital stock of, other equity interests in, the Company, or the value of which is determined by reference to shares of capital stock, other equity interest in, the Company, and, except as set forth on Schedule 4.05(b), there are no voting trusts, proxies or agreements of any kind which may obligate the Company to issue, purchase, register for sale, redeem or otherwise acquire any shares of capital stock, other equity interest in or debt securities of, the Company and (y) no equity equivalents, stock appreciation rights, phantom stock ownership interests or similar rights in the Company. As of the date hereof, there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any securities or equity interests of the Company. There are no outstanding bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which the Company’s stockholders may vote.
(c) As of the date hereof, the outstanding shares of capital stock or other equity interests of the Company’s Subsidiaries (i) have been duly authorized and validly issued and are fully paid and nonassessable, (ii) were duly issued in compliance in all material respects with applicable Securities Laws, (iii) were not issued in breach or violation of any preemptive rights or Contract and (iv) are fully vested. There are (A) no subscriptions, options, warrants, calls, rights or other securities (including debt securities) convertible into or exchangeable or exercisable for the equity interests of the Company’s Subsidiaries, or any other commitments, calls, conversion rights, rights of exchange other agreement of any character to which any of the Company’s Subsidiaries is bound providing for the issuance or sale any shares of capital stock of, other equity interests in or debt securities of, such Subsidiaries or the value of which is determined by reference to shares or other equity interest of such Subsidiaries, and, except as set forth on Schedule 4.05(c), there are no voting trusts, proxies or agreements of any kind which may obligate any Subsidiary of the Company to issue, purchase, register for sale, redeem or otherwise acquire any of its capital stock, and (B) no equity equivalents, stock appreciation rights, phantom stock ownership interests or similar rights in the Company’s Subsidiaries. As of the date hereof, there are no outstanding contractual obligations of the Company’s Subsidiaries to repurchase, redeem or otherwise acquire any securities or equity interests of the Company’s Subsidiaries. Except as set forth on Schedule 4.05(c), there are no outstanding bonds, debentures, notes or other indebtedness of the Company’s Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which the such Subsidiaries’ stockholders may vote. Except as forth on Schedule 4.05(c), the Company’s Subsidiaries are not party to any stockholders agreement, voting agreement or registration rights agreement relating to the equity interests of the Company’s Subsidiaries.
(d) Except as set forth on Schedule 4.05(d), the Company is the direct or indirect owner of, and has good and marketable direct or indirect title to, all the issued and outstanding shares of capital stock or equity interests of its Subsidiaries free and clear of any Liens other than Permitted Liens. Except as set forth on Schedule 4.05(d), there are no options or warrants convertible into or exchangeable or exercisable for the equity interests of the Company’s Subsidiaries.
(e) The Company has reserved 2,036,158 shares of Company Common Stock for issuance under the Company Option Plan.
(f) The Company Common Stock and the Company Series A Preferred Stock have the rights, preferences, privileges and restrictions set forth in the Governing Documents.
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4.06 Financial Statements.
(a) Attached as Schedule 4.06 are (a) (i) true and complete copies of the audited consolidated balance sheets of the Group Companies as of June 30, 2019 and as of June 28, 2020 (the “Last Audited Balance Sheet Date”) and the audited consolidated statements of operations, statements of comprehensive loss, statements of cash flows and statements of stockholders’ equity of the Group Companies for the same period, together with the auditor’s reports thereon and (ii) the audited consolidated balance sheet of the Company as of June 30, 2019 and June 28, 2020, and the related audited consolidated statements of operations, comprehensive loss, cash flows, redeemable convertible preferred stock, redeemable common stock and stockholders’ equity of the Company and for the years then ended, in each case, prepared in accordance with GAAP and Regulation S-X and audited in accordance with the auditing standards of the PCAOB (collectively, the “Audited Financial Statements”) and (b) true and complete copies of the unaudited consolidated balance sheets of the Group Companies as of March 28, 2021 (the “Last Unaudited Balance Sheet Date”) and of the unaudited consolidated statement of operations and statement of cash flows of the Group Companies as of March 28, 2021 (the “Unaudited Financial Statements” and, together with the Audited Financial Statements, the “Financial Statements”). The Financial Statements were prepared in accordance with GAAP applied on a consistent basis for the periods involved and fairly present, in all material respects, the consolidated financial position, results of operations, income (loss), changes in equity and cash flows of the Group Companies as of the dates and for the periods indicated in such Financial Statements (except, in the case of the Unaudited Financial Statements, for the absence of footnotes and other presentation items and subject to normal and recurring year-end adjustments) and were derived from, and accurately reflect in all material respects, the books and records of the Group Companies. The Unaudited Interim Financial Statements when delivered by the Group Companies for inclusion in the Proxy Statement for filing with the SEC following the date of this Agreement in accordance with Section 8.03(a), will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(b) For the last three years, the books and records of each of the Group Companies have been, and are being, maintained in all material respects in accordance with applicable legal and accounting requirements. To the knowledge of the Company, the books of account and other financial records of the Group Companies for the last three years: (i) reflect all material items of income and expense and all material assets and liabilities required to be reflected therein in accordance with GAAP applied on a consistent basis; (ii) are in all material respects true, correct and complete; and (iii) do not contain or reflect any material inaccuracies or discrepancies.
(c) The Group Companies’ system of internal controls over financial reporting is sufficient to provide reasonable assurance in all material respects that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP. The accounting controls of the Group Companies are sufficient to provide reasonable assurances in all material respects that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit the accurate preparation of financial statements in accordance with GAAP, (C) access to the general ledger of the Group Companies is permitted only in accordance with management’s general or specific authorizations, (D) in the past two years, to the knowledge of the Company, there has not been any significant deficiency or material weakness in the accounting controls used by the Group Companies and (E) to the knowledge of the Company, in the past two years, there has not been any fraud or wrongdoing by any employee of the Group Companies who has or had a material role in the preparation of financial statements or the internal accounting controls used by the Group Companies. Since June 28, 2020, to the Company’s knowledge, none of the Group Companies has received or otherwise had or obtained any complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Group Companies or their respective internal accounting controls that would reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. No attorney representing any of the Group Companies, whether or not employed by any of the Group Companies, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by any of the Group Companies or any of their respective representatives to the Company Board or any committee thereof or to any director or officer of the Company that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
4.07 Undisclosed Liabilities. There is no Liability of any of the Group Companies, except for Liabilities (a) reflected or reserved for on the Financial Statements or disclosed in the notes thereto, (b) that have arisen since the date of the most recent balance sheet included in the Unaudited Financial Statements in the ordinary course of
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business of the Group Companies, (c) that are Outstanding Company Expenses, (d) that arise under any Contract that relate to obligations that have not yet been performed, and are not yet required to be performed, (e) arising under this Agreement or the performance by the Company of its obligations hereunder, (f) that have not had and would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or (g) disclosed in Schedule 4.07.
4.08 Litigation and Proceedings. As of the date hereof, there are no pending or, to the knowledge of the Company, threatened, Actions and, to the knowledge of the Company, there are no pending or threatened investigations or inquiries, in each case, against any of the Group Companies, or otherwise affecting any of the Group Companies or their assets, including any condemnation or similar proceedings, that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. As of the date hereof, neither the Group Companies nor any property, asset or business of any the Group Companies is subject to or bound by any Governmental Order, or, to the knowledge of the Company, any continuing investigation by, any Governmental Authority, in each case that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. As of the date hereof, there is no unsatisfied judgment or any open injunction binding upon a Group Company that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
4.09 Compliance with Laws.
(a) The Group Companies are and, since the Last Audited Balance Sheet Date, have been in compliance with and not in conflict with, or in default or violation of, the Laws applicable to each of the Group Companies, including Anti-Corruption Laws, in each case except to the extent that the failure to comply therewith has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. For the past three (3) years, none of the Group Companies has received any written notices of violation or non-compliance with respect to any Laws applicable to it, other than as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) In the last five (5) years, none of the Group Companies nor any of their respective officers, nor to the knowledge of the Company, any employees, agents, representatives, consultants, partners, licensors and subcontractors or any other Person acting on their behalf, has, directly or indirectly, (i) made, promised, offered or authorized (A) any unlawful payment or the unlawful transfer of anything of value, directly or indirectly, to any government official, employee or agent, political party or any official of such party, or political candidate or (B) any unlawful bribe, rebate, influence payment, kickback or similar unlawful payment or (ii) violated any Anti-Corruption Law applicable to the any of the Group Companies, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Group Companies with respect to the Anti-Corruption Laws is pending or, to the knowledge of the Company, threatened or being investigated.
(c) In the last three (3) years, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, none of the Group Companies nor any of their respective officers, nor to the knowledge of the Company, any employees, agents, representatives, consultants, partners, licensors and subcontractors or any other Person acting on their behalf, has violated any applicable Anti-Money Laundering Law, and no action, investigation, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Group Companies with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(d) None of the Group Companies nor any of their respective officers or employees, nor to the knowledge of Company, any agents, representatives, consultants, partners, licensors and subcontractors or any other Person acting on their behalf is currently, or has been in the past five (5) years, (i) a Sanctioned Person, (ii) knowingly transacting any business directly or indirectly with any Sanctioned Person in violation of Sanctions or (iii) taking any action that would cause a Group Company to violate any Sanctions. No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving a Group Company with respect to Sanctions is pending or, to the knowledge of the Company, threatened or being investigated. The Group Companies have all Permits necessary for the lawful conduct of their respective businesses as presently conducted or to own, lease and operate their respective properties or assets, except where the failure to have any such Permits has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Since the Last Audited Balance Sheet Date, none of the Group Companies has received any written notice from any Governmental Authority regarding (i) any actual or possible material violation of any Permit, or any
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failure to comply in any respect with any term or requirement of any Permit or (ii) any actual or possible revocation, withdrawal, suspension, cancellation, termination or adverse modification of any Permit, in each case other than as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Group Companies comply with the terms of all Permits, and no revocation, withdrawal, suspension, cancellation or adverse modification of any Permit is pending or, to the knowledge of the Company, threatened and none of the Group Companies has received any notice from any Governmental Authority threatening to revoke, withdraw, suspend, cancel or modify in an adverse manner any Permit, except, in each case, as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Permit is in full force and effect, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
4.10 Intellectual Property and Data Security.
(a) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Group Companies (i) exclusively own all right, title and interest in and to all Owned IP, free and clear of all Liens (other than Permitted Liens) and (ii) possess legally sufficient and enforceable rights to use all other Intellectual Property used in connection with the conduct of the Business, including the Licensed IP.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company IP constitutes all Intellectual Property required or necessary for the conduct of the Business as currently conducted. Each item of Company IP will be owned or available for use by the Surviving Company and its Subsidiaries immediately following the Closing Date on substantially identical terms and conditions as it was available for use by the Company and its Subsidiaries prior to the Closing Date.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has granted or transferred (or is obligated to grant or transfer) to any Person, or has permitted (or is obligated to permit) any Person to retain, an ownership interest (including a joint-ownership interest) or any exclusive license or other exclusive rights in or to any Intellectual Property that is or was Company IP (except pursuant to Contracts otherwise disclosed in the Schedules).
(d) Schedule 4.10(d) sets forth an accurate and complete list of all Owned IP issued by, registered, recorded or filed with, renewed by or the subject of a pending application or filing before any Governmental Authority, Internet domain name registrar or other similar authority, including, for each item, relevant identifying information (the “Company Registered IP”). Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, to the knowledge of the Company, all issuance, renewal, maintenance and other payments that are or have become due with respect to the Company Registered IP have been timely paid by or on behalf of the Group Companies and no registrations or applications for Company Registered IP have expired, lapsed, been cancelled, invalidated, challenged, revoked, withdrawn or abandoned.
(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, to the knowledge of the Company, the conduct of the Business, including any use or exploitation of the Company Offering, has not and is not currently infringing, misappropriating or otherwise violating any Intellectual Property of any other Person, and no Group Company has received any written charge, complaint, claim, demand or notice alleging any such infringement, violation or misappropriation (including any offer or demand to license any Intellectual Property of any Person (e.g., as a means to avoid or settle alleged or actual infringement, violation or misappropriation). To the knowledge of the Company, no such written charge, complaint, claim, demand or notice, nor any Action, has been made, threatened or is pending (A) alleging any such infringement, misappropriation or violation or (B) challenging the validity, enforceability, registrability, use or ownership of any Owned IP, or challenging the Group Companies’ rights in or use of any Licensed IP.
(f) No Group Company has instituted or threatened in writing to institute any Actions, charges, complaints, demands, proceedings or claims against any Person alleging such Person is infringing, misappropriating or otherwise violating any Intellectual Property and, to the knowledge of the Company, no Person has violated, infringed upon or misappropriated any Owned IP in any material respect.
(g) The Owned IP is subsisting, and to the knowledge of the Company, valid and enforceable. The Group Companies have at all times taken commercially reasonable steps to protect the rights of the Group Companies in the material Owned IP.
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(h) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, each former and current Company Employee and each current and former independent contractor of any Group Company who provides or provided services to any Group Company, in each instance, that was or is involved in the development of any Owned IP has executed a written agreement assigning to a Group Company all right, title and interest in and to such Intellectual Property developed during the course of their work for or provision of services to such Group Company, and has waived all moral rights therein to the extent legally permissible.
(i) To the knowledge of the Company, the Company IT Systems (i) are sufficient in all material respects for the current and contemplated operations of the Business, (ii) operate properly without any material defect, malfunction, unavailability or error, (iii) are reasonably secure against unauthorized access, intrusion, tampering, impairment, disruption, interference and malfunction and (iv) perform in all material respects in accordance with their documentation and otherwise as required by the Group Companies. To the knowledge of the Company, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Company IT Systems contain any Malicious Code as of the date hereof.
(j) To the knowledge of the Company, no Group Company has utilized Open Source Software in connection with any Owned IP that is distributed or licensed to any third party in a manner that creates restrictions or obligations for such Group Company with respect to any Owned IP or that requires, as a condition of such use, distribution, modification or other exploitation, that other Software linked to, combined with, incorporated into, derived from or distributed with such Open Source Software be (x) publicly disclosed, distributed or otherwise made available, including in source code form, (y) contributed to the public domain or licensed for the purpose of making derivative works or reverse engineering, or (z) redistributable at no back charge or minimal charge. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company’s and its Subsidiaries’ use of Open Source Software has at all times complied with all Open Source Software licenses in all material respects, including any applicable notice, attribution, disclosure or other requirement.
(k) Neither the Group Companies nor, to the knowledge of the Company, any other Person, has licensed or disclosed any material Company Source Code to any Person except under appropriate non-disclosure agreements, and the Group Companies have taken commercially reasonable technical, physical and organizational security measures and actions to prevent any unauthorized access, use or disclosure of same. To the knowledge of the Company, no event has occurred and no circumstance or condition exists, that (with or without notice or lapse of time, or both) will or would reasonably be expected to, nor will the execution, delivery or performance of this Agreement or any Transaction Document nor the consummation of the transactions contemplated hereby or thereby, result in any disclosure, delivery, availability, license or release of any material Company Source Code to any third party, whether by the Group Companies, their respective escrow agent(s) or any other Person.
(l) The Group Companies have, since January 1, 2018, established, maintained and implemented commercially reasonable IT and Security Policies designed to (i) identify and address internal and external risks to the security, confidentiality, integrity, availability and privacy of the Company IT Systems and the Protected Information, (ii) implement, monitor and improve technical, physical and organizational security measures, technologies and systems to mitigate such risks, (iii) maintain incident response, reporting and notification procedures with respect to security breaches and other incidents and (iv) implement and maintain disaster recovery, data backup and recovery and business continuity plans, procedures and facilities, in each instance above, in compliance with the Data Requirements and in a manner appropriate to the risks and requirements applicable to or represented by the Business.
(m) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have at all times (a) made available, posted and published, as and where required by (and in compliance with) all Privacy and Security Laws and the Data Requirements, as applicable, internal and external privacy policies, disclosures and other Company Privacy Policies on their websites, portals, applications and Company Offerings and (b) complied with all Company Privacy Policies (including current and former versions thereof) and all other Data Requirements. Other than as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Group Companies have since
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January 1, 2018 complied with all Data Requirements, and neither the Company Privacy Policies nor any of the disclosures made or contained therein or in any Contracts involving any Processing of Protected Information have been inaccurate, misleading, or deceptive or in violation of any applicable Laws.
(n) The Group Companies have, in all material respects since January 1, 2018 to the extent required by Privacy and Security Laws, required by written contract that each Person that Processes Protected Information by or on behalf of the Group Companies, including Company Suppliers, (i) comply with all Privacy and Security Laws and other applicable Data Requirements, and (ii) take commercially reasonable measures to ensure the security, confidentiality, integrity, availability and privacy of any Protected Information, including as required by applicable Privacy and Security Law.
(o) Other than as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) there have been no Data Security Incidents and no circumstance has arisen in which any Privacy and Security Laws or Data Requirements would require the Group Companies to report to or notify a Governmental Authority, data subject, employee, customer, user or any other Person and (b) to the knowledge of the Company, no third parties that have Processed any Protected Information on the Company’s behalf have (A) suffered any Data Security Incident, (B) breached any Contracts with the Group Companies involving or relating to the security, confidentiality, integrity, privacy or Processing of Protected Information or (C) violated any Data Requirements.
(p) No Group Company has received written notice of, and, to the knowledge of the Company, there is no circumstance (including any circumstance arising as the result of an audit or inspection carried out by any Governmental Authority or dispute with any Person) that would reasonably be expected to give rise to, any material Action, Governmental Order, notice, complaint, claim or investigation, from a Governmental Authority or any other Person (including any data subject) alleging any non-compliance with or violation of any Data Requirements or Privacy and Security Laws.
(q) Neither the execution, delivery, or performance of this Agreement or any other Transaction Document nor the consummation of the Transactions will cause, constitute, or result in a material breach or violation of any Data Requirement or require the delivery of any notice to or consent from any Person to transfer, or prohibit the unqualified transfer of, the Protected Information pursuant to this Agreement.
4.11 Contracts; No Defaults.
(a) Schedule 4.11(a) contains a listing of all Contracts (other than purchase orders) described in the clauses below to which, as of the date of this Agreement, any Group Company is a party or by which they or any of their respective assets are bound (such Contracts, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Schedule 4.11(a) have been made available to Acquiror or its agents or representatives prior to the date of this Agreement.
(i) any Contract which restricts in any material respect or contains any material limitations on the ability of any of the Group Companies to compete in any line of business or in any geographic territory, to develop, market or sell products or services, or to compete with any Person;
(ii) any Contract, including leases, rental or occupancy agreements, licenses, installment and conditional sales and other similar arrangements, that provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real property or any personal property involving aggregate payments in excess of $1,000,000 per annum;
(iii) any Contract not disclosed pursuant to any other clause under this Section 4.11 and which either (A) resulted in revenue or required expenditures in excess of $1,000,000 per annum in the calendar year ended December 31, 2020 or (B) is a contract that either (i) expressly contemplates guaranteed payments to, or required expenditures of, the Group Companies in excess of $1,000,000 during the calendar year ending December 31, 2021 or (ii) has resulted in, during the calendar year ending December 31, 2021 but prior to the date of this Agreement, revenue or required expenditures in excess of $1,000,000;
(iv) any material Contract relating to the licensing of any Intellectual Property (1) by any of the Group Companies to any third party or (2) by any third party to any of the Group Companies (but excluding in each case Non-Scheduled Licenses);
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(v) any Contract relating to the creation, incurrence, assumption or guarantee of any Indebtedness, including any agreement or commitment for future loans, credit or financing, but excluding (1) any Contract for Indebtedness involving less than $25,000,000, (2) any Contract for intercompany Indebtedness between the Company and any of its wholly-owned Subsidiaries or among any of its wholly-owned Subsidiaries and (3) any capitalized lease relating to the use of equipment having an outstanding principal amount less than $25,000,000;
(vi) any Contract under which any Group Company, directly or indirectly, has agreed to make any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any of its wholly-owned Subsidiaries), in any such case which, individually, is in excess of $5,000,000;
(vii) other than any non-disclosure or confidentiality agreement, any Contract entered into from and after July 1, 2018 pursuant to which any of the Group Companies has acquired or disposed of or agreed to acquire or dispose of, directly or indirectly, by merger or otherwise, a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock or other equity interests or assets that contains currently active, material continuing rights or obligations of the Group Companies, including any indemnification, guarantee, “earn-out” or other contingent payment obligations, but excluding customary buy-side indemnification obligations and confidentiality obligations;
(viii) any Contract (A) establishing any partnership, joint venture, limited liability company or other similar equity investment agreements with any Person (other than any Subsidiary of the Company), or (B) with any material concession company affiliated with the Company;
(ix) any Contract (A) granting to any Person (other than the Group Companies) (x) a right of first refusal, first offer or similar preferential right to purchase or acquire equity interests or material assets in any Group Company, (y) rights of exclusivity or similar rights, or (z) “most favored nation” status, or (B) involving the obligation of a Group Company to sell to any Person or Persons (or pursuant to which such sale was made, if there are any ongoing obligations) any capital stock;
(x) any Contract that is a settlement, conciliation or similar Contract with any Governmental Authority (x) with ongoing Liability in excess of $3,000,000 or (y) that includes any obligation (other than the payment of money) to be performed (other than any non-disclosure or confidentiality obligations) or the admission of wrongdoing by any of the Group Companies or any of their respective officers or directors; and
(xi) any Contract that is a Company Affiliate Agreement that will not be terminated at or prior to the Closing.
(b) Except as, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect and except for any Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date (i) all Material Contracts and Significant Capital Leases to which any of the Group Companies is a party or by which they are bound are in full force and effect and represent the legal, valid and binding obligations of Group Companies party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, and, to the knowledge of the Company, are enforceable by the Company or its Subsidiaries to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law), (ii) none of the Company, its Subsidiaries or, to the knowledge of the Company, as of the date of this Agreement, any other party thereto is in breach of or default (or would be in breach, violation or default but for the existence of a cure period) under any such Material Contract or Significant Capital Lease, (iii) since the Last Audited Balance Sheet Date through the date of this Agreement, none of the Group Companies have received any written or, to the knowledge of the Company, oral claim or notice of breach of or default under any such Material Contract or Significant Capital Lease, (iv) no event has occurred which individually or together with other events, would reasonably be expected to result in a breach of or a default under any such Material Contract or Significant Capital Lease by the Group Companies or, to the knowledge of the Company, any other party thereto (in each case, with or without notice or lapse of time or both), and (v) since the Last Audited Balance Sheet Date through the date hereof, neither the Company nor its Subsidiaries have received written notice from any other party to any such Material Contract or Significant Capital Lease that such party intends to terminate or not renew any such Material Contract or Significant Capital Lease.
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4.12 Employees; Company Benefit Plans.
(a) Schedule 4.12(a) sets forth a list of all material Company Benefit Plans (other than offer letters and similar agreements that are terminable “at will” or for convenience and without the payment of severance or other material obligations).
(b) With respect to each material Company Benefit Plan (whether or not listed on Schedule 4.12(a)), the Company has made available to Acquiror, copies of each plan document (or a written summary of any such unwritten Company Benefit Plan), as currently in effect, and to the extent applicable, (i) the most recent annual report (Form 5500 series) with any required schedules, accountant’s reports and other attachments filed with the IRS with respect to such Company Benefit Plan, (ii) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, (iii) the most recent determination or opinion letter, if any, issued by the IRS with respect to such Company Benefit Plan and any pending application for an IRS determination or opinion letter and any correspondence with the IRS related thereto, (iv) the summary plan description, (v) any trust agreement, insurance contract or other funding agreement, and (vi) any administrative services, recordkeeping, investment advisory, investment management or other service agreement.
(c) The Group Companies are in compliance with all applicable Laws relating to the employment of labor, including, without limitation, those relating to, equal opportunity, wages and hours, immigration, discrimination, labor relations, layoffs or plant closings, the payment and withholding of Taxes and other sums, the maintenance and handling of personnel records and occupational health and safety with respect to all employees and individual independent contractors who have performed services for any Group Company, in each case, except to the extent that the failure to comply therewith has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Company Employees are, or within the last three years have been, covered by a collective bargaining agreement or represented by a union or other labor organization or bargaining agent and to the knowledge of the Company, no union organizing efforts are being, or within the last three years have been, conducted with respect to any Company Employees. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, within the last three years, there has been no strike, work slowdown, work stoppage or other labor dispute involving Company Employees, nor to the knowledge of the Company is any such strike, work slowdown, work stoppage or other labor dispute threatened. No Group Company is involved in, nor, to the knowledge of the Company, threatened with, any Action or investigation relating to labor or employment matters involving Company Employees, in each case, that would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(e) The Group Companies have properly classified for all purposes (including for Tax purposes and for purposes of determining eligibility to participate in any Company Benefit Plan) all employees and individual independent contractors who have performed services for any Group Company and have properly withheld and paid all applicable Taxes and made all required filings in connection with services provided by such Persons to any Group Company in accordance with such classifications, in each case, except to the extent that the failure to properly classify, withhold, pay or make a filing has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(f) Each Company Benefit Plan has been operated, administered and maintained in compliance with its terms and applicable Law, including ERISA and the Code, in each case, except to the extent that the failure to comply therewith has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS and, to the knowledge of the Company, nothing has occurred since the date of such favorable determination or opinion letter which would adversely affect the qualified status of such plan. There are no pending or, to the knowledge of the Company, threatened Actions or investigations involving any Company Benefit Plan (other than routine claims for benefits) and the Company has no knowledge of any facts which could give rise to any such Actions or investigations (other than routine claims for benefits), in each case, that would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. No Company Benefit Plan is currently under investigation or audit by any Governmental Authority and, to the knowledge of the Company, no such investigation or audit is
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contemplated or under consideration, in each case, that would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. All contributions and premium payments required to have been paid under or with respect to any Company Benefit Plan have been timely paid in accordance with the terms of such Company Benefit Plan and applicable Law, except to the extent that the failure to timely make such payment has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(g) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Company Benefit Plan provides health, life insurance or other welfare benefits to retired or other terminated employees, individual independent contractors, or directors of a Group Company (or any spouse, beneficiary or dependent thereof), other than “COBRA” continuation coverage required by Section 4980B of the Code or Sections 601-608 of ERISA or similar state Law.
(h) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Company Benefit Plan is a “defined benefit plan” within the meaning of Section 3(35) of ERISA or a “multiemployer plan” within the meaning of Section 3(37) or 4001(a)(3) of ERISA, and no Group Company has any Liability, contingent or otherwise, with respect to any such plan.
(i) Except as contemplated by this Agreement, neither the execution and delivery of this Agreement nor the consummation of the Transactions will (either alone or in combination with another event) (i) materially increase the amount of compensation or benefits otherwise payable under any Company Benefit Plan, (ii) entitle any Company Employee or current or former employee, director or individual independent contractor of a Group Company to any material payment or benefit or accelerate the time of payment or vesting of any material compensation or benefits, or (iii) give rise to the payment of any “excess parachute payment” within the meaning of Code Section 280G.
(j) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” subject to Section 409A of the Code has been maintained and administered in operational and documentary compliance with Section 409A of the Code and all regulations and other applicable regulatory guidance issued thereunder, in each case, except to the extent that the failure to comply therewith has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(k) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Group Company has any obligation to gross up, indemnify or otherwise reimburse any current or former employee, individual independent contractor, or director of a Group Company for any Taxes, interest or penalties incurred in connection with any Company Benefit Plan (including without limitation any Taxes, interest or penalties incurred pursuant to Section 409A or 4999 of the Code).
4.13 Taxes. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect:
(a) (i) the Group Companies have timely filed, taking into account any extensions, all Tax Returns required to be filed by them and all such Tax Returns are true, complete and accurate, (ii) the Group Companies have paid all Taxes required to be paid by them other than Taxes that are not yet due or that are being contested in good faith in appropriate Actions, (iii) there are no Liens for Taxes on any assets of a Group Company other than Permitted Liens, (iv) no deficiency for any Tax has been asserted or assessed by a taxing authority against a Group Company which deficiency has not been paid or is not being contested in good faith in appropriate Actions, (v) no Group Company is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and its Subsidiaries or any agreement entered into in the ordinary course of business not primarily related to Taxes), (vi) no Group Company (x) has been a member of any affiliated group (within the meaning of Section 1504(a) of the Code) filing a consolidated federal income Tax Return (other than a group the common parent of which is the Company or any predecessor thereof) or (y) has any Liability for the Taxes of any Person other than the Group Companies pursuant to Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor or by contract and (vii) no Group Company has failed to withhold, collect or timely remit all amounts required to have been withheld, collected and remitted in respect of Taxes with respect to any payments to a vendor, employee, independent contractor, creditor, stockholder or any other Person.
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(b) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection, assessment or reassessment of, Taxes due from a Group Company for any taxable period and no request for any such waiver or extension is currently pending.
(c) No audits or other examinations with regard to any Taxes of a Group Company are presently in progress or have been asserted or proposed in writing. Since January 1, 2016, no written claim has been made by a Governmental Authority in a jurisdiction where a Group Company does not file Tax Returns that such Group Company is or may be subject to any Taxes in that jurisdiction.
(d) Within the past two (2) years, no Group Company has been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of the Code.
(e) No Group Company has been a party to a transaction that, as of the date hereof, constitutes a “listed transaction” for purposes of Section 6011 of the Code and applicable Treasury Regulations thereunder (or a similar provision of state Law).
(f) The Group Companies are not subject to any private letter ruling of the IRS or comparable ruling of any Governmental Authority, and, as of the date hereof, no closing agreement pursuant to Section 7121 of the Code (or any similar provision of any state, local or foreign Law) has been entered into by or with respect to a Group Company in respect of any taxable year for which the statute of limitations has not yet expired.
(g) To the knowledge of the Company, there are no facts, circumstances or plans that, either alone or in combination, could reasonably be expected to prevent the Merger or the Domestication from qualifying for the Intended Tax Treatment.
(h) Notwithstanding anything to the contrary herein, the representations in Section 4.12 (to the extent a representation relates to Taxes) and this Section 4.13 are the sole representations of the Group Companies with respect to Tax matters. For clarity, nothing in this Section 4.13 or otherwise in this Agreement shall be construed to provide any representation or warranty as to the amount, condition or availability for use in any taxable period after the Closing Date of any net operating loss, capital loss or Tax credit carryforward or other similar Tax attribute of a Group Company.
4.14 Brokers’ Fees. Except as set forth on Schedule 4.14, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by any of the Group Companies or any of their Affiliates for which any of the Group Companies has any obligation.
4.15 Insurance. The Company has made available to Acquiror, all material insurance policies and fidelity bonds covering the assets, business, equipment, properties, operations and employees of the Group Companies (collectively, the “Insurance Policies”). Except as would not reasonably expected have, individually or in the aggregate, a Company Material Adverse Effect, (a) each of the Insurance Policies or renewals thereof are in full force and effect, (b) the Group Companies maintain insurance coverage in such amounts and against such risks as are adequate and customary in the industry for the operation of their respective businesses, (c) the Group Companies are in material compliance with the terms of such Insurance Policies, (d) the Insurance Policies are sufficient for compliance with all applicable Laws and material Contracts to which the Group Companies are a party or by which they are bound and (e) since the last Audited Balance Sheet Date until the date of this Agreement, none of the Group Companies has received any written notice of cancellation of, material premium increase with respect to, or alteration of coverage under, any Insurance Policy other than in the ordinary course of business. As of the date hereof, there is no claim by any of the Group Companies pending under any Insurance Policies that has been denied or disputed by the insurer, or in respect of which there is an outstanding reservation of rights, except as have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
4.16 Real Property; Assets.
(a) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Group Companies have good and marketable title to each parcel of real property owned in fee by the Group Companies (the “Owned Real Property”) (the Owned Real Property, together with the Leased Real Property, shall be referred to as the “Real Property”). A true and correct list of each Owned Real Property and its address is set forth on Schedule 4.16(a).
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(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Owned Real Property is free and clear of all Liens, other than Permitted Liens. No Group Company has leased, subleased, licensed, sublicensed or granted to any Person the right to use or occupy any portion of the Owned Real Property (other than leases or grants of use or occupancy rights whereby the Company received annual base rent or fee of $1,000,000 or less during the year ended December 31, 2020).
(c) The Company has made available to Acquiror true, correct and complete copies of all existing leases, subleases, licenses, sublicenses and other agreements existing as of the date hereof pursuant to which any Group Company uses or occupies, or has the right to occupy, now or in the future, any real property with annual base rent payable during the 2021 calendar year in excess of $1,000,000 (such properties, the “Leased Real Property” and each such lease, sublease, license, sublicense or other occupancy or use agreement, a “Material Lease”), including all modifications, amendments, assignments, guaranties, supplements renewals, extensions, side letters, deferred rent agreements, rent abatement agreements and similar agreements thereto. A list of such Material Leases are set forth on Schedule 4.16(c).
(d) As of the date of this Agreement, each Material Lease is in full force and effect and is binding upon the applicable Group Company, as applicable. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Group Companies have a valid leasehold interest in the Leased Real Property, free and clear of all Liens, other than Permitted Liens. No Group Company has leased or granted to any Person the right to use or occupy any portion of the Leased Real Property.
(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Group Company is in default under the Material Leases, and to the knowledge of the Company, there are no defaults by any lessor under the Material Leases. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Group Company has received written notice within the twelve (12) months preceding the date hereof of any default under any Material Lease.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all buildings, structures, improvements, fixtures, building systems and equipment, and all components thereof, included in the Real Property are in reasonable operating condition and repair, ordinary wear and tear excepted. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Real Properties and their condition are suitable for their current use by the Group Companies.
(g) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Group Companies enjoy peaceful and undisturbed possession of each Real Property.
(h) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, to the knowledge of the Company, there are no pending condemnation, eminent domain, or any other taking by public authority with or without payment of consideration therefor or similar actions with respect to any of the Real Properties. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no written notice of such a proposed condemnation has been received by the Group Companies.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the assets, properties and rights owned, used or held for use by the Group Companies directly, by Contract or otherwise, and that are related to the Business are sufficient for the Surviving Company to conduct the Business following the Closing substantially as the Business has been conducted on the date of this Agreement.
4.17 Environmental Matters.
Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect:
(a) the Group Companies are and since the Last Audited Balance Sheet Date have been in compliance with all Environmental Laws, including the possession of, and the compliance with, all Environmental Permits required under Environmental Laws;
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(b) neither the Group Companies nor any of their respective predecessors is subject to any order, decree or judgment that requires a Group Company to undertake any Remedial Action;
(c) there has not been any use, storage, handling, transport, disposal or release of any Hazardous Material by the Group Companies at the Real Property or at any other location and to the knowledge of the Company, no Hazardous Materials have been Released at the Real Property, in each case, in a manner that would reasonably be expected to give rise to a Liability to the Group Companies under any Environmental Laws;
(d) no Group Company has received any unresolved Environmental Claim, and to the knowledge of the Company, there are no Environmental Claims threatened in writing against a Group Company;
(e) the Owned Real Property and to the knowledge of the Company, the Leased Real Property is not subject to any Lien securing the costs of any Remedial Action arising under Environmental Laws; and
(f) the Company has made available to Acquiror copies of all material reports, studies or evaluations in the possession or reasonable control of the Group Companies prepared since the Last Audited Balance Sheet Date pertaining to the generation, storage, use, handling, transportation, treatment, emission, spillage, disposal, release or removal of Hazardous Materials at, in, on or under the Real Property.
4.18 Absence of Changes.
(a) Since the Last Audited Balance Sheet Date, there has not been any Effect relating to any of the Group Companies which has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) From the Last Audited Balance Sheet Date through the date of this Agreement, excluding any deviations from the ordinary course of business of the Group Companies or any actions, activities or conduct of any Group Company taken (or not taken) to mitigate, remedy, respond to or otherwise address the effects or impact of COVID-19 on the Group Companies’ business, including the COVID-19 Measures, which shall be deemed to be taken in the “ordinary course of business” for purposes of this Section 4.18(b), the Group Companies have, in all material respects, conducted their business and operated their properties in the ordinary course of business and, except as required or contemplated by this Agreement, there has not been any action or activity taken by any of the Group Companies that would have been prohibited by Section 6.01 (other than clauses (c), (i) and (o) of Section 6.01) if such action or activity occurred during the Interim Period.
4.19 Affiliate Agreements. Except as set forth in Schedule 4.19, no Group Company is a party to (a) any Contract between any Group Company, on the one hand, and a Company Affiliated Person (other than employment agreements entered into with any director, manager, officer or employee of a Group Company in the ordinary course of business or any Company Benefit Plans), on the other hand, and (b) any other material business arrangement or relationship between such Group Company and any Company Affiliated Person (other than in the case of any director, manager, officer or employee of a Group Company, employment or consultancy relationships in the ordinary course of business) (each of the foregoing in clauses (a) and (b), a “Company Affiliate Agreement”).
4.20 Information Supplied. None of the information supplied or to be supplied by any Group Company, or by any other Person acting on behalf of any Group Company, in writing specifically for inclusion or incorporation by reference: (a) in any current report on Form 8-K, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority or stock exchange with respect to the transactions contemplated by this Agreement or any Transaction Document; (b) in the Proxy Statement (or any amendment or supplement thereto); (c) in the Registration Statement; or (d) in the mailings or other distributions to the Acquiror’s stockholders and/or prospective investors with respect to the consummation of the Transactions or in any amendment to any of documents identified in (a) through (d), will, when first filed, made available, mailed or distributed, as the case may be, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, notwithstanding the foregoing provisions of this Section 4.20, no representation or warranty is made by the Company with respect to information or statements made or incorporated by reference in the Registration Statement that were not supplied by or on behalf of the Company for use therein.
4.21 Takeover Statutes and Charter Provisions. The Company Board has taken all action necessary so that the restrictions on a “business combination” (as such term is used in Section 203 of the DGCL) contained in Section 203 of the DGCL or any similar restrictions under any foreign Laws will be inapplicable to this Agreement and the
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Transactions, including the Merger. As of the date of this Agreement, no “fair price,” “moratorium,” “control share acquisition” or other anti-takeover statute or similar domestic or foreign Law applies with respect to any Group Company in connection with this Agreement, the Merger or any of the other Transactions. As of the date of this Agreement, there is no stockholder rights plan, “poison pill” or similar anti-takeover agreement or plan in effect to which any Group Company is subject, party or otherwise bound.
4.22 No Outside Reliance. Notwithstanding anything contained in this Article IV or any other provision hereof, the Group Companies and their Affiliates and any of their respective directors, officers, employees, stockholders, partners, members or representatives, acknowledge and agree that the Group Companies have made their own investigation of the Acquiror and that neither the Acquiror nor any of its Affiliates or any of their respective directors, officers, employees, stockholders, partners, members, agents or representatives is making any representation or warranty whatsoever, express or implied, beyond those given by the Acquiror in Article V, any certificate delivered in accordance with Section 9.03(c) and the other Transaction Documents to which any such Person is a party, including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Acquiror. Without limiting the generality of the foregoing, it is understood that, except to the extent covered by Section 5.13, any cost estimates, financial or other projections or other predictions that may be contained or referred to in the Schedules or elsewhere, as well as any information, documents or other materials (including any such materials contained in any “data room” (whether or not accessed by the Company or its representatives) or reviewed by the Company pursuant to the Confidentiality Agreement) or management presentations that have been or shall hereafter be provided to the Company or any of its Affiliates, agents or representatives are not and will not be deemed to be representations or warranties of Acquiror, and no representation or warranty is made as to the accuracy or completeness of any of the foregoing except as set forth in Article V of this Agreement or any certificate delivered in accordance with Section 9.02(b).
4.23 No Additional Representations and Warranties. Except as otherwise provided in this Article IV (as modified by the applicable Schedules in accordance with (and subject to) Section 11.07) or any certificate delivered in accordance with Section 9.02(b), the Company expressly disclaims any representations or warranties of any kind or nature, express or implied, as to the condition, value or quality of the Company or the Company’s assets, and the Company specifically disclaims any representation or warranty of merchantability, usage, suitability or fitness for any particular purpose with respect to the Company’s assets, or as to the workmanship thereof, or the absence of any defects therein, whether latent or patent, it being understood that such subject assets are being acquired “as is, where is” on the Closing Date, and in their present condition, and Acquiror shall rely on their own examination and investigation thereof. None of the Company’s Affiliates nor any of their respective directors, officers, employees, stockholders, partners, members or Representatives has made, or is making, any representation or warranty whatsoever to Acquiror or its Affiliates, and no such Related Party shall be liable in respect of the accuracy or completeness of any information provided to Acquiror or its Affiliates.
Article V
REPRESENTATIONS AND WARRANTIES
OF ACQUIROR
Except as qualified by the Acquiror Schedules in accordance with (and subject to) Section 11.07, or as set forth in the Acquiror SEC Reports filed or furnished by Acquiror on or after December 29, 2020 (excluding (x) any disclosures in such Acquiror SEC Reports under the headings “Risk Factors,” “Forward-Looking Statements” and other disclosures that are predictive, cautionary or forward looking in nature and (y) any exhibits or other documents appended thereto), Acquiror represents and warrants to the Company as follows:
5.01 Corporate Organization. Acquiror is duly incorporated and is validly existing as an exempted company in good standing under the Laws of the Cayman Islands. From and after the Domestication and as of the Closing, Acquiror will be a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware. Acquiror has the requisite corporate power and authority to own, lease or operate all of its assets and properties and to conduct its business as it is now being conducted, except, in each case, as would not reasonably be expected to have, individually or in the aggregate, an Acquiror Material Adverse Effect. The copies of the Acquiror Governing Documents, as previously delivered by Acquiror to the Company are true, correct and complete and are in effect as of the date of this Agreement. Acquiror is, and at all times has been, in compliance in all material respects with all restrictions, covenants, terms and provisions set forth in the Acquiror Governing Documents. Acquiror is duly licensed or qualified and in good standing as a foreign entity in all jurisdictions in which its ownership of
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property or the character of its activities is such as to require it to be so licensed or qualified, except where failure to be so licensed or qualified has not had and would not reasonably be expected to have, individually or in the aggregate, an Acquiror Material Adverse Effect. Acquiror has no Subsidiaries or any equity or other interests in any Person.
5.02 Due Authorization.
(a) Acquiror has all requisite exempted company, corporate or entity power and authority to execute and deliver this Agreement and each Transaction Document to which it is a party and (subject to the approvals described in Section 5.07), upon receipt of the Acquiror Stockholder Approval, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance of this Agreement and each Transaction Document by Acquiror and the consummation of the Transactions have been duly and validly authorized and approved by all requisite action and, except for the Acquiror Stockholder Approval, no other corporate or equivalent proceeding on the part of Acquiror is or will be necessary to authorize this Agreement or such Transaction Documents or Acquiror’s performance hereunder or thereunder. This Agreement has been, and each such Transaction Document has been or will be on or prior to Closing, duly and validly executed and delivered by Acquiror and, assuming due authorization and execution by each other party hereto and thereto, this Agreement constitutes, and each such Transaction Document constitutes or will constitute, on or prior to Closing, a legal, valid and binding obligation of each of Acquiror, enforceable against Acquiror in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
(b) At the Special Meeting, assuming that a quorum is present, (i) only an Acquiror Ordinary Resolution shall be required to approve the Transaction Proposal, the NYSE Proposal, the Acquiror Omnibus Incentive Plan Proposal, the Acquiror Employee Stock Purchase Plan Proposal and the Acquiror Adjournment Proposal, (ii) only an Acquiror Special Resolution shall be required to approve the Domestication Proposal and the Governing Document Proposal and (iii) with respect to any Additional Proposals proposed to the Acquiror Shareholders, only the requisite approval required under the Acquiror Governing Documents, the Companies Act or other applicable law (the approval by Acquiror Shareholders of all of the foregoing, collectively, the “Acquiror Stockholder Approval”). The Acquiror Stockholder Approval is the only vote of any of Acquiror’s capital stock necessary to adopt this Agreement and any Transaction Document and to approve the Transactions (including the filing of the Preferred COD with the Secretary of State of the State of Delaware).
(c) At a meeting duly called and held, the Acquiror Board has unanimously (i) determined that this Agreement and the Transactions are in the best interests of Acquiror and its shareholders; (ii) determined that the fair market value of the Company is equal to at least 80% of the amount held in the Trust Account (less any deferred underwriting commissions and taxes payable on interest earned) as of the date hereof; (iii) approved the Transactions as a Business Combination; and (iv) resolved to recommend to the shareholders of Acquiror approval of each of the matters requiring the Acquiror Stockholder Approval.
5.03 No Conflict. Subject to the receipt of Acquiror Stockholder Approval and the consents, approvals, authorizations and other requirements set forth in Section 5.07, the execution, delivery and performance of this Agreement and each of the other Transaction Documents by each of Acquiror and (in the case of Acquiror), upon receipt of the Acquiror Stockholder Approval, the consummation of the Transactions do not and will not (a) conflict with or violate any provision of, or result in the breach of, the Acquiror Governing Documents, (b) conflict with or result in any violation of any provision of any Law, Permit or Governmental Order applicable to Acquiror or any of its properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, or result in the acceleration or trigger of any payment, posting of collateral (or right to require the posting of collateral), time of payment, vesting or increase in the amount of any compensation or benefit payable pursuant to, any of the terms, conditions or provisions of any Contract to which Acquiror is a party or by which any of their respective assets or properties may be bound or affected or (d) result in the creation of any Lien upon any of the properties, equity interests or assets of Acquiror, except (in the case of clauses (b), (c) or (d) above) for such violations, conflicts, breaches or defaults which has not had or would not reasonably be expected, individually or in the aggregate, to have an Acquiror Material Adverse Effect.
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5.04 Litigation and Proceedings. As of the date of this Agreement, there are no pending or, to the knowledge of Acquiror, threatened, Actions and there are no pending or, to the knowledge of Acquiror, threatened investigations, in each case, against Acquiror, or otherwise affecting Acquiror or its assets, including any condemnation or similar proceedings, which, if determined adversely, would reasonably be expected, individually or in the aggregate, to have an Acquiror Material Adverse Effect. As of the date of this Agreement, there is no unsatisfied judgment or any open injunction binding upon Acquiror which could, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect.
5.05 Compliance with Laws.
(a) Except where the failure to be, or to have been, in compliance with such Laws has not had or would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect, Acquiror is, and since December 29, 2020 has been, in compliance in all material respects with all applicable Laws. Acquiror has not received any written notice from any Governmental Authority of a violation of any applicable Law by Acquiror at any time since December 29, 2020, which violation would reasonably be expected to have an Acquiror Material Adverse Effect.
(b) Since December 29, 2020, and except where the failure to be, or to have been, in compliance with such Laws has not had or would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect, (i) there has been no action taken by Acquiror or, to the knowledge of Acquiror, any officer, director, manager, employee, agent or representative of Acquiror, in each case, acting on behalf of Acquiror, in violation of any applicable Anti-Corruption Law, (ii) Acquiror has not been convicted of violating any Anti-Corruption Laws or subjected to any investigation by a Governmental Authority for violation of any applicable Anti-Corruption Laws, (iii) Acquiror has not conducted or initiated any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged act or omission arising under or relating to any noncompliance with any Anti-Corruption Law and (iv) Acquiror has not received any written notice or citation from a Governmental Authority for any actual or potential noncompliance with any applicable Anti-Corruption Law.
5.06 Employee Benefit Plans. Except as may be contemplated by the Acquiror Omnibus Incentive Plan Proposal or the Acquiror Employee Stock Purchase Plan Proposal, there are no Acquiror Benefit Plans. The execution and delivery of this Agreement and the consummation of the Transactions will not (a) entitle any employee or individual independent contractor of Acquiror to any material payment or benefit or accelerate the time of payment or vesting of any material compensation or benefits, in either case under any Acquiror Benefit Plan, or (b) give rise to the payment of any “excess parachute payment” within the meaning of Code Section 280G.
5.07 Governmental Authorities; Consents. No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority or notice, approval, consent, waiver or authorization from any Governmental Authority is required on the part of Acquiror with respect to Acquiror’s execution, delivery or performance of this Agreement or the consummation of the Transactions, except for (a) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (b) applicable requirements of the HSR Act and any other applicable Antitrust Laws, Securities Laws and NYSE, (c) the filing and effectiveness of the Acquiror Domestication Documents, and (d) any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which has not had and would not reasonably be expected to have, individually or in the aggregate, an Acquiror Material Adverse Effect.
5.08 Financial Ability; Trust Account
(a) As of the date hereof, there is at least two-hundred and forty-six million dollars ($246,000,000) invested in a trust account at J.P. Morgan Chase Bank, N.A. (the “Trust Account”), maintained by Continental Stock Transfer & Trust Company, acting as trustee (the “Trustee”), pursuant to the Investment Management Trust Agreement, dated March 2, 2021, by and between Acquiror and the Trustee (the “Trust Agreement”). The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of Acquiror and, to the knowledge of Acquiror, the Trustee, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. The Trust Agreement has not been terminated, repudiated, rescinded, amended or supplemented or modified, in any respect, and, to the knowledge of Acquiror, no such termination, repudiation, rescission, amendment, supplement or modification is contemplated.
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To the knowledge of Acquiror, there are no side letters and there are no agreements, Contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would (i) cause the description of the Trust Agreement in the Acquiror SEC Reports to be inaccurate or (ii) entitle any Person (other than any Acquiror Stockholder who is a Redeeming Stockholder) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released except in accordance with the Trust Agreement, Acquiror Governing Documents and Acquiror’s final prospectus dated as of March 2, 2021. Amounts in the Trust Account are invested in United States Government securities or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940. Acquiror has performed all material obligations required to be performed by it to date under, and is not in material default, breach or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement, and no event has occurred which, with due notice or lapse of time or both, would constitute such a default or breach thereunder. There are no Actions or investigations pending or, to the knowledge of Acquiror, threatened with respect to the Trust Account. Since December 29, 2020, Acquiror has not released any money from the Trust Account (other than interest income earned on the principal held in the Trust Account as permitted by the Trust Agreement). The Acquiror has not taken any actions to dissolve or liquidate pursuant to the Acquiror Organizational Documents or to dissolve and liquidate all of the assets of Acquiror.
5.09 Taxes. Except as would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect:
(a) (i) Acquiror has timely filed, taking into account any extensions, all Tax Returns required to be filed by it and all such Tax Returns are true, complete and accurate, (ii) Acquiror has paid all Taxes required to be paid by it other than Taxes that are not yet due or that are being contested in good faith in appropriate Actions, (iii) there are no Liens for Taxes on any assets of Acquiror other than Permitted Liens, (iv) no deficiency for any Tax has been asserted or assessed by a taxing authority against Acquiror which deficiency has not been paid or is not being contested in good faith in appropriate Actions, (v) Acquiror is not a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement, (vi) Acquiror (x) has not been a member of any affiliated group (within the meaning of Section 1504(a) of the Code) filing a consolidated federal income Tax Return or (y) does not have any Liability for the Taxes of any Person other than Acquiror pursuant to Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law) as a transferee or successor or by contract and (vii) Acquiror has not failed to withhold, collect or timely remit all amounts required to have been withheld, collected and remitted in respect of Taxes with respect to any payments to a vendor, employee, independent contractor, creditor, stockholder or any other Person.
(b) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection, assessment or reassessment of, Taxes due from Acquiror for any taxable period and no request for any such waiver or extension is currently pending.
(c) No audits or other examinations with regard to any Taxes of Acquiror are presently in progress or have been asserted or proposed in writing. No written claim has been made by a Governmental Authority in a jurisdiction where Acquiror does not file Tax Returns that Acquiror is or may be subject to any Taxes in that jurisdiction.
(d) Within the past two (2) years, Acquiror has not been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of the Code.
(e) Acquiror has not been a party to a transaction that, as of the date hereof, constitutes a “listed transaction” for purposes of Section 6011 of the Code and applicable Treasury Regulations thereunder (or a similar provision of state Law).
(f) Acquiror is not subject to any private letter ruling of the IRS or comparable ruling of any Governmental Authority, and, as of the date hereof, no closing agreement pursuant to Section 7121 of the Code (or any similar provision of any state, local or foreign Law) has been entered into by or with respect to Acquiror in respect of any taxable year for which the statute of limitations has not yet expired.
(g) To the knowledge of Acquiror, there are no facts, circumstances or plans that, either alone or in combination, could reasonably be expected to prevent the Merger or the Domestication from qualifying for the Intended Tax Treatment.
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(h) Notwithstanding anything to the contrary herein, the representations in Section 5.06 (to the extent a representation relates to Taxes) and this Section 5.09 are the sole representations of Acquiror with respect to Tax matters. For clarity, nothing in this Section 5.09 or otherwise in this Agreement shall be construed to provide any representation or warranty as to the amount, condition or availability for use in any taxable period after the Closing Date of any net operating loss, capital loss or Tax credit carryforward or other similar Tax attribute of Acquiror.
5.10 Brokers’ Fees. Except as set forth on Acquiror Schedule 5.10, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by Acquiror or any of its Affiliates.
5.11 Acquiror SEC Reports; Financial Statements; Sarbanes-Oxley Act.
(a) Except as set forth on Acquiror Schedule 5.11(a), Acquiror has filed or furnished in a timely manner all required proxy statements, reports, schedules, forms, statements and other documents required to be filed by it with the SEC since December 29, 2020 (collectively, as they have been amended since the time of their filing and including all exhibits thereto, the “Acquiror SEC Reports”). None of the Acquiror SEC Reports, as of their respective dates (or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The audited financial statements and unaudited interim financial statements (including, in each case, the notes and schedules thereto) included in the Acquiror SEC Reports complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto and except with respect to unaudited statements as permitted by Form 10-Q of the SEC), and fairly present (subject, in the case of the unaudited interim financial statements included therein, to normal year-end adjustments and the absence of complete footnotes) in all material respects the financial position of Acquiror as of the respective dates thereof and the results of their operations and cash flows for the respective periods then ended.
(b) Acquiror has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure that material information relating to Acquiror and other material information required to be disclosed by Acquiror in the reports and other documents that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to Acquiror’s principal executive officer and its principal financial officer as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. Such disclosure controls and procedures are effective in timely alerting Acquiror’s principal executive officer and principal financial officer to material information required to be included in Acquiror’s periodic reports required under the Exchange Act.
(c) Acquiror has established and maintained a system of internal controls. Such internal controls are sufficient to provide reasonable assurance regarding the reliability of Acquiror’s financial reporting and the preparation of Acquiror’s financial statements for external purposes in accordance with GAAP.
(d) There are no outstanding loans or other extensions of credit made by Acquiror to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of Acquiror. Acquiror has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.
(e) Neither Acquiror (including any employee thereof) nor Acquiror’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by Acquiror, (ii) any fraud, whether or not material, that involves Acquiror’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by Acquiror or (iii) any claim or allegation regarding any of the foregoing.
(f) To the knowledge of Acquiror, as of the date hereof, there are no outstanding SEC comments from the SEC with respect to the Acquiror SEC Reports. To the knowledge of Acquiror, none of the Acquiror SEC Reports filed on or prior to the date hereof is subject to ongoing SEC review or investigation as of the date hereof.
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5.12 Business Activities; Absence of Changes.
(a) Since its incorporation, Acquiror has not conducted any business activities other than activities related to its initial public offering or directed toward the accomplishment of a Business Combination. Except as set forth in the Acquiror Governing Documents, there is no agreement, commitment or Governmental Order binding upon Acquiror or to which Acquiror is a party which has had or would reasonably be expected to have the effect of prohibiting or impairing any business practice of Acquiror or any acquisition of property by Acquiror or the conduct of business by Acquiror as currently conducted or as contemplated to be conducted as of the Closing other than such effects, which have not had or would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect.
(b) Acquiror does not own or have a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, business, trust or other entity. Except for this Agreement and the Transactions, Acquiror has no interests, rights, obligations or liabilities with respect to, and is not party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is a Business Combination.
(c) There is no Liability of Acquiror, except for Liabilities (i) reflected or reserved for on Acquiror’s consolidated balance sheet for the quarterly period ended March 31, 2021 or disclosed in the notes thereto (other than any such liabilities not reflected, reserved or disclosed as are not and would not be, in the aggregate, material to Acquiror), (ii) that have arisen since the date of Acquiror’s consolidated balance sheet for the quarterly period March 31, 2021in the ordinary course of business of Acquiror, (iii) that are Outstanding Acquiror Expenses, (iv) arising under this Agreement or the performance by Acquiror of its obligations hereunder, (v) that have not been and would not, individually or in the aggregate, reasonably be expected to be material to Acquiror or (vi) disclosed in Acquiror Schedule 5.12(c).
(d) (i) Since the date of Acquiror’s formation, there has not been any Effect relating to Acquiror which has had, or would reasonably be expected to have, individually or in the aggregate, an Acquiror Material Adverse Effect and (ii) from December 29, 2020 through the date of this Agreement, Acquiror has not taken any action that would require the consent of the Company pursuant to Section 7.02 if such action had been taken after the date hereof.
5.13 Registration Statement. None of the information relating to Acquiror supplied by Acquiror, or by any other Person acting on behalf of Acquiror, in writing specifically for inclusion or incorporation by reference in the Registration Statement will, as of the date the Proxy Statement (or any amendment or supplement thereto) is first mailed to the Acquiror Stockholders, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, notwithstanding the foregoing provisions of this Section 5.13, no representation or warranty is made by Acquiror with respect to information or statements made or incorporated by reference in the Registration Statement that were not supplied by or on behalf of Acquiror for use therein.
5.14 No Outside Reliance. Notwithstanding anything contained in this Article V or any other provision hereof, Acquiror and its Affiliates and any of its and their respective directors, officers, employees, stockholders, partners, members or representatives, acknowledge and agree that Acquiror has made its own investigation of the Company and that neither the Company nor any of its Affiliates or any of their respective directors, officers, employees, stockholders, partners, members, agents or representatives is making any representation or warranty whatsoever, express or implied, beyond those given by the Company in Article IV, any certificate delivered in accordance with Section 9.02(b) and the other Transaction Documents to which any such Person is a party, including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Company or its Subsidiaries. Without limiting the generality of the foregoing, except to the extent covered by Section 4.20, it is understood that any cost estimates, financial or other projections or other predictions that may be contained or referred to in the Schedules or elsewhere, as well as any information, documents or other materials (including any such materials contained in any “data room” (whether or not accessed by Acquiror or its representatives) or reviewed by Acquiror pursuant to the Confidentiality Agreement) or management presentations that have been or shall hereafter be provided to Acquiror or any of its Affiliates, agents or representatives are not and will not be deemed to be representations or warranties of the Company, and no representation or warranty is made as to the accuracy or completeness of any of the foregoing except as set forth in Article IV of this Agreement or any certificate delivered in accordance with Section 9.02(c). Except as
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otherwise expressly set forth in this Agreement, Acquiror understands and agrees that any assets, properties and business of the Group Companies are furnished “as is,” “where is” and subject to and except as otherwise provided in the representations and warranties contained in Article IV or any other certificate delivered in accordance with Section 9.02(c), with all faults and without any other representation or warranty of any nature whatsoever.
5.15 Capitalization
(a) The authorized share capital of Acquiror consists of (i) 1,000,000 preference shares of a par value US$0.0001 each, of which none are issued and outstanding as of the date of this Agreement, (ii) 300,000,000 class A ordinary shares of a par value of US$0.0001 each, of which 25,483,700 are issued and outstanding as of the date of this Agreement; and (iii) 20,000,000 Class B ordinary shares of a par value of US$0.0001 each, of which 6,370,925 are issued and outstanding as of the date of this Agreement. As of the date of this Agreement, 13,892,394 Acquiror Warrants are issued and outstanding. All of the issued and outstanding Acquiror Class A Common Stock, Acquiror Class B Common Stock and Acquiror Warrants (i) have been duly authorized and validly issued and are fully paid and nonassessable, (ii) were issued in compliance in all material respects with applicable Law and (iii) were not issued in breach or violation of any preemptive rights or Contract, except as disclosed in the Acquiror SEC Reports with respect to certain Acquiror Class B Common Stock held by the Sponsor.
(b) Except for this Agreement, the Acquiror Warrants, the Forward Purchase Contract and the Subscription Agreements, as of the date hereof, there are (i) no subscriptions, calls, options, warrants, rights or other securities convertible into or exchangeable or exercisable for Acquiror Class A Common Stock, Acquiror Class B Common Stock or the equity interests of Acquiror, or any other Contracts to which Acquiror is a party or by which Acquiror is bound obligating Acquiror to issue or sell any shares of capital stock of, other equity interests in or debt securities of, Acquiror, and (ii) no equity equivalents, stock appreciation rights, phantom stock ownership interests or similar rights in Acquiror. Except as disclosed in the Acquiror SEC Reports or the Acquiror Governing Documents, there are no outstanding contractual obligations of Acquiror to repurchase, redeem or otherwise acquire any securities or equity interests of Acquiror. There are no outstanding bonds, debentures, notes or other indebtedness of Acquiror having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which the Acquiror Stockholders may vote. Except as disclosed in the Acquiror SEC Reports, Acquiror is not a party to any stockholders agreement, voting agreement or registration rights agreement relating to Acquiror Class A Common Stock, Acquiror Class B Common Stock or any other equity interests of Acquiror. Acquiror does not own any capital stock or any other equity interests in any other Person or have any right, option, warrant, conversion right, stock appreciation right, redemption right, repurchase right, agreement, arrangement or commitment of any character under which a Person is or may become obligated to issue or sell, or give any right to subscribe for or acquire, or in any way dispose of, any shares of the capital stock or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any shares of the capital stock or other equity interests, of such Person. There are no securities or instruments issued by or to which Acquiror is a party containing anti-dilution or similar provisions that will be triggered by the consummation of the transactions contemplated by the Forward Purchase Contract or the Subscription Agreements that have not been or will not be waived on or prior to the Closing Date.
(c) Subject to approval of the Proposals, the shares of Applicable Surviving Company Common Stock to be issued by Acquiror in connection with the Transactions, upon issuance in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and nonassessable, and will not be subject to any preemptive rights of any other stockholder of Acquiror and will be free and clear of all Liens (other than Liens arising pursuant to applicable securities Laws or under the Transaction Documents).
(d) Except (i) for the Registration Rights Agreement entered into on March 2, 2021 by and among the Acquiror and certain stockholders of Acquiror, (ii) as set forth in the Acquiror Governing Documents and (iii) in connection with the Transactions (including under the Subscription Agreements and Forward Purchase Contract), there are no registration rights, and there is no voting trust, proxy, rights plan, anti-takeover plan or other agreements or understandings to which Acquiror is a party or by which Acquiror is bound with respect to any ownership interests of Acquiror.
5.16 NYSE Stock Market Quotation. The issued and outstanding shares of Acquiror Class A Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE under the symbol “ISOS”. Acquiror is in compliance in all material respects with the rules of the NYSE and there is no action or proceeding pending or, to the knowledge of Acquiror, threatened against Acquiror by the NYSE, the Financial
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Industry Regulatory Authority or the SEC with respect to any intention by such entity to deregister the Acquiror Class A Common Stock or terminate the listing of Acquiror Class A Common Stock on the NYSE. None of Acquiror or its Affiliates has taken any action in an attempt to terminate the registration of the Acquiror Class A Common Stock or Acquiror Warrants under the Exchange Act except as contemplated by this Agreement.
5.17 Contracts; No Defaults.
(a) Acquiror Schedule 5.17(a) contains a listing of every “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (other than confidentiality and non-disclosure agreements, this Agreement, the Forward Purchase Contract and the Subscription Agreements) to which, as of the date of this Agreement, Acquiror is a party or by which any of their respective assets are bound. True, correct and complete copies of the Contracts listed on Acquiror Schedule 5.17(a) have been delivered to or made available to the Company or its agents or representatives.
(b) Except for any Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date, with respect to any Contract of the type described in Section 5.17(a), whether or not set forth on Acquiror Schedule 5.17(a), (i) such Contracts are in full force and effect and represent the legal, valid and binding obligations of Acquiror and, to the knowledge of Acquiror, represent the legal, valid and binding obligations of the other parties thereto, and are enforceable by Acquiror in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law), (ii) none of Acquiror or, to the knowledge of Acquiror, as of the date of this Agreement, any other party thereto is in material breach of or material default (or would be in material breach, violation or default but for the existence of a cure period) under any such Contract, (iii) since December 29, 2020, Acquiror has not received any written or, to the knowledge of Acquiror, oral claim or notice of material breach of or material default under any such Contract, (iv) to the knowledge of Acquiror, no event has occurred which, individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any such Contract by Acquiror or, to the knowledge of Acquiror, any other party thereto (in each case, with or without notice or lapse of time or both) and (v) since December 29, 2020 through the date hereof, Acquiror has not received written notice from any other party to any such Contract that such party intends to terminate or not renew any such Contract.
5.18 Title to Property. Except as set forth on Acquiror Schedule 5.18, Acquiror (a) does not own or lease any real or personal property or (b) is not a party to any agreement or option to purchase any real property, personal property or other material interest therein.
5.19 Investment Company Act. Acquiror is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company”, in each case within the meaning of the Investment Company Act of 1940. Acquiror constitutes an “emerging growth company” within the meaning of the Jumpstart Our Business Startups Act of 2012.
5.20 Affiliate Agreements. Except as set forth on Acquiror Schedule 5.20, Acquiror is not a party to any Contract with any (i) present or former executive officer or director of any of Acquiror, (ii) beneficial owner (within the meaning of Section 13(d) of the Exchange Act) of 5% or more of the capital stock or equity interests of Acquiror or (iii) Affiliate, “associate” or member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any of the foregoing (each of the foregoing in clauses (i)-(iii), an “Acquiror Affiliate Agreement”).
5.21 Takeover Statutes and Charter Provisions. The Acquiror Board has taken all action necessary so that the restrictions on a “business combination” (as such term is used in Section 203 of the DGCL) contained in Section 203 of the DGCL or any similar restrictions under any foreign Laws will be inapplicable to this Agreement and the Transactions, including the Merger and the issuance of the Aggregate Closing Common Stock Consideration and the Closing Preferred Stock Consideration. As of the date of this Agreement, no “fair price,” “moratorium,” “control share acquisition” or other anti-takeover statute or similar domestic or foreign Law applies with respect to Acquiror or any of its Subsidiaries in connection with this Agreement, the Merger, the issuance of the Aggregate Closing Common Stock Consideration or the Closing Preferred Stock Consideration or any of the other Transactions. As of the date of this Agreement, there is no stockholder rights plan, “poison pill” or similar anti-takeover agreement or plan in effect to which Acquiror or any of its Subsidiaries is subject, party or otherwise bound.
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5.22 Forward Purchase Contract; PIPE Investment Amount; Preferred Investment Amount; Subscription Agreements. Acquiror has delivered to the Company true, correct and complete copies of (i) the Forward Purchase Contract, (ii) each of the Common Subscription Agreements, pursuant to which the Common Subscribers party thereto have committed, subject to the terms and conditions therein, to purchase shares of Acquiror Class A Common Stock for an aggregate amount equal to one hundred fifty million dollars ($150,000,000) (such amount, the “PIPE Investment Amount”) and (iii) each of the Preferred Subscription Agreements, pursuant to which the Preferred Subscribers party thereto have committed, subject to the terms and conditions therein, to purchase shares of Acquiror Preferred Stock for an aggregate amount equal to ninety-five million dollars ($95,000,000) (such amount, the “Preferred Investment Amount”). The Forward Purchase Contract and each of the Subscription Agreements are each in full force and effect and are legal, valid and binding upon Acquiror and, to the knowledge of the Acquiror, the FP Investors or the Subscribers party thereto, as applicable, enforceable in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law). The Forward Purchase Agreement has not been, and none of the Subscription Agreements have been, withdrawn, terminated, amended or modified since the date of delivery hereunder and prior to the execution of this Agreement, and, to the knowledge of Acquiror, no Subscribers has delivered notice of its intention to withdraw, terminate, amend or modify the Forward Purchase Agreement or any of the Subscription Agreements, and to the knowledge of the Acquiror, the commitments contained in the Forward Purchase Contract and the Subscription Agreements have not been withdrawn, terminated or rescinded by the Subscribers party thereto in any respect. There are no side letters or Contracts to which Acquiror is a party related to the provision or funding, as applicable, of the purchases contemplated by the Forward Purchase Contract and the Subscription Agreements or the Transactions other than as expressly set forth in this Agreement, the Forward Purchase Contract, the Subscription Agreements or any other agreement entered into (or to be entered into) in connection with the Transactions delivered to the Company. Acquiror has fully paid any and all commitment fees or other fees required in connection with the Forward Purchase Contract and the Subscription Agreements that are payable on or prior to the date hereof and will pay any and all such fees when and as the same become due and payable after the date hereof pursuant to the Forward Purchase Contract and the Subscription Agreements. Acquiror has, and to the knowledge of Acquiror, the FP Investors that have executed the Forward Purchase Contract and the Subscribers that have executed Subscription Agreements have, complied in all material respects with all of its obligations under the Forward Purchase Contract and the Subscription Agreements. To the knowledge of the Acquiror, there are no conditions precedent or other contingencies related to the consummation of the purchases set forth in the Forward Purchase Contract and the Subscription Agreements, other than as expressly set forth in the Forward Purchase Contract and the Subscription Agreements. To the knowledge of Acquiror, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a default or breach on the part of Acquiror or the FP Investors party to the Forward Purchase Contract or (ii) constitute a default or breach on the part of Acquiror or the Subscribers party to Subscription Agreements. As of the date hereof, Acquiror is not aware of the existence of any fact or event that would or would reasonably be expected to cause any condition to the consummation of the purchase under the Forward Purchase Contract not to be satisfied.
5.23 No Additional Representation or Warranties. Except as otherwise provided in this Article V (as modified by the applicable Acquiror Schedules in accordance with (and subject to) Section 11.07) or any certificate delivered in accordance with Section 9.03(c), the Acquiror expressly disclaims any representations or warranties of any kind or nature, express or implied, as to the condition, value or quality of the Acquiror or the Acquiror’s assets. Except as set forth in (or pursuant to) the Transaction Documents, (a) none of the Acquiror’s Affiliates nor any of their respective directors, officers, employees, stockholders, partners, members or Representatives has made, or is making, any representation or warranty whatsoever to the Company or its Affiliates, and (b) no such Related Party shall be liable in respect of the accuracy or completeness of any information provided to the Company or its Affiliates.
Article VI
COVENANTS OF THE COMPANY
6.01 Conduct of Business. From the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except (w) as set forth on Schedule 6.01, (x) as expressly contemplated or permitted by this Agreement, (y) as consented to by Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), or (z) as required by Law (including COVID-19 Measures), (i) use commercially
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reasonable efforts to conduct and operate its business in the ordinary course, (ii) use commercially reasonable efforts to preserve intact the current business organization and ongoing businesses of the Company and its Subsidiaries and maintain the existing relations and goodwill of the Company and its Subsidiaries with customers, suppliers, joint venture partners, distributors and creditors of the Company and its Subsidiaries, (iii) use commercially reasonable efforts to keep available the services of their present officers, and (iv) use commercially reasonable efforts to maintain all insurance policies of the Company and its Subsidiaries or substitutes therefor; provided that in the case of each of the preceding clauses (i)-(iv), the Company may, in connection with COVID-19 or any COVID-19 Measures, take such actions as are reasonably necessary (A) to protect the health and safety of the Company’s or its Subsidiaries’ employees and other individuals having business dealings with the Company or its Subsidiaries or to preserve its business or (B) to respond to third-party supply or service disruptions caused by COVID-19, including the COVID-19 Measures, and any such actions taken (or not taken) as a result of, in response to, or otherwise related to COVID-19 shall be deemed to be taken in the “ordinary course of business” for all purposes of this Section 6.01 and not be considered a breach of this Section 6.01. Without limiting the generality of the foregoing, except (w) as set forth on Schedule 6.01, (x) as expressly contemplated by this Agreement, (y) as consented to by Acquiror in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), or (z) required by Law (including COVID-19 Measures), the Company shall not, and the Company shall cause its Subsidiaries not to, during the Interim Period:
(a) change or amend the certificate of incorporation, bylaws or other Governing Documents of any Group Company in any material respect;
(b) (i) make, declare or pay any dividend or distribution (whether in cash, stock or property) to any of the stockholders or member, as applicable, of any of the Group Companies or make any other distribution in respect of any of the Group Companies’ capital stock or other equity interests, except dividends and distributions by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary, (ii) effect any recapitalization, reclassification, combination, split or otherwise amend the terms of any shares or series of the Group Companies’ capital stock or equity interest, or effect other change in the capitalization of any of the Group Companies, (iii) authorize for issuance, issue, sell, transfer, pledge, encumber, dispose of or deliver any additional shares of its capital stock or other equity interest or securities convertible into or exchangeable for shares of its capital stock or other equity interest, or issue, sell, transfer, pledge, encumber or grant any right, option, restricted stock unit, stock appreciation right or other commitment for the issuance of shares of its capital stock or other equity interest, or split, combine or reclassify any shares of its capital stock or other equity interest, other than (A) the issuance of shares upon the exercise of options outstanding as of the date of this Agreement and (B) transactions among the Company and its wholly-owned Subsidiaries or (iv) except pursuant to the Company Option Plan, purchase, repurchase, redeem or otherwise acquire, or offer to purchase, repurchase, redeem or otherwise acquire, any shares of the capital stock or other equity interests of any of the Group Companies;
(c) amend or modify any material term of (in a manner materially adverse to the Group Companies), terminate (excluding any expiration in accordance with its terms), renew or fail to exercise any renewal rights, or waive or release any material rights, claims or benefits under, any Contract of a type required to be listed on Schedule 4.11(a)(i) (or any Contract, that if existing on the date hereof, would have been required to be listed on Schedule 4.11(a)(i)), or under any Material Lease or Significant Capital Lease other than entry into, amendments of, modifications of, terminations of, or waivers or releases under, such agreements in the ordinary course of business;
(d) sell, transfer, lease, pledge or otherwise encumber or subject to any Lien, abandon, cancel, let lapse or convey or dispose of any material assets, properties or business of the Group Companies, taken as a whole (including Company IP), except for (i) transactions solely among the Company and its wholly-owned Subsidiaries or among the wholly-owned Subsidiaries of the Company, (ii) dispositions of obsolete or worthless assets, (iii) sales of inventory in the ordinary course of business, (iv) transactions pursuant to any Contract existing as of the date of this Agreement, (v) sales, abandonment, lapses of assets or items or materials (in each case other than Company IP) in an amount not in excess of $10,000,000 individually and $50,000,000 in the aggregate, (vi) Permitted Liens, and (vii) pledges, non-exclusive licenses and encumbrances on property and assets in the ordinary course of business and that would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole;
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(e) with respect to Owned IP, and notwithstanding Section 6.01(d), in any transaction or series of transactions, distribute, pledge, assign, sell, lease, transfer, exclusively license, waive, grant immunities, transfer, convey, abandon (including by means of failing to maintain, protect, renew or enforce, or failing to pay applicable maintenance, renewal, registration, license, usage or other fees or other dues), permit to lapse, or expire or otherwise dispose of any Owned IP or any portion thereof, except in the ordinary course of business;
(f) adopt or enter into a plan of, or enter into effect a, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any of the Group Companies (other than the Transactions);
(g) sell, assign, transfer, convey, lease or otherwise dispose of any tangible assets or properties of the Group Companies that have a fair market value of greater than $10,000,000 individually or $50,000,000 in the aggregate, including the Real Property, except for (i) dispositions of obsolete or worthless equipment in the ordinary course of business, (ii) transactions among the Group Companies and their wholly-owned Subsidiaries or among their wholly-owned Subsidiaries, (iii) sales of inventory in the ordinary course of business or (iv) pursuant to Contracts in effect as of the date hereof;
(h) acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all or a material portion of the assets of, any corporation, partnership, association, joint venture or other business organization or division thereof;
(i) (i) limit the right of any Group Company to engage in any line of business or in any geographic area, to develop, market or sell products or services, or to compete with any Person, (ii) grant any exclusive or similar rights to any Person, or (iii) enter into, renew, amend, modify, terminate (excluding any expiration in accordance with its terms) or extend any other Contract of the type described in Section 4.11(a) to which any Group Company is or would be a party or by which any Group Company may be bound, except, in each case, to the extent such action (A) is taken in the ordinary course of business or (B) is not materially adverse to any of the Group Companies;
(j) (i) make (other than on an originally filed Tax Return), change or rescind any material Tax election, (ii) change any annual Tax accounting period or any material method of Tax accounting, (iii) file any amended material Tax Return that could materially increase the Taxes payable by the Company or its Subsidiaries, (iv) settle, compromise, or abandon any claim, investigation, audit or controversy relating to a material amount of Taxes, or (v) enter into a closing agreement with respect to any material amount of Tax;
(k) take any action, or knowingly fail to take any action, which action or failure to act would reasonably be expected to prevent or impede the Transactions from qualifying for the Intended Tax Treatment;
(l) enter into, renew or amend in any material respect any Company Affiliate Agreement (or any Contract that, if existing on the date hereof, would constitute a Company Affiliate Agreement);
(m) waive, release, compromise, settle or satisfy any pending or threatened material investigation, claim (which shall include, but not be limited to, any pending or threatened Action) or compromise or settle any Liability, other than in the ordinary course of business or that otherwise do not exceed $1,000,000 in the aggregate in amounts payable by any of the Group Companies in settlement or satisfaction thereof, after contribution from available insurance proceeds;
(n) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness in excess of $25,000,000 other than (x) solely between the Company and any of its wholly-owned Subsidiaries or between any of such wholly-owned Subsidiaries, (y) amounts available in accordance with the terms of the revolving credit facility under the Existing First Lien Credit Agreement as of the date of this Agreement, and any refinancing thereof, or (z) capital leases in the ordinary course of business, provided that, in no event shall any such Indebtedness be subject to any material prepayment fee or penalty or similar arrangement or amend, restate or modify in a manner materially adverse to any of the Group Companies the terms of or any agreement with respect to any such outstanding Indebtedness; provided, further, that any action permitted under this Section 6.01(n) shall be deemed not to violate Section 6.01(b) or Section 6.01(c);
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(o) except as required pursuant to the terms of any Company Benefit Plan in effect as of the date of this Agreement or in the ordinary course of business with respect to individuals with annual base compensation of less than $250,000: (A) increase the compensation of any current or former employee, officer, individual independent contractor or director of the Company or any of its Subsidiaries; (B) increase the benefits payable to any current or former employee, officer, individual independent contractor, or director of the Company or any of its Subsidiaries; (C) grant, award or provide any bonus, severance, retention, change-in-control, equity or equity-based compensation, or similar benefit to any current or former employee, officer, individual independent contractor, or director of the Company or any of its Subsidiaries; (D) accelerate the payment or vesting of any compensation or benefit payable to any current or former employee, officer, individual independent contractor, or director of the Company or any of its Subsidiaries; (E) terminate (other than for cause) or hire (other than to replace an employee who has resigned or been fired for cause) any employee, officer or independent contractor (that is an individual) of the Company or any of its Subsidiaries with annual base compensation equal to or greater than $250,000; or (F) establish, adopt, enter into, terminate or materially amend any Benefit Plan (other than offer letters and similar agreements that are terminable “at will” or for convenience and without the payment of severance or other material obligations); and
(p) enter into any binding agreement to do any action prohibited under this Section 6.01.Notwithstanding anything to the contrary in this Section 6.01, the Group Companies’ failure to take any action prohibited by this Section 6.01 will not be a breach of the first sentence of this Section 6.01. In addition, the parties acknowledge and agree that an e-mail from an officer or director of Acquiror (or such other individuals as Acquiror may specify by notice to the Company) referencing this Section 6.01 and granting consent shall constitute valid form of consent of Acquiror for all purposes under this Section 6.01.
6.02 No Claim Against the Trust Account. Reference is made to the final prospectus of Acquiror, dated as of March 2, 2021 and filed with the SEC (File Nos. 333-252283 and 333-253811) on March 4, 2021. The Company hereby understands and acknowledges that Acquiror has established the Trust Account containing the proceeds of its initial public offering and the overallotment securities acquired by its underwriters and from certain private placements occurring simultaneously with such initial public offering (including interest accrued from time to time thereon) for the benefit of Acquiror’s public stockholders (including Acquiror’s underwriters to the extent they have acquired overallotment shares, the “Acquiror Public Stockholders”) and that disbursements from the Trust Account are available only in certain limited circumstances in accordance with the Trust Agreement. Accordingly, for and in consideration of Acquiror entering into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company (on behalf of itself and its Affiliates) hereby agrees that, notwithstanding anything to the contrary in this Agreement, neither the Company nor any of its Affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating to, this Agreement or any other Transaction Document, any proposed or actual business relationship between Acquiror or its Representatives, on the one hand, and the Company or its Representatives, on the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (collectively, the “Released Claims”). The Company (on behalf of itself and its Affiliates) hereby irrevocably waives any Released Claims that the Company or any of its Affiliates may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, contracts or agreements with Acquiror or its Representatives and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of this Agreement). The Company agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by Acquiror and its affiliates to induce Acquiror to enter into this Agreement, and the Company further intends and understands such waiver to be valid, binding and enforceable against the Company and each of its Affiliates under applicable Law. To the extent the Company or any of its Affiliates commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to Acquiror or its Representatives, which proceeding seeks, in whole or in part, monetary relief against Acquiror or its Representatives, the Company hereby acknowledges and agrees that the Company’s and its Affiliates’ sole remedy for monetary damages shall be against funds held outside of the Trust Account and that such claim shall not permit the Company or its Affiliates to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. In the event the Company or any of its Affiliates commences any action or proceeding based upon, in connection with, relating to or arising out of a Released Claim, which proceeding seeks, in whole or in part, relief against the Trust Account (including any distributions therefrom) or the Acquiror Public Stockholders (solely in such capacity),
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whether in the form of money damages or injunctive relief, Acquiror and its Representatives, as applicable, shall be entitled to recover from the Company and its Affiliates the associated legal fees and costs in connection with any such action, in the event Acquiror or its Representatives, as applicable, prevails in such action or proceeding. Notwithstanding the other provisions of this Section 6.02, (i) references to distributions from the Trust Account (including “distributions therefrom”) means distributions to the Acquiror Public Stockholders and (ii) “Released Claims” do not include, and the release contained herein shall not apply to, any claim (A) that arises as a result of, in connection with or relating to a written agreement entered into following execution of this Agreement (except as set forth in such written agreement) (B) against monies released to the Company or Acquiror or any of its Affiliates in connection with a Business Combination or (C) claims by any person in a capacity as an Acquiror Public Stockholder.
6.03 Requisite Approval. Upon the terms set forth in this Agreement, the Company shall (a) seek the written consent, in form and substance reasonably acceptable to Acquiror, of the Company Stockholders constituting the Company Stockholder Approval in favor of the approval and adoption of this Agreement and the Merger and all other transactions contemplated by this Agreement via written consent (the “Written Consent”) as soon as reasonably practicable after the Registration Statement becomes effective, and in any event within three (3) Business Days after the Registration Statement becomes effective and (b) in the event the Company determines it is not able to obtain the Written Consent, the Company shall call and hold a meeting of holders of Company Shares for the purpose of voting solely upon the Company Stockholder Approval (the “Company Stockholders Meeting”) as soon as reasonably practicable after the Registration Statement becomes effective, and in any event within twenty-five (25) days after the Registration Statement becomes effective. In connection therewith, the Company shall use reasonable best efforts to, as promptly as practicable, (i) establish the record date (which record date shall be mutually agreed with Acquiror) for determining the Company Stockholders entitled to provide such written consent and (ii) solicit written consents from the Company Stockholders to give the Company Stockholder Approval. The Company Board shall recommend to the Company Stockholders that they approve and adopt this Agreement and approve the Merger and all other Transactions (the “Company Board Recommendation”). Neither the Company Board nor any committee thereof shall withhold, withdraw or modify, or publicly propose or resolve to withhold, withdraw or modify in a manner adverse to Acquiror the Company Board Recommendation.
6.04 Anti-Takeover Matters. The Company shall not adopt any stockholder rights plan, “poison pill” or similar anti-takeover instrument or plan in effect to which any Group Company would be or become subject, party or otherwise bound.
6.05 No Trading. The Company acknowledges and agrees that it is aware, and that its Subsidiaries, directors and officers have been made aware, of the restrictions imposed by U.S. federal securities laws and the rules and regulations of the SEC promulgated thereunder or otherwise and other applicable foreign and domestic Laws on a Person possessing material nonpublic information about a publicly traded company. The Company hereby agrees that it shall not, and it shall cause its Subsidiaries not to, purchase or sell any securities of Acquiror in violation of such Laws, or cause or encourage any Person to do the foregoing.
6.06 Exclusivity. During the Interim Period, the Company shall not take, and shall direct its Affiliates and Representatives not to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement, letter of intent, memorandum of understanding or agreement in principle with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Acquiror, its stockholders or any of their Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any Company Acquisition Proposal. The Company shall, and shall direct its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Company Acquisition Proposal. To the extent any action is taken by any of the Company’s Affiliates or Representatives in breach of this Section 6.06, the Company shall be responsible for such breach as if such action was taken by the Company directly and as if such Affiliate or Representative was a party to this Agreement. The Company agrees that the rights and remedies for noncompliance with this Section 6.06 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to Acquiror and that money damages would not provide an adequate remedy to Acquiror.
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6.07 Cash Election Consideration Cap Increase. At or prior to the Closing, at the election of the Company, the dollar amount set forth in clause (a) of the Cash Election Consideration Cap shall be increased by an amount specified by the Company not to exceed $30,000,000 with the prior written consent of (a) Acquiror (which consent shall not be unreasonably withheld, conditioned or delayed) and (b) Atairos. The increase described in this Section 6.07 shall be in addition to, and not in limitation of, any increase in such amount contemplated by the definition of Option Election Consideration Cap.
Article VII
COVENANTS OF ACQUIROR
7.01 Indemnification and Insurance.
(a) From and after the Effective Time, the Surviving Company shall indemnify and hold harmless each present and former director and officer of Acquiror, the Company and each of its Subsidiaries against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that Acquiror, the Company or its Subsidiaries, as the case may be, would have been permitted under applicable Law and its certificate of incorporation, bylaws or other Governing Documents in effect on the date of this Agreement to indemnify such Person (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, the Surviving Company shall (i) maintain for a period of not less than six (6) years from the Effective Time provisions in its certificate of incorporation (if applicable), bylaws and other Governing Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of officers and directors that are no less favorable to those Persons than the provisions of such certificates of incorporation (if applicable), bylaws, memorandum and articles of association and other Governing Documents as of the date of this Agreement and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law. The Surviving Company shall assume, and be liable for and honor each of the covenants in this Section 7.01.
(b) For a period of six (6) years from the Effective Time, the Surviving Company shall maintain in effect directors’ and officers’ liability insurance covering (i) those Persons who are currently covered by the Company’s or its Subsidiaries’ directors’ and officers’ liability insurance policies (true, correct and complete copies of which have been heretofore made available to Acquiror or its agents or representatives) and (ii) those Persons who are currently covered by the Acquiror’s directors’ and officers’ liability insurance policies (true, correct and complete copies of which have been heretofore made available to the Company or its agents or representatives), in each case, on terms not less favorable than the better of (A) the terms of the current directors’ and officers’ liability insurance policies in place for the Company’s and its Subsidiaries’ directors and officers, (B) the terms of the current directors’ and officers’ liability insurance policies in place for the Acquiror’s directors and officers, and (C) the terms of a typical directors’ and officers’ liability insurance policy for a company whose equity is listed on NYSE which policy has a scope and amount of coverage that is reasonably appropriate for a company of similar characteristics (including the line of business and revenues) as the Surviving Company (including the Company and its Subsidiaries); provided, that in no event shall the Surviving Company be required to pay an annual premium for such insurance in excess of the greater of 300% of the aggregate annual premium payable by the Company and its Subsidiaries or Acquiror for such applicable insurance policy for the year ended December 31, 2020; provided, however, that (i) the Surviving Company may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six-year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the Effective Time and (ii) if any claim is asserted or made within such six-year period, any insurance required to be maintained under this Section 7.01 shall be continued in respect of such claim until the final disposition thereof.
(c) Notwithstanding anything contained in this Agreement to the contrary, this Section 7.01 shall survive the consummation of the Merger indefinitely and shall be binding on the Surviving Company and all successors and assigns of the Surviving Company. In the event that the Surviving Company or any of its successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or transfers or conveys all or substantially all of its properties and assets to any Person, then the Surviving Company shall ensure that proper provision shall be made so that the successors and
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assigns of the Surviving Company shall succeed to the obligations set forth in this Section 7.01. The obligations of the Surviving Company under this Section 7.01 shall not be terminated or modified in such a manner as to materially and adversely affect any present or former director or officer of Acquiror, the Company or each of its Subsidiaries to whom this Section 7.01 applies without the consent of the affected Person.
7.02 Conduct of Acquiror During the Interim Period.
(a) During the Interim Period, except as (w) set forth on Acquiror Schedule 7.02, (x) as expressly contemplated or permitted by this Agreement (including the Domestication and the Merger), (y) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld or delayed), or as (z) required by Law, Acquiror shall not:
(i) seek any approval from the Acquiror Stockholders to change, modify or amend the Trust Agreement or the Acquiror Governing Documents or change, modify or amend the Trust Agreement or the Acquiror Governing Documents;
(ii) (A) make, declare, set aside or pay any dividends on, or make any other distribution (whether in cash, stock or property) in respect of any of its outstanding capital stock or other equity interests; (B) split, combine, reclassify or otherwise change any of its capital stock or other equity interests; or (C) other than the redemption of any Acquiror Class A Common Stock required by the Offer or as otherwise required by Acquiror’s Governing Documents in order to consummate the Transactions, repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock of, or other equity interests in, Acquiror;
(iii) (A) make (other than on an originally filed Tax Return), change or rescind any material Tax election, (B) change any annual Tax accounting period or any material method of Tax accounting, (C) file any amended material Tax Return that could materially increase the Taxes payable by Acquiror, (D) settle, compromise, or abandon any claim, investigation, audit or controversy relating to a material amount of Taxes, or (E) enter into a closing agreement with respect to any material amount of Tax;
(iv) take any action, or knowingly fail to take any action, which action or failure to act would reasonably be expected to prevent or impede the Transactions from qualifying for the Intended Tax Treatment;
(v) enter into, renew or amend in any material respect, any Acquiror Affiliate Agreement (or any Contract, that if existing on the date hereof, would constitute an Acquiror Affiliate Agreement) other than as contemplated by clause (viii)(B) below;
(vi) enter into any material Contract or amend or modify any term of, terminate prior to its scheduled expiration date, or otherwise compromise in any way, any material Contract to which Acquiror is a party (including placement agent agreements);
(vii) waive, release, compromise, settle or satisfy any pending or threatened claim (which shall include, but not be limited to any pending or threatened Action);
(viii) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, other than Indebtedness that satisfies each of the following: (A) used solely for Acquiror’s (1) ordinary course administrative costs and expenses and transaction expenses incurred in connection with the Transactions (including performance under any Transaction Documents) in compliance with this Agreement and each other Transaction Document to which Acquiror is a party or (2) following consultation with the Company, non-ordinary course costs and expenses and transaction expenses, in each case, incurred in connection with the Transactions (including performance under any Transaction Documents) in compliance with (and not in breach of) this Agreement and each other Transaction Document to which Acquiror is a party; and (B) such Indebtedness is a loan made by the Sponsor or any of its Affiliates to Acquiror without interest or other fees, costs or expenses of Acquiror; provided that, any such Indebtedness, in the aggregate, does not to exceed $1,500,000 (the “Acquiror Debt Limit”) and to the extent that such Indebtedness does exceed the Acquiror Debt Limit, the Sponsor shall, or shall cause its Affiliates to, forgive any such amount in excess of the Acquiror Debt Limit;
(ix) (A) offer, issue, deliver, grant or sell, or authorize or propose to offer, issue, deliver, grant or sell, any capital stock of, or other equity interests in, Acquiror or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock or equity interests, other than (i) in connection with the exercise of any Acquiror Warrants outstanding on the date hereof or (ii) the Transactions (including the transactions
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contemplated by the Forward Purchase Contract or the Subscription Agreements) or (B) amend, modify or waive any of the terms or rights set forth in, any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein, other than pursuant to the Sponsor Agreement;
(x) except as contemplated by the Acquiror Omnibus Incentive Plan, (A) adopt or amend any Acquiror Benefit Plan, or enter into any employment contract or collective bargaining agreement or (B) hire any employee or any other individual to provide services to Acquiror or its Subsidiaries following Closing;
(xi) (A) fail to maintain its existence or acquire by merger or consolidation with, or merge or consolidate with, or purchase a material portion of the assets or equity of, any corporation, partnership, limited liability company, association, joint venture or other business organization or division thereof; or (B) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Acquiror (other than the Transactions);
(xii) make any capital expenditures;
(xiii) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any other Person;
(xiv) enter into any new line of business outside of the business currently conducted by Acquiror as of the date of this Agreement;
(xv) make any material change in financial accounting methods, principles or practices, except insofar as may have been required by a change in GAAP (including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization) or applicable Law;
(xvi) voluntarily fail to maintain, cancel or materially change coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage currently maintained with respect to Acquiror and its assets and properties;
(xvii) form any Subsidiary; or
(xviii) enter into any agreement or undertaking to do any action prohibited under this Section 7.02.
(b) During the Interim Period, Acquiror shall comply in all material respects with, and continue performing under, as applicable, the Acquiror Governing Documents, the Trust Agreement and all other material Contracts to which Acquiror may be a party.
7.03 Trust Account; Proceeds and Related Available Equity.
(a) Prior to or at the Closing (subject to the satisfaction or waiver of the conditions set forth in Article IX), Acquiror shall make appropriate arrangements to cause the funds in the Trust Account to be disbursed at Closing in accordance with the Trust Agreement for the following: (i) the redemption of any shares of Acquiror Class A Common Stock in connection with the Offer; (ii) the payment of the Outstanding Company Expenses, Outstanding Acquiror Expenses and any loans made by the Sponsor or any of its Affiliates to Acquiror without interest (if any) pursuant to Section 3.05(a) and the payment of the cash in lieu of the issuance of any fractional shares pursuant to Section 3.03(h); and (iii) the balance of the assets in the Trust Account, if any, after payment of the amounts required under the foregoing clauses (i) and (ii), to be disbursed to Acquiror or at its direction in accordance with this Agreement.
(b) If the Closing Acquiror Cash as of the anticipated Closing (assuming satisfaction or waiver of the conditions set forth in Article IX) is reasonably expected to be less than the Company’s Required Funds, then the Acquiror and its Representatives, in cooperation with the Company and its Representatives, shall be entitled to solicit and arrange for and enter into a subscription agreement for the purchase by third Persons of, additional shares of Acquiror Class A Common Stock on the terms of the applicable Common Subscription Agreement (and at a subscription price of no less than $10 per share) in an aggregate amount such that the Closing Acquiror Cash is, at or immediately prior to the Closing, equal to the Company’s Required Funds (or such greater amount as agreed to by the Company in its sole discretion) after giving effect to such subscriptions, and such subscriptions made pursuant
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to this sentence shall be added to the definition and amount of Closing Acquiror Cash including for purposes of Section 9.03(g) (without duplication). Notwithstanding the foregoing, (i) the Acquiror shall not sell or issue more than 5,000,000 additional shares of Acquiror Class A Common Stock pursuant to this Section 7.03(b) without the prior written consent of the Company, not to be unreasonably withheld, conditioned or delayed and (ii) in any event, the Acquiror may not sell or issue shares of Acquiror Class A Common Stock to the Persons set forth on Acquiror Schedule 7.03(b) or any of their Affiliates without the prior written consent of the Company as exercised in its sole discretion.
7.04 Acquiror NYSE Listing.
(a) From the date hereof through the Closing, Acquiror shall use reasonable best efforts to ensure Acquiror remains listed as a public company on, and for shares of Acquiror Class A Common Stock to be listed on, the NYSE.
(b) Acquiror shall use reasonable best efforts to cause the Surviving Company Class A Common Stock to be issued in connection with the Transactions (including any shares of Surviving Company Class A Common Stock to be issued to holders of Converted Options in connection with an exercise of such Converted Options) to be approved for listing on the NYSE as promptly as practicable following the issuance thereof, subject to official notice of issuance, prior to the Closing Date.
7.05 Acquiror Public Filings. From the date hereof through the Closing, Acquiror will keep current and timely file all reports required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable Securities Laws.
7.06 Financing. Acquiror shall use commercially reasonable efforts to take, or cause to be taken, as promptly as practicable after the date hereof, all actions, and to do, or cause to be done, all things necessary (including enforcing its rights under the Forward Purchase Contract and the Subscription Agreements), on or prior to the Closing Date, to consummate the transactions contemplated by the Forward Purchase Contract and the Subscription Agreements on the terms and conditions described or contemplated therein, including using commercially reasonable efforts to (a) comply with its obligations under the Forward Purchase Contract and the Subscription Agreements, (b) maintain in effect the Forward Purchase Contract and the Subscription Agreements in accordance with the terms and conditions thereof, (c) satisfy on a timely basis all conditions and covenants applicable to Acquiror set forth in the Forward Purchase Contract and the Subscription Agreements, (d) deliver notices to the counterparties to the Forward Purchase Contract and the Subscription Agreements sufficiently in advance of the Closing to cause them to fund their obligations as far in advance of the Closing as permitted by the Forward Purchase Contract and the Subscription Agreements, (e) enforce its rights under the Forward Purchase Contract and the Subscription Agreements to cause the FP Investors or a Subscriber, as applicable, to pay to (or as directed by) Acquiror the applicable purchase price (or other consideration) under the Forward Purchase Contract or such Subscriber’s applicable Subscription Agreement in accordance with its terms, and (f) in the event that all conditions in the Forward Purchase Contract and the Subscription Agreements (other than conditions that Acquiror or any of its Affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, consummate the transactions contemplated by the Forward Purchase Contract and the Subscription Agreements at or prior to the Closing. The Company shall use commercially reasonable efforts to cooperate with Acquiror in Acquiror’s performance and satisfaction of the foregoing obligations. Acquiror shall not amend the terms or conditions of, or waive any provision or remedy (in whole or in part) under, or replace or terminate, the Forward Purchase Contract, the Apollo Fee Letter or any Subscription Agreement in any manner without the Company’s prior written consent. Acquiror shall give the Company prompt written notice upon having actual knowledge of (i) any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to the Forward Purchase Contract or any of the Subscription Agreements, (ii) the receipt of any written notice or other written communication from any party to the Forward Purchase Contract or any Subscription Agreement with respect to any actual, potential or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to the Forward Purchase Contract or any Subscription Agreement of any provisions of the Forward Purchase Contract or any Subscription Agreement, and (iii) any expected or actual underfunding of any amount under the Forward Purchase Contract or any Subscription Agreement.
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7.07 Section 16 Matters. Prior to the Closing, the board of directors of Acquiror, or an appropriate committee of “non-employee directors” (as defined in Rule 16b-3 of the Exchange Act) thereof, shall adopt a resolution consistent with the interpretive guidance of the SEC so that the acquisition of equity securities of the Surviving Company pursuant to this Agreement and the other agreements contemplated hereby, by any person owning securities of the Company who is expected to become a director or officer (as defined under Rule 16a-1(f) under the Exchange Act) of the Surviving Company following the Closing shall be an exempt transaction for purposes of Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder.
7.08 Director and Officer Indemnity. On the Closing Date, the Surviving Company shall enter into customary indemnification agreements reasonably satisfactory to the Company with the individuals set forth on Acquiror Schedule 7.08, which indemnification agreements shall continue to be effective following the Closing.
7.09 Exclusivity. During the Interim Period, Acquiror shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement, letter of intent, memorandum of understanding or agreement in principle with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company, its stockholders or any of their Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any Acquiror Business Combination Proposal. Acquiror shall, and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, an Acquiror Business Combination Proposal. Acquiror agrees that the rights and remedies for noncompliance with this Section 7.09 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to the Company and that money damages would not provide an adequate remedy to the Company.
7.10 Acquiror Warrants. By virtue of the Domestication and without any action on the part of any holder of Acquiror Warrants, subject to the terms of the Sponsor Support Agreement, each Acquiror Warrant that is outstanding immediately prior to the consummation of the Domestication shall, pursuant to and in accordance with Section 4.4 of the Warrant Agreement, automatically and irrevocably be modified to provide that such Acquiror Warrant shall entitle the holder thereof to acquire one share of Acquiror Class A Common Stock (after giving effect to the Domestication) at an exercise price of eleven dollars and fifty cents ($11.50), subject to adjustment as set forth in Section 4 of the Warrant Agreement.
7.11 Termination of Certain Agreements. On and as of the Closing, Acquiror shall (i) take all actions necessary to cause the Contracts listed on Acquiror Schedule 7.11 to be terminated without any further force and effect and without any cost or other Liability to Acquiror or the Surviving Company and its Subsidiaries, and there shall be no further obligations of any of the relevant parties thereunder following the Closing, (ii) waive, and caused to be waived, any anti-dilution or similar protections in favor of Acquiror or any of its stockholders (including those set forth in Section 17 of the Acquiror Governing Documents) and (iii) waive, and cause to be waived, any right in favor of Acquiror or any of its stockholders to convert any working capital loans into Acquiror Warrants.
7.12 Employment Agreements. Acquiror shall use commercially reasonable efforts to enter into employment agreements with each individual listed on Acquiror Schedule 7.12(a) in the form to be provided to Acquiror by the Company and each such individual, which employment agreements shall be in substantially the form of the individual’s current employment agreement, but with such additions, variations and changes as contemplated by Acquiror Schedule 7.12(b), and with such other additions, variations and changes that are not inconsistent with the terms and conditions described on Acquiror Schedule 7.12(b) as the Company and each such individual shall, in consultation with Acquiror, mutually agree. The Company shall consider in good faith any comments or suggestions from Acquiror regarding the terms of such employment agreements, and the Company shall keep Acquiror apprised of any recommendations that the Company shall receive from any third-party compensation consultant engaged to advise on the terms thereof.
7.13 Preferred COD. Acquiror shall take all action to cause the Acquiror Board to adopt and approve the Preferred COD and authorize the filing of the Preferred COD with the Secretary of State of the State of Delaware.
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Article VIII
JOINT COVENANTS
8.01 HSR Act and Regulatory Approvals.
(a) In connection with the Transactions, the parties shall comply promptly but in no event later than ten (10) Business Days after the date hereof with the notification and reporting requirements of the HSR Act. The parties shall use their reasonable best efforts to submit, as soon as practicable, any other required applications or filings pursuant to any Antitrust Laws and furnish to the other party as promptly as reasonably practicable all information required for any application or other filing required to be made by such party pursuant to any Antitrust Law. The parties shall substantially comply with any Information or Document Requests.
(b) The parties shall request early termination of any waiting period under the HSR Act (to the extent permitted by applicable Law) and exercise their reasonable best efforts to (i) obtain termination or expiration of the waiting period under the HSR Act and consents or approvals pursuant to any other applicable Antitrust Laws, (ii) prevent the entry in any Action brought by a Regulatory Consent Authority or any other Person of any Governmental Order which would prohibit, make unlawful or delay the consummation of the Transactions and (iii) if any such Governmental Order is issued in any such Action, cause such Governmental Order to be lifted.
(c) The parties shall cooperate in good faith with the Regulatory Consent Authorities and exercise their reasonable best efforts to undertake promptly any and all action required to complete lawfully the Transactions as soon as practicable (but in any event prior to the Termination Date) and any and all action necessary or advisable to avoid, prevent, eliminate or remove any impediment under Antitrust Law or the actual or threatened commencement of any proceeding in any forum by or on behalf of any Regulatory Consent Authority or the issuance of any Governmental Order that would delay, enjoin, prevent, restrain or otherwise prohibit the consummation of the Merger; provided, however, that nothing in this Section 8.01 or any other provision of this Agreement shall require or obligate the Company or any of its Subsidiaries or Affiliates to, and Acquiror and its Affiliates shall not, without the prior written consent of the Company, agree or otherwise be required to, take any action with respect to the Company or any of its Subsidiaries or Affiliates, including selling, divesting, or otherwise disposing of, licensing, holding separate, or taking or committing to take any action that limits in any respect its freedom of action with respect to, or its ability to retain, any business, products, rights, services, licenses, assets or properties of the Company or any of its Subsidiaries or Affiliates, or any interest therein.
(d) Each party shall promptly notify the other party of any substantive communication with, and furnish to such party copies of any notices or written communications received by, the party or any of its Affiliates and any third party or Governmental Authority with respect to the Transactions, and such party shall permit counsel to the other party an opportunity to review in advance, and such party shall consider in good faith the views of such counsel in connection with, any proposed communications by such party or its Affiliates to any Governmental Authority concerning the Transactions; provided that such party shall not extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority to delay the consummation of the Transactions without the written consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed). Each party agrees to provide the other party and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such party or any of its Affiliates, agents or advisors, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the Transactions. Any materials exchanged in connection with this Section 8.01 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns of legal counsel of such party, and to remove references concerning the valuation of the Company or other competitively sensitive material; provided that each party may, as it deems advisable and necessary, designate any materials provided to the other party under this Section 8.01 as “outside counsel only.”
(e) Acquiror and the Company shall each be responsible for the payment of fifty percent (50%) of any filing fees payable to the Regulatory Consent Authorities or any other Governmental Authorities (including the SEC) in connection with the Transactions.
(f) Each party shall not, and shall cause its Subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or take any other action, if the entering into of a definitive
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agreement relating to, or the consummation of, such acquisition, merger or consolidation, or the taking of any other action, would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any authorizations, consents, orders or declarations of any Regulatory Consent Authorities or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the Transaction; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the Transactions.
8.02 Support of Transaction. Without limiting any covenant contained in Article VI or Article VII, including the obligations of the Company and Acquiror with respect to the notifications, filings, reaffirmations and applications described in Section 8.01, which obligations shall control to the extent of any conflict with the succeeding provisions of this Section 8.02, Acquiror and the Company shall each, and shall each cause their respective Subsidiaries to: (a) use reasonable best efforts to assemble, prepare and file any information (and, as needed, to supplement such information) as may be reasonably necessary to obtain as promptly as practicable all governmental and regulatory consents required to be obtained in connection with the Transactions; (b) use reasonable best efforts to obtain all material consents and approvals of third parties that any of Acquiror, the Company, or their respective Affiliates are required to obtain in order to consummate the Transactions, including any required approvals of parties to material Contracts with the Company or its Subsidiaries; and (c) take such other action as may reasonably be necessary or as another party may reasonably request to satisfy the conditions of Article IX or otherwise to comply with this Agreement and to consummate the Transactions as soon as practicable. Notwithstanding the foregoing, in no event shall Acquiror, the Company or its Subsidiaries be obligated to bear any expense or pay any fee (other than ordinary course legal fees and expenses or payments to a Governmental Authority) or, except for Acquiror and the Company in accordance with Section 8.01(e), grant any concession to a third party in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which the Company or its Subsidiaries is a party or otherwise in connection with the consummation of the Transactions.
8.03 Preparation of Registration Statement; Special Meeting.
(a) The Company agrees to use its reasonable best efforts to provide Acquiror with all information regarding the results of operations, management and business of the Company and its Subsidiaries required by Acquiror to be included in the Registration Statement, including unaudited financial statements, including consolidated balance sheets and consolidated statements of income, changes in shareholder equity, and cash flows, of the Company as at and for the nine months ended March 28, 2021, in each case, prepared in accordance with GAAP and Regulation S-X (the “Unaudited Interim Financial Statements”). The Company shall use its reasonable best efforts, and the Company shall cause its Subsidiaries to use their reasonable best efforts, to cause their officers and employees to, in each case, during normal business hours and upon reasonable advanced notice, reasonably cooperate with Acquiror and its counsel in connection with (i) the drafting of the Registration Statement and (ii) responding in a timely manner to comments on the Registration Statement from the SEC. Without limiting the generality of the foregoing, the Company shall use its reasonable best efforts to reasonably cooperate with Acquiror in connection with Acquiror’s preparation for inclusion in the Registration Statement of pro forma financial statements that comply with the requirements of Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC) to the extent such pro forma financial statements are required by Schedule 14A (it being understood that the obligation to prepare such financial statements shall be the obligation of Acquiror).
(b) As promptly as practicable following the execution and delivery of this Agreement (and in any event on or prior to the fifth (5th) Business Day following the delivery of the Unaudited Interim Financial Statements which fifth (5th) Business Day shall in no event be earlier than the twentieth (20th) day following the date of this Agreement), Acquiror and the Company shall prepare and mutually agree on (such agreement not to be unreasonably withheld or delayed), and Acquiror shall file with the SEC, a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of the Surviving Company Class A Common Stock (including the Surviving Company Class A Common Stock into which shares of Surviving Company Class B Common Stock are convertible) to be issued under this Agreement, which Registration Statement will also contain the Proxy Statement. The Registration Statement shall include for registration all shares of Surviving Company Class A Common Stock (including the Surviving Company Class A Common Stock into which shares of Surviving Company Class B Common Stock or Surviving Company Preferred Stock are convertible, to the extent eligible for registration on the Registration Statement) to be issued under this Agreement, including the Earnout Shares.
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(c) Each of Acquiror and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Registration Statement and any amendment to the Registration Statement filed in response thereto. If Acquiror or the Company becomes aware that any information contained in the Registration Statement shall have become false or misleading in any material respect or that the Registration Statement is required to be amended in order to comply with applicable Law, then (i) such party shall promptly inform the other parties and (ii) Acquiror, on the one hand, and the Company, on the other hand, shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed) an amendment or supplement to the Registration Statement. Acquiror and the Company shall use reasonable best efforts to cause the Registration Statement as so amended or supplemented, to be filed with the SEC and to be disseminated to the Acquiror Stockholders in each case pursuant to applicable Law and subject to the terms and conditions of this Agreement and the Acquiror Governing Documents. Each of the Company and Acquiror shall provide the other parties with copies of any written comments, and shall inform such other parties of any oral comments, that Acquiror receives from the SEC or its staff with respect to the Registration Statement promptly after the receipt of such comments and shall give the other parties a reasonable opportunity to review and comment on any proposed written or oral responses to such comments prior to responding to the SEC or its staff.
(d) Acquiror agrees to include provisions in the Proxy Statement and to take reasonable action related thereto, with respect to (i) the adoption and approval of the Business Combination (as defined in the Acquiror Governing Documents) and this Agreement (the “Transaction Proposal”), (ii) the adoption and approval of the Domestication (the “Domestication Proposal”), (iii) the adoption and approval of the governing documents of Acquiror contemplated by the Acquiror Certificate of Incorporation (the “Governing Document Proposal”), (iv) to the extent required by the NYSE listing rules, the adoption and approval of the issuance of the Aggregate Closing Common Stock Consideration (together with the Earnout Shares), the Acquiror Class A Common Stock and the Acquiror Preferred Stock (including the underlying shares of Acquiror Class A Common Stock) pursuant to the Forward Purchase Contract, the Subscription Agreements or pursuant to Section 7.03(b) (the “NYSE Proposal”), (v) the adoption and approval of the Acquiror Omnibus Incentive Plan (the “Acquiror Omnibus Incentive Plan Proposal”), (vi) the adoption and approval of the Acquiror Employee Stock Purchase Plan (the “Acquiror Employee Stock Purchase Plan Proposal”), (vii) adjournment of the Special Meeting, if necessary, for up to 15 days to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing proposals (the “Acquiror Adjournment Proposal”) and (viii) the adoption and approval of any other proposals reasonably agreed by Acquiror and the Company to be necessary or appropriate in connection with the Transaction (the “Additional Proposal” and together with the Transaction Proposal, the Domestication Proposal, the Governing Document Proposal, the NYSE Proposal, the Acquiror Omnibus Incentive Plan Proposal, the Acquiror Employee Stock Purchase Plan Proposal and the Acquiror Adjournment Proposal, the “Proposals”). The Acquiror Omnibus Incentive Plan Proposal shall provide that an aggregate number of shares of Acquiror Class A Common Stock equal to the percentage set forth on Schedule 8.03(d) of the outstanding shares of Acquiror Class A Common Stock as of Closing shall be reserved for issuance pursuant to the Acquiror Omnibus Incentive Plan, subject to annual increases as provided therein, and the Acquiror Employee Stock Purchase Plan Proposal shall provide that an aggregate number of shares of Acquiror Class A Common Stock equal to the percentage set forth on Schedule 8.03(d) of the outstanding shares of Acquiror Class A Common Stock as of Closing shall be reserved for issuance pursuant to the Acquiror Employee Stock Purchase Plan, subject to annual increases as provided therein. Without the prior written consent of the Company, the Proposals shall be the only matters (other than procedural matters) which Acquiror shall propose to be acted on by the Acquiror Stockholders at the Special Meeting.
(e) Acquiror and the Company each shall use their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement, (iii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, Acquiror shall cause the Proxy Statement to be mailed to the Acquiror Stockholders. Each of Acquiror and the Company shall promptly furnish all information concerning it as may reasonably be requested by the other party in connection with such actions and the preparation of the Registration Statement.
(f) Except as required by applicable Law, no filing of, or amendment or supplement to the Registration Statement will be made by Acquiror or the Company without the approval of the other party (such approval not to be unreasonably withheld, conditioned or delayed). Acquiror and the Company each will advise the other,
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promptly after they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Surviving Company Class A Common Stock to be issued or issuable to the stockholders of the Company in connection with this Agreement for offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information.
(g) Acquiror shall (A) as promptly as practicable following the effectiveness of the Registration Statement (and in no event later than the date the Proxy Statement is required to be mailed in accordance with clause (B) below) establish the record date (which record date shall be mutually agreed with the Company) for, duly call, give notice of, convene and hold the Special Meeting (which Special Meeting shall be held not more than 25 days after the date on which Acquiror commences the mailing of the Proxy Statement to its stockholders of record in accordance with clause (B) below), (B) cause the Proxy Statement to be mailed to its stockholders of record, as of the record date, as promptly as practicable (but in no event later than three (3) Business Days except as otherwise required by applicable Law) following the earlier to occur of: (x) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; or (y) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC, and (C) thereafter, solicit proxies from the Acquiror Stockholders to vote in accordance with the recommendation of the Acquiror Board with respect to each of the Proposals. Acquiror shall, through the Acquiror Board, recommend to its stockholders that they approve the Proposals (the “Acquiror Board Recommendation”) and shall include the Acquiror Board Recommendation in the Proxy Statement, unless the Acquiror Board shall have changed the recommendation in accordance with this Section 8.03(g). The Acquiror Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Acquiror Board Recommendation (an “Acquiror Change in Recommendation”); provided that if, at any time prior to obtaining the Acquiror Stockholder Approval, the Acquiror Board determines in good faith following receipt of a legal opinion from outside legal counsel that the failure to effect an Acquiror Change in Recommendation with respect to such Intervening Event would breach the Acquiror Board’s fiduciary duties under applicable Law then, in each case, Acquiror or the Acquiror Board may, prior to obtaining the Acquiror Stockholder Approval, make an Acquiror Change in Recommendation; provided, further, that Acquiror will not be entitled to make, or agree or resolve to make, an Acquiror Change in Recommendation unless (i) Acquiror delivers to the Company a written notice (an “Acquiror Change in Recommendation Notice”) advising the Company that the Acquiror Board proposes to take such action and containing a reasonable description of the Intervening Event that is the basis of the proposed action of the Acquiror Board, together with a copy of the aforementioned legal opinion from outside legal counsel (it being acknowledged that such Acquiror Change in Recommendation Notice shall not itself constitute a breach of this Agreement), and (ii) at or after 5:00 p.m., New York City time, on the tenth (10th) Business Day immediately following the day on which Acquiror delivered the Acquiror Change in Recommendation Notice (such period from the time the Acquiror Change in Recommendation Notice is provided until 5:00 p.m. New York City time on the tenth (10th) Business Day immediately following the day on which Acquiror delivered the Acquiror Change in Recommendation Notice, the “Acquiror Change in Recommendation Notice Period”), the Acquiror Board reaffirms in good faith following the receipt of a legal opinion from outside legal counsel that the failure to make an Acquiror Change in Recommendation would breach the Acquiror Board’s fiduciary duties under applicable Law. If requested by the Company, Acquiror will and will use its reasonable best efforts to cause its Representatives to, during the Acquiror Change in Recommendation Notice Period, engage in good faith negotiations with the Company and its Representatives to make such adjustments in the terms and conditions of this Agreement so as to obviate the need for an Acquiror Change in Recommendation. Acquiror’s obligations under this Section 8.03 to call and hold the Special Meeting with respect to all Proposals shall not be affected by any Acquiror Change in Recommendation.
8.04 Tax Matters.
(a) Tax Treatment. Acquiror and the Company intend that the Transactions shall qualify for the Intended Tax Treatment. None of the parties or their respective Affiliates shall take or cause to be taken, or knowingly fail to take or knowingly cause to be failed to be taken, any action that would reasonably be expected to prevent the Transactions from qualifying for such Intended Tax Treatment. Each party shall, unless otherwise required by a final determination within the meaning of Section 1313(a) of the Code (or any similar state, local or non-U.S. final determination), cause all Tax Returns to be filed on a basis consistent with the Intended Tax Treatment. Each of the parties agrees to use reasonable best efforts to promptly notify all other parties of any challenge to the Intended Tax Treatment by any Governmental Authority.
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(b) The Company and Acquiror hereby adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulation Sections 1.368-2(g) and 1.368-3(a).
(c) Each of Acquiror and the Company shall use their respective reasonable best efforts and cooperate with one another and Tax Opinion Counsel in order for (i) the Company to obtain the Tax Opinion and (ii) any Tax opinions required to be filed with the SEC in connection with the Registration Statement to be obtained. Each of Acquiror and the Company shall use reasonable best efforts to deliver to Tax Opinion Counsel customary representation letters, in form and substance reasonably acceptable to Tax Opinion Counsel, dated as of the Closing Date or such time or times as may be reasonably requested by Tax Opinion Counsel. The Company shall reasonably promptly notify Acquiror if the Company becomes aware of any fact or circumstance indicating that Paul, Weiss, Rifkind, Wharton & Garrison LLP will not deliver the Tax Opinion. If Tax Opinion Counsel will not deliver the Tax Opinion, the Company and Acquiror shall cooperate and use good faith efforts to consider and negotiate such amendments to this Agreement as may be reasonably required in order for Tax Opinion Counsel to deliver the Tax Opinion (it being understood that no party shall be required to agree to any such amendment which, in the good faith judgment of such party, would subject it to any material economic, legal, regulatory, reputational or other cost or detriment).
(d) At the Closing, the Company shall deliver to Acquiror a certificate and notice to the Internal Revenue Service that complies with Sections 897 and 1445 of the Code and the applicable Treasury Regulations certifying that interests in the Company are not U.S. real property interests within the meaning of Section 897 of the Code.
(e) Following the Closing, the Surviving Company shall provide former shareholders of Acquiror with any information required to file IRS Form 8621 (including any information necessary to make a qualified electing fund election) and/or IRS Form 5471 with respect to the period prior to the Domestication.
8.05 Confidentiality; Publicity.
(a) Each party hereto acknowledges that the information being provided to it in connection with this Agreement and the consummation of the Transactions is subject to the terms of the Confidentiality Agreement, the terms of which are incorporated herein by reference.
(b) None of Acquiror, the Company or any of their respective Affiliates shall make, and the Company shall cause its Subsidiaries not to make and Acquiror shall direct the Sponsor not to make (and shall be liable for any breach of this Section 8.05(b) by the Sponsor as if Sponsor was a party to this Agreement) any public announcement or issue any public communication regarding this Agreement or the Transactions or any matter related to the foregoing, without first obtaining the prior consent of the Company or Acquiror, as applicable (which consent shall not be unreasonably withheld, conditioned or delayed), except to the extent such announcement or other communication is required by applicable Law or legal process (including pursuant to the Securities Law or the rules of any national securities exchange), in which case Acquiror or the Company, as applicable, shall use their reasonable best efforts to coordinate such announcement or communication with the other party, prior to announcement or issuance and allow the other party a reasonable opportunity to comment thereon (which shall be considered by Acquiror or the Company, as applicable, in good faith); provided, however, that, notwithstanding anything contained in this Agreement to the contrary, (i) each party and its Affiliates may make customary disclosures of summarized information regarding this Agreement and the Transactions to their respective owners, their Affiliates, and its and their respective directors, officers, employees, managers, advisors, direct and indirect investors and prospective investors without the consent of any other party hereto and (ii) the Company and its Affiliates, without consulting with Acquiror, may provide ordinary course communications regarding this Agreement, any of the other Transaction Documents and the Transactions to existing or prospective general and limited partners, equity holders, members, managers and investors of any Affiliates of such Person, in each case of clauses (i) and (ii), who are subject to customary confidentiality restrictions; provided, further, that subject to Section 8.07 and this Section 8.05, the foregoing shall not prohibit any party hereto from communicating with third parties to the extent necessary for the purpose of seeking any third party consent.
8.06 Post-Closing Cooperation; Further Assurances. Following the Closing, each party shall, on the request of any other party, execute such further documents, and perform such further acts, as may be reasonably necessary or appropriate to give full effect to the allocation of rights, benefits, obligations and liabilities contemplated by this Agreement and the Transactions.
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8.07 Inspection.
(a) Subject to confidentiality obligations and similar restrictions that may be applicable to information furnished to the Group Companies by third parties that may be in the Group Companies’ possession from time to time, and except for any information which (x) relates to interactions with prospective buyers of the Company or the negotiation of this Agreement and the Transactions or (y) in the judgment of legal counsel of the Company would result in the loss of attorney-client privilege or other privilege or similar protection from disclosure or would conflict with any applicable Law or confidentiality obligations to which the Group Companies are bound, the Company shall, and shall cause its Subsidiaries to, afford to Acquiror and its Representatives reasonable access during the Interim Period, during normal business hours and with reasonable advance notice, in such manner as to not interfere with the normal operation of the Group Companies, to all of their respective properties, books, projections, plans, systems, Contracts, commitments, Tax Returns, records, commitments, analyses and appropriate officers and employees of the Group Companies, and shall furnish such Representatives with all financial and operating data and other information concerning the affairs of the Group Companies that are in the possession of the Group Companies as such Representatives may reasonably request; provided that such access shall not include any unreasonably invasive or intrusive investigations or other testing, sampling or analysis of any properties, facilities or equipment of the Group Companies without the prior written consent of the Company. The parties shall use reasonable best efforts to make alternative arrangements for such disclosure where the restrictions in the preceding sentence apply. All information obtained by Acquiror and its Representatives under this Agreement shall be subject to the Confidentiality Agreement prior to the Effective Time.
(b) Subject to confidentiality obligations and similar restrictions that may be applicable to information furnished to Acquiror by third parties that may be in Acquiror’s possession from time to time, and except for any information which (x) relates to the negotiation of this Agreement and the Transactions or (y) in the judgment of legal counsel of Acquiror would result in the loss of attorney-client privilege or other privilege or similar protection from disclosure or would conflict with any applicable Law or confidentiality obligations to which Acquiror is bound, Acquiror shall, and shall cause its Subsidiaries to, afford the Company and its Representatives reasonable access during the Interim Period, during normal business hours and with reasonable advance notice, in such manner as to not interfere with the normal operation of Acquiror, to all of their respective properties, books, projections, plans, systems, Contracts, commitments, Tax Returns, records, commitments, analyses and appropriate officers and employees of Acquiror, and shall furnish such Representatives with all financial and operating data and other information concerning the affairs of Acquiror that are in the possession of the Acquiror as such Representatives may reasonably request; provided that such access shall not include any unreasonably invasive or intrusive investigations or other testing, sampling or analysis of any properties, facilities or equipment of Acquiror without the prior written consent of the Acquiror. The parties shall use reasonable best efforts to make alternative arrangements for such disclosure where the restrictions in the preceding sentence apply. All information obtained by the Company under this Agreement shall be subject to the Confidentiality Agreement prior to the Effective Time,
8.08 Acquiror Omnibus Incentive Plan.Acquiror shall, prior to the Effective Time, (i) adopt and approve the Acquiror Omnibus Incentive Plan to be effective in connection with the Closing, in the form set forth on Exhibit J and (ii) adopt and approve the Acquiror Employee Stock Purchase Plan, to be effective in connection with the Closing, in the form set forth on Exhibit K.
8.09 Stockholder Litigation.The Company shall promptly advise Acquiror, and Acquiror shall promptly advise the Company, as the case may be, of any Action commenced (or to the knowledge of the Company or the knowledge of Acquiror (as applicable), threatened) after the date of this Agreement against such party, any of its Subsidiaries or any of its directors (any such party, as applicable, a “Defending Party”) by any Company Stockholder or any Acquiror Stockholder relating to this Agreement, the Merger or any of the other Transactions, and the Defending Party shall keep the other party reasonably informed regarding any such litigation. The Defending Party shall control the defense of any such Action, provided that the Defending Party (a) shall give the other party a reasonable opportunity to participate (at its own expense) in the defense of (or any settlement discussions with respect to) any such Action against the Company or Acquiror or any of their respective directors, (b) shall keep the other party informed as to the status thereof and (c) shall not settle, compromise, come to an arrangement regarding or cease defending against (or agree or consent to any of the foregoing with respect to) any such Action against the Company or Acquiror or any of its directors without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed).
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Article IX
CONDITIONS TO OBLIGATIONS
9.01 Conditions to Obligations of All Parties. The obligations of the parties hereto to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following conditions, any one or more of which may be waived (if legally permitted) in writing by all of such parties:
(a) Antitrust Law Approval. All applicable waiting periods (and any extensions thereof) under the HSR Act in respect of the Transactions shall have expired or been terminated.
(b) No Prohibition. There shall not have been entered, enacted or promulgated any Law following the date of this Agreement enjoining or prohibiting the consummation of the Transactions.
(c) Offer Completion. The Offer shall have been completed in accordance with the terms hereof and the Proxy Statement.
(d) Net Tangible Assets. Acquiror shall have at least five million one dollars ($5,000,001) of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) remaining after the Offer.
(e) Acquiror Stockholder Approval. The Acquiror Stockholder Approval shall have been obtained.
(f) Company Stockholder Approval. The Company Stockholder Approval shall have been obtained.
(g) Registration Statement. The Registration Statement shall have been declared effective under the Securities Act, no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for purposes of suspending the effectiveness of the Registration Statement shall have been initiated or be threatened by the SEC and not withdrawn.
(h) NYSE. The Surviving Company Class A Common Stock (i) to be issued in connection with the Transactions (including the Earnout Shares) and (ii) into which shares of Surviving Company Preferred Stock are convertible, in each case, shall have been approved for listing on NYSE, subject only to official notice of issuance thereof and the requirement to have a sufficient number of round lot holders.
(i) Acquiror Governing Documents. The Acquiror Certificate of Incorporation shall have been filed with the Secretary of State of the State of Delaware, substantially in the form attached hereto as Exhibit A, and Acquiror shall have adopted the Acquiror Bylaws, substantially in the form attached hereto as Exhibit B.
(j) Preferred COD. The Preferred COD shall have been filed with the Secretary of State of the State of Delaware.
(k) Tax Opinion. The Company and Acquiror shall have received the Tax Opinion.
9.02 Additional Conditions to Obligations of Acquiror. The obligation of Acquiror to consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror:
(a) Representations and Warranties.
(i) Each of the representations and warranties of the Company contained in Section 4.01(a) (Corporate Organization of the Company), Section 4.02 (Due Authorization) and Section 4.14 (Brokers’ Fees), in each case, shall be true and correct (without giving any effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) in all material respects as of the Closing Date, as if made anew at and as of that time.
(ii) The representations and warranties of the Company contained in Section 4.18(a) (Absence of Changes) shall be true and correct in all respects as of the Closing Date, as if made anew at and as of that time.
(iii) The representations and warranties of the Company contained in Section 4.05(a) and (b) (Capitalization) shall be true and correct, other than de minimis inaccuracies, as of the Closing Date, as if made anew at and as of that time.
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(iv) Each of the representations and warranties of the Company contained in this Agreement (other than the representations and warranties of the Company described in Sections 9.02(a)(i), (ii) and (iii)) shall be true and correct (without giving any effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) as of the Closing Date as though then made (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(b) Agreements and Covenants. The covenants of the Company to be performed or complied with as of or prior to the Closing shall have been performed or complied with in all material respects.
(c) Officer’s Certificate. The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.02(a) and Section 9.02(b) have been fulfilled.
(d) Material Adverse Effect. No Effect shall have occurred between the date of this Agreement and the Closing Date that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
9.03 Additional Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) Representations and Warranties.
(i) Each of the representations and warranties of Acquiror contained in Section 5.01 (Corporate Organization), Section 5.02 (Due Authorization) and Section 5.12(d)(i) (Business Activities; Absence of Changes), in each case shall be true and correct (without giving effect to any limitation as to “materiality,” “Acquiror Material Adverse Effect” or any similar limitation set forth therein) in all material respects as of the Closing Date, as if made anew at and as of that time.
(ii) The representations and warranties of Acquiror contained in Section 5.15(a) and (b)(Capitalization) shall be true and correct, other than de minimis inaccuracies, as of the Closing Date, as if made anew at and as of that time.
(iii) Each of the representations and warranties of Acquiror contained in this Agreement (other than the representations and warranties of Acquiror described in Section 9.03(a)(i) and (ii)) shall be true and correct (without giving effect to any limitation as to “materiality,” “Acquiror Material Adverse Effect” or any similar limitation set forth therein) as of the Closing Date, as if made anew at and as of that time, except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to result in, an Acquiror Material Adverse Effect.
(b) Agreements and Covenants. The covenants of Acquiror to be performed or complied with as of or prior to the Closing shall have been performed or complied with in all material respects.
(c) Officer’s Certificate. Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.03(a) and Section 9.03(b) have been fulfilled.
(d) Existing Credit Agreements. Acquiror shall, in respect of the Existing First Lien Credit Agreement, comply with the requirements of clause (b) of the definition of “Holdings Reorganization Transaction” (as set forth in the Existing First Lien Credit Agreement) in a manner reasonably satisfactory to the Company; provided that delivery of a letter in substantially in the form previously provided to Acquiror, will be deemed reasonably satisfactory to the Company.
(e) Material Adverse Effect. No Effect shall have occurred between the date of this Agreement and the Closing Date that has had or would reasonably be expected to have, individually or in the aggregate, an Acquiror Material Adverse Effect.
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(f) Resignations. The Company shall have received written copies of irrevocable resignations from all of the directors and executive officers of Acquiror (other than any director who will become a member of the Surviving Company Board or any executive officer who will be an executive officer of the Surviving Company in accordance with the express terms of this Agreement), in each case effective as of the Effective Time.
(g) Company’s Required Funds. The Closing Acquiror Cash shall equal or exceed the Company’s Required Funds; provided, however, that in the event the Closing Acquiror Cash is less than the Company’s Required Funds, the Company shall have the right to elect to (i) waive the condition set forth in this Section 9.03(g) and (ii) reduce the Cash Election Consideration Cap by up to 100% of such shortfall. If the Cash Election Consideration Cap is reduced in accordance with the immediately preceding sentence, the Option Election Consideration Cap shall be reduced by the same percentage by which the Cash Election Consideration Cap is reduced.
(h) Election of Directors and Appointment of Officers. The Company shall have received written evidence from Acquiror of the election of the individuals set forth on Schedule 2.06 to the Surviving Company Board in accordance with Section 2.06 and the appointment of the individuals set forth on Schedule 2.06 as the officers of the Surviving Company, in each case solely to the extent consistent with the requirements of Section 2.06.
Article X
TERMINATION/EFFECTIVENESS
10.01 Termination. This Agreement may be terminated and the Transactions abandoned:
(a) by written consent of the Company and Acquiror;
(b) prior to the Closing, by written notice to the Company from Acquiror if (i) there is any breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, such that any of the conditions specified in Section 9.02(a) or Section 9.02(b) would not be satisfied at the Closing (a “Terminating Company Breach”), except that, if such Terminating Company Breach is curable by the Company through the exercise of its reasonable best efforts, then, for a period of up to 30 days (or any shorter period of the time that remains between the date Acquiror provides written notice of such violation or breach and the Termination Date) after receipt by the Company of notice from Acquiror of such breach, but only as long as the Company continues to use its reasonable best efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period, (ii) the Unaudited Interim Financial Statements shall not have been delivered to Acquiror by the Company on or before November 1, 2021, (iii) the Closing has not occurred on or before February 1, 2022 (the “Termination Date”)), or (iv) the consummation of the Merger is permanently enjoined or prohibited by the terms of a final, non-appealable Governmental Order or other Law; provided, that the right to terminate this Agreement under Section 10.01(b)(ii) shall not be available if Acquiror’s failure to fulfill any obligation under this Agreement has been the primary cause of, or primarily resulted in, the failure of the Closing to occur on or before such date; provided, further, that the right to terminate this Agreement under Section 10.01(b)(ii) shall not be available if Acquiror is in material breach of its obligations under this Agreement on such date;
(c) prior to the Closing, by written notice to Acquiror from the Company if (i) there is any breach of any representation, warranty, covenant or agreement on the part of Acquiror set forth in this Agreement, such that any of the conditions specified in Section 9.03(a) or Section 9.03(b) would not be satisfied at the Closing (a “Terminating Acquiror Breach”), except that, if any such Terminating Acquiror Breach is curable by Acquiror through the exercise of its reasonable best efforts, then, for a period of up to 30 days (or any shorter period of the time that remains between the date the Company provides written notice of such violation or breach and the Termination Date) after receipt by Acquiror of notice from the Company of such breach, but only as long as Acquiror continues to exercise such reasonable best efforts to cure such Terminating Acquiror Breach (the “Acquiror Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Acquiror Breach is not cured within the Acquiror Cure Period, (ii) the Closing has not occurred on or before the Termination Date, or (iii) the consummation of the Merger is permanently enjoined or prohibited by the terms of a final, non-appealable Governmental Order or other Law; provided, that the right to terminate this Agreement under Section 10.01(c)(ii) shall not be available if the Company’s failure to fulfill any obligations under this Agreement has been the primary cause of, or primarily resulted in, the failure of the Closing to occur on or before such date; provided, further, that the right to terminate this Agreement under Section 10.01(c)(ii) shall not be available if the Company is in material breach of its obligations under this Agreement on such date;
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(d) by written notice from either the Company or Acquiror to the other if the Acquiror Stockholder Approval is not obtained at the Special Meeting (subject to any adjournment or recess of the meeting);
(e) by written notice from Acquiror to the Company at any time prior to the delivery of the Written Consent if the Company does not deliver the Written Consent within five Business Days of the effectiveness of the Registration Statement; or
(f) by written notice from the Company to Acquiror, in the event of an Acquiror Change in Recommendation.
10.02 Effect of Termination. Except as otherwise set forth in this Section 10.02, in the event of the termination of this Agreement pursuant to Section 10.01, this Agreement shall forthwith become void and have no effect, without any Liability on the part of any party hereto or its respective direct or indirect equityholders, controlling persons, partners, members, managers, stockholders, directors, officers, employees, Affiliates, agents or other representatives of such party hereto or such party hereto’ s Affiliates or its or any of the foregoing’s successors or assigns, other than Liability of any party hereto for any Willful Breach of this Agreement or Fraud by such party occurring prior to such termination subject to Section 6.02. The provisions of Sections 6.02, 8.05, 10.02 and Article XI (collectively, the “Surviving Provisions”) and the Confidentiality Agreement, and any other Section or Article of this Agreement referenced in the Surviving Provisions, which are required to survive in order to give appropriate effect to the Surviving Provisions, shall in each case survive any termination of this Agreement.
Article XI
MISCELLANEOUS
11.01 Waiver. Any party to this Agreement may, at any time prior to the Closing, by action taken by its board of directors, or officers thereunto duly authorized, waive any of the terms or conditions of this Agreement, or agree to an amendment or modification to this Agreement in the manner contemplated by Section 11.09 and by an agreement in writing executed in the same manner (but not necessarily by the same Persons) as this Agreement.
11.02 Notices. All notices and other communications among the parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service or (iv) when emailed during normal business hours (and otherwise as of the immediately following Business Day), addressed as follows:
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(a)
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If to Acquiror, to:
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Isos Acquisition Corporation
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55 Post Road W, Suite 200
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Westport, CT 06880
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Attn:
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Winston Meade
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Email:
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wmeade@isoscap.com
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with a copy to:
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Hughes Hubbard & Reed LLP
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One Battery Park Plaza
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New York NY 10004
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Attn:
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Anson B. Frelinghuysen
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anson.frelinghuysen@hugheshubard.com
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(b)
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If to the Company to:
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Bowlero Corp.
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222 West 44th Street
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New York, NY 10036
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Attn:
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Brett I. Parker
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with a copy to:
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Paul, Weiss, Rifkind, Wharton & Garrison LLP
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1285 Avenue of the Americas
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New York, NY 10019
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Attn:
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Jeffrey D. Marell
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Michael Vogel
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Email:
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jmarell@paulweiss.com
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mvogel@paulweiss.com
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or to such other address or addresses as the parties may from time to time designate in writing.
11.03 Assignment. No party hereto shall assign this Agreement or any part hereof without the prior written consent of the other parties. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. Any attempted assignment in violation of the terms of this Section 11.03 shall be null and void, ab initio.
11.04 Rights of Third Parties. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the parties hereto, any right or remedies under or by reason of this Agreement; provided, however, that, notwithstanding the foregoing, in the event the Closing occurs, (a) the present and former officers and directors of each of the Company, its Subsidiaries and Acquiror (and their successors, heirs and representatives) are intended third-party beneficiaries of, and may enforce, Section 7.01, (b) the past, present and future directors, officers, employees, incorporators, members, partners, stockholders, Affiliates, agents, attorneys, advisors and representatives of the parties, and any Affiliate of any of the foregoing (and their successors, heirs and representatives), are intended third-party beneficiaries of, and may enforce, Sections 10.02, 11.13 and 11.15, (c) the Company’s existing stockholders, and any of their respective Affiliates (and their successors, heirs and representatives), are intended third-party beneficiaries of, and may enforce, Section 3.07 and Annex I and (d) the Acquiror Parties, HHR, the Company Parties, PWRW&G and Davis Polk are intended third-party beneficiaries of, and may enforce, Section 11.16.
11.05 Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the Transactions, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.
11.06 Captions; Counterparts. The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
11.07 Schedules and Exhibits. The Schedules, Acquiror Schedules and Exhibits referenced herein are a part of this Agreement as if fully set forth herein. All references herein to Schedules, Acquiror Schedules and Exhibits shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. Any disclosure made by a party in the Schedules or Acquiror Schedules with reference to any section or schedule of this Agreement shall be deemed to be a disclosure with respect to all other sections or schedules to which such disclosure may apply solely to the extent the relevance of such disclosure is reasonably apparent on the face of the disclosure in such Schedule or Acquiror Schedule. Certain information set forth in the Schedules and Acquiror Schedules is included solely for informational purposes.
11.08 Entire Agreement. This Agreement (together with the Schedules, Acquiror Schedules and Exhibits to this Agreement), the other Transaction Documents and the Confidentiality Agreement constitute the entire agreement among the parties relating to the Transactions and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the parties hereto or any of their respective Subsidiaries relating to the Transactions. No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the Transactions exist between the parties except as expressly set forth or referenced in this Agreement, the other Transaction Documents and the Confidentiality Agreement.
Annex A-71
Table of Contents
11.09 Amendments. This Agreement may be amended or modified in whole or in part, only by a duly authorized agreement in writing executed in the same manner as this Agreement and which makes reference to this Agreement. The approval of this Agreement by the stockholders of any of the parties shall not restrict the ability of the board of directors of any of the parties to terminate this Agreement in accordance with Section 10.01 or to cause such party to enter into an amendment to this Agreement pursuant to this Section 11.09.
11.10 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties.
11.11 Jurisdiction; WAIVER OF TRIAL BY JURY. Any Action based upon, arising out of or related to this Agreement, or the Transactions, shall be brought in the Court of Chancery of the State of Delaware or, if such court declines to exercise jurisdiction, any federal court located in the District of Delaware, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such Action, waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of the Action shall be heard and determined only in any such court, and agrees not to bring any Action arising out of or relating to this Agreement or the Transactions in any other court. Notwithstanding the foregoing, the parties may enforce the decision of such courts in any court of competent jurisdiction. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by Law, or to commence legal proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Action brought pursuant to this Section 11.11. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS.
11.12 Enforcement. The parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties do not perform their obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate this Agreement) in accordance with its specified terms or otherwise breach such provisions. The parties acknowledge and agree that (a) the parties shall be entitled to an injunction, specific performance, or other equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, without proof of damages, prior to the valid termination of this Agreement in accordance with Section 10.01, this being in addition to any other remedy to which they are entitled under this Agreement, and (b) the right of specific enforcement is an integral part of the Transactions and without that right, none of the parties would have entered into this Agreement. Each party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other parties have an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The parties acknowledge and agree that any party seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 11.12 shall not be required to provide any bond or other security in connection with any such injunction.
11.13 Non-Recourse. Each party to this Agreement agrees, on behalf of itself and its Related Parties, that all Actions (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to: (a) this Agreement, any of the other Transaction Documents or any of the Transactions; (b) the negotiation, execution or performance of this Agreement or any of the other Transaction Documents (including any representation or warranty made in connection with, or as an inducement to, this Agreement or any of the other Transaction Documents); (c) any breach or violation of this Agreement or any of the other Transaction Documents; and (d) any failure of any of the Transactions to be consummated, in each case, may be made only against (and are those solely of) the Persons that are, in the case of this Agreement, expressly identified as parties to this Agreement, and in the case of the other Transaction Documents, Persons expressly identified as parties to such Transaction Documents and in accordance with, and subject to the terms and conditions
Annex A-72
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of, this Agreement or such Transaction Documents, as applicable. Notwithstanding anything in this Agreement or any of the other Transaction Documents to the contrary, each party to this Agreement agrees, on behalf of itself and its Related Parties, that no recourse under this Agreement or any of the other Transaction Documents or in connection with any of the Transactions or under any other Transaction Document will be sought or had against any other Person, including any Related Party, and no other Person, including any Related Party, will have any Liabilities (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise), for any claims, causes of action or Liabilities arising under, out of, in connection with or related in any manner to the items in the immediately preceding clauses (a) through (d), it being expressly agreed and acknowledged that no personal Liability or losses whatsoever will attach to, be imposed on or otherwise be incurred by any of the aforementioned, as such, arising under, out of, in connection with or related in any manner to the items in the immediately preceding clauses (a) through (d), in each case, except for claims that the Company or Acquiror, as applicable, may assert (i) against any Person that is party to, and solely pursuant to the terms and conditions of, the Confidentiality Agreement, (ii) against the Company or Acquiror solely in accordance with, and pursuant to the terms and conditions of, this Agreement or (iii) against any Person expressly identified as a party to, and solely pursuant to the terms and conditions of, such Transaction Documents. Notwithstanding anything to the contrary in this Agreement or any of the other Transaction Documents, no Related Party will be responsible or liable for any multiple, consequential, indirect, special, statutory, exemplary or punitive damages that may be alleged as a result of this Agreement or any of the other Transaction Documents or any of the Transactions, or the termination or abandonment of any of the foregoing.
11.14 Nonsurvival of Representations, Warranties and Covenants. None of the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions, shall survive the Closing and shall terminate and expire upon the occurrence of the Effective Time (and there shall be no Liability after the Closing in respect thereof), except for (a) those covenants and agreements contained herein that by their terms expressly apply in whole or in part after the Closing and then only with respect to any breaches occurring after the Closing and (b) this Article XI.
11.15 Acknowledgements. Each of the parties acknowledges and agrees (on its own behalf and on behalf of its respective Affiliates and its and their respective Representatives) that: (i) it has conducted its own independent investigation of the financial condition, results of operations, assets, liabilities, properties and projected operations of the other parties (and their respective Subsidiaries) and has been afforded satisfactory access to the books and records, facilities and personnel of the other parties (and their respective Subsidiaries) for purposes of conducting such investigation; (ii) the Company Representations constitute the sole and exclusive representations and warranties of the Company in connection with the Transactions; (iii) the Acquiror Representations constitute the sole and exclusive representations and warranties of Acquiror; (iv) except for the Company Representations by the Company, the Acquiror Representations by Acquiror and the other representations expressly made by Persons in the Transaction Documents, none of the parties hereto or any other Person makes, or has made, any other express or implied representation or warranty with respect to any party hereto (or any party’s Affiliates) or the Transactions and all other representations and warranties of any kind or nature expressed or implied (including, except to the extent covered by Section 4.20 and Section 5.13, (x) regarding the completeness or accuracy of, or any omission to state or to disclose, any information, including in the estimates, projections or forecasts or any other information, document or material provided to or made available to any party hereto or their respective Affiliates or Representatives in certain “data rooms,” management presentations or in any other form in expectation of the Transactions, including meetings, calls or correspondence with management of any party hereto (or any party’s Subsidiaries), and (y) any relating to the future or historical business, condition (financial or otherwise), results of operations, prospects, assets or liabilities of any party hereto (or its Subsidiaries), or the quality, quantity or condition of any party’s or its Subsidiaries’ assets) are specifically disclaimed by all parties hereto and their respective Subsidiaries and all other Persons (including the Representatives and Affiliates of any party hereto or its Subsidiaries); and (v) each party hereto and its respective Affiliates are not relying on any representations and warranties in connection with the Transactions except the Company Representations by the Company, the Acquiror Representations by Acquiror and the other representations expressly made by Persons in the Transaction Documents.
Annex A-73
Table of Contents
11.16 Conflicts and Privilege.
(a) The Company and Acquiror, each on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among (i) Sponsor, the shareholders or holders of other equity interests of Acquiror or Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Company) (collectively, the “Acquiror Parties”), on the one hand, and (ii) the Surviving Company or any member of the Company Parties, on the other hand, any legal counsel, including Hughes Hubbard & Reed LLP (“HHR”), that represented Acquiror or Sponsor prior to the Closing may represent Sponsor or any other member of the Acquiror Parties, in such dispute even though the interests of such Persons may be directly adverse to the Surviving Company, and even though such counsel may have represented Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Company or Sponsor. The Company and Acquiror, each on behalf of their respective successors and assigns (including, after the Closing, the Surviving Company), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among Acquiror, Sponsor or any other member of the Acquiror Parties, on the one hand, and HHR, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Merger and belong to the Acquiror Parties after the Closing, and shall not pass to or be claimed or controlled by the Surviving Company. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with Acquiror or Sponsor under a common interest agreement shall remain the privileged communications or information of the Surviving Company.
(b) The Company and Acquiror, each on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among (x) the shareholders or holders of other equity interests of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Company) (collectively, the “Company Parties”), on the one hand, and (y) the Surviving Company or any member of the Acquiror Parties, on the other hand, any legal counsel, including Paul, Weiss, Rifkind, Wharton & Garrison LLP (“PWRW&G”) and Davis Polk & Wardwell LLP (“Davis Polk”), that represented the Company prior to the Closing may represent any member of the Company Parties in such dispute even though the interests of such Persons may be directly adverse to the Surviving Company, and even though such counsel may have represented the Company in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Company. The Company and Acquiror, each on behalf of their respective successors and assigns (including, after the Closing, the Surviving Company), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among the Company or any member of the Company Parties, on the one hand, and PWRW&G or Davis Polk, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Merger and belong to the Company Parties after the Closing, and shall not pass to or be claimed or controlled by the Surviving Company. Notwithstanding the foregoing, any privileged communications or information shared by Acquiror or Sponsor prior to the Closing with the Company under a common interest agreement shall remain the privileged communications or information of the Surviving Company.
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IN WITNESS WHEREOF, Acquiror and the Company have caused this Agreement to be executed and delivered as of the date first written above by their respective officers thereunto duly authorized.
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ISOS ACQUISITION CORPORATION
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By:
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/s/ George Barrios
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Name:
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George Barrios
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Title:
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Co-Chief Executive Officer
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By:
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/s/ Michelle Wilson
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Name:
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Michelle Wilson
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Title:
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Co-Chief Executive Officer
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BOWLERO CORP.
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By:
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/s/ Thomas F. Shannon
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Name:
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Thomas F. Shannon
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Title:
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Chief Executive Officer
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[Signature Page to Business Combination Agreement]
Annex A-75
Table of Contents
Annex I
Earnout Merger Consideration
This Annex I sets forth the terms for the calculation of the number (if any) of $15.00 Earnout Shares and $17.50 Earnout Shares, as applicable. Terms used but not defined in this Annex I shall have the meanings ascribed to such terms in the other parts of this Agreement to which this Annex I is a part. This Annex I shall be subject to Section 3.07 in all respects.
1. $15.00 Share Price Milestone. If the closing share price of Surviving Company Class A Common Stock equals or exceeds $15.00 per share for any 10 trading days within any consecutive 20-trading day period that occurs after the Closing Date and on or prior to the 5-year anniversary of the Closing Date (the first occurrence of the foregoing is referred to herein as the “$15.00 Share Price Milestone”, and such date is referred to as the “$15.00 Share Price Milestone Date”), then the Surviving Company shall issue, as promptly as practicable, to each holder of Company Common Stock that as of immediately prior to the Effective Time had an Earnout Pro Rata Portion exceeding zero (0), and Earnout Shares issued to holders of Company Options pursuant to the second sentence of Section 3.07 shall vest to the extent of, a number of shares of Applicable Surviving Company Common Stock equal to such holder’s Earnout Pro Rata Portion of 10,375,000 shares (such number of shares being referred to as the “$15.00 Earnout Shares”).
2. $17.50 Share Price Milestone. If the closing share price of Surviving Company Class A Common Stock equals or exceeds $17.50 per share for any 10 trading days within any consecutive 20-trading day period that occurs after the Closing Date and on or prior to the 5-year anniversary of the Closing Date (the first occurrence of the foregoing is referred to herein as the “$17.50 Share Price Milestone”, and such date is referred to as the “$17.50 Share Price Milestone Date”), then the Surviving Company shall issue, as promptly as practicable, to each holder of Company Common Stock that as of immediately prior to the Effective Time had an Earnout Pro Rata Portion exceeding zero (0), and Earnout Shares issued to holders of Company Options pursuant to the second sentence of Section 3.07 shall vest to the extent of, a number of shares of Applicable Surviving Company Common Stock equal to such holder’s Earnout Pro Rata Portion of 10,375,000 shares (such number of shares being referred to as the “$17.50 Earnout Shares” and, together with the $15.00 Earnout Shares, the “Earnout Shares”).
3. For the avoidance of doubt, Earnout Shares in respect of each Milestone will be issued and/or earned only once and the aggregate Earnout Shares issued shall in no event exceed 20,750,000 shares of Applicable Surviving Company Common Stock.
4. If, prior to the 5-year anniversary of the Closing Date, the $15.00 Share Price Milestone and/or the $17.50 Share Price Milestone have not occurred, none of the Earnout Shares in respect of the $15.00 Share Price Milestone and/or the $17.50 Share Price Milestone, as applicable, shall be issued and any applicable Earnout Shares that have been issued in respect of Company Options shall be forfeited.
5. No Person shall have the rights of a stockholder in respect of any Earnout Shares until such shares are issued to such Person. Subject to the limitations contemplated herein, each Person entitled to receive Earnout Shares when the applicable Milestones are achieved pursuant to this Annex I shall have the right to receive dividends and/or distributions equivalents, and each Person who holds Earnout Shares that will vest upon the achievement of the applicable Milestones pursuant to this Annex I shall have the right to receive dividends and/or distributions, made to the holders of Surviving Company A Common Stock and Surviving Company Class B Common Stock; provided, however, that any dividends or other distributions or their equivalents payable with respect to Earnout Shares or the right to receive Earnout Shares in respect of which the applicable Milestone has not yet been achieved shall be set aside by the Surviving Company and shall be paid to such Persons upon the achievement of the applicable Milestone and the issuance or, in the case of Earnout Shares issued to holders of Company Options pursuant to the second sentence of Section 3.07, vesting of the corresponding Earnout Shares (if at all).
6. In the event that after the Closing and prior the 5-year anniversary of the Closing Date, (i) there is a Change of Control (or a definitive agreement providing for a Change of Control has been entered into prior to the 5-year anniversary of the Closing Date and such Change of Control is ultimately consummated, even if such consummation occurs after the 5-year anniversary of the Closing Date), (ii) any liquidation, dissolution or winding up of the Surviving Company (whether voluntary of involuntary) is initiated, (iii) any bankruptcy, reorganization, debt arrangement or similar proceeding under any bankruptcy, insolvency or similar law, or any dissolution or liquidation proceeding, is
Annex A-76
Table of Contents
instituted by or against the Surviving Company, or a receiver is appointed for the Surviving Company or a substantial part of its assets or properties or (iv) the Surviving Company makes an assignment for the benefit of creditors, or petitions or applies to any Governmental Authority for, or consents or acquiesces to, the appointment of a custodian, receiver or trustee for all or substantially all of its assets or properties (each of clauses (i) through (iv), an “Acceleration Event”), then any Earnout Shares that have not been previously issued by the Surviving Company (whether or not previously earned) and any Earnout Share previously issued to holders of Company Options shall be deemed earned and issued by the Surviving Company to the holders of Company Securities as of immediately prior to the Acceleration Event upon such Acceleration Event pursuant to Section 3.01 and Section 3.07 unless, in the case of an Acceleration Event that is a Change of Control, the value of the consideration to be received by the holders of the Applicable Surviving Company Common Stock in such Change of Control transaction is less than the stock price threshold applicable to the $15.00 Share Price Milestone and/or the $17.50 Share Price Milestone, as applicable; provided, that the determinations of such consideration and value shall be determined in good faith by the disinterested members of the Surviving Company Board; and provided, further that such Earnout Shares that are not deemed earned as of such Change of Control transaction shall be cancelled to the extent that such Change of Control transaction consists of a sale of the Surviving Company by merger, business combination or otherwise in which the stockholders of the Surviving Company receive only cash consideration for their shares. In the case of a Change of Control transaction consisting of a sale of the Surviving Company by merger, business combination or otherwise in which the stockholders of the Surviving Company receive other than only cash consideration for their shares, the board of directors of the Surviving Company shall determine the treatment of the Earnout Shares in their sole discretion. For the avoidance of doubt, each holder of Company Common Stock and Earnout Shares issued in respect of Company Options, in each case as of immediately prior to the Effective Time that has a positive Earnout Pro Rata Portion shall be entitled to such holder’s full Earnout Pro Rata Portion of the Earnout Shares regardless of whether such holder has, following the Effective Time, sold or otherwise transferred any Surviving Company Class A Common Stock, Surviving Company Class B Common Stock or Surviving Company Preferred Stock that such holder received in the Merger.
7. For purposes hereof, a “Change of Control” means the occurrence in a single transaction or as a result of a series of related transactions, of one or more of the following events:
a. any person or any group of persons acting together which would constitute a “group” for purposes of Section 13(d) of the Exchange Act or any successor provisions thereto (excluding (i) TS (and its Permitted Transferees (as defined in the Stockholders’ Agreement), Atairos and their respective Affiliates, successors and assigns, or (ii) a corporation or other entity owned, directly or indirectly, by the stockholders of the Surviving Company in substantially the same proportions as their ownership of stock of the Surviving Company) (x) is or becomes the beneficial owner, directly or indirectly, of securities of the Surviving Company representing more than fifty percent (50%) of the combined voting power of the Surviving Company’s then outstanding voting securities or (y) has or acquires control of the Surviving Company Board;
b. a merger, consolidation, reorganization or similar business combination transaction involving the Surviving Company, and, immediately after the consummation of such transaction or series of transactions, either (x) the Surviving Company Board immediately prior to the merger or consolidation does not constitute at least a majority of the board of directors of the company surviving the merger or, if the surviving company is a Subsidiary, the ultimate parent thereof, or (y) the voting securities of the Surviving Company immediately prior to such merger or consolidation do not continue to represent or are not converted into more than fifty percent (50%) of the combined voting power of the then outstanding voting securities of the person resulting from such transaction or series of transactions or, if the surviving company is a Subsidiary, the ultimate parent thereof; or
c. the sale, lease or other disposition, directly or indirectly, by the Surviving Company of all or substantially all of the assets of the Surviving Company and its Subsidiaries, taken as a whole, other than such sale or other disposition by the Surviving Company of all or substantially all of the assets of the Surviving Company and its Subsidiaries, taken as a whole, to an entity at least a majority of the combined voting power of the voting securities of which are owned by stockholders of the Surviving Company.
d. If the Surviving Company shall, at any time or from time to time, after the date hereof effect a subdivision, stock split, stock dividend, reorganization, combination, recapitalization or similar transaction affecting the outstanding shares of Applicable Surviving Company Common Stock, the number of Earnout Shares issuable pursuant to, and the stock price targets set forth in, paragraphs 1, 2 and 3 of this Annex I, shall be equitably adjusted for such subdivision, stock split, stock dividend, reorganization, combination, recapitalization or similar transaction. Any adjustment under this paragraph shall become effective at the close of business on the date the subdivision or combination becomes effective (which shall be the “ex” date, if any, with respect to any such event).
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Exhibit C
[BOWLERO CORP.]
Certificate of Designations
Series A Convertible Preferred Stock
[•], 2021
Annex A-78
Table of Contents
Table of Contents
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Annex A
Page
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Section 1.
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Definitions
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A-81
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Section 2.
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Rules of Construction
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A-88
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Section 3.
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The Convertible Preferred Stock
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A-88
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(a)
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Designation; Par Value
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A-88
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(b)
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Number of Authorized Shares
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A-89
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(c)
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Form, Dating and Denominations
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A-89
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(d)
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Method of Payment; Delay When Payment Date is Not a Business Day
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A-89
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(e)
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Transfer Agent; Register
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A-90
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(f)
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Legends
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A-90
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(g)
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Transfers and Exchanges; Transfer Taxes; Certain Transfer Restrictions
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A-90
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(h)
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Exchange and Cancellation of Convertible Preferred Stock to Be Converted or
Repurchased
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A-91
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(i)
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Status of Retired Shares
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A-92
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(j)
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Replacement Certificates
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A-92
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(k)
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Registered Holders
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A-92
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(l)
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Cancellation
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A-92
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(m)
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Shares Held by the Company or its Subsidiaries
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A-92
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(n)
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Outstanding Shares
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A-92
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(o)
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Repurchases by the Company and its Subsidiaries
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A-92
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(p)
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Notations and Exchanges
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A-93
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(q)
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CUSIP and ISIN Numbers
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A-93
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Section 4.
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Ranking
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A-93
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Section 5.
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Dividends
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A-93
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(a)
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Generally
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A-93
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(b)
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Participating Dividends
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A-94
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(c)
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Treatment of Dividends Upon Repurchase or Conversion
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A-94
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Section 6.
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Rights Upon Liquidation, Dissolution or Winding Up
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A-94
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(a)
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Generally
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A-94
|
|
(b)
|
|
Certain Business Combination Transactions Deemed Not to Be a Liquidation
|
|
A-95
|
|
Section 7.
|
|
Repurchase of the Convertible Preferred Stock Upon a Fundamental Change
|
|
A-95
|
|
(a)
|
|
Right of Holders to Require the Company to Repurchase Convertible Preferred Stock Upon a Fundamental Change
|
|
A-95
|
|
(b)
|
|
Funds Legally Available for Payment of Fundamental Change Repurchase Price.
|
|
A-95
|
|
(c)
|
|
Fundamental Change Repurchase Date
|
|
A-95
|
|
(d)
|
|
Fundamental Change Repurchase Price
|
|
A-95
|
|
(e)
|
|
Fundamental Change Notice
|
|
A-96
|
|
(f)
|
|
Procedures to Exercise the Fundamental Change Repurchase Right
|
|
A-96
|
|
(g)
|
|
Payment of the Fundamental Change Repurchase Price
|
|
A-97
|
|
(h)
|
|
Repurchase by Third Parties
|
|
A-97
|
|
(i)
|
|
No Requirement to Conduct an Offer to Repurchase Convertible Preferred Stock if the Fundamental Change Results in the Convertible Preferred Stock Becoming Convertible into an Amount of Cash Exceeding the Fundamental Change Repurchase Price
|
|
A-97
|
|
(j)
|
|
Compliance with Applicable Securities Laws
|
|
A-97
|
|
Section 8.
|
|
Covenants
|
|
A-97
|
|
(a)
|
|
Certain Information
|
|
A-97
|
Annex A-79
Table of Contents
|
|
|
|
|
Annex A
Page
|
|
Section 9.
|
|
Voting Rights
|
|
A-98
|
|
(a)
|
|
Voting and Consent Rights with Respect to Specified Matters
|
|
A-98
|
|
(b)
|
|
Right to Vote with Holders of Common Stock on an As-Converted Basis
|
|
A-99
|
|
(c)
|
|
Procedures for Voting and Consents.
|
|
A-99
|
|
Section 10.
|
|
Conversion
|
|
A-100
|
|
(a)
|
|
Generally
|
|
A-100
|
|
(b)
|
|
Conversion at the Option of the Holders
|
|
A-100
|
|
(c)
|
|
Mandatory Conversion at the Company’s Election
|
|
A-100
|
|
(d)
|
|
Conversion Procedures
|
|
A-101
|
|
(e)
|
|
Settlement upon Conversion
|
|
A-102
|
|
(f)
|
|
Conversion Rate Adjustments
|
|
A-103
|
|
(g)
|
|
Voluntary Conversion Rate Increases
|
|
A-105
|
|
(h)
|
|
[Reserved]
|
|
A-105
|
|
(i)
|
|
Effect of Common Stock Change Event
|
|
A-105
|
|
(j)
|
|
Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change
|
|
A-106
|
|
Section 11.
|
|
Certain Provisions Relating to the Issuance of Common Stock
|
|
A-107
|
|
(a)
|
|
Equitable Adjustments to Prices
|
|
A-107
|
|
(b)
|
|
Reservation of Shares of Common Stock
|
|
A-108
|
|
(c)
|
|
Status of Shares of Common Stock
|
|
A-108
|
|
(d)
|
|
Taxes Upon Issuance of Common Stock
|
|
A-108
|
|
Section 12.
|
|
Calculations
|
|
A-108
|
|
(a)
|
|
Responsibility; Schedule of Calculations
|
|
A-108
|
|
(b)
|
|
Calculations Aggregated for Each Holder
|
|
A-108
|
|
Section 13.
|
|
Tax Treatment
|
|
A-108
|
|
Section 14.
|
|
Notices
|
|
A-108
|
|
Section 15.
|
|
No Other Rights
|
|
A-108
|
Exhibits
|
Exhibit A: Form of Preferred Stock Certificate
|
|
A-110
|
|
Exhibit B: Fundamental Change Repurchase Notice
|
|
A-114
|
|
Exhibit C: Optional Conversion Notice
|
|
A-115
|
|
Exhibit D: Form of Restricted Stock Legend
|
|
A-116
|
Annex A-80
Table of Contents
Certificate of Designations
Series A Convertible Preferred Stock
On [•], 2021, the Board of Directors of [BOWLERO CORP.], a Delaware corporation (the “Company”), adopted the following resolution designating and creating, out of the authorized and unissued shares of preferred stock of the Company, two hundred thousand (200,000) authorized shares of a series of preferred stock of the Company titled the “Series A Convertible Preferred Stock”:
RESOLVED that, pursuant to the Certificate of Incorporation, the Bylaws and applicable law, a series of preferred stock of the Company titled the “Series A Convertible Preferred Stock,” and having a par value of $0.0001 per share and an initial number of authorized shares equal to two hundred thousand (200,000), is hereby designated and created out of the authorized and unissued shares of preferred stock of the Company, which series has the rights, designations, preferences, voting powers and other provisions set forth below:
Section 1. Definitions.
“Additional Shares” has the meaning set forth in Section 10(j)(i).
“Affiliate” of any Person means any Person, directly or indirectly, Controlling, Controlled by or under common Control with such Person.
“Board of Directors” means the Company’s board of directors or a committee of such board duly authorized to act on behalf of such board.
“Business Day” means any day other than a Saturday, a Sunday or any day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.
“Bylaws” means the Bylaws of the Company, as the same may be further amended, supplemented or restated.
“Capital Stock” of any Person means any and all shares of, interests in, rights to purchase, warrants or options for, participations in, or other equivalents of, in each case however designated, the equity of such Person, but excluding any debt securities convertible into such equity.
“Certificate” means any Physical Certificate or Electronic Certificate.
“Certificate of Designations” means this Certificate of Designations, as amended or supplemented from time to time.
“Certificate of Incorporation” means the Company’s Certificate of Incorporation, as the same may be further amended, supplemented or restated.
“Close of Business” means 5:00 p.m., New York City time.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Common Stock” means the Class A Common Stock, $0.0001 par value per share, of the Company, subject to Section 10(i).
“Common Stock Change Event” has the meaning set forth in Section 10(i)(i).
“Common Stock Liquidity Conditions” will be satisfied with respect to a Mandatory Conversion if:
(a) either (i) each share of Common Stock to be issued upon such Mandatory Conversion of any share of Convertible Preferred Stock would be eligible to be offered, sold or otherwise transferred by the Holder of such share of Convertible Preferred Stock pursuant to Rule 144, without any requirements as to volume, manner of sale, availability of current public information (whether or not then satisfied) or notice; or (ii) the offer and sale of such share of Common Stock by such Holder are registered pursuant to an effective registration statement under the Securities Act and such registration statement is reasonably expected by the Company to remain effective and usable, by the Holder to sell such share of Common Stock, continuously during the period from, and including, the date the related Mandatory Conversion Notice is sent to, and including, the thirtieth (30th) calendar day after the date such share of Common Stock is issued; provided that each Holder will supply all information reasonably requested
Annex A-81
Table of Contents
by the Company for inclusion, and required to be included, in any registration statement or prospectus supplement related to the resale of the Common Stock issuable upon conversion of the Convertible Preferred Stock pursuant to this clause (a)(ii); provided further that if a Holder fails to provide such information to the Company within fifteen (15) calendar days following any such request, then this clause (a)(ii) and clause (b) will automatically be deemed to be satisfied with respect to such Holder; and
(b) each share of Common Stock referred to in clause (a) above (i) will, when issued (or, in the case of clause (a)(ii), when sold or otherwise transferred pursuant to the registration statement referred to in such clause) (1) be admitted for book-entry settlement through the Depositary with an “unrestricted” CUSIP number; and (2) not be represented by any Certificate that bears a legend referring to transfer restrictions under the Securities Act or other securities laws; and (ii) will, when issued, be listed and admitted for trading, without suspension or material limitation on trading, on any of The New York Stock Exchange, The Nasdaq Global Market or The Nasdaq Global Select Market (or any of their respective successors).
“Common Stock Participating Dividends” has the meaning set forth in Section 5(b)(i).
“Company” has the meaning set forth in the preamble.
“Control” (including its correlative meanings “under common Control with” and “Controlled by”) means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through ownership of securities or partnership or other interests, by contract or otherwise.
“Conversion Consideration” means, with respect to the conversion of any Convertible Preferred Stock, the type and amount of consideration payable to settle such conversion, determined in accordance with Section 10.
“Conversion Date” means an Optional Conversion Date or a Mandatory Conversion Date.
“Conversion Price” means, as of any time, an amount equal to (A) one thousand dollars ($1,000) divided by (B) the Conversion Rate in effect at such time.
“Conversion Rate” initially means 76.9231 shares of Common Stock per $1,000 Liquidation Preference of Convertible Preferred Stock; provided, however, that the Conversion Rate is subject to adjustment pursuant to Section 10; provided, further, that whenever this Certificate of Designations refers to the Conversion Rate as of a particular date without setting forth a particular time on such date, such reference will be deemed to be to the Conversion Rate as of the Close of Business on such date.
“Conversion Share” means any share of Common Stock issued or issuable upon conversion of any Convertible Preferred Stock.
“Convertible Preferred Stock” has the meaning set forth in Section 3(a).
“Credit Facilities” means (i) that certain First Lien Credit Agreement, dated as of September 25, 2020 among Kingpin Intermediate Holdings LLC, the Company, the lenders from time to time party thereto and JPMorgan Chase Bank, N.A. (as amended, restated, amended and restated, extended, supplemented, replaced or otherwise modified from time to time, the “2020 Credit Agreement”) and (ii) the First Lien Credit Agreement, dated as of July 3, 2017, among Kingpin Intermediate Holdings LLC, the Company, the lenders from time to time party thereto and JPMorgan Chase Bank, N.A. (as amended, restated, amended and restated, extended, supplemented, replaced or otherwise modified from time to time, the “2017 Credit Agreement”).
“Depositary” means The Depository Trust Company or its successor.
“Dividend” means any Regular Dividend or Participating Dividend.
“Dividend Junior Stock” means any class or series of the Company’s stock whose terms do not expressly provide that such class or series will rank senior to, or equally with, the Convertible Preferred Stock with respect to the payment of dividends (without regard to whether or not dividends accumulate cumulatively). Dividend Junior Stock includes the Common Stock. For the avoidance of doubt, Dividend Junior Stock will not include any securities of the Company’s Subsidiaries.
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Table of Contents
“Dividend Parity Stock” means any class or series of the Company’s stock (other than the Convertible Preferred Stock) whose terms expressly provide that such class or series will rank equally with the Convertible Preferred Stock with respect to the payment of dividends (without regard to whether or not dividends accumulate cumulatively). For the avoidance of doubt, Dividend Parity Stock will not include any securities of the Company’s Subsidiaries.
“Dividend Payment Date” means each Regular Dividend Payment Date with respect to a Regular Dividend and each date on which any declared Participating Dividend is scheduled to be paid on the Convertible Preferred Stock.
“Dividend Senior Stock” means any class or series of the Company’s stock whose terms expressly provide that such class or series will rank senior to the Convertible Preferred Stock with respect to the payment of dividends (without regard to whether or not dividends accumulate cumulatively). For the avoidance of doubt, Dividend Senior Stock will not include any securities of the Company’s Subsidiaries.
“Electronic Certificate” means any electronic book-entry maintained by the Transfer Agent that represents any share(s) of Convertible Preferred Stock.
“Equity-Linked Securities” means any rights, options or warrants to purchase or otherwise acquire (whether immediately, during specified times, upon the satisfaction of any conditions or otherwise) any shares of Common Stock.
“Ex-Dividend Date” means, with respect to an issuance, dividend or distribution on the Common Stock, the first date on which shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such issuance, dividend or distribution (including pursuant to due bills or similar arrangements required by the relevant stock exchange). For the avoidance of doubt, any alternative trading convention on the applicable exchange or market in respect of the Common Stock under a separate ticker symbol or CUSIP number will not be considered “regular way” for this purpose.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Expiration Date” has the meaning set forth in Section 10(f)(i)(2).
“Expiration Time” has the meaning set forth in Section 10(f)(i)(2).
“Fundamental Change” means any of the following events:
(a) a “person” or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Company, its Wholly Owned Subsidiaries, the employee benefit plans of the Company and its Wholly Owned Subsidiaries, or a Permitted Holder, files any report with the U.S. Securities and Exchange Commission indicating that such person or group has become the direct or indirect “beneficial owner” (as defined below) of shares of the Company’s common equity representing more than fifty percent (50%) of the voting power of all of the Company’s then-outstanding common equity;
(b) the consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person other than solely to the Company or one or more of the Company’s Wholly Owned Subsidiaries; or (ii) any transaction or series of related transactions in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification, recapitalization, acquisition, liquidation or otherwise) all of the Common Stock is exchanged for, converted into, acquired for, or constitutes solely the right to receive, other securities, cash or other property; provided, however, that any merger, consolidation, share exchange or combination of the Company pursuant to which the Persons that directly or indirectly “beneficially owned” (as defined below) all classes of the Company’s common equity immediately before such transaction directly or indirectly “beneficially own,” immediately after such transaction, more than fifty percent (50%) of all classes of common equity of the surviving, continuing or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-à-vis each other as immediately before such transaction will be deemed not to be a Fundamental Change pursuant to this clause (b)(ii);
(c) the Company’s stockholders approve any plan or proposal for the liquidation or dissolution of the Company; or
Annex A-83
Table of Contents
(d) the Common Stock ceases to be listed on any of The New York Stock Exchange, The Nasdaq Global Market or The Nasdaq Global Select Market (or any of their respective successors);
provided, however, that a transaction or event described in clause (a) or (b) above will not constitute a Fundamental Change if at least ninety percent (90%) of the consideration received or to be received by the holders of Common Stock (excluding cash payments for fractional shares or pursuant to dissenters rights), in connection with such transaction or event, consists of shares of common stock listed (or depositary receipts representing shares of common stock, which depositary receipts are listed) on any of The New York Stock Exchange, The Nasdaq Global Market or The Nasdaq Global Select Market (or any of their respective successors), or that will be so listed when issued or exchanged in connection with such transaction or event, and such transaction or event constitutes a Common Stock Change Event whose Reference Property consists of such consideration.
For the purposes of this definition, (x) any transaction or event described in both clause (a) and in clause (b)(i) or (ii) above (without regard to the proviso in clause (b)(ii)) will be deemed to occur solely pursuant to clause (b) above (subject to such proviso); and (y) whether a Person is a “beneficial owner” and whether shares are “beneficially owned” will be determined in accordance with Rule 13d-3 under the Exchange Act.
“Fundamental Change Notice” has the meaning set forth in Section 7(e).
“Fundamental Change Repurchase Date” means the date fixed for the repurchase of any shares of Convertible Preferred Stock by the Company pursuant to a Repurchase Upon Fundamental Change.
“Fundamental Change Repurchase Notice” means a notice (including a notice substantially in the form of the “Fundamental Change Repurchase Notice” set forth in Exhibit B) containing the information, or otherwise complying with the requirements, set forth in Section 7(f)(i) and Section 7(f)(ii).
“Fundamental Change Repurchase Price” means the cash price payable by the Company to repurchase any share of Convertible Preferred Stock upon its Repurchase Upon Fundamental Change, calculated pursuant to Section 7(d).
“Holder” means a person in whose name any Convertible Preferred Stock is registered in the Register.
“Incurrence Breach” means the Company’s breach of Section 8(b) and such breach is not cured within 60 days of the Company’s receipt of written notice of such failure.
“Indebtedness” has the meaning set forth in the 2020 Credit Agreement.
“Initial Issue Date” means [•], 2021.
“Initial Liquidation Preference” means one thousand dollars ($1,000) per share of Convertible Preferred Stock.
“Last Reported Sale Price” of the Common Stock for any Trading Day means the closing sale price per share (or, if no closing sale price is reported, the average of the last bid price and the last ask price per share or, if more than one in either case, the average of the average last bid prices and the average last ask prices per share) of the Common Stock on such Trading Day as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is then listed. If the Common Stock is not listed on a U.S. national or regional securities exchange on such Trading Day, then the Last Reported Sale Price will be the last quoted bid price per share of Common Stock on such Trading Day in the over-the-counter market as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock is not so quoted on such Trading Day, then the Last Reported Sale Price will be the average of the mid-point of the last bid price and the last ask price per share of Common Stock on such Trading Day from each of at least three nationally recognized independent investment banking firms the Company selects in good faith.
“Liquidation Junior Stock” means any class or series of the Company’s stock whose terms do not expressly provide that such class or series will rank senior to, or equally with, the Convertible Preferred Stock with respect to the distribution of assets upon the Company’s liquidation, dissolution or winding up. Liquidation Junior Stock includes the Common Stock. For the avoidance of doubt, Liquidation Junior Stock will not include any securities of the Company’s Subsidiaries.
Annex A-84
Table of Contents
“Liquidation Parity Stock” means any class or series of the Company’s stock (other than the Convertible Preferred Stock) whose terms expressly provide that such class or series will rank equally with the Convertible Preferred Stock with respect to the distribution of assets upon the Company’s liquidation, dissolution or winding up. For the avoidance of doubt, Liquidation Parity Stock will not include any securities of the Company’s Subsidiaries.
“Liquidation Preference” means, with respect to the Convertible Preferred Stock, an amount initially equal to the Initial Liquidation Preference per share of Convertible Preferred Stock; provided, however, that the Liquidation Preference is subject to adjustment pursuant to Sections 5(a)(ii)(1).
“Liquidation Senior Stock” means any class or series of the Company’s stock whose terms expressly provide that such class or series will rank senior to the Convertible Preferred Stock with respect to the distribution of assets upon the Company’s liquidation, dissolution or winding up. For the avoidance of doubt, Liquidation Senior Stock will not include any securities of the Company’s Subsidiaries.
“Make-Whole Fundamental Change” means (A) a Fundamental Change (determined after giving effect to the proviso immediately after clause (d) of the definition thereof, but without regard to the proviso in clause (b)(ii) of such definition) or (B) the sending of a Mandatory Conversion Notice pursuant to Section 10(c); provided that the sending of a Mandatory Conversion Notice will constitute a Make-Whole Fundamental Change only with respect to the shares of Convertible Preferred Stock subject to Mandatory Conversion pursuant to such Mandatory Conversion Notice and not with respect to any other shares of Convertible Preferred Stock.
“Make-Whole Fundamental Change Conversion Period” means, in respect of any Make-Whole Fundamental Change, the period from, and including, the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change to, and including, the thirty fifth (35th) Trading Day after such Make-Whole Fundamental Change Effective Date (or, if such Make-Whole Fundamental Change also constitutes a Fundamental Change (other than an Exempted Fundamental Change), to, but excluding, the related Fundamental Change Repurchase Date).
“Make-Whole Fundamental Change Effective Date” means (A) in respect of any Make-Whole Fundamental Change pursuant to clause (A) of the definition thereof, the date on which such Make-Whole Fundamental Change occurs or becomes effective, and (B) in respect of any Make-Whole Fundamental Change pursuant to clause (B) of the definition thereof, the applicable Mandatory Conversion Notice Date.
“Mandatory Conversion” has the meaning set forth in Section 10(c)(i).
“Mandatory Conversion Date” means a Conversion Date designated with respect to any Convertible Preferred Stock pursuant to Section 10(c)(i) and 10(c)(iii).
“Mandatory Conversion Notice” has the meaning set forth in Section 10(c)(iv).
“Mandatory Conversion Notice Date” means, with respect to a Mandatory Conversion, the date on which the Company sends the Mandatory Conversion Notice for such Mandatory Conversion pursuant to Section 10(c)(iv).
“Mandatory Conversion Right” has the meaning set forth in Section 10(c)(i).
“Market Disruption Event” means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled close of trading on such date on the principal U.S. national or regional securities exchange or other market on which the Common Stock is listed for trading or trades, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock.
“Officer” means the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, or any Vice-President of the Company.
“Open of Business” means 9:00 a.m., New York City time.
“Optional Conversion” means the conversion of any Convertible Preferred Stock other than a Mandatory Conversion.
Annex A-85
Table of Contents
“Optional Conversion Date” means, with respect to the Optional Conversion of any Convertible Preferred Stock, the first Business Day on which the requirements set forth in Section 10(d)(ii) for such conversion are satisfied.
“Optional Conversion Notice” means a notice substantially in the form of the “Optional Conversion Notice” set forth in Exhibit C.
“Participating Dividend” has the meaning set forth in Section 5(b)(i).
“Permitted Holders” means each of (a) A-B Parent LLC and its Permitted Transferees, (b) Cobalt Recreation LLC and its Permitted Transferees and (c) any group (within the meaning of Section 13(d)(3) of the Exchange Act (or any successor provision)) the members of which include any of the Permitted Holders specified in clause (a) or (b) above (a “Permitted Holder Group”); provided that, in the case of any Permitted Holder Group, no Person or other group (other than the Permitted Holders specified in clause (a) or (b) above) owns, directly or indirectly, Capital Stock having more than fifty percent (50%) of the voting power of all of the Company’s then-outstanding common equity held by such Permitted Holder Group.
“Permitted Indebtedness” means Indebtedness incurred by the Company or its subsidiaries that is permitted or not prohibited under the Credit Facilities.
“Permitted Transferee” has the meaning assigned to such term in the certain Stockholders’ Agreement dated as of the date hereof (as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and among the Company, Cobalt Recreation LLC, A-B Parent LLC, Thomas F. Shannon and Atairos Group, Inc.
“Person” or “person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof. Any division or series of a limited liability company, limited partnership or trust will constitute a separate “person” under this Certificate of Designations.
“Physical Certificate” means any certificate (other than an Electronic Certificate) representing any share(s) of Convertible Preferred Stock, which certificate is substantially in the form set forth in Exhibit A, registered in the name of the Holder of such share(s) and duly executed by the Company and countersigned by the Transfer Agent.
“Record Date” means, with respect to any dividend or distribution on, or issuance to holders of, Convertible Preferred Stock or Common Stock, the date fixed (whether by law, contract or the Board of Directors or otherwise) to determine the Holders or the holders of Common Stock, as applicable, that are entitled to such dividend, distribution or issuance.
“Reference Property” has the meaning set forth in Section 10(i)(i).
“Reference Property Unit” has the meaning set forth in Section 10(i)(i).
“Register” has the meaning set forth in Section 3(e).
“Regular Dividend Payment Date” means, with respect to any share of Convertible Preferred Stock, each June 30th and December 31st of each year, beginning on [•], 2021 (or beginning on such other date specified in the Certificate representing such share).
“Regular Dividend Period” means each period from, and including, a Regular Dividend Payment Date (or, in the case of the first Regular Dividend Period, from, and including, the Initial Issue Date) to, but excluding, the next Regular Dividend Payment Date.
“Regular Dividend Rate” means five and one-half percent (5.5%) per annum; provided, that for any period of time during which an Incurrence Breach has occurred and is continuing, the Regular Dividend Rate shall be increased by 200 basis points (provided, that under no circumstances shall the Regular Divided Rate be increased by more than 200 basis points).
“Regular Dividend Record Date” has the following meaning: (a) June 15th, in the case of a Regular Dividend Payment Date occurring on June 30th; and (b) December 15th, in the case of a Regular Dividend Payment Date occurring on December 31st.
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“Regular Dividends” has the meaning set forth in Section 5(a)(i).
“Repurchase Upon Fundamental Change” means the repurchase of any share of Convertible Preferred Stock by the Company pursuant to Section 7.
“Restricted Stock Legend” means a legend substantially in the form set forth in Exhibit D.
“Rule 144” means Rule 144 under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Security” means any Convertible Preferred Stock or Conversion Share.
“Stock Price” has the following meaning for any Make-Whole Fundamental Change: (A) if the holders of Common Stock receive only cash in consideration for their shares of Common Stock in a Make-Whole Fundamental Change and such Make-Whole Fundamental Change is pursuant to clause (b) of the definition of “Fundamental Change,” then the Stock Price is the amount of cash paid per share of Common Stock in such Make-Whole Fundamental Change; and (B) in all other cases, the Stock Price is the average of the Last Reported Sale Prices per share of Common Stock for the five (5) consecutive Trading Days ending on, and including, the Trading Day immediately before the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change.
“Subsidiary” means, with respect to any Person, (a) any corporation, association or other business entity (other than a partnership or limited liability company) of which more than 50% of the total voting power of the Capital Stock entitled (without regard to the occurrence of any contingency, but after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees, as applicable, of such corporation, association or other business entity is owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person; and (b) any partnership or limited liability company where (x) more than fifty percent (50%) of the capital accounts, distribution rights, equity and voting interests, or of the general and limited partnership interests, as applicable, of such partnership or limited liability company are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person, whether in the form of membership, general, special or limited partnership or limited liability company interests or otherwise; and (y) such Person or any one or more of the other Subsidiaries of such Person is a controlling general partner of, or otherwise controls, such partnership or limited liability company.
“Successor Person” has the meaning set forth in Section 10(i)(iii).
“Tender/Exchange Offer Valuation Period” has the meaning set forth in Section 10(f)(i)(2).
“Termination Date” means each “Termination Date” under, and as defined in, each Credit Facility, in each case as in effect as of the date hereof.
“Total Leverage Ratio” means, on any date of calculation, the “Total Net Leverage Ratio” as defined in the 2020 Credit Agreement, as applied to the Company and its Subsidiaries as of the applicable calculation date mutatis mutandis, which shall be calculated giving effect to pro forma and other financial definition and calculation principles set forth in the 2020 Credit Agreement; provided, that, for any applicable calculation date prior to January 1, 2022 for which any period includes the fiscal quarters ended (i) March 29, 2020 or March 28, 2021, (ii) June 28, 2020 or June 27, 2021, (iii) September 27, 2020 or September 26, 2021 or (iv) December 27, 2020 or December 26, 2021, Consolidated Adjusted EBITDA (as defined in the 2020 Credit Agreement) for such fiscal quarter shall be deemed to be no less than (i) $75,475,000, (ii) $32,356,000, (iii) $31,830,000 and (iv) $58,184,000, respectively, in each case before giving effect to pro forma and other financial definition and calculation principles set forth in the 2020 Credit Agreement.
“Trading Day” means any day on which (a) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded; and (b) there is no Market Disruption Event. If the Common Stock is not so listed or traded, then “Trading Day” means a Business Day.
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“Transfer Agent” means the Company or its successor.
“Transfer-Restricted Security” means any Security that constitutes a “restricted security” (as defined in Rule 144); provided, however, that such Security will cease to be a Transfer-Restricted Security upon the earliest to occur of the following events:
(a) such Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to a registration statement that was effective under the Securities Act at the time of such sale or transfer;
(b) such Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to an available exemption (including Rule 144) from the registration and prospectus-delivery requirements of, or in a transaction not subject to, the Securities Act and, immediately after such sale or transfer, such Security ceases to constitute a “restricted security” (as defined in Rule 144); and
(c) (i) such Security is eligible for resale, by a Person that is not an Affiliate of the Company and that has not been an Affiliate of the Company during the immediately preceding three (3) months, pursuant to Rule 144 without any limitations thereunder as to volume, manner of sale, availability of current public information or notice; and (ii) the Company has received such certificates or other documentation or evidence as the Company may reasonably require to determine that the security is eligible for resale pursuant to clause (i) and the Holder, holder or beneficial owner of such Security is not, and has not been during the immediately preceding three (3) months, an Affiliate of the Company.
“Treasury Regulations” means the Treasury regulations promulgated under the Code, as amended.
“Wholly Owned Subsidiary” of a Person means any Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) are owned by such Person or one or more Wholly Owned Subsidiaries of such Person.
Section 2. Rules of Construction. For purposes of this Certificate of Designations:
(a) “or” is not exclusive;
(b) “including” means “including without limitation”;
(c) “will” expresses a command;
(d) the “average” of a set of numerical values refers to the arithmetic average of such numerical values;
(e) a merger involving, or a transfer of assets by, a limited liability company, limited partnership or trust will be deemed to include any division of or by, or an allocation of assets to a series of, such limited liability company, limited partnership or trust, or any unwinding of any such division or allocation;
(f) words in the singular include the plural and in the plural include the singular, unless the context requires otherwise;
(g) “herein,” “hereof” and other words of similar import refer to this Certificate of Designations as a whole and not to any particular Section or other subdivision of this Certificate of Designations, unless the context requires otherwise;
(h) references to currency mean the lawful currency of the United States of America, unless the context requires otherwise; and
(i) the exhibits, schedules and other attachments to this Certificate of Designations are deemed to form part of this Certificate of Designations.
Section 3. The Convertible Preferred Stock.
(a) Designation; Par Value. A series of stock of the Company titled the “Series A Convertible Preferred Stock” (the “Convertible Preferred Stock”) is hereby designated and created out of the authorized and unissued shares of preferred stock of the Company. The par value of the Convertible Preferred Stock is $0.0001 per share.
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(b) Number of Authorized Shares. The total authorized number of shares of Convertible Preferred Stock is Two Hundred Thousand (200,000); provided, however that, by resolution of the Board of Directors, the total number of authorized shares of Convertible Preferred Stock may hereafter be reduced to a number that is not less than the number of shares of Convertible Preferred Stock then outstanding.
(c) Form, Dating and Denominations.
(i) Form and Date of Certificates Representing Convertible Preferred Stock. Each Certificate representing any Convertible Preferred Stock will bear the legends required by Section 3(f) and may bear notations, legends or endorsements required by law, stock exchange rule or usage or the Depositary.
(ii) Certificates.
(1) Generally. The Convertible Preferred Stock will be originally issued initially in the form of one or more Electronic Certificates. Electronic Certificates may be exchanged for Physical Certificates, and Physical Certificates may be exchanged for Electronic Certificates upon request by the Holder thereof pursuant to customary procedures.
(2) Electronic Certificates; Interpretation. For purposes of this Certificate of Designations, (A) each Electronic Certificate will be deemed to include the text of the stock certificate set forth in Exhibit A; (B) any legend or other notation that is required to be included on a Certificate will be deemed to be included in any Electronic Certificate notwithstanding that such Electronic Certificate may be in a form that does not permit affixing legends thereto; (C) any reference in this Certificate of Designations to the “delivery” of any Electronic Certificate will be deemed to be satisfied upon the registration of the electronic book-entry representing such Electronic Certificate in the name of the applicable Holder; and (D) upon satisfaction of any applicable requirements of the Delaware General Corporation Law, the Certificate of Incorporation and the Bylaws of the Company, and any related requirements of the Transfer Agent, in each case for the issuance of Convertible Preferred Stock in the form of one or more Electronic Certificates, such Electronic Certificates will be deemed to be executed by the Company and countersigned by the Transfer Agent.
(iii) No Bearer Certificates; Denominations. The Convertible Preferred Stock will be issued only in registered form and only in whole numbers of shares.
(iv) Registration Numbers. Each Certificate representing any Convertible Preferred Stock will bear a unique registration number that is not affixed to any other Certificate representing any other outstanding share of Convertible Preferred Stock.
(d) Method of Payment; Delay When Payment Date is Not a Business Day.
(i) Method of Payment. The Company will pay all cash amounts due on any Convertible Preferred Stock by check issued in the name of the Holder thereof; provided, however, that if such Holder has delivered to the Company, no later than the time set forth in the next sentence, a written request to receive payment by wire transfer to an account of such Holder within the United States, then the Company will pay all such cash amounts by wire transfer of immediately available funds to such account. To be timely, such written request must be delivered no later than the Close of Business on the following date: (x) with respect to the payment of any declared cash Dividend due on a Dividend Payment Date for the Convertible Preferred Stock, the related Record Date; and (y) with respect to any other payment, the date that is fifteen (15) calendar days immediately before the date such payment is due.
(ii) Delay of Payment when Payment Date is Not a Business Day. If the due date for a payment on any Convertible Preferred Stock as provided in this Certificate of Designations is not a Business Day, then, notwithstanding anything to the contrary in this Certificate of Designations, such payment may be made on the immediately following Business Day and no interest, dividend or other amount will accrue or accumulate on such payment as a result of the related delay. Solely for purposes of the immediately preceding sentence, a day on which the applicable place of payment is authorized or required by law or executive order to close or be closed will be deemed not to be a “Business Day.”
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(e) Transfer Agent; Register. The Company or any of its Subsidiaries may act as the Transfer Agent. The Company will, or will retain another Person (who may be the Transfer Agent) to act as registrar who will, keep a record (the “Register”) of the names and addresses of the Holders, the number of shares of Convertible Preferred Stock held by each Holder and the transfer, exchange, repurchase and conversion of the Convertible Preferred Stock. Absent manifest error, the entries in the Register will be conclusive and the Company and the Transfer Agent may treat each Person whose name is recorded as a Holder in the Register as a Holder for all purposes. The Register will be in written form or in any form capable of being converted into written form reasonably promptly. The Company will promptly provide a copy of the Register to any Holder upon its request.
(f) Legends.
(i) Restricted Stock Legend.
(1) Each Certificate representing any share of Convertible Preferred Stock that is a Transfer-Restricted Security will bear the Restricted Stock Legend.
(2) If any share of Convertible Preferred Stock is issued in exchange for, in substitution of, or to effect a partial conversion of, any other share(s) of Convertible Preferred Stock (such other share(s) being referred to as the “old share(s)” for purposes of this Section 3(f)(i)(2)), including pursuant to Section 3(h) or 3(j), then the Certificate representing such share will bear the Restricted Stock Legend if the Certificate representing such old share(s) bore the Restricted Stock Legend at the time of such exchange or substitution, or on the related Conversion Date with respect to such conversion, as applicable; provided, however, that the Certificate representing such share need not bear the Restricted Stock Legend if such share does not constitute a Transfer-Restricted Security immediately after such exchange or substitution, or as of such Conversion Date, as applicable.
(ii) Other Legends. The Certificate representing any Convertible Preferred Stock may bear any other legend or text, not inconsistent with this Certificate of Designations, as may be required by applicable law or by any securities exchange or automated quotation system on which such Convertible Preferred Stock is traded or quoted or as may be otherwise reasonably determined by the Company to be appropriate.
(iii) Acknowledgement and Agreement by the Holders. A Holder’s acceptance of any Convertible Preferred Stock represented by a Certificate bearing any legend required by this Section 3(f) will constitute such Holder’s acknowledgement of, and agreement to comply with, the restrictions set forth in such legend.
(iv) Legends on Conversion Shares.
(1) Each Conversion Share will bear a legend substantially to the same effect as the Restricted Stock Legend if the Convertible Preferred Stock upon the conversion of which such Conversion Share was issued was (or would have been had it not been converted) a Transfer-Restricted Security at the time such Conversion Share was issued; provided, however, that such Conversion Share need not bear such a legend if the Company determines, in its reasonable discretion, that such Conversion Share need not bear such a legend.
(2) Notwithstanding anything to the contrary in Section 3(f)(iv)(1), a Conversion Share need not bear a legend pursuant to Section 3(f)(iv)(1) if such Conversion Share is issued in an uncertificated form that does not permit affixing legends thereto, provided the Company takes measures (including the assignment thereto of a “restricted” CUSIP number) that it reasonably deems appropriate to enforce the transfer restrictions referred to in such legend.
(g) Transfers and Exchanges; Transfer Taxes; Certain Transfer Restrictions.
(i) Provisions Applicable to All Transfers and Exchanges.
(1) Generally. Subject to this Section 3(g), Convertible Preferred Stock represented by any Certificate, may be transferred or exchanged from time to time, and the Company will cause each such transfer or exchange to be recorded in the Register.
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(2) No Services Charge; Transfer Taxes. The Company will not impose any service charge on any Holder for any transfer, exchange or conversion of any Convertible Preferred Stock, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer or exchange of Convertible Preferred Stock, other than exchanges pursuant to Section 3(h) or Section 3(p) not involving any transfer.
(3) No Transfers or Exchanges of Fractional Shares. Notwithstanding anything to the contrary in this Certificate of Designations, all transfers or exchanges of Convertible Preferred Stock must be in an amount representing a whole number of shares of Convertible Preferred Stock, and no fractional share of Convertible Preferred Stock may be transferred or exchanged.
(4) Legends. Each Certificate representing any share of Convertible Preferred Stock that is issued upon transfer of, or in exchange for, another share of Convertible Preferred Stock will bear each legend, if any, required by Section 3(f).
(5) Settlement of Transfers and Exchanges. Upon satisfaction of the requirements of this Certificate of Designations to effect a transfer or exchange of any Convertible Preferred Stock as well as the delivery of all documentation reasonably required by the Transfer Agent or the Company in order to effect any transfer or exchange, the Company will cause such transfer or exchange to be effected as soon as reasonably practicable but in no event later than the second (2nd) Business Day after the date of such satisfaction.
(ii) Transfers of Shares Subject to Repurchase or Conversion. Notwithstanding anything to the contrary in this Certificate of Designations, the Company will not be required to register the transfer of or exchange any share of Convertible Preferred Stock:
(1) that has been surrendered for conversion; or
(2) that has been delivered for repurchase pursuant to a Fundamental Change Repurchase Notice.
(h) Exchange and Cancellation of Convertible Preferred Stock to Be Converted or Repurchased.
(i) Partial Conversions or Repurchases of Certificates. If only a portion of a Holder’s Convertible Preferred Stock represented by a Certificate (such Certificate being referred to as the “old Certificate” for purposes of this Section 3(h)(i)) is to be converted pursuant to Section 10 or repurchased pursuant to Section 7, then, as soon as reasonably practicable after such Certificate is surrendered for such conversion or repurchase, as applicable, the Company will cause such Certificate to be exchanged for (1) one or more Certificates that each represent a whole number of shares of Convertible Preferred Stock and, in the aggregate, represent a total number of shares of Convertible Preferred Stock equal to the number of shares of Convertible Preferred Stock represented by such old Certificate that are not to be so converted or repurchased, as applicable, and deliver such Certificate(s) to such Holder; and (2) a Certificate representing a whole number of shares of Convertible Preferred Stock equal to the number of shares of Convertible Preferred Stock represented by such old Certificate that are to be so converted or repurchased, as applicable, which Certificate will be converted or repurchased, as applicable, pursuant to the terms of this Certificate of Designations; provided, however, that the Certificate referred to in this clause (2) need not be issued at any time after which such shares subject to such conversion or repurchase, as applicable, are deemed to cease to be outstanding pursuant to Section 3(n).
(ii) Cancellation of Convertible Preferred Stock that Is Converted or Repurchased. If a Holder’s Convertible Preferred Stock represented by a Certificate (or any portion thereof that has not theretofore been exchanged pursuant to Section 3(h)(i)) (such Certificate being referred to as the “old Certificate” for purposes of this Section 3(h)(ii)) is to be converted pursuant to Section 10 or pursuant to Section 7, then, promptly after the later of the time such Convertible Preferred Stock is deemed to cease to be outstanding pursuant to Section 3(n) and the time such Certificate is surrendered for such conversion or repurchase, as applicable, (A) such Certificate will be cancelled pursuant to Section 3(l); and (B) in the case of a partial conversion or repurchase, the Company will issue, execute and deliver to such Holder, and cause the Transfer Agent to countersign one or more Certificates that (x) each represent a whole number of shares of Convertible Preferred Stock and, in the aggregate, represent a total number of shares of Convertible Preferred Stock equal to the number of shares of Convertible Preferred Stock represented by such old Certificate that are not to be so converted or repurchased, as applicable; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 3(f).
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(i) Status of Retired Shares. Upon any share of Convertible Preferred Stock ceasing to be outstanding, such share will be deemed to be retired and to resume the status of an authorized and unissued share of preferred stock of the Company, and such share cannot thereafter be reissued as Convertible Preferred Stock.
(j) Replacement Certificates. If a Holder of any Convertible Preferred Stock claims that the Certificate(s) representing such Convertible Preferred Stock have been mutilated, lost, destroyed or wrongfully taken, then the Company will issue, execute and deliver, and cause the Transfer Agent to countersign, in each case in accordance with Section 3(c), a replacement Certificate representing such Convertible Preferred Stock upon surrender to the Company or the Transfer Agent of such mutilated Certificate, or upon delivery to the Company or the Transfer Agent of evidence of such loss, destruction or wrongful taking reasonably satisfactory to the Transfer Agent and the Company. In the case of a lost, destroyed or wrongfully taken Certificate representing any Convertible Preferred Stock, the Company and the Transfer Agent may require the Holder thereof to provide such security or indemnity that is reasonably satisfactory to the Company and the Transfer Agent to protect the Company and the Transfer Agent from any loss that any of them may suffer if such Certificate is replaced. Every replacement Convertible Preferred Stock issued pursuant to this Section 3(j) will, upon such replacement, be deemed to be outstanding Convertible Preferred Stock, entitled to all of the benefits of this Certificate of Designations equally and ratably with all other Convertible Preferred Stock then outstanding.
(k) Registered Holders. Only the Holder of any Convertible Preferred Stock will have rights under this Certificate of Designations as the owner of such Convertible Preferred Stock.
(l) Cancellation. The Company may at any time deliver Convertible Preferred Stock to the Transfer Agent for cancellation. The Company will cause the Transfer Agent to promptly cancel all shares of Convertible Preferred Stock so surrendered to it in accordance with its customary procedures.
(m) Shares Held by the Company or its Subsidiaries. Without limiting the generality of Sections 3(o) and 3(n), in determining whether the Holders of the required number of outstanding shares of Convertible Preferred Stock have concurred in any direction, waiver or consent, shares of Convertible Preferred Stock owned by the Company or any of its Subsidiaries will be deemed not to be outstanding.
(n) Outstanding Shares.
(i) Generally. The shares of Convertible Preferred Stock that are outstanding at any time will be deemed to be those shares of Convertible Preferred Stock that, at such time, have been duly executed by the Company and countersigned by the Transfer Agent, excluding those shares of Convertible Preferred Stock that have theretofore been (1) cancelled by the Transfer Agent or delivered to the Transfer Agent for cancellation in accordance with Section 3(l); (2) paid in full upon their conversion or repurchase in accordance with this Certificate of Designations; or (3) deemed to cease to be outstanding to the extent provided in, and subject to, clause (ii) or (iii) of this Section 3(n).
(ii) Replaced Shares. If any Certificate representing any share of Convertible Preferred Stock is replaced pursuant to Section 3(j), then such share will cease to be outstanding at the time of such replacement, unless the Transfer Agent and the Company receive proof reasonably satisfactory to them that such share is held by a “bona fide purchaser” under applicable law.
(iii) Shares to Be Converted. If any Convertible Preferred Stock is to be converted, then, at the Close of Business on the Conversion Date for such conversion (unless there occurs a default in the delivery of the Conversion Consideration due pursuant to Section 10 upon such conversion): (1) such Convertible Preferred Stock will be deemed to cease to be outstanding (without limiting the Company’s obligations pursuant to Section 5(c)); (2) Regular Dividends will cease to accumulate on such Convertible Preferred Stock from and after such Conversion Date; and (3) the rights of the Holders of such Convertible Preferred Stock, as such, will terminate with respect to such Convertible Preferred Stock, other than the right to receive such Conversion Consideration as provided in Section 10 (and, if applicable, declared Dividends as provided in Section 5(c)).
(o) Repurchases by the Company and its Subsidiaries. Without limiting the generality of Section 3(l) and the next sentence, the Company may, from time to time, repurchase Convertible Preferred Stock in open market purchases or in negotiated transactions without delivering prior notice to Holders. The Company will promptly deliver to the Transfer Agent for cancellation all Convertible Preferred Stock that the Company or any of its Subsidiaries have purchased or otherwise acquired.
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(p) Notations and Exchanges. Without limiting any rights of Holders pursuant to Section 9, if any amendment, supplement or waiver to the Certificate of Incorporation or this Certificate of Designations changes the terms of any Convertible Preferred Stock, then the Company may, in its discretion, require the Holder of the Certificate representing such Convertible Preferred Stock to deliver such Certificate to the Transfer Agent so that the Transfer Agent may place an appropriate notation prepared by the Company on such Certificate and return such Certificate to such Holder. Alternatively, at its discretion, the Company may, in exchange for such Convertible Preferred Stock, issue, execute and deliver, and cause the Transfer Agent to countersign, in each case in accordance with Section 3(c), a new Certificate representing such Convertible Preferred Stock that reflects the changed terms. The failure to make any appropriate notation or issue a new Certificate representing any Convertible Preferred Stock pursuant to this Section 3(p) will not impair or affect the validity of such amendment, supplement or waiver.
(q) CUSIP and ISIN Numbers. The Company may use one or more CUSIP or ISIN numbers to identify any of the Convertible Preferred Stock, and, if so, the Company will use such CUSIP or ISIN number(s) in notices to Holders; provided, however, that the effectiveness of any such notice will not be affected by any defect in, or omission of, any such CUSIP or ISIN number.
Section 4. Ranking. The Convertible Preferred Stock will rank (a) senior to (i) Dividend Junior Stock with respect to the payment of dividends; and (ii) Liquidation Junior Stock with respect to the distribution of assets upon the Company’s liquidation, dissolution or winding up; (b) equally with (i) Dividend Parity Stock with respect to the payment of dividends; and (ii) Liquidation Parity Stock with respect to the distribution of assets upon the Company’s liquidation, dissolution or winding up; and (c) junior to (i) Dividend Senior Stock with respect to the payment of dividends; and (ii) Liquidation Senior Stock with respect to the distribution of assets upon the Company’s liquidation, dissolution or winding up.
Section 5. Dividends.
(a) Generally.
(i) Regular Dividends.
(1) Accumulation and Payment of Regular Dividends. The Convertible Preferred Stock will accumulate cumulative dividends at a rate per annum equal to the Regular Dividend Rate on the Liquidation Preference thereof (calculated in accordance with Section 5(a)(i)(2)), regardless of whether or not declared or funds are legally available for their payment (such dividends that accumulate on the Convertible Preferred Stock pursuant to this sentence, “Regular Dividends”). Subject to the other provisions of this Section 5 (including, for the avoidance of doubt, Section 5(a)(ii)(1)), such Regular Dividends will be payable when, as and if declared by the Board of Directors, out of funds legally available for their payment to the extent paid in cash, semi-annually in arrears on each Regular Dividend Payment Date, to the Holders as of the Close of Business on the immediately preceding Regular Dividend Record Date. Regular Dividends on the Convertible Preferred Stock will accumulate from, and including, the last date to which Regular Dividends have been paid (or, if no Regular Dividends have been paid, from, and including, the Initial Issue Date) to, but excluding, the next Regular Dividend Payment Date.
(2) Computation of Accumulated Regular Dividends. Accumulated Regular Dividends will be computed on the basis of a 360-day year comprised of twelve 30-day months. Regular Dividends on each share of Convertible Preferred Stock will accrue on the Liquidation Preference of such share as of immediately before the Close of Business on the preceding Regular Dividend Payment Date (or, if there is no preceding Regular Dividend Payment Date, on the Initial Liquidation Preference of such share).
(ii) Method of Payment; Payments in Kind.
(1) Generally. Subject to the next sentence, each declared Regular Dividend on the Convertible Preferred Stock will be paid in cash. Notwithstanding anything to the contrary in this Certificate of Designations, if as of the Close of Business on any Regular Dividend Payment Date, the Company has not paid all or any portion of the full amount of the Regular Dividends (regardless of whether or not declared) that have accumulated on the Convertible Preferred Stock in respect of the Regular Dividend Period ending on, but excluding, such Regular Dividend Payment Date, then, the dollar amount (expressed as an amount per share of Convertible Preferred Stock) of such Regular Dividend (or, if
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applicable, portion thereof) not paid in cash will (without duplication) be added, effective immediately before the Close of Business on the related Regular Dividend Payment Date, to the Liquidation Preference of each share of Convertible Preferred Stock outstanding as of such time.
(2) Construction. Any Regular Dividends the amount of which is added to the Liquidation Preference thereof pursuant to Section 5(a)(ii)(1) will be deemed to be “declared” and “paid” on the Convertible Preferred Stock for all purposes of this Certificate of Designations.
(b) Participating Dividends.
(i) Generally. Subject to Section 5(b)(ii), no dividend or other distribution on the Common Stock (whether in cash, securities or other property, or any combination of the foregoing) will be declared or paid on the Common Stock unless, at the time of such declaration and payment, an equivalent dividend or distribution is declared and paid, respectively, on the Convertible Preferred Stock (such a dividend or distribution on the Convertible Preferred Stock, a “Participating Dividend,” and such corresponding dividend or distribution on the Common Stock, the “Common Stock Participating Dividend”), such that (1) the Record Date and the payment date for such Participating Dividend occur on the same dates as the Record Date and payment date, respectively, for such Common Stock Participating Dividend; and (2) the kind and amount of consideration payable per share of Convertible Preferred Stock in such Participating Dividend is the same kind and amount of consideration that would be payable in the Common Stock Participating Dividend in respect of a number of shares of Common Stock equal to the number of shares of Common Stock that would be issuable (determined in accordance with Section 10 but without regard to Section 10(e)(ii) and Section 10(e)(iii)) in respect of one (1) share of Convertible Preferred Stock that is converted with a Conversion Date occurring on such Record Date (subject to the same arrangements, if any, in such Common Stock Participating Dividend not to issue or deliver a fractional portion of any security or other property, but with such arrangement applying separately to each Holder and computed based on the total number of shares of Convertible Preferred Stock held by such Holder on such Record Date).
(ii) Common Stock Change Events and Stock Splits, Dividends and Combinations. Section 5(b)(i) will not apply to, and no Participating Dividend will be required to be declared or paid in respect of, a Common Stock Change Event, or an event for which an adjustment to the Conversion Rate is required (or would be required without regard to Section 10(f)(iii)) pursuant to Section 10(f)(i)(1), as to which Section 10(i) or Section 10(f)(i)(1), respectively, will apply.
(c) Treatment of Dividends Upon Repurchase or Conversion. If the Fundamental Change Repurchase Date or Conversion Date of any share of Convertible Preferred Stock is after a Record Date for a declared Dividend on the Convertible Preferred Stock and on or before the next Dividend Payment Date, then the Holder of such share at the Close of Business on such Record Date will be entitled, notwithstanding the related repurchase or conversion, as applicable, to receive, on or, at the Company’s election, before such Dividend Payment Date, such declared Dividend on such share. Solely for purposes of the preceding sentence, and not for any other purpose, a Regular Dividend will be deemed to be declared only to the extent that it is declared for payment in cash. Except as provided in this Section 5(c) or Section 7(d), Regular Dividends on any share of Convertible Preferred Stock will cease to accumulate from and after the Fundamental Change Repurchase Date or Conversion Date, as applicable, for such share, unless the Company defaults in the payment of the related Fundamental Change Repurchase Price or Conversion Consideration, as applicable.
Section 6. Rights Upon Liquidation, Dissolution or Winding Up.
(a) Generally. If the Company liquidates, dissolves or winds up, whether voluntarily or involuntarily, then, subject to the rights of any of the Company’s creditors or holders of any outstanding Liquidation Senior Stock, each share of Convertible Preferred Stock will entitle the Holder thereof to receive payment for the greater of the amounts set forth in clause (i) and (ii) below out of the Company’s assets or funds legally available for distribution to the Company’s stockholders, before any such assets or funds are distributed to, or set aside for the benefit of, any Liquidation Junior Stock:
(i) the sum of:
(1) the Liquidation Preference per share of Convertible Preferred Stock; and
(2) all unpaid Regular Dividends that will have accumulated on such share to, but excluding, the date of such payment; and
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(ii) the amount such Holder would have received in respect of the number of shares of Common Stock that would be issuable (determined in accordance with Section 10 but without regard to Section 10(e)(ii) and Section 10(e)(iii)) upon conversion of such share of Convertible Preferred Stock assuming the Conversion Date of such conversion occurs on the date of such payment.
Upon payment of such amount in full on the outstanding Convertible Preferred Stock, Holders of the Convertible Preferred Stock will have no rights to the Company’s remaining assets or funds, if any. If such assets or funds are insufficient to fully pay such amount on all outstanding shares of Convertible Preferred Stock and the corresponding amounts payable in respect of all outstanding shares of Liquidation Parity Stock, if any, then, subject to the rights of any of the Company’s creditors or holders of any outstanding Liquidation Senior Stock, such assets or funds will be distributed ratably on the outstanding shares of Convertible Preferred Stock and Liquidation Parity Stock in proportion to the full respective distributions to which such shares would otherwise be entitled.
(b) Certain Business Combination Transactions Deemed Not to Be a Liquidation. For purposes of Section 6(a), the Company’s consolidation or combination with, or merger with or into, or the sale, lease or other transfer of all or substantially all of the Company’s assets (other than a sale, lease or other transfer in connection with the Company’s liquidation, dissolution or winding up) to, another Person will not, in itself, constitute the Company’s liquidation, dissolution or winding up, even if, in connection therewith, the Convertible Preferred Stock is converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property, or any combination of the foregoing.
Section 7. Repurchase of the Convertible Preferred Stock Upon a Fundamental Change.
(a) Right of Holders to Require the Company to Repurchase Convertible Preferred Stock Upon a Fundamental Change. Subject to the other terms of this Section 7, if a Fundamental Change occurs, then each Holder will have the right (the “Fundamental Change Repurchase Right”) to require the Company to repurchase such Holder’s shares (or any portion thereof) on the Fundamental Change Repurchase Date for such Fundamental Change for a cash purchase price equal to the Fundamental Change Repurchase Price.
(b) Funds Legally Available for Payment of Fundamental Change Repurchase Price. The Company will not voluntarily take any action, or voluntarily engage in any transaction, that would result in a Fundamental Change unless the Company will have on the date of payment sufficient funds legally available to fully pay the maximum aggregate Fundamental Change Repurchase Price that would be payable in respect of such Fundamental Change on all shares of Convertible Preferred Stock then outstanding.
(c) Fundamental Change Repurchase Date. The Fundamental Change Repurchase Date for any Fundamental Change will be a Business Day of the Company’s choosing that is no more than thirty-five (35), nor less than twenty (20), Business Days after the date the Company sends the related Fundamental Change Notice pursuant to Section 7(e); provided that, in respect of any Fundamental Change for which the effective date occurs prior to October 4, 2024, the related Fundamental Change Repurchase Date shall not occur prior to the Business Day immediately succeeding the latest Termination Date.
(d) Fundamental Change Repurchase Price. The Fundamental Change Repurchase Price for any share of Convertible Preferred Stock to be repurchased pursuant to a Repurchase Upon Fundamental Change following a Fundamental Change is an amount in cash equal to (I) the Liquidation Preference of such share at the Close of Business on the Fundamental Change Repurchase Date plus (II) accumulated and unpaid Regular Dividends on such share to, but excluding, such Fundamental Change Repurchase Date (to the extent such accumulated and unpaid Regular Dividends are not included in such Liquidation Preference); provided, however, that if such Fundamental Change Repurchase Date is after a Regular Dividend Record Date for a Regular Dividend on the Convertible Preferred Stock that has been declared for payment in cash and on or before the next Regular Dividend Payment Date, then (1) pursuant to Section 5(c), the Holder of such share at the Close of Business on such Regular Dividend Record Date will be entitled, notwithstanding such Repurchase Upon Fundamental Change, to receive, on or, at the Company’s election, before such Regular Dividend Payment Date, such declared cash Regular Dividend on such share; and (2) the Fundamental Change Repurchase Price will not include such declared cash Regular Dividend on such share (and, for the avoidance of doubt, any portion of the full Regular Dividend scheduled to be paid on such Regular Dividend Payment Date that is not declared and paid in cash and is added to the Liquidation Preference of such share pursuant to Section 5(a)(ii)(1) will be included in the Fundamental Change Repurchase Price).
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(e) Fundamental Change Notice. On or before the twentieth (20th) calendar day after the occurrence of a Fundamental Change, the Company will send to each Holder a notice of such Fundamental Change (a “Fundamental Change Notice”).
Such Fundamental Change Notice must state:
(i) briefly, the events causing such Fundamental Change;
(ii) the effective date of such Fundamental Change;
(iii) the procedures that a Holder must follow to require the Company to repurchase its shares of Convertible Preferred Stock pursuant to this Section 7, including the deadline for exercising the Fundamental Change Repurchase Right and the procedures for submitting and withdrawing a Fundamental Change Repurchase Notice;
(iv) the Fundamental Change Repurchase Date for such Fundamental Change;
(v) the Fundamental Change Repurchase Price for such Fundamental Change (and, if such Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Regular Dividend Payment Date, the amount, manner and timing of the Regular Dividend payable pursuant to the proviso to Section 7(d));
(vi) the Conversion Rate in effect on the date of such Fundamental Change Notice and a description and quantification of any adjustments to the Conversion Rate that may result from such Fundamental Change (including pursuant to Section 10(j));
(vii) that shares of Convertible Preferred Stock for which a Fundamental Change Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Company for the Holder thereof to be entitled to receive the Fundamental Change Repurchase Price; and
(viii) that shares of Convertible Preferred Stock that are subject to a Fundamental Change Repurchase Notice that has been duly tendered may be converted only if such Fundamental Change Repurchase Notice is withdrawn in accordance with this Certificate of Designations.
(f) Procedures to Exercise the Fundamental Change Repurchase Right.
(i) Delivery of Fundamental Change Repurchase Notice and Shares to Be Repurchased. To exercise its Fundamental Change Repurchase Right for shares of Convertible Preferred Stock following a Fundamental Change, the Holder thereof must deliver to the Company:
(1) before the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date (or such later time as may be required by law), a duly completed, written Fundamental Change Repurchase Notice with respect to such shares; and
(2) such shares, duly endorsed for transfer.
(ii) Contents of Fundamental Change Repurchase Notices. Each Fundamental Change Repurchase Notice with respect to shares of Convertible Preferred Stock must state the number of such shares to be repurchased and that such Holder is exercising its Fundamental Change Repurchase Right with respect to such number of shares.
(iii) Withdrawal of Fundamental Change Repurchase Notice. A Holder that has delivered a Fundamental Change Repurchase Notice with respect to any shares of Convertible Preferred Stock may withdraw such Fundamental Change Repurchase Notice by delivering a written notice of withdrawal to the Company at any time before the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date. Such withdrawal notice must state the number of such shares to be withdrawn and the number of shares, if any, that remains subject to such Fundamental Change Repurchase Notice.
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(g) Payment of the Fundamental Change Repurchase Price. The Company will cause the Fundamental Change Repurchase Price for any share of Convertible Preferred Stock to be repurchased pursuant to a Repurchase Upon Fundamental Change to be paid to the Holder thereof on or before the later of the applicable Fundamental Change Repurchase Date and the date such share is tendered to the Transfer Agent or the Company.
(h) Repurchase by Third Parties. Notwithstanding anything to the contrary in this Section 7, the Company will be deemed to satisfy its obligations under this Section 7 if one or more third parties conduct any Repurchase Upon Fundamental Change and related offer to repurchase shares of Convertible Preferred Stock otherwise required by this Section 7 in a manner and time that would have satisfied the requirements of this Section 7 if conducted directly by the Company.
(i) No Requirement to Conduct an Offer to Repurchase Convertible Preferred Stock if the Fundamental Change Results in the Convertible Preferred Stock Becoming Convertible into an Amount of Cash Exceeding the Fundamental Change Repurchase Price. Notwithstanding anything to the contrary in this Section 7, the Company will not be required to send a Fundamental Change Notice pursuant to Section 7(e), or offer to repurchase or repurchase any shares pursuant to this Section 7, in connection with a Fundamental Change occurring pursuant to clause (b)(ii) (or pursuant to clause (a) that also constitutes a Fundamental Change occurring pursuant to clause (b)(ii)) of the definition thereof, if (i) such Fundamental Change constitutes a Common Stock Change Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the shares of Convertible Preferred Stock become convertible into consideration that consists solely of U.S. dollars in an amount per share that equals or exceeds the Fundamental Change Repurchase Price per share (calculated assuming that the same includes the maximum amount of accumulated and unpaid Regular Dividends payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notices required by Section 10(i)(iv) and, if applicable, Section 10(j)(iii).
(j) Compliance with Applicable Securities Laws. To the extent applicable, the Company will comply with all U.S. federal and state securities laws in connection with a Repurchase Upon Fundamental Change (including complying with Rules 13e-4 and 14e-1 under the Exchange Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Repurchase Upon Fundamental Change in the manner set forth in this Certificate of Designations; provided, however, that, to the extent that the Company’s obligations pursuant to this Section 7 conflict with any law or regulation that is applicable to the Company and enacted after the Initial Issue Date, the Company’s compliance with such law or regulation will not be considered to be a breach of such obligations.
Section 8. Covenants.
(a) Certain Information. At any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so long as any of the Convertible Preferred Stock or any Conversion Shares shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the Transfer Agent and, upon written request, any Holder, beneficial owner or prospective purchaser of such Convertible Preferred Stock or any Conversion Shares, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Convertible Preferred Stock or Conversion Shares pursuant to Rule 144A under the Securities Act. The Company shall take such further action as any Holder or beneficial owner of such Convertible Preferred Stock or such Conversion Shares may reasonably request to the extent from time to time required to enable such Holder or beneficial owner to sell such Convertible Preferred Stock or Conversion Shares in accordance with Rule 144A under the Securities Act, as such rule may be amended from time to time.
(b) Limitation on certain incurrences of indebtedness. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (other than Permitted Indebtedness); provided, however, that the Company may incur Indebtedness, and any of its Subsidiaries may incur Indebtedness, if the Total Leverage Ratio for the most recently completed four consecutive fiscal quarters of the Company immediately preceding the applicable calculation date for which internal financial statements are available would have been equal to or less than 5.00 to 1.00.
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Section 9. Voting Rights. The Convertible Preferred Stock will have no voting rights except as set forth in this Section 9 or as provided in the Certificate of Incorporation or required by the Delaware General Corporation Law.
(a) Voting and Consent Rights with Respect to Specified Matters.
(i) Generally. Subject to the other provisions of this Section 9(a), while any Convertible Preferred Stock is outstanding, each following event will require, and cannot be effected (and shall be void ab initio) without, the affirmative vote or consent of at least two Holders not Affiliated with each other, representing a majority of the outstanding shares of Convertible Preferred Stock, if any:
(1) any amendment or modification of the Certificate of Incorporation to authorize or create, or to increase the authorized number of shares of, any class or series of, or Equity-Linked Security or other equity interest convertible into, Dividend Parity Stock, Liquidation Parity Stock, Dividend Senior Stock or Liquidation Senior Stock;
(2) any amendment, modification or repeal of any provision of the Certificate of Incorporation, Bylaws or this Certificate of Designations that adversely affects the rights, preferences or voting powers of the Convertible Preferred Stock (other than an amendment, modification or repeal permitted by Section 9(a)(ii));
(3) any amendment, alteration, repeal or change to the rights, preferences or privileges of the Convertible Preferred Stock;
(4) [Reserved];
(5) except to the extent any of the following would constitute a Fundamental Change (in which case the provisions of Section 7 shall apply), the Company’s consolidation or combination with, or merger with or into, another Person, or any binding or statutory share exchange or reclassification involving the Convertible Preferred Stock, in each case unless:
(A) the Convertible Preferred Stock either (x) remains outstanding after such consolidation, combination, merger, share exchange or reclassification; or (y) is converted or reclassified into, or is exchanged for, or represents solely the right to receive, preference securities of the continuing, resulting or surviving Person of such consolidation, combination, merger, share exchange or reclassification, or the parent thereof;
(B) the Convertible Preferred Stock that remains outstanding or such preference securities, as applicable, have rights, preferences and voting powers that, taken as a whole, are not materially less favorable (as determined by the Board of Directors in good faith) to the Holders or the holders thereof, as applicable, than the rights, preferences and voting powers, taken as a whole, of the Convertible Preferred Stock immediately before the consummation of such consolidation, combination, merger, share exchange or reclassification; and
(C) the issuer of the Convertible Preferred Stock that remains outstanding or such preference securities, as applicable, is a corporation duly organized and existing under the laws of the United States of America, any State thereof or the District of Columbia that, if not the Company, will succeed to the Company under this Certificate of Designations and the Convertible Preferred Stock; or
(6) agree or consent to any of the actions prohibited by this Section 9(a)(i);
provided, however, that (x) a consolidation, combination, merger, share exchange or reclassification that satisfies the requirements of clauses (A), (B) and (C) of Section 9(a)(i)(5) will not require any vote or consent pursuant to Section 9(a)(i)(1), 9(a)(i)(2), Section 9(a)(i)(3) or Section 9(a)(i)(6); and (y) each of the following will be deemed, without limitation, not to adversely affect the rights, preferences or voting powers of the Convertible
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Preferred Stock (or cause any of the rights, preferences or voting powers of any such preference securities to be “materially less favorable” for purposes of Section 9(a)(i)(5)(B)) and will not require any vote or consent pursuant to Section 9(a)(i)(1), 9(a)(i)(2), Section 9(a)(i)(3), 9(a)(i)(5) or Section 9(a)(i)(6):
(I) any increase in the number of the authorized but unissued shares of the Company’s undesignated preferred stock;
(II) the creation and issuance, or increase in the authorized or issued number, of any class or series of stock that constitutes both Dividend Junior Stock and Liquidation Junior Stock; and
(III) the application of Section 10(i), including the execution and delivery of any supplemental instruments pursuant to Section 10(i)(iii) solely to give effect to such provision.
(ii) Certain Amendments Permitted Without Consent. Notwithstanding anything to the contrary in Section 9(a)(i)(2) or Section 9(a)(i)(3), the Company may amend, modify or repeal any of the terms of the Convertible Preferred Stock without the vote or consent of any Holder to:
(1) cure any ambiguity or correct any omission, defect or inconsistency in this Certificate of Designations or the Certificates representing the Convertible Preferred Stock, including the filing of a certificate of correction, or a corrected instrument, pursuant to Section 103(f) of the Delaware General Corporation Law in connection therewith; or
(2) make any other change to the Certificate of Incorporation, this Certificate of Designations or the Certificates representing the Convertible Preferred Stock that does not, individually or in the aggregate with all other such changes, adversely affect the rights of any Holder (other than any Holders that have consented to such change), as such (as determined by the Board of Directors in good faith).
(b) Right to Vote with Holders of Common Stock on an As-Converted Basis. Subject to the other provisions of, and without limiting the other voting rights provided in, this Section 9, and except as provided in the Certificate of Incorporation or required by the Delaware General Corporation Law, the Holders will have the right to vote together as a single class with the holders of the Common Stock on each matter submitted for a vote or consent by the holders of the Common Stock, and, for these purposes, (i) the Convertible Preferred Stock of each Holder will entitle such Holder to be treated as if such Holder were the holder of record, as of the record or other relevant date for such matter, of a number of shares of Common Stock equal to the number of shares of Common Stock that would be issuable (determined in accordance with Section 10(e), including Section 10(e)(ii), but without regarding to Section 10(e)(iii)) upon conversion of such Convertible Preferred Stock assuming such Convertible Preferred Stock were converted with a Conversion Date occurring on such record or other relevant date; and (ii) the Holders will be entitled to notice of all stockholder meetings or proposed actions by written consent in accordance with the Certificate of Incorporation, the Bylaws of the Company, and the Delaware General Corporation Law as if the Holders were holders of Common Stock.
(c) Procedures for Voting and Consents.
(i) Rules and Procedures Governing Votes and Consents. If any vote or consent of the Holders will be held or solicited, including at a regular annual meeting or a special meeting of stockholders, then (1) the Board of Directors will adopt customary rules and procedures at its discretion to govern such vote or consent, subject to the other provisions of this Section 9; and (2) such rules and procedures may include fixing a record date to determine the Holders that are entitled to vote or provide consent, as applicable, rules governing the solicitation and use of proxies or written consents.
(ii) Voting Power of the Convertible Preferred Stock. Each share of Convertible Preferred Stock will be entitled to one vote on each matter on which the Holders of the Convertible Preferred Stock are entitled to vote separately as a class and not together with the holders of any other class or series of stock.
(iii) Written Consent in Lieu of Stockholder Meeting. A consent or affirmative vote of the Holders pursuant to Section 9(a) may be given or obtained either in writing without a meeting or in person or by proxy at a regular annual meeting or a special meeting of stockholders.
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Section 10. Conversion.
(a) Generally.Subject to the provisions of this Section 10, the Convertible Preferred Stock may be converted only pursuant to a Mandatory Conversion or an Optional Conversion.
(b) Conversion at the Option of the Holders.
(i) Conversion Right; When Shares May Be Submitted for Optional Conversion. Holders will have the right to submit all, or any whole number of shares that is less than all, of their shares of Convertible Preferred Stock pursuant to an Optional Conversion at any time; provided, however, that, notwithstanding anything to the contrary in this Certificate of Designations,
(1) if a Fundamental Change Repurchase Notice is validly delivered pursuant to Section 7(f) with respect to any share of Convertible Preferred Stock, then such share may not be submitted for Optional Conversion, except to the extent (A) such share is not subject to such notice; (B) such notice is withdrawn in accordance with Section 7(f); or (C) the Company fails to pay the Fundamental Change Repurchase Price for such share in accordance with this Certificate of Designations; and
(2) shares of Convertible Preferred Stock that are subject to Mandatory Conversion may not be submitted for Optional Conversion after the Close of Business on the Business Day immediately before the related Mandatory Conversion Date.
(ii) Conversions of Fractional Shares Not Permitted. Notwithstanding anything to the contrary in this Certificate of Designations, in no event will any Holder be entitled to convert a number of shares of Convertible Preferred Stock that is not a whole number.
(iii) Contingent Conversion Notice. A Holder delivering an Optional Conversion Notice hereunder may specify in such Optional Conversion Notice that its election to effect such conversion is contingent upon the consummation of a Fundamental Change, in which case such Optional Conversion shall not occur until such time as such Fundamental Change has been consummated, and if such Fundamental Change is terminated or cancelled, such Optional Conversion Notice shall be deemed to be withdrawn. For the avoidance of doubt, any such contingent Optional Conversion shall occur prior to the Repurchase Upon a Fundamental Change that would have otherwise been effected in connection with such Fundamental Change and shall be deemed to occur during any related Make-Whole Fundamental Change Conversion Period.
(c) Mandatory Conversion at the Company’s Election.
(i) Mandatory Conversion Right. Subject to the provisions of this Section 10, the Company has the right (the “Mandatory Conversion Right”), exercisable at its election, to designate any Business Day after the second (2nd) year anniversary of the Initial Issue Date as a Conversion Date for the conversion (such a conversion, a “Mandatory Conversion”) of all, or any portion that is a whole number, of the outstanding shares of Convertible Preferred Stock, but only if the Last Reported Sale Price per share of Common Stock exceeds one hundred and thirty percent (130%) of the Conversion Price on (1) each of at least twenty (20) Trading Days (whether or not consecutive) during the thirty (30) consecutive Trading Days ending on, and including, the Trading Day immediately before the Mandatory Conversion Notice Date for such Mandatory Conversion and (2) the Trading Day immediately before the Mandatory Conversion Notice Date for such Mandatory Conversion. For the avoidance of doubt, the Mandatory Conversion of any shares of Convertible Preferred Stock will constitute a Make-Whole Fundamental Change with respect to such shares of Convertible Preferred Stock pursuant to clause (B) of the definition thereof.
(ii) Mandatory Conversion Prohibited in Certain Circumstances. The Company will not exercise its Mandatory Conversion Right, or otherwise send a Mandatory Conversion Notice, with respect to any Convertible Preferred Stock pursuant to this Section 10(c) unless the Common Stock Liquidity Conditions are satisfied with respect to the Mandatory Conversion. Notwithstanding anything to the contrary in this Section 10(c), the Company’s exercise of its Mandatory Conversion Right, and any related Mandatory Conversion Notice, will not apply to any share of Convertible Preferred Stock as to which a Fundamental Change Repurchase Notice has been duly delivered, and not withdrawn, pursuant to Section 7(f).
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(iii) Mandatory Conversion Date. The Mandatory Conversion Date for any Mandatory Conversion will be a Business Day of the Company’s choosing that is no more than twenty (20), nor less than ten (10), Business Days after the Mandatory Conversion Notice Date for such Mandatory Conversion.
(iv) Mandatory Conversion Notice. To exercise its Mandatory Conversion Right with respect to any shares of Convertible Preferred Stock, the Company must (x) send to each Holder of such shares a written notice of such exercise (a “Mandatory Conversion Notice”) and (y) substantially contemporaneously therewith, issue a press release through such national newswire service as the Company then uses (or publish the same through such other widely disseminated public medium as the Company then uses, including its website) containing the information set forth in the Mandatory Conversion Notice. Such Mandatory Conversion Notice must state:
(1) that the Company has exercised its Mandatory Conversion Right to cause the Mandatory Conversion of the shares, briefly describing the Company’s Mandatory Conversion Right under this Certificate of Designations;
(2) the Mandatory Conversion Date for such Mandatory Conversion and the date scheduled for the settlement of such Mandatory Conversion;
(3) that shares of Convertible Preferred Stock subject to Mandatory Conversion may be converted earlier at the option of the Holders thereof pursuant to an Optional Conversion at any time before the Close of Business on the Business Day immediately before the Mandatory Conversion Date;
(4) the Conversion Rate in effect on the Mandatory Conversion Notice Date for such Mandatory Conversion; and
(5) the CUSIP and ISIN numbers, if any, of the Convertible Preferred Stock.
(v) Selection and Optional Conversion of Convertible Preferred Stock Subject to Partial Mandatory Conversion. If less than all shares of Convertible Preferred Stock then outstanding are subject to Mandatory Conversion, then:
(1) the shares of Convertible Preferred Stock to be subject to such Mandatory Conversion will be selected by the Company pro rata; and
(2) if only a portion of the Convertible Preferred Stock is subject to Mandatory Conversion and a portion of such Convertible Preferred Stock is subject to Optional Conversion, then the converted portion of such Convertible Preferred Stock will be deemed to be from the portion of such Convertible Preferred Stock that was subject to Mandatory Conversion.
(d) Conversion Procedures.
(i) Mandatory Conversion. If the Company duly exercises, in accordance with Section 10(c), its Mandatory Conversion Right with respect to any share of Convertible Preferred Stock, then (1) the Mandatory Conversion of such share will occur automatically and without the need for any action on the part of the Holder(s) thereof; and (2) the shares of Common Stock due upon such Mandatory Conversion will be registered in the name of, and, if applicable, the cash due upon such Mandatory Conversion will be delivered to, the Holder(s) of such share of Convertible Preferred Stock as of the Close of Business on the related Mandatory Conversion Date.
(ii) Requirements for Holders to Exercise Optional Conversion Right.
(1) Generally. To convert any share of Convertible Preferred Stock pursuant to an Optional Conversion, the Holder of such share must (w) complete, manually sign and deliver to the Company an Optional Conversion Notice; (x) deliver any Physical Certificate(s) representing such Convertible Preferred Stock to the Company (at which time such Optional Conversion will become irrevocable); (y) furnish any endorsements and transfer documents that the Company may require; and (z) if applicable, pay any documentary or other taxes.
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(2) Optional Conversion Permitted only During Business Hours. Convertible Preferred Stock may be surrendered for Optional Conversion only after the Open of Business and before the Close of Business on a day that is a Business Day.
(iii) Treatment of Accumulated Regular Dividends upon Conversion.
(1) No Adjustments for Accumulated Regular Dividends. Without limiting the operation of Sections 5(a)(ii)(1) and 10(e)(i), the Conversion Rate will not be adjusted to account for any accumulated and unpaid Regular Dividends on any Convertible Preferred Stock being converted.
(2) Conversions Between A Record Date and a Dividend Payment Date. If the Conversion Date of any share of Convertible Preferred Stock to be converted is after a Record Date for a declared Dividend on the Convertible Preferred Stock and on or before the next Dividend Payment Date, then such Dividend will be paid pursuant to Section 5(c) notwithstanding such conversion.
(iv) When Holders Become Stockholders of Record of the Shares of Common Stock Issuable Upon Conversion. The Person in whose name any share of Common Stock is issuable upon conversion of any Convertible Preferred Stock will be deemed to become the holder of record of such share as of the Close of Business on the Conversion Date for such conversion.
(e) Settlement upon Conversion.
(i) Generally. Subject to Section 5(c), Section 10(e)(ii), Section 10(j) and Section 12(b), the consideration due upon settlement of the conversion of each share of Convertible Preferred Stock will consist of a number of shares of Common Stock equal to the quotient obtained by dividing (I) the sum of (x) the Liquidation Preference of such share of Convertible Preferred Stock immediately before the Close of Business on the Conversion Date for such conversion; and (y) an amount equal to accumulated and unpaid Regular Dividends on such share of Convertible Preferred Stock to, but excluding, such Conversion Date (but only to the extent such accumulated and unpaid Regular Dividends are not included in the Liquidation Preference referred to in the preceding clause (x)); by (II) the Conversion Price in effect immediately before the Close of Business on such Conversion Date.
(ii) Payment of Cash in Lieu of any Fractional Share of Common Stock. Subject to Section 12(b), in lieu of delivering any fractional share of Common Stock otherwise due upon conversion of any Convertible Preferred Stock, the Company will, to the extent it is legally able to do so and permitted under the terms of its indebtedness for borrowed money, pay cash based on the Last Reported Sale Price per share of Common Stock on the Conversion Date for such conversion (or, if such Conversion Date is not a Trading Day, the immediately preceding Trading Day).
(iii) Company’s Right to Settle Optional Conversion in Cash. If any Convertible Preferred Stock is to be converted pursuant to an Optional Conversion, then the Company will have the right to settle such Optional Conversion of such Convertible Preferred Stock (or any portion thereof that represents a whole number of shares) solely in cash in an amount equal to the product of (1) the number of shares of Common Stock that would be issuable upon such Optional Conversion of such Convertible Preferred Stock (or such portion thereof), determined in accordance with this Section 10 (but without regard to Section 10(e)(ii) or this Section 10(e)(iii)); and (2) the Last Reported Sale Price per share of Common Stock on the Conversion Date for such Optional Conversion. Such right can be exercised by the Company solely by providing written notice to the Holder of such Convertible Preferred Stock no later than the Business Day after such Conversion Date, which notice states (x) that the Company has elected to cash settle such Optional Conversion; and (y) the number of shares of such Convertible Preferred Stock as to which such election is made. Once such written notice is so provided exercising such right, such exercise will be irrevocable with respect to such Optional Conversion (without affecting the Company’s right to exercise or not exercise such right with respect to any other Optional Conversion). Notwithstanding anything to the contrary in this Section 10(e)(iii), the Company will not be entitled to exercise its right to settle any Optional Conversion of Convertible Preferred Stock in cash pursuant to this Section 10(e)(iii) unless the Company has sufficient funds legally available, and is permitted under the terms of its indebtedness for borrowed money, to fully pay the cash amounts that would be payable in respect of such election.
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(iv) Delivery of Conversion Consideration. Except as provided in Sections 10(f)(i)(2) and 10(i), the Company will pay or deliver, as applicable, the Conversion Consideration due upon conversion of any Convertible Preferred Stock on or before the second (2nd) Business Day immediately after the Conversion Date for such conversion.
(f) Conversion Rate Adjustments.
(i) Events Requiring an Adjustment to the Conversion Rate. The Conversion Rate will be adjusted from time to time as follows:
(1) Stock Dividends, Splits and Combinations. If the Company issues solely shares of Common Stock as a dividend or distribution on all or substantially all shares of the Common Stock, or if the Company effects a stock split or a stock combination of the Common Stock (in each case excluding an issuance solely pursuant to a Common Stock Change Event, as to which Section 10(i) will apply), then the Conversion Rate will be adjusted based on the following formula:
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where:
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CR0
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=
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the Conversion Rate in effect immediately before the Close of Business on the Record Date for such dividend or distribution, or immediately before the Open of Business on the effective date of such stock split or stock combination, as applicable;
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CR1
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=
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the Conversion Rate in effect immediately after the Close of Business on such Record Date or immediately after the Open of Business on such effective date, as applicable;
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OS0
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=
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the number of shares of Common Stock outstanding immediately before the Close of Business on such Record Date or immediately before the Open of Business on such effective date, as applicable, without giving effect to such dividend, distribution, stock split or stock combination; and
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OS1
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=
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the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split or stock combination.
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If any dividend, distribution, stock split or stock combination of the type described in this Section 10(f)(i)(1) is declared or announced, but not so paid or made, then the Conversion Rate will be readjusted, effective as of the date the Board of Directors, or any Officer acting pursuant to authority conferred by the Board of Directors, determines not to pay such dividend or distribution or to effect such stock split or stock combination, to the Conversion Rate that would then be in effect had such dividend, distribution, stock split or stock combination not been declared or announced.
(2) Tender Offers or Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for shares of Common Stock (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the Exchange Act), and the value (determined as of the Expiration Time by the Board of Directors) of the cash and other consideration paid per share of Common Stock in such tender or exchange offer exceeds the Last Reported Sale Price per share of Common Stock on the Trading Day immediately after the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), then the Conversion Rate will be increased based on the following formula:
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where:
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CR0
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=
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the Conversion Rate in effect immediately before the time (the “Expiration Time”) such tender or exchange offer expires;
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CR1
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=
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the Conversion Rate in effect immediately after the Expiration Time;
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SP
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=
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the average of the Last Reported Sale Prices per share of Common Stock over the ten (10) consecutive Trading Day period (the “Tender/Exchange Offer Valuation Period”) beginning on, and including, the Trading Day immediately after the Expiration Date;
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OS0
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=
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the number of shares of Common Stock outstanding immediately before the Expiration Time (including all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
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AC
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=
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the aggregate value (determined as of the Expiration Time by the Board of Directors) of all cash and other consideration paid for shares of Common Stock purchased or exchanged in such tender or exchange offer; and
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OS1
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=
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the number of shares of Common Stock outstanding immediately after the Expiration Time (excluding all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
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provided, however, that the Conversion Rate will in no event be adjusted down pursuant to this Section 10(f)(i)(2), except to the extent provided in the immediately following paragraph. The adjustment to the Conversion Rate pursuant to this Section 10(f)(i)(2) will be calculated as of the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period but will be given effect immediately after the Expiration Time, with retroactive effect. If the Conversion Date for any share of Convertible Preferred Stock to be converted occurs on the Expiration Date or during the Tender/Exchange Offer Valuation Period, then, notwithstanding anything to the contrary in this Certificate of Designations, the Company will, if necessary, delay the settlement of such conversion until the second (2nd) Business Day after the last Trading Day of the Tender/Exchange Offer Valuation Period.
To the extent such tender or exchange offer is announced but not consummated (including as a result of being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges of shares of Common Stock in such tender or exchange offer are rescinded, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the purchases or exchanges of shares of Common Stock, if any, actually made, and not rescinded, in such tender or exchange offer.
(ii) No Adjustments in Certain Cases.
(1) Certain Events. Without limiting the operation of Sections 5(a)(ii)(1) and 10(e)(i), the Company will not be required to adjust the Conversion Rate except pursuant to Section 10(f)(i). Without limiting the foregoing, the Company will not be required to adjust the Conversion Rate on account of:
(A) except as otherwise provided in Section 10(f)(i), the sale of shares of Common Stock for a purchase price that is less than the market price per share of Common Stock or less than the Conversion Price;
(B) the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any such plan;
(C) the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program of, or assumed by, the Company or any of its Subsidiaries;
(D) the issuance of any shares of Common Stock pursuant to any option, warrant, right or convertible or exchangeable security of the Company outstanding as of the Initial Issue Date; or
(E) solely a change in the par value of the Common Stock.
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(iii) Adjustment Deferral. If an adjustment to the Conversion Rate otherwise required by this Certificate of Designations would result in a change of less than one percent (1%) to the Conversion Rate, then the Company may, at its election, defer such adjustment, except that all such deferred adjustments must be given effect immediately upon the earliest of the following: (1) when all such deferred adjustments would result in a change of at least one percent (1%) to the Conversion Rate; (2) the Conversion Date of any share of Convertible Preferred Stock; (3) the effective date of any Fundamental Change and/or any Make-Whole Fundamental Change Effective Date; and (4) the occurrence of any vote of the stockholders of the Company.
(iv) Stockholder Rights Plans. If any shares of Common Stock are to be issued upon conversion of any Convertible Preferred Stock and, at the time of such conversion, the Company has in effect any stockholder rights plan, then the Holder of such Convertible Preferred Stock will be entitled to receive, in addition to, and concurrently with the delivery of, the consideration otherwise due upon such conversion, the rights set forth in such stockholder rights plan.
(v) Determination of the Number of Outstanding Shares of Common Stock. For purposes of Section 10(f)(i), the number of shares of Common Stock outstanding at any time will (1) include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock; and (2) exclude shares of Common Stock held in the Company’s treasury (unless the Company pays any dividend or makes any distribution on shares of Common Stock held in its treasury).
(vi) Calculations. All calculations with respect to the Conversion Rate and adjustments thereto will be made to the nearest 1/10,000th of a share of Common Stock (with 5/100,000ths rounded upward).
(vii) Notice of Conversion Rate Adjustments. Upon the effectiveness of any adjustment to the Conversion Rate pursuant to Section 10(f)(i), the Company will, as soon as reasonably practicable an no later than ten (10) Business Days after the date of such effectiveness, send notice to the Holders containing (1) a brief description of the transaction or other event on account of which such adjustment was made; (2) the Conversion Rate in effect immediately after such adjustment; and (3) the effective time of such adjustment.
(g) Voluntary Conversion Rate Increases
(i) Generally. To the extent permitted by law and applicable stock exchange rules, the Company, from time to time, may (but is not required to) increase the Conversion Rate by any amount if (1) the Board of Directors determines that such increase is in the Company’s best interest or that such increase is advisable to avoid or diminish any income tax imposed on holders of Common Stock or rights to purchase Common Stock as a result of any dividend or distribution of shares (or rights to acquire shares) of Common Stock or any similar event; (2) such increase is in effect for a period of at least twenty (20) Business Days; and (3) such increase is irrevocable during such period; provided, however, that any such increase that would reasonably be expected to result in any income tax imposed on holders of Convertible Preferred Stock shall require the affirmative vote or consent of at least two Holders not Affiliated with each other representing a majority of the outstanding shares of Convertible Preferred Stock.
(ii) Notice of Voluntary Increase. If the Board of Directors determines to increase the Conversion Rate pursuant to Section 10(g)(i), then, no later than the first Business Day of the related twenty (20) Business Day period referred to in Section 10(g)(i), the Company will send notice to each Holder of such increase to the Conversion Rate, the amount thereof and the period during which such increase will be in effect.
(h) [Reserved]
(i) Effect of Common Stock Change Event
(i) Generally. If there occurs any:
(1) recapitalization, reclassification or change of the Common Stock, other than (x) changes solely resulting from a subdivision or combination of the Common Stock, (y) a change only in par value or from par value to no par value or no par value to par value or (z) stock splits and stock combinations that do not involve the issuance of any other series or class of securities;
(2) consolidation, merger, combination or binding or statutory share exchange involving the Company;
Annex A-105
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(3) sale, lease or other transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or
(4) other similar event,
and, as a result of which, the Common Stock is converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property, or any combination of the foregoing (such an event, a “Common Stock Change Event,” and such other securities, cash or property, the “Reference Property,” and the amount and kind of Reference Property that a holder of one (1) share of Common Stock would be entitled to receive on account of such Common Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”), then, notwithstanding anything to the contrary in this Certificate of Designations,
(A) from and after the effective time of such Common Stock Change Event, (I) the consideration due upon conversion of any Convertible Preferred Stock will be determined in the same manner as if each reference to any number of shares of Common Stock in this Section 10 or in Section 11, or in any related definitions, were instead a reference to the same number of Reference Property Units; (II) for purposes of Section 7 and Section 10(c), each reference to any number of shares of Common Stock in such Sections (or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units; and (III) for purposes of the definition of “Fundamental Change,” the terms “Common Stock” and “common equity” will be deemed to mean the common equity (including depositary receipts representing common equity), if any, forming part of such Reference Property; and
(B) for these purposes, the Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities, will be the fair value of such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof).
If the Reference Property consists of more than a single type of consideration to be determined based in part upon any form of stockholder election, then the composition of the Reference Property Unit will be deemed to be the weighted average of the types and amounts of consideration actually received, per share of Common Stock, by the holders of Common Stock. The Company will notify the Holders of such weighted average as soon as practicable after such determination is made.
(ii) Compliance Covenant. The Company will not become a party to any Common Stock Change Event unless its terms are consistent with this Section 10(i).
(iii) Execution of Supplemental Instruments. On or before the date the Common Stock Change Event becomes effective, the Company and, if applicable, the resulting, surviving or transferee Person (if not the Company) of such Common Stock Change Event (the “Successor Person”) will execute and deliver such supplemental instruments, if any, as the Company reasonably determines are necessary or desirable to (1) provide for subsequent adjustments to the Conversion Rate pursuant to Section 10(f)(i) in a manner consistent with this Section 10(i); and (2) give effect to such other provisions, if any, as the Company reasonably determines are appropriate to preserve the economic interests of the Holders and to give effect to Section 10(i)(i). If the Reference Property includes shares of stock or other securities or assets of a Person other than the Successor Person, then such other Person will also execute such supplemental instrument(s) and such supplemental instrument(s) will contain such additional provisions, if any, that the Company reasonably determines are appropriate to preserve the economic interests of Holders, including the provisions providing for the repurchase rights set forth in Section 7.
(iv) Notice of Common Stock Change Event. The Company will provide notice of each Common Stock Change Event to Holders no later than the second (2nd) Business Day after the effective date of the Common Stock Change Event.
(j) Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change.
(i) Generally. If a Make-Whole Fundamental Change occurs and the Conversion Date for the conversion of a share of Convertible Preferred Stock occurs during the related Make-Whole Fundamental Change Conversion Period or in respect of the related Mandatory Conversion, as applicable, then, subject to this Section 10(j), the Conversion
Annex A-106
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Rate applicable to such conversion will be increased by a number of shares (the “Additional Shares”) set forth in the table below corresponding (after interpolation as provided in, and subject to, the provisions below) to the Make-Whole Fundamental Change Effective Date and the Stock Price of such Make-Whole Fundamental Change:
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$
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10.000
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$
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11.000
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$
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12.000
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$
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13.000
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$
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14.000
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$
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15.000
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$
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16.000
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$
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16.900
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$
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18.000
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$
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20.000
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$
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22.500
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$
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25.000
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$
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30.000
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[Year 0]
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23.0769
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20.1355
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16.9675
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14.3915
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12.2764
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10.5260
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9.0669
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7.9550
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6.8083
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5.1825
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3.7400
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2.7316
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1.4787
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[Year 1]
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23.0769
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18.4300
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15.1600
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12.4885
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10.2950
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8.4907
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7.0063
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5.9006
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4.7956
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3.3320
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2.1809
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1.4748
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0.7150
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[Year 2 and
thereafter]
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23.0769
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17.2655
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13.8650
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11.0108
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8.5843
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6.4973
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4.6856
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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If such Make-Whole Fundamental Change Effective Date or Stock Price is not set forth in the table above, then:
(1) if such Stock Price is between two Stock Prices in the table above or the Make-Whole Fundamental Change Effective Date is between two dates in the table above, then the number of Additional Shares will be determined by straight-line interpolation between the numbers of Additional Shares set forth for the higher and lower Stock Prices in the table above or the earlier and later dates in the table above, based on a three hundred sixty five (365) or three hundred sixty six (366)-day year, as applicable; and
(2) if the Stock Price is greater than $30.00 (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above are adjusted pursuant to Section 10(j)(ii)), or less than $10.00 (subject to adjustment in the same manner), per share, then no Additional Shares will be added to the Conversion Rate.
Notwithstanding anything to the contrary in this Certificate of Designations, in no event will the Conversion Rate be increased to an amount that exceeds 100.0000 shares of Common Stock per $1,000 Liquidation Preference of Convertible Preferred Stock, which amount is subject to adjustment in the same manner as, and at the same time and for the same events for which, the Conversion Rate is required to be adjusted pursuant to Section 10(f).
For the avoidance of doubt, (x) the sending of a Mandatory Conversion Notice will constitute a Make-Whole Fundamental Change only with respect to the shares subject to Mandatory Conversion pursuant to such Mandatory Conversion Notice, and not with respect to any other shares; and (y) the Conversion Rate applicable to the shares not subject to such Mandatory Conversion will not be subject to increase pursuant to this Section 10(j) on account of such Mandatory Conversion Notice.
(ii) Adjustment of Stock Prices and Additional Shares. The Stock Prices in the first row (i.e., the column headers) of the table set forth in Section 10(j)(i) will be adjusted in the same manner as, and at the same time and for the same events for which, the Conversion Price is adjusted as a result of the operation of Section 10(f). The numbers of Additional Shares in the table set forth in Section 10(j)(i) will be adjusted in the same manner as, and at the same time and for the same events for which, the Conversion Rate is adjusted pursuant to Section 10(f).
(iii) Notice of the Occurrence of a Make-Whole Fundamental Change. If a Make-Whole Fundamental Change occurs pursuant to clause (A) of the definition thereof, then, in no event later than the Business Day immediately after the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change, the Company will notify the Holders and the Transfer Agent of the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change, briefly stating the circumstances under which the Conversion Rate will be increased pursuant to this Section 10(j) in connection with such Make-Whole Fundamental Change. The Company will notify the Holders and the Transfer Agent of each Make-Whole Fundamental Change occurring pursuant to clause (B) of the definition thereof in accordance with Section 10(c).
Section 11. Certain Provisions Relating to the Issuance of Common Stock.
(a) Equitable Adjustments to Prices. Whenever this Certificate of Designations requires the Company to calculate the average of the Last Reported Sale Prices, or any function thereof, over a period of multiple days (including to calculate an adjustment to the Conversion Rate), the Company will make appropriate adjustments,
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if any, to those calculations to account for any adjustment to the Conversion Rate pursuant to Section 10(f)(i) that becomes effective, or any event requiring such an adjustment to the Conversion Rate where the Ex-Dividend Date, effective date or Expiration Date, as applicable, of such event occurs, at any time during such period.
(b) Reservation of Shares of Common Stock. The Company will reserve, out of its authorized, unreserved and not outstanding shares of Common Stock, for delivery upon conversion of the Convertible Preferred Stock, a number of shares of Common Stock that would be sufficient to settle the conversion of all shares of Convertible Preferred Stock then outstanding, if any. To the extent the Company delivers shares of Common Stock held in the Company’s treasury in settlement of any obligation under this Certificate of Designations to deliver shares of Common Stock, each reference in this Certificate of Designations to the issuance of shares of Common Stock in connection therewith will be deemed to include such delivery.
(c) Status of Shares of Common Stock. Each share of Common Stock delivered upon conversion of the Convertible Preferred Stock of any Holder will be a newly issued or treasury share and will be duly and validly issued, fully paid, non-assessable, free from preemptive rights and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by the action or inaction of such Holder or the Person to whom such share of Common Stock will be delivered). If the Common Stock is then listed on any securities exchange, or quoted on any inter-dealer quotation system, then the Company will cause each such share of Common Stock, when so delivered, to be admitted for listing on such exchange or quotation on such system.
(d) Taxes Upon Issuance of Common Stock. The Company will pay any documentary, stamp or similar issue or transfer tax or duty due on the issue of any shares of Common Stock upon conversion of the Convertible Preferred Stock of any Holder, except any tax or duty that is due because such Holder requests those shares to be registered in a name other than such Holder’s name.
Section 12. Calculations.
(a) Responsibility; Schedule of Calculations. Except as otherwise provided in this Certificate of Designations, the Company will be responsible for making all calculations called for under this Certificate of Designations or the Convertible Preferred Stock, including determinations of the Conversion Rate, the Last Reported Sale Prices and accumulated Regular Dividends on the Convertible Preferred Stock. The Company will make all calculations in good faith, and, absent manifest error, its calculations will be final and binding on all Holders. The Company will provide a schedule of such calculations to any Holder upon written request.
(b) Calculations Aggregated for Each Holder. The composition of the Conversion Consideration due upon conversion of the Convertible Preferred Stock of any Holder will be computed based on the total number of shares of Convertible Preferred Stock of such Holder being converted with the same Conversion Date. For these purposes, any cash amounts due to such Holder in respect thereof will be rounded to the nearest cent.
Section 13. Tax Treatment. Notwithstanding anything to the contrary in this Certificate of Designations, for U.S. federal and other applicable state and local income tax purposes, it is intended that the Convertible Preferred Stock will not be treated as “preferred stock” within the meaning of Section 305(b)(4) of Code and Treasury Regulations Section 1.305-5(a). The Company will, and will cause its Subsidiaries and agents to, report consistently with, and take no positions or actions inconsistent with, the foregoing treatment unless otherwise required by a determination within the meaning of Section 1313(a) of the Code.
Section 14. Notices. The Company will send all notices or communications to Holders pursuant to this Certificate of Designations in writing and delivered personally, by facsimile or e-mail (with confirmation of receipt from the recipient, in the case of e-mail), or sent by nationally recognized overnight courier service to the Holder’s respective addresses shown on the Register. Notwithstanding anything in the Certificate of Designations to the contrary, any defect in the delivery of any such notice or communication will not impair or affect the validity of such notice or communication and the failure to give any such notice or communication to all the Holders will not impair or affect the validity of such notice or communication to whom such notice is sent.
Section 15. No Other Rights. The Convertible Preferred Stock will have no rights, preferences or voting powers except as provided in this Certificate of Designations or the Certificate of Incorporation or as required by applicable law.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
Annex A-108
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IN WITNESS WHEREOF, the Company has caused this Certificate of Designations to be duly executed as of the date first written above.
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[BOWLERO CORP.]
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By:
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Name:
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Title:
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[Signature Page to Certificate of Designations]
Annex A-109
Table of Contents
EXHIBIT A
FORM OF CONVERTIBLE PREFERRED STOCK
[Bowlero Corp.]
Series A Convertible Perpetual Preferred Stock
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[Certificate No.: [___]]
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No. Shares[*] [___]]
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[Bowlero Corp.], a Delaware corporation (the “Company”), certifies that [_______] is the registered owner of [___] shares of the Company’s Series A Convertible Preferred Stock (the “Convertible Preferred Stock”) represented by this certificate (this “Certificate”). The special rights, preferences and voting powers of the Convertible Preferred Stock are set forth in the Certificate of Designations of the Company establishing the Convertible Preferred Stock (the “Certificate of Designations”). Capitalized terms used in this Certificate without definition have the respective meanings ascribed to them in the Certificate of Designations.
Additional terms of this Certificate are set forth on the other side of this Certificate.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
Annex A-110
Table of Contents
IN WITNESS WHEREOF, [Bowlero Corp.] has caused this instrument to be duly executed as of the date set forth below.
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[BOWLERO CORP.]
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Date:
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By:
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Name:
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Title:
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Date:
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By:
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Name:
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Title:
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Annex A-111
Table of Contents
TRANSFER AGENT’S COUNTERSIGNATURE
[legal name of Transfer Agent], as Transfer Agent, certifies that this Certificate represents shares of Convertible Preferred Stock referred to in the within-mentioned Certificate of Designations.
Authorized Signatory
Annex A-112
Table of Contents
REVERSE OF SECURITY
[Bowlero Corp.]
The Company will furnish without charge to each stockholder who so requests, a summary of the powers, designations and preferences, or other special rights of each class of stock of the Company and the qualifications, limitations or restrictions of such preferences and rights, and the variations in rights, preferences and limitations determined for each series, which are fixed by the Certificate of Incorporation of the Company, as amended, and the Resolutions of the Board of Directors of the Company, and the authority of the Board of Directors to determine variations for future series. Such request may be made to the office of the Secretary of the Company or to the Transfer Agent. The Board of Directors may require the owner of a lost or destroyed stock certificate, or his legal representatives to give the Company a bond to indemnify it and its transfer agents and registrars against any claim that may be made against them on account of the alleged loss or destruction of any such certificate.
This security has not been registered with the Securities and Exchange Commission or the securities commission of any State in reliance upon an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, may not be offered or sold except pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in accordance with applicable federal, state and foreign securities laws. Notwithstanding the foregoing, the securities may be pledged in connection with a bona fide margin account or other loan or financing arrangement secured by the securities.
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FOR VALUE RECEIVED,
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hereby sell, assign and transfer unto
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(Insert assignee’s social security or tax identification number)
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(Insert address and zip code of assignee)
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Shares of the Series A Convertible Perpetual Preferred Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint
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agent to transfer the said shares of Series A Convertible Perpetual Preferred Stock evidenced hereby on the books of the within-named Company with full power of substitution in the premises.
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(Sign exactly as your name appears on the other side of this Series A Convertible Perpetual Preferred Stock)
Annex A-113
Table of Contents
EXHIBIT B
FUNDAMENTAL CHANGE REPURCHASE NOTICE
[Bowlero Corp.]
Series A Convertible Preferred Stock
Subject to the terms of the Certificate of Designations, by executing and delivering this Fundamental Change Repurchase Notice, the undersigned Holder of the Convertible Preferred Stock identified below directs the Company to repurchase (check one):
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☐
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all of the shares of Convertible Preferred Stock
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☐
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____________* shares of Convertible Preferred Stock
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identified by CUSIP No. _________ and Certificate No. _____________.
The undersigned acknowledges that the Convertible Preferred Stock, duly endorsed for transfer, must be delivered to the Transfer Agent before the Fundamental Change Repurchase Price will be paid.
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Date:
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(Legal Name of Holder)
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Signature Guaranteed:
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Participant in a Recognized Signature
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Guarantee Medallion Program
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Annex A-114
Table of Contents
EXHIBIT C
OPTIONAL CONVERSION NOTICE
[Bowlero Corp.]
Series A Convertible Preferred Stock
Subject to the terms of the Certificate of Designations, by executing and delivering this Optional Conversion Notice, the undersigned Holder of the Convertible Preferred Stock identified below directs the Company to convert (check one):
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☐
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all of the shares of Convertible Preferred Stock
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☐
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____________* shares of Convertible Preferred Stock
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identified by CUSIP No. ____________ and Certificate No. _____________.
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Date:
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(Legal Name of Holder)
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Signature Guaranteed:
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Participant in a Recognized Signature
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Guarantee Medallion Program
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Annex A-115
Table of Contents
EXHIBIT D
FORM OF RESTRICTED STOCK LEGEND
The offer and sale of this security and the shares of common stock issuable upon conversion of this security have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and this security and such shares may not be offered, sold or otherwise transferred except (a) pursuant to a Registration Statement that is effective under the Securities Act; or (b) pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
Annex A-116
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Annex B
STRICTLY CONFIDENTIAL
FINAL FORM
CERTIFICATE OF INCORPORATION
OF
ISOS ACQUISITION CORPORATION
ARTICLE I
NAME
The name of the corporation is Isos Acquisition Corporation.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware 19801, and the name of its registered agent at such address is The Corporation Trust Company.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL as it now exists or may hereafter be amended and supplemented.
ARTICLE IV
CAPITAL STOCK
The Corporation is authorized to issue three classes of stock to be designated, respectively, “Class A Common Stock”, “Class B Common Stock” (together with the Class A Common Stock, the “Common Stock”) and “Preferred Stock.” The total number of shares of capital stock which the Corporation shall have authority to issue is 2,400,000,000, divided into: (a) 2,000,000,000 shares of Class A Common Stock, having a par value of $0.0001 per share, (b) 200,000,000 shares of Class B Common Stock, having a par value of $0.0001 per share, and (c) 200,000,000 shares of Preferred Stock, having a par value of $0.0001 per share.
The designations and the powers, privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock of the Corporation are as follows:
A. DEFINITIONS.
1. “Atairos” shall mean A-B Parent LLC, a Delaware limited liability company.
2. “Bowlero Legacy Stockholders” shall mean TS and Atairos.
3. “Business Combination Agreement” shall mean that certain Business Combination Agreement, dated as of July 1, 2021 (as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and between the Corporation and Bowlero Corp., a Delaware corporation.
4. “Cause” shall mean, in the case of the Founder, “Cause” as such term (or a term of substantively similar meaning) is defined in the written employment agreement between the Founder and the Corporation or any of its subsidiaries in effect at the applicable time or, if the Founder does not have an employment agreement in effect with the Corporation or any of its subsidiaries as of such time, the written employment agreement most recently in effect between the Founder and the Corporation or any of its subsidiaries.
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5. “Disability” shall mean a permanent and total disability such that the Founder is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which would reasonably be expected to result in death within twelve (12) months or which has lasted or would reasonably be expected to last for a continuous period of not less than twelve (12) months as determined by a licensed medical practitioner.
6. “Effective Time” shall have the meaning set forth in the Business Combination Agreement.
7. “Family Member” shall mean any spouse, registered domestic partner, descendant (including any adopted descendant), parent, parent of the spouse or domestic partner of a natural person or any lineal descendants of any of the foregoing (including any adopted descendant).
8. “Founder” shall mean Thomas F. Shannon, a natural person.
9. “Independent Directors” shall mean members of the Board of Directors who are not the Founder, a Permitted Transferee, an affiliate of the Founder, an officer or other employee of the Corporation or its subsidiaries (provided, that a director shall not be considered an officer or employee of the Corporation solely due to such director’s position as a member of the Board of Directors or the board of directors or similar governing body of one or more subsidiaries of the Corporation) or any director nominated by TS pursuant to the Stockholders’ Agreement.
10. “Permitted Transferee” means collectively:
a. the Founder;
b. TS so long as the Founder continues to retain sole dispositive control and exclusive Voting Control over the shares of Class B Common Stock held by TS;
c. any trust of which such the Founder and/or any one or more Family Members of the Founder and/or any organization that is tax-exempt under Section 501(c)(3) of the Internal Revenue Code (but no other persons) are the only current beneficiaries, in each case, so long as the Founder continues to retain exclusive Voting Control over the shares of Class B Common Stock held by such trust; and
d. an entity in which all of the beneficial and economic interests are held, directly or indirectly, by any one or more of the Founder and any one or more Family Members (but no other persons), so long as the Founder continues to retain sole dispositive control and exclusive Voting Control over the shares of Class B Common Stock held by such entity.
11. “Stockholders’ Agreement” shall mean that certain Stockholders’ Agreement, dated as of the date hereof (as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and among the Corporation, TS, Atairos, Founder and Atairos Group, Inc.
12. “Transfer” shall mean (i) the direct or indirect sale, transfer, pledge, assignment, gift, contribution, grant of a lien, or other disposal of any share of Class B Common Stock or any legal or any beneficial interest in such share, whether or not for value and whether voluntary or involuntary or by operation of law, whether directly or indirectly, including by merger, consolidation or otherwise or (ii) the deposit of any share of Class B Common Stock into a voting trust or entry into a voting agreement or arrangement with respect to any share of Class B Common Stock or the granting of any proxy or power of attorney with respect thereto. A “Transfer” will also be deemed to have occurred with respect to any share of Class B Common Stock beneficially held by an entity or trust if there is a transaction or other event such that the entity or trust ceases to constitute a Permitted Transferee, including the Founder ceasing to retain sole dispositive control (other than in the case of a trust referred to in clause A.10.b of the definition of Permitted Transferee) and exclusive Voting Control over the shares of Class B Common Stock held by such entity or trust. Notwithstanding the foregoing none of the following shall be considered a Transfer:
a. the granting of a revocable proxy to an officer or director of the Corporation at the request of the Board of Directors and approved by the Independent Directors in connection with actions to be taken at an annual or special meeting of stockholders;
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b. the pledge of shares of Class B Common Stock or granting a lien with respect thereto by a stockholder that creates a security interest in such shares pursuant to a bona fide loan or indebtedness transaction with a bona fide financial institution for so long as such stockholder continues to exercise sole dispositive control and exclusive Voting Control over such shares; provided, however, that a foreclosure on such shares or other similar action by the pledgee shall constitute a Transfer;
c. the entering into, or reaching an agreement, arrangement or understanding regarding, a support, voting, tender or similar agreement or arrangement (with or without a proxy) in connection with a merger, asset transfer, asset acquisition or similar transaction approved by the Board of Directors;
d. the entering into a trading plan pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with a broker or other nominee pursuant to which the holder entering into the plan retains exclusive Voting Control over the shares; provided, however, that a Transfer of such shares of Class B Common Stock by such broker or other nominee shall constitute a “Transfer” at the time of such Transfer; and
e. the entry into any legally binding contract or other arrangement providing for the Transfer of any share of Class B Common Stock during the period between (i) the entry into such contract or other arrangement and (ii) the settlement of such Transfer; provided that (x) the Founder continues to retain sole dispositive control and exclusive Voting Control over such shares of Class B Common Stock prior to the settlement and (y) the settlement shall constitute a “Transfer” at the time of such settlement.
13. “TS” shall mean Cobalt Recreation LLC, a Delaware limited liability company.
14. “Voting Control” shall mean the power to vote or direct the voting of the applicable voting security by proxy, voting agreement or otherwise.
B. COMMON STOCK.
1. General. The voting, dividend, liquidation, and other rights and powers of the Common Stock are subject to and qualified by the rights, powers and preferences of any series of Preferred Stock as may be designated by the Board of Directors and outstanding from time to time. Except as may otherwise be provided in this Certificate of Incorporation or by applicable law, each share of Class A Common Stock and each share of Class B Common Stock shall have identical powers, preferences and rights.
2. Voting. Except as otherwise provided in this Certificate of Incorporation or expressly required by applicable law, (a) each holder of Class A Common Stock, as such, shall be entitled to vote on each matter submitted to a vote of stockholders and shall be entitled to one (1) vote for each share of Class A Common Stock held of record by such holder as of the record date for determining stockholders entitled to vote on such matter, and (b) each holder of Class B Common Stock, as such, shall be entitled to vote on each matter submitted to a vote of stockholders and shall be entitled to ten (10) votes for each share of Class B Common Stock held of record by such holder as of the record date for determining stockholders entitled to vote on such matter. Except as otherwise provided in this Certificate of Incorporation or required by applicable law, the Class A Common Stock and the Class B Common Stock shall vote together as a single class. Except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any Certificate of Designation (as defined below)) that relates solely to the rights, powers, preferences (or the qualifications, limitations or restrictions thereof) or other terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any Certificate of Designation) or pursuant to the DGCL.
Subject to the rights of any holders of any outstanding series of Preferred Stock, the number of authorized shares of Class A Common Stock or Class B Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.
3. Conversion of Class B Common Stock.
a. Right to Convert. At any time, any holder of shares of Class B Common Stock, at the option of such holder, may convert any share of Class B Common Stock held by such holder at any time after the date of issuance of such share, at the office of the Corporation or any transfer agent for such stock, into one (1) share of Class A Common Stock.
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b. Automatic Conversion. Each outstanding share of Class B Common Stock shall automatically convert into one (1) share of Class A Common Stock upon the earliest to occur of (i) the Founder ceasing to beneficially own (including by or through an entity), at or following the Effective Time, at least ten percent (10%) of the number of shares of Common Stock issued and outstanding at such time, (ii) the death or Disability of the Founder, (iii) the Founder’s employment as Chief Executive Officer being terminated for Cause (as determined by final, non-appealable judgment of a court of competent jurisdiction) (or the cessation of the Founder’s employment as Chief Executive Officer for any reason, and following such cessation, circumstances existed when the Founder was employed as Chief Executive Officer that would have entitled the Founder to be terminated for Cause (as determined by final, non-appealable judgment of a court of competent jurisdiction)) and (iv) the fifteen (15) year anniversary of the Effective Time (the earliest such date, the “Class B Mandatory Conversion Time”).
c. Transfers. Any share of Class B Common Stock shall automatically convert into one (1) share of Class A Common Stock upon the Transfer of such share of Class B Common Stock other than to a Permitted Transferee.
d. Mechanics of Conversion.
i. In the event of an optional conversion pursuant to Section B.3.a of this Article IV, before any holder of Class B Common Stock shall be entitled voluntarily to convert the same into shares of Class A Common Stock, such holder shall surrender the certificate or certificates therefor (if any), duly endorsed, at the office of the Corporation or any transfer agent for the Class B Common Stock, and shall give written notice to the Corporation at such office that such holder elects to convert the same and shall state therein the number of shares of Class B Common Stock being converted. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the certificate or certificates representing the shares of Class B Common Stock to be converted, or, if the shares are uncertificated, immediately prior to the close of business on the date that the holder delivers notice of such conversion to the Corporation’s transfer agent, and the person entitled to receive the shares of Class A Common Stock issuable upon such conversion shall be treated for all purposes as the record holder of such shares of Class A Common Stock on such date.
ii. If the conversion is in connection with the automatic conversion provisions set forth in Section B.3.b or Section B.3.c of this Article IV, such conversion shall be deemed to have been made (i) in the case of Section B.3.b of this Article IV, at the Class B Mandatory Conversion Time, and (ii) in the case of Section B.3.c of this Article IV, on the applicable date of Transfer, and the persons entitled to receive shares of Class A Common Stock issuable upon such conversion shall be treated for all purposes as the record holders of such shares of Class A Common Stock as of the applicable date, and, until presented for transfer, certificates (if any) previously evidencing shares of Class B Common Stock shall represent the number of shares of Class A Common Stock into which such shares were automatically converted. Shares of Class B Common Stock converted pursuant to Section B.3.a, Section B.3.b or Section B.3.c of this Article IV shall be automatically retired and cancelled and may not be reissued, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Class B Common Stock accordingly.
e. Policies and Procedures. The Board of Directors, or a committee thereof, may, from time to time, establish such policies and procedures, not in violation of applicable law or this Certificate of Incorporation, relating to the conversion of shares of Class B Common Stock into shares of Class A Common Stock as it may reasonably deem necessary or advisable. The Corporation may, from time to time, require that a holder of shares of Class B Common Stock furnish affidavits or other proof to the Corporation as it deems necessary to verify the ownership of shares of Class B Common Stock and to confirm that a conversion to shares of Class A Common Stock has not occurred. A determination by the Board of Directors (or such committee of the Board of Directors), acting reasonably and in good faith, that shares of Class B Common Stock have been converted into shares of Class A Common Stock pursuant to this Article IV shall be conclusive.
f. No Further Issuance. Except for the issuance of shares of Class B Common Stock issuable to TS or the Founder at the Effective Time, a dividend payable in accordance with Section 4 of Article Fourth, or a reclassification, subdivision or combination in accordance with Section 6 of Article Fourth, the Corporation shall not at any time after the Effective Time issue any additional shares of Class B Common Stock.
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4. Dividends. Subject to applicable law and the rights and preferences of any holders of any outstanding series of Preferred Stock, the holders of Common Stock, as such, shall be entitled to the payment of dividends of cash, property or shares of capital stock of the Corporation on the Common Stock when, as and if declared by the Board of Directors in accordance with applicable law. Shares of Class A Common Stock and Class B Common Stock shall be treated equally, identically and ratably, on a per share basis, with respect to any dividends or distributions as may be declared and paid from time to time by the Board of Directors out of any assets of the Corporation legally available therefor; provided, however, that in the event a dividend is paid in the form of shares of Class A Common Stock or Class B Common Stock (or rights to acquire such shares), then holders of Class A Common Stock shall receive shares of Class A Common Stock (or rights to acquire such shares, as the case may be) and holders of Class B Common Stock shall receive shares of Class B Common Stock (or rights to acquire such shares, as the case may be), with holders of shares of Class A Common Stock and Class B Common Stock receiving, on a per share basis, an identical number of shares of Class A Common Stock or Class B Common Stock, as applicable.
5. Liquidation. Subject to the rights and preferences of any holders of any shares of any outstanding series of Preferred Stock, in the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the funds and assets of the Corporation that may be legally distributed to the Corporation’s stockholders shall be distributed among the holders of the then outstanding Common Stock pro rata in accordance with the number of shares of Common Stock held by each such holder.
6. If the Corporation shall in any manner subdivide or combine the outstanding shares of Class A Common Stock or Class B Common Stock, the outstanding shares of the other such class of stock shall be proportionately subdivided or combined in the same manner and on the same basis as the outstanding shares of Class A Common Stock or Class B Common Stock, as applicable, have been subdivided or combined.
C. PREFERRED STOCK
Shares of Preferred Stock may be issued from time to time in one or more series, each of such series to have such terms as stated or expressed in this Certificate of Incorporation and in the resolution or resolutions providing for the creation and issuance of such series adopted by the Board of Directors as hereinafter provided.
Authority is hereby expressly granted to the Board of Directors from time to time to issue the Preferred Stock in one or more series, and in connection with the creation of any such series, by adopting a resolution or resolutions providing for the issuance of the shares thereof and by filing a certificate of designation relating thereto in accordance with the DGCL (a “Certificate of Designation”), to determine and fix the number of shares of such series and such voting powers, full or limited, or no voting powers, and such designations, preferences and relative participating, optional or other special rights, and qualifications, limitations or restrictions of such series, including without limitation thereof, dividend rights, conversion rights, redemption privileges and liquidation preferences, and to increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of any series as shall be stated and expressed in such resolutions, all to the fullest extent now or hereafter permitted by the DGCL. Without limiting the generality of the foregoing, the resolution or resolutions providing for the creation and issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the extent permitted by applicable law and this Certificate of Incorporation (including any Certificate of Designation). Except as otherwise required by applicable law or as shall expressly be granted by this Certificate of Incorporation (including any Certificate of Designation), holders of any series of Preferred Stock shall not be entitled to any voting power in respect of such Preferred Stock.
The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.
ARTICLE V
BOARD OF DIRECTORS
For the management of the business and for the conduct of the affairs of the Corporation, it is further provided that:
A. Except as otherwise expressly provided by the DGCL, this Certificate of Incorporation or the Stockholders Agreement, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
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B. Each director shall hold office until his or her successor is duly elected or designated and qualified or until his or her earlier death, resignation, disqualification or removal. No decrease in the number of directors shall shorten the term of any incumbent director.
C. Subject to the Stockholders Agreement, and the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, the Board of Directors or any individual director may be removed from office at any time, with or without cause, but only by the Required Vote.
D. Subject to the Stockholders Agreement and the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, except as otherwise provided by applicable law, any vacancies on the Board of Directors resulting from death, resignation, disqualification, retirement, removal or other causes and any newly created directorships resulting from any increase in the number of directors shall be filled exclusively by the affirmative vote of a majority of the directors then in office, even though less than a quorum, or by a sole remaining director (other than any directors elected by the separate vote of one or more outstanding series of Preferred Stock), and shall not be filled by the stockholders. Subject to the Stockholders Agreement, any director appointed in accordance with the preceding sentence shall hold office until the expiration of the term to which such director shall have been appointed or until his or her successor is duly elected and qualified or until his or her earlier death, resignation, retirement, disqualification, or removal.
E. Whenever the holders of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series or separately as a class with one or more such other series, to elect directors at an annual or special meeting of stockholders, the election, term of office, removal and other features of such directorships shall be governed by the terms of this Certificate of Incorporation (including any Certificate of Designation). Notwithstanding anything to the contrary in this Article V, the number of directors that may be elected by the holders of any such series of Preferred Stock shall be in addition to the number fixed pursuant to paragraph A of this Article V, and the total number of directors constituting the whole Board of Directors shall be automatically adjusted accordingly. Except as otherwise provided in the Certificate of Designation(s) in respect of one or more series of Preferred Stock, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions of such Certificate of Designation(s), the terms of office of all such additional directors elected by the holders of such series of Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional directors, shall forthwith terminate (in which case each such director thereupon shall cease to be qualified as, and shall cease to be, a director) and the total authorized number of directors of the Corporation shall automatically be reduced accordingly.
F. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation (as amended and/or restated from time to time, the “Bylaws”). In addition to any vote of the holders of any class or series of stock of the Corporation required by applicable law or by this Certificate of Incorporation (including any Certificate of Designation) or the Bylaws, the adoption, amendment or repeal of the Bylaws by the stockholders of the Corporation shall require the Required Vote.
G. The directors of the Corporation need not be elected by written ballot unless the Bylaws so provide.
H. The name and mailing address of each person who is to serve as an initial director of the Corporation until the first annual meeting of stockholders following the effectiveness of the filing of this Certificate of Incorporation or until his or her successor is duly elected and qualified, are set forth below:
ARTICLE VI
STOCKHOLDERS
A. Any action required or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of the stockholders of the Corporation, and shall not be taken by written consent in lieu of a meeting; provided, that prior to the Voting Threshold Time, any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of the outstanding stock having not less than the minimum number of votes that would be necessary
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to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the books in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be made by hand, overnight courier or by certified or registered mail, return receipt requested. Notwithstanding the foregoing, any action required or permitted to be taken by the holders of any series of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly so provided by the applicable Certificate of Designation relating to such series of Preferred Stock, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares of the relevant series of Preferred Stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation in accordance with the applicable provisions of the DGCL.
B. Subject to the special rights of the holders of one or more series of Preferred Stock, the Secretary shall call special meetings of the stockholders of the Corporation, for any purpose or purposes, only upon request of the Board of Directors, the Chairperson of the Board of Directors, the Chief Executive Officer or the President, and shall not be called by or upon the request of any other person or persons; provided, that prior to the Voting Threshold Time, the Secretary shall call a special meeting of the stockholders of the Corporation upon the request of stockholders of the Corporation collectively holding a majority in voting power of the shares of capital stock of the Corporation that would then be entitled to vote in the election of directors at an annual meeting of stockholders. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.
C. Advance notice of stockholder nominations for the election of directors and of other business proposed to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.
D. “Required Vote” means: (a) prior to the Voting Threshold Time, the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in an election of directors and (b) from and after the Voting Threshold Time, the affirmative vote of the holders of at least two-thirds (66 and 2/3%) of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in an election of directors.
E. “Voting Threshold Time” means the first time on which the issued and outstanding shares of Class B Common Stock represent less than fifty percent (50%) of the total voting power of the then outstanding shares of capital stock of the Corporation that would then be entitled to vote in the election of directors at an annual meeting of stockholders.
ARTICLE VII
INDEMNIFICATION
The Corporation shall have the power to provide rights to indemnification and advancement of expenses to its current and former officers, directors, employees and agents and to any person who is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
ARTICLE VIII
OPPORTUNITIES
A. In recognition and anticipation that (i) certain directors, officers, principals, partners, members, managers, employees, agents and/or other representatives of Atairos and its Related Parties may serve as directors of the Corporation and its Related Parties, and (ii) Atairos and its Related Parties may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation and its Related Parties, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation and its Related Parties, directly or indirectly, may engage, the provisions of this Article VIII are set forth to regulate and define the conduct of certain affairs of the Corporation and its Related Parties with respect to certain classes or categories of business opportunities as they may involve (x) Atairos and its Related
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Parties and (y) any person or entity who, while a stockholder or director of the Corporation or any of its Related Parties, is a director, officer, principal, partner, member, manager, employee, agent and/or other representative of Atairos and its Related Parties (each of the persons identified in the foregoing clauses (x) and (y), an “Identified Person”), on the one hand, and the powers, rights, duties and liabilities of the Corporation and its Related Parties and its and their respective stockholders, directors, officers, and agents in connection therewith, on the other. To the fullest extent permitted by applicable law (including, without limitation, the DGCL), and notwithstanding any other duty (contractual, fiduciary or otherwise, whether at law or in equity), each Identified Person (i) shall have the right to, and shall have no duty (contractual, fiduciary or otherwise, whether at law or in equity) not to, directly or indirectly engage in and possess interests in other business ventures of every type and description, including those engaged in the same or similar business activities or lines of business as the Corporation or any of its Related Parties or deemed to be competing with the Corporation or any of its Related Parties, on its own account, or in partnership with, or as a direct or indirect equity holder, controlling person, stockholder, director, officer, employee, agent, Related Party (including any portfolio company), member, financing source, investor, director or indirect manager, general or limited partner or assignee of any other person or entity with no obligation to offer to the Corporation or its subsidiaries or other Related Parties the right to participate therein and (ii) shall have the right to invest in, or provide services to, any person that is engaged in the same or similar business activities as the Corporation or its Related Parties or directly or indirectly competes with the Corporation or any of its Related Parties.
B. In the event that any Identified Person acquires knowledge of a potential transaction or matter which may be an investment, corporate or business opportunity or prospective economic or competitive advantage in which the Corporation or its Related Parties could have an interest or expectancy (contractual, equitable or otherwise) (a “Competitive Opportunity”) or otherwise is then exploiting any Competitive Opportunity, to the fullest extent permitted under the DGCL and notwithstanding any other duty existing at law or in equity, the Corporation and its Related Parties will have no interest in, and no expectation (contractual, equitable or otherwise) that such Competitive Opportunity be offered to it. To the fullest extent permitted by applicable law, any such interest or expectation (contractual, equitable or otherwise) is hereby renounced so that such Identified Person shall (i) have no duty to communicate or present such Competitive Opportunity to the Corporation or its Related Parties, (ii) have the right to either hold any such Competitive Opportunity for such Identified Person’s own account and benefit or the account of the former, current or future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Related Parties, members, financing sources, investors, direct or indirect managers, general or limited partners or assignees of any Identified Person or to direct, recommend, assign or otherwise transfer such Competitive Opportunity to persons or entities other than the Corporation or any of its subsidiaries, Related Parties or direct or indirect equity holders and (iii) notwithstanding any provision in this Certificate of Incorporation to the contrary, not be obligated or liable to the Corporation, any stockholder, director or officer of the Corporation or any other person or entity by reason of the fact that such Identified Person, directly or indirectly, took any of the actions noted in the immediately preceding clause (ii), pursued or acquired such Competitive Opportunity for itself or any other person or entity or failed to communicate or present such Competitive Opportunity to the Corporation or its Related Parties.
C. In the event of a conflict or other inconsistency between this Article VIII and any other Article or provision of this Certificate of Incorporation, this Article VIII shall prevail under all circumstances. Notwithstanding anything to the contrary in this Certificate of Incorporation, (i) the provisions of this Article VIII shall apply only to (or result in or be deemed to result in a limitation or elimination of any duty (contractual, fiduciary or otherwise, whether at law or in equity) owed by) any non-employee director of the Corporation or any of its subsidiaries, irrespective of whether such non-employee director otherwise would be an Identified Person, and any Competitive Opportunity waived or renounced by any person or entity pursuant to such other provisions of this Article VIII shall be expressly reserved and maintained by such person or entity, as applicable (and shall not be waived or renounced) and (ii) the provisions of this Article VIII (other than this paragraph C of this Article VIII) shall not apply to, and shall not result in the renunciation by the Corporation or any of its subsidiaries of any interest or expectancy in a Competitive Opportunity with respect to, an Identified Person who (a) first identified the applicable Competitive Opportunity through the disclosure of the Corporation’s or any of its subsidiaries’ confidential information in circumstances in which the Corporation had a reasonable expectation that such information would be held in confidence or (b) who is first offered the applicable Competitive Opportunity (including any opportunity in respect of any Competitive Business) that is expressly offered to him or her in writing in his or her capacity as a director of the Corporation. “Competitive Business” shall mean the business of owning, leasing and operating retail bowling centers anywhere in the United States or any other country in which the Corporation or any of its subsidiaries operates.
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D. For the avoidance of doubt, subject to paragraph C of this Article VIII, this Article VIII is intended to constitute, with respect to the Identified Persons, a disclaimer and renunciation, to the fullest extent permitted under Section 122(17) of the DGCL, of any right of the Corporation or any of its Related Parties with respect to the matters set forth in this Article VIII, and this Article VIII shall be construed to effect such disclaimer and renunciation to the fullest extent permitted under the DGCL.
E. Notwithstanding anything to the contrary in this Certificate of Incorporation, solely for purposes of this Article VIII, “Related Party” shall mean (a) with respect to Atairos, any person or entity that directly, or indirectly through one or more intermediaries, is controlled by, controls or is under common control with Atairos, but excluding (x) the Corporation, and (y) any entity that is controlled by the Corporation (including its direct and indirect subsidiaries), and (b) in respect of the Corporation, any person or entity that, directly or indirectly, is controlled by the Corporation.
ARTICLE IX
DIRECTOR LIABILITY
To the fullest extent permitted by the DGCL, as it now exists or may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty owed to the Corporation or its stockholders. Any repeal or amendment or modification of this Article IX (including by changes in applicable law), or the adoption of any provision of this Certificate of Incorporation inconsistent with this Article IX, shall, to the extent permitted by applicable law, be prospective only (except to the extent such amendment or change in applicable law permits the Corporation to provide a broader limitation on a retroactive basis than permitted prior thereto), and shall not adversely affect any limitation on the personal liability of any director of the Corporation with respect to acts or omissions occurring prior to the time of such repeal or amendment or modification or adoption of such inconsistent provision. If any provision of the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of directors shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
ARTICLE X
FORUM SELECTION
Unless the Corporation consents in writing to the selection of an alternative forum, and subject to applicable jurisdictional requirements, the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL, this Certificate of Incorporation (including any Certificate of Designation) or the Bylaws, or (d) any action asserting a claim governed by the internal affairs doctrine shall be the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware lacks jurisdiction over such action or proceeding, then another court of the State of Delaware or, if no court of the State of Delaware has jurisdiction, then the United States District Court for the District of Delaware).
Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933.
ARTICLE XI
DGCL SECTION 203
A. The Corporation hereby expressly elects not to be governed by Section 203 of the DGCL.
B. Notwithstanding the foregoing, the Corporation shall not engage in any business combination, at any point in time at which the Class A Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act, with any interested stockholder for a period of three (3) years following the time that such stockholder became an interested stockholder, unless:
1. prior to such time, the Board of Directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
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2. upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by: (i) persons who are directors and also officers; or (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
3. at or subsequent to such time, the business combination is approved by the Board of Directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock of the Corporation which is not owned by the interested stockholder.
C. The restrictions contained in this Article XI shall not apply if:
1. a stockholder becomes an interested stockholder inadvertently and (i) as soon as practicable divests itself of ownership of sufficient shares so that the stockholder ceases to be an interested stockholder; and (ii) would not, at any time within the three-year period immediately prior to a business combination between the Corporation and such stockholder, have been an interested stockholder but for the inadvertent acquisition of ownership; or
2. the business combination is proposed prior to the consummation or abandonment of and subsequent to the earlier of the public announcement or the notice required hereunder of a proposed transaction which (i) constitutes one of the transactions described in the following sentence of this Section C.2 of this Article XI; (ii) is with or by a person who either was not an interested stockholder during the previous three years or who became an interested stockholder with the approval of the Board of Directors; and (iii) is approved or not opposed by a majority of the members of the Board of Directors then in office (but not less than one) who were directors prior to any person becoming an interested stockholder during the previous three years or were recommended for election or elected to succeed such directors by a majority of such directors. The proposed transactions referred to in the preceding sentence are limited to (x) a merger or consolidation of the Corporation (except for a merger in respect of which, pursuant to Section 251(f) of the DGCL, no vote of the stockholders of the Corporation is required); (y) a sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation (other than to any direct or indirect wholly-owned subsidiary or to the Corporation) having an aggregate market value equal to 50% or more of either that aggregate market value of all of the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock of the Corporation; or (z) a proposed tender or exchange offer for 50% or more of the outstanding voting stock of the Corporation. The Corporation shall give not less than 20 days’ notice to all interested stockholders prior to the consummation of any of the transactions described in clause (x) or (y) of the prior sentence of this Section C.2 of this Article XI.
D. Notwithstanding anything to the contrary in this Certificate of Incorporation, solely for purposes of this Article XI, the term:
1. “Affiliate” shall mean, with respect to any person, any other person or entity that directly, or indirectly through one or more intermediaries, is controlled by, controls or is under common control with such person; provided, however, that “Affiliates” of Atairos shall be limited to A-B Parent LLC and its Permitted Transferees (as such term is defined in the Stockholders Agreement).
2. “associate”, when used to indicate a relationship with any person, shall mean: (i) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock; (ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person.
3. “business combination”, when used in reference to the Corporation and any interested stockholder of the Corporation, shall mean:
a. any merger or consolidation of the Corporation (other than a merger effected pursuant to Sections 253 or 267 the DGCL) or any direct or indirect majority-owned subsidiary of the Corporation: (i) with the interested stockholder; or (ii) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the interested stockholder and as a result of such merger or consolidation Section B of this Article XI is not applicable to the surviving entity;
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b. any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock of the Corporation;
c. any transaction which results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (i) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which securities were outstanding prior to the time that the interested stockholder became such; (ii) pursuant to a merger under Section 251(g), Section 253 or Section 267 of the DGCL; (iii) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the interested stockholder became such; (iv) pursuant to an exchange offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (v) any issuance or transfer of stock by the Corporation; provided, however, that in no case under items (iii) – (v) of this subsection (c) shall there be an increase in the interested stockholder’s proportionate share of the stock of any class or series of the Corporation or of the voting stock of the Corporation (except as a result of immaterial changes due to fractional share adjustments);
d. any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series, of the Corporation or of any such subsidiary which is owned by the interested stockholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly, by the interested stockholder; or
e. any receipt by the interested stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges, or other financial benefits (other than those expressly permitted in subsections (a)-(d) above) provided by or through the Corporation or any direct or indirect majority-owned subsidiary.
4. “control”, including the terms “controlling”, “controlled by” and “under common control with”, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person who is the owner of 20% or more of the outstanding voting stock of the Corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this Article XI, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.
5. “interested stockholder” means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the Corporation) that: (i) is the owner of 15% or more of the outstanding voting stock of the Corporation; or (ii) is an Affiliate or associate of the Corporation and was the owner of 15% or more of the outstanding voting stock of the Corporation at any time within the three (3) year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder; or (iii) an Affiliate or associate of any such person described in clauses (i) and (ii); provided, however, that the term “interested stockholder” shall not include: (1) (A) each Bowlero Legacy Stockholder, (B) each of their respective Affiliates and successors and (C) any “group”, and any member of any such group, to which any such persons described in clauses (A) or (B) are a party under Rule 13d-5 of the Exchange Act or (2) any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of any action taken solely by the Corporation, provided that, for purposes of this clause (2), such person shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the
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person through application of the definition of “owner” below but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
6. “owner”, including the terms “own” and “owned”, when used with respect to any stock, means a person that individually or with or through any of its Affiliates or associates:
a. beneficially owns such stock, directly or indirectly; or
b. has: (i) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person’s Affiliates or associates until such tendered stock is accepted for purchase or exchange; or (ii) the right to vote such stock pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to ten (10) or more persons; or
c. has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (ii) of subsection (b) above), or disposing of such stock with any other person that beneficially owns, or whose Affiliates or associates beneficially own, directly or indirectly, such stock.
7. “person” means any individual, corporation, partnership, unincorporated association or other entity.
8. “stock” means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.
9. “voting stock” means stock of any class or series entitled to vote generally in the election of directors. Every reference to an owner’s percentage of voting stock in this Article XI shall refer to the percentage of the total voting power of all outstanding stock (or all outstanding voting stock of the relevant class) to which such owner is entitled.
ARTICLE XII
AMENDMENTS
A. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, in addition to any vote required by applicable law and subject to the Stockholders Agreement, the following provisions in this Certificate of Incorporation may be amended, altered, repealed or rescinded, in whole or in part, or any provision inconsistent therewith or herewith may be adopted, only by the affirmative vote of the holders of at least two-thirds (66 and 2/3%) of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class: Section B of Article IV, Article V, Article VI, Article VII, Article VIII, Article IX, Article X, Article XI and this Article XII.
B. If any provision or provisions of this Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by applicable law, in any way be affected or impaired thereby and (ii) to the fullest extent permitted by applicable law, the provisions of this Certificate of Incorporation (including, without limitation, each such portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by applicable law.
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IN WITNESS WHEREOF, the undersigned has executed this Certificate of Incorporation this ___ day of _________, 2021.
[Signature Page to Certificate of Incorporation]
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Annex C
STRICTLY CONFIDENTIAL
Final Form
Bylaws of
Isos Acquisition Corporation
(a Delaware corporation)
Table of Contents
Table of Contents
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Annex C
Page
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Article I.
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Corporate Offices
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C-1
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Section 1.01
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Registered Office
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C-1
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Section 1.02
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Other Offices
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C-1
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Article II.
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Meetings of Stockholders
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C-1
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Section 2.01
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Place of Meetings
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C-1
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Section 2.02
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Annual Meeting
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C-1
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Section 2.03
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Special Meeting
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C-1
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Section 2.04
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Notice of Business to be Brought before a Meeting
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C-1
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Section 2.05
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Notice of Nominations for Election to the Board
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C-4
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Section 2.06
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Notice of Stockholders’ Meetings
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C-7
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Section 2.07
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Quorum
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C-7
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Section 2.08
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Adjourned Meeting; Notice
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C-8
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Section 2.09
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Conduct of Business
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C-8
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Section 2.10
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Voting
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C-9
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Section 2.11
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Record Date for Stockholder Meetings and Other Purposes
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C-9
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Section 2.12
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Proxies
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C-9
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Section 2.13
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List of Stockholders Entitled to Vote
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C-10
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Section 2.14
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Inspectors of Election
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C-10
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Section 2.15
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Action Without a Meeting
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C-11
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Section 2.16
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Delivery to the Corporation
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C-11
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Article III.
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Directors
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C-11
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Section 3.01
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Powers
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C-11
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Section 3.02
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Number of Directors
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C-11
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Section 3.03
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Election, Qualification and Term of Office of Directors
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C-11
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Section 3.04
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Resignation and Vacancies
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C-11
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Section 3.05
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Place of Meetings; Meetings by Telephone
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C-12
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Section 3.06
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Regular Meetings
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C-12
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Section 3.07
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Special Meetings; Notice
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C-12
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Section 3.08
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Quorum; Action by Majority Vote
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C-12
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Section 3.09
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Adjourned Meetings
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C-13
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Section 3.10
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Notice Procedure
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C-13
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Section 3.11
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Waiver of Notice
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C-13
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Section 3.12
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Organization
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C-13
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Section 3.13
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Board Action without a Meeting
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C-13
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Section 3.14
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Fees and Compensation of Directors
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C-13
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Article IV.
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Committees
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C-13
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Section 4.01
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Committees of Directors
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C-13
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Section 4.02
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Meetings and Actions of Committees
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C-14
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Section 4.03
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Subcommittees
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C-14
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Article V.
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Officers
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C-14
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Section 5.01
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Officers
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C-14
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Section 5.02
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Appointment of Officers; Term of Office; Remuneration
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C-15
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Section 5.03
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Subordinate Officers
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C-15
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Section 5.04
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Removal and Resignation of Officers
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C-15
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Section 5.05
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Vacancies in Offices
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C-15
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Section 5.06
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Representation of Shares of Other Entities
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C-15
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Section 5.07
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Authority and Duties of Officers
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C-15
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Section 5.08
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Compensation
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C-16
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Annex C-i
Table of Contents
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Annex C
Page
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Article VI.
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Records
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C-16
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Article VII.
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General Matters
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C-17
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Section 7.01
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Execution of Corporate Contracts and Instruments
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C-17
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Section 7.02
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Stock Certificates
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C-17
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Section 7.03
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Special Designation of Certificates
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C-17
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Section 7.04
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Lost Certificates
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C-17
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Section 7.05
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Construction; Definitions
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C-17
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Section 7.06
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Dividends
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C-18
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Section 7.07
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Fiscal Year
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C-18
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Section 7.08
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Seal
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C-18
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Section 7.09
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Transfer of Stock
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C-18
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Section 7.10
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Stock Transfer Agreements
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C-18
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Section 7.11
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Registered Stockholders
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C-18
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Section 7.12
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Waiver of Notice
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C-18
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Section 7.13
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Time Periods
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C-19
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Section 7.14
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Conflict with Applicable Law or Certificate of Incorporation
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C-19
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Article VIII.
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Notice
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C-19
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Article IX.
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Amendments
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C-19
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Article X.
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Indemnification
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C-20
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Section 10.01
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Right to Indemnification
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C-20
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Section 10.02
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Prepayment of Expenses
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C-20
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Section 10.03
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Claims
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C-20
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Section 10.04
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Nonexclusivity of Rights
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C-20
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Section 10.05
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Other Sources
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C-20
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Section 10.06
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Amendment or Repeal
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C-20
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Section 10.07
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Other Indemnification and Prepayment Expenses
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C-20
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Article XI.
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Definitions
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C-21
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Annex C-ii
Table of Contents
Bylaws of
Isos Acquisition Corporation
Article I. Corporate Offices
Section 1.01 Registered Office.
The address of the registered office of 1209 Orange Street, Corporation Trust Center, Wilmington, Delaware 19801 (the “Corporation”) in the State of Delaware, and the name of its registered agent at such address, shall be as set forth in the Corporation’s certificate of incorporation, as the same may be amended and/or restated from time to time (the “Certificate of Incorporation”).
Section 1.02 Other Offices.
The Corporation may have additional offices at any place or places, within or outside the State of Delaware, as the Corporation’s board of directors (the “Board”) may from time to time establish or as the business of the Corporation may require.
Article II. Meetings of Stockholders
Section 2.01 Place of Meetings.
Meetings of stockholders shall be held at any place, within or outside the State of Delaware, designated by the Board. The Board may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “DGCL”). In the absence of any such designation or determination, stockholders’ meetings shall be held at the Corporation’s principal executive office.
Section 2.02 Annual Meeting.
The Board shall designate the date and time of the annual meeting. At the annual meeting, directors shall be elected and other proper business properly brought before the meeting in accordance with Section 2.04 may be transacted. The Board may postpone, reschedule or cancel any previously scheduled annual meeting of stockholders.
Section 2.03 Special Meeting.
Special meetings of the stockholders may be called only by such persons and only in such manner as set forth in the Certificate of Incorporation.
No business may be transacted at any special meeting of stockholders other than the business specified in the notice of such meeting. The Board may postpone, reschedule or cancel any previously scheduled special meeting of stockholders.
Section 2.04 Notice of Business to be Brought before a Meeting.
(a) At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting in accordance with this Section 2.04. To be properly brought before an annual meeting, business must be (i) specified in a notice of meeting given by or at the direction of the Board or any committee thereof, (ii) if not specified in a notice of meeting, otherwise brought before the meeting by the Board or any committee thereof or the Chairperson of the Board or (iii) otherwise properly brought before the meeting by a stockholder present in person who (A) was a record owner of shares of the Corporation both at the time of giving the notice provided for in this Section 2.04 and at the time of the meeting, (B) is entitled to vote at the meeting and (C) has complied with this Section 2.04 in all applicable respects. Except with respect to the nomination or election of directors (which are governed by Section 2.05), the immediately foregoing clause (iii) shall be the exclusive means for a stockholder to propose business to be brought before an annual meeting of the stockholders. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the Corporation’s notice of meeting. Any business brought before a meeting in accordance with Section 2.04(a)(iii) is referred to as “Stockholder Business”. Stockholders seeking to nominate persons for election to the Board must comply with Section 2.05, and this Section 2.04 shall not be applicable to nominations except as expressly provided in Section 2.05.
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(b) Subject to Section 2.04(h), for business to be properly brought before an annual meeting by a stockholder, the stockholder must (i) provide Timely Notice (as defined below) thereof in writing and in proper form to the Secretary of the Corporation and (ii) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.04. To be timely, a stockholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the one-year anniversary of the preceding year’s annual meeting of the stockholders; provided, that if (A) the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date or (B) no annual meeting was held during the prior year, to be timely, a stockholder’s notice must be so delivered, or mailed and received, not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting and the tenth (10th) day following the day on which Public Disclosure of the date of such annual meeting was first made by the Corporation; provided, further, that for purposes of the Corporation’s first annual meeting of stockholders after the closing of the Corporation’s business combination transaction with Bowlero Corp., a Delaware corporation, pursuant to that certain Business Combination Agreement, dated as of July 1, 2021, the date of the prior year’s annual meeting of stockholders shall be deemed to be July 1, 2021 (such notice within such time periods, “Timely Notice”). In no event shall any adjournment, postponement or deferral of an annual meeting or the Public Disclosure thereof commence a new time period (or extend any time period) for the giving of Timely Notice as described above.
(c) For business to be properly brought before an annual meeting by a stockholder, it must be in proper form. To be in proper form for purposes of this Section 2.04, the notice to the Secretary of the Corporation shall set forth:
(i) the name and address of each stockholder proposing Stockholder Business (each, a “Proponent”) as they appear on the Corporation’s books and records;
(ii) the name and address of any Stockholder Associated Person;
(iii) as to each Proponent and any Stockholder Associated Person:
(A) the class or series and number of shares of the Corporation that are, directly or indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (as so amended and inclusive of such rules and regulations, the “Exchange Act”)) by each such Proponent or Stockholder Associated Person and the date such shares were acquired;
(B) a description of any agreement, arrangement or understanding, direct or indirect, with respect to such Stockholder Business between or among any Proponent, any Stockholder Associated Person or any others (including their names) acting in concert with any of the foregoing;
(C) any rights to dividends on the shares of any class or series of shares of the Corporation owned beneficially by any Proponent or any Stockholder Associated Person that are separated or separable from the underlying shares of the Corporation;
(D) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, hedging transactions and borrowed or loaned shares) that has been entered into, directly or indirectly, by, or on behalf of, any Proponent or any Stockholder Associated Person and that remains in effect, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of any Proponent or any Stockholder Associated Person with respect to shares of stock of the Corporation (a “Derivative”);
(E) a description in reasonable detail of any proxy (including revocable proxies), agreement, arrangement, understanding or other relationship pursuant to which any Proponent or any Stockholder Associated Person has a right to vote any shares of stock of the Corporation;
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(F) any performance-related fees (other than an asset-based fee) that any Proponent or any Stockholder Associated Person is entitled to be based on any increase or decrease in the value of stock of the Corporation or Derivatives thereof, if any, as of the date of such notice;
(G) any material pending or threatened legal proceeding in which any Proponent or any Stockholder Associated Person is a party or material participant involving the Corporation or any of its affiliates, officers or directors;
(H) any other material relationship between any Proponent or any Stockholder Associated Person, on the one hand, and the Corporation or any affiliate of the Corporation, on the other hand; and
(I) any direct or indirect material interest in any material contract or agreement of any Proponent or any Stockholder Associated Person with the Corporation or any affiliate of the Corporation (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement) (the disclosures made pursuant to Section 2.04(c)(i) through (iii) are referred to as “Stockholder Information”);
(iv) as to each item of Stockholder Business that the stockholder proposes to bring before the annual meeting, (A) a brief description of such Stockholder Business and any material interest in such Stockholder Business of each Proponent and any Stockholder Associated Person, (B) the text of the proposal or Stockholder Business (including the text of any resolutions proposed for consideration and in the event that such Stockholder Business includes a proposal to amend these bylaws, the language of the proposed amendment) and (C) the reasons for conducting such Stockholder Business at the meeting;
(v) a representation that each Proponent is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by a qualified representative at the meeting to propose such Stockholder Business;
(vi) a representation as to whether any Proponent intends or is part of a group that intends to (A) deliver a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt such Stockholder Business or (B) otherwise solicit proxies from stockholders in support of such Stockholder Business;
(vii) any other information relating to any Proponent or Stockholder Associated Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies or consents by such Proponent or any Stockholder Associated Person in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act; and
(viii) a representation that each Proponent shall provide all other information and affirmations, updates and supplements required pursuant to these bylaws.
(d) Each Proponent shall also provide any other information reasonably requested by the Corporation within ten (10) business days after each such request.
(e) Each Proponent shall affirm as true and correct the information provided to the Corporation in the notice provided pursuant to Section 2.04(c) or at the Corporation’s request pursuant to Section 2.04(d) (and shall update and supplement such information, if necessary, so that the information provided or required to be provided in such notice shall be true and correct) as of (i) the record date for stockholders entitled to vote at the meeting and (ii) the date that is ten (10) business days prior to the meeting and, if applicable, before reconvening any adjournment or postponement thereof. Such affirmation, update and/or supplement shall be delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation not later than (A) five (5) business days after the record date for stockholders entitled to vote at the meeting (in the case of the affirmation, update and/or supplement required to be made as of such record date) and (B) seven (7) business days prior to the date for the meeting (in the case of the affirmation, update and/or supplement required to be made as of ten (10) business days before the meeting or reconvening any adjournment or postponement thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder to amend or update any proposal or to submit any new proposal, including by changing or adding matters, business or resolutions proposed to be brought before a meeting of the stockholders.
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(f) Notwithstanding anything in these bylaws to the contrary, no business shall be conducted at an annual meeting that is not properly brought before the meeting in accordance with this Section 2.04. Except to the extent otherwise determined by the Board, the presiding officer of the meeting shall, if the facts warrant, determine that the business was not properly brought before the meeting in accordance with the procedures set forth in this Section 2.04, and if he or she should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.
(g) Except to the extent otherwise determined by the Board, if a Proponent (or a qualified representative of such Proponent) does not appear at the meeting of stockholders to present the Stockholder Business, such business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation.
(h) This Section 2.04 is expressly intended to apply to any business proposed to be brought before an annual meeting of stockholders other than any proposal made in accordance with Rule 14a-8 under the Exchange Act and included in the Corporation’s proxy statement. Nothing in this Section 2.04 shall be deemed to affect the rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act. In addition to the requirements of this Section 2.04 with respect to any business proposed to be brought before an annual meeting, each Proponent shall comply with all applicable requirements of the Exchange Act with respect to any such business.
(i) For purposes of these bylaws, “present in person” shall mean that the stockholder proposing that the business be brought before a meeting of the Corporation, or a qualified representative of such proposing stockholder, appear at such meeting.
(j) For purposes of these bylaws, “Public Disclosure” shall mean disclosure in a press release reported by the Dow Jones News Services, Associated Press or a comparable U.S. national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(k) For purposes of these bylaws, a “qualified representative” of such proposing stockholder shall be a duly authorized officer, manager or partner of such stockholder or any other person authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(l) For purposes of these bylaws, “Stockholder Associated Person” means with respect to any stockholder, (i) any other beneficial owner of stock of the Corporation that is owned by such stockholder and (ii) any person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the stockholder or such beneficial owner.
Section 2.05 Notice of Nominations for Election to the Board.
(a) Nominations of any person for election to the Board at an annual meeting or at a special meeting (but only if the election of directors is a matter specified in the Corporation’s notice of meeting) may be made at such meeting only (i) as provided in that certain Stockholders Agreement, dated as of July 1, 2021, by and among the Corporation and certain stockholders of the Corporation (as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Stockholders Agreement”),] (ii) by or at the direction of the Board, including by any committee or persons authorized to do so by the Board or these bylaws, or (iii) by a stockholder present in person (A) who was a record owner of shares of the Corporation both at the time of giving the notice provided for in this Section 2.05 and at the time of the meeting, (B) is entitled to vote at the meeting, and (C) has complied with this Section 2.05 as to such notice and nomination. Persons nominated in accordance with Section 2.05(a)(iii) are referred to as “Stockholder Nominees”. A stockholder nominating persons for election to the Board is referred to as the “Nominating Stockholder”. Subject to Section 2.05(n), other than as provided in the Stockholders Agreement, the foregoing clause (iii) shall be the exclusive means for a stockholder to make any nomination of a person or persons for election to the Board at an annual meeting or special meeting.
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(b) Subject to Section 2.05(n), all nominations of Stockholder Nominees may only be made by timely written notice in proper form given by, or on behalf of, a stockholder of record of the Corporation. To be timely, such notice must be delivered to, or mailed and received at, the principal executive offices of the Corporation, by the following dates:
(i) in the case of the nomination of a Stockholder Nominee for election to the Board at an annual meeting of Stockholders at which directors are to be elected, the Nominating Stockholder must provide Timely Notice (as defined in Section 2.04) thereof in writing, in proper form and in accordance with this Section 2.05 to the Secretary of the Corporation at the principal executive offices of the Corporation; and
(ii) in the case of the nomination of a Stockholder Nominee for election to the Board at a special meeting of Stockholders, the Nominating Stockholder must provide notice thereof in writing, in proper form and in accordance with this Section 2.05 to the Secretary of the Corporation at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting and the tenth (10th) day following the day on which Public Disclosure of the date of such special meeting was first made by the Corporation.
(c) In no event shall any adjournment, postponement or deferral, of an annual meeting or special meeting or the Public Disclosure thereof commence a new time period (or extend any time period) for the giving of a Nominating Stockholder’s notice as described above.
(d) In no event may a Nominating Stockholder provide timely notice with respect to a greater number of director candidates than are subject to election by stockholders at the applicable meeting. Notwithstanding anything to the contrary, if the number of directors to be elected to the Board at a meeting of stockholders is increased and there is no Public Disclosure by the Corporation naming the nominees for the additional directorships at least one hundred (100) days before the first anniversary of the preceding year’s annual meeting (in the case of an annual meeting) or before such special meeting (in the case of a special meeting), such notice shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered personally and received at the principal executive offices of the Corporation, addressed to the attention of the Secretary of the Corporation, no later than the close of business on the tenth (10th) day following the day on which such Public Disclosure is first made by the Corporation.
(e) To be in proper form for purposes of this Section 2.05, a Nominating Stockholder’s notice to the Secretary of the Corporation shall set forth:
(i) as to each Nominating Stockholder and Stockholder Associated Person, the Stockholder Information (as defined in Section 2.04(c)(iii), except that for purposes of this Section 2.05, the term “Nominating Stockholder” shall be substituted for the term “Proponent” in all places it appears in Section 2.04(c)(iii) and the disclosure required by Section 2.04(c)(iii)(B) may be omitted for purposes of this Section 2.05(e)(i));
(ii) as to each Stockholder Nominee and Stockholder Associated Person, (A) all information relating to such Stockholder Nominee and Stockholder Associated Person that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14 under the Exchange Act (including such Stockholder Nominee’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected), (B) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such Nominating Stockholder, Stockholder Associated Person or their respective associates, or others acting in concert therewith, including all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if such Nominating Stockholder, Stockholder Associated Person or any person acting in concert therewith were the “registrant” for purposes of such rule and such Stockholder Nominee were a director or executive officer of such registrant and (C) a completed and signed questionnaire, representation and agreement as provided in Section 2.05(i);
(iii) a representation that each Nominating Stockholder is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by a qualified representative at the meeting to propose such nomination;
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(iv) a representation as to whether the Nominating Stockholders intend (A) to deliver a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve the nomination or (B) otherwise to solicit proxies from stockholders in support of such nomination; and
(v) a representation that the Nominating Stockholders shall provide all other information and affirmations, updates and supplements required pursuant to these Bylaws.
(f) The Nominating Stockholders shall also provide any other information reasonably requested from time to time by the Corporation within ten (10) business days after each such request.
(g) A Nominating Stockholder shall affirm as true and correct the information provided to the Corporation in the notice provided pursuant to Section 2.05(e) or at the Corporation’s request pursuant to Section 2.05(f) and shall update and supplement such information, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of (i) the record date for stockholders entitled to vote at the meeting and (ii) the date that is ten (10) business days prior to the meeting and, if applicable, before reconvening any adjournment or postponement thereof. Such affirmation, update and/or supplement shall be delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation not later than (A) five (5) business days after the record date for stockholders entitled to vote at the meeting (in the case of the affirmation, update and/or supplement required to be made as of such record date) and (B) seven (7) business days prior to the date for the meeting (in the case of the affirmation, update and/or supplement required to be made as of ten (10) business days before the meeting or reconvening any adjournment or postponement thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a Nominating Stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a Nominating Stockholder who has previously submitted notice hereunder to amend or update any nomination or to submit any new nomination.
(h) In addition to the requirements of this Section 2.05 with respect to any nomination proposed to be made at a meeting, each Nominating Stockholder shall comply with all applicable requirements of the Exchange Act with respect to any such nominations.
(i) To be qualified to be a candidate for election or reelection as a director of the Corporation at an annual or special meeting, a candidate must be nominated in the manner prescribed in this Section 2.05 and the candidate for election must deliver (in the case of a Stockholder Nominee, in accordance with the time period prescribed for delivery of a notice of nomination under Section 2.05(b), and in the case of a person nominated by or at the direction of the Board or any committee thereof, upon request of the Secretary of the Corporation from time to time) to the Secretary of the Corporation at the principal executive offices of the Corporation:
(i) a completed and signed written questionnaire (in a form provided by the Secretary of the Corporation) with respect to the background, qualifications, stock ownership and independence of such person and the background of any other person or entity on whose behalf the nomination is being made;
(ii) information as necessary to permit the Board to determine if such nominee (A) is independent under, and satisfies the audit, compensation or other board committee independence requirements under, the applicable rules and listing standards of the principal national securities exchanges upon which the stock of the Corporation is listed or traded, any applicable rules of the SEC or any other regulatory body with jurisdiction over the Corporation, or any publicly disclosed standards used by the Board in determining and disclosing the independence of the Directors and Board committee members, (B) is not or has not been, within the past three years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as amended from time to time, or (C) is not a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in a criminal proceeding within the past 10 years ((A) through (C) collectively, the “Independence Standards”);
(iii) a written representation and agreement (in a form provided by the Secretary of the Corporation) that such candidate for nomination (A) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given and will not give any commitment or assurance to, any person or entity as to how such proposed nominee, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (2) any Voting Commitment that
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could limit or interfere with such proposed nominee’s ability to comply with such proposed nominee’s fiduciary duties as a director under applicable law, (B) is not, and will not become a party to, any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed to the Corporation, (C) will comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality, and stock ownership and trading and other policies and guidelines of the Corporation applicable to directors and in effect during such person’s term in office as a director and (D) currently intends to serve as a director for the full term for which he or she is standing for election; and
(iv) such candidate’s written consent to being named as a nominee for election as a director and to serving as a director if elected.
The Secretary of the Corporation shall provide any stockholder the forms of the written questionnaire and written representation and agreement referred to in this Section 2.05(i) following written request therefor.
(j) The Board may also require any proposed candidate for election as a director to furnish such other information as may reasonably be requested by the Board in writing prior to the meeting of stockholders at which such candidate’s nomination is to be acted upon in order for the Board to determine the eligibility of such candidate to be an independent director of the Corporation in accordance with the Corporation’s corporate governance guidelines if elected.
(k) No Stockholder Nominee shall be eligible for election as a director of the Corporation unless such Stockholder Nominee and the Nominating Stockholder seeking to place such Stockholder Nominee’s name in nomination has complied with this Section 2.05. The presiding officer at the meeting shall, if the facts warrant, determine that a nomination was not properly made in accordance with Section 2.05, and if he or she should so determine, he or she shall so declare such determination to the meeting, the defective nomination shall be disregarded and any ballots cast for the Stockholder Nominee in question (but in the case of any form of ballot listing other qualified nominees, only the ballots cast for the Stockholder Nominee in question) shall be void and of no force or effect.
(l) Notwithstanding anything in these bylaws to the contrary, no candidate for election shall be eligible to be seated as a director of the Corporation unless nominated and elected in accordance with Section 2.05.
(m) If the Nominating Stockholder (or a qualified representative of the Nominating Stockholder) does not appear at the applicable stockholder meeting to nominate the Stockholder Nominee, such nomination shall be disregarded and such Stockholder Nominee shall not be qualified for election as a director, notwithstanding that proxies in respect of such vote may have been received by the Corporation.
(n) Nothing in this Section 2.05 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of Incorporation.
Section 2.06 Notice of Stockholders’ Meetings.
Whenever under the provisions of applicable law, the Certificate of Incorporation or these bylaws stockholders are required or permitted to take any action at a meeting, a notice of the meeting, whether annual or special, in the form of a writing or electronic transmission shall be given stating the place, if any, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the Notice Record Date (as defined below) and the Voting Record Date (as defined below), if such date is different from the Notice Record Date, and, in the case of a special meeting, the purposes for which the meeting is called. Unless otherwise provided by law, the Certificate of Incorporation or these bylaws, the notice of any meeting of stockholders shall be sent or otherwise given to each stockholder entitled to vote at such meeting as of the Notice Record Date in accordance with Article VIII not less than ten (10) nor more than sixty (60) days before the date of the meeting.
Section 2.07 Quorum.
Unless otherwise provided by law, the Certificate of Incorporation or these bylaws, the holders of a majority in voting power of the stock issued and outstanding and entitled to vote, present in person or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of the stockholders, except that
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when specified business is to be voted on by one or more classes or series of stock voting as a separate class, the holders of a majority of the voting power of the shares of such classes or series shall constitute a quorum of such separate class for the transaction of such business. A quorum, once established at a meeting, shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however, a quorum is not present in person or represented by proxy at any meeting of the stockholders, then either (i) the person presiding over the meeting or (ii) in the absence of such person, a majority in voting power of the stockholders entitled to vote at the meeting, present in person or represented by proxy, shall have power to adjourn the meeting from time to time in the manner provided in Section 2.08 until a quorum is present or represented. At any adjourned meeting at which a quorum is present, any business may be transacted that might have been transacted at the meeting as originally noticed.
Section 2.08 Adjourned Meeting; Notice.
If a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place, if any, thereof, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. Any business that might have been transacted at the meeting as originally called may be transacted at the adjourned meeting. If, however, the adjournment is for more than thirty (30) days, or if after the adjournment a new Notice Record Date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. If after the adjournment a new Voting Record Date is fixed for the adjourned meeting, the Board shall fix a new Notice Record Date in accordance with Section 2.11(c) and shall give notice of such adjourned meeting to each stockholder entitled to vote at such meeting as of the Notice Record Date.
Section 2.09 Conduct of Business.
Unless otherwise provided by the Board, the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be determined by the person presiding at the meeting and shall be announced at the meeting. The Board may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the person presiding over any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures (which need not be in writing) and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the person presiding over the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present (including, without limitation, rules and procedures for removal of disruptive persons from the meeting); (c) limitations on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other persons as the person presiding over the meeting shall determine; and (d) limitations on the time allotted to questions or comments by participants. Subject to any prior, contrary determination by the Board, the presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting (including, without limitation, determinations with respect to the administration and/or interpretation of any of the rules, regulations or procedures of the meeting, whether adopted by the Board or prescribed by the person presiding over the meeting), shall, if the facts warrant, determine and declare to the meeting that a matter of business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. Unless otherwise designated by the Board, the Chief Executive Officer shall preside over the meeting and the Secretary or, in his or her absence, one of the Assistant Secretaries, shall act as secretary of the meeting. If none of the officers above designated to act as the person presiding over the meeting or as secretary of the meeting shall be present, a person presiding over the meeting or a secretary of the meeting, as the case may be, shall be designated by the Board and, if the Board has not so acted, in the case of the designation of a person to act as secretary of the meeting, designated by the person presiding over the meeting.
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Section 2.10 Voting.
At any meeting of stockholders, all matters other than the election of directors, and except as otherwise provided by the Certificate of Incorporation, these bylaws or any applicable law, shall be decided by the affirmative vote of a majority of the voting power of shares of stock present in person or represented by proxy and entitled to vote thereon. At all meetings of stockholders for the election of directors, each director shall be elected by a plurality of the votes cast with respect to the director.
Section 2.11 Record Date for Stockholder Meetings and Other Purposes.
(a) For the purpose of determining the Stockholders entitled to notice of any meeting of Stockholders or any adjournment thereof, unless otherwise required by the Certificate of Incorporation or applicable law, the Board may fix a record date (the “Notice Record Date”), which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by law, not be more than sixty (60) days nor less than ten (10) days before the date of such meeting. The Notice Record Date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such Notice Record Date, that a later date on or before the date of the meeting shall be the date for making such determination (the “Voting Record Date”). Subject to Section 2.15, for the purposes of determining the stockholders entitled to express consent to corporate action in writing without a meeting, unless otherwise required by the Certificate of Incorporation or applicable law, the Board may fix a record date, which record date shall not precede the date on which the resolution fixing the record date was adopted by the Board and shall not be more than 10 days after the date on which the record date was fixed by the Board. For the purposes of determining the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, exercise any rights in respect of any change, conversion or exchange of stock or take any other lawful action, unless otherwise required by the Certificate of Incorporation or applicable law, the Board may fix a record date, which record date shall not precede the date on which the resolution fixing the record date was adopted by the Board and shall not be more than sixty (60) days prior to such action.
(b) Subject to Section 2.15, if no such record date is fixed by the Board:
(i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is first given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held;
(ii) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting (unless otherwise provided in the Certificate of Incorporation), when no prior action by the Board is required by applicable law, shall be the first day on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law; and when prior action by the Board is required by applicable law, the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall be at the close of business on the date on which the Board takes such prior action; and
(iii) the record date for the purposes of determining the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, exercise any rights in respect of any change, conversion or exchange of stock or take any other lawful action shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new Voting Record Date for the adjourned meeting, in which case the Board shall also fix such Voting Record Date or a date earlier than such date as the new Notice Record Date for the adjourned meeting.
Section 2.12 Proxies.
Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. The revocability of a proxy that states
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on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL. A proxy may be in the form of an electronic transmission which sets forth or is submitted with information from which it can be determined that the transmission was authorized by the stockholder.
Section 2.13 List of Stockholders Entitled to Vote.
The Secretary of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, that if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. The Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, at the stockholder’s expense, for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting: (a) on a reasonably accessible electronic network or other electronic means as permitted by applicable law, or (b) during ordinary business hours, at the Corporation’s principal executive office. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 2.13 or to vote in person or by proxy at any meeting of stockholders.
Section 2.14 Inspectors of Election.
Before any meeting of stockholders, the Board shall appoint an inspector or inspectors of election, who may be employees of the Corporation, to act at the meeting or its adjournment and make a written report thereof. The Board may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If any person appointed as inspector or any alternate fails to appear or fails or refuses to act, then the person presiding over the meeting shall appoint a person to fill that vacancy.
Such inspectors shall:
(a) ascertain the number of shares outstanding and the voting power of each;
(b) determine the shares represented at the meeting and the validity of proxies and ballots;
(c) count all votes and ballots;
(d) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and
(e) certify their determination of the number of shares represented at the meeting and their count of all votes and ballots.
Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspection with strict impartiality and according to the best of such inspector’s ability. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein. The inspectors of election may appoint such persons to assist them in performing their duties as they determine. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for office at an election may serve as an inspector at such election.
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Section 2.15 Action Without a Meeting.
If, and only if, the Certificate of Incorporation permits action to be taken without a meeting, without prior notice and without a vote, then a consent or consents in writing, setting forth the action to be so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered (by hand or by certified or registered mail, return receipt requested) to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. No written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the first date on which a written consent is delivered to the Corporation in the manner required by this Section 2.15, written consents signed by a sufficient number of holders to take action are delivered to the Corporation as aforesaid. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by applicable law, be given to those stockholders who have not consented in writing, and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation.
Section 2.16 Delivery to the Corporation.
Whenever this Article II requires one or more persons (including a record or beneficial owner of stock) to deliver a document or information to the Corporation or any officer, employee or agent thereof (including any notice, request, questionnaire, revocation, representation or other document or agreement), such document or information shall be in writing exclusively (and not in an electronic transmission) and shall be delivered exclusively by hand (including, without limitation, overnight courier service) or by certified or registered mail, return receipt requested, and the Corporation shall not be required to accept delivery of any document not in such written form or so delivered. For the avoidance of doubt, the Corporation expressly opts out of Section 116 of the DGCL with respect to the delivery of information and documents to the Corporation required by this Article II.
Article III. Directors
Section 3.01 Powers.
Except as otherwise provided by the Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or under the direction of the Board. The Board may adopt such rules and procedures, not inconsistent with the Certificate of Incorporation, these bylaws or applicable law, as it may deem proper for the conduct of its meetings and the management of the Corporation.
Section 3.02 Number of Directors.
Subject to the Certificate of Incorporation, the total number of directors constituting the Board shall be determined from time to time by resolution of the Board. No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.
Section 3.03 Election, Qualification and Term of Office of Directors.
Except as provided in Section 3.04, and subject to the Certificate of Incorporation and the Stockholders Agreement, each director, including a director elected to fill a vacancy or newly created directorship, shall hold office until the expiration of the term of the class, if any, for which elected and until such director’s successor is duly elected and qualified or until such director’s earlier death, resignation, disqualification or removal. Directors need not be stockholders, citizens of the United States or residents of the State of Delaware. The Certificate of Incorporation or these bylaws may prescribe qualifications for directors.
Section 3.04 Resignation and Vacancies.
Any director may resign at any time upon notice given in writing or by electronic transmission to the Board, the Chairperson or the Secretary of the Corporation. The resignation shall take effect at the time specified therein or upon the happening of an event specified therein, and if no time or event is specified, at the time of its receipt. Subject to the Stockholders Agreement, when one or more directors so resigns and the resignation is effective at a
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future date or upon the happening of an event to occur on a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in Section 3.03.
Subject to the Stockholders Agreement, and unless otherwise provided in the Certificate of Incorporation or these bylaws, vacancies resulting from the death, resignation, disqualification or removal of any director, and newly created directorships resulting from any increase in the authorized number of directors shall be filled only by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.
Section 3.05 Place of Meetings; Meetings by Telephone.
The Board may hold meetings, both regular and special, either within or outside the State of Delaware.
Unless otherwise restricted by the Certificate of Incorporation or these bylaws, members of the Board, or any committee designated by the Board, may participate in a meeting of the Board, or any committee, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting pursuant to this bylaw shall constitute presence in person at the meeting.
Section 3.06 Regular Meetings.
Regular meetings of the Board may be held within or outside the State of Delaware and at such time and at such place as which has been designated by the Board and publicized among all directors, either orally or in writing, by telephone, including a voice-messaging system or other system designed to record and communicate messages, facsimile, or by electronic mail or other means of electronic transmission. No further notice shall be required for regular meetings of the Board.
Section 3.07 Special Meetings; Notice.
Special meetings of the Board for any purpose or purposes may be called at any time by the chairperson of the Board, the Chief Executive Officer, the President or the Secretary of the Corporation or a majority of the total number of directors constituting the Board.
Notice of the time and place of special meetings shall be:
(a) delivered personally by hand, by courier or by telephone;
(b) sent by United States first-class mail, postage prepaid;
(c) sent by facsimile or electronic mail; or
(d) sent by other means of electronic transmission,
directed to each director at that director’s address, telephone number, facsimile number or electronic mail address, or other address for electronic transmission, as the case may be, as shown on the Corporation’s records.
If the notice is (i) delivered personally by hand, by courier or by telephone, (ii) sent by facsimile or electronic mail, or (iii) sent by other means of electronic transmission, it shall be delivered or sent at least twenty-four (24) hours before the time of the holding of the meeting. If the notice is sent by U.S. mail, it shall be deposited in the U.S. mail at least four (4) days before the time of the holding of the meeting. The notice need not specify the place of the meeting (if the meeting is to be held at the Corporation’s principal executive office) nor the purpose of the meeting.
Section 3.08 Quorum; Action by Majority Vote.
At all meetings of the Board, unless otherwise provided by the Certificate of Incorporation, a majority of the directors then in office shall constitute a quorum for the transaction of business; provided, that a quorum shall not be less than one third of the total number of directors assuming there were no vacancies. The vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board, except as may be otherwise specifically provided by statute, the Certificate of Incorporation or these bylaws.
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Section 3.09 Adjourned Meetings.
A majority of the directors present at any meeting of the Board, including an adjourned meeting, whether or not a quorum is present, may adjourn and reconvene such meeting to another time and place. At least 24 hours’ notice of any adjourned meeting of the Board shall be given to each director whether or not present at the time of the adjournment; provided, however, that notice of the adjourned meeting need not be given if (a) the adjournment is for 24 hours or less and (b) the time, place, if any, and means of remote communication, if any, are announced at the meeting at which the adjournment is taken. Any business may be transacted at an adjourned meeting that might have been transacted at the meeting as originally called.
Section 3.10 Notice Procedure.
Subject to Section 3.09 and Section 3.11, whenever notice is required to be given to any director by applicable law, the Certificate of Incorporation or these bylaws, such notice shall be deemed given effectively if given in person or by telephone, mail addressed to such director at such director’s address as it appears on the records of the Corporation, telecopy or by electronic mail or other means of electronic transmission. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the notice of such meeting.
Section 3.11 Waiver of Notice.
Whenever the giving of any notice to directors is required by applicable law, the Certificate of Incorporation or these bylaws, a written waiver signed by the director, or a waiver by electronic transmission by such director, whether before or after such notice is required, shall be deemed equivalent to notice. Attendance by a director at a meeting shall constitute a waiver of notice of such meeting except when the director attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting was not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special Board or committee meeting need be specified in any waiver of notice.
Section 3.12 Organization.
At each meeting of the Board, the Chairperson or, in his or her absence, another director selected by the Board shall preside. The Secretary of the Corporation shall act as secretary at each meeting of the Board. If the Secretary of the Corporation is absent from any meeting of the Board, the person presiding at the meeting may appoint any person to act as secretary of the meeting.
Section 3.13 Board Action without a Meeting.
Unless otherwise restricted by the Certificate of Incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission. After an action is taken, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board, or the committee thereof, in the same paper or electronic form as the minutes are maintained. Such action by written consent or consent by electronic transmission shall have the same force and effect as a unanimous vote of the Board.
Section 3.14 Fees and Compensation of Directors.
Unless otherwise restricted by the Certificate of Incorporation or these bylaws, the Board shall have the authority to fix the compensation, including fees and reimbursement of expenses, of directors for services to the Corporation in any capacity.
Article IV. Committees
Section 4.01 Committees of Directors.
The Board may designate one (1) or more committees in accordance with Section 141(c) of the DGCL, each committee to consist, of one (1) or more of the directors of the Corporation. The Board may designate one (1) or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members
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thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board or in these bylaws, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the Corporation.
Section 4.02 Meetings and Actions of Committees.
Unless the Board provides otherwise, at all meetings of a committee, a majority of the then authorized number of members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting of such committee at which there is a quorum shall be the act of the committee. Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of:
(a) Section 3.05 (Place of Meetings; Meetings by Telephone);
(b) Section 3.06 (Regular Meetings);
(c) Section 3.07 (Special Meetings; Notice);
(d) Section 3.13 (Board Action without a Meeting); and
(e) Section 7.12 (Waiver of Notice),
with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the Board and its members; provided, however, that:
(i) the time of regular meetings of committees may be determined either by resolution of the Board or by resolution of the committee;
(ii) special meetings of committees may also be called by resolution of the Board or the chairperson of the applicable committee; and
(iii) the Board may adopt rules for the governance of any committee to override the provisions that would otherwise apply to the committee pursuant to this Section 4.02, provided that such rules do not violate the provisions of the Certificate of Incorporation or applicable law.
Section 4.03 Subcommittees.
Unless otherwise provided in the Certificate of Incorporation, these bylaws or the resolutions of the Board designating the committee, a committee may create one (1) or more subcommittees, each subcommittee to consist of one (1) or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.
Article V. Officers
Section 5.01 Officers.
The officers of the Corporation shall include a Chief Executive Officer, a President and a Secretary. The Corporation may also have, at the discretion of the Board, a Chairperson of the Board, a Vice Chairperson of the Board, a Chief Financial Officer, a Treasurer, one (1) or more Vice Presidents, one (1) or more Assistant Vice Presidents, one (1) or more Assistant Treasurers, one (1) or more Assistant Secretaries, and any such other officers as may be appointed in accordance with the provisions of these bylaws. Any number of offices may be held by the same person. No officer need be a stockholder or director of the Corporation, except that only directors shall be eligible to be Chairperson or Vice Chairperson of the Board.
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Section 5.02 Appointment of Officers; Term of Office; Remuneration.
The Board shall elect the officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 5.03. Subject to Section 5.05, each officer once elected shall hold office until such officer’s successor has been elected and qualified or until such officer’s earlier death, resignation or removal.
Section 5.03 Subordinate Officers.
The Board may appoint, or empower the Chief Executive Officer or, in the absence of a Chief Executive Officer, the President, to appoint, such other officers and agents as the business of the Corporation may require. Each of such officers and agents shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the Board may from time to time determine.
Section 5.04 Removal and Resignation of Officers.
Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the Board or, except in the case of an officer chosen by the Board, by any officer upon whom such power of removal may be conferred by the Board.
Any officer may resign at any time by giving written notice to the Corporation. The resignation shall take effect at the time specified therein or upon the happening of an event specified therein, and if no time or event is specified, at the time of its receipt. Any resignation is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party.
Section 5.05 Vacancies in Offices.
Any vacancy occurring in any office of the Corporation shall be filled by the Board or as provided in Section 5.03.
Section 5.06 Representation of Shares of Other Entities.
The Chairperson of the Board, the Chief Executive Officer, or the President of this Corporation, or any other person authorized by the Board, the Chief Executive Officer or the President, is authorized to vote (including by written consent), represent and exercise on behalf of the Corporation all rights incident to any and all shares or voting securities of any other entities owned or held by the Corporation for itself, or for other parties in any capacity. The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.
Section 5.07 Authority and Duties of Officers.
(a) Chairperson. The Chairperson shall preside at all meetings of the Board and shall exercise such powers and perform such other duties as shall be determined from time to time by the Board. Only Directors shall be eligible to be the Chairperson.
(b) Chief Executive Officer. The Chief Executive Officer shall have general supervision over, and direction of, the business and affairs of the Corporation, subject, however, to the control of the Board and of any duly authorized committee of the Board. The Chief Executive Officer shall preside at all meetings of the stockholders and at all meetings of the Board at which the Chairperson and the Vice Chairperson (if there be one) are not present. The Chief Executive Officer may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by resolution of the Board or by these bylaws to some other officer or agent of the Corporation, or shall be required by applicable law otherwise to be signed or executed and, in general, the Chief Executive Officer shall perform all duties incident to the office of Chief Executive Officer of a corporation and such other duties as may be determined from time to time by the Board. Unless there shall have been elected one or more Presidents of the Corporation, the Chief Executive Officer shall be the President of the Corporation.
(c) President. Each President shall have such general powers and duties of supervision over the business of the Corporation and other duties incident to the office of President, and any other duties as may from time to time be assigned to the President by the Board and subject to the control of the Board in each case. The President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except
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in cases in which the signing and execution thereof shall be expressly delegated by the Board or by these bylaws to some other officer or agent of the Corporation, or shall be required by applicable law otherwise to be signed or executed.
(d) Vice Presidents. Vice Presidents shall have the duties incident to the office of Vice President and any other duties that may from time to time be assigned to the Vice President by the President or the Board. Any Vice President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by the Board or by these bylaws to some other officer or agent of the Corporation, or shall be required by applicable law otherwise to be signed or executed.
(e) Secretary. The Secretary shall attend all meetings of the Board and of the stockholders, record all the proceedings of the meetings of the Board and of the stockholders in a book to be kept for that purpose and perform like duties for committees of the Board, when required. The Secretary shall give, or cause to be given, notice of all special meetings of the Board and of the stockholders and perform such other duties as may be prescribed by the Board, the Chief Executive Officer or the President. The Secretary shall have custody of the corporate seal of the Corporation, and the Secretary or an Assistant Secretary, shall have authority to affix the same on any instrument that may require it, and when so affixed, the seal may be attested by the signature of the Secretary or by the signature of such Assistant Secretary. The Board may give general authority to any other officer to affix the seal of the Corporation and to attest the same by such officer’s signature. The Secretary or an Assistant Secretary may also attest all instruments signed by the Chief Executive Officer, President or any Vice President. The Secretary shall have charge of all the books, records and papers of the Corporation relating to its organization and management, see that the reports, statements and other documents required by applicable law are properly kept and filed and, in general, perform all duties incident to the office of secretary of a corporation and such other duties as may from time to time be assigned to the Secretary by the Board, the Chief Executive Officer or the President.
(f) Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds, securities and notes of the Corporation, receive and give receipts for moneys due and payable to the Corporation from any sources whatsoever; deposit all such moneys and valuable effects in the name and to the credit of the Corporation in such depositaries as may be designated by the Board, against proper vouchers, cause such funds to be disbursed by checks or drafts on the authorized depositaries of the Corporation signed in such manner as shall be determined by the Board and be responsible for the accuracy of the amounts of all moneys so disbursed, regularly enter or cause to be entered in books or other records maintained for the purpose full and adequate account of all moneys received or paid for the account of the Corporation, have the right to require from time to time reports or statements giving such information as the Treasurer may desire with respect to any and all financial transactions of the Corporation from the officers or agents transacting the same, render to the Chief Executive Officer, President or the Board, whenever the Chief Executive Officer, President or the Board shall require the Treasurer so to do, an account of the financial condition of the Corporation and of all financial transactions of the Corporation, disburse the funds of the Corporation as ordered by the Board and, in general, perform all duties incident to the office of Treasurer of a corporation and such other duties as may from time to time be assigned to the Treasurer by the Board, the Chief Executive Officer or the President.
(g) Assistant Secretaries and Assistant Treasurers. Assistant Secretaries and Assistant Treasurers shall perform such duties as shall be assigned to them by the Secretary or by the Treasurer, respectively, or by the Board, the Chief Executive Officer or the President.
Section 5.08 Compensation.
The compensation of the officers of the Corporation for their services as such shall be fixed from time to time by or at the direction of the Board. An officer of the Corporation shall not be prevented from receiving compensation by reason of the fact that he or she is also a director of the Corporation.
Article VI. Records
A stock ledger consisting of one or more records in which the names of all of the Corporation’s stockholders of record, the address and number of shares registered in the name of each such stockholder, and all issuances and transfers of stock of the corporation are recorded in accordance with Section 224 of the DGCL shall be administered by or on behalf of the Corporation. Any records administered by or on behalf of the Corporation in the regular
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course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device, or method, or one or more electronic networks or databases (including one or more distributed electronic networks or databases), provided that the records so kept can be converted into clearly legible paper form within a reasonable time and, with respect to the stock ledger, that the records so kept (a) can be used to prepare the list of stockholders specified in Sections 219 and 220 of the DGCL, (b) record the information specified in Sections 156, 159, 217(a) and 218 of the DGCL, and (c) record transfers of stock as governed by Article 8 of the Uniform Commercial Code as adopted in the State of Delaware.
Article VII. General Matters
Section 7.01 Execution of Corporate Contracts and Instruments.
The Board, except as otherwise provided in these bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances.
Section 7.02 Stock Certificates.
The shares of the Corporation shall be represented by certificates, provided that the Board may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Certificates for the shares of stock, if any, shall be in such form as is consistent with the Certificate of Incorporation and applicable law. Every holder of stock represented by a certificate shall be entitled to have a certificate signed by, or in the name of the Corporation by, any two officers authorized to sign stock certificates representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.
Section 7.03 Special Designation of Certificates.
If the Corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or on the back of the certificate that the Corporation shall issue to represent such class or series of stock (or, in the case of uncertificated shares, set forth in a notice provided pursuant to Section 151 of the DGCL); provided, however, that except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements, there may be set forth on the face of back of the certificate that the Corporation shall issue to represent such class or series of stock (or, in the case of any uncertificated shares, included in the aforementioned notice) a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, the designations, the preferences and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
Section 7.04 Lost Certificates.
Except as provided in this Section 7.04, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the Corporation and cancelled at the same time. The Corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
Section 7.05 Construction; Definitions.
Unless the context requires otherwise, the general provisions, rules of construction and definitions in the DGCL shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural and the plural number includes the singular.
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Section 7.06 Dividends.
The Board, subject to any restrictions contained in either (i) the DGCL or (ii) the Certificate of Incorporation, may declare and pay dividends upon the shares of its capital stock. Dividends may be paid in cash, in property or in shares of the Corporation’s capital stock.
The Board may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the Corporation, and meeting contingencies.
Section 7.07 Fiscal Year.
The fiscal year of the Corporation shall be fixed by resolution of the Board and may be changed by the Board.
Section 7.08 Seal.
The Corporation may adopt a corporate seal, which shall be adopted and which may be altered by the Board. The Corporation may use the corporate seal by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
Section 7.09 Transfer of Stock.
Shares of the stock of the Corporation shall be transferable in the manner prescribed by law and in these bylaws. Shares of stock of the Corporation shall be transferred on the books of the Corporation only by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the Corporation of the certificate or certificates representing such shares endorsed by the appropriate person or persons (or by delivery of duly executed instructions with respect to uncertificated shares), with such evidence of the authenticity of such endorsement or execution, transfer, authorization and other matters as the Corporation may reasonably require, and accompanied by all necessary stock transfer stamps. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing the names of the persons from and to whom it was transferred.
Section 7.10 Stock Transfer Agreements.
The Corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes or series of stock of the Corporation to restrict the transfer of shares of stock of the Corporation of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.
Section 7.11 Registered Stockholders.
The Corporation:
(a) shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner; and
(b) shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.
Section 7.12 Waiver of Notice.
Whenever notice is required to be given under any provision of applicable law, the Certificate of Incorporation or these bylaws, a written waiver, signed by the stockholder entitled to notice, or a waiver by electronic transmission by the stockholder entitled to notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to notice. Attendance of a stockholder at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the Certificate of Incorporation or these bylaws.
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Section 7.13 Time Periods.
In applying any provision of these bylaws which require that an act be done or not done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used unless otherwise specified, the day of the doing of the act shall be excluded, and the day of the event shall be included.
Section 7.14 Conflict with Applicable Law or Certificate of Incorporation.
These bylaws are adopted subject to any applicable law and the Certificate of Incorporation. Whenever these bylaws may conflict with any applicable law or the Certificate of Incorporation, such conflict shall be resolved in favor of such law or the Certificate of Incorporation.
Article VIII. Notice
Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provisions of the DGCL, the Certificate of Incorporation or by electronic transmission directed to the stockholder’s electronic mail address, as applicable) as it appears on the records of the Corporation and shall be given (1) if mailed, when the notice is deposited in the U.S. mail, postage prepaid, (2) if delivered by courier service, the earlier of when the notice is received or left at such stockholder’s address or (3) if given by electronic mail, when directed to such stockholder’s electronic mail address unless the stockholder has notified the Corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail. A notice by electronic mail must include a prominent legend that the communication is an important notice regarding the Corporation.
Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation or these bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice or electronic transmission to the Corporation. Notwithstanding the provisions of this paragraph, the Corporation may give a notice by electronic mail in accordance with the first paragraph of this section without obtaining the consent required by this paragraph.
Any notice given pursuant to the preceding paragraph shall be deemed given:
(a) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;
(b) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and
(c) if by any other form of electronic transmission, when directed to the stockholder.
Notwithstanding the foregoing, a notice may not be given by an electronic transmission from and after the time that (A) the Corporation is unable to deliver by such electronic transmission two (2) consecutive notices given by the Corporation and (B) such inability becomes known to the Secretary or an Assistant Secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice; provided, however, that the inadvertent failure to discover such inability shall not invalidate any meeting or other action.
An affidavit of the Secretary or an Assistant Secretary of the Corporation or of the transfer agent or other agent of the Corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
Article IX. Amendments
The Board is expressly empowered to adopt, amend or repeal the bylaws of the Corporation. The stockholders also shall have power to adopt, amend or repeal the bylaws of the Corporation; provided, however, that such action by stockholders shall require, in addition to any other vote required by the Certificate of Incorporation or applicable law, the affirmative vote of the holders of at least two-thirds of the voting power of all the then-outstanding shares of voting stock of the Corporation with the power to vote generally in an election of directors, voting together as a single class.
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Article X. Indemnification
Section 10.01 Right to Indemnification.
The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another entity or enterprise, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement (except for judgments, fines and amounts paid in settlement in any action or suit by or in the right of the Corporation to procure a judgment in its favor) actually and reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.03, the Corporation shall be required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if the commencement of such Proceeding (or part thereof) by the Covered Person was authorized by the Board.
Section 10.02 Prepayment of Expenses.
To the extent not prohibited by applicable law, the Corporation shall pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any Proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article X or otherwise.
Section 10.03 Claims.
If a claim for indemnification or advancement of expenses under this Article X is not paid in full within thirty (30) days after a written claim therefor by the Covered Person has been received by the Corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.
Section 10.04 Nonexclusivity of Rights.
The rights conferred on any Covered Person by this Article X shall not be exclusive of any other rights that such Covered Person may have or hereafter acquire under any statute, provision of these bylaws, the Certificate of Incorporation, agreement, vote of stockholders or disinterested directors or otherwise.
Section 10.05 Other Sources.
The Corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another entity or enterprise shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other entity or enterprise.
Section 10.06 Amendment or Repeal.
Any amendment or repeal of the foregoing provisions of this Article X shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such amendment or repeal.
Section 10.07 Other Indemnification and Prepayment Expenses.
This Article X shall not limit the right of the Corporation, to the extent and in the manner permitted by applicable law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.
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Article XI. Definitions
As used in these bylaws, unless the context otherwise requires, the following terms shall have the following meanings:
An “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
An “electronic mail” means an electronic transmission directed to a unique electronic mail address (which electronic mail shall be deemed to include any files attached thereto and any information hyperlinked to a website if such electronic mail includes the contact information of an officer or agent of the Corporation who is available to assist with accessing such files and information).
An “electronic mail address” means a destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox (commonly referred to as the “local part” of the address) and a reference to an internet domain (commonly referred to as the “domain part” of the address), whether or not displayed, to which electronic mail can be sent or delivered.
The term “person” means any individual, general partnership, limited partnership, limited liability company, corporation, trust, business trust, joint stock company, joint venture, unincorporated association, cooperative or association or any other legal entity or organization of whatever nature, and shall include any successor (by merger or otherwise) of such entity.
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Annex D
SUBSCRIPTION AGREEMENT
July 1, 2021
ISOS Acquisition Corporation
55 Post Road W, Suite 200
Westport, CT 06880
Bowlero Corp.
222 W 44th Street
New York, NY 10036
Ladies and Gentlemen:
This Subscription Agreement (this “Subscription Agreement”) is entered into this 1st day of July, 2021, by and among ISOS Acquisition Corporation, a Cayman Islands exempted company (including any successor thereto pursuant to the terms of the Transaction Agreement (as defined hereafter), the “Issuer”), and the undersigned (the “Subscriber”).
The Issuer has entered into a Business Combination Agreement dated as of the date hereof (the “Transaction Agreement” and the transactions contemplated thereby, the “Transactions”), by and between the Issuer and Bowlero Corp., a Delaware corporation (the “Company”), pursuant to which, among other things the Company will merge with and into the Issuer (the “Merger”), with the Issuer surviving the Merger.
In connection with the Transaction Agreement, the Issuer is seeking commitments to purchase shares of the Issuer’s Class A ordinary shares, par value $0.0001 per share, or shares of common stock of the Issuer into which such Class A ordinary shares are converted in connection with the domestication (the “Domestication”) of the Issuer to Delaware (the “Shares”), for a purchase price of $10.00 per share (the “Purchase Price”), in a private placement to be conducted by the Issuer (the “Offering”).
On even date herewith, the Issuer is entering into subscription agreements substantially similar to this Subscription Agreement (the “Other Subscription Agreements” and together with this Subscription Agreement, the “Subscription Agreements”) with certain other subscribers (the “Other Subscribers”), pursuant to which the Other Subscribers, severally and not jointly, have agreed to purchase in the Offering, effective on the closing date of the Transactions, inclusive of the Shares to be purchased by the undersigned, an aggregate of 15,000,000 Shares, at the Purchase Price. In connection therewith, the undersigned subscriber (“Subscriber”) and the Issuer agree as follows:
1. Subscription. Subscriber hereby subscribes for and agrees to purchase from the Issuer, and the Issuer agrees to issue and sell to Subscriber, such number of Shares as is set forth on the signature page of this Subscription Agreement (the “Subscriber Shares”) at the Purchase Price per Subscriber Share and on the terms provided for herein.
2. Closing; Delivery of the Subscriber Shares.
(a) The closing of the sale of the Subscriber Shares contemplated hereby (the “Closing”, and the date that the Closing actually occurs, the “Closing Date”) is contingent upon the substantially concurrent consummation of the Transactions (the “Transaction Closing”). The Closing shall occur on the date of but immediately prior to the consummation of the Merger (it being understood that the sale of the Subscriber Shares shall occur immediately after the Domestication).
(b) At least five (5) Business Days (as defined below) before the anticipated Closing Date, the Issuer shall deliver written notice to the Subscriber (the “Closing Notice”) specifying (i) the anticipated Closing Date and (ii) the wire instructions for delivery of the Purchase Price to the Issuer. No later than two (2) Business Days after delivery of the Closing Notice, the Subscriber shall deliver to the Issuer such information as is reasonably requested in the Closing Notice in order for the Issuer to issue the Subscriber Shares to the Subscriber. No later than noon (Eastern time) two (2) Business Days prior to the Closing Date, Subscriber shall deliver the Purchase Price by wire transfer of United States dollars in immediately available funds to the account specified by the Issuer in the Closing Notice, such funds to be held by the Issuer in escrow until the Closing. The Issuer shall deliver to Subscriber (i) at
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the Closing, the Subscriber Shares in book entry form, free and clear of any liens or other restrictions (other than those arising under state or federal securities laws), in the name of the Subscriber (or its nominee in accordance with its delivery instructions) or to a custodian designated by the Subscriber, as applicable, and (ii) as promptly as reasonably practicable after the Closing, evidence from the Issuer’s transfer agent of the issuance to Subscriber of the Subscriber Shares (in book entry form) on and as of the Closing Date. In the event that the consummation of the Merger does not occur within two (2) Business Days after the anticipated Closing Date specified in the Closing Notice, unless otherwise agreed to in writing by the Issuer and the Subscriber, the Issuer shall promptly (but in no event later than three (3) Business Days after the anticipated Closing Date specified in the Closing Notice) return the Purchase Price so delivered by Subscriber to the Issuer by wire transfer in immediately available funds to the account specified in writing by Subscriber, and any book entries shall be deemed cancelled. Notwithstanding such return or cancellation, unless and until this Subscription Agreement is terminated in accordance with Section 7 herein and subject to the satisfaction of the closing conditions set forth in Section 3 herein, Subscriber shall remain obligated (A) to redeliver funds to the Issuer in escrow following the Issuer’s delivery to Subscriber of a new Closing Notice and (B) to consummate the Closing immediately prior to the consummation of the Merger. For the avoidance of doubt, if any termination hereof occurs after the delivery by Subscriber of the Purchase Price for the Subscriber Shares, the Issuer shall promptly (but not later than three (3) Business Days thereafter) return the Purchase Price to Subscriber without any deduction for or on account of any tax, withholding, charges or set-off.
3. Closing Conditions. In addition to the conditions set forth in Section 2:
(a) General Conditions. The Closing is also subject to the satisfaction or valid waiver in writing by each party of the conditions that, on the Closing Date:
(i) no suspension of the qualification of the Subscriber Shares for offering or sale or trading in any jurisdiction, or initiation or threatening of any proceedings for any of such purposes, shall have occurred;
(ii) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated by this Subscription Agreement illegal or otherwise preventing or prohibiting consummation of the transactions contemplated by this Subscription Agreement; and
(iii) all conditions precedent to each party’s obligation to effect the Transactions set forth in the Transaction Agreement, including all necessary approvals of the Issuer’s stockholders and regulatory approvals, if any, shall have been satisfied or waived (as determined by the parties to the Transaction Agreement and other than those conditions that, by their nature, (x) may only be satisfied at the Transaction Closing (including to the extent that any such condition is dependent upon the consummation of the purchase and sale of Shares pursuant to this Subscription Agreement and the Other Subscription Agreements), but subject to the satisfaction or waiver of such conditions as of the Transaction Closing, or (y) will be satisfied by the Closing and the closing of the transactions contemplated by the Other Subscription Agreements), and the Merger shall be scheduled to occur immediately following the Closing.
(b) Issuer Conditions. The obligations of the Issuer to consummate the Closing are also subject to the satisfaction or valid waiver by the Issuer of the additional conditions that, on the Closing Date:
(i) all representations and warranties of the Subscriber contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality, which representations and warranties shall be true and correct in all respects) at and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality, which representations and warranties shall be true and correct in all respects) as of such date), and consummation of the Closing, shall constitute a reaffirmation by the Subscriber of each of the representations, warranties and agreements of the Subscriber contained in this Subscription Agreement as of the Closing Date or as of such specific date, as applicable; and
(ii) the Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to Closing.
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(c) Subscriber Conditions. The obligations of the Subscriber to consummate the Closing are also subject to the satisfaction or valid waiver by the Subscriber of the additional conditions that, on the Closing Date:
(i) all representations and warranties of the Issuer contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or an Issuer MAE (as defined herein), which representations and warranties shall be true and correct in all respects) at and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Issuer MAE, which representations and warranties shall be true and correct in all respects) as of such date), and consummation of the Closing, shall constitute a reaffirmation by the Issuer of its representations, warranties and agreements contained in this Subscription Agreement as of the Closing Date or as of such specific date, as applicable;
(ii) the Issuer shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to Closing;
(iii) no amendment to, or modification or waiver of, the Transaction Agreement (as the same exists on the date hereof as provided to the Subscriber) shall have occurred that would reasonably be expected to materially and adversely affect the economic benefits that the Subscriber would reasonably expect to receive under this Subscription Agreement;
(iv) the Shares shall be approved for listing on the Nasdaq Stock Market LLC (“Nasdaq”) or the New York Stock Exchange (“NYSE”), as applicable, subject to official notice of issuance; and
(v) the Issuer shall not have entered into any Other Subscription Agreement with a lower purchase price than $10.00 per Share or other terms (economic or otherwise) substantially more favorable to such Other Subscriber than as set forth in this Subscription Agreement.
4. Issuer Representations and Warranties. The Issuer represents and warrants to the Subscriber that:
(a) Organization and Qualification. Prior to the Domestication, the Issuer is an exempted company limited by shares incorporated under the laws of the Cayman Islands duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has the corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. As of the Closing Date, following the Domestication, the Issuer will be duly incorporated, validly existing as a corporation and in good standing under the laws of the State of Delaware.
(b) Authorization; Enforcement. This Subscription Agreement has been duly authorized, executed and delivered by the Issuer, constitutes a valid and binding obligation of the Issuer and is enforceable against the Issuer in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
(c) Issuance. As of the Closing Date, the Subscriber Shares will be duly authorized and, when issued and delivered to the Subscriber against full payment therefor in accordance with the terms of this Subscription Agreement, the Subscriber Shares will be validly issued, fully paid and non-assessable, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s certificate of incorporation (as in effect at such time of issuance), by contract, or under the Delaware General Corporation Law.
(d) No Conflicts. The execution, delivery and performance by the Issuer of this Subscription Agreement (including the issuance and sale of the Subscriber Shares by the Issuer), and the consummation of the transactions contemplated hereby, will not (i) conflict with or result in a material breach or material violation of any of the terms or provisions of, or constitute a material default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, license, lease or any other agreement or instrument to which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer is subject, which would have a material adverse effect on (A) the
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business, properties, assets, liabilities, operations, condition (including financial condition), stockholders’ equity or results of operations of the Issuer or the combined company after giving effect to Transactions, (B) the validity of the Subscriber Shares, or (C) the legal authority or ability of the Issuer to timely comply, in all material respects, with its obligations under the Transaction Agreement, this Subscription Agreement or the Other Subscription Agreements, including the issuance and sale of the Subscriber Shares (an “Issuer MAE”), (ii) result in any violation of the provisions of the organizational documents of the Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that would have an Issuer MAE.
(e) Filings, Consents and Approvals. Assuming the accuracy of the representations and warranties of the Subscriber, the Issuer is not required to obtain any consent, waiver, authorization, approval or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by the Issuer of this Subscription Agreement (including, without limitation, the issuance of the Subscriber Shares), other than (i) the filing with the Commission of a registration statement pursuant to Section 8, (ii) the filings required by applicable state or federal securities laws, (iii) the filings required in accordance with Section 6(c), (iv) any filings or notices required by the NYSE, (v) those required to consummate the Transactions as provided under the Transaction Agreement, (vi) the filing of notification under HSR, if applicable, and (vii) any consent, waiver, authorization or order of, notice to, or filing or registration, the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, an Issuer MAE.
(f) Capitalization. As of the date of this Subscription Agreement, the authorized capital stock of the Issuer consists of (i) 300,000,000 Class A ordinary shares, par value $0.0001 per share, (ii) 20,000,000 Class B ordinary shares, par value of $0.0001 per share, and (iii) 1,000,000 preferred shares, par value $0.0001 per share. As of the date of this Subscription Agreement, (A) 25,483,700 Class A ordinary shares are issued and outstanding, (B) 6,370,925 Class B ordinary shares are issued and outstanding, (C) 8,494,566 redeemable public warrants to purchase Class A ordinary shares are issued and outstanding, (D) 5,397,828 private placement warrants to purchase Class A ordinary shares are issued and outstanding, and (E) no preferred shares are issued or outstanding. All (1) issued and outstanding Class A ordinary shares and Class B ordinary shares have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (2) outstanding warrants have been duly authorized and validly issued and are not subject to preemptive rights. Except as set forth above and pursuant to the Transaction Agreement and the other agreements and arrangements referred to therein or in the SEC Reports (as defined below), as of the date hereof, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any Shares or other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, the Issuer has no subsidiaries, and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (1) as set forth in the SEC Reports and (2) as contemplated by the Transaction Agreement. There are no securities or instruments by or to which the Issuer is a party containing anti-dilution or similar provisions that will be triggered by the issuance of the Subscriber Shares or any Shares issued pursuant to the Other Subscription Agreements, in each case, that have not been or will not be validly waived on or prior to the Closing Date.
(g) Registration of Common Stock. As of the date of this Agreement, the issued and outstanding Class A ordinary shares of the Issuer are registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and are listed for trading on the NYSE under the symbol “ISOS.” Following the Domestication, the Shares are expected to be registered under the Exchange Act. There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the Securities and Exchange Commission (the “Commission”) with respect to any intention by such entity to deregister the Shares or prohibit or terminate the listing of the Shares on the NYSE.
(h) Regulatory Actions. Except for such matters as have not had and would not be reasonably be expected to have, individually or in the aggregate, an Issuer MAE, there is no (i) action, suit, claim or other proceeding, in each case by or before any governmental authority pending, or, to the knowledge of the Issuer, threatened against the Issuer, or (ii) judgment, decree, injunction, ruling or order of any governmental entity outstanding against the Issuer.
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(i) Compliance. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer MAE. The Issuer has not received any written communication from a governmental entity that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not, individually or in the aggregate, be reasonably expected to have an Issuer MAE. The Issuer is not in default or violation (and no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation) of any term, condition or provision of (i) the organizational documents of the Issuer, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, permit, franchise or license to which the Issuer is now a party or by which the Issuer’s properties or assets are bound, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties, except, in the case of clauses (ii) and (iii), for defaults or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, an Issuer MAE.
(j) Broker Fees. The Issuer has not entered into any agreement or arrangement entitling any agent, broker, investment banker, financial advisor or other person to any broker’s or finder’s fee or any other commission or similar fee in connection with the transactions contemplated by this Subscription Agreement for which the Subscriber could become liable. Other than compensation to be paid to the Placement Agents (as defined below), the Issuer is not aware of any person that has been or will be paid (directly or indirectly) remuneration for solicitation of the Subscriber in connection with the sale of any Shares in the Offering.
(k) SEC Reports; Financial Statements. As of their respective dates, all forms, reports, statements, schedules, proxies, registration statements and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Reports”) complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Exchange Act and the rules and regulations of the Commission promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Issuer included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of the Issuer as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. Except for the Issuer’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2021, the Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its initial registration of the Class A ordinary shares with the Commission. A copy of each SEC Report is available to the Subscriber via the Commission’s EDGAR system. There are no outstanding or unresolved comments in comment letters received by the Issuer from the staff of the Division of Corporation Finance of the Commission with respect to any of the SEC Reports. Notwithstanding anything in this Subscription Agreement to the contrary, no representation or warranty is made as to the accounting treatment of the Issuer’s issued and outstanding warrants, or as to any deficiencies in disclosure (including with respect to internal control over financial reporting or disclosure controls and procedures). Furthermore, Subscriber acknowledges and agrees that (i) the Staff of the SEC issued the Staff Statement on Accounting and Reporting Considerations for Warrants Issued by Special Purpose Acquisition Companies on April 12, 2021 (the “Statement”), (ii) the Issuer continues to review the Statement and its implications, including on the financial statements and other information included in its SEC Reports and (iii) any restatement, revision or other modification of the SEC Reports or any statements or information included therein in connection with such a review of the Statement or any subsequent related agreements or other guidance from the Staff of the SEC related thereto shall be deemed not to be material for purposes of this Subscription Agreement.
(l) Investment Company. The Issuer is not, and immediately after receipt of payment for the Shares being sold in the Offering, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(m) Private Placement. Assuming the accuracy of the Subscriber’s representations and warranties set forth in Section 5, in connection with the offer, sale and delivery of the Subscriber Shares in the manner contemplated by this Subscription Agreement, it is not necessary to register the Subscriber Shares under the
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Securities Act. The Subscriber Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
(n) No Side Letters. Other than the Other Subscription Agreements, the Transaction Agreement, and other agreements and arrangements referred to therein (including the subscription agreements pursuant to which convertible preferred equity will be issued substantially concurrently with the issuance of the Shares in this Offering), the Issuer has not entered into any subscription agreement, side letter or similar agreement with any Other Subscriber in connection with such Other Subscriber’s investment in the Issuer through the Offering, except for side letters required to comply with an Other Subscriber’s policies and procedures, or rules and regulations applicable to the Other Subscriber. No Other Subscription Agreement includes terms and conditions that are materially more advantageous to any such Other Subscriber than the Subscriber hereunder (other than terms particular to the regulatory requirements of such subscriber or its affiliates or related funds), and such Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement to include any such terms and conditions. The Issuer has not entered into any side letter with any Public Stockholder in connection with their ownership of Class A Common Shares purchased in connection with the Issuer’s initial public offering pursuant to which such Public Stockholder has been granted redemption rights not granted to all Public Stockholders.
(o) No Bankruptcy. Neither the Issuer nor any of its subsidiaries, if any, has not taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation, administration or winding up or failed to pay its debts when due, nor does the Issuer or any subsidiary (if any), have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or seek to commence an administration.
(p) Anti-Money Laundering Laws. The operations of the Issuer and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable anti-money laundering statutes of all jurisdictions where the Issuer or any of its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”); and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
(q) Sanctions. Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent, employee or affiliate of the Issuer or any of its subsidiaries is an individual or entity (a “Person”) that is, or is owned or controlled by a Person that is, currently the subject or target of any sanctions administered or enforced by the United States government (including, without limitation, the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or the U.S. Department of State and including, without limitation, the designation as a “specifically designated national” or “blocked person”, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Issuer or any of its subsidiaries located, organized or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Sudan and Syria (each, a “Sanctioned Country”). Since the Issuer’s inception, the Issuer and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
5. Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Issuer that:
(a) Subscriber Status. At the time the Subscriber was offered the Subscriber Shares, it was, and as of the date hereof, the Subscriber is (i) an “accredited investor” (within the meaning of Rule 501 of Regulation D under the Securities Act) (an “Accredited Investor”) or a Qualified Institutional Buyer (as defined in 144A of the Securities Act) (a “QIB”), as indicated in the questionnaire attached as Exhibit A hereto (an “Investor Questionnaire”), (ii) an “institutional account”, as defined in FINRA Rule 4512(c) (an “Institutional Account”), (iii) a sophisticated institutional investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security
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or securities, including its participation in the Transactions and (iv) acquiring the Subscriber Shares only for its own account and not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Subscriber Shares.
(b) Nature of Investment. The Subscriber understands that the Subscriber Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscriber Shares delivered at the Closing have not been registered under the Securities Act. The Subscriber understands that the Subscriber Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Subscriber Shares delivered at the Closing shall contain a legend or restrictive notation to such effect, and as a result of such restrictions, the Subscriber may not be able to readily resell the Subscriber Shares and may be required to bear the financial risk of an investment in the Subscriber Shares for an indefinite period of time. The Subscriber acknowledges that the Subscriber Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Subscriber Shares.
(c) Authorization and Enforcement. The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound which would reasonably be expected to have an adverse effect on the legal authority of the Subscriber to enter into and perform its obligations under this Subscription Agreement, and will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation.
(d) Other Representations. The Subscriber understands and agrees that the Subscriber is purchasing the Subscriber Shares directly from the Issuer. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by or on behalf of the Issuer, the Company, the Placement Agents, or any of their respective officers or directors, expressly (other than those representations, warranties, covenants and agreements made by the Issuer in this Subscription Agreement) or by implication, other than the representations, warranties, covenants and agreements herein.
(e) Tax Treatment. The Subscriber’s acquisition and holding of the Subscriber Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law.
(f) Receipt of Disclosure. The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Subscriber Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received (or in the case of documents filed with the Commission, had access to) the following items (collectively, the “Disclosure Documents”): (i) the final prospectus of the Issuer, dated as of March 4, 2021 and filed with the Commission (File No. 333-252283) on March 4, 2021 (the “SPAC Prospectus”), (ii) each filing made by the Issuer with the Commission following the filing of the SPAC Prospectus through the date of this Subscription Agreement, (iii) the Transaction Agreement, a copy of which will be filed by the Issuer with the Commission and (iv) the investor presentation by the Issuer and the Company, a copy of which will be furnished by the Issuer to the
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Commission. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the opportunity to ask the Issuer’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscriber Shares.
(g) No General Solicitation. The Subscriber became aware of this Offering of the Subscriber Shares solely by means of direct contact between the Subscriber and the Issuer, the Company, a Placement Agent or a representative of any of the foregoing, and the Subscriber Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Issuer, the Company, a Placement Agent or a representative of any of the foregoing. The Subscriber acknowledges that the Issuer represents and warrants that the Subscriber Shares (i) were not offered to the Subscriber by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
(h) Investment Risks. The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscriber Shares, including risks similar to those set forth in the Disclosure Documents and in the Issuer’s filings with the Commission. The Subscriber is a sophisticated institutional investor and is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Subscriber Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Subscriber Shares and determined that the Subscriber Shares are a fit, proper and suitable investment for the Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscriber Shares. The Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Issuer. The Subscriber acknowledges specifically that a possibility of total loss exists.
(i) Compliance. The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Subscriber Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the Issuer’s reports, schedules, forms, statements and other documents required to be filed by the Issuer under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof.
(j) OFAC/Patriot Act. The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Subscriber Shares were legally derived.
(k) No Reliance on Any Placement Agent. In making its decision to purchase the Subscriber Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber, the investor presentation provided to Subscriber and the representations and warranties of the Issuer set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by J.P. Morgan Securities LLC (“JPM”) or LionTree Advisors LLC (“LionTree” and together with JPM, the “Placement Agents”) concerning the Issuer, the Company, or the Subscriber Shares, or the offer and sale of the Subscriber Shares. No disclosure or offering document has been provided by any Placement Agent in connection with the offer and sale of the Subscriber Shares. The Placement Agents and each of its respective members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect
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to the Issuer, the Company or the Subscriber Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer. In connection with the issue and purchase of the Subscriber Shares, no Placement Agent has made any recommendations regarding an investment in the Issuer or the Subscriber Shares. The Subscriber agrees and acknowledges that the Placement Agents are acting as the Issuer’s placement agents in connection with the transactions contemplated by this Subscription Agreement and has not acted as the Subscriber’s financial advisor or fiduciary.
(l) Due Diligence. The Subscriber has (i) received, reviewed and understood the offering materials made available to it in connection with the Transactions, (ii) had the opportunity to ask questions of and receive answers from the Issuer directly and (iii) conducted and completed its own independent due diligence with respect to the Transactions. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Placement Agents, the Subscriber has independently made its own analysis and decision to enter into the Transactions. Except for the representations, warranties and agreements of the Issuer expressly set forth in this Agreement, the Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the securities and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters.
(m) Sufficient Funds. The Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 2(b) on the date the Purchase Price would be required to be funded pursuant to Section 2(b).
(n) Placement Agent. The Subscriber acknowledges and agrees that (a) each of JPM and LionTree is acting solely as the Issuer’s placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for the Subscriber, the Issuer or any other person or entity in connection with the Transactions, (b) each of JPM and LionTree has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transactions, (c) each of JPM and LionTree will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Issuer or the Transactions, and (d) each of JPM and LionTree shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Issuer or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transactions.
(o) JPM as Advisor to Company and Issuer. The Subscriber (for itself and for each account for which it is acquiring the Shares) acknowledges that it is aware that JPM is acting (i) as one of the Issuer’s placement agents, (ii) as financial advisor to the Company in connection with the Merger and (iii) as capital markets advisor to the Issuer in connection with this Offering.
The Subscriber understands that the foregoing representations and warranties shall be deemed material to and have been relied upon by the Issuer.
6. Additional Covenants
(a) Transfer Restrictions.
The Subscriber Shares may only be resold, transferred, pledged or otherwise disposed of in compliance with state and federal securities laws. The Issuer shall use commercially reasonable efforts to cause the removal of all restrictive legends from all Subscriber Shares upon the receipt of a representation by the holder that the Subscriber Shares are being sold pursuant in compliance with federal and state securities laws without the necessity of the holder to produce a separate third party legal opinion. Additionally, the Issuer shall cause the removal of all restrictive legends from all Subscriber Shares once the Subscriber Shares are registered under the Registration Statement upon the receipt of a representation by the holder that it will only sell such shares pursuant to (i) the Registration Statement or another an effective resale registration statement covering the holder’s resale of the Subscriber Shares, which includes a prospectus that is current, and in the manner contemplated by such registration
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statement, including the “Plan of Distribution” contained therein, and that the holder will not sell such Subscriber Shares pursuant to such registration statement if it has received oral or written notice from the Company that use of the prospectus is suspended or that the prospectus otherwise may not be used for transfers of the Shares or (ii) the requirements of Rule 144 under the Securities Act or otherwise in accordance with the Securities Act.
(i) The Issuer acknowledges and agrees that the Subscriber may from time to time after the Closing pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Subscriber Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, the Subscriber may transfer pledged or secured Subscriber Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Issuer and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith; further, no notice shall be required of such pledge; provided that the Subscriber and its pledgee shall be required to comply with other provisions of this Section 6 in order to effect a sale, transfer or assignment of Subscriber Shares to such pledgee. At the Subscriber’s expense, the Issuer will execute and deliver such reasonable documentation as a pledgee or secured party of the Subscriber Shares may reasonably request in connection with a pledge or transfer of the Subscriber Shares.
(ii) The Subscriber agrees to the imprinting, so long as is required by this Section 6(a), of a legend on any of the Subscriber Shares in the following form:
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE FEDERAL, STATE AND FOREIGN SECURITIES LAWS. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
(iii) Subject to Section 6(a) hereof, the Subscriber agrees with the Issuer that the Subscriber will only sell Subscriber Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that, if Subscriber Shares are sold pursuant to a registration statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from instruments representing Subscriber Shares as set forth in this Section 6 is predicated upon the Issuer’s reliance upon this understanding.
(b) Furnishing of Information; Public Information. Until the second (2nd) anniversary of the Closing Date, the Issuer covenants to maintain the registration of the Shares under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Issuer after the effective date of registration of the Shares pursuant to the Exchange Act.
(c) Public Disclosure. The Issuer shall (a) by 9:30 a.m. ET on the first Business Day following the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby (“Disclosure Time”), and (b) file a Current Report on Form 8-K, including the Transaction Agreement and the investor presentation provided to Subscriber, or the material non-public information contained therein, as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Issuer represents to the Subscriber that it shall have publicly disclosed all material, non-public information delivered to the Subscriber by or on behalf of the Issuer, the Company or any of their respective officers, directors, employees or agents (including the Placement Agents) in connection with the transactions contemplated by this Subscription Agreement. The Subscriber shall not issue any press release or make any other similar public statement with respect to the transactions contemplated hereby without the prior written consent of the Issuer (such consent not to be unreasonably withheld or delayed). Notwithstanding the foregoing, neither the Issuer nor the Subscriber shall publicly disclose the name of any other party to this Agreement, or include the name of any other party in any filing with the Commission, any regulatory agency the NYSE or Nasdaq, as applicable, without the prior written consent of the party being disclosed, except to the extent such disclosure is required by applicable law,
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Commission, the NYSE or Nasdaq, as applicable, regulations or at the request of any governmental or regulatory agency or as required by legal process, in which case (to the extent legally permissible) written notice of such disclosure permitted under this clause shall be made to the other party prior to or as soon as reasonably practicable following such disclosure.
(d) Non-Public Information. Following the Disclosure Time or otherwise as required by applicable law, the Issuer covenants and agrees that neither it, nor any other person acting on its behalf, will provide the Subscriber with any information that constitutes, material non-public information, unless prior thereto the Subscriber shall have consented in writing to the receipt of such information and agreed with the Issuer, as applicable, to keep such information confidential. The Issuer each understands and confirms that the Subscriber shall be relying on the foregoing covenant in effecting transactions in securities of the Issuer; provided, that each Subscriber shall be solely responsible for its compliance with federal, state and foreign securities laws.
(e) Other Subscription Agreements. No Other Subscription Agreements will be amended in any material respect following the date of this Subscription Agreement, and each Other Subscription Agreement will reflect the same Purchase Price per Share and terms that are not materially more favorable to such Other Subscriber thereunder than the terms of this Subscription Agreement.
(f) Certain Transactions and Confidentiality. The Subscriber covenants that neither it, nor any affiliate acting on its behalf or pursuant to any understanding with it, has executed or will execute any purchases or sales of any of the Issuer’s securities during the period that commenced at the time that the Subscriber first learned of the transactions contemplated hereunder and ending at such time that the transactions contemplated by this Subscription Agreement are first publicly announced pursuant to the initial press release as described in Section 6(c). The Subscriber covenants that until such time as the transactions contemplated by this Subscription Agreement are publicly disclosed by the Issuer pursuant to the initial press release as described in Section 6(c), the Subscriber will maintain the confidentiality of the existence and terms of the Transactions and the transactions contemplated hereby. Notwithstanding the foregoing and notwithstanding anything contained in this Subscription Agreement to the contrary, the Issuer expressly acknowledges and agrees that (i) the Subscriber makes no representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Issuer after the time that the transactions contemplated by this Subscription Agreement are first publicly announced pursuant to the initial press release as described in Section 6(c), and (ii) the Subscriber shall not be restricted or prohibited from effecting any transactions in any securities of the Issuer in accordance with applicable securities laws from and after the time that the transactions contemplated by this Subscription Agreement are first publicly announced pursuant to the initial press release as described in Section 6(c). Notwithstanding the foregoing, (i) in the case that the Subscriber is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Subscriber’s assets, this Section 6(f) shall only apply with respect to the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and any other portfolio manager that has direct knowledge of this investment and (ii) the representations set forth in this Section 6(f) shall not apply to any other entity, affiliate or client under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the Transactions (including the Subscriber’s controlled affiliates and/or affiliates).
(g) Information Undertaking. The Issuer may request from the Subscriber such additional information as the Issuer may deem reasonably necessary to evaluate the eligibility of the Subscriber to acquire the Subscriber Shares, and the Subscriber shall provide such information to the Issuer upon such request, and provided that the Issuer agrees to keep confidential any such information provided by the Subscriber.
7. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of: (a) the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement; (b) such date and time as the Transaction Agreement is terminated in accordance with its terms (without amendment thereto); (c) the event that any conditions contained in Section 3 herein are not satisfied or waived on or prior to the Closing and, as a result thereof, the Subscription and the other transactions contemplated by this Subscription Agreement are not or will not be consummated at the Closing; or (d) written notice by the Issuer to the Subscriber, or the Subscriber to the Issuer, to terminate this Subscription Agreement if the transactions contemplated by this Subscription Agreement are not consummated on or prior to the “Agreement End Date” as defined in the Transaction Agreement, as it may be amended pursuant to the Transaction
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Agreement; provided that (i) nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and (ii) each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach. The Issuer shall notify the Subscriber of the termination of the Transaction Agreement promptly after the termination of such agreement and the provisions of this Section 7 and Sections 9 and 10 will survive any termination of this Subscription Agreement and continue indefinitely.
8. Registration Rights.
(a) The Issuer agrees that, within thirty (30) calendar days after the Closing Date (the “Filing Date”), the Issuer will file with the Commission (at the Issuer’s sole cost and expense), a registration statement registering the resale of the Subscriber Shares (the initial registration statement and any other registration statement that may be filed by the Issuer under this Section 8, the “Registration Statement”), and the Issuer shall use its reasonable best efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 60th calendar day (or 90th calendar day if the Commission notifies the Issuer that it will “review” the Registration Statement) following the Transaction Closing and (ii) the 10th Business Day after the date the Issuer is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Date”); provided that if such day falls on a Saturday, Sunday or other day that the Commission is closed, the Effectiveness Date shall be extended to the next Business Day on which the Commission is open for business. The Issuer agrees that the Issuer will cause such Registration Statement or another registration statement (which may be a “shelf” registration statement) to remain effective until the earlier of (i) two (2) years from the issuance of the Subscriber Shares, (ii) the date on which the Subscriber ceases to hold the Subscriber Shares covered by such Registration Statement, or (iii) the first date on which the Subscriber can sell all of its Subscriber Shares under Rule 144 of the Securities Act without restriction, including without limitation, any volume or manner of sale restrictions and without the requirement for the Issuer to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable). The Issuer’s obligations to include the Subscriber Shares in the Registration Statement are contingent upon the Subscriber furnishing in writing to the Issuer such information regarding the Subscriber, the securities of the Issuer held by the Subscriber and the intended method of disposition of the Subscriber Shares as shall be reasonably requested by the Issuer to effect the registration of the Subscriber Shares (including disclosure of its beneficial ownership of the Subscriber Shares, as determined in accordance with Rule 13d-3 of the Exchange Act), and shall execute such documents in connection with such registration as the Issuer may reasonably request that are customary of a selling stockholder in similar situations, provided that Subscriber shall not in connection with the foregoing be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Subscriber Shares. Any failure by the Issuer to file the Registration Statement by the Filing Date or for the Registration Statement to be declared effective by the Effectiveness Date shall not otherwise relieve the Issuer of its obligations to file or effect the Registration Statement as set forth in this Section 8. In no event shall the Subscriber be identified as a statutory underwriter in the Registration Statement unless requested by the Commission; provided, that if the Commission requests that the Subscriber be identified as a statutory underwriter in the Registration Statement, the Subscriber will have the option, in its sole and absolute discretion, to either (i) have an opportunity to withdraw from the Registration Statement, in which case the Issuer’s obligation to register the Subscriber Shares will be deemed satisfied, or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the Commission prevents the Issuer from including any or all of the Shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of Shares by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number Shares which is equal to the maximum number of Shares as is permitted by the Commission. In such event, the number of Shares to be registered for each selling stockholder named in the Registration Statement (including the number of Subscriber Shares to be registered for the Subscriber) shall be reduced pro rata among all such selling stockholders and as promptly as practicable after being permitted to register additional Shares under Rule 415 under the Securities Act, the Issuer shall amend the Registration Statement or file a new Registration Statement to register such additional Shares (including the applicable Subscriber Shares) and cause such amendment or Registration Statement to become effective as promptly as practicable. For purposes of this Section 8, “Shares” and “Subscriber Shares” shall mean, as of any date of determination, the Shares or Subscriber Shares, as applicable, and any other equity security of the Issuer issued or issuable with respect to such Shares or Subscriber Shares by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event or otherwise.
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(b) In the case of the registration, qualification, exemption or compliance effected by the Issuer pursuant to this Subscription Agreement, the Issuer shall, upon reasonable request, inform Subscriber as to the status of such registration, qualification, exemption and compliance. At its expense, the Issuer shall:
(i) except for such times as the Issuer is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws which the Issuer determines to obtain, continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions;
(ii) advise Subscriber within three (3) Business Days:
(A) of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information;
(B) when any amendment requested in (A) above has been filed with the Commission and when such amendment thereto has become effective,
(C) of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;
(D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Subscriber Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(E) subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus included therein so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading.
Notwithstanding anything to the contrary set forth herein, the Issuer shall not, when so advising Subscriber of such events listed above, provide Subscriber with any material, nonpublic information regarding the Issuer other than to the extent that providing notice to Subscriber of the occurrence of the events listed in (A) through (C) above constitutes material, nonpublic information regarding the Issuer;
(iii) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable;
(iv) upon the occurrence of any event contemplated above, except for such times as the Issuer is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, the Issuer shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Subscriber Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) use its commercially reasonable efforts to cause all Subscriber Shares to be listed on each securities exchange or market, if any, on which Shares have been listed; and
(vi) use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Subscriber Shares contemplated hereby.
(c) The Issuer may delay filing or suspend the use of any such registration statement (x) if it determines, upon advice of legal counsel, that in order for the registration statement to not contain a material misstatement or omission, an amendment thereto would be needed, (y) as may be necessary in connection with the preparation and filing of a post-effective amendment to the Registration Statement following the filing of the Issuer’s Annual Report on Form 10-K for its first completed fiscal year, or (z) if the Issuer’s Board of Directors, upon advice of legal counsel, reasonably believes that such filing or use would materially affect a bona fide business or financing
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transaction of the Issuer or any of its subsidiaries, or would require premature disclosure of information that could materially adversely affect the Issuer (each such circumstance, a “Suspension Event”); provided, however, that the Issuer may not delay filing or suspend use of any registration statement on more than two occasions or for more than sixty (60) consecutive calendar days or more than ninety (90) total calendar days, in each case in any 12-month period. Upon receipt of any written notice from the Issuer of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, the Subscriber agrees that it will (i) immediately discontinue offers and sales of the Subscriber Shares under the Registration Statement until the Subscriber receives (A) (x) copies of a supplemental or amended prospectus that corrects the misstatement(s) or omission(s) referred to above and (y) notice that any post-effective amendment has become effective or (B) notice from the Issuer that it may resume such offers and sales, and (ii) maintain the confidentiality of any information included in such written notice delivered by the Issuer unless otherwise required by applicable law. If so directed by the Issuer, the Subscriber will deliver to the Issuer or, in Subscriber’s sole discretion, destroy all copies of the prospectus covering the Subscriber Shares in the Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Subscriber Shares shall not apply to (i) the extent the Subscriber is required to retain a copy of such prospectus (A) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (B) in accordance with a bona fide pre-existing document retention policy or (ii) copies stored electronically on archival servers as a result of automatic data back-up. In addition to the removal of restrictive legends at the Subscriber’s request contemplated by Section 6(a)(iv), during any periods that a Registration Statement registering the resale of the Subscriber Shares is effective, the Issuer shall, at its expense, cause the Issuer’s transfer agent to remove any restrictive legends on any Subscriber Shares sold by the Subscriber within two (2) Business Days of the date that (i) such Subscriber Shares are sold, (ii) the Subscriber notifies the Issuer of such sale and (iii) the Subscriber provides the Issuer with any customary representations in connection therewith. In connection therewith, if required by the Issuer’s transfer agent, the Issuer will promptly cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent that authorize and direct the transfer agent to issue such Subscriber Shares without any such legend.
(d) From and after the Closing, the Issuer shall indemnify, defend and hold harmless the Subscriber (to the extent a seller under the Registration Statement), and the officers, employees, affiliates, directors, partners, members, managers, investment advisors, attorneys and agents of the Subscriber, and each person, if any, who controls the Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (the Subscriber and each of the foregoing, a “Subscriber Indemnified Party”), from and against any losses, judgments, claims, damages, liabilities or reasonable costs or expenses (including reasonable attorneys’ fees) (collectively, “Losses”), that arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (ii) any violation or alleged violation by the Issuer of the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder, in connection with the performance of its obligations under this Section 8, except to the extent that such untrue or alleged untrue statements or omissions or alleged omissions are based solely upon information furnished in writing to the Issuer by a Subscriber Indemnified Party expressly for use therein. Notwithstanding the forgoing, the Issuer’s indemnification obligations shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the prior written consent of the Issuer (which consent shall not be unreasonably withheld, delayed or conditioned).
(e) From and after the Closing, the Subscriber shall, severally and not jointly with any Other Subscriber, indemnify, defend and hold harmless the Issuer, and the officers, employees, affiliates, directors, partners, members, managers, attorneys and agents of the Issuer, and each person, if any, who controls the Issuer (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), from and against any Losses, that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission
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to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, to the extent that such untrue or alleged untrue statements or omissions or alleged omissions are based solely upon information regarding Subscriber furnished in writing to the Issuer by a Subscriber Indemnified Party expressly for use therein. In no event shall the liability of the Subscriber be greater in amount than the dollar amount of the net proceeds received by the Subscriber upon the sale of the Subscriber Shares giving rise to such indemnification obligation. Notwithstanding the forgoing, the Subscriber’s indemnification obligations shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the prior written consent of the Subscriber (which consent shall not be unreasonably withheld, delayed or conditioned).
(f) If the indemnification provided under this Section 8 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any Losses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses or other liabilities referred to above shall be subject to the limitations set forth in this Section 8 and deemed to include any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 8(f) from any person who was not guilty of such fraudulent misrepresentation. Each indemnifying party’s obligation to make a contribution pursuant to this Section 8(f) shall be individual, not joint, and in no event shall the liability of the Subscriber under this Section 8(f) be greater in amount than the dollar amount of the net proceeds received by the Subscriber upon the sale of the Subscriber Shares giving rise to such indemnification obligation.
(g) Any person entitled to indemnification herein shall (1) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (2) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent. An indemnifying party who elects not to assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
(h) The indemnification provided for under this Subscription Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person of such indemnified party and shall survive the transfer of the Subscriber Shares purchased pursuant to this Subscription Agreement.
9. Trust Account Waiver. The Subscriber hereby represents and warrants that it has had the opportunity to read the SPAC Prospectus and understands that the Issuer has established a trust account (the “Trust Account”) containing the proceeds of its initial public offering (the “IPO”) and the overallotment shares acquired by its underwriters and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the Issuer’s public stockholders (including overallotment shares acquired by the Issuer’s underwriters, the “Public Stockholders”), and that, except as otherwise described in the SPAC Prospectus, the Issuer may disburse monies from the Trust Account only: (a) to the Public Stockholders in the event they elect to redeem their Shares in connection with the consummation of the Issuer’s initial business
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combination (as such term is used in the SPAC Prospectus) (the “Business Combination”) or in connection with an extension of its deadline to consummate a Business Combination, (b) to the Public Stockholders if the Issuer fails to consummate a Business Combination within 24 months after the closing of the IPO (as may be extended), (c) with respect to any interest earned on the amounts held in the Trust Account, amounts necessary to pay for any taxes and up to $100,000 in dissolution expenses, or (d) to the Issuer after or concurrently with the consummation of a Business Combination. For and in consideration of the Issuer entering into this Subscription Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Subscriber hereby agrees that notwithstanding anything to the contrary contained in this Subscription Agreement, Subscriber does not now and shall not at any time hereafter have, and waives any and all right, title and interest, or any claims of any kind it has or may have in the future as a result of, or arising out of, this Subscription Agreement, the transactions contemplated hereby or the Subscriber Shares, in or to any monies held in the Trust Account (or any distributions therefrom directly or indirectly to Public Stockholders (“Public Distributions”), and agrees not to seek recourse or make or bring any action, suit, claim or other proceeding against the Trust Account or Public Distributions as a result of, or arising out of, this Subscription Agreement, the transactions contemplated hereby or the Subscriber Shares, regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability. To the extent the Subscriber commences any action or proceeding based upon, in connection with, as a result of or arising out of, this Subscription Agreement, the transactions contemplated hereby or the Subscriber Shares, which proceeding seeks, in whole or in part, monetary relief against the Issuer or its Representatives, the Subscriber hereby acknowledges and agrees that the Subscriber’s sole remedy shall be against funds held outside of the Trust Account (other than Public Distributions) and that such claim shall not permit the Subscriber (or any person claiming on its behalf or in lieu of any of it) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. Notwithstanding anything else in this Section 9 to the contrary, nothing herein shall be deemed to limit the Subscriber’s right, title, interest or claim to the Trust Account by virtue of the Subscriber’s record or beneficial ownership of Shares other than pursuant to this Subscription Agreement, including but not limited to any redemption right with respect to any such securities of the Issuer. For purposes of this Subscription Agreement, “Representatives” with respect to any person shall mean such person’s affiliates and its and its affiliate’s respective directors, officers, employees, consultants, advisors, agents and other representatives.
10. Miscellaneous.
(a) Transferability. Neither this Subscription Agreement nor any rights that may accrue to the Subscriber hereunder (other than the Subscriber Shares acquired hereunder, if any, subject to applicable securities laws) may be transferred or assigned by the Subscriber without the prior written consent of the Issuer, and any purported transfer or assignment without such consent shall be null and void ab initio. Notwithstanding the foregoing, prior to the Closing the Subscriber may assign all of its rights and obligations under this Subscription Agreement to an affiliate of the Subscriber, or to any fund or account managed by the same investment manager as Subscriber, that is an Accredited Investor or a QIB and is also an Institutional Account, so long as the Subscriber provides the Issuer with at least three (3) Business Days’ prior written notice of such assignment and a completed Investor Questionnaire duly executed by such assignee; provided, further that (i) such assignee will be deemed to have made to the Issuer each of the representations, warranties and covenants of the Subscriber set forth in Section 5 as of the date of such assignment and as of the Closing Date, and (ii) no such assignment by the Subscriber will relieve the Subscriber of its obligations under this Subscription Agreement, and the Subscriber will remain secondarily liable under this Subscription Agreement for the obligations of the assignee hereunder.
(b) Reliance. The Subscriber acknowledges that the Issuer, the Placement Agents and the Company will rely on the acknowledgments, understandings, agreements, representations and warranties of the Subscriber contained in this Subscription Agreement, provided, however, that the Closing may only be enforced against the Subscriber by the Issuer. Prior to the Closing, the Subscriber agrees to promptly notify the Issuer if any of the acknowledgments, understandings, agreements, representations and warranties set forth herein are no longer accurate in any material respect and which would cause any of the conditions to Closing in Sections 3(a) or 3(b) to not be satisfied. The Issuer is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby. The Issuer acknowledges that the Subscriber will rely on the acknowledgments, understandings, agreements, representations and warranties of the Issuer contained in this Subscription Agreement. Prior to the Closing, the Issuer agrees that it will promptly notify the Subscriber if any of its acknowledgments, understandings, agreements, representations and warranties set forth herein are no longer accurate in any material respect and which would cause
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any of the conditions to Closing in Sections 3(a) or 3(c) to not be satisfied. The Subscriber is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
(c) Survival. All the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.
(d) Amendments and Waivers. This Subscription Agreement may not be amended, modified or waived except by an instrument in writing, signed by the party against whom enforcement of such amendment, modification or waiver is sought. Section 4, Section 5 this Section 10(d), Section 10(o) and Section 11 may not be amended, modified, terminated or waived in any manner that is material and adverse to a Placement Agent without the written consent of such Placement Agent.
(e) Entire Agreement. This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof (other than any confidentiality agreement entered into by the or the Issuer and the Subscriber in connection with the Offering).
(f) Successors and Assigns. This Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
(g) Severability. If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).
(h) Counterparts. This Subscription Agreement may be executed and delivered in one or more counterparts (including by facsimile, electronic mail or in .pdf (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com)) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
(i) Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to equitable relief, including an injunction or injunctions, to prevent breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise. Each party hereto further agrees that none of the parties hereto or the Placement Agent or the Company shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 10(i), and each party hereto irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
(j) GOVERNING LAW AND JURY TRIAL. THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD OTHERWISE REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER STATE. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION PURSUANT TO THIS SUBSCRIPTION AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
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(k) Venue. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the United States District Court for the Southern District of New York or, if there is no federal jurisdiction, in the state courts sitting in New York County in the State of New York (the “Chosen Court”) for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action, suit or proceeding relating thereto except in such courts). Each party hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the Chosen Court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. To the extent it has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Subscriber hereby irrevocably waives such immunity in respect of its obligations with respect to this Agreement.
(l) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered by facsimile or email, with affirmative confirmation of receipt, (iii) one (1) Business Day after being sent, if sent by reputable, internationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, prepaid and return receipt requested, in each case to the applicable party at the addresses set forth on the applicable signature pages hereto.
(m) Headings and Certain Defined Terms. The headings set forth in this Subscription Agreement are for convenience of reference only and shall not be used in interpreting this Subscription Agreement. In this Subscription Agreement, unless the context otherwise requires: (i) whenever required by the context, any pronoun used in this Subscription Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; and (iii) the words “herein”, “hereto” and “hereby” and other words of similar import in this Subscription Agreement shall be deemed in each case to refer to this Subscription Agreement as a whole and not to any particular portion of this Subscription Agreement, and references to any Section or Subsection shall refer to the numbered and lettered Sections and Subsections of this Agreement. As used in this Subscription Agreement, the term: (x) “Business Day” shall mean any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York are authorized to close for business (excluding as a result of “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems, including for wire transfers, of commercially banking institutions in New York, New York are generally open for use by customers on such day); (y) “person” shall refer to any individual, corporation, partnership, trust, limited liability company or other entity or association, including any governmental or regulatory body, whether acting in an individual, fiduciary or any other capacity; and (z) “affiliate” shall mean, with respect to any specified person, any other person or group of persons acting together that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with such specified person (where the term “control” (and any correlative terms) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract or otherwise). For the avoidance of doubt, any reference in this Subscription Agreement to an affiliate of the Issuer will include the Issuer’s sponsor, ISOS Acquisition Sponsor LLC.
(n) Further Assurances. At Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as the parties may reasonably deem necessary in order to consummate the Offering as contemplated by this Subscription Agreement.
(o) Third Party Beneficiaries. The parties hereto agree that (a) the Placement Agents are express third-party beneficiary of the representations, warranties and covenants of the Issuer contained in Section 4 and the representations, warranties and convents of the Subscriber contained in Section 5, and its express rights set forth in Section 10(d), this Section 10(o) and Section 11 and (b) the Company shall be, after the Closing, an express third-party beneficiary of this Agreement. Except for the foregoing, this Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successors and assigns.
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11. Non-Reliance and Exculpation. The Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person other than the statements, representations and warranties contained in this Subscription Agreement in making its investment or decision to invest in the Issuer. The Subscriber agrees that neither (i) any Other Subscriber pursuant to the Other Subscription Agreements (including the controlling persons, members, officers, directors, partners, agents, or employees of any such Other Subscriber) nor (ii) the Placement Agent, its affiliates or any of its or its affiliates’ respective control persons, officers, directors or employees, shall be liable to the Subscriber pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Subscriber Shares.
12. Several not Joint. The obligations of Subscriber under this Subscription Agreement are several and not joint with the obligations of any Other Subscriber or any other investor under the Other Subscription Agreements, and Subscriber shall not be responsible in any way for the performance of the obligations of any Other Subscriber under any Other Subscription Agreement or any other investor under the Other Subscription Agreements. Nothing contained herein or in any Other Subscription Agreement, and no action taken by Subscriber or any Other Subscriber or other investor pursuant hereto or thereto, shall be deemed to constitute Subscriber and any Other Subscribers or other investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that Subscriber and any Other Subscribers or other investors are in any way acting in concert or as a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to such obligations or the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements. Subscriber acknowledges that no Other Subscriber has acted as agent for Subscriber in connection with making its investment hereunder and no Other Subscriber will be acting as agent of Subscriber in connection with monitoring its investment in the Subscriber Shares or enforcing its rights under this Subscription Agreement.
{SIGNATURE PAGES FOLLOW}
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IN WITNESS WHEREOF, the parties hereto have caused this Subscription Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
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ISOS ACQUISITION CORPORATION
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By:
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Name:
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Title:
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Address for Notice:
Isos Acquisition Corporation
55 Post Road W, Suite 200
Westport, CT 06880
Attention: Winston Meade
Email: wmeade@isoscap.com
Copy to:
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004
Attention: Anson Frelinghuysen
Email: anson.frelinghuysen@hugheshubbard.com
[Signature Page to PIPE Subscription Agreement]
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{SUBSCRIBER SIGNATURE PAGE TO THE SUBSCRIPTION AGREEMENT}
IN WITNESS WHEREOF, the undersigned has caused this Subscription Agreement to be duly executed by its authorized signatory as of the date first indicated above.
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Name(s) of Subscriber:
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Signature of Authorized Signatory of Subscriber:
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Name of Authorized Signatory:
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Title of Authorized Signatory:
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Address for Notice to Subscriber:
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Attention:
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Email:
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Facsimile No.:
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Telephone No.:
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Address for Delivery of Subscriber Shares to Subscriber (if not same as address for notice):
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Subscription Amount:
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$
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Number of Subscriber Shares:
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EIN Number:
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Jurisdiction of Organization of Subscriber (country and/or state):
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Name of Account Nominee (if different than Name of Subscriber):
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[Signature Page to PIPE Subscription Agreement]
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Exhibit A
Accredited Investor Questionnaire
Capitalized terms used and not defined in this Exhibit A shall have the meanings given in the Subscription Agreement to which this Exhibit A is attached.
The undersigned represents and warrants that the undersigned is an “institutional account” as such term is defined in FINRA Rule 4512(c).
The undersigned represents and warrants that the undersigned is an “accredited investor” as such term is defined in Rule 501(a) (1), (2), (3), (7) or (9) of Regulation D under the U.S. Securities Act of 1933, as amended (the “Securities Act”), for one or more of the reasons specified below (please check all boxes that apply):
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(i)
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A bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity;
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(ii)
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A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
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(iii)
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An investment adviser registered pursuant to section 203 of the Investment Advisers Act of 1940 (the “Investment Advisers Act”) or registered pursuant to the laws of a state, or an investment adviser relying on the exemption from registering with the Commission under the section 203(l) or (m) of the Investment Advisers Act;
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(iv)
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An insurance company as defined in section 2(13) of the Exchange Act;
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(v)
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An investment company registered under the Investment Company Act or a business development company as defined in Section 2(a)(48) of that Act;
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(vi)
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A Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958;
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(vii)
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A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state, or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000;
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(viii)
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An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors;
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(ix)
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A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;
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(x)
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An organization described in Section 501(c)(3) of the Internal Revenue Code, or a corporation, business trust, partnership, or limited liability company, or any other entity not formed for the specific purpose of acquiring the securities, with total assets in excess of $5,000,000;
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(xi)
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A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities, whose purchase is directed by a sophisticated person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of investing in the Issuer;
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(xii)
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an entity in which all of the equity owners are “accredited investors”;
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(xiii)
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An entity, of a type not listed in any of the foregoing paragraphs, not formed for the specific purpose of acquiring the securities and owning investments in excess of $5,000,000; and/or
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(xiv)
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The Subscriber does not qualify under any of the investor categories set forth in (i) through (xiii) above.
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Annex D-22
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2.1
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Type of the Subscriber. Indicate the form of entity of the Subscriber:
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☐
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Limited Partnership
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Annex D-23
Table of Contents
Annex E
SUBSCRIPTION AGREEMENT
July 1, 2021
ISOS Acquisition Corporation
55 Post Road W, Suite 200
Westport, CT 06880
Bowlero Corp.
222 W 44th Street
New York, NY 10036
Ladies and Gentlemen:
This Subscription Agreement (this “Subscription Agreement”) is entered into this 1st day of July, 2021, by and among ISOS Acquisition Corporation, a Cayman Islands exempted company (including any successor thereto pursuant to the terms of the Transaction Agreement (as defined hereafter), the “Issuer”), and the undersigned (the “Subscriber”).
The Issuer has entered into a Business Combination Agreement dated as of the date hereof (the “Transaction Agreement” and the transactions contemplated thereby, the “Transactions”), by and between the Issuer and Bowlero Corp., a Delaware corporation (the “Company”), pursuant to which, among other things the Company will merge with and into the Issuer (the “Merger”), with the Issuer surviving the Merger.
In connection with the Transaction Agreement, the Issuer is seeking commitments to purchase Series A convertible preferred stock of the Issuer, par value $0.0001 per share (the “Preferred Shares”), with the terms set forth in the certificate of designations attached hereto as Exhibit A, for a purchase price of $1,000.00 per share (the “Purchase Price”), in a private placement to be conducted by the Issuer (the “Offering”).
On even date herewith, the Issuer is entering into subscription agreements substantially similar to this Subscription Agreement (the “Other Subscription Agreements” and together with this Subscription Agreement, the “Subscription Agreements”) with certain other subscribers (the “Other Subscribers”), pursuant to which the Other Subscribers, severally and not jointly, have agreed to purchase in the Offering, effective on the closing date of the Transactions, inclusive of the Preferred Shares to be purchased by the undersigned, an aggregate of 95,000 Preferred Shares, at the Purchase Price. In connection therewith, the undersigned subscriber (“Subscriber”) and the Issuer agree as follows:
1. Subscription. Subscriber hereby subscribes for and agrees to purchase from the Issuer, and the Issuer agrees to issue and sell to Subscriber, such number of Preferred Shares as is set forth on the signature page of this Subscription Agreement (the “Subscriber Preferred Shares” and the Class A Common Shares (as hereafter defined) into which such Subscriber Preferred Shares are convertible, the “Underlying Common Shares”) at the Purchase Price per Subscriber Preferred Share and on the terms provided for herein.
2. Closing; Delivery of the Subscriber Preferred Shares.
(a) The closing of the sale of the Subscriber Preferred Shares contemplated hereby (the “Closing”, and the date that the Closing actually occurs, the “Closing Date”) is contingent upon the substantially concurrent consummation of the Transactions (the “Transaction Closing”). The Closing shall occur on the date of but immediately prior to the consummation of the Merger (it being understood that the sale of the Subscriber Preferred Shares shall occur immediately after the Domestication).
(b) At least five (5) Business Days (as defined below) before the anticipated Closing Date, the Issuer shall deliver written notice to the Subscriber (the “Closing Notice”) specifying (i) the anticipated Closing Date and (ii) the wire instructions for delivery of the Purchase Price to the Issuer. No later than two (2) Business Days after delivery of the Closing Notice, the Subscriber shall deliver to the Issuer such information as is reasonably requested in the Closing Notice in order for the Issuer to issue the Subscriber Preferred Shares to the Subscriber. No later than noon (Eastern time) two (2) Business Days prior to the Closing Date, Subscriber shall deliver the Purchase Price by wire transfer of United States dollars in immediately available funds to the account specified by the Issuer in the Closing Notice, such funds to be held by the Issuer in escrow until the Closing. The Issuer shall deliver to Subscriber (i) at the
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Closing, the Subscriber Preferred Shares in book entry form, free and clear of any liens or other restrictions (other than those arising under state or federal securities laws), in the name of the Subscriber (or its nominee in accordance with its delivery instructions) or to a custodian designated by the Subscriber, as applicable, and (ii) as promptly as reasonably practicable after the Closing, evidence from the Issuer’s transfer agent of the issuance to Subscriber of the Subscriber Preferred Shares (in book entry form) on and as of the Closing Date. In the event that the consummation of the Merger does not occur within two (2) Business Days after the anticipated Closing Date specified in the Closing Notice, unless otherwise agreed to in writing by the Issuer and the Subscriber, the Issuer shall promptly (but in no event later than three (3) Business Days after the anticipated Closing Date specified in the Closing Notice) return the Purchase Price so delivered by Subscriber to the Issuer by wire transfer in immediately available funds to the account specified in writing by Subscriber, and any book entries shall be deemed cancelled. Notwithstanding such return or cancellation, unless and until this Subscription Agreement is terminated in accordance with Section 7 herein and subject to the satisfaction of the closing conditions set forth in Section 3 herein, Subscriber shall remain obligated (A) to redeliver funds to the Issuer in escrow following the Issuer’s delivery to Subscriber of a new Closing Notice and (B) to consummate the Closing immediately prior to the consummation of the Merger. For the avoidance of doubt, if any termination hereof occurs after the delivery by Subscriber of the Purchase Price for the Subscriber Preferred Shares, the Issuer shall promptly (but not later than three (3) Business Days thereafter) return the Purchase Price to Subscriber without any deduction for or on account of any tax, withholding, charges or set-off.
3. Closing Conditions. In addition to the conditions set forth in Section 2:
(a) General Conditions. The Closing is also subject to the satisfaction or valid waiver in writing by each party of the conditions that, on the Closing Date:
(i) no suspension of the qualification of the Common Shares for offering or sale or trading in any jurisdiction, or initiation or threatening of any proceedings for any of such purposes, shall have occurred;
(ii) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated by this Subscription Agreement illegal or otherwise preventing or prohibiting consummation of the transactions contemplated by this Subscription Agreement; and
(iii) all conditions precedent to each party’s obligation to effect the Transactions set forth in the Transaction Agreement, including all necessary approvals of the Issuer’s stockholders and regulatory approvals, if any, shall have been satisfied or waived (as determined by the parties to the Transaction Agreement and other than those conditions that, by their nature, (x) may only be satisfied at the Transaction Closing (including to the extent that any such condition is dependent upon the consummation of the purchase and sale of Preferred Shares pursuant to this Subscription Agreement and the Other Subscription Agreements), but subject to the satisfaction or waiver of such conditions as of the Transaction Closing, or (y) will be satisfied by the Closing and the closing of the transactions contemplated by the Other Subscription Agreements), and the Merger shall be scheduled to occur immediately following the Closing.
(b) Issuer Conditions. The obligations of the Issuer to consummate the Closing are also subject to the satisfaction or valid waiver by the Issuer of the additional conditions that, on the Closing Date:
(i) all representations and warranties of the Subscriber contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality, which representations and warranties shall be true and correct in all respects) at and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality, which representations and warranties shall be true and correct in all respects) as of such date), and consummation of the Closing, shall constitute a reaffirmation by the Subscriber of each of the representations, warranties and agreements of the Subscriber contained in this Subscription Agreement as of the Closing Date or as of such specific date, as applicable; and
(ii) the Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to Closing.
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(c) Subscriber Conditions. The obligations of the Subscriber to consummate the Closing are also subject to the satisfaction or valid waiver by the Subscriber of the additional conditions that, on the Closing Date:
(i) all representations and warranties of the Issuer contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or an Issuer MAE (as defined herein), which representations and warranties shall be true and correct in all respects) at and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Issuer MAE, which representations and warranties shall be true and correct in all respects) as of such date), and consummation of the Closing, shall constitute a reaffirmation by the Issuer of its representations, warranties and agreements contained in this Subscription Agreement as of the Closing Date or as of such specific date, as applicable;
(ii) the Issuer shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to Closing;
(iii) no amendment to, or modification or waiver of, the Transaction Agreement (as the same exists on the date hereof as provided to the Subscriber) shall have occurred that would reasonably be expected to materially and adversely affect the economic benefits that the Subscriber would reasonably expect to receive under this Subscription Agreement; and
(iv) the Underlying Common Shares shall be approved for listing on the Nasdaq Stock Market LLC (“Nasdaq”) or the New York Stock Exchange (“NYSE”), as applicable, subject to official notice of issuance; and
(v) the Issuer shall not have entered into any Other Subscription Agreement with a lower purchase price than $1,000 per Preferred Share or other terms (economic or otherwise) substantially more favorable to such Other Subscriber than as set forth in this Subscription Agreement.
4. Issuer Representations and Warranties. The Issuer represents and warrants to the Subscriber that:
(a) Organization and Qualification. Prior to the Domestication, the Issuer is an exempted company limited by shares incorporated under the laws of the Cayman Islands duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Issuer has the corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. As of the Closing Date, following the Domestication, the Issuer will be duly incorporated, validly existing as a corporation and in good standing under the laws of the State of Delaware.
(b) Authorization; Enforcement. This Subscription Agreement has been duly authorized, executed and delivered by the Issuer, constitutes a valid and binding obligation of the Issuer and is enforceable against the Issuer in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
(c) Issuance. As of the Closing Date, the Subscriber Preferred Shares will be duly authorized and, when issued and delivered to the Subscriber against full payment therefor in accordance with the terms of this Subscription Agreement, the Subscriber Preferred Shares will be validly issued, fully paid and non-assessable, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s certificate of incorporation (as in effect at such time of issuance), by contract, or under the Delaware General Corporation Law. The Underlying Common Shares issuable upon conversion of the Subscriber Preferred Shares, when issued in accordance with the terms of the Preferred Shares, will be validly issued, fully paid and non-assessable, free and clear of any liens or other encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s certificate of incorporation (as in effect at such time of issuance), by contract, or under the Delaware General Corporation Law.
(d) No Conflicts. The execution, delivery and performance by the Issuer of this Subscription Agreement (including the issuance and sale of the Subscriber Preferred Shares by the Issuer), and the consummation of the transactions contemplated hereby, will not (i) conflict with or result in a material breach or material violation of any
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of the terms or provisions of, or constitute a material default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, license, lease or any other agreement or instrument to which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer is subject, which would have a material adverse effect on (A) the business, properties, assets, liabilities, operations, condition (including financial condition), stockholders’ equity or results of operations of the Issuer or the combined company after giving effect to Transactions, (B) the validity of the Subscriber Shares, or (C) the legal authority or ability of the Issuer to timely comply, in all material respects, with its obligations under the Transaction Agreement, this Subscription Agreement or the Other Subscription Agreements, including the issuance and sale of the Subscriber Shares (an “Issuer MAE”), (ii) result in any violation of the provisions of the organizational documents of the Issuer; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that would have an Issuer MAE.
(e) Filings, Consents and Approvals. Assuming the accuracy of the representations and warranties of the Subscriber, the Issuer is not required to obtain any consent, waiver, authorization, approval or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by the Issuer of this Subscription Agreement (including, without limitation, the issuance of the Subscriber Preferred Shares), other than (i) the filing with the Commission of a registration statement pursuant to Section 8, (ii) the filings required by applicable state or federal securities laws, (iii) the filings required in accordance with Section 6(c), (iv) any filings or notices required by the NYSE, (v) those required to consummate the Transactions as provided under the Transaction Agreement, (vi) the filing of notification under HSR, if applicable, and (vii) any consent, waiver, authorization or order of, notice to, or filing or registration, the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, an Issuer MAE.
(f) Capitalization. As of the date of this Subscription Agreement, the authorized capital stock of the Issuer consists of (i) 300,000,000 Class A ordinary shares, par value $0.0001 per share (such Class A ordinary shares, and the Class A common stock into which such shares will be converted in connection with the Domestication, the “Class A Common Shares”), (ii) 20,000,000 Class B ordinary shares, par value of $0.0001 per share (such Class B ordinary shares, and the Class B common stock into which such shares will be converted in connection with the Domestication “Class B Common Shares” and together with the Class A Common Shares, the “Common Shares”), and (iii) 1,000,000 preferred shares, par value $0.0001 per share. As of the date of this Subscription Agreement, (A) 25,483,700 Class A ordinary shares are issued and outstanding, (B) 6,370,925 Class B ordinary shares are issued and outstanding, (C) 8,494,566 redeemable public warrants to purchase Class A ordinary shares are issued and outstanding, (D) 5,397,828 private placement warrants to purchase Class A ordinary shares are issued and outstanding, and (E) no preferred shares are issued or outstanding. All (1) issued and outstanding Class A Common Shares and Class B Common Shares have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (2) outstanding warrants have been duly authorized and validly issued and are not subject to preemptive rights. Except as set forth above and pursuant to the Transaction Agreement and the other agreements and arrangements referred to therein or in the SEC Reports (as defined below), as of the date hereof, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Issuer any Preferred Shares or other equity interests in the Issuer, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, the Issuer has no subsidiaries, and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than (1) as set forth in the SEC Reports and (2) as contemplated by the Transaction Agreement. There are no securities or instruments by or to which the Issuer is a party containing anti-dilution or similar provisions that will be triggered by the issuance of the Subscriber Preferred Shares or any Preferred Shares issued pursuant to the Other Subscription Agreements, in each case, that have not been or will not be validly waived on or prior to the Closing Date.
(g) Registration of Common Stock. As of the date of this Agreement, the issued and outstanding Class A Common Shares of the Issuer are registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and are listed for trading on the NYSE under the symbol “ISOS.” Following the Domestication, the Class A Common Shares are expected to be registered under the Exchange Act. There is no suit,
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action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the Securities and Exchange Commission (the “Commission”) with respect to any intention by such entity to deregister the Class A Common Shares or prohibit or terminate the listing of the Class A Common Shares on the NYSE.
(h) Regulatory Actions. Except for such matters as have not had and would not be reasonably be expected to have, individually or in the aggregate, an Issuer MAE, there is no (i) action, suit, claim or other proceeding, in each case by or before any governmental authority pending, or, to the knowledge of the Issuer, threatened against the Issuer, or (ii) judgment, decree, injunction, ruling or order of any governmental entity outstanding against the Issuer.
(i) Compliance. The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer MAE. The Issuer has not received any written communication from a governmental entity that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not, individually or in the aggregate, be reasonably expected to have an Issuer MAE. The Issuer is not in default or violation (and no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation) of any term, condition or provision of (i) the organizational documents of the Issuer, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, permit, franchise or license to which the Issuer is now a party or by which the Issuer’s properties or assets are bound, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties, except, in the case of clauses (ii) and (iii), for defaults or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, an Issuer MAE.
(j) Broker Fees. The Issuer has not entered into any agreement or arrangement entitling any agent, broker, investment banker, financial advisor or other person to any broker’s or finder’s fee or any other commission or similar fee in connection with the transactions contemplated by this Subscription Agreement for which the Subscriber could become liable. Other than compensation to be paid to the Placement Agents (as defined below), the Issuer is not aware of any person that has been or will be paid (directly or indirectly) remuneration for solicitation of the Subscriber in connection with the sale of any Preferred Shares in the Offering.
(k) SEC Reports; Financial Statements. As of their respective dates, all forms, reports, statements, schedules, proxies, registration statements and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Reports”) complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Exchange Act and the rules and regulations of the Commission promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Issuer included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of the Issuer as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. Except for the Issuer’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2021, the Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its initial registration of the Class A Common Shares with the Commission. A copy of each SEC Report is available to the Subscriber via the Commission’s EDGAR system. There are no outstanding or unresolved comments in comment letters received by the Issuer from the staff of the Division of Corporation Finance of the Commission with respect to any of the SEC Reports. Notwithstanding anything in this Subscription Agreement to the contrary, no representation or warranty is made as to the accounting treatment of the Issuer’s issued and outstanding warrants, or as to any deficiencies in disclosure (including with respect to internal control over financial reporting or disclosure controls and procedures). Furthermore, Subscriber acknowledges and agrees that (i) the Staff of the SEC issued the Staff Statement on Accounting and Reporting Considerations for Warrants Issued by Special Purpose Acquisition Companies on April 12, 2021 (the “Statement”), (ii) the Issuer continues to review the Statement and its implications, including on the financial statements and other information included in its SEC Reports and (iii) any restatement, revision or other modification of the SEC Reports or any statements or information included therein in connection with such a review of the Statement or any subsequent related agreements or other guidance from the Staff of the SEC related thereto shall be deemed not to be material for purposes of this Subscription Agreement.
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(l) Investment Company. The Issuer is not, and immediately after receipt of payment for the Preferred Shares being sold in the Offering, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(m) Private Placement. Assuming the accuracy of the Subscriber’s representations and warranties set forth in Section 5, in connection with the offer, sale and delivery of the Subscriber Preferred Shares in the manner contemplated by this Subscription Agreement, it is not necessary to register the Subscriber Preferred Shares under the Securities Act. The Subscriber Preferred Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
(n) No Side Letters. Other than the Other Subscription Agreements and the Transaction Agreement, the Issuer has not entered into any subscription agreement, side letter or similar agreement with any Other Subscriber in connection with such Other Subscriber’s investment in the Issuer through the Offering, except for side letters required to comply with an Other Subscriber’s policies and procedures, or rules and regulations applicable to the Other Subscriber. No Other Subscription Agreement includes terms and conditions that are materially more advantageous to any such Other Subscriber than the Subscriber hereunder (other than terms particular to the regulatory requirements of such subscriber or its affiliates or related funds), and such Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement to include any such terms and conditions. The Issuer has not entered into any side letter with any Public Stockholder in connection with their ownership of Class A Common Shares purchased in connection with the Issuer’s initial public offering pursuant to which such Public Stockholder has been granted redemption rights not granted to all Public Stockholders.
(o) No Bankruptcy. Neither the Issuer nor any of its subsidiaries, if any, has not taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation, administration or winding up or failed to pay its debts when due, nor does the Issuer or any subsidiary (if any), have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or seek to commence an administration.
(p) Anti-Money Laundering Laws. The operations of the Issuer and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable anti-money laundering statutes of all jurisdictions where the Issuer or any of its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”); and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
(q) Sanctions. Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent, employee or affiliate of the Issuer or any of its subsidiaries is an individual or entity (a “Person”) that is, or is owned or controlled by a Person that is, currently the subject or target of any sanctions administered or enforced by the United States government (including, without limitation, the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or the U.S. Department of State and including, without limitation, the designation as a “specifically designated national” or “blocked person”, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Issuer or any of its subsidiaries located, organized or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Sudan and Syria (each, a “Sanctioned Country”). Since the Issuer’s inception, the Issuer and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
5. Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Issuer that:
(a) Subscriber Status. At the time the Subscriber was offered the Subscriber Preferred Shares, it was, and as of the date hereof, the Subscriber is (i) an “accredited investor” (within the meaning of Rule 501 of Regulation D under the Securities Act) (an “Accredited Investor”) or a Qualified Institutional Buyer (as defined in 144A of the Securities Act) (a “QIB”), as indicated in the questionnaire attached as Exhibit B hereto (an “Investor Questionnaire”),
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(ii) an “institutional account”, as defined in FINRA Rule 4512(c) (an “Institutional Account”), (iii) a sophisticated institutional investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including its participation in the Transactions and (iv) acquiring the Subscriber Preferred Shares only for its own account and not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Subscriber Preferred Shares.
(b) Nature of Investment. The Subscriber understands that the Subscriber Preferred Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscriber Preferred Shares delivered at the Closing have not been registered under the Securities Act. The Subscriber understands that the Subscriber Preferred Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates (if any) or any book-entry shares representing the Subscriber Preferred Shares delivered at the Closing shall contain a legend or restrictive notation to such effect, and as a result of such restrictions, the Subscriber may not be able to readily resell the Subscriber Preferred Shares and may be required to bear the financial risk of an investment in the Subscriber Preferred Shares for an indefinite period of time. The Subscriber acknowledges that the Subscriber Preferred Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Subscriber Preferred Shares.
(c) Authorization and Enforcement. The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound which would reasonably be expected to have an adverse effect on the legal authority of the Subscriber to enter into and perform its obligations under this Subscription Agreement, and will not violate any provisions of the Subscriber’s charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation.
(d) Other Representations. The Subscriber understands and agrees that the Subscriber is purchasing the Subscriber Preferred Shares directly from the Issuer. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by or on behalf of the Issuer, the Company, the Placement Agents, or any of their respective officers or directors, expressly (other than those representations, warranties, covenants and agreements made by the Issuer in this Subscription Agreement) or by implication, other than the representations, warranties, covenants and agreements herein.
(e) Tax Treatment. The Subscriber’s acquisition and holding of the Subscriber Preferred Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law.
(f) Receipt of Disclosure. The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Subscriber Preferred Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received (or in the case of documents filed with the Commission, had access to) the following items
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(collectively, the “Disclosure Documents”): (i) the final prospectus of the Issuer, dated as of March 4, 2021 and filed with the Commission (File No. 333-252283) on March 4, 2021 (the “SPAC Prospectus”), (ii) each filing made by the Issuer with the Commission following the filing of the SPAC Prospectus through the date of this Subscription Agreement, (iii) the Transaction Agreement, a copy of which will be filed by the Issuer with the Commission and (iv) the investor presentation by the Issuer and the Company, a copy of which will be furnished by the Issuer to the Commission. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the opportunity to ask the Issuer’s management questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscriber Preferred Shares.
(g) No General Solicitation. The Subscriber became aware of this Offering of the Subscriber Preferred Shares solely by means of direct contact between the Subscriber and the Issuer, the Company, a Placement Agent or a representative of any of the foregoing, and the Subscriber Preferred Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Issuer, the Company, a Placement Agent or a representative of any of the foregoing. The Subscriber acknowledges that the Issuer represents and warrants that the Subscriber Preferred Shares (i) were not offered to the Subscriber by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
(h) Investment Risks. The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscriber Preferred Shares, including risks similar to those set forth in the Disclosure Documents and in the Issuer’s filings with the Commission. The Subscriber is a sophisticated institutional investor and is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Subscriber Preferred Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Subscriber Preferred Shares and determined that the Subscriber Preferred Shares are a fit, proper and suitable investment for the Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscriber Preferred Shares. The Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Issuer. The Subscriber acknowledges specifically that a possibility of total loss exists.
(i) Compliance. The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Subscriber Preferred Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the Issuer’s reports, schedules, forms, statements and other documents required to be filed by the Issuer under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof.
(j) OFAC/Patriot Act. The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Subscriber Preferred Shares were legally derived.
(k) No Reliance on Any Placement Agent. In making its decision to purchase the Subscriber Preferred Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber, the investor presentation provided to Subscriber and the representations and warranties of the Issuer set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information
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provided by J.P. Morgan Securities LLC (“JPM”) or LionTree Advisors LLC (“LionTree” and together with JPM, the “Placement Agents”) concerning the Issuer, the Company, or the Subscriber Preferred Shares, or the offer and sale of the Subscriber Preferred Shares. No disclosure or offering document has been provided by any Placement Agent in connection with the offer and sale of the Subscriber Preferred Shares. The Placement Agents and each of its respective members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Subscriber Preferred Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer. In connection with the issue and purchase of the Subscriber Preferred Shares, no Placement Agent has made any recommendations regarding an investment in the Issuer or the Subscriber Preferred Shares. The Subscriber agrees and acknowledges that the Placement Agents are acting as the Issuer’s placement agents in connection with the transactions contemplated by this Subscription Agreement and has not acted as the Subscriber’s financial advisor or fiduciary.
(l) Due Diligence. The Subscriber has (i) received, reviewed and understood the offering materials made available to it in connection with the Transactions, (ii) had the opportunity to ask questions of and receive answers from the Issuer directly and (iii) conducted and completed its own independent due diligence with respect to the Transactions. Based on such information as the Subscriber has deemed appropriate and without reliance upon the Placement Agents, the Subscriber has independently made its own analysis and decision to enter into the Transactions. Except for the representations, warranties and agreements of the Issuer expressly set forth in this Agreement, the Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the securities and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters.
(m) Sufficient Funds. The Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 2(b) on the date the Purchase Price would be required to be funded pursuant to Section 2(b).
(n) Placement Agent. The Subscriber acknowledges and agrees that (a) each of JPM and LionTree is acting solely as the Issuer’s placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for the Subscriber, the Issuer or any other person or entity in connection with the Transactions, (b) each of JPM and LionTree has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Transactions, (c) each of JPM and LionTree will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Issuer or the Transactions, and (d) each of JPM and LionTree shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, the Issuer or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Transactions.
(o) JPM as Advisor to Company and Issuer. The Subscriber (for itself and for each account for which it is acquiring the Subscriber Preferred Shares) acknowledges that it is aware that JPM is acting (i) as one of the Issuer’s placement agents, (ii) as financial advisor to the Company in connection with the Merger and (iii) as capital markets advisor to the Issuer in connection with this Offering.
The Subscriber understands that the foregoing representations and warranties shall be deemed material to and have been relied upon by the Issuer.
6. Additional Covenants
(a) Transfer Restrictions.
The Subscriber Preferred Shares (and the Underlying Common Shares) may only be resold, transferred, pledged or otherwise disposed of in compliance with state and federal securities laws. The Issuer shall use commercially reasonable efforts to cause the removal of all restrictive legends from all Preferred Shares upon the receipt of a representation by the holder that the Preferred Shares are being sold pursuant in compliance with federal and state securities laws without the necessity of the holder to produce a separate third party legal opinion.
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Additionally, the Issuer shall use commercially reasonable efforts to cause the removal of all restrictive legends from all Underlying Common Shares once the Underlying Common Shares are registered under the Registration Statement upon the receipt of a representation by the holder that it will only sell such shares pursuant to (i) the Registration Statement or another an effective resale registration statement covering the holder’s resale of the Underlying Common Shares, which includes a prospectus that is current, and in the manner contemplated by such registration statement, including the “Plan of Distribution” contained therein, and that the holder will not sell such Underlying Common Shares pursuant to such registration statement if it has received oral or written notice from the Company that use of the prospectus is suspended or that the prospectus otherwise may not be used for transfers of the Shares or (ii) the requirements of Rule 144 under the Securities Act or otherwise in accordance with the Securities Act.
(i) The Issuer acknowledges and agrees that the Subscriber may from time to time after the Closing pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Subscriber Preferred Shares (or the Underlying Common Shares) to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, the Subscriber may transfer pledged or secured Subscriber Preferred Shares (or, following conversion, Underlying Common Shares) to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Issuer and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith; further, no notice shall be required of such pledge; provided that the Subscriber and its pledgee shall be required to comply with other provisions of this Section 6 in order to effect a sale, transfer or assignment of Subscriber Preferred Shares (or Underlying Common Shares) to such pledgee. At the Subscriber’s expense, the Issuer will execute and deliver such reasonable documentation as a pledgee or secured party of the Subscriber Preferred Shares may reasonably request in connection with a pledge or transfer of the Subscriber Preferred Shares (or Underlying Common Shares).
(ii) The Subscriber agrees to the imprinting, so long as is required by this Section 6(a), of a legend on any of the Subscriber Preferred Shares (and any Underlying Common Shares) in the following form:
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE FEDERAL, STATE AND FOREIGN SECURITIES LAWS. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
(iii) Subject to Section 6(a) hereof, the Subscriber agrees with the Issuer that the Subscriber will only sell Subscriber Preferred Shares (and any Underlying Common Shares) pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that, if Subscriber Preferred Shares (or Underlying Common Shares) are sold pursuant to a registration statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from instruments representing Subscriber Preferred Shares (or Underlying Common Shares) as set forth in this Section 6 is predicated upon the Issuer’s reliance upon this understanding.
(b) Furnishing of Information; Public Information. Until the second (2nd) anniversary of the Closing Date, the Issuer covenants to maintain the registration of the Common Shares under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Issuer after the effective date of registration of the Common Shares pursuant to the Exchange Act.
(c) Public Disclosure. The Issuer shall (a) by 9:30 a.m. ET on the first Business Day following the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby (“Disclosure Time”), and (b) file a Current Report on Form 8-K, including the Transaction Agreement and the investor presentation provided to Subscriber, or the material non-public information contained therein, as exhibits
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thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Issuer represents to the Subscriber that it shall have publicly disclosed all material, non-public information delivered to the Subscriber by or on behalf of the Issuer, the Company or any of their respective officers, directors, employees or agents (including the Placement Agents) in connection with the transactions contemplated by this Subscription Agreement. The Subscriber shall not issue any press release or make any other similar public statement with respect to the transactions contemplated hereby without the prior written consent of the Issuer (such consent not to be unreasonably withheld or delayed). Notwithstanding the foregoing, neither the Issuer nor the Subscriber shall publicly disclose the name of any other party to this Agreement, or include the name of any other party in any filing with the Commission, any regulatory agency the NYSE or Nasdaq, as applicable, without the prior written consent of the party being disclosed, except to the extent such disclosure is required by applicable law, Commission, the NYSE or Nasdaq, as applicable, regulations or at the request of any governmental or regulatory agency or as required by legal process, in which case (to the extent legally permissible) written notice of such disclosure permitted under this clause shall be made to the other party prior to or as soon as reasonably practicable following such disclosure.
(d) Non-Public Information. Following the Disclosure Time or otherwise as required by applicable law, the Issuer covenants and agrees that neither it, nor any other person acting on its behalf, will provide the Subscriber with any information that constitutes material non-public information, unless prior thereto the Subscriber shall have consented in writing to the receipt of such information and agreed with the Issuer, as applicable, to keep such information confidential. The Issuer each understands and confirms that the Subscriber shall be relying on the foregoing covenant in effecting transactions in securities of the Issuer; provided, that each Subscriber shall be solely responsible for its compliance with federal, state and foreign securities laws.
(e) Other Subscription Agreements. No Other Subscription Agreements will be amended in any material respect following the date of this Subscription Agreement, and each Other Subscription Agreement will reflect the same Purchase Price per Preferred Share and terms that are not materially more favorable to such Other Subscriber thereunder than the terms of this Subscription Agreement.
(f) Certain Transactions and Confidentiality. The Subscriber covenants that neither it, nor any affiliate acting on its behalf or pursuant to any understanding with it, has executed or will execute any purchases or sales of any of the Issuer’s securities during the period that commenced at the time that the Subscriber first learned of the transactions contemplated hereunder and ending at such time that the transactions contemplated by this Subscription Agreement are first publicly announced pursuant to the initial press release as described in Section 6(c). The Subscriber covenants that until such time as the transactions contemplated by this Subscription Agreement are publicly disclosed by the Issuer pursuant to the initial press release as described in Section 6(c), the Subscriber will maintain the confidentiality of the existence and terms of the Transactions and the transactions contemplated hereby. Notwithstanding the foregoing and notwithstanding anything contained in this Subscription Agreement to the contrary, the Issuer expressly acknowledges and agrees that (i) the Subscriber makes no representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Issuer after the time that the transactions contemplated by this Subscription Agreement are first publicly announced pursuant to the initial press release as described in Section 6(c), and (ii) the Subscriber shall not be restricted or prohibited from effecting any transactions in any securities of the Issuer in accordance with applicable securities laws from and after the time that the transactions contemplated by this Subscription Agreement are first publicly announced pursuant to the initial press release as described in Section 6(c). Notwithstanding the foregoing, (i) in the case that the Subscriber is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Subscriber’s assets, this Section 6(f) shall only apply with respect to the portfolio manager that made the investment decision to purchase the Preferred Shares covered by this Subscription Agreement and any other portfolio manager that has direct knowledge of this investment and (ii) the representations set forth in this Section 6(f) shall not apply to any other entity, affiliate or client under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the Transactions (including the Subscriber’s controlled affiliates and/or affiliates).
(g) Information Undertaking. The Issuer may request from the Subscriber such additional information as the Issuer may deem reasonably necessary to evaluate the eligibility of the Subscriber to acquire the Subscriber Preferred Shares, and the Subscriber shall provide such information to the Issuer upon such request, and provided that the Issuer agrees to keep confidential any such information provided by the Subscriber.
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(h) No Short Sales. The Subscriber hereby agrees that, from the date of this Agreement until the Closing Date, neither Subscriber nor any person or entity acting on behalf of Subscriber or pursuant to any understanding with Subscriber will engage in any Short Sales with respect to securities of the Issuer. For purposes of this Section 6(h), “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers. Notwithstanding the foregoing, (i) nothing herein shall prohibit other entities under common management with Subscriber that have no knowledge of this Subscription Agreement or of Subscriber’s participation in the Transaction (including Subscriber’s controlled affiliates and/or affiliates) from entering into any Short Sales and (ii) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Subscriber Preferred Shares.
7. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of: (a) the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement; (b) such date and time as the Transaction Agreement is terminated in accordance with its terms (without amendment thereto); c) the event that any conditions contained in Section 3 herein are not satisfied or waived on or prior to the Closing and, as a result thereof, the Subscription and the other transactions contemplated by this Subscription Agreement are not or will not be consummated at the Closing; or (d) written notice by the Issuer to the Subscriber, or the Subscriber to the Issuer, to terminate this Subscription Agreement if the transactions contemplated by this Subscription Agreement are not consummated on or prior to the “Agreement End Date” as defined in the Transaction Agreement, as it may be amended pursuant to the Transaction Agreement; provided that (i) nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and (ii) each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach. The Issuer shall notify the Subscriber of the termination of the Transaction Agreement promptly after the termination of such agreement and the provisions of this Section 7 and Sections 9 and 10 will survive any termination of this Subscription Agreement and continue indefinitely.
8. Registration Rights.
(a) The Issuer agrees that, within thirty (30) calendar days after the Closing Date (the “Filing Date”), the Issuer will file with the Commission (at the Issuer’s sole cost and expense), a registration statement registering the resale of the Underlying Common Shares (the initial registration statement and any other registration statement that may be filed by the Issuer under this Section 8, the “Registration Statement”), and the Issuer shall use its reasonable best efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 60th calendar day (or 90th calendar day if the Commission notifies the Issuer that it will “review” the Registration Statement) following the Transaction Closing and (ii) the 10th Business Day after the date the Issuer is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Date”); provided that if such day falls on a Saturday, Sunday or other day that the Commission is closed, the Effectiveness Date shall be extended to the next Business Day on which the Commission is open for business. The Issuer agrees that the Issuer will cause such Registration Statement or another registration statement (which may be a “shelf” registration statement) to remain effective until the earlier of (i) two (2) years from the issuance of the Subscriber Preferred Shares, (ii) the date on which the Subscriber ceases to hold the Subscriber Preferred Shares (or the Underlying Common Shares), the applicable Underlying Common Shares of which are covered by such Registration Statement, or (iii) the first date on which the Subscriber can sell all of its Subscriber Preferred Shares (or Underlying Common Shares) under Rule 144 of the Securities Act without restriction, including without limitation, any volume or manner of sale restrictions and without the requirement for the Issuer to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable). The Issuer’s obligations to include the Underlying Common Shares in the Registration Statement are contingent upon the Subscriber furnishing in writing to the Issuer such information regarding the Subscriber, the securities of the Issuer held by the Subscriber and the intended method of disposition of the Underlying Common Shares as shall be reasonably requested by the Issuer to effect the registration of the Underlying Common Shares (including disclosure of its beneficial ownership of the
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Subscriber Preferred Shares or the Underlying Common Shares, as determined in accordance with Rule 13d-3 of the Exchange Act), and shall execute such documents in connection with such registration as the Issuer may reasonably request that are customary of a selling stockholder in similar situations, provided that Subscriber shall not in connection with the foregoing be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Subscriber Preferred Shares or the Underlying Common Shares. Any failure by the Issuer to file the Registration Statement by the Filing Date or for the Registration Statement to be declared effective by the Effectiveness Date shall not otherwise relieve the Issuer of its obligations to file or effect the Registration Statement as set forth in this Section 8. In no event shall the Subscriber be identified as a statutory underwriter in the Registration Statement unless requested by the Commission; provided, that if the Commission requests that the Subscriber be identified as a statutory underwriter in the Registration Statement, the Subscriber will have the option, in its sole and absolute discretion, to either (i) have an opportunity to withdraw from the Registration Statement, in which case the Issuer’s obligation to register the Underlying Common Shares will be deemed satisfied, or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the Commission prevents the Issuer from including any or all of the Common Shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of Common Shares by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Common Shares which is equal to the maximum number of Common Shares as is permitted by the Commission. In such event, the number of Common Shares to be registered for each selling stockholder named in the Registration Statement (including the number of Underlying Common Shares to be registered for the Subscriber) shall be reduced pro rata among all such selling stockholders and as promptly as practicable after being permitted to register additional Common Shares under Rule 415 under the Securities Act, the Issuer shall amend the Registration Statement or file a new Registration Statement to register such additional Common Shares (including the applicable Underlying Common Shares) and cause such amendment or Registration Statement to become effective as promptly as practicable. For purposes of this Section 8, “Common Shares” and “Underlying Common Shares” shall mean, as of any date of determination, the Common Shares or Underlying Common Shares, as applicable, and any other equity security of the Issuer issued or issuable with respect to such Common Shares or Underlying Common Shares by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event or otherwise.
(b) In the case of the registration, qualification, exemption or compliance effected by the Issuer pursuant to this Subscription Agreement, the Issuer shall, upon reasonable request, inform Subscriber as to the status of such registration, qualification, exemption and compliance. At its expense, the Issuer shall:
(i) except for such times as the Issuer is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws which the Issuer determines to obtain, continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions;
(ii) advise Subscriber within three (3) Business Days:
(A) of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information;
(B) when any amendment requested in (A) above has been filed with the Commission and when such amendment thereto has become effective,
(C) of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;
(D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Underlying Common Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(E) subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus included therein so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading.
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Notwithstanding anything to the contrary set forth herein, the Issuer shall not, when so advising Subscriber of such events listed above, provide Subscriber with any material, nonpublic information regarding the Issuer other than to the extent that providing notice to Subscriber of the occurrence of the events listed in (A) through (C) above constitutes material, nonpublic information regarding the Issuer;
(iii) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable;
(iv) upon the occurrence of any event contemplated above, except for such times as the Issuer is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, the Issuer shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Underlying Common Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) use its commercially reasonable efforts to cause all Underlying Common Shares to be listed on each securities exchange or market, if any, on which the Class A Common Shares have been listed; and
(vi) use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Underlying Common Shares contemplated hereby.
(c) The Issuer may delay filing or suspend the use of any such registration statement (x) if it determines, upon advice of legal counsel, that in order for the registration statement to not contain a material misstatement or omission, an amendment thereto would be needed, (y) as may be necessary in connection with the preparation and filing of a post-effective amendment to the Registration Statement following the filing of the Issuer’s Annual Report on Form 10-K for its first completed fiscal year, or (z) if the Issuer’s Board of Directors, upon advice of legal counsel, reasonably believes that such filing or use would materially affect a bona fide business or financing transaction of the Issuer or any of its subsidiaries, or would require premature disclosure of information that could materially adversely affect the Issuer (each such circumstance, a “Suspension Event”); provided, however, that the Issuer may not delay filing or suspend use of any registration statement on more than two occasions or for more than sixty (60) consecutive calendar days or more than ninety (90) total calendar days, in each case in any 12-month period. Upon receipt of any written notice from the Issuer of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, the Subscriber agrees that it will (i) immediately discontinue offers and sales of the Underlying Common Shares under the Registration Statement until the Subscriber receives (A) (x) copies of a supplemental or amended prospectus that corrects the misstatement(s) or omission(s) referred to above and (y) notice that any post-effective amendment has become effective or (B) notice from the Issuer that it may resume such offers and sales, and (ii) maintain the confidentiality of any information included in such written notice delivered by the Issuer unless otherwise required by applicable law. If so directed by the Issuer, the Subscriber will deliver to the Issuer or, in Subscriber’s sole discretion, destroy all copies of the prospectus covering the Underlying Common Shares in the Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Underlying Common Shares shall not apply to (i) the extent the Subscriber is required to retain a copy of such prospectus (A) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (B) in accordance with a bona fide pre-existing document retention policy or (ii) copies stored electronically on archival servers as a result of automatic data back-up. In addition to the removal of restrictive legends at the Subscriber’s request contemplated by Section 6(a)(iv), during any periods that a Registration Statement registering the resale of the Underlying Common Shares is effective, the Issuer shall, at its expense, cause the Issuer’s transfer agent to remove any restrictive legends on any Underlying Common Shares sold by the Subscriber within two (2) Business Days of the date that (i) such Underlying Common Shares are sold, (ii) the Subscriber notifies the Issuer of such sale and (iii) the Subscriber provides the Issuer with any customary representations in connection therewith. In connection therewith, if required by the Issuer’s transfer agent, the Issuer will promptly cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent that authorize and direct the transfer agent to issue such Underlying Common Shares without any such legend.
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(d) From and after the Closing, the Issuer shall indemnify, defend and hold harmless the Subscriber (to the extent a seller under the Registration Statement), and the officers, employees, affiliates, directors, partners, members, managers, investment advisors, attorneys and agents of the Subscriber, and each person, if any, who controls the Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (the Subscriber and each of the foregoing, a “Subscriber Indemnified Party”), from and against any losses, judgments, claims, damages, liabilities or reasonable costs or expenses (including reasonable attorneys’ fees) (collectively, “Losses”), that arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (ii) any violation or alleged violation by the Issuer of the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder, in connection with the performance of its obligations under this Section 8, except to the extent that such untrue or alleged untrue statements or omissions or alleged omissions are based solely upon information furnished in writing to the Issuer by a Subscriber Indemnified Party expressly for use therein. Notwithstanding the forgoing, the Issuer’s indemnification obligations shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the prior written consent of the Issuer (which consent shall not be unreasonably withheld, delayed or conditioned).
(e) From and after the Closing, the Subscriber shall, severally and not jointly with any Other Subscriber, indemnify, defend and hold harmless the Issuer, and the officers, employees, affiliates, directors, partners, members, managers, attorneys and agents of the Issuer, and each person, if any, who controls the Issuer (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), from and against any Losses, that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, to the extent that such untrue or alleged untrue statements or omissions or alleged omissions are based solely upon information regarding Subscriber furnished in writing to the Issuer by a Subscriber Indemnified Party expressly for use therein. In no event shall the liability of the Subscriber be greater in amount than the dollar amount of the net proceeds received by the Subscriber upon the sale of the Underlying Common Shares giving rise to such indemnification obligation. Notwithstanding the forgoing, the Subscriber’s indemnification obligations shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the prior written consent of the Subscriber (which consent shall not be unreasonably withheld, delayed or conditioned).
(f) If the indemnification provided under this Section 8 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any Losses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses or other liabilities referred to above shall be subject to the limitations set forth in this Section 8 and deemed to include any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 8(f) from any person who was not guilty of such fraudulent misrepresentation. Each indemnifying party’s obligation to make a contribution pursuant to this Section 8(f) shall be individual, not joint, and in no event shall the liability of the Subscriber under this Section 8(f) be greater in amount than the dollar amount of the net proceeds received by the Subscriber upon the sale of the Underlying Common Shares giving rise to such indemnification obligation.
Annex E-15
Table of Contents
(g) Any person entitled to indemnification herein shall (1) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (2) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent. An indemnifying party who elects not to assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
(h) The indemnification provided for under this Subscription Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person of such indemnified party and shall survive the transfer of the Subscriber Preferred Shares (or Underlying Common Shares) purchased pursuant to this Subscription Agreement.
9. Trust Account Waiver. The Subscriber hereby represents and warrants that it has had the opportunity to read the SPAC Prospectus and understands that the Issuer has established a trust account (the “Trust Account”) containing the proceeds of its initial public offering (the “IPO”) and the overallotment shares acquired by its underwriters and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the Issuer’s public stockholders (including overallotment shares acquired by the Issuer’s underwriters, the “Public Stockholders”), and that, except as otherwise described in the SPAC Prospectus, the Issuer may disburse monies from the Trust Account only: (a) to the Public Stockholders in the event they elect to redeem their Class A Common Shares in connection with the consummation of the Issuer’s initial business combination (as such term is used in the SPAC Prospectus) (the “Business Combination”) or in connection with an extension of its deadline to consummate a Business Combination, (b) to the Public Stockholders if the Issuer fails to consummate a Business Combination within 24 months after the closing of the IPO (as may be extended), (c) with respect to any interest earned on the amounts held in the Trust Account, amounts necessary to pay for any taxes and up to $100,000 in dissolution expenses, or (d) to the Issuer after or concurrently with the consummation of a Business Combination. For and in consideration of the Issuer entering into this Subscription Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Subscriber hereby agrees that notwithstanding anything to the contrary contained in this Subscription Agreement, Subscriber does not now and shall not at any time hereafter have, and waives any and all right, title and interest, or any claims of any kind it has or may have in the future as a result of, or arising out of, this Subscription Agreement, the transactions contemplated hereby or the Subscriber Preferred Shares (or any Underlying Common Shares), in or to any monies held in the Trust Account (or any distributions therefrom directly or indirectly to Public Stockholders (“Public Distributions”), and agrees not to seek recourse or make or bring any action, suit, claim or other proceeding against the Trust Account or Public Distributions as a result of, or arising out of, this Subscription Agreement, the transactions contemplated hereby or the Subscriber Preferred Shares (or the Common Shares into which such Subscriber Preferred Shares are convertible), regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability. To the extent the Subscriber commences any action or proceeding based upon, in connection with, as a result of or arising out of, this Subscription Agreement, the transactions contemplated hereby or the Subscriber Preferred Shares (or the Common Shares into which such Subscriber Preferred Shares are convertible), which proceeding seeks, in whole or in part, monetary relief against the Issuer or its Representatives, the Subscriber hereby acknowledges and agrees that the Subscriber’s sole remedy shall be against funds held outside of the Trust Account (other than Public Distributions) and that such claim shall not permit the Subscriber (or any person claiming on its behalf or in lieu of any of it) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. Notwithstanding anything else in this Section 9 to the contrary, nothing herein shall be deemed to limit the Subscriber’s right, title, interest or claim to the Trust Account by virtue of the Subscriber’s record or beneficial ownership of Class A Common Shares by any means other than pursuant to this Subscription Agreement, including but not limited to any redemption right with respect to any such securities of the Issuer. For purposes of this Subscription Agreement, “Representatives” with respect to any person shall mean such person’s affiliates and its and its affiliate’s respective directors, officers, employees, consultants, advisors, agents and other representatives.
Annex E-16
Table of Contents
10. Miscellaneous.
(a) Transferability. Neither this Subscription Agreement nor any rights that may accrue to the Subscriber hereunder (other than the Subscriber Preferred Shares acquired hereunder, if any, subject to applicable securities laws) may be transferred or assigned by the Subscriber without the prior written consent of the Issuer, and any purported transfer or assignment without such consent shall be null and void ab initio. Notwithstanding the foregoing, prior to the Closing the Subscriber may assign all of its rights and obligations under this Subscription Agreement to an affiliate of the Subscriber, or to any fund or account managed by the same investment manager as Subscriber, that is an Accredited Investor or a QIB and is also an Institutional Account, so long as the Subscriber provides the Issuer with at least three (3) Business Days’ prior written notice of such assignment and a completed Investor Questionnaire duly executed by such assignee; provided, further that (i) such assignee will be deemed to have made to the Issuer each of the representations, warranties and covenants of the Subscriber set forth in Section 5 as of the date of such assignment and as of the Closing Date, and (ii) no such assignment by the Subscriber will relieve the Subscriber of its obligations under this Subscription Agreement, and the Subscriber will remain secondarily liable under this Subscription Agreement for the obligations of the assignee hereunder.
(b) Reliance. The Subscriber acknowledges that the Issuer, the Placement Agents and the Company will rely on the acknowledgments, understandings, agreements, representations and warranties of the Subscriber contained in this Subscription Agreement, provided, however, that the Closing may only be enforced against the Subscriber by the Issuer. Prior to the Closing, the Subscriber agrees to promptly notify the Issuer if any of the acknowledgments, understandings, agreements, representations and warranties set forth herein are no longer accurate in any material respect and which would cause any of the conditions to Closing in Sections 3(a) or 3(b) to not be satisfied. The Issuer is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby. The Issuer acknowledges that the Subscriber will rely on the acknowledgments, understandings, agreements, representations and warranties of the Issuer contained in this Subscription Agreement. Prior to the Closing, the Issuer agrees that it will promptly notify the Subscriber if any of its acknowledgments, understandings, agreements, representations and warranties set forth herein are no longer accurate in any material respect and which would cause any of the conditions to Closing in Sections 3(a) or 3(c) to not be satisfied. The Subscriber is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
(c) Survival. All the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.
(d) Amendments and Waivers. This Subscription Agreement may not be amended, modified or waived except by an instrument in writing, signed by the party against whom enforcement of such amendment, modification or waiver is sought. Section 4, Section 5 this Section 10(d), Section 10(o) and Section 11 may not be amended, modified, terminated or waived in any manner that is material and adverse to a Placement Agent without the written consent of such Placement Agent.
(e) Entire Agreement. This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof (other than any confidentiality agreement entered into by the or the Issuer and the Subscriber in connection with the Offering).
(f) Successors and Assigns. This Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
(g) Severability. If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).
Annex E-17
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(h) Counterparts. This Subscription Agreement may be executed and delivered in one or more counterparts (including by facsimile, electronic mail or in .pdf (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com)) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
(i) Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to equitable relief, including an injunction or injunctions, to prevent breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise. Each party hereto further agrees that none of the parties hereto or the Placement Agent or the Company shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 10(i), and each party hereto irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
(j) GOVERNING LAW AND JURY TRIAL. THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD OTHERWISE REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER STATE. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION PURSUANT TO THIS SUBSCRIPTION AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
(k) Venue. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the United States District Court for the Southern District of New York or, if there is no federal jurisdiction, in the state courts sitting in New York County in the State of New York (the “Chosen Court”) for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action, suit or proceeding relating thereto except in such courts). Each party hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the Chosen Court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. To the extent it has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Subscriber hereby irrevocably waives such immunity in respect of its obligations with respect to this Agreement.
(l) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered by facsimile or email, with affirmative confirmation of receipt, (iii) one (1) Business Day after being sent, if sent by reputable, internationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, prepaid and return receipt requested, in each case to the applicable party at the addresses set forth on the applicable signature pages hereto.
(m) Headings and Certain Defined Terms. The headings set forth in this Subscription Agreement are for convenience of reference only and shall not be used in interpreting this Subscription Agreement. In this Subscription Agreement, unless the context otherwise requires: (i) whenever required by the context, any pronoun used in this Subscription Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; and (iii) the words “herein”, “hereto” and “hereby” and other words of similar import in this Subscription Agreement shall be deemed in each case to refer to this Subscription Agreement as a whole and not to any particular portion of this Subscription Agreement, and references to any Section or Subsection shall refer to the numbered and lettered
Annex E-18
Table of Contents
Sections and Subsections of this Agreement. As used in this Subscription Agreement, the term: (x) “Business Day” shall mean any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York are authorized to close for business (excluding as a result of “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems, including for wire transfers, of commercially banking institutions in New York, New York are generally open for use by customers on such day); (y) “person” shall refer to any individual, corporation, partnership, trust, limited liability company or other entity or association, including any governmental or regulatory body, whether acting in an individual, fiduciary or any other capacity; and (z) “affiliate” shall mean, with respect to any specified person, any other person or group of persons acting together that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with such specified person (where the term “control” (and any correlative terms) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract or otherwise). For the avoidance of doubt, any reference in this Subscription Agreement to an affiliate of the Issuer will include the Issuer’s sponsor, ISOS Acquisition Sponsor LLC.
(n) Further Assurances. At Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as the parties may reasonably deem necessary in order to consummate the Offering as contemplated by this Subscription Agreement.
(o) Third Party Beneficiaries. The parties hereto agree that (a) the Placement Agents are express third-party beneficiary of the representations, warranties and covenants of the Issuer contained in Section 4 and the representations, warranties and convents of the Subscriber contained in Section 5, and its express rights set forth in Section 10(d), this Section 10(o) and Section 11 and (b) the Company shall be, after the Closing, an express third-party beneficiary of this Agreement. Except for the foregoing, this Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successors and assigns.
11. Non-Reliance and Exculpation. The Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person other than the statements, representations and warranties contained in this Subscription Agreement in making its investment or decision to invest in the Issuer. The Subscriber agrees that neither (i) any Other Subscriber pursuant to the Other Subscription Agreements (including the controlling persons, members, officers, directors, partners, agents, or employees of any such Other Subscriber) nor (ii) the Placement Agent, its affiliates or any of its or its affiliates’ respective control persons, officers, directors or employees, shall be liable to the Subscriber pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Subscriber Preferred Shares.
12. Several not Joint. The obligations of Subscriber under this Subscription Agreement are several and not joint with the obligations of any Other Subscriber or any other investor under the Other Subscription Agreements, and Subscriber shall not be responsible in any way for the performance of the obligations of any Other Subscriber under any Other Subscription Agreement or any other investor under the Other Subscription Agreements. Nothing contained herein or in any Other Subscription Agreement, and no action taken by Subscriber or any Other Subscriber or other investor pursuant hereto or thereto, shall be deemed to constitute Subscriber and any Other Subscribers or other investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that Subscriber and any Other Subscribers or other investors are in any way acting in concert or as a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to such obligations or the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements. Subscriber acknowledges that no Other Subscriber has acted as agent for Subscriber in connection with making its investment hereunder and no Other Subscriber will be acting as agent of Subscriber in connection with monitoring its investment in the Subscriber Preferred Shares or enforcing its rights under this Subscription Agreement.
{SIGNATURE PAGES FOLLOW}
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IN WITNESS WHEREOF, the parties hereto have caused this Subscription Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
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ISOS ACQUISITION CORPORATION
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By:
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Name:
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Title:
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Address for Notice:
Isos Acquisition Corporation
55 Post Road W, Suite 200
Westport, CT 06880
Attention: Winston Meade
Email: wmeade@isoscap.com
Copy to:
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004
Attention: Anson Frelinghuysen
Email: anson.frelinghuysen@hugheshubbard.com
[Signature Page to Convertible Preferred PIPE Subscription Agreement]
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{SUBSCRIBER SIGNATURE PAGE TO THE SUBSCRIPTION AGREEMENT}
IN WITNESS WHEREOF, the undersigned has caused this Subscription Agreement to be duly executed by its authorized signatory as of the date first indicated above.
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Name(s) of Subscriber:
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Signature of Authorized Signatory of Subscriber:
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Name of Authorized Signatory:
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Title of Authorized Signatory:
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Address for Notice to Subscriber:
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Attention:
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Email:
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Facsimile No.:
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Telephone No.:
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Address for Delivery of Subscriber Preferred Shares to Subscriber (if not same as address for notice):
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Subscription Amount:
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$
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Number of Subscriber Preferred Shares:
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EIN Number:
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Jurisdiction of Organization of Subscriber (country and/or state):
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Name of Account Nominee (if different than Name of Subscriber):
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[Signature Page to Convertible Preferred PIPE Subscription Agreement]
Annex E-21
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Exhibit A
Certificate of Designations
[See attached]
Annex E-22
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Exhibit B
Accredited Investor Questionnaire
Capitalized terms used and not defined in this Exhibit B shall have the meanings given in the Subscription Agreement to which this Exhibit B is attached.
The undersigned represents and warrants that the undersigned is an “institutional account” as such term is defined in FINRA Rule 4512(c).
The undersigned represents and warrants that the undersigned is an “accredited investor” as such term is defined in Rule 501(a) (1), (2), (3), (7) or (9) of Regulation D under the U.S. Securities Act of 1933, as amended (the “Securities Act”), for one or more of the reasons specified below (please check all boxes that apply):
_______ (i) A bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity;
_______ (ii) A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
_______ (iii) An investment adviser registered pursuant to section 203 of the Investment Advisers Act of 1940 (the “Investment Advisers Act”) or registered pursuant to the laws of a state, or an investment adviser relying on the exemption from registering with the Commission under the section 203(l) or (m) of the Investment Advisers Act;
_______ (iv) An insurance company as defined in section 2(13) of the Exchange Act;
_______ (v) An investment company registered under the Investment Company Act or a business development company as defined in Section 2(a)(48) of that Act;
_______ (vi) A Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958;
_______ (vii) A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state, or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000;
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An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors;
_______ (ix) A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;
_______ (x) An organization described in Section 501(c)(3) of the Internal Revenue Code, or a corporation, business trust, partnership, or limited liability company, or any other entity not formed for the specific purpose of acquiring the securities, with total assets in excess of $5,000,000;
_______ (xi) A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities, whose purchase is directed by a sophisticated person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of investing in the Issuer;
_______ (xii) an entity in which all of the equity owners are “accredited investors”;
_______ (xiii) An entity, of a type not listed in any of the foregoing paragraphs, not formed for the specific purpose of acquiring the securities and owning investments in excess of $5,000,000; and/or
_______ (xiv)
The Subscriber does not qualify under any of the investor categories set forth in (i) through (xiii) above.
Annex E-23
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2.1 Type of the Subscriber. Indicate the form of entity of the Subscriber:
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Limited Partnership ☐
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Corporation
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General Partnership ☐
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Revocable Trust
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Other Type of Trust (indicate type):
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Other (indicate form of organization):
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Subscriber:
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Subscriber Name _____________________
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By ________________________________
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Signatory Name:
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Signatory Title:
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Annex E-24
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Annex F
AMENDED AND RESTATED FORWARD PURCHASE CONTRACT
This Amended and Restated Forward Purchase Contract (this “Agreement”) is entered into as of July 1, 2021, among Isos Acquisition Corporation, a Cayman Islands exempted company (the “Company”), and each of the undersigned subscribers (each individually, a “Subscriber” or “you”).
RECITALS
WHEREAS, the Company and each of the Subscribers is party to a Forward Purchase Contract dated March 2, 2021 (the “Existing FPC”);
WHEREAS, pursuant to the Existing FPC, certain of the Subscribers (the “Original Subscribers”) agreed to purchase Units of the Company in an aggregate amount equal to Twenty-Five Percent (25%) of the Units sold in the Company’s IPO (subject to the terms and conditions set forth in the Existing FPC and allocated to the Original Subscribers as described in the Existing FPC);
WHEREAS, the Subscribers and the Company wish to amend and restate the Existing FPC in its entirety to, among things, provide for the purchase of additional Units from the Company by new Subscribers (the “New Subscribers”) on the terms and subject to the conditions set forth herein;
NOW THEREFORE, in consideration of the premises, representations, warranties and mutual covenants contained in this Agreement, and intending to be legally bound hereby, the parties hereto agree as follows:
AGREEMENT
1. Certain Definitions. As used herein, the following terms shall have the following meanings:
1.1. “Business Combination” means the Company’s proposed initial merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities;
1.2. “Business Combination Agreement” means the Business Combination Agreement, dated as of July 1, 2021, by and between the Company and Bowlero Corp., a Delaware corporation (the “Target”), as it may be amended or supplemented from time to time.
1.3. “Class A Common Stock” or “Shares” means shares of Class A common stock of the Company, par value $0.0001 per share;
1.4. “Commission” means the Securities and Exchange Commission;
1.5. “IPO” means the Company’s initial public offering of Units which closed on March 5, 2021;
1.6. “Net Redemptions” means an amount equal to (i) the aggregate amount of cash proceeds that will be required to satisfy the redemption of any shares of Acquiror Class A Common Stock pursuant to the Offer (as defined in the Business Combination Agreement), minus, to the extent applicable (ii) the aggregate amount of proceeds from Additional PIPEs actually received by Acquiror prior to or substantially concurrently with the closing of the transactions contemplated by the Business Combination Agreement (but in no event less than zero).
1.7. “NYSE” means the New York Stock Exchange;
1.8. “Securities” means the Units and the securities underlying the Units and, in respect of a Subscriber, the Securities purchased by such Subscriber hereunder;
1.9. “Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder;
1.10. “SPAC Prospectus” means the final prospectus of the Company dated as of March 2, 2021, filed with the Commission (File No. 333-252283) on March 4, 2021;
1.11. “Sponsor” means Isos Acquisition Sponsor LLC, a Delaware limited liability company, and sponsor of the Company;
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1.12. “Units” means units of the Company comprised of one Share and one-third of one Warrant; and
1.13. “Warrants” means warrants of the Company, each of which is exercisable to purchase one Share at an exercise price of $11.50 per Share during the period commencing on the later of (i) twelve (12) months from the date of the closing of the IPO, and (ii) thirty (30) days following the consummation of the Company’s Business Combination, and expiring on the five year anniversary of the consummation of the Business Combination.
2. Purchase of the Securities.
2.1. Subject to the terms and conditions of this Agreement, the Company agrees to sell the number of Units to each Subscriber set forth opposite its name under the heading “Total Units” on Schedule I, and each Subscriber hereby agrees to purchase the number of Units from the Company set forth opposite its name under the heading “Total Units” on Schedule I, in a private placement at a purchase price of $10.00 per Unit. The Subscribers obligations hereunder are several and not joint obligations and no Subscriber shall have any liability to any person for the performance or non-performance of any obligation by any other Subscriber hereunder.
2.2. The Warrants included in the Units to be purchased pursuant hereto shall, so long as such Warrants are held by the Subscribers, be identical to the private placement warrants purchased by the Sponsor in a private placement concurrent with the IPO (that is, the Warrants will not be redeemable and will be exercisable on a cashless basis).
2.3. The parties hereby agree and acknowledge that, at the closing of the Business Combination, the Company may deliver to each Subscriber the number of Shares and Warrants that would have been included in the Units to be purchased by such Subscriber pursuant hereto, in lieu of delivering such Units.
3. Representations, Warranties and Agreements.
3.1. Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Securities to the Subscribers, each Subscriber hereby represents and warrants to the Company and agrees with the Company as follows with respect to itself only and not any other Subscriber:
3.1.1 No Government Recommendation or Approval. Such Subscriber understands that no federal or state agency has passed upon or made any recommendation or endorsement of the offering of the Securities.
3.1.2 No Conflicts. The execution, delivery and performance of this Agreement and the consummation by such Subscriber of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the formation and governing documents of such Subscriber, (ii) any agreement, indenture or instrument to which such Subscriber is a party, (iii) any law, statute, rule or regulation to which such Subscriber is subject, or (iv) any agreement, order, judgment or decree to which such Subscriber is subject.
3.1.3 Organization and Authority. Such Subscriber possesses all requisite power and authority necessary to carry out the transactions contemplated by this Agreement. Upon execution and delivery by such Subscriber, this Agreement is a legal, valid and binding agreement of such Subscriber, enforceable against such Subscriber in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
3.1.4 Experience, Financial Capability and Suitability. Such Subscriber is: (i) sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Securities and protect its own interests and (ii) able to bear the economic risk of its investment in the Securities for an indefinite period of time because the Securities have not been registered under the Securities Act and therefore cannot be sold by such Subscriber unless subsequently registered under the Securities Act or an exemption from such registration is available. Such Subscriber is able to afford a complete loss of its investment in the Securities.
3.1.5 Access to Information; Independent Investigation. Prior to the execution of this Agreement, such Subscriber has had the opportunity to ask questions of and receive answers from representatives of the Company concerning an investment in the Company, as well as the finances, operations, business and prospects of the Company, and the opportunity to obtain additional information to verify the accuracy of all information so obtained. In determining whether to make this investment, such Subscriber has relied solely on its own knowledge and understanding of the Company and its business based upon its own due diligence investigation and the information furnished pursuant to this paragraph. Such Subscriber understands that no person has been authorized to give
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any information or to make any representations which were not furnished pursuant to this Agreement and such Subscriber has not relied on any other representations or information in making its investment decision, whether written or oral, relating to the Company, its operations and/or its prospects.
3.1.6 Regulation D Offering. Such Subscriber represents that it is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act and acknowledges the sale contemplated hereby is being made in reliance on a private placement exemption to “accredited investors” within the meaning of Section 501(a) of Regulation D under the Securities Act or similar exemptions under federal or state law.
3.1.7 Investment Purposes. Such Subscriber is purchasing the Securities solely for investment purposes and not with a view towards the further distribution thereof. The Subscriber did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 under the Securities Act.
3.1.8 Restrictions on Transfer; Shell Company. Such Subscriber understands the Securities are being offered in a transaction not involving a public offering within the meaning of the Securities Act. Such Subscriber understands the Securities will be “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act and such Subscriber understands that any certificates representing the Securities will contain a legend in respect of such restrictions. If in the future such Subscriber decides to offer, resell, pledge or otherwise transfer the Securities, such securities may be offered, resold, pledged or otherwise transferred only pursuant to: (i) registration under the Securities Act, or (ii) an available exemption from registration. Such Subscriber agrees that if any transfer of its Securities or any interest therein is proposed to be made, as a condition precedent to any such transfer, such Subscriber may be required to deliver to the Company an opinion of counsel satisfactory to the Company with respect to compliance with the foregoing sentence. Absent registration or an exemption, such Subscriber agrees not to resell the Securities. Such Subscriber further acknowledges that because the Company is a shell company, Rule 144 may not be available to such Subscriber for the resale of the Securities until one (1) year following consummation of the Business Combination, despite technical compliance with the requirements of Rule 144.
3.1.9 No Governmental Consents. No governmental, administrative or other third party consents or approvals are required, necessary or appropriate on the part of such Subscriber in connection with the transactions contemplated by this Agreement.
3.1.10 Sufficient Funds. Such Subscriber will have sufficient immediately available funds at the Closing to pay the purchase price for the number of Units set forth opposite its name under the heading “Total Units” on Schedule I.
3.2. Company’s Representations, Warranties and Agreements. To induce the Subscribers to purchase the Securities, the Company hereby represents and warrants to each Subscriber and agrees with each Subscriber as follows:
3.2.1 Organization and Corporate Power. The Company is a Cayman Islands exempted company (and following the Domestication (as defined in the Business Combination Agreement), the Company will be a Delaware corporation). The Company possesses all requisite corporate power and authority necessary to carry out the transactions contemplated by this Agreement. Upon execution and delivery by the Company of this Agreement, the Agreement will constitute a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
3.2.2 No Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the Memorandum & Articles of Association of the Company (the “Charter”), (ii) any agreement, indenture or instrument to which the Company is a party or (iii) any law, statute, rule or regulation to which the Company is subject, or (iv) any agreement, order, judgment or decree to which the Company is subject.
3.2.3 Title to Securities. Upon issuance in accordance with, and payment pursuant to, the terms hereof, the Securities will be duly and validly issued, fully paid and non-assessable. Upon issuance in accordance with, and payment pursuant to, the terms hereof each Subscriber will have or receive good title to the Securities, free and clear of all liens, claims and encumbrances of any kind, other than (a) transfer restrictions under federal and state securities laws, and (b) liens, claims or encumbrances imposed due to the actions of the Subscriber.
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3.2.4 No Adverse Actions. There are no actions, suits, investigations or proceedings pending, threatened against or affecting the Company which: (i) seek to restrain, enjoin, prevent the consummation of or otherwise affect the transactions contemplated by this Agreement or (ii) question the validity or legality of any transactions or seeks to recover damages or to obtain other relief in connection with any transactions.
3.2.5 No Governmental Consents. No governmental, administrative or other third party consents or approvals are required, necessary or appropriate on the part of the Company in connection with the transactions contemplated by this Agreement, other than (i) the filing of a Form D with the Commission and such state Blue Sky, FINRA and consents and approvals of the NYSE as may be required, (ii) the filing with the Commission of the Registration Statement, (iii) the filings required by applicable state or federal securities laws, (iv) those required to consummate the transactions contemplated by the Business Combination Agreement as provided under the Business Combination Agreement, (v) the filing of notification under HSR Act (as defined in the Business Combination Agreement), if applicable, and (vi) any consent, waiver, authorization or order of, notice to, or filing or registration, the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect (as defined in the Business Combination Agreement).
3.2.6 No General Solicitation. No form of general solicitation or general advertising within the meaning of Regulation D of the Securities Act (including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising) was used by the Company or any of its representatives in connection with the offer and sale of the Securities.
3.2.7 No Brokers. No broker, finder or similar intermediary has acted for or on behalf of the Company or any of its affiliates in connection with this Agreement or the transactions contemplated hereby and no broker, finder, agent or similar intermediary is entitled to any broker’s, finder’s or similar fee or other commission in connection therewith, in each case, for which any Subscriber could become liable.
3.2.8 Arms-Length. The purchase and sale of the Securities contemplated by this Agreement is an arms-length transaction between the Subscribers and the Company.
3.2.9 PIPE Investments. The Company has entered into subscription agreements (the “PIPE Subscription Agreements”), pursuant to which the subscribers party thereto have committed, subject to the terms and conditions therein, to purchase shares of Class A Common Stock for an aggregate purchase price equal to $150.0 million. As of the date hereof, each of the PIPE Subscription Agreements is in full force and effect and is legal, valid and binding upon the Company and, to the knowledge of the Company, the subscribers party thereto, enforceable in accordance with it terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. As of the date hereof, none of the PIPE Subscription Agreements have been withdrawn, terminated, amended or modified, and, to the knowledge of the Company, no such withdrawal, termination, amendment or modification is contemplated, and the commitments contained in the PIPE Subscription Agreements have not been withdrawn, terminated or rescinded by the subscribers party thereto in any respect.
3.2.10 Preferred Investment. The Company has entered into subscription agreements (the “Preferred Subscription Agreements”), pursuant to which subscribers party thereto have committed, subject to the terms and conditions therein, to purchase Series A convertible preferred shares of the Company for an aggregate purchase price equal to $95.0 million. As of the date hereof, each of Preferred Subscription Agreements is in full force and effect and is legal, valid and binding upon the Company and, to the knowledge of the Company, the subscribers party thereto, enforceable in accordance with it terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. As of the date hereof, none of the Preferred Subscription Agreements has been withdrawn, terminated, amended or modified, and, to the knowledge of the Company, no such withdrawal, termination, amendment or modification is contemplated, and the commitments contained in the Preferred Subscription Agreements have not been withdrawn, terminated or rescinded by the subscriber party thereto in any respect.
4. Settlement Date and Delivery.
4.1. Closing of Purchase of Securities. The consummation and settlement of the forward purchase contract for the purchase and sale of the Securities hereunder (the “Closing”) shall be held at the same date and immediately prior to the closing of the Business Combination contemplated by the Business Combination Agreement (the date of the Closing
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being referred to as the “Closing Date”). No later than two business days prior to the Closing Date, each Subscriber shall deliver the purchase price for the Units purchased by such Subscriber hereunder in cash via wire transfer to an account specified in writing by the Company to such Subscriber at least five business days prior to the Closing Date. Upon the Closing, the Company will issue to each Subscriber the Units being purchased hereunder by such Subscriber, each registered in the name of such Subscriber, against delivery of the purchase price by such Subscriber.
4.2. Conditions to Closing of the Company.
The Company’s obligations to sell and issue the Securities at the Closing are subject to the fulfillment (or waiver by the Company) of the following conditions:
4.2.1 Representations and Warranties Correct. The representations and warranties made by each Subscriber in Section 3 hereof shall be true and correct in all material respects when made and shall be true and correct in all material respects on and as of the Closing Date (unless they specifically speak as of another date in which case they shall be true and correct in all material respects as of such date) with the same force and effect as if they had been made on and as of said date.
4.2.2 Covenants. All covenants, agreements and conditions contained in this Agreement to be performed by the Subscribers on or prior to the Closing shall have been performed or complied with in all material respects.
4.2.3 Blue Sky. The Company shall have obtained all necessary Blue Sky law permits and qualifications, or secured an exemption therefrom, required by any state for the offer and sale of the Securities.
4.3. Conditions to Closing of the Subscribers.
Each Subscriber’s obligation to purchase the Securities at the Closing is subject to the fulfillment (or waiver by such Subscriber) on or prior to the Closing Date of each of the following conditions:
4.3.1 Representations and Warranties Correct. The representations and warranties made by the Company in Section 3 hereof shall be true and correct in all material respects when made and shall be true and correct in all material respects on and as of the Closing Date (unless they specifically speak as of another date in which case they shall be true and correct in all material respects as of such date), with the same force and effect as if they had been made on and as of said date.
4.3.2 Covenants. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the Closing shall have been performed or complied with in all material respects.
4.3.3 Blue Sky. The Company shall have obtained all necessary Blue Sky law permits and qualifications, or secured an exemption therefrom, required by any state for the offer and sale of the Securities.
4.3.4 Approvals. The Business Combination contemplated by the Business Combination Agreement and the transactions contemplated by this Agreement, including all necessary approvals of the Company’s stockholders and regulatory approvals, if any, shall have been satisfied or waived (as determined by the parties to the Business Combination Agreement) and other than those conditions that, by their nature, may only be satisfied at the closing of the Business Combination under the Business Combination Agreement (including to the extent that any such condition is dependent upon the consummation of the purchase and sale of shares pursuant to this Agreement, the PIPE Subscription Agreements and the Preferred Subscription Agreements), but subject to the satisfaction or waiver of such conditions as of the closing of the Business Combination under the Business Combination Agreement.
4.3.5 Listing. The Shares and the Warrants shall have been approved for listing on the NYSE, subject to official notice of issuance.
In addition, each New Subscriber’s obligation to purchase the number of Units set forth opposite such New Subscriber’s name under the heading “Total Units” on Schedule I at the Closing is subject to the fulfillment (or waiver by such New Subscriber) on or prior to the Closing Date of the following condition (it being understood, for the avoidance of doubt, that each Original Subscriber’s obligation to purchase the number of Units set forth opposite such Original Subscriber’s name under the heading “Total Units” on Schedule I at the Closing shall not be subject to the fulfillment on or prior to the Closing Date of the following condition):
4.3.6 Net Redemptions. Net Redemptions shall not exceed $165.75 million.
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5. Restrictions on Transfer. Each Subscriber hereby agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Securities unless, prior thereto (a) a registration statement on the appropriate form under the Securities Act and applicable state securities laws with respect to the Securities proposed to be transferred shall then be effective or (b) the Company has received an opinion of counsel for the Company that such registration is not required because such transaction is exempt from registration under the Securities Act and the rules promulgated by the Commission thereunder and under all applicable state securities laws. All certificates representing the Securities shall have endorsed thereon a legend substantially as follows:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL, IS AVAILABLE.”
The Company agrees to cause its counsel to deliver an opinion to the Company’s transfer agent directing the removal of the foregoing legends once able to do so pursuant to applicable securities laws.
Other than the restrictions on transfer pursuant to the Securities Act and set forth in this Section 5, the Subscribers shall not be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Securities Exchange Act of 1934, as amended, with respect to the Securities.
6. Registration Rights.
6.1. The Company agrees that the Company will file with the Commission (at the Company’s sole cost and expense) a registration statement registering the resale of the Shares and Warrants (comprising a Unit) (the “Registration Statement”) as soon as practicable but in any event no later than thirty (30) calendar days after the Closing Date and shall have the Registration Statement declared effective as soon as practicable thereafter but in any event no later than the earlier of (i) the 60th calendar day (or 90th calendar day if the Commission notifies the Company that it will “review” the Registration Statement) following the Closing and (ii) the 10th Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Date”); provided that if such day falls on a Saturday, Sunday or other day that the Commission is closed, the Effectiveness Date shall be extended to the next Business Day on which the Commission is open for business. The Company’s obligations to include the Subscriber and Shares and Warrants in the Registration Statement are contingent upon each Subscriber furnishing in writing to the Company such information regarding such Subscriber, the securities of the Company held by such Subscriber and the intended method of disposition of the Shares and Warrants as shall be reasonably requested by the Company to effect the registration of the Shares and Warrants, and shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations (other than lock-up or similar agreements).
7. Other Agreements.
7.1. Equity Issuances. Prior to Closing, the Company shall not offer, issue, deliver, grant or sell, or authorize or propose to offer, issue, deliver, grant or sell, any capital stock of, or other equity interests in, the Company or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock or equity interests, other than (i) in connection with the exercise of any Warrants outstanding on the date hereof, (ii) in connection with this Agreement, the PIPE Subscription Agreements and the Preferred Subscription Agreements, (iii) in connection with the transactions contemplated by the Business Combination Agreement, or (iv) additional shares of Class A Common Stock issued in a private placement (the “Additional PIPE”) on terms that are substantially similar to the terms of the PIPE Subscription Agreements; provided in the case of clause (iv) that such issuance is at a purchase price equal to or greater than $10.00 per share;
7.2. No More Favorable Terms. After the date of this Agreement and prior to the closing of the Business Combination contemplated by the Business Combination Agreement, the Company shall not amend any of the PIPE Subscription Agreements or Preferred Subscription Agreements, or enter into any future agreements relating
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to the subscription or purchase of Securities with future investors, or amend any existing agreements relating to the subscription or purchase of Securities with any existing investors (including the Sponsor), but excluding, for the avoidance of doubt, the Business Combination Agreement, that have the effect of establishing rights or obligations in a manner more favorable in any material respect to such investor or prospective investor than the rights and obligations established in this Agreement (to the extent applicable), or waive any analogous rights or obligations binding any existing or future investors unless, in any such case and only to the extent applicable, the Subscribers have also been provided with such rights and obligations; provided that it is understood and agreed that the entry into of an agreement relating to the subscription or purchase subscription agreement with respect to an Additional PIPE on terms that are substantially similar to the terms of the PIPE Subscription Agreements (and at a subscription price of no less than $10.00 per share) shall not be deemed to be more favorable in any material respect to such investor or prospective investor.
7.3. Net Redemptions. If Net Redemptions exceed $10,000,000, any such excess shall reduce, on a dollar-for-dollar basis, the cash consideration payable in respect of the Company Common Stock and Company Common Options (in each case, as defined in the Business Combination Agreement) at the closing of the Business Combination pursuant to the Business Combination Agreement.
7.4. Warrants. At any time prior to Closing, the Company shall have outstanding a maximum of 17,225,728 Warrants (subject to any share splits, conversions, etc.), of which 3,333,333 Warrants shall be issued to the Subscribers pursuant to this Agreement.
7.5. Further Assurances. Each of the Company and the Subscribers agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.
7.6. Notices. All notices, statements or other documents which are required or contemplated by this Agreement shall be: (i) in writing and delivered personally or sent by first class registered or certified mail or overnight courier service, (ii) by facsimile and (iii) by electronic mail, in each case to the address, facsimile number or email address as set forth on the signature page hereto. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.
7.7. Entire Agreement. This Agreement, together with the Registration Rights Agreement, embodies the entire agreement and understanding between the Subscribers and the Company with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
7.8. Modifications and Amendments. The terms and provisions of this Agreement may be modified or amended only by written agreement executed by all parties hereto.
7.9. Waivers and Consents. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by all parties hereto. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
7.10. Assignment. The rights and obligations under this Agreement may not be assigned by any of the parties hereto without the prior written consent of the other parties; provided that each Subscriber may assign its rights and obligations to an affiliate without the prior consent of the other parties; and such affiliate shall be joined to this Agreement as an Original Subscriber (in the case of an Original Subscriber assignment) or as a New Subscriber (in the case of a New Subscriber assignment); provided, further, that no such assignment by such Subscriber will relieve such Subscriber of its obligations under this Agreement.
7.11. Benefit. All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the parties hereto and shall inure to the benefit of the respective successors and permitted assigns of each party hereto. Nothing in this Agreement shall be construed to create any rights or obligations except among the parties hereto, and no person or entity shall be regarded as a third-party beneficiary of this Agreement; provided that
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the Target is an express third-party beneficiary of this Agreement and shall be entitled to enforce the terms hereof, including an injunction, temporary restraining order or other equitable relief pursuant to Section 12, to prevent breaches of this Agreement by the parties hereto, in addition to any other remedy at law or equity.
7.12. Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of New York applicable to contracts wholly performed within the borders of such state, without giving effect to the conflict of law principles thereof.
7.13. Severability. In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Agreement shall be unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect.
7.14. No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
7.15. Survival of Representations and Warranties. All representations and warranties made by the parties hereto in this Agreement or in any other agreement, certificate or instrument provided for or contemplated hereby, shall survive the execution and delivery hereof and any investigations made by or on behalf of the parties.
7.16. Headings and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
7.17. Counterparts. This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
7.18. Construction. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant.
7.19. Mutual Drafting. This Agreement is the joint product of the Subscribers, on the one hand, and the Company, on the other hand, and each provision hereof has been subject to the mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party hereto.
8. Indemnification. The Subscribers, on the one hand, and the Company, on the other hand, shall indemnify the Company or the Subscribers, as applicable, against any reasonable loss, cost or damages (including reasonable attorney’s fees and expenses) incurred as a result of such party’s breach of any representation, warranty, covenant or agreement in this Agreement, as determined by a final non-appealable judgment of a court of competent jurisdiction.
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9. Term. The Subscribers’ obligation to acquire the Securities hereunder, and the Company’s obligation to sell the Securities hereunder, shall be in effect until the earliest of (i) the liquidation of the Company in the event that the Company is unable to consummate the Business Combination within the time frame permitted by the Charter (including any extensions thereunder), (ii) the mutual written agreement of each of the parties hereto to terminate this Agreement, (iii) such date and time as the Business Combination Agreement is terminated in accordance with its terms, or (iv) written notice by the Company to the Subscriber, or the Subscriber to the Company, to terminate this Agreement if the transactions contemplated by this Agreement are not consummated prior to the earlier of (x) the “Agreement End Date” as defined in the Business Combination Agreement, as it may be amended pursuant to the Business Combination Agreement and (y) March 1, 2022; provided that (i) nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and (ii) each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach. The Company shall notify the Subscriber of the termination of the Business Combination Agreement promptly after the termination of such agreement and the provisions of Sections 7, 9 and 11 survive any termination of this Forward Purchase Agreement and continue indefinitely.
10. Disclosure. The Subscribers hereby acknowledge that (i) the terms of this Agreement will be publicly disclosed in a Registration Statement on Form S-4 to be filed by the Company with the Commission in connection with the Business Combination, and (ii) this Agreement will be described in and filed with a Current Report on Form 8-K to be filed by the Company with the Commission. The Subscribers shall have a reasonable opportunity to review and comment on the proposed disclosure prior to such filings.
11. Trust Account Waiver. Each Subscriber hereby represents and warrants that it has had the opportunity to read the SPAC Prospectus and understands that the Company has established the Trust Account containing the proceeds of the IPO and the overallotment shares acquired by its underwriters and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the Company’s public stockholders (including overallotment shares acquired by the Company’s underwriters, the “Public Stockholders”), and that, except as otherwise described in the SPAC Prospectus, the Company may disburse monies from the Trust Account only: (a) to the Public Stockholders in the event they elect to redeem their Shares in connection with the consummation of the Issuer’s initial Business Combination or in connection with an extension of its deadline to consummate a Business Combination, (b) to the Public Stockholders if the Company fails to consummate a Business Combination within the time frame permitted by the Charter (including any extensions thereunder), and (c) with respect to any interest earned on the amounts held in the Trust Account, amounts necessary to pay for any taxes and up to $100,000 in dissolution expenses, or (d) to the Company after or concurrently with the consummation of a Business Combination. For and in consideration of the Company entering into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Subscriber hereby agrees that notwithstanding anything to the contrary contained in this Agreement, such Subscriber does not now and shall not at any time hereafter have, and waives any and all right, title and interest, or any claims of any kind it has or may have in the future as a result of, or arising out of, this Agreement, the transactions contemplated hereby or the Securities to be issued to such Subscriber hereunder, in or to any monies held in the Trust Account (or any distributions therefrom directly or indirectly to Public Stockholders (“Public Distributions”), and agrees not to seek recourse or make or bring any action, suit, claim or other proceeding against the Trust Account or Public Distributions as a result of, or arising out of, this Agreement, the transactions contemplated hereby or such Securities, regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability. To the extent a Subscriber commences any action or proceeding based upon, in connection with, as a result of or arising out of, this Agreement, the transactions contemplated hereby or any Securities, which proceeding seeks, in whole or in part, monetary relief against the Company or its Representatives, such Subscriber hereby acknowledges and agrees that such Subscriber’s sole remedy shall be against funds held outside of the Trust Account (other than Public Distributions) and that such claim shall not permit such Subscriber (or any person claiming on its behalf or in lieu of any of it) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. Notwithstanding anything else in this Section 11 to the contrary, nothing herein shall be deemed to limit a Subscriber’s right, title, interest or claim to the Trust Account by virtue of such Subscriber’s record or beneficial ownership of Shares other than pursuant to this Agreement, including but not limited to any redemption right with respect to any such securities of the Company. For purposes of this Agreement, “Representatives” with respect to any person shall mean such person’s affiliates and its and its affiliate’s respective directors, officers, employees, consultants, advisors, agents and other representatives.
Annex F-9
Table of Contents
12. Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to equitable relief, including an injunction or injunctions, to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise. Each party hereto further agrees that none of the parties hereto shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 12, and each party hereto irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
[Signature Page Follows]
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If the foregoing accurately sets forth our understanding and agreement, please sign the enclosed copy of this Agreement and return it to us.
The parties hereto have executed this Agreement to be effective as of the date first set forth above.
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ISOS ACQUISITION CORPORATION
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By:
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/s/ George Barrios
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Name:
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George Barrios
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Title:
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Co-Chief Executive Officer
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Address:
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55 Post Road West, Suite 200
Westport, CT 06880
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Email:
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xxxxxx
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By:
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/s/ Michelle Wilson
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Name:
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Michelle Wilson
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Title:
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Co-Chief Executive Officer
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Address:
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55 Post Road West, Suite 200
Westport, CT 06880
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Email:
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xxxxxx
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Annex F-11
Table of Contents
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APOLLO CREDIT STRATEGIES MASTER FUND LTD.
By: Apollo ST Fund Management LLC, its investment manager
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By:
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/s/ Joseph D. Glatt
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Name:
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Joseph D. Glatt
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Title:
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Vice President
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APOLLO PPF CREDIT STRATEGIES, LLC
By: Apollo Credit Strategies Master Fund Ltd.,
its member
By: Apollo ST Fund Management LLC,
its investment manager
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By:
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/s/ Joseph D. Glatt
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Name:
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Joseph D. Glatt
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Title:
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Vice President
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APOLLO ATLAS MASTER FUND, LLC
By: Apollo Atlas Management, LLC,
its investment manager
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By:
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/s/ Joseph D. Glatt
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Name:
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Joseph D. Glatt
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Title:
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Vice President
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APOLLO A-N CREDIT FUND (DELAWARE), L.P.
By: Apollo A-N Credit Management, LLC,
its investment manager
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By:
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/s/ Joseph D. Glatt
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Name:
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Joseph D. Glatt
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Title:
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Vice President
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APOLLO SPAC FUND I, L.P..
By:
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By:
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/s/ Joseph D. Glatt
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Name:
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Title:
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Annex F-12
Table of Contents
Annex G
Execution Version
STOCKHOLDER SUPPORT AGREEMENT
This Stockholder Support Agreement (this “Agreement”), dated as of July 1, 2021, is entered into by and among ISOS ACQUISITION CORPORATION, a Cayman Islands exempted company (“Acquiror”), Cobalt Recreation LLC, a Delaware limited liability company (the “Shannon Stockholder”), A-B Parent LLC, a Delaware limited liability company (the “Atairos Stockholder” and collectively with the Shannon Stockholder, the “Stockholders”) and, solely with respect to Section 26 and Section 27, Bowlero Corp., a Delaware corporation (the “Company”). Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the Business Combination Agreement (as defined below).
RECITALS
WHEREAS, the Company and Acquiror entered into a Business Combination Agreement (as amended, supplemented, restated or otherwise modified from time to time, the “Business Combination Agreement”), pursuant to which, inter alia, the Company will be merged with and into the Acquiror (the “Merger”) with Acquiror continuing as the Surviving Company on the terms and subject to the conditions set forth in the Business Combination Agreement (the Merger, together with the other transactions contemplated by the Business Combination Agreement, the “Transactions”);
WHEREAS, as of the date hereof, the Shannon Stockholder is the record and “beneficial owner” (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) of and is entitled to dispose of and vote 2,069,000 shares of Company Common Stock (the “Shannon Owned Shares”; the Shannon Owned Shares and any additional Company Shares (or any securities convertible into or exercisable or exchangeable for Company Shares) in which the Shannon Stockholder acquires record and beneficial ownership after the date hereof, including by purchase, as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares, or upon exercise or conversion of any securities, the “Shannon Covered Shares”);
WHEREAS, as of the date hereof, the Atairos Stockholder is the record and “beneficial owner” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of and is entitled to dispose of and vote 106,378 shares of Company Preferred Stock and 3,842,428 shares of Company Common Stock (the “Atairos Owned Shares” and collectively with the Shannon Owned Shares, the “Owned Shares”; the Atairos Owned Shares and any additional Company Shares (or any securities convertible into or exercisable or exchangeable for Company Shares) in which the Atairos Stockholder acquires record and beneficial ownership after the date hereof, including by purchase, as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares, or upon exercise or conversion of any securities, the “Atairos Covered Shares” and collectively with the Shannon Covered Shares, the “Covered Shares”); and
WHEREAS, as a condition and inducement to the willingness of Acquiror to enter into the Business Combination Agreement, Acquiror and the Stockholders are entering into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Acquiror and each Stockholder hereby agree as follows:
1. Agreement to Vote. Subject to the earlier termination of this Agreement in accordance with Section 5, the Atairos Stockholder, solely in its capacity as a stockholder of the Company, irrevocably and unconditionally agrees that it shall, and shall cause any other holder of record of any of the Atairos Covered Shares to, validly execute and deliver to the Company, no later than the third (3rd) Business Day following the date that the Registration Statement becomes effective, a written consent in favor of adopting the Business Combination Agreement in respect of all of the Atairos Covered Shares. In addition, prior to its Termination Date (as defined herein), the Atairos Stockholder, in its capacity as a stockholder of the Company, irrevocably and unconditionally agrees that, at any other meeting of
Annex G-1
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the stockholders of the Company (whether annual or special and whether or not an adjourned or postponed meeting, however called and including any adjournment or postponement thereof) and in connection with any written consent of stockholders of the Company, the Atairos Stockholder shall, and shall cause any other holder of record of any of the Atairos Covered Shares, to:
(a) if and when such meeting is held, appear at such meeting or otherwise cause the Atairos Covered Shares, to be counted as present thereat for the purpose of establishing a quorum;
(b) vote (or execute and return an action by written consent), or cause to be voted at such meeting (or validly execute and return and cause such consent to be granted with respect to), all of the Atairos Covered Shares, owned as of the record date for such meeting (or the date that any written consent is executed by the Atairos Stockholder) in favor of the Merger and the adoption of the Business Combination Agreement and any other matters necessary or reasonably requested by the Company or the Acquiror for consummation of the Merger and the other transactions contemplated by the Business Combination Agreement; and
(c) vote (or execute and return an action by written consent), or cause to be voted at such meeting, or validly execute and return and cause such consent to be granted with respect to, all of the Atairos Covered Shares, against (i) any Company Acquisition Proposal or any proposal relating to a Company Acquisition Proposal (in each case, other than the Transactions), (ii) any merger agreement or merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by Company (other than the Business Combination Agreement and the Transactions), and (iii) any other action that would reasonably be expected to materially impede, interfere with, delay, postpone or adversely affect the Merger or any of the other transactions contemplated by the Business Combination Agreement or result in a breach of any covenant, representation or warranty or other obligation or agreement of the Company under the Business Combination Agreement that would result in the failure of any condition set forth in Section 9.01, Section 9.02 or Section 9.03 of the Business Combination Agreement to be satisfied or result in a breach of any covenant, representation or warranty or other obligation or agreement of the Atairos Stockholder contained in this Agreement.
2. Waiver of Appraisal and Dissenters’ Rights. The Stockholders, solely in their capacities as stockholders of the Company, hereby (a) irrevocably and unconditionally waive, and agree to cause to be waived and to prevent the exercise of, any rights of appraisal and dissenters’ rights and any similar rights (including any notice requirements related thereto) relating to the Merger or any of the other Transactions that the Stockholders or any other holder of record of any of the Shannon Covered Shares or Atairos Covered Shares, as applicable, may have by virtue of, or with respect to, ownership of the Shannon Covered Shares or Atairos Covered Shares, as applicable, (including any and all such rights under Section 262 of the DGCL) and (b) withdraw all written objections to the Merger, demands for appraisal and/or exercises of dissenter’s rights, if any, with respect to the Shannon Covered Shares or Atairos Covered Shares, as applicable.
3. Amendments. Acquiror shall not agree to amend, modify or waive the Business Combination Agreement or any other Transaction Document without the prior written consent of each Stockholder (such consent not to be unreasonably, withheld, conditioned or delayed).
4. No Inconsistent Agreements. Each Stockholder hereby covenants and agrees that such Stockholder shall not, at any time prior to the Termination Date, (a) enter into any voting agreement or voting trust with respect to any of such Stockholder’s Covered Shares that is inconsistent with such Stockholder’s obligations pursuant to this Agreement, (b) grant a proxy or power of attorney with respect to any of such Stockholder’s Covered Shares that is inconsistent with such Stockholder’s obligations pursuant to this Agreement, or (c) enter into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
5. Termination. This Agreement shall terminate, and no party shall have any further obligations or liabilities under this Agreement, upon the earliest of (a) the Effective Time, (b) the termination of the Business Combination Agreement in accordance with its terms and (c) the time this Agreement is terminated upon the mutual written agreement of Acquiror and the Stockholders. (the earliest such date under clause (a), (b) or (c), the “Termination Date”). Notwithstanding any such termination, (x) the provisions set forth in Sections 12 to 26 shall survive the termination of this Agreement and (y) the termination of this Agreement shall not relieve any party hereto from any liability for any Willful Breach of, or Fraud in connection with, this Agreement prior to such termination.
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6. Representations and Warranties of each Stockholder. Each Stockholder hereby represents and warrants to Acquiror as to itself (and not to any other Stockholder) as follows:
(a) Such Stockholder is the only record and a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, such Stockholder’s Covered Shares, free and clear of Liens other than as created by this Agreement, the Existing Stockholders’ Agreement and restrictions on Transfer arising under generally applicable Securities Laws or under the Existing Stockholders’ Agreement. As of the date hereof, other than such Stockholder’s Owned Shares, such Stockholder does not own beneficially or of record any shares of capital stock of the Company (or any securities convertible into shares of capital stock of the Company).
(b) Such Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of such Stockholder’s Covered Shares (other than under the Existing Stockholders’ Agreement), (iii) has not granted a proxy or power of attorney with respect to any of such Stockholder’s Covered Shares (other than under the Existing Stockholders’ Agreement) and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, other than the Existing Stockholders’ Agreement.
(c) Such Stockholder (i) is a limited liability company, validly existing and in good standing under the Laws of Delaware, and (ii) has the limited liability company power and authority to own, lease or operate its assets and properties and to conduct its business as it is now being conducted and to execute and deliver this Agreement and each Transaction Document to which it is a party and to perform its obligations hereunder and thereunder. This Agreement has been, and each applicable Transaction Document will be, duly and validly executed and delivered by such Stockholder and, assuming due authorization and execution by each other party hereto and thereto, this Agreement constitutes, and each applicable Transaction Document will constitute, a legal, valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
(d) Other than the filings, notices and reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by such Stockholder from, or to be given by such Stockholder to, or be made by such Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by such Stockholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Business Combination Agreement.
(e) The execution, delivery and performance of this Agreement by such Stockholder does not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Business Combination Agreement does not and will not, (i) conflict with or violate any provision of, or result in the breach of, the certificate of formation, the limited liability company agreement or other organizational documents of such Stockholder, (ii) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, or result in the acceleration or trigger of any payment, posting of collateral (or right to require the posting of collateral), time of payment, vesting or increase in the amount of any compensation or benefit payable pursuant to, any of the terms, conditions or provisions of any Contract to which such Stockholder is a party or by which any of their respective assets or properties may be bound or affected, (iii) assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby) compliance with the matters referred to in Section 6(d), conflict with or result in any violation of any provision of any Law, Permit or Governmental Order applicable to such Stockholder or any of its properties or assets or (iv) result in the creation of any Lien upon any of the properties, equity interests or assets of such Stockholder, except, in the case of clause (ii), (iii) or (iv) above, for such violations, conflicts, breaches or defaults that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Business Combination Agreement.
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(f) As of the date of this Agreement, there are no pending or, to the knowledge of such Stockholder, threatened, Actions and there are no pending or, to the knowledge of such Stockholder, threatened investigations, in each case, against such Stockholder that questions the beneficial or record ownership of such Stockholder’s Owned Shares, the validity of this Agreement or the performance by such Stockholder of its obligations under this Agreement.
(g) No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission for which Acquiror or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of such Stockholder, on behalf of such Stockholder, other than, for the avoidance of doubt, the Company’s engagement of any investment banker, broker, finder or other intermediary as set forth in the Schedules.
(h) Such Stockholder has had the opportunity to read the Business Combination Agreement and this Agreement and has had the opportunity to consult with its tax and legal advisors.
7. Certain Covenants of each Stockholder. Except in accordance with the terms of this Agreement, each Stockholder hereby covenants and agrees as follows:
(a) During the Interim Period, such Stockholder shall not take, and shall direct its Representatives not to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement, letter of intent, memorandum of understanding or agreement in principle with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than Acquiror, its stockholders or any of their Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any Company Acquisition Proposal that would be consummated prior to Closing; provided, that nothing shall prohibit such Stockholder (or its Representatives) from contacting any Person (or such Person’s Representatives) who has made a Company Acquisition Proposal solely for the purpose of declining such Company Acquisition Proposal or notifying such Person of its obligations hereunder. Such Stockholder shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Company Acquisition Proposal that would be consummated prior to Closing; provided, that nothing shall prohibit such Stockholder (or its Representatives) from contacting such Person (or such Person’s Representatives) solely for the purpose of ceasing such negotiations or discussions.
(b) Such Stockholder hereby agrees that it shall not, and shall cause any other holder of record of any of the Atairos Covered Shares or Shannon Covered Shares, as applicable (including any Permitted Transferee (as defined in the Existing Stockholders’ Agreement), not to, directly or indirectly, prior to its Termination Date, except in connection with the consummation of the Merger, (i) sell, offer to sell, contract, agree to sell, transfer, hypothecate, pledge, grant any option to purchase, encumber, assign, hedge, swap, convert or otherwise dispose of (including by merger (including by conversion into securities or other consideration), by tendering into any tender or exchange offer, by testamentary disposition, by operation of Law or otherwise), either voluntarily or involuntarily or enter into any Contract or option with respect to the Transfer of any of such Stockholder’s Covered Shares, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Atairos Covered Shares or Shannon Covered Shares, as applicable, (iii) publicly announce any intention to effect any transaction specified in clauses (i) or (ii) (collectively, “Transfer”), or (iv) take any action that would make any representation or warranty of such Stockholder contained herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations under this Agreement; provided, however, that nothing herein shall prohibit a Transfer to a Permitted Transferee of such Stockholder (as defined in the Existing Stockholders’ Agreement) or exercising Company Options. Notwithstanding anything to the contrary contained herein, nothing in this Agreement shall prohibit any direct or indirect transfer of equity or other interests in any Stockholder. Such Stockholder hereby authorizes the Company to maintain a copy of this Agreement at either the executive office or the registered office of the Company.
(c) The Shannon Stockholder hereby agrees to (i) make a proper and timely Stock Election with respect to Shannon Covered Shares in accordance with the Business Combination Agreement to exchange all of the Shannon Covered Shares for shares of Applicable Surviving Company Common Stock and (ii) make a proper and timely Option Stock Election with respect to any Company Option held by the Shannon Stockholder that is outstanding immediately prior to the Effective Time.
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(d) The Atairos Stockholder hereby agrees to make a proper and timely Cash Election and Stock Election with respect to Atairos Covered Shares that are Company Common Stock in accordance with the Business Combination Agreement to exchange Atairos Covered Shares for 100% of the Cash Election Consideration Cap at the Closing and the remainder for shares of Applicable Surviving Company Common Stock.
8. No Trading. Each Stockholder acknowledges and agrees that it is aware, and that its directors and officers, if applicable, have been made aware, of the restrictions imposed by U.S. federal securities laws and the rules and regulations of the SEC promulgated thereunder or otherwise and other applicable foreign and domestic Laws on a Person possessing material nonpublic information about a publicly traded company (including the Acquiror).
9. Disclosure. Each Stockholder hereby authorizes the Company and Acquiror to publish and disclose in any announcement or disclosure required by the SEC such Stockholder’s identity and ownership of such Stockholder’s Covered Shares and the nature of such Stockholder’s obligations under this Agreement; provided, that prior to any such publication or disclosure the Company and Acquiror have provided such Stockholder with a reasonable opportunity to review and comment upon such announcement or disclosure, which comments the Company and Acquiror will consider in good faith.
10. Irrevocable Proxy. The Atairos Stockholder hereby revokes any proxies that it has heretofore granted with respect to its Atairos Owned Shares, hereby irrevocably constitutes and appoints Acquiror as attorney-in-fact and proxy in accordance with the DGCL for and on its behalf, for and in the Atairos Stockholder’s name, place and stead, solely in the event that the Atairos fails to comply in any material respect with its obligations hereunder in a timely manner, to vote the Atairos Owned Shares of the Atairos Stockholder and grant all written consents thereto, in each case in accordance with the provisions of Section 1 and represent and otherwise act for the Atairos Stockholder in the same manner and with the same effect as if the Atairos Stockholder were personally present at any meeting held for the purpose of voting on the foregoing. The foregoing proxy is coupled with an interest, is irrevocable and shall not be terminated by operation of Law or upon the occurrence of any other event other than following a termination of this Agreement pursuant to Section 5. The Atairos Stockholder authorizes such attorney-in-fact to file this proxy and any substitution or revocation with the Secretary of the Company. The Atairos Stockholder hereby affirms that, subject to the last sentence of this Section 10, the irrevocable proxy set forth in this Section 10 is given in connection with the execution by Acquiror of the Business Combination Agreement and that such irrevocable proxy is given to secure the obligations of the Atairos Stockholder under this Agreement. The irrevocable proxy set forth in this Section 10 is executed and intended to be irrevocable, subject to the last sentence of this Section 10. The Atairos Stockholder agrees not to grant any proxy that conflicts or is inconsistent with the proxy granted to Acquiror in this Agreement. The proxy set forth in this Section 10 shall be automatically revoked upon the Termination Date.
11. Changes in Capital Stock. In the event of a stock split, stock dividend or distribution, or any change in the Company’s capital stock by reason of any split-up, reverse stock split, recapitalization, combination, reclassification, exchange of shares or the like, the terms “Owned Shares” and “Covered Shares” shall be deemed to refer to and include such shares as well as all such stock dividends and distributions and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
12. Amendment, Waiver and Modification. This Agreement may be amended, modified or waived, in whole or in part, only by a duly authorized agreement in writing executed by the parties hereto which makes reference to this Agreement.
13. Notices. All notices and other communications among the parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service or (iv) when e-mailed during normal business hours (and otherwise as of the immediately following Business Day), addressed as follows:
if to the Shannon Stockholder, to it at:
9001 Collins Avenue
Apartment 409
Surfside, FL 33154
Attn: Thomas Shannon
E-mail: tshannon@bowlerocorp.com
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with a copy (which shall not constitute notice) to:
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036
Attn: Ronald R. Papa
E-mail: rpapa@proskauer.com
if to the Atairos Stockholder, to it at:
c/o Atairos Management, L.P.
620 Fifth Avenue
New York, NY 10020
Attn: Rachael Wagner
E-mail:
with a copy (which shall not constitute notice) to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Attn: William J. Chudd Harold Birnbaum
E-mail: william.chudd@davispolk.com harold.birnbaum@davispolk.com
if to Acquiror, to it at:
Isos Acquisition Corporation
55 Post Road W, Suite 200
Westport, CT 06880
Attn: Winston Meade
E-mail: wmeade@isoscap.com
with a copy (which shall not constitute notice) to:
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, NY 10004
Attn: Anson B. Frelinghuysen
E-mail: anson.frelinghuysen@hugheshubard.com
14. No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Acquiror any direct or indirect ownership or incidents of ownership of or with respect to the Covered Shares of each Stockholder. All rights, ownership and economic benefits of and relating to the Covered Shares of each Stockholder shall remain vested in and belong to such Stockholder, and Acquiror shall have no authority to manage, direct, restrict, regulate, govern or administer any of the policies or operations of Company or exercise any power or authority to direct any Stockholder in the voting or disposition of any of such Stockholder’s Covered Shares, except as otherwise provided herein.
15. Entire Agreement; No Survival.
(a) This Agreement, the Business Combination Agreement and the other Transaction Documents constitute the entire agreement among the parties relating to the subject matter hereof and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the parties hereto or any of their respective Subsidiaries relating to the transactions contemplated hereby.
(b) No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the matters contemplated by this Agreement exist between the parties except as expressly set forth in this Agreement and the Business Combination Agreement. None of the representations, warranties, covenants, obligations or other agreements in this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions, shall survive the Closing and shall terminate and expire upon the occurrence of the Effective Time (and there shall be no Liability after the Closing in respect thereof).
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16. No Third-Party Beneficiaries. Each Stockholder hereby agrees that its representations, warranties and covenants set forth herein are solely for the benefit of Acquiror in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any Person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein, and the parties hereto hereby further agree that this Agreement may only be enforced against, and any Action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against, the Persons expressly named as parties hereto.
17. Governing Law; Jurisdiction; Waiver of Trial by Jury.
(a) This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.
(b) Any Action based upon, arising out of or related to this Agreement shall be brought in the Court of Chancery of the State of Delaware or, if such court declines to exercise jurisdiction, any federal or state court located in New York County, New York, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such Action, waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of the Action shall be heard and determined only in any such court, and agrees not to bring any Action arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by Law, or to commence legal proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Action brought pursuant to this Section 17. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18. Assignment; Successors. No party hereto shall assign this Agreement or any part hereof without the prior written consent of the other parties. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. Any attempted assignment in violation of the terms of this Section 18 shall be null and void, ab initio.
19. Trust Account Waiver. Each Stockholder hereby understands and acknowledges that Acquiror has established the Trust Account containing the proceeds of its initial public offering and the overallotment securities acquired by its underwriters and from certain private placements occurring simultaneously with such initial public offering (including interest accrued from time to time thereon) for the benefit of Acquiror Public Stockholders and that disbursements from the Trust Account are available only in certain limited circumstances. Accordingly, each Stockholder (on behalf of itself and its Affiliates) hereby agrees neither such Stockholder nor any of its Affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating to, this Agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (collectively, the “Released Claims”). Each Stockholder (on behalf of itself and its Affiliates) hereby irrevocably waives any Released Claims that such Stockholder or any of its Affiliates may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, contracts or agreements with Acquiror or its Representatives and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of this Agreement). Each Stockholder agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by Acquiror and its affiliates to induce Acquiror to enter into this Agreement, and each Stockholder further intends and understands such waiver to be valid, binding and enforceable against such Stockholder and each of its Affiliates under applicable Law. To the extent any Stockholder or any of its Affiliates commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to Acquiror or its Representatives, which proceeding seeks, in whole or in part, monetary relief against Acquiror or its Representatives, such Stockholder hereby acknowledges and agrees that such Stockholder’s and its Affiliates’ sole remedy for monetary damages shall be against funds held outside of the Trust Account and that such claim shall not permit such Stockholder or its Affiliates to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. In the event any Stockholder or any of
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its Affiliates commences any action or proceeding based upon, in connection with, relating to or arising out of a Released Claim, which proceeding seeks, in whole or in part, relief against the Trust Account (including any distributions therefrom) or the Acquiror Public Stockholders (solely in such capacity), whether in the form of money damages or injunctive relief, Acquiror and its Representatives, as applicable, shall be entitled to recover from such Stockholder and its Affiliates the associated legal fees and costs in connection with any such action, in the event Acquiror or its Representatives, as applicable, prevails in such action or proceeding. Notwithstanding the other provisions of this Section 19, (i) references to distributions from the Trust Account (including “distributions therefrom”) means distributions to the Acquiror Public Stockholders and (ii) “Released Claims” do not include, and the release contained herein shall not apply to, any claim (A) that arises as a result of, in connection with or relating to a written agreement entered into following execution of this Agreement (except as set forth in such written agreement), (B) against monies released to such Stockholder or Acquiror or any of its Affiliates in connection with a Business Combination or (C) claims by any person in a capacity as an Acquiror Public Stockholder.
20. Non-Recourse. Each party to this Agreement agrees, on behalf of itself and its Related Parties, that all Actions (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to: (a) this Agreement or any of the Transactions; (b) the negotiation, execution or performance of this Agreement; (c) any breach or violation of this Agreement; and (d) any failure of any of the Transactions to be consummated, in each case, may be made only against (and are those solely of) the Persons that are expressly identified as parties to this Agreement and in accordance with, and subject to the terms and conditions of, this Agreement. Notwithstanding anything in this Agreement, each party to this Agreement agrees, on behalf of itself and its Related Parties, that no recourse under this Agreement or in connection with any of the Transactions will be sought or had against any other Person, including any Related Party, and no other Person, including any Related Party, will have any Liabilities (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise), for any claims, causes of action or Liabilities arising under, out of, in connection with or related in any manner to the items in the immediately preceding clauses (a) through (d), it being expressly agreed and acknowledged that no personal Liability or losses whatsoever will attach to, be imposed on or otherwise be incurred by any of the aforementioned, as such, arising under, out of, in connection with or related in any manner to the items in the immediately preceding clauses (a) through (d), in each case, except for claims that any Stockholder or Acquiror, as applicable, may assert against the other Stockholder or Acquiror, as applicable, solely in accordance with, and pursuant to the terms and conditions of, this Agreement. Notwithstanding anything to the contrary in this Agreement, no Related Party will be responsible or liable for any multiple, consequential, indirect, special, statutory, exemplary or punitive damages that may be alleged as a result of this Agreement or any of the Transactions, or the termination or abandonment of any of the foregoing.
21. Enforcement. The parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties do not perform their obligations under the provisions of this Agreement in accordance with its specified terms or otherwise breach such provisions. The parties acknowledge and agree that (a) the parties shall be entitled to an injunction, specific performance, or other equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, including each Stockholder’s obligations to vote its Covered Shares as provided in this Agreement, without proof of damages, prior to the valid termination of this Agreement, this being in addition to any other remedy to which they are entitled under this Agreement, and (b) the right of specific enforcement is an integral part of the transactions contemplated by this Agreement and without that right, none of the parties would have entered into this Agreement. Each party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other parties have an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The parties acknowledge and agree that any party seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 21 shall not be required to provide any bond or other security in connection with any such injunction.
22. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this
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Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties.
23. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
24. Interpretation and Construction.
(a) Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, (iv) the term “Section,” refers to the specified Section of this Agreement unless otherwise specified, (v) the word “including” shall mean “including without limitation” and (vi) the word “or” shall be disjunctive but not exclusive.
(b) Unless the context of this Agreement otherwise requires, references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto.
(c) Unless the context of this Agreement otherwise requires, references to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation.
(d) The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent and no rule of strict construction shall be applied against any party.
25. Capacity as a Stockholder. Notwithstanding anything herein to the contrary, each Stockholder signs this Agreement solely in such Stockholder’s capacity as a stockholder of the Company, and not in any other capacity and this Agreement shall not limit or otherwise affect the actions of any Affiliate, director, officer, employee or designee of such Stockholder or any of its affiliates in his or her capacity, if applicable, as an officer or director of the Company or any other Person.
26. Waiver; Termination of Affiliate Agreements.
(a) Pursuant to Section 8.5(a) of the Existing Stockholders’ Agreement, the Company and each Stockholder, by signing this Agreement, hereby expressly and irrevocably waive the applicability of Section 8.4(b) of the Existing Stockholders’ Agreement with respect to each Stockholder entering into this Agreement in connection with the Business Combination Agreement.
(b) Pursuant to Section 8.5(a) of the Existing Stockholders’ Agreement, the Company and each Stockholder, by signing this Agreement, hereby expressly and irrevocably waive the applicability of Section 2.12(b) of the Existing Stockholders’ Agreement with respect to each of (i) the Business Combination Agreement and (ii) the Merger and the other Transactions, including each Stockholder’s prior approval of the foregoing.
(c) Each Stockholder and the Company hereby irrevocably agrees that the Existing Stockholders’ Agreement shall be terminated effective as of, and contingent upon, the Closing; and
(d) The Atairos Stockholder agrees to cause Atairos Management L.P. to terminate that certain Expense Reimbursement Agreement, dated July 3, 2017, by and between Bowlmor AMF Corp. and Atairos Management, L.P. effective as of, and contingent upon, the Closing.
27. Expense Reimbursement. The Company shall reimburse the Atairos Stockholder for or pay the reasonable legal fees incurred by the Atairos Stockholder or any of its Affiliates relating to the negotiation and preparation of this Agreement, the Business Combination Agreement and the other Transaction Documents; provided, however that such reimbursement for legal fees shall not exceed $475,000.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed (where applicable, by their respective officers or other authorized Persons thereunto duly authorized) as of the date first written above.
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ISOS ACQUISITION CORPORATION
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By:
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Name:
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Title:
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[Signature Page to Stockholder Support Agreement]
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Cobalt Recreation LLC
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By:
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Name:
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Title:
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BOWLERO CORP., entering into this Agreement solely with respect to Section 26 and Section 27
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By:
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Name:
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Title:
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[Signature Page to Stockholder Support Agreement]
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A-B Parent LLC
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By:
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Name:
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Title:
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[Signature Page to Stockholder Support Agreement]
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Annex H
Execution Version
SPONSOR SUPPORT AGREEMENT
This Sponsor Support Agreement (this “Sponsor Agreement”) is dated as of July 1, 2021, by and among Isos Acquisition Sponsor LLC, a Delaware limited liability company (the “Sponsor”), LionTree Partners LLC, a Delaware limited liability company (“LionTree” and together with the Sponsor, each, a “Sponsor Vehicle”), Isos Acquisition Corporation, a Cayman Islands corporation (the “Company”), and Bowlero Corp., a Delaware corporation (“Target”). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
RECITALS
WHEREAS, as of the date hereof, the Sponsor owns 5,814,636 shares (the “Sponsor Initial Shares,” of which 4,814,636 of such shares shall be “Sponsor Subject Shares”), of Class B common stock of the Company, par value $0.0001 per share (the “Class B Common Stock”) and 3,963,458 redeemable private placement warrants (the “Sponsor Subject Warrants”) of the Company;
WHEREAS, as of the date hereof, LionTree owns 556,289 shares (the “LionTree Subject Shares” and together with the Sponsor Subject Shares, the “Subject Shares”) of Class B Common Stock and 1,434,370 redeemable private placement warrants (the “LionTree Subject Warrants” and together with the Sponsor Subject Warrants, the “Subject Warrants”) of the Company;
WHEREAS, Article 17.1 of the Company’s Amended and Restated Memorandum and Articles of Association (the “Company’s M&A”) provides, among other matters, that the Class B Common Stock will automatically convert into shares of Class A common stock of the Company, par value $0.0001 per share (the “Class A Common Stock” and together with the Class B Common Stock, the “Company Common Stock”), following consummation of a Business Combination (as defined in the Company’s M&A), subject to adjustments if, among other things, additional shares of Class A Common Stock are issued or deemed issued in excess of the amounts issued and sold in the Company’s initial public offering (the “Anti-Dilution Right”), excluding certain exempted issuances;
WHEREAS, contemporaneously with the execution and delivery of this Sponsor Agreement, the Company and the Target have entered into that certain Business Combination Agreement, dated as of the date hereof (as it may be amended or supplemented from time to time, the “Business Combination Agreement”); and
WHEREAS, as a condition and inducement to the Target’s and the Company’s willingness to enter into the Business Combination Agreement and to consummate the Transactions, the Target and the Company have required that each Sponsor Vehicle enter into this Sponsor Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the following meanings:
Section 1.1 “Applicable Portion” means a fraction, expressed as a percentage (not to exceed 100%), equal to (i) the aggregate amount of cash proceeds that will be required to satisfy the redemption of any shares of Class A Common Stock pursuant to the Offer, not to exceed $80,000,000, divided by (ii) $80,000,000.
Section 1.2 “$15.00 Share Price Milestone” shall have the meaning ascribed to such term in the Business Combination Agreement.
Section 1.3 “$17.50 Share Price Milestone” shall have the meaning ascribed to such term in the Business Combination Agreement.
Section 1.4 “Earnout Expiry Date” means the fifth (5th) anniversary of the Closing Date.
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Section 1.5 “Earnout Period” means the period commencing on the Closing Date and ending five (5) years thereafter.
Section 1.6 “LionTree First Trigger Securities” means 83,444 LionTree Vesting Shares and 215,156 LionTree Vesting Warrants.
Section 1.7 “LionTree Second Trigger Securities” means the remaining 83,443 LionTree Vesting Shares and 215,155 LionTree Vesting Warrants.
Section 1.8 “Lock-up Period” means the period beginning on the Closing Date and ending on the date that is the twelve (12) month anniversary of the Closing Date.
Section 1.9 “Lock-up Shares” means the Subject Shares and the Subject Warrants (and any shares of Company Common Stock issuable upon exercise of any Subject Warrants).
Section 1.10 “Permitted Transferees” means any person or entity to whom a Sponsor Vehicle is permitted to Transfer Lock-up Shares prior to the expiration of the Lock-up Period in accordance with the terms of Section 3.2.
Section 1.11 “Share Price Milestone” means each of the $15.00 Share Price Milestone and the $17.50 Share Price Milestone.
Section 1.12 “Sponsor First Trigger Securities” means 722,196 Sponsor Vesting Shares and 594,519 Sponsor Vesting Warrants.
Section 1.13 “Sponsor Second Trigger Securities” means the remaining 722,195 Sponsor Vesting Shares and 594,518 Sponsor Vesting Warrants.
Section 1.14 “Vesting Securities” means the LionTree Vesting Securities and the Sponsor Vesting Securities, collectively.
ARTICLE II
SPONSOR SUPPORT AGREEMENT; COVENANTS
Section 2.1 New Shares. In the event that any Company Common Stock, Company warrants or other equity securities of Company are issued to a Sponsor Vehicle after the date of this Sponsor Agreement pursuant to any stock dividend, stock split, recapitalization, reclassification, combination or exchange of Subject Shares or Subject Warrants of, on or affecting the Subject Shares or Subject Warrants (such Company Common Stock, Company warrants or other equity securities of Company, collectively the “New Securities”), then such New Securities acquired by such Sponsor Vehicle shall be subject to the terms of this Sponsor Agreement to the same extent as if they constituted Subject Shares or Subject Warrants owned by such Sponsor Vehicle as of the date hereof.
Section 2.2 Sponsor Vehicle Agreements.
(a) At any meeting of the stockholders of Company, however called, or at any adjournment thereof, or in any other circumstance in which the vote, consent or other approval of the stockholders of Company is sought, each Sponsor Vehicle shall (i) appear at each such meeting or otherwise cause all of its Company Common Stock (including in the case of the Sponsor, all Sponsor Initial Shares, and in the case of LionTree, all LionTree Subject Shares) to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted), or execute and deliver a written consent (or cause a written consent to be executed and delivered) covering, all of its Company Common Stock:
(1) in favor of each Proposal (including the Transaction Proposal) and any other matters necessary or reasonably requested by the Target for consummation of the Merger and the other transactions contemplated by the Business Combination Agreement;
(2) against any Acquiror Business Combination Proposal or any proposal relating to an Acquiror Business Combination Proposal (in each case, other than the Transaction Proposal);
(3) against any merger agreement or merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by Company (other than the Business Combination Agreement and the Transactions);
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(4) against any proposal, action or agreement that would (A) impede, interfere with, delay, postpone, frustrate, prevent or nullify any provision of this Sponsor Agreement, the Business Combination Agreement or the Transactions, or (B) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement of the Company under the Business Combination Agreement; and
(5) against any change in the Board of Directors of Company (other than as provided for in the Business Combination Agreement).
Each Sponsor Vehicle agrees that it shall not commit or agree to take any action inconsistent with the foregoing.
(b) Each Sponsor Vehicle agrees and acknowledges that it shall comply with, and fully perform all of its obligations, covenants and agreements set forth in, and shall not amend, modify or waive any provision of, that certain Letter Agreement, dated as of March 2, 2021 (the “Insider Letter”), by and among the Sponsor, LionTree and the Company. In addition to, and not in limitation of, the foregoing, each Sponsor Vehicle agrees that it shall not, and shall cause any of its respective Permitted Transferees not to, redeem any Company Common Stock owned by such Sponsor Vehicle in connection with the Transaction. Prior to any valid termination of the Business Combination Agreement, each Sponsor Vehicle shall take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary under applicable Laws to consummate the Merger and each of the other Transactions on the terms and subject to the conditions set forth in the Business Combination Agreement. The obligations of the Sponsor Vehicles specified in this Section 2.2(b) shall apply whether or not the Merger or any of the other Transactions is recommended by the Company’s board of directors or the Company’s board of directors has effected an Acquiror Change in Recommendation.
(c) Each Sponsor Vehicle, solely in connection with and only for the purpose of the proposed Transaction, hereby waives, to the fullest extent permitted by law, (i) the Anti-Dilution Right, and agrees that the Sponsor Initial Shares (in the case of the Sponsor) and the LionTree Subject Shares (in the case of LionTree) will convert only at the Initial Conversion Ratio (as defined in the Company’s M&A) in connection with the Transaction and (ii) any rights of the such Sponsor Vehicle and its Affiliates to convert any loans made by such person to the Company into warrants to purchase Company Common Stock. This waiver shall be void and of no force and effect upon the valid termination of the Business Combination Agreement in accordance with its terms. All other terms related to the Sponsor Initial Shares and the LionTree Subject Shares shall remain in full force and effect, except as modified as set forth directly above, which modification shall be effective only upon the consummation of the Transaction.
Section 2.3 Forgiveness of Indebtedness.
(a) Immediately prior to the Closing, to the extent the Company has incurred Indebtedness in accordance with Section 7.02(a)(viii) of the Business Combination Agreement, the Sponsor shall, and shall cause its Affiliates to, forgive any such Indebtedness that remains outstanding immediately prior to the Closing in excess of the Acquiror Debt Limit, including executing any documents, and performing any further acts, as may be reasonably necessary or appropriate to give full effect to the forgiveness of such excess Indebtedness.
(b) Except as disclosed in the Company’s final prospectus dated as of March 2, 2021, no Sponsor Vehicle or any Affiliate thereof, and no director or officer of the Company, shall receive from the Company any finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is, but including, for the avoidance of doubt, the Merger), other than the following, none of which will be made from the proceeds held in the Trust Account prior to the completion of the initial Business Combination: (i) repayment of any Indebtedness incurred in accordance with Section 7.02(a)(viii) of the Business Combination Agreement, (ii) the option fee payable to certain of the Sponsor’s members pursuant to the Apollo Fee Letter (as defined in the Business Combination Agreement), (iii) the placement agent fees payable to LionTree or an Affiliate thereof in connection with the PIPE offerings, or (iv) the financial advisory fees payable to LionTree or an Affiliate thereof in connection with the Business Combination.
Section 2.4 Termination of Administrative Agreement. The Sponsor shall cause the Administrative Support Agreement, dated March 2, 2021, by and between the Company and Isos Capital Management L.P. to be terminated in connection with the Closing.
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ARTICLE III
TRANSFER rESTRICTIONS
Section 3.1 Lock-Up. Subject to Section 3.2, each Sponsor Vehicle agrees that it shall not, and shall cause its Permitted Transferees not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase, make any short sale or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any Lock-up Shares owned by such Sponsor Vehicle, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any shares of Lock-up Shares owned by such Sponsor Vehicle, or (iii) publicly announce any intention to effect any transaction specified in clause (i) or (ii) (clauses (i) – (iii) collectively, “Transfer”) any Lock-up Shares prior to the expiration of the Lock-up Period.
Section 3.2 Certain Permitted Transfers. Notwithstanding the provisions set forth in Section 3.1, each Sponsor Vehicle and its Permitted Transferees may Transfer the Lock-up Shares during the Lock-up Period (a) to (i) the Company’s officers or directors, (ii) any affiliates or family members of the Company’s officers or directors or (iii) any direct or indirect partners, members or equity holders of such Sponsor Vehicle or Permitted Transferee, any affiliates of such Sponsor Vehicle or Permitted Transferee, or any related investment funds or vehicles controlled or managed by such persons or their respective affiliates; (b) in the case of an individual, by gift to a member of the individual’s immediate family or to a trust, the beneficiary of which is a member of the individual’s immediate family, and the sole trustee of which is such individual; (c) by gift to a charitable organization; (d) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (e) in the case of an individual, pursuant to a qualified domestic relations order; (f) to the Company; or (g) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board of Directors of the Company or a duly authorized committee thereof or other similar transaction which results in all of the Company’s stockholders having the right to exchange their shares of Class A Common Stock for cash, securities or other property subsequent to the Closing Date; provided, however, that in the case of clauses (a) through (e) these permitted transferees must enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Article III and the voting obligations in Section 2.2.
ARTICLE IV
forfeiture and VESTING
Section 4.1 Forfeiture of Subject Shares. Immediately prior to, and contingent upon, the Closing, (the “Cancellation Effective Time”), (i) the Sponsor shall transfer to the Company for forfeiture and cancellation the sum of (a) 722,196 Sponsor Subject Shares, plus (b) the Applicable Portion of an additional 1,203,659 Sponsor Subject Shares, and (ii) LionTree shall transfer to the Company for forfeiture and cancellation the sum of (a) 83,443 LionTree Subject Shares, plus (b) the Applicable Portion of an additional 139,072 LionTree Sponsor Shares. For purposes of this Agreement, any Shares forfeited pursuant to this Section 4.1 shall be “Forfeited Shares.”
Section 4.2 Unvested Company Securities.
(a) The Sponsor agrees that upon the Cancellation Effective Time, (i) 1,444,391 of the Sponsor Subject Shares (such shares, the “Sponsor Vesting Shares”), and (ii) 1,189,037 of the Sponsor Subject Warrants (the “Sponsor Vesting Warrants” and together with the Sponsor Vesting Shares, the “Sponsor Vesting Securities”) shall be unvested at Closing and shall be subject to the vesting and forfeiture provisions set forth in this Article IV (with the remaining Sponsor Subject Shares (and any Sponsor Initial Shares that are not Sponsor Subject Shares) and Sponsor Subject Warrants being vested at Closing and not subject to forfeiture).
(b) LionTree agrees that upon the Cancellation Effective Time, (i) 166,887 of the LionTree Subject Shares (such shares, the “LionTree Vesting Shares”), and (ii) 430,311 of the LionTree Subject Warrants (the “LionTree Vesting Warrants” and together with the LionTree Vesting Shares, the “LionTree Vesting Securities”) shall be unvested at Closing and shall be subject to the vesting and forfeiture provisions set forth in this Article IV (with the remaining LionTree Subject Shares and LionTree Subject Warrants being vested at Closing and not subject to forfeiture).
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Section 4.3 Performance Vesting.
(a) The Sponsor, the Company and the Target agree that of the Sponsor Vesting Securities:
(i) the Sponsor First Trigger Securities shall vest (and not be subject to forfeiture) upon the occurrence of the $15.00 Share Price Milestone; and
(ii) the Sponsor Second Trigger Securities shall vest (and not be subject to forfeiture) upon the occurrence of the $17.50 Share Price Milestone.
(b) LionTree, the Company and the Target agree that of the LionTree Vesting Securities:
(i) the LionTree First Trigger Securities shall vest (and not be subject to forfeiture) upon the occurrence of the $15.00 Share Price Milestone; and
(ii) the LionTree Second Trigger Securities shall vest (and not be subject to forfeiture) upon the occurrence of the $17.50 Share Price Milestone.
(c) If a Share Price Milestone does not occur during the period commencing on the Closing Date and ending on the Earnout Expiry Date, the applicable securities that were eligible to vest as provided in this Section 4.3 shall not vest, and shall be forfeited, deemed transferred by the forfeiting holder to the Company, and shall be cancelled by the Company and cease to exist.
(d) To effect the forfeiture and cancellation of any Vesting Securities that have not vested in accordance with the terms of this Sponsor Agreement upon the expiry of the Earnout Period (such unvested Vesting Securities, the “Forfeited Vesting Securities”), on the Earnout Expiry Date:
(i) the applicable Sponsor Vehicle shall transfer the applicable Forfeited Vesting Securities to the Company for cancellation in exchange for no consideration;
(ii) the Company shall immediately retire and cancel all of the Forfeited Vesting Securities (and shall direct the Company’s transfer agent (or such other intermediaries as appropriate) to take any and all such actions incident thereto); and
(iii) the applicable Sponsor Vehicle shall take such other actions as reasonably requested by the Company (at the Company’s sole cost and expense) to cause the applicable Forfeited Vesting Securities to be retired and cancelled,
after which such Forfeited Vesting Securities shall no longer be issued or outstanding.
Section 4.4 Company Sale. In the event that an Acceleration Event (as defined in the Business Combination Agreement) occurs after the Closing but on or prior to the Earnout Expiry Date, then any Vesting Securities that have not previously vested shall be deemed vested to the holders of such Vesting Securities as of immediately prior to the Effective Time upon such Acceleration Event, unless, in the case of an Acceleration Event that is a Change of Control (as defined in the Business Combination Agreement), the value of the consideration to be received by the holders of Surviving Company Common Stock in such Change of Control transaction is less than the stock price threshold applicable to the $15.00 Share Price Milestone and/or the $17.50 Share Price Milestone, as applicable; provided, that the determinations of such consideration and value shall be determined in good faith by the disinterested members of the Surviving Company Board; and provided, further that such Vesting Securities that are not deemed vested as of such Change of Control transaction shall be cancelled to the extent that such Change of Control transaction consists of a sale of the Surviving Company by merger, business combination or otherwise in which the stockholders of the Surviving Company receive only cash consideration for their shares. In the case of a Change of Control transaction consisting of a sale of the Surviving Company by merger, business combination or otherwise in which the stockholders of the Surviving Company receive other than only cash consideration for their shares, the board of directors of the Surviving Company shall determine the treatment of the Vesting Securities in their sole discretion; provided that the Vesting Securities shall be entitled to the same treatment granted to a majority of the Earnout Shares (taking into account the Earnout Shares that are already issued).
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Section 4.5 Rights over Unvested Securities. Subject to the limitations contemplated herein, with respect to the Vesting Securities, the applicable Sponsor Vehicle (and/or its Permitted Transferee(s)) shall have the right to receive dividends and/or distributions made to the holders of Company Common Stock and to voting rights generally granted to holders of Company Common Stock; provided, however, that any dividends or other distributions payable with respect to such unvested Vesting Securities shall be set aside by the Company and shall be paid to the applicable Sponsor Vehicle (and/or its Permitted Transferee(s)) upon the vesting of the applicable Vesting Securities (if at all); provided, further, that to the extent not yet vested, the Vesting Securities shall not entitle the holder thereof to consideration in connection with any sale or other transaction except as provided in Section 4.4 and other than for any permitted transfers pursuant to Article III, may not be offered, sold, transferred, redeemed, assigned, pledged, hypothecated, encumbered or otherwise disposed of (whether by operation of law or otherwise) by a Sponsor Vehicle (and/or its Permitted Transferee(s)), as the case may be, or be subject to execution, attachment or similar process, and shall bear a customary legend with respect to such transfer restrictions. Any attempt to so sell, transfer, assign, pledge, hypothecate, encumber or otherwise dispose of such Vesting Securities shall be null and void.
ARTICLE V
REPRESENTATIONS and WARRANTIES
Section 5.1 Each party to this Sponsor Agreement represents and warrants to the other parties hereto as follows as of the date hereof:
(a) Such party is an entity duly incorporated, validly existing and in good standing under the laws of its jurisdiction of formation and is qualified to do business in every jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results or assets of such party. Such party possesses all requisite entity power and authority necessary to carry out the transactions contemplated by this Sponsor Agreement.
(b) The execution, delivery and performance of this Sponsor Agreement and the consummation of the transactions contemplated hereby have been duly authorized by such party.
(c) This Sponsor Agreement has been duly executed and delivered by such party and, assuming due authorization, execution and delivery by the other parties to this Sponsor Agreement, constitutes a legally valid and binding obligation of such party, enforceable against such party in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
(d) The execution and delivery by such party of this Sponsor Agreement and the fulfillment of and compliance with the terms hereof by such party will not (i) conflict with or result in a violation of the organizational documents of such party or (ii) require any consent or approval that has not been given or other action that has not been taken by any third party (including under any contract binding upon such party or, in the case of the Sponsor, the Sponsor Initial Shares and the Subject Warrants, and in the case of LionTree, the LionTree Subject Shares and the LionTree Subject Warrants), in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by such party of its obligations under this Sponsor Agreement.
(e) There are no Actions pending against such party or, to the knowledge of such party, threatened against such party, before (or, in the case of threatened Actions that would be before) any arbitrator or any Governmental Authority, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by such party of its obligations under this Sponsor Agreement.
(f) No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by such party or any of its Affiliates, except, (i) in the case of the Target, as set forth on Schedule 4.14 of the Business Combination Agreement, (ii) in the case of the Company, as set forth on Acquiror Schedule 5.10 of the Business Combination Agreement, or (iii) as otherwise set forth in this Agreement.
(g) Such party has not entered into, and shall not enter into, any agreement that would restrict, limit or interfere with the performance of such party’s obligations hereunder.
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Section 5.2 Each Sponsor Vehicle further represents and warrants to the Target and the Company as follows as of the date hereof:
(a) It has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked.
(b) It has had the opportunity to read the Business Combination Agreement and this Sponsor Agreement and has had the opportunity to consult with its tax and legal advisors.
Section 5.3 The Sponsor further represents and warrants to the Target and the Company as follows as of the date hereof:
(a) The Sponsor has good title to all Sponsor Initial Shares and Sponsor Subject Warrants, and there exist no Liens or any other limitation or restriction (including, without limitation, any restriction on the right to vote, sell or otherwise dispose of such Sponsor Initial Shares or Sponsor Subject Warrants (other than transfer restrictions under the Securities Act)) affecting any such Sponsor Initial Shares or Sponsor Subject Warrants, other than pursuant to (i) this Sponsor Agreement, (ii) the Company’s M&A, (iii) the Business Combination Agreement, (iv) the Registration Rights Agreement, dated as of March 2, 2021, by and among the Company, the Sponsor and the other parties thereto, (v) restrictions on transfer in the Sponsor’s limited liability company agreement, or (vi) any applicable securities laws.
(b) The Sponsor Initial Shares and Sponsor Subject Warrants are the only shares of Company Common Stock and the only warrants to purchase Company Common Stock owned of record or beneficially owned by the Sponsor as of the date hereof, and none of such Sponsor Initial Shares or Sponsor Subject Warrants is subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such Sponsor Initial Shares or Sponsor Subject Warrants, except as provided in this Sponsor Agreement.
Section 5.4 LionTree further represents and warrants to the Target and the Company as follows as of the date hereof:
(a) LionTree has good title to all LionTree Subject Shares and LionTree Subject Warrants, and there exist no Liens or any other limitation or restriction (including, without limitation, any restriction on the right to vote, sell or otherwise dispose of such LionTree Subject Shares or LionTree Subject Warrants (other than transfer restrictions under the Securities Act)) affecting any such LionTree Subject Shares or LionTree Subject Warrants, other than pursuant to (i) this Sponsor Agreement, (ii) the Company’s M&A, (iii) the Business Combination Agreement, (iv) the Registration Rights Agreement, dated as of March 2, 2021, by and among the Company, the Sponsor and the other parties thereto, (v) restrictions on transfer in LionTree’s limited liability company agreement, or (vi) any applicable securities laws.
(b) The LionTree Subject Shares and LionTree Subject Warrants are the only shares of Company Common Stock and the only warrants to purchase Company Common Stock owned of record or beneficially owned by LionTree as of the date hereof, and none of such LionTree Subject Shares or LionTree Subject Warrants is subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such LionTree Subject Shares or LionTree Subject Warrants, except as provided in this Sponsor Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Termination. This Sponsor Agreement and all of its provisions shall terminate and be of no further force or effect upon the termination of the Business Combination Agreement in accordance with Article X thereof. Upon such termination of this Sponsor Agreement, all obligations of the parties under this Sponsor Agreement will terminate, without any liability or other obligation on the part of any party hereto to any Person in respect hereof or the transactions contemplated hereby, and no party hereto shall have any claim against another (and no Person shall have any rights against such party), whether under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Sponsor Agreement shall not relieve any party hereto from liability arising in respect of any willful and material breach of this Sponsor Agreement prior to such termination.
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Section 6.2 Changes in Capital Stock. If, and as often as, there are any changes in the Company or the Company Common Stock by way of stock split, stock dividend, combination or reclassification, or through merger, consolidation, reorganization, recapitalization or business combination, or by any other means, equitable adjustment shall be made to the provisions of this Sponsor Agreement as may be required so that the rights, privileges, duties and obligations hereunder shall continue with respect to the Company, the Sponsor and LionTree, the Sponsor Initial Shares, the Subject Shares, the Subject Warrants and the Vesting Securities as so changed.
Section 6.3 Governing Law. This Sponsor Agreement, the rights and duties of the parties hereto, any disputes (whether in contract, tort or statute), and the legal relations between the parties arising hereunder shall be governed by and interpreted and enforced in accordance with the laws of the State of Delaware without reference to the conflicts of laws provisions thereof.
Section 6.4 Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Sponsor Agreement shall be brought against any of the parties in the United States District Court for the District of Delaware or any Delaware state court located in Wilmington, Delaware, and each of the parties hereby consents to the exclusive jurisdiction of such court (and of the appropriate appellate courts) in any such suit, action or proceeding and waives any objection to venue laid therein. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.
Section 6.5 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS SPONSOR AGREEMENT.
Section 6.6 Assignment. This Sponsor Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. Neither this Sponsor Agreement nor any of the rights, interests or obligations hereunder may be assigned (including by operation of law) without the prior written consent of the parties hereto. Any attempted assignment in violation of the terms of this Section 6.6 shall be null and void, ab initio.
Section 6.7 Specific Performance. The parties hereto agree that irreparable damage may occur in the event that any of the provisions of this Sponsor Agreement were not performed in accordance with their specific terms or were otherwise breached. The parties acknowledge and agree that (a) the parties shall be entitled to an injunction, specific performance, or other equitable relief in the chancery court or any other state or federal court within the State of Delaware, to prevent breaches of this Sponsor Agreement and to enforce specifically the terms and provisions hereof, without proof of damages, prior to the valid termination of this Sponsor Agreement in accordance with Section 6.1, this being in addition to any other remedy to which they are entitled under this Sponsor Agreement, and (b) the right of specific enforcement is an integral part of the transaction contemplated by this Sponsor Agreement and without that right, none of the parties would have entered into this Sponsor Agreement. Each party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other parties have an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The parties acknowledge and agree that any party seeking an injunction to prevent breaches of this Sponsor Agreement and to enforce specifically the terms and provisions of this Sponsor Agreement in accordance with this Section 6.7 shall not be required to provide any bond or other security in connection with any such injunction.
Section 6.8 Amendment. This Sponsor Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, except upon the execution and delivery of a written agreement executed by each of the parties hereto.
Section 6.9 Severability. In the event that any provision of this Sponsor Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
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Section 6.10 Notices. All notices and other communications among the parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service, or (iv) when delivered by email during normal business hours, addressed as follows:
If to Company:
Isos Acquisition Corporation
55 Post Road W, Suite 200
Westport, CT 06880
Attention: Winston Meade
Email: wmeade@isoscap.com
with a copy to (which will not constitute notice):
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004
Attention: Anson Frelinghuysen
Email: anson.frelinghuysen@hugheshubbard.com
If to Target:
Bowlero Corp.
222 West 44th Street
New York, NY 10036
Attn: Brett I. Parker
Email:
with a copy to (which will not constitute notice):
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
Attention: Jeffrey D. Marell; Michael Vogel
Email: jmarell@paulweiss.com; mvogel@paulweiss.com
If to Sponsor:
Isos Acquisition Sponsor LLC
55 Post Road W, Suite 200
Westport, CT 06880
Attention: Winston Meade
Email: wmeade@isoscap.com
with a copy to (which will not constitute notice):
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004
Attention: Anson Frelinghuysen
Email: anson.frelinghuysen@hugheshubbard.com
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If to LionTree:
LionTree Partners LLC
660 Madison Avenue
New York, New York 10065
Attention: Ehren Stenzler
Email: estenzler@liontree.com
with a copy to (which will not constitute notice):
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York 10020
Attention: Sidney Burke
Email: sidney.burke@dlapiper.com
Section 6.11 No Joint Venture. Nothing contained in this Sponsor Agreement shall be deemed or construed as creating a joint venture or partnership between any of the parties hereto. No party is by virtue of this Sponsor Agreement authorized as an agent, employee or legal representative of any other party. Without in any way limiting the rights or obligations of any party hereto under this Sponsor Agreement, prior to the Effective Time, (i) no party shall have the power by virtue of this Sponsor Agreement to control the activities and operations of any other and (ii) no party shall have any power or authority by virtue of this Sponsor Agreement to bind or commit any other party. No party shall hold itself out as having any authority or relationship in contravention of this Section 6.11.
Section 6.12 Construction. Unless the context of this Sponsor Agreement otherwise requires, (a) words of any gender include each other gender, (b) words using the singular or plural number also include the plural or singular number, respectively, (c) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, (d) the terms “Article” and “Section” refer to the specified Article or Section of this Sponsor Agreement unless otherwise specified, (e) the word “including” shall mean “including without limitation”, (f) the word “or” shall be disjunctive but not exclusive, (g) references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto, and (h) references to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation. The language used in this Sponsor Agreement shall be deemed to be the language chosen by the parties to express their mutual intent and no rule of strict construction shall be applied against any party. Whenever this Sponsor Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day.
Section 6.13 Counterparts. This Sponsor Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
Section 6.14 Entire Agreement. This Sponsor Agreement, together with the Business Combination Agreement and the agreements contemplated thereby, constitutes the full and entire understanding and agreement among the parties, and supersedes any prior agreement or understanding among the parties, with regard to the subject matter hereof, and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Sponsor Agreement to be duly executed as of the date first written above.
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SPONSOR:
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Isos Acquisition Sponsor LLC
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Name:
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Title:
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LIONTREE:
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LionTree Partners LLC
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Name:
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Title:
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COMPANY:
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Isos Acquisition Corporation
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[Signature Page to Sponsor Support Agreement]
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TARGET:
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Bowlero Corp.
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Name:
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[Signature Page to Sponsor Support Agreement]
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Annex I
Confidential
Execution Version
FORM OF LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this “Agreement”) is made and entered into as of July 1, 2021 by and among (i) Isos Acquisition Corporation, a Cayman Islands exempted company corporation (which shall transfer by way of continuation to and domesticate as a Delaware corporation in accordance with the BCA, as defined below) (together with its successors, “Acquiror”), (ii) Bowlero Corp., a Delaware corporation (the “Company”), and (iii) the undersigned (“Holder”). Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the BCA.
WHEREAS, on or about the date hereof, Acquiror and the Company entered into that certain Business Combination Agreement (as amended from time to time in accordance with the terms thereof, the “BCA”), pursuant to which, among other matters, upon the consummation of the transactions contemplated thereby (the “Closing”), Acquiror and the Company will enter into a business combination transaction pursuant to which the Company will merge with and into the Acquiror (the “Merger”), with the Acquiror surviving the Merger, and as a result of which all of the Company Preferred Stock will be converted into the right to receive an amount in cash, and all of the Company Common Stock will be converted into the right to receive Applicable Surviving Company Common Stock or cash, at the holder’s election, along with Earnout Shares, all on the terms and subject to the conditions set forth in the BCA;
WHEREAS, as of the date hereof, Holder is a holder of Company Common Stock and/or Company Options, in such amounts and classes or series as set forth underneath Holder’s name on the signature page hereto; and
WHEREAS, pursuant to the BCA, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties desire to enter into this Agreement, pursuant to which the Applicable Surviving Company Common Stock (including, for the avoidance of doubt, any Earnout Shares) and/or Converted Options to be received by Holder as consideration in the Merger, including any Applicable Surviving Company Common Stock underlying the Converted Options (all such securities, together with any securities paid as dividends or distributions with respect to such securities or into which such securities are exchanged or converted, the “Restricted Securities”) shall become subject to limitations on disposition as set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and intending to be legally bound hereby, the parties hereby agree as follows:
1. Lock-Up Provisions.
(a) Holder hereby agrees not to, without the prior written consent of the Acquiror in accordance with Section 2(h), during the period (the “Lock-Up Period”) commencing from the Closing and ending on the Lock-Up Expiry Date: (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder, with respect to any Restricted Securities owned by Holder, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Restricted Securities owned by Holder, or (iii) publicly announce any intention to effect any transaction specified in clause (i) or (ii) (any of the foregoing described in clauses (i), (ii) or (iii), a “Prohibited Transfer”); provided that any pledge, hypothecation or other grant of a security interest in Restricted Securities to one or more lending institutions as collateral or security for or in connection with any margin loan, or other loans, advances or extensions of credit entered into by Holder or any of its affiliates or any refinancings thereof and any transfers of such Restricted Securities upon foreclosure, shall not be deemed a Prohibited Transfer, so long as such lending institutions agree in writing to be bound by the restrictions set forth in this Agreement as Permitted Transferees; and provided, further, that, for the avoidance of doubt, to the extent the undersigned has demand, piggyback and/or other registration rights, the foregoing shall
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not prohibit the undersigned from notifying the Acquiror privately that it is or will be exercising its demand and/or piggyback registration rights following the expiration of the Lock-Up Period and requiring preparations related thereto, including confidential submission of a registration statement with the SEC. The foregoing sentence shall not apply to the transfer of any or all of the Restricted Securities owned by Holder (I) by gift, will or intestate succession upon the death of Holder, (II) to any Permitted Transferee (as defined below), (III) by operation of law or pursuant to a court order, such as a qualified domestic relations order, divorce decree or separation agreement or (IV) in connection with the Acquiror’s consummation of a liquidation, merger, share exchange, reorganization, tender offer or other similar transaction that results in all of Acquiror’s stockholders having the right to exchange their equity holdings in Acquiror for cash, securities or other property; provided, however, that in any of cases (I), (II) or (III) it shall be a condition to such transfer that the transferee executes and delivers to Acquiror and the Company an agreement, in substantially the same form of this Agreement, stating that the transferee is receiving and holding the Restricted Securities subject to the provisions of this Agreement applicable to Holder, and there shall be no further transfer of such Restricted Securities except in accordance with this Agreement. As used in this Agreement, the term “Permitted Transferee” shall mean: (A) the members of Holder’s immediate family (for purposes of this Agreement, “immediate family” shall mean with respect to any natural person, any of the following: such person’s spouse or domestic partner, the siblings of such person and his or her spouse or domestic partner, and the direct descendants and ascendants (including adopted and step children and parents) of such person and his or her spouses or domestic partners and siblings), (B) any trust for the direct or indirect benefit of Holder or the immediate family of Holder, (C) if Holder is a trust, the trustor or beneficiary of such trust or to the estate of a beneficiary of such trust, (D) if Holder is an entity, any direct or indirect partners, members or equity holders of Holder, any affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of Holder or any related investment funds or vehicles controlled or managed by such persons or entities or their respective affiliates and (E) in the case of TS or Atairos (each, a “Major Holder”), any Permitted Transferee of such Holder as defined in the Stockholders’ Agreement as in effect as of the Closing. Holder further agrees to execute such agreements as may be reasonably requested by Acquiror or the Company that are consistent with the foregoing or that are necessary to give further effect thereto.
The “Lock-Up Expiry Date” shall be the earliest to occur of (x) the date that is 180 days after the Closing Date, (y) the date after the Closing on which the Acquiror consummates a liquidation, merger, share exchange, reorganization, tender offer or other similar transaction that results in all of the Acquiror’s stockholders having the right to exchange their equity holdings in the Acquiror for cash, securities or other property, and (z) the satisfaction (or deemed satisfaction) of the Fall-Away Condition.
The “Fall-Away Condition” shall be satisfied if, after the Closing, the closing price of the Surviving Company Common Stock equals or exceeds $12.00 per share (as adjusted for share sub-divisions, share capitalizations, reorganizations, recapitalizations and the like), for any 20 trading days within any 30-trading day period following the Closing Date, provided that if the Fall-Away Condition is satisfied prior to the 90th day following the Closing Date, the Fall-Away Condition shall only be deemed to be satisfied on the 90th day following the Closing Date.
(b) If any Prohibited Transfer is made contrary to the provisions of this Agreement, such purported Prohibited Transfer shall be null and void ab initio, and Acquiror shall refuse to recognize any such purported transferee of the Restricted Securities as one of its equity holders for any purpose. In order to enforce this Section 1, Acquiror may impose stop-transfer instructions with respect to the Restricted Securities of Holder (and Permitted Transferees and assigns thereof) until the end of the Lock-Up Period, except in compliance with the foregoing restrictions. If Acquiror waives or terminates any of the restrictions in this Agreement in connection with a transfer of Restricted Securities, with respect to any of the securities of any other Major Holder, then the provisions of this Agreement shall be waived or terminated as to Holder, as applicable, to the same extent and on the same terms with respect to the same pro rata percentage of Restricted Securities of Holder as the percentage of Restricted Securities being waived or terminated represent with respect to the Restricted Securities held by such other Major Holder.
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(c) During the Lock-Up Period, each certificate evidencing any Restricted Securities shall be stamped or otherwise imprinted with a legend in substantially the following form, in addition to any other applicable legends:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP AGREEMENT, DATED AS OF JULY 1, 2021, BY AND AMONG THE ISSUER OF SUCH SECURITIES (THE “ISSUER”), THE ISSUER’S SECURITY HOLDER NAMED THEREIN AND CERTAIN OTHER PARTIES NAMED THEREIN, AS AMENDED. A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
Promptly after the expiration of the Lock-Up Period, Acquiror will remove such legend from the certificates evidencing the Restricted Securities.
(d) For the avoidance of any doubt, Holder shall retain all of its rights as a stockholder of Acquiror during the Lock-Up Period, including the right to vote any Restricted Securities.
2. Miscellaneous.
(a) Termination of BCA. This Agreement shall be binding upon Holder upon Holder’s execution and delivery of this Agreement, but this Agreement shall only become effective upon the Closing. Notwithstanding anything to the contrary contained herein, in the event that the BCA is terminated in accordance with its terms prior to the Closing, this Agreement and all rights and obligations of the parties hereunder shall automatically terminate and be of no further force or effect.
(b) Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement and all obligations of Holder are personal to Holder and may not be transferred or delegated by Holder at any time without the prior written consent of Acquiror in accordance with Section 2(h). Each of Acquiror and the Company may freely assign any or all of its rights under this Agreement, in whole or in part, to any successor entity (whether by merger, consolidation, equity sale, asset sale or otherwise) without obtaining the consent or approval of Holder.
(c) Third Parties. Except for the rights of the Sponsor (or its assignee) as provided in Section 2(h), nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person or entity that is not a party hereto or thereto or a successor or permitted assign of such a party.
(d) Governing Law; Jurisdiction; Waiver of Jury Trial. Sections 11.05 and 11.11 of the BCA shall apply to this Agreement mutatis mutandis.
(e) Interpretation. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; and (iv) the term “or” means “and/or”. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(f) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by email during
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normal business hours, (iii) by FedEx or other nationally recognized overnight courier service or (iv) after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, and otherwise on the next Business Day, addressed as follows (or at such other address for a party as shall be specified by like notice):
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If to Acquiror prior to the Closing, to:
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With a copy (which will not constitute notice) to:
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Isos Acquisition Corporation
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Hughes Hubbard & Reed LLP
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55 Post Road W, Suite 200
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One Battery Park Plaza
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Westport, CT 06880
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New York, New York 10004
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Attention: Winston Meade
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Attention: Anson Frelinghuysen
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Email: wmeade@isoscap.com
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Email: anson.frelinghuysen@hugheshubbard.com
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If to the Company, to:
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With a copy (which shall not constitute notice) to:
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Bowlero Corp.
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Paul, Weiss, Rifkind, Wharton & Garrison LLP
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222 West 44th Street
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1285 Avenue of the Americas
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New York, NY 10036
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New York, New York 10019
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Attn: Brett I. Parker
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Attention: Jeffrey D. Marell; Michael Vogel
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Email:
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Email: jmarell@paulweiss.com;
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mvogel@paulweiss.com
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If to Acquiror from and after the Closing, to:
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With copies (which shall not constitute notice) to:
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Bowlero Corp.
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Bowlero Corp.
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c/o Isos Acquisition Sponsor LLC
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222 West 44th Street
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55 Post Road W, Suite 200
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New York, NY 10036
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Westport, CT 06880
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Attn: Brett I. Parker
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Attention: Winston Meade
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Email:
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Email: wmeade@isoscap.com
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and
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Paul, Weiss, Rifkind, Wharton & Garrison LLP
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1285 Avenue of the Americas
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New York, New York 10019
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Attention: Jeffrey D. Marell; Michael Vogel
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Email: jmarell@paulweiss.com;
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mvogel@paulweiss.com
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and
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Hughes Hubbard & Reed LLP
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One Battery Park Plaza
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New York, New York 10004
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Attention: Anson Frelinghuysen
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Email: anson.frelinghuysen@hugheshubbard.com
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If to Holder, to: the address set forth below Holder’s name on the signature page to this Agreement.
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(g) Amendments and Waivers. This Agreement may be amended or modified only with the written consent of Acquiror, the Company and Holder. The observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the party against whom enforcement of such waiver is sought. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
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(h) Authorization on Behalf of Acquiror. The parties acknowledge and agree that notwithstanding anything to the contrary contained in this Agreement, any and all determinations, actions or other authorizations under this Agreement on behalf of Acquiror from and after the Closing, including enforcing Acquiror’s rights and remedies under this Agreement, or providing any waivers or amendments with respect to this Agreement or the provisions hereof, shall solely be made, taken and authorized by, or as directed by, Acquiror’s sponsor, Isos Acquisition Sponsor LLC (the “Sponsor”); provided, that the Sponsor may, without being required to obtain the consent of any party hereto, assign all of its rights under this Agreement to any Affiliate of the Sponsor to whom the Sponsor’s Acquiror shares are transferred after the Closing. Without limiting the foregoing, in the event that Holder or Holder’s Affiliate serves as a director, officer, employee or other authorized agent of Acquiror or any of its current or future Affiliates, Holder and/or Holder’s Affiliate shall have no authority, express or implied, to act or make any determination on behalf of Acquiror or any of its current or future Affiliates in connection with this Agreement or any dispute or Action with respect hereto.
(i) Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a court of competent jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
(j) Specific Performance. Holder acknowledges that its obligations under this Agreement are unique, recognizes and affirms that in the event of a breach of this Agreement by Holder, money damages will be inadequate and Acquiror and the Company will have no adequate remedy at law, and agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by Holder in accordance with their specific terms or were otherwise breached. Accordingly, each of Acquiror and the Company shall be entitled to an injunction or restraining order to prevent breaches of this Agreement by Holder and to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such party may be entitled under this Agreement, at law or in equity.
(k) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the BCA or any Ancillary Agreements. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights or remedies of Acquiror and the Company or any of the obligations of Holder under any other agreement between Holder and Acquiror or the Company or any certificate or instrument executed by Holder in favor of Acquiror or the Company, and nothing in any other agreement, certificate or instrument shall limit any of the rights or remedies of Acquiror or the Company or any of the obligations of Holder under this Agreement.
(l) Further Assurances. From time to time, at another party’s request and without further consideration (but at the requesting party’s reasonable cost and expense), each party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(m) Counterparts; Facsimile. This Agreement may also be executed and delivered by facsimile signature or by email in portable document format in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank; Signature Pages Follow}
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IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement as of the date first written above.
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Acquiror:
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Isos Acquisition Corporation
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By:
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Name:
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Title:
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The Company:
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Bowlero Corp.
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By:
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Name:
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Title:
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[Signature Page to Lock-Up Agreement]
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IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement as of the date first written above.
Holder:
Name of Holder: [_______________________________]
Number and Type of Company Securities:
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Company Common Stock:
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Company Options:
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Address for Notice:
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Address:
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Facsimile No.:
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Telephone No.:
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Email:
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[Signature Page to Lock-Up Agreement]
Annex I-7
Table of Contents
Annex J
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
by and among
ISOS ACQUISITION CORPORATION,
and
THE STOCKHOLDERS THAT ARE SIGNATORIES HERETO
Dated as of July 1, 2021
Table of Contents
TABLE OF CONTENTS
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Annex J
Page
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Article 1
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Certain Definitions
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Section 1.01. Definitions
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J-1
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Article 2
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Registration Rights
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Section 2.01. Demand Registrations
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J-4
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Section 2.02. Piggyback Registrations
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J-7
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Section 2.03. Allocation of Securities Included in Registration Statement
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J-8
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Section 2.04. Registration Procedures
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J-9
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Section 2.05. Registration Expenses
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J-14
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Section 2.06. Certain Limitations on Registration Rights
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J-14
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Section 2.07. Limitations on Sale or Distribution of Other Securities
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J-14
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Section 2.08. No Required Sale
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J-15
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Section 2.09. Indemnification
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J-15
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Section 2.10. No Inconsistent Agreements
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J-17
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Article 3
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Underwritten Offerings
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Section 3.01. Requested Underwritten Offerings
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J-18
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Section 3.02. Piggyback Underwritten Offerings
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J-18
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Article 4
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General
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Section 4.01. Adjustments Affecting Registrable Securities
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J-18
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Section 4.02. Rule 144
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J-18
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Section 4.03. Nominees for Beneficial Owners
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J-19
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Section 4.04. Amendments and Waivers
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J-19
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Section 4.05. Notices
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J-19
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Section 4.06. Successors and Assigns
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J-19
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Section 4.07. Termination
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J-20
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Section 4.08. Entire Agreement
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J-20
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Section 4.09. Governing Law; Jurisdiction; Waiver of Jury Trial
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J-20
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Section 4.10. Interpretation; Construction
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J-20
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Section 4.11. Counterparts
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J-20
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Section 4.12. Severability
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J-20
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Section 4.13. Specific Enforcement
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J-21
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Section 4.14. Further Assurances
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J-21
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Section 4.15. Confidentiality
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J-21
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Section 4.16. Opt-Out Requests
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J-21
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Section 4.17. Original Registration Rights Agreement
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J-21
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Exhibit A
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Joinder Agreement
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of July 1, 2021 (as amended, restated, supplemented or otherwise modified from time to time, this “ Agreement”), is made and entered into by and among (i) Isos Acquisition Corporation, a Cayman Islands exempted company (the “Company”), (ii) the stockholders of the Company party hereto (the “Stockholders”) and (iii) any person or entity who hereafter becomes a party to this Agreement pursuant to Section 4.06 of this Agreement (each, a “Holder” and collectively with the Stockholders, the “Holders”).
RECITALS:
WHEREAS, the Company and Bowlero Corp., a Delaware corporation (“Bowlero”) have entered into a Business Combination Agreement, dated as of July 1, 2021 (as amended from time to time on or prior to the date hereof, the “Business Combination Agreement”), pursuant to which Bowlero will merge with and into the Company (the “Merger”), with the Company surviving the Merger (the “Surviving Company”);
WHEREAS, the Company and Isos Acquisition Sponsor LLC, a Delaware limited liability company and a Stockholder (the “ Sponsor”) are parties to that certain Registration and Shareholder Rights Agreement, dated as of March 2, 2021 (the “Original Registration Rights Agreement”), which shall be amended and restated by this Agreement;
WHEREAS, following the closing of the Merger (the “ Closing”), the Sponsor and the other Stockholders will own shares of Class A Common Stock, par value $0.0001 per share of the Company (the “Class A Common Stock”), Class A Common Stock Equivalents (as defined herein), shares of Class B Common Stock, par value $0.0001 per share of the Company (the “Class B Common Stock”), which are convertible on a share for share basis into shares of Class A Common Stock and/or Class B Common Stock Equivalents (as defined herein);
WHEREAS, in connection with the Merger, the Company has agreed to provide the registration rights set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and obligations hereinafter set forth, the parties hereto hereby agree as follows:
Article 1
Certain Definitions
Section 1.01. Definitions. As used herein, the following terms shall have the following meanings:
“Additional Piggyback Rights” has the meaning ascribed to such term in Section 2.03(a).
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by or is under common control with, such Person. For the purposes of this definition “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such specified Person, whether through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, neither the Company nor any Person controlled by the Company shall be deemed to be an Affiliate of any Holder.
“Agreement” has the meaning ascribed to such term in the Preamble.
“Automatic shelf registration statement” has the meaning ascribed to such term in Section 2.04.
“Board” means the Board of Directors of the Company.
“Bowlero” has the meaning ascribed to such term in the Recitals.
“Business Combination Agreement” has the meaning ascribed to such term in the Recitals.
“Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.
“Claims” has the meaning ascribed to such term in Section 2.09(a).
“Class A Common Stock” has the meaning ascribed to such term in the recitals.
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“Class A Common Stock Equivalents” means all shares of Class B Common Stock, all Class B Common Stock Equivalents, and all options, warrants and other securities convertible into, or exchangeable or exercisable for (at any time or upon the occurrence of any event or contingency and without regard to any vesting or other conditions to which such securities may be subject), shares of Class A Common Stock (including any note or debt security convertible into or exchangeable for shares of Class A Common Stock).
“Class B Common Stock” has the meaning ascribed to such term in the recitals.
“Class B Common Stock Equivalents” means all options, warrants and other securities convertible into, or exchangeable or exercisable for (at any time or upon the occurrence of any event or contingency and without regard to any vesting or other conditions to which such securities may be subject), shares of Class B Common Stock (including any note or debt security convertible into or exchangeable for shares of Class B Common Stock).
“Common Stock” means all shares existing or hereafter authorized of the Class A Common Stock and Class B Common Stock, and any class of common stock of the Company and any and all securities of any kind whatsoever which may be issued after the date hereof in respect of, or in exchange for, such shares of common stock of the Company pursuant to a merger, consolidation, stock split, stock dividend or recapitalization of the Company or otherwise.
“Company” has the meaning ascribed to such term in the Preamble.
“Confidential Information” has the meaning ascribed to such term in Section 4.15.
“Demand Exercise Notice” has the meaning ascribed to such term in Section 2.01(b)(i).
“Demand Registration” has the meaning ascribed to such term in Section 2.01(b)(i).
“Demand Registration Period” has the meaning ascribed to such term in Section 2.01(b)(i).
“Demand Registration Request” has the meaning ascribed to such term in Section 2.01(b)(i).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC issued under such Act, as they may from time to time be in effect.
“Expenses” means any and all fees and expenses incident to the Company’s performance of or compliance with Article 2, including: (i) SEC, stock exchange, FINRA and all other registration and filing fees and all listing fees and fees with respect to the inclusion of securities on the NYSE or on any other U.S. or non-U.S. securities market on which the Registrable Securities are listed or quoted, (ii) fees and expenses of compliance with state securities or “blue sky” laws of any state or jurisdiction of the United States or compliance with the securities laws of foreign jurisdictions and in connection with the preparation of a “blue sky” survey, including reasonable fees and expenses of outside “blue sky” counsel and securities counsel in foreign jurisdictions, (iii) word processing, printing and copying expenses, (iv) messenger and delivery expenses, (v) expenses incurred in connection with any road show, (vi) fees and disbursements of counsel for the Company, (vii) with respect to each registration or underwritten offering, the reasonable fees and disbursements of one counsel for the Initiating Holder and one counsel for all other Participating Holder(s) collectively (selected by the holders of a majority of the Registrable Securities held by such other Participating Holder(s)), together in each case with any local counsel, provided that expenses payable by the Company pursuant to this clause (vii) shall not exceed (1) $150,000 for the first registration pursuant to this Agreement and (2) $100,000 for each subsequent registration, (viii) fees and disbursements of all independent public accountants (including the expenses of any opinion and/or audit/review and/or “comfort” letter and updates thereof) and fees and expenses of other Persons, including special experts, retained by the Company, (ix) fees and expenses payable to a Qualified Independent Underwriter (but expressly excluding any underwriting discounts and commissions), (x) fees and expenses of any transfer agent or custodian, (xi) any other fees and disbursements of underwriters, if any, customarily paid by issuers or sellers of securities, including reasonable fees and expenses of counsel for the underwriters in connection with any filing with or review by FINRA (but expressly excluding any underwriting discounts and commissions) and (xii) rating agency fees and expenses.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Initiating Holders” has the meaning ascribed to such term in Section 2.01(b)(i).
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“Joinder Agreement” means a writing in the form set forth in Exhibit A hereto whereby a new Holder of Registrable Securities becomes a party to, and agrees to be bound, to the same extent as its transferor, as applicable, by the terms of this Agreement.
“Major Holders” means (i) A-B Parent LLC, a Delaware limited liability company, and (ii) collectively, Cobalt Recreation LLC, a Delaware limited liability company, and Thomas F. Shannon.
“Majority Participating Holders” means Participating Holders holding more than 50% of the Registrable Securities proposed to be included in any offering of Registrable Securities by such Participating Holders pursuant to Section 2.01 or Section 2.02.
“Manager” means the lead managing underwriter of an underwritten offering.
“Minimum Threshold” means $50.0 million.
“Opt-Out Request” has the meaning ascribed to such term in Section 4.16.
“Participating Holders” means all Holders of Registrable Securities which are proposed to be included in any offering of Registrable Securities pursuant to Section 2.01 or Section 2.02.
“Person” means any individual, firm, corporation, company, limited liability company, partnership, trust, joint stock company, business trust, incorporated or unincorporated association, joint venture, governmental authority or other legal entity of any nature whatsoever.
“Piggyback Notice” has the meaning ascribed to such term in Section 2.02(a).
“Piggyback Shares” has the meaning ascribed to such term in Section 2.03(a)(ii).
“Postponement Period” has the meaning ascribed to such term in Section 2.01(c).
“Qualified Independent Underwriter” means a “qualified independent underwriter” within the meaning of FINRA Rule 5121.
“Registrable Securities” means (a) any shares of Class A Common Stock held by the Holders at any time (including those held as a result of, or issuable upon, the conversion or exercise of Class A Common Stock Equivalents), whether now owned or acquired by the Holders at a later time, (b) any shares of Class A Common Stock issued or issuable, directly or indirectly, in exchange for or with respect to the Class A Common Stock referenced in clause (a) above by way of stock dividend, stock split or combination of shares or in connection with a reclassification, recapitalization, merger, share exchange, consolidation or other reorganization and (c) any securities other than Class B Common Stock or Class B Common Stock Equivalents issued in replacement of or exchange for any securities described in clause (a) or (b) above. For purposes of this Agreement, a Person will be deemed to be a holder of Registrable Securities whenever such Person has the right to acquire, directly or indirectly, such Registrable Securities (including upon conversion, exercise or exchange of any equity interests but disregarding any restrictions or limitations upon the exercise of such right), whether or not such acquisition has actually been effected, and such Person shall not be required to convert, exercise or exchange such equity interests (or otherwise acquire such Registrable Securities) to participate in any registered offering hereunder until the closing of such offering. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (A) a registration statement with respect to the sale of such securities shall have been declared effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement, (B) such securities shall have been disposed of in compliance with the requirements of Rule 144, (C) such securities have been sold in a public offering of securities or (D) such securities have ceased to be outstanding.
“Rule 144” have the meaning ascribed to such term in Section 4.02.
“SEC” means the U.S. Securities and Exchange Commission or such other federal agency which at such time administers the Securities Act.
“Section 2.03(a) Sale Number” has the meaning ascribed to such term in Section 2.03(a).
“Section 2.03(b) Sale Number” has the meaning ascribed to such term in Section 2.03(b).
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“Section 2.03(c) Sale Number” has the meaning ascribed to such term in Section 2.03(c).
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC issued under such Act, as they may from time to time be in effect.
“Shelf Registrable Securities” has the meaning ascribed to such term in Section 2.01(a)(ii).
“Shelf Registration Statement” has the meaning ascribed to such term in Section 2.01(a)(i).
“Shelf Underwriting” has the meaning ascribed to such term in Section 2.01(a)(ii).
“Shelf Underwriting Initiating Holders” has the meaning ascribed to such term in Section 2.01(a)(ii).
“Shelf Underwriting Notice” has the meaning ascribed to such term in Section 2.01(a)(ii).
“Shelf Underwriting Request” has the meaning ascribed to such term in Section 2.01(a)(ii).
“Subsidiary” means any direct or indirect subsidiary of the Company on the date hereof and any direct or indirect subsidiary of the Company organized or acquired after the date hereof.
“Underwritten Block Trade” has the meaning ascribed to such term in Section 2.01(a)(ii).
“Valid Business Reason” has the meaning ascribed to such term in Section 2.01(c).
“WKSI” means a “well-known seasoned issuer” (as defined in Rule 405 of the Securities Act).
Article 2
Registration Rights
Section 2.01. Demand Registrations. (a) (i) As soon as practicable but no later than thirty (30) calendar days following the closing of the Merger (the “Filing Date”), the Company shall prepare and file with the SEC a shelf registration statement under Rule 415 of the Securities Act (such registration statement, a “Shelf Registration Statement”) covering the resale of all the Registrable Securities (determined as of two business days prior to such filing) on a delayed or continuous basis and shall use its commercially reasonable efforts to have such Shelf declared effective as soon as practicable after the filing thereof and no later than the earlier of (x) the ninetieth (90th) calendar day following the Filing Date if the Commission notifies the Company that it will “review” the Shelf Registration Statement and (y) the tenth (10th) business day after the date the Company is notified in writing by the SEC that such Shelf Registration Statement will not be “reviewed” or will not be subject to further review. Such Shelf Registration Statement shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. The Company shall maintain the Shelf Registration Statement in accordance with the terms hereof, and shall prepare and file with the SEC such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf Registration Statement continuously effective, available for use to permit all Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. In the event the Company files a Shelf Registration Statement on Form S-1, the Company shall use its commercially reasonable efforts to convert such Shelf Registration Statement to a Shelf Registration Statement on Form S-3 as soon as practicable after the Company is eligible to use Form S-3.
(ii) Subject to Section 2.01(c) and the provisions below with respect to the Minimum Threshold, following the expiration of any applicable lock-up restrictions, each Holder (or Holders) shall have the right at any time and from time to time to elect to sell all or any part of its Registrable Securities pursuant to an underwritten offering pursuant to the Shelf Registration Statement by delivering a written request therefor to the Company specifying the number of Registrable Securities to be included in such registration and the intended method of distribution thereof. The Holder or Holders shall make such election by delivering to the Company a written request (a “Shelf Underwriting Request”) for such underwritten offering specifying the number of Registrable Securities that the Holder or Holders desire to sell pursuant to such underwritten offering (the “Shelf Underwriting”). With respect to any Shelf Underwriting Request, the Holder or Holders making such demand shall be referred to as the “Shelf Underwriting Initiating Holders”. As promptly as practicable, but no later than two (2) Business Days after receipt of a Shelf Underwriting Request, the Company shall give written notice (the “Shelf Underwriting Notice”) of such Shelf Underwriting Request
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to the Holders of record of other Registrable Securities registered on such Shelf Registration Statement (“Shelf Registrable Securities”). The Company, subject to Sections 2.03 and 2.06, shall include in such Shelf Underwriting (x) the Registrable Securities of the Shelf Underwriting Initiating Holders and (y) the Shelf Registrable Securities of any other Holder of Shelf Registrable Securities which shall have made a written request to the Company for inclusion in such Shelf Underwriting (which request shall specify the maximum number of Shelf Registrable Securities intended to be disposed of by such Holder) within five (5) days after the receipt of the Shelf Underwriting Notice. The Company shall, as expeditiously as possible (and in any event within fifteen (15) Business Days after the receipt of a Shelf Underwriting Request), but subject to Section 2.01(b), use its reasonable best efforts to effect such Shelf Underwriting. The Company shall, at the request of any Shelf Underwriting Initiating Holder or any other Holder of Registrable Securities registered on such Shelf Registration Statement, file any prospectus supplement or, if the applicable Shelf Registration Statement is an automatic shelf registration statement, any post-effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by the Shelf Underwriting Initiating Holders or any other Holder of Shelf Registrable Securities to effect such Shelf Underwriting. Notwithstanding anything to the contrary in this Section 2.01(a)(ii), each Shelf Underwriting must include, in the aggregate, Registrable Securities having an aggregate market value of at least the Minimum Threshold (based on the Registrable Securities included in such Shelf Underwriting by all Participating Holders). In connection with any Shelf Underwriting (including an Underwritten Block Trade), the Shelf Underwriting Initiating Holders shall have the right to designate the Manager and each other managing underwriter in connection with any such Shelf Underwriting or Underwritten Block Trade; provided that in each case, each such underwriter is reasonably satisfactory to the Company, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, if a Shelf Underwriting Initiating Holder wishes to engage in an underwritten block trade or similar transaction or other transaction with a 2-day or less marketing period (collectively, “Underwritten Block Trade”) off of a Shelf Registration Statement, then notwithstanding the foregoing time periods, such Shelf Underwriting Initiating Holder only needs to notify the Company and the Major Holders of the Underwritten Block Trade three (3) Business Days prior to the day such offering is to commence and the other Holders of record of other Registrable Securities shall not be entitled to notice of such Underwritten Block Trade and shall not be entitled to participate in such Underwritten Block Trade. The Major Holders shall be entitled to, and shall have one (1) Business Day from receipt of such notice to determine whether to, participate in such Underwritten Block Trade.
(b) (i) If, following the first anniversary of the Closing Date, the Shelf Registration Statement required to be filed pursuant to Section 2.01(a) is not available for use by the Holders other than pursuant to Section 2.01(c) (a “Demand Registration Period”), then, at any time and from time to time during such Demand Registration Period, each Holder (or Holders) shall have the right to require the Company to effect one or more registration statements under the Securities Act covering all or any part of its Registrable Securities by delivering a written request therefor to the Company specifying the number of Registrable Securities to be included in such registration and the intended method of distribution thereof. Any such request by any Holder or Holders pursuant to this Section 2.01(b)(i) is referred to herein as a “Demand Registration Request,” and the registration so requested is referred to herein as a “Demand Registration” (with respect to any Demand Registration, the Investor(s) making such demand for registration being referred to as the “Initiating Holders”).i Subject to Section 2.01(c), the Holders shall be entitled to request (and the Company shall be required to effect) an unlimited number of Demand Registrations. The Company shall give written notice (the “Demand Exercise Notice”) of such Demand Registration Request to each of the Holders of record of Registrable Securities in accordance with Section 2.02, and, subject to Sections 2.03 and 2.06, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.02. Notwithstanding anything to the contrary in this Section 2.01(b)(i), each Demand Registration must include, in the aggregate, Registrable Securities having an aggregate market value of at least the Minimum Threshold (based on the Registrable Securities included in such Demand Registration by all Holders participating in such Demand Registration). In connection with any Demand Registration, the Initiating Holder shall have the right to designate the Manager and each other managing underwriter in connection with any underwritten offering pursuant to such registration; provided that in each case, each such underwriter is reasonably satisfactory to the Company, which approval shall not be unreasonably withheld or delayed.
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(ii) The Company shall, as expeditiously as possible, but subject to Section 2.01(c), use its reasonable best efforts to (x) file or confidentially submit with the SEC (no later than (A) sixty (60) days from the Company’s receipt of the applicable Demand Registration Request if the Demand Registration is on Form S-1 or similar long-form registration and or (B) thirty (30) days from the Company’s receipt of the applicable Demand Registration Request if the Demand Registration is on Form S-3 or any similar short-form registration), (y) cause to be declared effective as soon as reasonably practicable such registration statement under the Securities Act that includes the Registrable Securities which the Company has been so requested to register for distribution in accordance with the intended method of distribution, and (z) if requested by the Initiating Holders, obtain acceleration of the effective date of the registration statement relating to such registration.
(c) Notwithstanding anything to the contrary in Section 2.01(a) or Section 2.01(b), the Shelf Underwriting and Demand Registration rights granted in Section 2.01(a) and Section 2.01(b) are subject to the following limitations: (i) the Company shall not be required to file or confidentially submit a registration statement pursuant to Section 2.01(b) or cause a registration statement filed or confidentially submitted pursuant to Section 2.01(b) to be declared effective within a period of ninety (90) days after the effective date of any other registration statement of the Company filed pursuant to the Securities Act (other than a Form S-4, Form S-8 or a comparable form or an equivalent registration form then in effect); (ii) the Company shall not be required to effect more than three (3) Demand Registrations or Shelf Underwritings on Form S-1 or any similar long-form registration statement at the request of the Holders in any twelve-month period; (iii) if the Board, in its good faith judgment, determines that any registration of Registrable Securities or Shelf Underwriting should not be made or continued because it would materially and adversely interfere with any existing or potential financing, acquisition, corporate reorganization, merger, share exchange or other transaction or event involving the Company or any of its subsidiaries or would otherwise result in the public disclosure of information that the Board in good faith has a bona fide business purpose for keeping confidential (a “Valid Business Reason”), then (x) the Company may postpone filing or confidentially submitting a registration statement relating to a Demand Registration Request or a prospectus supplement relating to a Shelf Underwriting Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than forty five (45) days after the date the Board determines a Valid Business Reason exists or (y) if a registration statement has been filed or confidentially submitted relating to a Demand Registration Request or a prospectus supplement has been filed relating to a Shelf Underwriting Request, if the Valid Business Reason has not resulted in whole or in part from actions taken or omitted to be taken by the Company (other than actions taken or omitted with the consent of the Initiating Holder (not to be unreasonably withheld or delayed)), the Company may, to the extent determined in the good faith judgment of the Board to be reasonably necessary to avoid interference with any of the transactions described above, suspend use of or, if required by the SEC, cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than forty five (45) days after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iv), the “Postponement Period”). The Company shall give written notice to the Initiating Holders or Shelf Underwriting Initiating Holders and any other Holders that have requested registration pursuant to Section 2.02 of its determination to postpone or suspend use of or withdraw a registration statement and of the fact that the Valid Business Reason for such postponement or suspension or withdrawal no longer exists, in each case, promptly after the occurrence thereof; provided, however, that the Company shall not be entitled to more than two (2) Postponement Periods during any twelve (12) month period.
Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to suspend use of, withdraw, terminate or postpone amending or supplementing any registration statement pursuant to clause (c)(iii) above, such Holder will discontinue its disposition of Registrable Securities pursuant to such registration statement. If the Company shall have suspended use of, withdrawn or terminated a registration statement filed under Section 2.01(b)(i) (whether pursuant to clause (c)(iii) above or as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court), the Company shall not be considered to have effected a Demand Registration for the purposes of this Agreement and such request shall not count as a Demand Registration Request under this Agreement until the Company shall have permitted use of such suspended registration statement or filed a new registration statement covering the Registrable Securities covered by the withdrawn or terminated registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of suspension, withdrawal or postponement of a registration statement, the Company shall, not
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later than five (5) Business Days after the Valid Business Reason that caused such suspension, withdrawal or postponement no longer exists (but, with respect to a suspension, withdrawal or postponement pursuant to clause (c)(iii) above, in no event later than forty five (45) days after the date of the suspension, postponement or withdrawal), as applicable, permit use of such suspended registration statement or use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with this Section 2.01 (unless the Initiating Holders or Shelf Underwriting Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected a Demand Registration for the purposes of this Agreement and such request shall not count as a Demand Registration Request under this Agreement), and following such permission or such effectiveness such registration shall no longer be deemed to be suspended, withdrawn or postponed pursuant to clause (iv) of Section 2.01(c) above.
(d) No Demand Registration shall be deemed to have occurred for purposes of Section 2.01(b) (i) if the registration statement relating thereto (x) does not become effective, (y) is not maintained effective for a period of at least one hundred eighty (180) days after the effective date thereof or such shorter period during which all Registrable Securities included in such Registration Statement have actually been sold (provided, however, that such period shall be extended for a period of time equal to the period any Holder of Registrable Securities refrains from selling any securities included in such Registration Statement at the request of the Company or an underwriter of the Company), or (z) is subject to a stop order, injunction, or similar order or requirement of the SEC during such period, (ii) for each Initiating Holder, if less than seventy five percent (75%) of the Registrable Securities requested by such Initiating Holder to be included in such Demand Registration are not so included pursuant to Section 2.03, (iii) if the method of disposition is a firm commitment underwritten public offering and less than seventy five percent (75%) of the applicable Registrable Securities have not been sold pursuant thereto (excluding any Registrable Securities included for sale in the underwriters’ overallotment option) or (iv) if the conditions to closing specified in any underwriting agreement, purchase agreement or similar agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a default or breach thereunder by such Initiating Holder(s) or its Affiliates or are otherwise waived by such Initiating Holder(s)).
(e) Any Initiating Holder may withdraw or revoke a Demand Registration Request delivered by such Initiating Holder at any time prior to the effectiveness of such Demand Registration by giving written notice to the Company of such withdrawal or revocation and such Demand Registration shall have no further force or effect and such request shall not count as a Demand Registration Request under this Agreement.
Section 2.02. Piggyback Registrations. (a) If the Company proposes or is required to register any of its equity securities for its own account or for the account of any other shareholder under the Securities Act (other than pursuant to registrations on Form S-4 or Form S-8 or any similar successor forms thereto), the Company shall give written notice (the “Piggyback Notice”) of its intention to do so to each of the Holders of record of Registrable Securities, at least five (5) Business Days prior to the filing of any registration statement under the Securities Act. Notwithstanding the foregoing, the Company may delay any Piggyback Notice until after filing a registration statement, so long as all recipients of such notice have five (5) days to determine whether to participate in an offering. Upon the written request of any such Holder, made within five (5) days following the receipt of any such Piggyback Notice (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder and the intended method of distribution thereof), the Company shall, subject to Sections 2.02(c), 2.03 and 2.06 hereof, use its reasonable best efforts to cause all such Registrable Securities, the Holders of which have so requested the registration thereof, to be registered under the Securities Act with the securities which the Company at the time proposes to register to permit the sale or other disposition by the Holders (in accordance with the intended method of distribution thereof) of the Registrable Securities to be so registered, including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the registration statement filed by the Company or the prospectus related thereto. There is no limitation on the number of such piggyback registrations which the Company is obligated to effect pursuant to the preceding sentence. No registration of Registrable Securities effected under this Section 2.02(a) shall relieve the Company of its obligations to effect Demand Registrations under Section 2.01 hereof. For the avoidance of doubt, this Section 2.02 shall not apply to any Underwritten Block Trade.
(b) Other than in connection with a Demand Registration or a Shelf Underwriting, at any time after giving a Piggyback Notice and prior to the effective date of the registration statement filed in connection with such registration, if the Company shall determine for any reason not to register or to delay registration of such equity securities, the Company may, at its election, give written notice of such determination to all Holders of record of
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Registrable Securities and (x) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such abandoned registration, without prejudice, however, to the rights of Holders under Section 2.01, and (y) in the case of a determination to delay such registration of its equity securities, shall be permitted to delay the registration of such Registrable Securities for the same period as the delay in registering such other equity securities.
(c) Any Holder shall have the right to withdraw its request for inclusion of its Registrable Securities in any registration statement pursuant to this Section 2.02 by giving written notice to the Company of its request to withdraw; provided, however, that such request must be made in writing prior to the earlier of the execution by such Holder of the underwriting agreement or the execution by such Holder of the custody agreement with respect to such registration or as otherwise required by the underwriters.
Section 2.03. Allocation of Securities Included in Registration Statement. (a) If any requested registration or offering made pursuant to Section 2.01 (including a Shelf Underwriting) involves an underwritten offering and the Manager of such offering shall advise the Company in good faith that, in its view, the number of securities requested to be included in such underwritten offering by the Holders of Registrable Securities, the Company or any other Persons exercising contractual registration rights (“Additional Piggyback Rights”) exceeds the largest number of securities (the “Section 2.03(a) Sale Number”) that can be sold in an orderly manner in such underwritten offering within a price range acceptable to the Initiating Holders and the Majority Participating Holders, the Company shall include in such underwritten offering:
(i) first, all Registrable Securities requested to be included in such underwritten offering by the Holders thereof (including pursuant to the exercise of piggyback rights pursuant to Section 2.02); provided, however, that if the number of such Registrable Securities exceeds the Section 2.03(a) Sale Number, the number of such Registrable Securities (not to exceed the Section 2.03(a) Sale Number) to be included in such underwritten offering shall be allocated on a pro rata basis among all Holders (including each Initiating Holder) requesting that Registrable Securities be included in such underwritten offering (including pursuant to the exercise of piggyback rights pursuant to Section 2.02), based on the number of Registrable Securities then owned by each such Holder requesting inclusion in relation to the aggregate number of Registrable Securities owned by all Holders requesting inclusion; and
(ii) second, to the extent that the number of Registrable Securities to be included pursuant to clause (i) of this Section 2.03(a) is less than the Section 2.03(a) Sale Number, any securities that the Company proposes to register for its own account, up to the Section 2.03(a) Sale Number; and
(iii) third, to the extent that the number of securities to be included pursuant to clauses (i) and (ii) of this Section 2.03(a) is less than the Section 2.03(a) Sale Number, the remaining securities to be included in such underwritten offering shall be allocated on a pro rata basis among all Persons other than Holders requesting that securities be included in such underwritten offering pursuant to the exercise of Additional Piggyback Rights (“Piggyback Shares”), based on the aggregate number of Piggyback Shares then owned by each Person requesting inclusion in relation to the aggregate number of Piggyback Shares owned by all Persons requesting inclusion, up to the Section 2.03(a) Sale Number.
(b) If any registration or offering made pursuant to Section 2.02 involves an underwritten primary offering on behalf of the Company and the Manager shall advise the Company that, in its view, the number of securities requested to be included in such underwritten offering by the Holders of Registrable Securities, the Company or any other Persons exercising Additional Piggyback Rights exceeds the largest number of securities (the “Section 2.03(b) Sale Number”) that can be sold in an orderly manner in such underwritten offering within a price range acceptable to the Company, the Company shall include in such underwritten offering:
(i) first, all equity securities that the Company proposes to register for its own account; and
(ii) second, to the extent that the number of securities to be included pursuant to clause (i) of this Section 2.03(b) is less than the Section 2.03(b) Sale Number, the remaining Registrable Securities to be included in such underwritten offering shall be allocated on a pro rata basis among all Holders requesting that Registrable Securities be included in such underwritten offering pursuant to the exercise of piggyback rights pursuant to Section 2.02(a), based on the aggregate number of Registrable Securities then owned by each such Holder requesting inclusion in relation to the aggregate number of Registrable Securities owned by all Holders
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requesting inclusion, up to the Section 2.03(b) Sale Number; and (iii) third, to the extent that the number of securities to be included pursuant to clauses (i) and (ii) of this Section 2.03(b) is less than the Section 2.03(b) Sale Number, the remaining securities to be included in such underwritten offering shall be allocated on a pro rata basis among all Persons requesting that Piggyback Shares be included in such underwritten offering pursuant to the exercise of Additional Piggyback Rights, based on the aggregate number of Piggyback Shares then owned by each Person requesting inclusion in relation to the aggregate number of Piggyback Shares owned by all Persons requesting inclusion, up to the Section 2.03(b) Sale Number.
(c) If any registration pursuant to Section 2.02 involves an underwritten offering that was initially requested by any Person(s) (other than a Holder) to whom the Company has granted registration rights which are not inconsistent with the rights granted in, and do not otherwise conflict with the terms of, this Agreement and the Manager shall advise the Company that, in its view, the number of securities requested to be included in such underwritten offering exceeds the largest number of securities (the “Section 2.03(c) Sale Number”) that can be sold in an orderly manner in such underwritten offering within a price range acceptable to the Company, the Company shall include in such underwritten offering:
(i) first, the shares requested to be included in such underwritten offering shall be allocated on a pro rata basis among such Person(s) requesting the registration and all Holders requesting that Registrable Securities be included in such underwritten offering pursuant to the exercise of piggyback rights pursuant to Section 2.02(a), based on the aggregate number of securities or Registrable Securities, as applicable, then owned by each of the foregoing requesting inclusion in relation to the aggregate number of securities or Registrable Securities, as applicable, owned by all such Persons and Holders requesting inclusion, up to the Section 2.03(c) Sale Number; and
(ii) second, to the extent that the number of securities to be included pursuant to clause (i) of this Section 2.03(c) is less than the Section 2.03(c) Sale Number, the remaining securities to be included in such underwritten offering shall be allocated on a pro rata basis among all Persons requesting that Piggyback Shares be included in such underwritten offering pursuant to the exercise of Additional Piggyback Rights, based on the aggregate number of Piggyback Shares then owned by each Person requesting inclusion in relation to the aggregate number of Piggyback Shares owned by all Persons requesting inclusion, up to the Section 2.03(c) Sale Number; and (iii) third, to the extent that the number of securities to be included pursuant to clauses (i) and (ii) of this Section 2.03(c) is less than the Section 2.03(c)Sale Number, any equity securities that the Company proposes to register for its own account, up to the Section 2.03(c) Sale Number.
(d) If, as a result of the proration provisions set forth in clauses (a), (b) or (c) of this Section 2.03, any Holder shall not be entitled to include all Registrable Securities in an underwritten offering that such Holder has requested be included, such Holder may elect to withdraw such Holder’s request to include Registrable Securities in the registration to which such underwritten offering relates or may reduce the number requested to be included; provided, however, that (x) such request must be made in writing prior to the earlier of such Holder’s execution of the underwriting agreement or such Holder’s execution of the custody agreement with respect to such registration and (y) such withdrawal or reduction shall be irrevocable and, after making such withdrawal or reduction, such Holder shall no longer have any right to include Registrable Securities in the registration as to which such withdrawal or reduction was made to the extent of the Registrable Securities so withdrawn or reduced.
Section 2.04. Registration Procedures. If and whenever the Company is required by the provisions of this Agreement to effect or cause the registration of and/or participate in any offering or sale of any Registrable Securities under the Securities Act as provided in this Agreement (or use reasonable best efforts to accomplish the same), the Company shall, as expeditiously as possible:
(a) prepare and file all filings with the SEC and FINRA required for the consummation of the offering, including preparing and filing with the SEC a registration statement on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by the Company (except as provided for in a Demand Registration Request) and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such registration statement to become effective and remain continuously effective for such period as required by this Agreement (provided, however, that
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as far in advance as reasonably practicable before filing a registration statement or prospectus or any amendments or supplements thereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, the Company will furnish to the Holders participating in the planned offering and to the Manager, if any, copies of all such documents proposed to be filed (including all exhibits thereto), which documents will be subject to their reasonable review and reasonable comment and the Company shall not file any registration statement or amendment thereto, any prospectus or supplement thereto or any free writing prospectus related thereto to which the Initiating Holders, the Majority Participating Holders or the underwriters, if any, shall reasonably object); provided, however, that, notwithstanding the foregoing, in no event shall the Company be required to file any document with the SEC which in the view of the Company or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading;
(b) (i) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith and such free writing prospectuses and Exchange Act reports as may be necessary to keep such registration statement continuously effective for such period as required by this Agreement and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such registration statement, and any prospectus so supplemented to be filed pursuant to Rule 424 under the Securities Act, in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement and (ii) provide notice to such sellers of Registrable Securities and the Manager, if any, of the Company’s reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder and each underwriter, if any, of the securities covered by such registration statement such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each free writing prospectus utilized in connection therewith, in each case, in conformity with the requirements of the Securities Act, and other documents, as such seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (the Company hereby consenting to the use in accordance with all applicable laws of each such registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) or free writing prospectus by each such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under such other securities or state “blue sky” laws of such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Participating Holder and each managing underwriter, if any: (i) when the registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto, any post-effective amendment to the registration statement or any free writing prospectus has been filed with the SEC and, with respect to the registration statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) of the existence of any fact of which the Company becomes aware which results in the registration statement or any amendment thereto, the prospectus related thereto or any supplement thereto, any document incorporated therein by reference, any free writing prospectus or the information
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conveyed at the time of sale to any purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects (unless otherwise qualified by materiality in which case such representations and warranties shall cease to be true and correct in all respects); and, if the notification relates to an event described in clause (v), unless the Company has declared that a Postponement Period exists, the Company shall promptly prepare and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;
(f) comply (and continue to comply) with all applicable rules and regulations of the SEC (including maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders (including by way of filings with the SEC), as soon as reasonably practicable after the effective date of the registration statement, an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of the Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) (A) use its reasonable best efforts to cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by the Company are then listed, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (B) if no similar securities are then so listed, use its reasonable best efforts to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a New York Stock Exchange “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure New York Stock Exchange authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by the Company as the issuer of such Registrable Securities in order to facilitate the managing underwriter’s arranging for the registration of at least two market makers as such with respect to such shares with FINRA, and (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Company, including all corporate governance requirements;
(h) cause its senior management, officers and employees to participate in, and to otherwise facilitate and cooperate with the preparation of the registration statement and prospectus and any amendments or supplements thereto (including participating in meetings, drafting sessions, due diligence sessions and rating agency presentations) taking into account the Company’s reasonable business needs;
(i) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement and, in the case of any secondary equity offering, provide and enter into any reasonable agreements with a custodian for the Registrable Securities;
(j) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Initiating Holder or the Majority Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that the Holders of the Registrable Securities which are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that the Company make for the benefit of such Holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters);
(k) use its reasonable best efforts (i) to obtain opinions from the Company’s counsel, including local and/or regulatory counsel, and a “comfort” letter and updates thereof from the independent public accountants who have certified the financial statements of the Company (and/or any other financial statements) included or incorporated by reference in such registration statement, in each case, in customary form and covering such matters as are customarily covered by such opinions and “comfort” letters (including, in the case of such “comfort” letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public
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offerings, which opinions and letters shall be dated the dates such opinions and “comfort” letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and (ii) furnish to each Participating Holder and to each underwriter, if any, a copy of such opinions and letters addressed to such underwriter;
(l) deliver promptly to counsel for the Majority Participating Holders and to each managing underwriter, if any, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement, and, upon receipt of such confidentiality agreements as the Company may reasonably request, make reasonably available for inspection by counsel for the Majority Participating Holders, by counsel for any underwriter participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by the Majority Participating Holders or any such underwriter, during regular business hours, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably requested by any such counsel for the Majority Participating Holders, counsel for an underwriter, attorney, accountant or agent in connection with such registration statement;
(m) use its reasonable best efforts to prevent the issuance or obtain the prompt withdrawal of any order suspending the effectiveness of the registration statement, or the prompt lifting of any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(n) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(o) use its reasonable best efforts to make available its senior management for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the Company’s reasonable business needs and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;
(p) promptly prior to the filing of any document which is to be incorporated by reference into the registration statement or the prospectus (after the initial filing or confidential submission of such registration statement), and prior to the filing or use of any free writing prospectus, provide copies of such document to counsel for the Majority Participating Holders and to each managing underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the information regarding the Participating Holders contained therein prior to the filing thereof as counsel for the Majority Participating Holders or underwriters may reasonably request (provided, however, that, notwithstanding the foregoing, in no event shall the Company be required to file or confidentially submit any document with the SEC which in the view of the Company or its counsel contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading);
(q) furnish to counsel for the Majority Participating Holders and to each managing underwriter, without charge, upon request, at least one conformed copy of the registration statement and any post-effective amendments or supplements thereto, including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus), any other prospectus and prospectus supplement filed under Rule 424 under the Securities Act and all exhibits (including those incorporated by reference) and any free writing prospectus utilized in connection therewith;
(r) cooperate with the Participating Holders and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the Participating Holders at least two (2) Business Days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof (and, in the case of Registrable Securities registered on a Shelf Registration Statement, at the request of any Holder, prepare and deliver certificates representing such Registrable Securities not bearing any restrictive legends and deliver or cause to be delivered an opinion or instructions to the transfer agent in order to allow such Registrable Securities to be sold from time to time);
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(s) include in any prospectus or prospectus supplement if requested by any managing underwriter updated financial or business information for the Company’s most recent period or current quarterly period (including estimated results or ranges of results) if required for purposes of marketing the offering in the view of the managing underwriter;
(t) take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, however, that to the extent that any prohibition is applicable to the Company, the Company will use its reasonable best efforts to make any such prohibition inapplicable;
(u) use its reasonable best efforts to cause the Registrable Securities covered by the applicable registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Participating Holders or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(v) take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities;
(w) take all reasonable action to ensure that any free writing prospectus utilized in connection with any registration covered by Section 2.01 or 2.02 complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, prospectus supplement and related documents, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(x) in connection with any underwritten offering, if at any time the information conveyed to a purchaser at the time of sale includes any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, promptly file with the SEC such amendments or supplements to such information as may be necessary so that the statements as so amended or supplemented will not, in the light of the circumstances, be misleading;
(y) to the extent required by the rules and regulations of FINRA, retain a Qualified Independent Underwriter acceptable to the managing underwriter; and
(z) use reasonable best efforts to cooperate with the managing underwriters, Participating Holders, any indemnitee of the Company and their respective counsel in connection with the preparation and filing of any applications, notices, registrations and responses to requests for additional information with FINRA, NYSE, or any other national securities exchange on which the shares of Class A Common Stock are listed.
To the extent the Company is a WKSI at the time any Demand Registration Request is submitted to the Company, the Company shall file an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) (an “automatic shelf registration statement”) on Form S-3 which covers those Registrable Securities which are requested to be registered. If the Company does not pay the filing fee covering the Registrable Securities at the time the automatic shelf registration statement is filed, the Company agrees to pay such fee at such time or times as the Registrable Securities are to be sold in compliance with the SEC rules. If the automatic shelf registration statement has been outstanding for at least three (3) years, at or prior to the end of the third year the Company shall refile a new automatic shelf registration statement covering the Registrable Securities. If at any time when the Company is required to re-evaluate its WKSI status the Company determines that it is not a WKSI, the Company shall use its reasonable best efforts to refile the shelf registration statement on Form S-3 and, if such form is not available, Form S-1 and keep such registration statement effective during the period which such registration statement is required to be kept effective.
If the Company files any shelf registration statement for the benefit of the holders of any of its securities other than the Holders, and the Holders do not request that their Registrable Securities be included in such Shelf Registration Statement, the Company agrees that it shall include in such registration statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such shelf registration statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
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The Company may require as a condition precedent to the Company’s obligations under this Section 2.04 that each Participating Holder as to which any registration is being effected (i) furnish the Company such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request (including as required under state securities laws), provided that such information is necessary for the Company to consummate such registration and shall be used only in connection with such registration and (ii) provide any underwriters participating in the distribution of such securities such information as the underwriters may request and execute and deliver any agreements, certificates or other documents as the underwriters may request.
Each Holder of Registrable Securities agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in clause (v) of paragraph (e) of this Section 2.04, such Holder will discontinue such Holder’s disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (e) of this Section 2.04 and, if so directed by the Company, will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such Holder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. In the event the Company shall give any such notice, the applicable period mentioned in paragraph (b) of this Section 2.04 shall be extended by the number of days during such period from and including the date of the giving of such notice to and including the date when each Participating Holder covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by paragraph (e) of this Section 2.04.
The Company agrees not to file or make any amendment to any registration statement with respect to any Registrable Securities, or any amendment of or supplement to the prospectus, or any free writing prospectus, which amendment refers to any Holder covered thereby by name, or otherwise identifies such Holder, without the consent of such Holder, such consent not to be unreasonably withheld or delayed, unless such disclosure is required by law, in which case the Company shall provide written notice to such Holders no less than five (5) Business Days prior to the filing.
Section 2.05. Registration Expenses. (a) The Company shall pay all Expenses with respect to any registration or offering of Registrable Securities pursuant to Article 2, whether or not a registration statement becomes effective or the offering is consummated.
(b) Notwithstanding the foregoing, (x) the provisions of this Section 2.05 shall be deemed amended to the extent necessary to cause these expense provisions to comply with state “blue sky” laws of each state in which the offering is made and (y) in connection with any underwritten offering hereunder, each Participating Holder shall pay all underwriting discounts and commissions and any transfer taxes, if any, attributable to the sale of such Registrable Securities, pro rata with respect to payments of discounts and commissions in accordance with the number of shares sold in the offering by such Participating Holder.
Section 2.06. Certain Limitations on Registration Rights. In the case of any registration under Section 2.01 involving an underwritten offering, or, in the case of a registration under Section 2.02, if the Company has determined to enter into an underwriting agreement in connection therewith, all securities to be included in such underwritten offering shall be subject to such underwriting agreement and no Person may participate in such underwritten offering unless such Person (i) agrees to sell such Person’s securities on the basis provided therein and completes and executes all reasonable questionnaires, and other documents (including custody agreements and powers of attorney) which must be executed in connection therewith; provided, however, that all such documents shall be consistent with the provisions hereof and (ii) provides such other information to the Company or the underwriter as may be necessary to register such Person’s securities.
Section 2.07. Limitations on Sale or Distribution of Other Securities. (a) Each Holder agrees, to the extent requested by the Manager of any underwritten public offering pursuant to a registration or offering effected pursuant to Section 2.01 (including any Shelf Underwriting pursuant to Section 2.01) or Section 2.02 (including any offering effected by the Company for its own account ), not to sell, transfer or otherwise dispose of, including any sale pursuant to Rule 144, any Class A Common Stock or Class A Common Stock Equivalents (other than as part of such underwritten public offering) during the time period reasonably requested by the Manager, not to exceed the period from seven days prior to the pricing date of such offering until ninety (90) days after the pricing date of such offering or such shorter period as the Manager, the Company or any executive officer or director of the Company shall agree to and subject to customary carve-outs and exceptions.
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(b) The Company hereby agrees that, in connection with an offering pursuant to Section 2.01 (including any Shelf Underwriting pursuant to Section 2.01(e)) or 2.02, the Company shall not sell, transfer, or otherwise dispose of, any Class A Common Stock or Class A Common Stock Equivalent (other than as part of such underwritten public offering, a registration on Form S-4 or Form S-8 or any successor or similar form which is (x) then in effect or (y) shall become effective upon the conversion, exchange or exercise of any then outstanding Class A Common Stock Equivalent), until a period from seven days prior to the pricing date of such offering until ninety (90) days after the pricing date of such offering or such shorter period as the Manager, the Company or any executive officer or director of the Company shall agree to and subject to customary carve-outs and exceptions.
Section 2.08. No Required Sale. Nothing in this Agreement shall be deemed to create an independent obligation on the part of any Holder to sell any Registrable Securities pursuant to any effective registration statement. A Holder is not required to include any of its Registrable Securities in any registration statement, is not required to sell any of its Registrable Securities which are included in any effective registration statement, and may sell any of its Registrable Securities in any manner in compliance with applicable law (subject to applicable lock-up restrictions) even if such shares are already included on an effective registration statement.
Section 2.09. Indemnification. (a) In the event of any registration or offer and sale of any securities of the Company under the Securities Act pursuant to this Article 2, the Company will (without limitation as to time), and hereby agrees to, and hereby does, indemnify and hold harmless, to the fullest extent permitted by law, each Participating Holder, its directors, officers, employees, stockholders, members, general and limited partners, agents, affiliates, representatives, successors and assigns (and the directors, officers, employees, stockholders, members, general and limited partners, agents, affiliates, representatives, successors and assigns thereof), each other Person who participates as a seller (and its directors, officers, employees, stockholders, members, general and limited partners, agents, affiliates, representatives, successors and assigns), underwriter or Qualified Independent Underwriter, if any, in the offering or sale of such securities, each officer, director, employee, stockholder, managing director, agent, affiliate, representative, successor, assign or partner of such underwriter or Qualified Independent Underwriter, and each other Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such seller or any such underwriter or Qualified Independent Underwriter and each director, officer, employee, stockholder, managing director, agent, affiliate, representative, successor, assign or partner of such controlling Person, from and against any and all losses, claims, damages or liabilities, joint or several, actions or proceedings (whether commenced or threatened) and expenses (including reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) to which each such indemnified party may become subject under the Securities Act or otherwise in respect thereof (collectively, “Claims”), insofar as such Claims arise out of, are based upon, relate to or are in connection with (i) any untrue statement or alleged untrue statement of a material fact contained in any registration statement under which such securities were registered under the Securities Act or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary, final or summary prospectus or any amendment or supplement thereto, together with the documents incorporated by reference therein, or any free writing prospectus utilized in connection therewith, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) any untrue statement or alleged untrue statement of a material fact in the information conveyed by the Company or any underwriter to any purchaser at the time of the sale to such purchaser, or the omission or alleged omission to state therein a material fact required to be stated therein, or (iv) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to any action required of or inaction by the Company in connection with any such offering of Registrable Securities, and the Company will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, however, that the Company shall not be liable to any such indemnified party in any such case to the extent such Claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in such registration statement or amendment thereof or supplement thereto or in any such prospectus or any preliminary, final or summary prospectus or free writing prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of such indemnified party specifically for use therein. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by such seller.
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(b) Each Participating Holder shall, severally and not jointly, indemnify and hold harmless (in the same manner and to the same extent as set forth in paragraph (a) of this Section 2.09) to the extent permitted by law the Company, its officers and its directors, each Person controlling the Company within the meaning of the Securities Act and all other prospective sellers and their directors, officers, stockholders, fiduciaries, managing directors, agents, affiliates, representatives, successors, assigns or general and limited partners and respective controlling Persons with respect to any untrue statement or alleged untrue statement of any material fact in, or omission or alleged omission of any material fact from, such registration statement, any preliminary, final or summary prospectus contained therein, or any amendment or supplement thereto, or any free writing prospectus utilized in connection therewith, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company or its representatives by or on behalf of such Participating Holder specifically for use therein, and each such Participating Holder shall reimburse such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim as such expenses are incurred; provided, however, that the aggregate amount which any such Participating Holder shall be required to pay pursuant to this Section 2.09 (including pursuant to indemnity, contribution or otherwise) shall in no case be greater than the amount of the net proceeds received by such Participating Holder upon the sale of the Registrable Securities pursuant to the registration statement giving rise to such Claim; provided, further, that such Participating Holder shall not be liable in any such case to the extent that prior to the filing or confidential submission of any such registration statement or prospectus or amendment thereof or supplement thereto, or any free writing prospectus utilized in connection therewith, such Participating Holder has furnished in writing to the Company information expressly for use in such registration statement or prospectus or any amendment thereof or supplement thereto or free writing prospectus which corrected or made not misleading information previously furnished to the Company. The Company and each Participating Holder hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Participating Holders to the contrary, for all purposes of this Agreement, the only information furnished or to be furnished to the Company for use in any such registration statement, preliminary, final or summary prospectus or amendment or supplement thereto, or any free writing prospectus, are statements specifically relating to (i) the beneficial ownership of shares of Common Stock by such Participating Holder and its Affiliates and (ii) the name and address of such Participating Holder. If any additional information about such Holder or the plan of distribution (other than for an underwritten offering) is required by law to be disclosed in any such document, then such Holder shall not unreasonably withhold its agreement referred to in the immediately preceding sentence. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by such Holder.
(c) Indemnification similar to that specified in the preceding paragraphs (a) and (b) of this Section 2.09 (with appropriate modifications) shall be given by the Company and each Participating Holder with respect to any required registration or other qualification of securities under any applicable securities and state “blue sky” laws.
(d) Any Person entitled to indemnification under this Agreement shall notify promptly the indemnifying party in writing of the commencement of any action or proceeding with respect to which a claim for indemnification may be made pursuant to this Section 2.09, but the failure of any indemnified party to provide such notice shall not relieve the indemnifying party of its obligations under the preceding paragraphs of this Section 2.09, except to the extent the indemnifying party is materially and actually prejudiced thereby and shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under this Section 2.09. In case any action or proceeding is brought against an indemnified party and such indemnified party shall have notified the indemnifying party of the commencement thereof (as required above), the indemnifying party shall be entitled to participate therein and, unless in the reasonable opinion of outside counsel to the indemnified party a conflict of interest between such indemnified and indemnifying parties exists in respect of such Claim, to assume the defense thereof jointly with any other indemnifying party similarly notified, to the extent that it chooses, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party that it so chooses, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that (i) if the indemnifying party fails to take reasonable steps necessary to defend diligently the action or proceeding within twenty (20) days after receiving notice from such indemnified party that the indemnified party believes it has failed to do so; or (ii) if such indemnified party who is a defendant in any action or proceeding which is also brought against the indemnifying party reasonably shall have concluded that there may be one or more legal or equitable defenses available to such indemnified party
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which are not available to the indemnifying party or which may conflict with or be different from those available to another indemnified party with respect to such Claim; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then, in any such case, the indemnified party shall have the right to assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction, except to the extent any indemnified party or parties reasonably shall have made a conclusion described in clause (ii) or (iii) above) and the indemnifying party shall be liable for any expenses therefor. No indemnifying party shall be liable for any settlement of any proceeding effected without its written consent (which consent shall not be unreasonably withheld or delayed), but if settled with such consent or if there be a final judgment for the plaintiff, such indemnifying party agrees to indemnify each indemnified party from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (A) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (B) does not include a statement as to or an admission of fault or culpability, by or on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold harmless an indemnified party under Sections 2.09(a), (b) or (c), then each applicable indemnifying party shall contribute to the amount paid or payable to such indemnified party as a result of any Claim in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to such Claim. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if any contribution pursuant to this Section 2.09(e) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the preceding sentences of this Section 2.09(e). The amount paid or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 2.09(e) to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 2.09(e) to contribute any amount greater than the amount of the net proceeds received by such indemnifying party from the sale of Registrable Securities pursuant to the registration statement giving rise to such Claim, less the amount of any indemnification payment made by such indemnifying party pursuant to Sections 2.09(b) and (c). In addition, no Holder of Registrable Securities or any Affiliate thereof shall be required to pay any amount under this Section 2.09(e) unless such Person or entity would have been required to pay an amount pursuant to Section 2.09(b) if it had been applicable in accordance with its terms.
(f) The indemnity and contribution agreements contained herein shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such party.
(g) The indemnification and contribution required by this Section 2.09 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred.
Section 2.10. No Inconsistent Agreements. The Company shall not hereafter enter into any agreement with respect to its securities that is inconsistent in any material respects with the rights granted to the Holders in this Agreement.
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Article 3
Underwritten Offerings
Section 3.01. Requested Underwritten Offerings. If requested by the underwriters for any underwritten offering pursuant to a registration requested under Section 2.01, the Company shall enter into a customary underwriting agreement with the underwriters. Such underwriting agreement shall (i) be satisfactory in form and substance to the Initiating Holders and the Majority Participating Holders, (ii) contain terms not inconsistent with the provisions of this Agreement and (iii) contain such representations and warranties by, and such other agreements on the part of, the Company and such other terms as are generally prevailing in agreements of that type, including indemnities and contribution agreements on substantially the same terms as those contained herein or as otherwise customary for the lead underwriter. Every Participating Holder shall be a party to such underwriting agreement. Each Participating Holder shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than customary representations of a selling shareholder, including representations, warranties or agreements regarding its ownership of and title to the Registrable Securities, any written information specifically provided by such Participating Holder for inclusion in the registration statement and its intended method of distribution; and any liability of such Participating Holder to any underwriter or other Person under such underwriting agreement for indemnity, contribution or otherwise shall in no case be greater than the amount of the net proceeds received by such Participating Holder upon the sale of Registrable Securities pursuant to such registration statement and in no event shall relate to anything other than information about such Holder specifically provided by such Holder for use in the registration statement and prospectus.
Section 3.02. Piggyback Underwritten Offerings. In the case of a registration pursuant to Section 2.02, if the Company shall have determined to enter into an underwriting agreement in connection therewith, all of the Participating Holders’ Registrable Securities to be included in such registration shall be subject to such underwriting agreement. Each such Participating Holder shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than customary representations of a selling shareholder, including representations, warranties or agreements regarding its ownership of and title to the Registrable Securities, any written information specifically provided by such Participating Holder for inclusion in the registration statement and its intended method of distribution; and any liability of such Participating Holder to any underwriter or other Person under such underwriting agreement shall in no case be greater than the amount of the net proceeds received by such Participating Holder upon the sale of Registrable Securities pursuant to such registration statement and in no event shall relate to anything other than information about such Holder specifically provided by such Holder for use in the registration statement and prospectus.
Article 4
General
Section 4.01. Adjustments Affecting Registrable Securities. The provisions of this Agreement shall apply, to the full extent set forth herein with respect to the Registrable Securities, to any and all shares of capital stock of the Company, any successor or assign of the Company (whether by merger, share exchange, consolidation, sale of assets or otherwise) or any Subsidiary or parent company of the Company which may be issued in respect of, in exchange for or in substitution of, Registrable Securities and shall be appropriately adjusted for any stock dividends, splits, reverse splits, combinations, recapitalizations and the like occurring after the date hereof.
Section 4.02. Rule 144. The Company covenants that (i) so long as it remains subject to the reporting provisions of the Exchange Act, it will timely file the reports required to be filed by it under the Securities Act or the Exchange Act (including, but not limited to, the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1)(i) of Rule 144 under the Securities Act, as such Rule may be amended (“Rule 144”)) or, if the Company is not required to file such reports, it will, upon the request of any Holder, make publicly available other information so long as necessary to permit sales by such Holder under Rule 144, or any similar rules or regulations hereafter adopted by the SEC, and (ii) it will take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144, or any similar rule or regulation hereafter adopted by the SEC. Upon the request of any Holder of Registrable Securities, the Company will promptly deliver to such Holder a written statement as to whether it has complied with such requirements.
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Section 4.03. Nominees for Beneficial Owners. If Registrable Securities are held by a nominee for the beneficial owner thereof, the beneficial owner thereof may, at its option, be treated as the Holder of such Registrable Securities for purposes of any request or other action by any Holder or Holders of Registrable Securities pursuant to this Agreement (or any determination of any number or percentage of shares constituting Registrable Securities held by any Holder or Holders of Registrable Securities contemplated by this Agreement); provided, however, that the Company shall have received evidence reasonably satisfactory to it of such beneficial ownership.
Section 4.04. Amendments and Waivers. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement shall be effective against the Company or any Holder unless such modification, amendment or waiver is approved in writing by the Company and the Holders holding a majority of the Registrable Securities then held by all Holders; provided that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as a Holder of Registrable Securities, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder so affected. No waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver of any other provision hereof (whether or not similar). No failure or delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof or of any other or future exercise of any such right, power or privilege.
Section 4.05. Notices. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) if personally delivered, on the date of delivery, (ii) if delivered by express courier service of national standing (with charges prepaid), on the Business Day following the date of delivery to such courier service, (iii) if deposited in the United States mail, first-class postage prepaid, on the fifth (5th) Business Day following the date of such deposit, (iv) if delivered by facsimile transmission, upon confirmation of successful transmission, (x) on the date of such transmission, if such transmission is completed at or prior to 5:00 p.m., local time of the recipient party on a Business Day, and (y) on the next Business Day following the date of transmission, if such transmission is completed after 5:00 p.m., local time of the recipient party, or is transmitted on a day that is not a Business Day, or (v) if via e-mail communication, on the date of delivery. All notices, demands and other communications hereunder shall be delivered as set forth below and to any subsequent holder of Stock subject to this Agreement at such address as indicated by the Company’s records, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:
if to the Company, to:
Isos Acquisition Corporation
55 Post Road W, Suite 200
Westport, CT 06880
Attn: Winston Meade
Email: wmeade@isoscap.com
with a copy to:
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York NY 10004
Attn: Anson B. Frelinghuysen
Email: anson.frelinghuysen@hugheshubard.com
if to any Holder, to the address set forth opposite the name of such Holder on the signature pages hereto or such other address indicated in the records of the Company.
Section 4.06. Successors and Assigns. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and the respective successors, permitted assigns, heirs and personal representatives of the parties hereto, whether so expressed or not. This Agreement may not be assigned by the Company without the prior written consent of the Holders. No Holder shall have the right to assign all or part of its or his rights and obligations under this Agreement to any Person without the consent of the Company (not to be unreasonably withheld or delayed) unless such Person duly executes and delivers to the Company a Joinder Agreement. Upon any such assignment, such assignee shall have and be able to exercise and enforce all rights of the assigning Holder which are assigned to it and, to the extent such rights are assigned, any reference to the assigning Holder shall be treated as a reference to the assignee. If any Holder shall acquire additional Registrable Securities,
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such Registrable Securities shall be subject to all of the terms, and entitled to all the benefits, of this Agreement. Additional Persons may become parties to this Agreement as Holders with the consent of the Company (not to be unreasonably withheld or delayed), by executing and delivering to the Company the Joinder Agreement.
Section 4.07. Termination. (a) The obligations of the Company and a Holder under this Agreement, in each case solely with respect to such Holder, will terminate upon the earlier of:
(i) the date on which such Holder no longer holds any Registrable Securities; or
(ii) the later of (A) the date on which such Holder no longer beneficially owns at least 1% of the then outstanding Class A Common Stock or Class A Common Stock Equivalents, and such Holder (notwithstanding any beneficial ownership of Class A Common Stock or Class A Common Stock Equivalents by such Holder) is not an Affiliate of the Company and (B) the date on which such the Holder is eligible to sell its Registrable Securities pursuant to Rule 144 (without limitation as to volume or manner of sale).
(b) This Agreement shall terminate on the date that is ten (10) years from date hereof.
(c) Notwithstanding clauses (a) and (b) above, Section 2.05, Section 2.09, Section 4.09 and Section 4.13 shall survive termination of this Agreement.
Section 4.08. Entire Agreement. This Agreement and the other documents referred to herein or delivered pursuant hereto which form part hereof constitute the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof.
Section 4.09. Governing Law; Jurisdiction; Waiver of Jury Trial. (a) This Agreement will be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the principles of conflict of laws thereof.
(b) Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement may be brought against any of the parties in the United States District Court for the Southern District of New York or any New York state court located in New York, New York, and each of the parties hereby consents to the exclusive jurisdiction of such court (and of the appropriate appellate courts) in any such suit, action or proceeding and waives any objection to venue laid therein. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
Section 4.10. Interpretation; Construction. (a) The table of contents and headings in this Agreement are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”
(b) The parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
Section 4.11. Counterparts. This Agreement may be executed and delivered in any number of separate counterparts (including by facsimile or electronic mail), each of which shall be an original, but all of which together shall constitute one and the same agreement.
Section 4.12. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
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Section 4.13. Specific Enforcement. It is agreed and understood that monetary damages would not adequately compensate an injured party for the breach of this Agreement by any party hereto and, accordingly, that this Agreement shall be specifically enforceable, in addition to any other remedy to which such injured party is entitled at law or in equity, and that any breach of this Agreement shall be the proper subject of a temporary or permanent injunction or restraining order. Further, each party hereto waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach or an award of specific performance is not an appropriate remedy for any reason at law or equity and agrees that a party’s rights would be materially and adversely affected if the obligations of the other parties under this Agreement were not carried out in accordance with the terms and conditions hereof. Each party further agrees that no party shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtain any remedy referred to in this Section 4.13, and each party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
Section 4.14. Further Assurances. Each party hereto shall do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments, and documents as any other party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
Section 4.15. Confidentiality. Each Holder agrees that any non-public information which they may receive relating to the Company and its Subsidiaries (the “Confidential Information”) will be held strictly confidential and will not be disclosed by it to any Person without the express written permission of the Company; provided, however, that the Confidential Information may be disclosed (i) in the event of any compulsory legal process or compliance with any applicable law, subpoena or other legal process, as required by an administrative requirement, order, decree or the rules of any relevant stock exchange or in connection with any filings that the Holder may be required to make with any regulatory authority; provided, however, that in the event of compulsory legal process, unless prohibited by applicable law or that process, each Holder agrees (A) to give the Company prompt notice thereof and to cooperate with the Company in securing a protective order in the event of compulsory disclosure and (B) that any disclosure made pursuant to public filings will be subject to the prior reasonable review of the Company, (ii) to any foreign or domestic governmental or quasi-governmental regulatory authority, including any stock exchange or other self-regulatory organization having jurisdiction over such party, (iii) to each Holder’s or its Affiliate’s, officers, directors, employees, partners, accountants, lawyers and other professional advisors for use relating solely to management of the investment or administrative purposes with respect to such Holder and (iv) to a proposed transferee of securities of the Company held by a Holder; provided, however, that the Holder informs the proposed transferee of the confidential nature of the information and the proposed transferee agrees in writing to comply with the restrictions in this Section 4.15 and delivers a copy of such writing to the Company.
Section 4.16. Opt-Out Requests. Each Holder shall have the right, at any time and from time to time (including after receiving information regarding any potential public offering), to elect to not receive any notice that the Company or any other Holders otherwise are required to deliver pursuant to this Agreement by delivering to the Company a written statement signed by such Holder that it does not want to receive any notices hereunder (an “Opt-Out Request”); in which case and notwithstanding anything to the contrary in this Agreement the Company and other Holders shall not be required to, and shall not, deliver any notice or other information required to be provided to Holders hereunder to the extent that the Company or such other Holders reasonably expect would result in a Holder acquiring material non-public information within the meaning of Regulation FD promulgated under the Exchange Act. An Opt-Out Request may state a date on which it expires or, if no such date is specified, shall remain in effect indefinitely. A Holder who previously has given the Company an Opt-Out Request may revoke such request at any time, and there shall be no limit on the ability of a Holder to issue and revoke subsequent Opt-Out Requests; provided that each Holder shall use commercially reasonable efforts to minimize the administrative burden on the Company arising in connection with any such Opt-Out Requests.
Section 4.17. Original Registration Rights Agreement. The Sponsor hereby agrees that upon effectiveness of this Agreement by the Sponsor, the Original Registration Rights Agreement shall be automatically terminated and superseded in its entirety by this Agreement.
Section 4.18. Effectiveness; Termination of Business Combination Agreement. This Agreement shall take effect immediately, and without any further action by any Person, upon the Closing. This Agreement shall automatically terminate upon a termination of the Business Combination Agreement prior to the Closing in accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
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THE COMPANY:
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ISOS ACQUISITION CORPORATION
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By:
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Name:
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Title:
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[Signature Page to Amended and Registration Rights Agreement]
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HOLDERS
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A-B PARENT LLC
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By:
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Name:
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Title:
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COBALT RECREATION LLC
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By:
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Name:
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Title:
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[Signature Page to Amended and Registration Rights Agreement]
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Exhibit A
JOINDER AGREEMENT
This Joinder Agreement (this “Joinder Agreement”) is made as of [ ], by [and among [ ] (the “Transferring Holder”) and] [ ] (the “New Holder”), in accordance with that certain Amended and Restated Registration Rights Agreement, dated as of July 1, 2021 (as amended from time to time, the “Agreement”), by and among Isos Acquisition Corporation (the “Company”) and the other Holders party thereto.
WHEREAS, the Agreement requires the New Holder to become a party to the Agreement by executing this Joinder Agreement, and upon the New Holder signing this Joinder Agreement, the Agreement will be deemed to be amended to include the New Holder as a Holder thereunder:
NOW, THEREFORE, in consideration of the foregoing, and of the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Party to the Agreement. By execution of this Joinder Agreement, as of the date hereof the New Holder is hereby made a party to the Agreement as a Holder. The New Holder hereby agrees to become a party to the Agreement and to be bound by, and subject to, all of the representations, covenants, terms and conditions of the Agreement in the same manner as if the New Holder were an original signatory to the Agreement. Execution and delivery of this Joinder Agreement by the New Holder shall also constitute execution and delivery by the New Holder of the Agreement, without further action of any party.
Section 2. Defined Terms. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement unless otherwise noted.
Section 3. Representations and Warranties of the New Holder.
3.1. Authorization. The New Holder has all requisite power and authority and has taken all action necessary in order to duly and validly approve the New Holder’s execution and delivery of, and performance of its obligations under, this Joinder Agreement. This Joinder Agreement has been duly executed and delivered by the New Holder and constitutes a legal, valid and binding agreement of the New Holder, enforceable against the New Holder in accordance with its terms.
3.2. No Conflict. The New Holder is not under any obligation or restriction, nor shall it assume any such obligation or restriction, that does or would materially interfere or conflict with the performance of its obligations under this Joinder Agreement.
Section 4. Further Assurances. The parties agree to execute and deliver any further instruments or perform any acts which are or may become necessary to effectuate the purposes of this Joinder Agreement.
Section 5. Governing Law. This Joinder Agreement will be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the principles of conflict of laws thereof.
Section 6. Counterparts. This Joinder Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same amendatory instrument.
Section 7. Entire Agreement. This Joinder Agreement and the Agreement contain the entire understanding, whether oral or written, of the parties hereto with respect to the matters covered hereby. Any amendment or change in this Joinder Agreement shall not be valid unless made in writing and signed by each of the parties hereto.
[Signature pages follow]
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IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned parties have executed this Joinder Agreement as of the date first above written.
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[TRANSFERRING HOLDER]
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[_____]
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By:
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Name:
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Title:
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NEW HOLDER
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[_____]
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By:
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Name:
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Title:
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NEW HOLDER
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[_____]
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By:
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Name:
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Title:
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Notice Address: [_____________________]
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[_____]
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[_____]
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Attn: [_____]
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Facsimile: [____]
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Accepted and Agreed to as of
the date first written above:
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COMPANY
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[NEW BOWLERO]
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By:
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Name:
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Annex K
Bowlero Corp.
2021 Omnibus Incentive Plan
1. Purpose. The Bowlero Corp. 2021 Omnibus Incentive Plan (as amended from time to time, the “Plan”) is intended to help Bowlero Corp., a Delaware corporation (including any successor thereto, the “Company”), and its Affiliates (i) attract and retain key personnel by providing them the opportunity to acquire an equity interest in the Company or other incentive compensation measured by reference to the value of Common Stock or a targeted dollar value if denominated in cash, and (ii) align the interests of key personnel with those of the Company’s stockholders.
2. Effective Date; Duration. The effective date of the Plan is [ ] 2021 (the “Effective Date”), which is the date that the Plan was approved by the stockholders of the Company. The expiration date of the Plan, on and after which date no Awards may be granted, shall be the tenth anniversary of the Effective Date; provided, however, that such expiration shall not affect Awards then outstanding, and the terms and conditions of the Plan shall continue to apply to such Awards.
3. Definitions. The following definitions shall apply throughout the Plan:
(a) “Affiliate” means any person or entity that directly or indirectly controls, is controlled by or is under common control with the Company. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as applied to any person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting or other securities, by contract or otherwise.
(b) “Award” means any Incentive Stock Option, Nonqualified Stock Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Other Stock-Based Award, or Other Cash-Based Award granted under the Plan.
(c) “Award Agreement” means the agreement (whether in written or electronic form) or other instrument or document evidencing any Award granted under the Plan.
(d) “Beneficial Ownership” has the meaning set forth in Rule 13d-3 promulgated under Section 13 of the Exchange Act.
(e) “Board” means the Board of Directors of the Company.
(f) “Cause” in the case of a particular Award, unless the applicable Award Agreement states otherwise, (i) shall have the meaning given such term (or term of similar import) in any employment, consulting, change-in-control, severance or any other agreement between the Participant and the Company or an Affiliate, or severance plan in which the Participant is eligible to participate, in either case in effect at the time of the Participant’s termination of employment or service with the Company and its Affiliates, or (ii) if “cause” or term of similar import is not defined in, or in the absence of, any such employment, consulting, change-in-control, severance or any other agreement between the Participant and the Company or an Affiliate, or severance plan in which the Participant is eligible to participate, means: (A) embezzlement, theft, misappropriation or conversion, or attempted embezzlement, theft, misappropriation or conversion, by the Participant of any property, funds or business opportunity of the Company or any of its Subsidiaries; (B) willful failure or refusal by the Participant to perform any directive of the Board or the Chief Executive Officer (or his or her delegate), or the duties of his or her employment which continues for a period of thirty (30) days following notice thereof by the Board or the Chief Executive Officer to the Participant; (C) any act by the Participant constituting a felony (or its equivalent in any non-United States jurisdiction) or otherwise involving theft, fraud, dishonesty, misrepresentation or moral turpitude; (D) indictment for, conviction of, or plea of nolo contendere (or a similar plea) to, or the failure of the Participant to contest his or her prosecution for, any other criminal offense; (E) any violation of any law, rule or regulation relating in any way to the business or activities of the Company or its Subsidiaries, or other law that is violated during the course of the Participant’s performance of services, regulatory disqualification or failure to comply with any legal or compliance policies or code of ethics, code of business conduct, conflicts of interest policy or similar policies of the Company or its Subsidiaries; (F) gross negligence or material willful misconduct on the part of the Participant in the performance of his or her duties as an employee, officer or director of the Company or any of its Subsidiaries; (G) the Participant’s breach of fiduciary duty or duty of loyalty to the Company or any of its Subsidiaries; (H) any act or omission to act of the Participant intended to materially harm or damage the business, property, operations, financial condition or reputation of
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the Company or any of its Subsidiaries; (I) the Participant’s failure to cooperate, if requested by the Board, with any investigation or inquiry into the business practices, whether internal or external, or the Company and its Subsidiaries or the Participant, including the Participant’s refusal to be deposed or to provide testimony or evidence at any trial, proceeding or inquiry; (J) any chemical dependence of the Participant which materially interferes with the performance of his or her duties and responsibilities to the Company or any of its Subsidiaries; or (K) the Participant’s voluntary resignation or other termination of employment effected by the Participant at any time when the Company could effect such termination with Cause.
(g) “Change in Control” means, in the case of a particular Award, unless the applicable Award Agreement (or any employment, consulting, change-in-control, severance or other agreement between the Participant and the Company or an Affiliate) states otherwise, the first to occur of any of the following events:
(i) the acquisition by any Person or related “group” (as such term is used in Section 13(d) and Section 14(d) of the Exchange Act) of Persons, or Persons acting jointly or in concert (any such Person, related “group” of Persons, or Persons acting jointly or in concert, an “Acquiror”)), of Beneficial Ownership (including control or direction) of 50% or more (on a fully diluted basis) of either (A) the then-outstanding shares of Common Stock, including Common Stock issuable upon the exercise of options or warrants, the conversion of convertible stock or debt, and the exercise of any similar right to acquire such Common Stock (the “Outstanding Company Common Stock”), or (B) the combined voting power of the then-outstanding voting securities of the Company entitled to vote in the election of directors (the “Outstanding Company Voting Securities”), but excluding any acquisition by the Company or any of its Subsidiaries or by any employee benefit plan sponsored or maintained by the Company or any of its Affiliates; provided, however, that the acquisition of (x) Outstanding Company Common Stock by any Acquiror that, as of immediately prior to such acquisition, had Beneficial Ownership (including control or direction) of 50% or more (on a fully diluted basis) of the then-outstanding Outstanding Company Common Stock or (y) Outstanding Company Voting Securities by any Acquiror that, as of immediately prior to such acquisition, had Beneficial Ownership (including control or direction) of 50% or more (on a fully diluted basis) of the then-outstanding Outstanding Company Voting Securities shall in either case not constitute a “Change in Control”; provided further, that the “Transfer” by the “Founder” (or its “Permitted Transferees”) of any shares of “Class B Common Stock” to any “Permitted Transferee” (as such terms are defined in the Certificate of Incorporation of the Company) shall be disregarded for purposes of determining whether a “Change in Control” has occurred pursuant to this clause (i);
(ii) a change in the composition of the Board such that members of the Board during any consecutive 12-month period (the “Incumbent Directors”) cease to constitute a majority of the Board. Any person becoming a director through election or nomination for election approved by a valid vote of at least two-thirds of the Incumbent Directors shall be deemed an Incumbent Director; provided, however, that no individual becoming a director as a result of an actual or threatened election contest, as such terms are used in Rule 14a-12 of Regulation 14A promulgated under the Exchange Act, or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board, shall be deemed an Incumbent Director;
(iii) the approval by the stockholders of the Company of a plan of complete dissolution or liquidation of the Company; and
(iv) the consummation of a reorganization, recapitalization, merger, amalgamation, consolidation, statutory share exchange or similar form of corporate transaction involving the Company (a “Business Combination”), or sale, transfer or other disposition of all or substantially all of the business or assets of the Company to an entity that is not an Affiliate of the Company (a “Sale”), unless immediately following such Business Combination or Sale: (A) more than 50% of the total voting power of the entity resulting from such Business Combination or the entity that acquired all or substantially all of the business or assets of the Company in such Sale (in either case, the “Surviving Company”), or the ultimate parent entity that has Beneficial Ownership of sufficient voting power to elect a majority of the board of directors (or analogous governing body) of the Surviving Company (the “Parent Company”), is represented by the Outstanding Company Voting Securities that were outstanding immediately prior to such Business Combination or Sale (or, if applicable, is represented by shares into which the Outstanding Company Voting Securities were converted pursuant to such Business Combination or Sale), and such voting power among the holders thereof
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is in substantially the same proportion as the voting power of the Outstanding Company Voting Securities among the holders thereof immediately prior to the Business Combination or Sale, (B) no Person (other than any employee benefit plan sponsored or maintained by the Surviving Company or the Parent Company) is or becomes the beneficial owner, directly or indirectly, of 50% or more of the total voting power of the outstanding voting securities eligible to elect members of the board of directors (or the analogous governing body) of the Parent Company (or, if there is no Parent Company, the Surviving Company), and (C) at least a majority of the members of the board of directors (or the analogous governing body) of the Parent Company (or, if there is no Parent Company, the Surviving Company) following the consummation of the Business Combination or Sale were Board members at the time of the Board’s approval of the execution of the initial agreement providing for such Business Combination or Sale.
(h) “Code” means the U.S. Internal Revenue Code of 1986, as amended, and any successor thereto. References to any section of the Code shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successors thereto.
(i) “Committee” means the Compensation Committee of the Board or subcommittee thereof if required with respect to actions taken to comply with Rule 16b-3 promulgated under the Exchange Act in respect of Awards or, if no such Compensation Committee or subcommittee thereof exists, or if the Board otherwise takes action hereunder on behalf of the Committee, the Board.
(j) “Common Stock” means the Class A Common Stock of the Company, par value $0.0001 per share and any stock or other securities into which such Class A Common Stock may be converted or into which it may be exchanged; provided that, solely in the case of the Shannon Class B Option, the Class B Common Stock of the Company, par value $0.0001 per share and any stock or other securities into which such Class A Common Stock may be converted or into which it may be exchanged.
(k) “Disability” means cause for termination of the Participant’s employment or service due to a determination that the Participant is disabled in accordance with a long-term disability insurance program maintained by the Company or a determination by the U.S. Social Security Administration that the Participant is totally disabled.
(l) “$” shall refer to the United States dollars.
(m) “Eligible Director” means a director who satisfies the conditions set forth in Section 4(a) of the Plan.
(n) “Eligible Person” means any (i) individual employed by the Company or a Subsidiary; provided, however, that no such employee covered by a collective bargaining agreement shall be an Eligible Person, (ii) director or officer of the Company or a Subsidiary, (iii) consultant or advisor to the Company or an Affiliate who may be offered securities registrable on Form S-8 under the Securities Act, or (iv) prospective employee, director, officer, consultant or advisor who has accepted an offer of employment or service from the Company or its Subsidiaries (and would satisfy the provisions of clause (i), (ii) or (iii) above once such individual begins employment with or providing services to the Company or a Subsidiary).
(o) “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and any successor thereto. References to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successors thereto.
(p) “Exercise Price” has the meaning set forth in Section 7(b) of the Plan.
(q) “Fair Market Value” means, (i) with respect to Common Stock on a given date, (x) if the Common Stock is listed on a national securities exchange, the closing sales price of a share of Common Stock reported on such exchange on such date, or if there is no such sale on that date, then on the last preceding date on which such a sale was reported, or (y) if the Common Stock is not listed on any national securities exchange, the amount determined by the Committee in good faith to be the fair market value of the Common Stock, or (ii) with respect to any other property on any given date, the amount determined by the Committee in good faith to be the fair market value of such other property as of such date.
(r) “Immediate Family Members” has the meaning set forth in Section 14(b)(ii) of the Plan.
(s) “Incentive Stock Option” means an Option that is designated by the Committee as an incentive stock option as described in Section 422 of the Code and otherwise meets the requirements set forth in the Plan.
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(t) “Indemnifiable Person” has the meaning set forth in Section 4(e) of the Plan.
(u) “Intrinsic Value” with respect to an Option or SAR means (i) the excess, if any, of the price or implied price per Share in a Change in Control or other event over (ii) the exercise or hurdle price of such Award multiplied by (iii) the number of Shares covered by such Award.
(v) “NYSE” means the New York Stock Exchange.
(w) “Nonqualified Stock Option” means an Option that is not designated by the Committee as an Incentive Stock Option.
(x) “Option” means an Award granted under Section 7 of the Plan.
(y) “Option Period” has the meaning set forth in Section 7(c) of the Plan.
(z) “Other Cash-Based Award” means an Award granted under Section 10 of the Plan that is denominated and/or payable in cash, including cash awarded as a bonus or upon the attainment of specific performance criteria or as otherwise permitted by the Plan or as contemplated by the Committee.
(aa) “Other Stock-Based Award” means an Award granted under Section 10 of the Plan.
(bb) “Participant” has the meaning set forth in Section 6 of the Plan.
(cc) “Performance Conditions” means specific levels of performance of the Company (and/or one or more Affiliates, divisions or operational and/or business units, product lines, brands, business segments, administrative departments, units, or any combination of the foregoing), which may be determined in accordance with GAAP or on a non-GAAP basis, including without limitation, on the following measures: (i) net earnings or net income (before or after taxes); (ii) basic or diluted earnings per share (before or after taxes); (iii) net revenue or net revenue growth; (iv) gross revenue or gross revenue growth, gross profit or gross profit growth; (v) net operating profit (before or after taxes); (vi) return measures (including, but not limited to, return on investment, assets, net assets, capital, gross revenue or gross revenue growth, invested capital, equity or sales); (vii) cash flow measures (including, but not limited to, operating cash flow, free cash flow and cash flow return on capital), which may but are not required to be measured on a per-share basis; (viii) earnings before or after taxes, interest, depreciation, and amortization (including EBIT and EBITDA); (ix) gross or net operating margins; (x) productivity ratios; (xi) share price (including, but not limited to, growth measures and total shareholder return); (xii) expense targets or cost reduction goals, general and administrative expense savings; (xiii) operating efficiency; (xiv) customer satisfaction; (xv) working capital targets; (xvi) measures of economic value added or other ‘‘value creation’’ metrics; (xvii) enterprise value; (xviii) stockholder return; (xix) client or customer retention; (xx) competitive market metrics; (xxi) employee retention; (xxii) personal targets, goals or completion of projects (including but not limited to succession and hiring projects, completion of specific acquisitions, reorganizations or other corporate transactions or capital-raising transactions, expansions of specific business operations and meeting divisional or project budgets); (xxiii) system-wide sales; (xxiv) cost of capital, debt leverage year-end cash position or book value; (xxv) strategic objectives, development of new product lines and related revenue, sales and margin targets, or international operations; (xxvi) store growth or (xxvii) same store sales growth; or any combination of the foregoing. Any one or more of the aforementioned performance criteria may be stated as a percentage of another performance criteria, or used on an absolute or relative basis to measure the of the Company and/or one or more Affiliates as a whole or any divisions or operational and/or business units, product lines, brands, business segments, administrative departments of the Company and/or one or more Affiliates or any combination thereof, as the Committee may deem appropriate, or any of the above performance criteria may be compared to the performance of a group of comparator companies, or a published or special index that the Committee deems appropriate, or as compared to various stock market indices. The Performance Conditions may include a threshold level of performance below which no payment shall be made (or no vesting shall occur), levels of performance at which specified payments shall be made (or specified vesting shall occur), and a maximum level of performance above which no additional payment shall be made (or at which full vesting shall occur). The Committee shall have the authority to make equitable adjustments to the Performance Conditions as may be determined by the Committee, in its sole discretion.
(dd) “Permitted Transferee” has the meaning set forth in Section 14(b)(ii) of the Plan.
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(ee) “Person” has the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any of its Subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of Common Stock of the Company.
(ff) “Released Unit” has the meaning set forth in Section 9(d)(ii) of the Plan.
(gg) “Restricted Period” has the meaning set forth in Section 9(a) of the Plan.
(hh) “Restricted Stock” means an Award of Common Stock, subject to certain specified restrictions, granted under Section 9 of the Plan.
(ii) “Restricted Stock Unit” means an Award of an unfunded and unsecured promise to deliver shares of Common Stock, cash, other securities or other property, subject to certain specified restrictions, granted under Section 9 of the Plan.
(jj) “SAR Period” has the meaning set forth in Section 8(c) of the Plan.
(kk) “Securities Act” means the U.S. Securities Act of 1933, as amended, and any successor thereto. Reference in the Plan to any section of (or rule promulgated under) the Securities Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successor provisions to such section, rules, regulations or other interpretive guidance.
(ll) “Shannon Class B Option” means the Option to purchase [_____]1 shares of the Class B Common Stock of the Company, par value $0.0001 per share, to be granted to Thomas F. Shannon shortly after the Effective Date.
(mm) “Stock Appreciation Right” or “SAR” means an Award granted under Section 8 of the Plan.
(nn) “Strike Price” has the meaning set forth in Section 8(b) of the Plan.
(oo) “Subsidiary” means any corporation or other entity a majority of whose outstanding voting stock or voting power is beneficially owned directly or indirectly by the Company.
(pp) “Substitute Awards” has the meaning set forth in Section 5(e) of the Plan.
4. Administration.
(a) The Committee shall administer the Plan, and shall have the sole and plenary authority to (i) designate the Participants, (ii) determine the type, size, and terms and conditions of Awards to be granted and to grant such Awards, (iii) determine the method by which an Award may be settled, exercised, canceled, forfeited, suspended, or repurchased by the Company, (iv) determine the circumstances under which the delivery of cash, property or other amounts payable with respect to an Award may be deferred, either automatically or at the Participant’s or Committee’s election, (v) interpret, administer, reconcile any inconsistency in, correct any defect in and supply any omission in the Plan and any Award granted under 1 Note to Draft: Insert number of shares equal to 18,881, as converted in connection with the transactions contemplated by the BCA. the Plan, (vi) establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for the proper administration of the Plan, (vii) accelerate the vesting, delivery or exercisability of, or payment for or lapse of restrictions on, or waive any condition in respect of, Awards, and (viii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan or to comply with any applicable law. To the extent required to comply with the provisions of Rule 16b-3 promulgated under the Exchange Act (if applicable and if the Board is not acting as the Committee under the Plan), or any exception or exemption under applicable securities laws or the applicable rules of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, as applicable, it is intended that each member of the Committee shall, at the time such member takes any action with respect to an Award under the Plan,
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be (1) a “non-employee director” within the meaning of Rule 16b-3 promulgated under the Exchange Act and/or (2) an “independent director” under the rules of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, or a person meeting any similar requirement under any successor rule or regulation (“Eligible Director”). However, the fact that a Committee member shall fail to qualify as an Eligible Director shall not invalidate any Award granted or action taken by the Committee that is otherwise validly granted or taken under the Plan.
(b) The Committee may delegate all or any portion of its responsibilities and powers to any person(s) selected by it, except for grants of Awards to persons who are non-employee members of the Board or are otherwise subject to Section 16 of the Exchange Act. Any such delegation may be revoked by the Committee at any time.
(c) As further set forth in Section 14(f) of the Plan, the Committee shall have the authority to amend the Plan and Awards to the extent necessary to permit participation in the Plan by Eligible Persons who are located outside of the United States on terms and conditions comparable to those afforded to Eligible Persons located within the United States; provided, however, that no such action shall be taken without stockholder approval if such approval is required by applicable securities laws or regulation or NYSE listing guidelines.
(d) Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions regarding the Plan or any Award or any documents evidencing Awards granted pursuant to the Plan shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive and binding upon all persons and entities, including, without limitation, the Company, any Affiliate, any Participant, any holder or beneficiary of any Award, and any stockholder of the Company.
(e) No member of the Board or the Committee, nor any employee or agent of the Company (each such person, an “Indemnifiable Person”), shall be liable for any action taken or omitted to be taken or any determination made with respect to the Plan or any Award hereunder (unless constituting fraud or a willful criminal act or willful criminal omission). Each Indemnifiable Person shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense (including attorneys’ fees) that may be imposed upon or incurred by such Indemnifiable Person in connection with or resulting from any action, suit or proceeding to which such Indemnifiable Person may be involved as a party, witness or otherwise by reason of any action taken or omitted to be taken or determination made under the Plan or any Award Agreement and against and from any and all amounts paid by such Indemnifiable Person with the Company’s approval (not to be unreasonably withheld), in settlement thereof, or paid by such Indemnifiable Person in satisfaction of any judgment in any such action, suit or proceeding against such Indemnifiable Person, and the Company shall advance to such Indemnifiable Person any such expenses promptly upon written request (which request shall include an undertaking by the Indemnifiable Person to repay the amount of such advance if it shall ultimately be determined as provided below that the Indemnifiable Person is not entitled to be indemnified); provided, that the Company shall have the right, at its own expense, to assume and defend any such action, suit or proceeding, and once the Company gives notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of recognized standing of the Company’s choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent that a final judgment or other final adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts or omissions or determinations of such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable Person’s fraud or willful criminal act or willful criminal omission or that such right of indemnification is otherwise prohibited by law or by the Company’s certificate of incorporation or by-laws. The foregoing right of indemnification shall not be exclusive of or otherwise supersede any other rights of indemnification to which such Indemnifiable Persons may be entitled under the Company’s certificate of incorporation or by-laws, as a matter of law, individual indemnification agreement or contract or otherwise, or any other power that the Company may have to indemnify such Indemnifiable Persons or hold them harmless.
(f) The Board may at any time and from time to time grant Awards and administer the Plan with respect to such Awards. In any such case, the Board shall have all the authority granted to the Committee under the Plan.
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5. Grant of Awards; Shares Subject to the Plan; Limitations.
(a) Awards. The Committee may grant Awards to one or more Eligible Persons. All Awards granted under the Plan shall vest and become exercisable in such manner and on such date or dates or upon such event or events as determined by the Committee, including, without limitation, attainment of Performance Conditions.
(b) Share Limits. Subject to Section 11 of the Plan and subsection (e) below, the following limitations apply to the grant of Awards: (i) no more than [X]2 shares of Common Stock may be reserved for issuance and delivered in the aggregate pursuant to Awards granted under the Plan, subject to an annual increase on the first day of each calendar year beginning on January 1, 2022 and ending on and including January 1, 2031, equal to the lesser of (A) 2% of the aggregate number of shares of Common Stock outstanding on the final day of the immediately preceding calendar year and (B) such smaller number of shares as is determined by the Board (the “Share Pool”); (ii) no more than [insert same number of shares as in clause (i)] shares of Common Stock may be delivered pursuant to the exercise of Incentive Stock Options granted under the Plan; and (iii) the maximum amount (based on the Fair Market Value of shares of Common Stock on the date of grant as determined in accordance with applicable financial accounting rules) of Awards that may be granted in any single fiscal year to any non-employee member of the Board, taken together with any cash fees paid to such non-employee member of the Board in respect of service as a member of the Board during such fiscal year, shall be $[500,000]; provided, that the foregoing limitation shall not apply in respect of any Awards issued to (x) a non-employee director in respect of any one-time equity grant upon his or her appointment to the Board or (y) a non-executive chairman of the Board, provided, that the non-employee director receiving such additional compensation does not participate in the decision to award such compensation.
(c) Share Counting. The Share Pool shall be reduced, on the date of grant, by the relevant number of shares of Common Stock for each Award granted under the Plan that is valued by reference to a share of Common Stock; provided that Awards that are valued by reference to shares of Common Stock but are required to be paid in cash pursuant to their terms shall not reduce the Share Pool. If and to the extent that Awards originating from the Share Pool terminate, expire, or are cash-settled, canceled, forfeited, exchanged, or surrendered without having been exercised, vested, or settled, the shares of Common Stock subject to such Awards shall again be available for Awards under the Share Pool; provided, however, that the following shares of Common Stock shall not become available for issuance under the Plan: (i) shares of Common Stock tendered by the Participants, or withheld by the Company, as full or partial payment to the Company upon the exercise of Stock Options granted under the Plan; (ii) shares of Common Stock reserved for issuance upon the grant of Stock Appreciation Rights, to the extent that the number of reserved shares of Common Stock exceeds the number of shares of Common Stock actually issued upon the exercise of the Stock Appreciation Rights; and (iii) shares of Common Stock withheld by, or otherwise remitted to, the Company to satisfy a Participant’s tax withholding obligations upon the exercise, lapse of restrictions on, or settlement of, Awards granted under the Plan].
(d) Source of Shares. Shares of Common Stock delivered by the Company in settlement of Awards may be authorized and unissued shares, shares held in the treasury of the Company, shares purchased on the open market or by private purchase, or a combination of the foregoing.
(e) Substitute Awards. The Committee may grant Awards in assumption of, or in substitution for, outstanding awards previously granted by the Company or any Affiliate or an entity directly or indirectly acquired by the Company or with which the Company combines (“Substitute Awards”), and such Substitute Awards shall not be counted against the aggregate number of shares of Common Stock available for Awards (i.e., Substitute Awards will not be counted against the Share Pool); provided, that Substitute Awards issued or intended as “incentive stock options” within the meaning of Section 422 of the Code shall be counted against the aggregate number of Incentive Stock Options available under the Plan.
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6. Eligibility. Participation shall be limited to Eligible Persons who have been selected by the Committee and who have entered into an Award Agreement with respect to an Award granted to them under the Plan (each such Eligible Person, a “Participant”).
7. Options.
(a) Generally. Each Option shall be subject to the conditions set forth in the Plan and in the applicable Award Agreement. All Options granted under the Plan shall be Nonqualified Stock Options unless the Award Agreement expressly states otherwise. Incentive Stock Options shall be granted only subject to and in compliance with Section 422 of the Code, and only to Eligible Persons who are employees of the Company and its Affiliates and who are eligible to receive an Incentive Stock Option under the Code. If for any reason an Option intended to be an Incentive Stock Option (or any portion thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option or portion thereof shall be regarded as a Nonqualified Stock Option properly granted under the Plan.
(b) Exercise Price. The exercise price (“Exercise Price”) per share of Common Stock for each Option (that is not a Substitute Award) shall not be less than 100% of the Fair Market Value of such share, determined as of the date of grant. Any modification to the Exercise Price of an outstanding Option shall be subject to the prohibition on repricing set forth in Section 13(b).
(c) Vesting, Exercise and Expiration. The Committee shall determine the manner and timing of vesting, exercise and expiration of Options. The period between the date of grant and the scheduled expiration date of the Option (“Option Period”) shall not exceed ten years, unless the Option Period (other than in the case of an Incentive Stock Option) would expire at a time when trading in the shares of Common Stock is prohibited by the Company’s insider-trading policy or a Company-imposed “blackout period,” in which case the Option Period shall be extended automatically (other than with respect to Options with an Exercise Price as of the end of the Option Period (prior to any such extension) that is not less than the Fair Market Value of a share of Common Stock at such time) until the 30th day following the expiration of such prohibition (so long as such extension shall not violate Section 409A of the Code). The Committee may accelerate the vesting and/or exercisability of any Option, which acceleration shall not affect any other terms and conditions of such Option.
(d) Method of Exercise and Form of Payment. No shares of Common Stock shall be delivered pursuant to any exercise of an Option until the Participant has paid the Exercise Price to the Company in full, and an amount equal to any U.S. federal, state and local income and employment taxes and non-U.S. income and employment taxes, social contributions and any other tax-related items required to be withheld. Options may be exercised by delivery of written or electronic notice of exercise to the Company or its designee (including a third-party administrator) in accordance with the terms of the Option and the Award Agreement accompanied by payment of the Exercise Price and such applicable taxes. The Exercise Price shall be payable (i) in cash or by check, cash equivalent and/or shares of Common Stock valued at the Fair Market Value at the time the Option is exercised (including, pursuant to procedures approved by the Committee, by means of attestation of ownership of a sufficient number of shares of Common Stock in lieu of actual delivery of such shares to the Company) or any combination of the foregoing; provided, that such shares of Common Stock are not subject to any pledge or other security interest; or (ii) by such other method as elected by the Participant and that the Committee may permit, in its sole discretion, including without limitation: (A) in the form of other property having a Fair Market Value on the date of exercise equal to the Exercise Price and all applicable required withholding taxes; (B) if there is a public market for the shares of Common Stock at such time, by means of a broker-assisted “cashless exercise” pursuant to which the Company or its designee (including third-party administrators) is delivered a copy of irrevocable instructions to a stockbroker to sell the shares of Common Stock otherwise deliverable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price and all applicable required withholding taxes against delivery of the shares of Common Stock to settle the applicable trade; or (C) by means of a “net exercise” procedure effected by withholding the minimum number of shares of Common Stock otherwise deliverable in respect of an Option that are needed to pay for the Exercise Price and all applicable required withholding taxes. No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash, other securities or other property shall be paid or transferred in lieu of any fractional shares of Common Stock, or whether such fractional shares of Common Stock or any rights thereto shall be canceled, terminated or otherwise eliminated.
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(e) Notification upon Disqualifying Disposition of an Incentive Stock Option. Each Participant awarded an Incentive Stock Option under the Plan shall notify the Company in writing immediately after the date on which the Participant makes a disqualifying disposition of any Common Stock acquired pursuant to the exercise of such Incentive Stock Option. A disqualifying disposition is any disposition (including, without limitation, any sale) of such Common Stock before the later of (i) two years after the date of grant of the Incentive Stock Option and (ii) one year after the date of exercise of the Incentive Stock Option. The Company may, if determined by the Committee and in accordance with procedures established by the Committee, retain possession, as agent for the applicable Participant, of any Common Stock acquired pursuant to the exercise of an Incentive Stock Option until the end of the period described in the preceding sentence, subject to complying with any instruction from such Participant as to the sale of such Common Stock.
(f) Compliance with Laws. Notwithstanding the foregoing, in no event shall the Participant be permitted to exercise an Option in a manner that the Committee determines would violate the Sarbanes-Oxley Act of 2002, or any other applicable law or the applicable rules and regulations of the Securities and Exchange Commission or the applicable rules and regulations of any securities exchange or inter-dealer quotation service on which the Common Stock of the Company is listed or quoted.
(g) Incentive Stock Option Grants to 10% Stockholders. Notwithstanding anything to the contrary in this Section 7, if an Incentive Stock Option is granted to a Participant who owns stock representing more than ten percent of the voting power of all classes of stock of the Company or of a parent or subsidiary of the Company (within the meaning of Sections 424(e) and 424(f) of the Code), the Option Period shall not exceed five years from the date of grant of such Option and the Exercise Price shall be at least 110% of the Fair Market Value (on the date of grant) of the shares subject to the Option.
(h) $100,000 Per Year Limitation for Incentive Stock Options. To the extent that the aggregate Fair Market Value (determined as of the date of grant) of shares of Common Stock for which Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company) exceeds $100,000, such excess Incentive Stock Options shall be treated as Nonqualified Stock Options.
8. Stock Appreciation Rights (SARs).
(a) Generally. Each SAR shall be subject to the conditions set forth in the Plan and the Award Agreement. Any Option granted under the Plan may include a tandem SAR. The Committee also may award SARs independent of any Option.
(b) Strike Price. The strike price (“Strike Price”) per share of Common Stock for each SAR (that is not a Substitute Award) shall not be less than 100% of the Fair Market Value of such share, determined as of the date of grant; provided, however, that a SAR granted in tandem with (or in substitution for) an Option previously granted shall have a Strike Price equal to the Exercise Price of the corresponding Option. Any modification to the Strike Price of an outstanding SAR shall be subject to the prohibition on repricing set forth in Section 13(b).
(c) Vesting and Expiration. A SAR granted in tandem with an Option shall vest and become exercisable and shall expire according to the same vesting schedule and expiration provisions as the corresponding Option. A SAR granted independently of an Option shall vest and become exercisable and shall expire in such manner and on such date or dates determined by the Committee and shall expire after such period, not to exceed ten years, as may be determined by the Committee (the “SAR Period”); provided, however, that notwithstanding any vesting or exercisability dates set by the Committee, the Committee may accelerate the vesting and/or exercisability of any SAR, which acceleration shall not affect the terms and conditions of such SAR other than with respect to vesting and/or exercisability. If the SAR Period would expire at a time when trading in the shares of Common Stock is prohibited by the Company’s insider trading policy or a Company-imposed “blackout period,” the SAR Period shall be automatically extended (other than with respect to SARs with a Strike Price as of the end of the SAR Period (prior to any such extension) that is not less than the Fair Market Value of a share of Common Stock at such time) until the 30th day following the expiration of such prohibition (so long as such extension shall not violate Section 409A of the Code).
(d) Method of Exercise. SARs may be exercised by delivery of written or electronic notice of exercise to the Company or its designee (including a third-party administrator) in accordance with the terms of the Award, specifying the number of SARs to be exercised and the date on which such SARs were awarded.
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(e) Payment. Upon the exercise of a SAR, the Company shall pay to the holder thereof an amount equal to the number of shares subject to the SAR that are being exercised multiplied by the excess, if any, of the Fair Market Value of one share of Common Stock on the exercise date over the Strike Price, less an amount equal to any U.S. federal, state and local income and employment taxes and non-U.S. income and employment taxes, social contributions and any other tax-related items required to be withheld. The Company shall pay such amount in cash, in shares of Common Stock valued at Fair Market Value as determined on the date of exercise, or any combination thereof, as determined by the Committee. Any fractional shares of Common Stock shall be settled in cash.
9. Restricted Stock and Restricted Stock Units.
(a) Generally. Each Restricted Stock and Restricted Stock Unit Award shall be subject to the conditions set forth in the Plan and the applicable Award Agreement. The Committee shall establish restrictions applicable to Restricted Stock and Restricted Stock Units, including the period over which the restrictions shall apply (the “Restricted Period”), and the time or times at which Restricted Stock or Restricted Stock Units shall become vested (which, for the avoidance of doubt, may include service-and/or performance-based vesting conditions). To the extent permitted in the Committee’s sole discretion, and subject to such rules, approvals, and conditions as the Committee may impose from time to time, an Eligible Person who is a non-employee director may elect to receive all or a portion of such Eligible Person’s cash director fees and other cash director compensation payable for director services provided to the Company by such Eligible Person in any fiscal year, in whole or in part, in the form of Restricted Stock Units (which may be fully vested from the date of receipt). The Committee may accelerate the vesting and/or the lapse of any or all of the restrictions on Restricted Stock and Restricted Stock Units which acceleration shall not affect any other terms and conditions of such Awards. No share of Common Stock shall be issued at the time an Award of Restricted Stock Units is made, and the Company will not be required to set aside a fund for the payment of any such Award.
(b) Stock Certificates; Escrow or Similar Arrangement. Upon the grant of Restricted Stock, the Committee shall cause share(s) of Common Stock to be registered in the name of the Participant and held in book-entry form subject to the Company’s directions. The Committee may also cause a stock certificate registered in the name of the Participant to be issued. In such event, the Committee may provide that such certificates shall be held by the Company or in escrow rather than delivered to the Participant pending vesting and release of restrictions, in which case the Committee may require the Participant to execute and deliver to the Company or its designee (including third-party administrators) (i) an escrow agreement satisfactory to the Committee, if applicable, and (ii) the appropriate stock power (endorsed in blank) with respect to the Restricted Stock. If the Participant shall fail to execute and deliver the escrow agreement and blank stock power within the amount of time specified by the Committee, the Award shall be null and void. Subject to the restrictions set forth in this Section 9 and the Award Agreement, the Participant shall have the rights and privileges of a stockholder as to such Restricted Stock, including without limitation the right to vote such Restricted Stock.
(c) Restrictions; Forfeiture. Restricted Stock and Restricted Stock Units awarded to the Participant shall be subject to forfeiture until the expiration of the Restricted Period and the attainment of any other vesting criteria established by the Committee, and shall be subject to the restrictions on transferability set forth in the Award Agreement. In the event of any forfeiture, all rights of the Participant to such Restricted Stock (or as a stockholder with respect thereto), and to such Restricted Stock Units, as applicable, including to any dividends and/or dividend equivalents that may have been accumulated and withheld during the Restricted Period in respect thereof, shall terminate without further action or obligation on the part of the Company. The Committee shall have the authority to remove any or all of the restrictions on the Restricted Stock and Restricted Stock Units whenever it may determine that, by reason of changes in applicable laws or other changes in circumstances arising after the date of grant of the Restricted Stock Award or Restricted Stock Unit Award, such action is appropriate.
(d) Delivery of Restricted Stock and Settlement of Restricted Stock Units.
(i) Upon the expiration of the Restricted Period with respect to any shares of Restricted Stock and the attainment of any other vesting criteria, the restrictions set forth in the applicable Award Agreement shall be of no further force or effect, except as set forth in the Award Agreement. If an escrow arrangement is used, upon such expiration the Company shall deliver to the Participant or such Participant’s beneficiary (via book-entry notation or, if applicable, in stock certificate form) the shares of Restricted Stock with respect to which the Restricted Period has expired (rounded down to the nearest full share). Dividends, if any, that
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may have been withheld by the Committee and attributable to the Restricted Stock shall be distributed to the Participant in cash or in shares of Common Stock having a Fair Market Value (on the date of distribution) (or a combination of cash and shares of Common Stock) equal to the amount of such dividends, upon the release of restrictions on the Restricted Stock.
(ii) Unless otherwise provided by the Committee in an Award Agreement, upon the expiration of the Restricted Period and the attainment of any other vesting criteria established by the Committee, with respect to any outstanding Restricted Stock Units, the Company shall deliver to the Participant, or such Participant’s beneficiary (via book-entry notation or, if applicable, in stock certificate form), one share of Common Stock (or other securities or other property, as applicable) for each such outstanding Restricted Stock Unit that has not then been forfeited and with respect to which the Restricted Period has expired and any other such vesting criteria are attained (“Released Unit”); provided, however, that the Committee may elect to (A) pay cash or part cash and part Common Stock in lieu of delivering only shares of Common Stock in respect of such Released Units or (B) defer the delivery of Common Stock (or cash or part Common Stock and part cash, as the case may be) beyond the expiration of the Restricted Period if such extension would not cause adverse tax consequences under Section 409A of the Code. If a cash payment is made in lieu of delivering shares of Common Stock, the amount of such payment shall be equal to the Fair Market Value of the Common Stock as of the date on which the shares of Common Stock would have otherwise been delivered to the Participant in respect of such Restricted Stock Units.
(iii) To the extent provided in an Award Agreement, the holder of outstanding Restricted Stock Units shall be entitled to be credited with dividend equivalent payments (upon the payment by the Company of dividends on shares of Common Stock) either in cash or, if determined by the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of such dividends as of the date of payment (or a combination of cash and shares of Common Stock) (and interest may, if determined by the Committee, be credited on the amount of cash dividend equivalents at a rate and subject to such terms as determined by the Committee), which accumulated dividend equivalents (and interest thereon, if applicable) shall be payable at the same time as the underlying Restricted Stock Units are settled (in the case of Restricted Stock Units, following the release of restrictions on such Restricted Stock Units), and if such Restricted Stock Units are forfeited, the holder thereof shall have no right to such dividend equivalent payments.
(e) Legends on Restricted Stock. Each certificate representing Restricted Stock awarded under the Plan, if any, shall bear a legend substantially in the form of the following in addition to any other information the Company deems appropriate until the lapse of all restrictions with respect to such Common Stock:
TRANSFER OF THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY IS RESTRICTED PURSUANT TO THE TERMS OF THE BOWLERO CORP. 2021 OMNIBUS INCENTIVE PLAN AND A RESTRICTED STOCK AWARD AGREEMENT, DATED AS OF _______, BETWEEN BOWLERO CORP. AND _______. A COPY OF SUCH PLAN AND AWARD AGREEMENT IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF BOWLERO CORP.
10. Other Stock-Based Awards and Other Cash-Based Awards. The Committee may issue unrestricted Common Stock, rights to receive future grants of Awards, or other Awards denominated in Common Stock (including performance shares or performance units), or Awards that provide for cash payments based in whole or in part on the value or future value of shares of Common Stock (“Other Stock-Based Awards”) and Other Cash-Based Awards under the Plan to Eligible Persons, alone or in tandem with other Awards, in such amounts as the Committee shall from time to time determine. Each Other Stock-Based Award shall be evidenced by an Award Agreement, which may include conditions including, without limitation, the payment by the Participant of the Fair Market Value of such shares of Common Stock on the date of grant.
11. Changes in Capital Structure and Similar Events. In the event of (a) any dividend (other than regular cash dividends) or other distribution (whether in the form of cash, shares of Common Stock, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, amalgamation, consolidation, split-up, split-off, spin-off, combination, repurchase or exchange of shares of Common Stock or other securities of the Company, issuance of warrants or other rights to acquire shares of Common Stock or other securities of the Company, or other similar corporate transaction or event (including, without limitation, a Change in Control) that affects the shares of Common Stock, or (b) unusual or nonrecurring events (including, without limitation, a Change in Control) affecting the Company, any Affiliate, or the financial statements of the Company or any Affiliate, or
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changes in applicable rules, rulings, regulations or other requirements of any governmental body or securities exchange or inter-dealer quotation service, accounting principles or law, such that in any case an adjustment is determined by the Committee to be necessary or appropriate, then the Committee shall (other than with respect to Other Cash-Based Awards) make any such adjustments in such manner as it may deem equitable, including without limitation any or all of the following:
(i) adjusting any or all of (A) the number of shares of Common Stock or other securities of the Company (or number and kind of other securities or other property) that may be delivered in respect of Awards or with respect to which Awards may be granted under the Plan (including, without limitation, adjusting any or all of the limitations under Section 5 of the Plan) and (B) the terms of any outstanding Award, including, without limitation, (1) the number of shares of Common Stock or other securities of the Company (or number and kind of other securities or other property) subject to outstanding Awards or to which outstanding Awards relate, (2) the Exercise Price or Strike Price with respect to any Award and/or (3) any applicable performance measures (including, without limitation, Performance Conditions and performance periods);
(ii) providing for a substitution or assumption of Awards (or awards of an acquiring company), accelerating the delivery, vesting and/or exercisability of, lapse of restrictions and/or other conditions on, or termination of, Awards or providing for a period of time (which shall not be required to be more than (10) days) for the Participants to exercise outstanding Awards prior to the occurrence of such event (and any such Award not so exercised shall terminate or become no longer exercisable upon the occurrence of such event); and
(iii) cancelling any one or more outstanding Awards (or awards of an acquiring company) and causing to be paid to the holders thereof, in cash, shares of Common Stock, other securities or other property, or any combination thereof, the value of such Awards, if any, as determined by the Committee (which if applicable may be based upon the price per share of Common Stock received or to be received by other stockholders of the Company in such event), including without limitation, in the case of an outstanding Option or SAR, a cash payment in an amount equal to the excess, if any, of the Fair Market Value (as of a date specified by the Committee) of the shares of Common Stock subject to such Option or SAR over the aggregate Exercise Price or Strike Price of such Option or SAR, respectively (it being understood that, in such event, any Option or SAR having a per-share Exercise Price or Strike Price equal to, or in excess of, the Fair Market Value (as of the date specified by the Committee) of a share of Common Stock subject thereto may be canceled and terminated without any payment or consideration therefor);
provided, however, that the Committee shall make an equitable or proportionate adjustment to outstanding Awards to reflect any “equity restructuring” (within the meaning of the Financial Accounting Standards Codification Topic 718 (or any successor pronouncement thereto)). Except as otherwise determined by the Committee, any adjustment in Incentive Stock Options under this Section 11 (other than any cancellation of Incentive Stock Options) shall be made only to the extent not constituting a “modification” within the meaning of Section 424(h)(3) of the Code, and any adjustments under this Section 11 shall be made in a manner that does not adversely affect the exemption provided pursuant to Rule 16b-3 promulgated under the Exchange Act. The Company shall give each Participant notice of an adjustment hereunder and, upon notice, such adjustment shall be conclusive and binding for all purposes. In anticipation of the occurrence of any event listed in the first sentence of this Section 11, for reasons of administrative convenience, the Committee in its sole discretion may refuse to permit the exercise of any Award during a period of up to 30 days prior to, and/or up to 30 days after, the anticipated occurrence of any such event.
12. Effect of Termination of Service or a Change in Control on Awards.
(a) Termination. To the extent permitted under Section 409A of the Code, the Committee may provide, by rule or regulation or in any applicable Award Agreement, or may determine in any individual case, the circumstances in which, and to the extent to which, an Award may be exercised, settled, vested, paid or forfeited in the event of the Participant’s termination of service prior to the end of a performance period or vesting, exercise or settlement of such Award.
(b) Change in Control. In the event of a Change in Control, notwithstanding any provision of the Plan to the contrary, the Committee may provide for: (i) continuation or assumption of such outstanding Awards under the Plan by the Company (if it is the surviving corporation) or by the surviving corporation or its parent; (ii) substitution by the surviving corporation or its parent of awards with substantially the same terms and value for such outstanding
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Awards (in the case of an Option or SAR, the Intrinsic Value at grant of such Substitute Award shall equal the Intrinsic Value of the Award); (iii) acceleration of the vesting (including the lapse of any restrictions, with any performance criteria or other performance conditions deemed met at target) or right to exercise such outstanding Awards immediately prior to or as of the date of the Change in Control, and the expiration of such outstanding Awards to the extent not timely exercised by the date of the Change in Control or other date thereafter designated by the Committee; or (iv) in the case of an Option or SAR, cancelation in consideration of a payment in cash or other consideration to the Participant who holds such Award in an amount equal to the Intrinsic Value of such Award (which may be equal to but not less than zero), which, if in excess of zero, shall be payable upon the effective date of such Change in Control. For the avoidance of doubt, in the event of a Change in Control, the Committee may, in its sole discretion, terminate any Option or SARs for which the Exercise Price or Strike Price is equal to or exceeds the per share value of the consideration to be paid in the Change in Control transaction without payment of consideration therefor.
13. Amendments and Termination.
(a) Amendment and Termination of the Plan. The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof at any time; provided, that no such amendment, alteration, suspension, discontinuation or termination shall be made without stockholder approval if such approval is necessary to comply with any tax or regulatory requirement applicable to the Plan (including, without limitation, as necessary to comply with any applicable rules or requirements of any securities exchange or inter-dealer quotation service on which the shares of Common Stock may be listed or quoted, for changes in GAAP to new accounting standards); provided, further, that any such amendment, alteration, suspension, discontinuance or termination that would materially and adversely affect the rights of any Participant or any holder or beneficiary of any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant, holder or beneficiary, unless the Committee determines that such amendment, alteration, suspension, discontinuance or termination is either required or advisable in order for the Company, the Plan or the Award to satisfy any applicable law or regulation. Notwithstanding the foregoing, no amendment shall be made to the last proviso of Section 13(b) without stockholder approval.
(b) Amendment of Award Agreements. The Committee may, to the extent not inconsistent with the terms of any applicable Award Agreement or the Plan, waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated Award Agreement, prospectively or retroactively (including after the Participant’s termination of employment or service with the Company); provided, that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of any Participant with respect to any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant unless the Committee determines that such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination is either required or advisable in order for the Company, the Plan or the Award to satisfy any applicable law or regulation; provided, further, that except as otherwise permitted under Section 11 of the Plan, if (i) the Committee reduces the Exercise Price of any Option or the Strike Price of any SAR, (ii) the Committee cancels any outstanding Option or SAR and replaces it with a new Option or SAR (with a lower Exercise Price or Strike Price, as the case may be) or other Award or cash in a manner that would either (A) be reportable on the Company’s proxy statement or Form 10-K (if applicable) as Options that have been “repriced” (as such term is used in Item 402 of Regulation S-K promulgated under the Exchange Act), or (B) result in any “repricing” for financial statement reporting purposes (or otherwise cause the Award to fail to qualify for equity accounting treatment), (iii) the Committee takes any other action that is considered a “repricing” for purposes of the stockholder approval rules of the applicable securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, or (iv) the Committee cancels any outstanding Option or SAR that has a per-share Exercise Price or Strike Price (as applicable) at or above the Fair Market Value of a share of Common Stock on the date of cancellation, and pays any consideration to the holder thereof, whether in cash, securities, or other property, or any combination thereof, then, in the case of the immediately preceding clauses (i) through (iv), any such action shall not be effective without stockholder approval.
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14. General.
(a) Award Agreements; Other Agreements. Each Award under the Plan shall be evidenced by an Award Agreement, which shall be delivered to the Participant and shall specify the terms and conditions of the Award and any rules applicable thereto. In the event of any conflict between the terms of the Plan and any Award Agreement or employment, change-in-control, severance or other agreement in effect with the Participant, the terms of the Plan shall control.
(b) Nontransferability.
(i) Each Award shall be exercisable only by the Participant during the Participant’s lifetime, or, if permissible under applicable law, by the Participant’s legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant other than by will or by the laws of descent and distribution, and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or an Affiliate; provided, that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(ii) Notwithstanding the foregoing, the Committee may permit Awards (other than Incentive Stock Options) to be transferred by the Participant, without consideration, subject to such rules as the Committee may adopt, to (A) any person who is a “family member” of the Participant, as such term is used in the instructions to Form S-8 under the Securities Act or any successor form of registration statements promulgated by the Securities and Exchange Commission (collectively, the “Immediate Family Members”); (B) a trust solely for the benefit of the Participant or the Participant’s Immediate Family Members; (C) a partnership or limited liability company whose only partners or stockholders are the Participant and the Participant’s Immediate Family Members; or (D) any other transferee as may be approved either (1) by the Board or the Committee, or (2) as provided in the applicable Award Agreement (each transferee described in clause (A), (B), (C) or (D) above is hereinafter referred to as a “Permitted Transferee”); provided, that the Participant gives the Committee advance written notice describing the terms and conditions of the proposed transfer and the Committee notifies the Participant in writing that such a transfer would comply with the requirements of the Plan.
(iii) The terms of any Award transferred in accordance with the immediately preceding paragraph shall apply to the Permitted Transferee, and any reference in the Plan, or in any applicable Award Agreement, to the Participant shall be deemed to refer to the Permitted Transferee, except that (A) Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws of descent and distribution; (B) Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be in effect a registration statement on an appropriate form covering the shares of Common Stock to be acquired pursuant to the exercise of such Option if the Committee determines, consistent with any applicable Award Agreement, that such a registration statement is necessary or appropriate; (C) the Committee or the Company shall not be required to provide any notice to a Permitted Transferee, whether or not such notice is or would otherwise have been required to be given to the Participant under the Plan or otherwise; (D) the consequences of the termination of the Participant’s employment by, or services to, the Company or an Affiliate under the terms of the Plan and the applicable Award Agreement shall continue to be applied with respect to the transferred Award, including, without limitation, that an Option shall be exercisable by the Permitted Transferee only to the extent, and for the periods, specified in the Plan and the applicable Award Agreement; and (E) any non-competition, non-solicitation, non-disparagement, non-disclosure, or other restrictive covenants contained in any Award Agreement or other agreement between the Participant and the Company or any Affiliate shall continue to apply to the Participant and the consequences of the violation of such covenants shall continue to be applied with respect to the transferred Award, including without limitation the clawback and forfeiture provisions of Section 14(t) of the Plan.
(c) Dividends and Dividend Equivalents. The Committee may provide the Participant with dividends or dividend equivalents as part of an Award, payable in cash, shares of Common Stock, other securities, other Awards or other property, on a current or deferred basis, on such terms and conditions as may be determined by the Committee, including, without limitation, payment directly to the Participant, withholding of such amounts by the Company
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subject to vesting of the Award or reinvestment in additional shares of Common Stock, Restricted Stock or other Awards; provided, that no dividends or dividend equivalents shall be payable (i) in respect of outstanding Options or SARs or (ii) in respect of any other Award unless and until the Participant vests in such underlying Award; provided, further, that dividend equivalents may be accumulated in respect of unearned Awards and paid as soon as administratively practicable, but no more than 60 days, after such Awards are earned and become payable or distributable (and the right to any such accumulated dividends or dividend equivalents shall be forfeited upon the forfeiture of the Award to which such dividends or dividend equivalents relate).
(d) Tax Withholding.
(i) The Participant shall be required to pay to the Company or any Affiliate, and the Company or any Affiliate shall have the right (but not the obligation) and is hereby authorized to withhold, from any cash, shares of Common Stock, other securities or other property deliverable under any Award or from any compensation or other amounts owing to the Participant, the amount (in cash, Common Stock, other securities or other property) of any required withholding taxes (up to the maximum statutory withholding amounts or such higher amounts as provided pursuant to the next sentence) in respect of an Award, its exercise, or any payment or transfer under an Award or under the Plan and to take such other action that the Committee or the Company deem necessary to satisfy all obligations for the payment of such withholding taxes. To the extent permitted by the Committee in its sole discretion, the Company may (at the advance written request of a Participant) withhold amounts in respect of an Award, its exercise, or any payment or transfer under an Award in excess of the maximum statutory withholding amounts, up to the Participant’s maximum individual tax rate in each relevant jurisdiction applicable to the Participant at the applicable time of withholding, so long as such withholdings do not result in such Award being classified as a liability-based award in accordance with applicable accounting standards.
(ii) Without limiting the generality of paragraph (i) above, the Committee may permit the Participant to satisfy, in whole or in part, the foregoing withholding liability by (A) payment in cash, (B) the delivery of shares of Common Stock (which shares are not subject to any pledge or other security interest) owned by the Participant having a Fair Market Value on such date equal to such withholding liability or (C) having the Company withhold from the number of shares of Common Stock otherwise issuable or deliverable pursuant to the exercise or settlement of the Award a number of shares with a Fair Market Value on such date equal to such withholding liability. In addition, subject to any requirements of applicable law, the Participant may also satisfy the tax withholding obligations by other methods, including selling shares of Common Stock that would otherwise be available for delivery, provided that the Board or the Committee has specifically approved such payment method in advance.
(e) No Claim to Awards; No Rights to Continued Employment, Directorship or Engagement. No employee, director of the Company, consultant providing service to the Company or an Affiliate, or other person, shall have any claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to be selected for a grant of any other Award. There is no obligation for uniformity of treatment of the Participants or holders or beneficiaries of Awards. The terms and conditions of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same with respect to each Participant and may be made selectively among the Participants, whether or not such Participants are similarly situated. Neither the Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or service of the Company or an Affiliate, or to continue in the employ or the service of the Company or an Affiliate, nor shall it be construed as giving any Participant who is a director any rights to continued service on the Board.
(f) International Participants. With respect to the Participants who reside or work outside of the United States, the Committee may amend the terms of the Plan or appendices thereto, or outstanding Awards, with respect to such Participants, in order to conform such terms with or accommodate the requirements of local laws, procedures or practices or to obtain more favorable tax or other treatment for the Participant, the Company or its Affiliates. Without limiting the generality of this subsection, the Committee is specifically authorized to adopt rules, procedures and sub-plans with provisions that limit or modify rights on death, disability, retirement or other terminations of employment, available methods of exercise or settlement of an Award, payment of income, social insurance contributions or payroll taxes, withholding procedures and handling of any stock certificates or other indicia of ownership that vary with local requirements. The Committee may also adopt rules, procedures or sub-plans applicable to particular Affiliates or locations.
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(g) Beneficiary Designation. The Participant’s beneficiary shall be the Participant’s spouse (or domestic partner if such status is recognized by the Company and in such jurisdiction), or if the Participant is otherwise unmarried at the time of death, the Participant’s estate, except to the extent that a different beneficiary is designated in accordance with procedures that may be established by the Committee from time to time for such purpose. Notwithstanding the foregoing, in the absence of a beneficiary validly designated under such Committee-established procedures and/or applicable law who is living (or in existence) at the time of death of a Participant residing or working outside the United States, any required distribution under the Plan shall be made to the executor or administrator of the estate of the Participant, or to such other individual as may be prescribed by applicable law.
(h) Termination of Employment or Service. The Committee, in its sole discretion, shall determine the effect of all matters and questions related to the termination of employment of or service of a Participant. Except as otherwise provided in an Award Agreement, or any employment, consulting, change-in-control, severance or other agreement between the Participant and the Company or an Affiliate, unless determined otherwise by the Committee: (i) neither a temporary absence from employment or service due to illness, vacation or leave of absence (including, without limitation, a call to active duty for military service through a Reserve or National Guard unit) nor a transfer from employment or service with the Company to employment or service with an Affiliate (or vice versa) shall be considered a termination of employment or service with the Company or an Affiliate; and (ii) if the Participant’s employment with the Company or its Affiliates terminates, but such Participant continues to provide services with the Company or its Affiliates in a non-employee capacity (including as a non-employee director) (or vice versa), such change in status shall not be considered a termination of employment or service with the Company or an Affiliate for purposes of the Plan.
(i) No Rights as a Stockholder. Except as otherwise specifically provided in the Plan or any Award Agreement, no person shall be entitled to the privileges of ownership in respect of shares of Common Stock that are subject to Awards hereunder until such shares have been issued or delivered to that person.
(j) Government and Other Regulations.
(i) Nothing in the Plan shall be deemed to authorize the Committee or Board or any members thereof to take any action contrary to applicable law or regulation, or rules of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted.
(ii) The obligation of the Company to settle Awards in Common Stock or other consideration shall be subject to all applicable laws, rules, and regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any shares of Common Stock pursuant to an Award unless such shares have been properly registered for sale pursuant to the Securities Act with the Securities and Exchange Commission or unless the Company has received an opinion of counsel, satisfactory to the Company, that such shares may be offered or sold without such registration pursuant to and in compliance with the terms of an available exemption. The Company shall be under no obligation to register for sale under the Securities Act any of the shares of Common Stock to be offered or sold under the Plan. The Committee shall have the authority to provide that all shares of Common Stock or other securities of the Company or any Affiliate delivered under the Plan shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the Plan, the applicable Award Agreement, U.S. federal securities laws, or the rules, regulations and other requirements of the U.S. Securities and Exchange Commission, any securities exchange or inter-dealer quotation service upon which such shares or other securities of the Company are then listed or quoted and any other applicable federal, state, local or non-U.S. laws, rules, regulations and other requirements, and, without limiting the generality of Section 9 of the Plan, the Committee may cause a legend or legends to be put on any such certificates of Common Stock or other securities of the Company or any Affiliate delivered under the Plan to make appropriate reference to such restrictions or may cause such Common Stock or other securities of the Company or any Affiliate delivered under the Plan in book-entry form to be held subject to the Company’s instructions or subject to appropriate stop-transfer orders. Notwithstanding any provision in the Plan to the contrary, the Committee reserves the right to add any additional terms or provisions to any Award granted under the Plan that it in its sole discretion deems necessary or advisable in order that such Award complies with the legal requirements of any governmental entity to whose jurisdiction the Award is subject.
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(iii) The Committee may cancel an Award or any portion thereof if it determines that legal or contractual restrictions and/or blockage and/or other market considerations would make the Company’s acquisition of shares of Common Stock from the public markets, the Company’s issuance of Common Stock to the Participant, the Participant’s acquisition of Common Stock from the Company and/or the Participant’s sale of Common Stock to the public markets illegal, impracticable or inadvisable. If the Committee determines to cancel all or any portion of an Award in accordance with the foregoing, unless prevented by applicable laws, the Company shall pay to the Participant an amount equal to the excess (if any) of (A) the aggregate Fair Market Value of the shares of Common Stock subject to such Award or portion thereof canceled (determined as of the applicable exercise date, or the date that the shares would have been vested or delivered, as applicable), over (B) the aggregate Exercise Price or Strike Price (in the case of an Option or SAR, respectively) or any amount payable as a condition of delivery of shares of Common Stock (in the case of any other Award). Such amount shall be delivered to the Participant as soon as practicable following the cancellation of such Award or portion thereof.
(k) Payments to Persons Other Than the Participants. If the Committee shall find that any person to whom any amount is payable under the Plan is unable to care for such person’s affairs because of illness or accident, or is a minor, or has died, then any payment due to such person or such person’s estate (unless a prior claim therefor has been made by a duly appointed legal representative or a beneficiary designation form has been filed with the Company) may, if the Committee so directs the Company, be paid to such person’s spouse, child, or relative, or an institution maintaining or having custody of such person, or any other person deemed by the Committee to be a proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor.
(l) Nonexclusivity of the Plan. Neither the adoption of the Plan by the Board nor the submission of the Plan to the stockholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of stock options or awards otherwise than under the Plan, and such arrangements may be either applicable generally or only in specific cases.
(m) No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate, on the one hand, and the Participant or other person or entity, on the other hand. No provision of the Plan or any Award shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or to otherwise segregate any assets, nor shall the Company maintain separate bank accounts, books, records or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. The Participants shall have no rights under the Plan other than as unsecured general creditors of the Company.
(n) Reliance on Reports. Each member of the Committee and each member of the Board (and each such member’s respective designees) shall be fully justified in acting or failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent registered public accounting firm of the Company and its Affiliates and/or any other information furnished in connection with the Plan by any agent of the Company or the Committee or the Board, other than such member or designee.
(o) Relationship to Other Benefits. No payment under the Plan shall be taken into account in determining any benefits under any pension, retirement, profit sharing, group insurance or other benefit plan of the Company except as otherwise specifically provided in such other plan.
(p) Governing Law. The Plan shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws thereof, or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the State of Delaware.
(q) Severability. If any provision of the Plan or any Award or Award Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any person or entity or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in
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the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be construed or deemed stricken as to such jurisdiction, person or entity or Award, and the remainder of the Plan and any such Award shall remain in full force and effect.
(r) Obligations Binding on Successors. The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to all or substantially all of the assets and business of the Company.
(s) Section 409A of the Code.
(i) It is intended that the Plan comply with Section 409A of the Code, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A of the Code. Each Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or in respect of such Participant in connection with the Plan or any other plan maintained by the Company, including any taxes and penalties under Section 409A of the Code, and neither the Company nor any Affiliate shall have any obligation to indemnify or otherwise hold such Participant or any beneficiary harmless from any or all of such taxes or penalties. With respect to any Award that is considered “deferred compensation” subject to Section 409A of the Code, references in the Plan to “termination of employment” (and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A of the Code. For purposes of Section 409A of the Code, each of the payments that may be made in respect of any Award granted under the Plan is designated as a separate payment.
(ii) Notwithstanding anything in the Plan to the contrary, if the Participant is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, no payments or deliveries in respect of any Awards that are “deferred compensation” subject to Section 409A of the Code shall be made to such Participant prior to the date that is six months after the date of such Participant’s “separation from service” within the meaning of Section 409A of the Code or, if earlier, the Participant’s date of death. All such delayed payments or deliveries will be paid or delivered (without interest) in a single lump sum on the earliest date permitted under Section 409A of the Code that is also a business day.
(iii) In the event that the timing of payments in respect of any Award that would otherwise be considered “deferred compensation” subject to Section 409A of the Code would be accelerated upon the occurrence of (A) a Change in Control, no such acceleration shall be permitted unless the event giving rise to the Change in Control satisfies the definition of a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation pursuant to Section 409A of the Code and any Treasury Regulations promulgated thereunder or (B) a Disability, no such acceleration shall be permitted unless the Disability also satisfies the definition of “disability” pursuant to Section 409A of the Code and any Treasury Regulations promulgated thereunder.
(t) Clawback/Forfeiture. Notwithstanding anything to the contrary contained herein, the Committee may cancel an Award if the Participant, without the consent of the Company, (A) has engaged in or engages in activity that is in conflict with or adverse to the interests of the Company or any Affiliate while employed by or providing services to the Company or any Affiliate, including fraud or conduct contributing to any financial restatements or irregularities or (B) violates a non-competition, non-solicitation, non-disparagement or non-disclosure covenant or agreement with the Company or any Affiliate, as determined by the Committee, or if the Participant’s employment or service is terminated for Cause. The Committee may also provide in an Award Agreement that in any such event the Participant will forfeit any compensation, gain or other value realized thereafter on the vesting, exercise or settlement of such Award, the sale or other transfer of such Award, or the sale of shares of Common Stock acquired in respect of such Award, and must promptly repay such amounts to the Company. The Committee may also provide in an Award Agreement that if the Participant receives any amount in excess of what the Participant should have received under the terms of the Award for any reason (including without limitation by reason of a financial restatement, mistake in calculations or other administrative error), all as determined by the Committee, then the Participant shall be required to promptly repay any such excess amount to the Company. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Participant’s activity and recover damages resulting from such activity. Further, to the extent required by applicable law (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act) and/or the rules and regulations of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common
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Stock is listed or quoted, or if so required pursuant to a written policy adopted by the Company, Awards shall be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into all outstanding Award Agreements).
(u) No Representations or Covenants With Respect to Tax Qualification. Although the Company may endeavor to (i) qualify an Award for favorable U.S. or non-U.S. tax treatment or (ii) avoid adverse tax treatment, the Company makes no representation to that effect and expressly disavows any covenant to maintain favorable or avoid unfavorable tax treatment. The Company shall be unconstrained in its corporate activities without regard to the potential negative tax impact on holders of Awards under the Plan.
(v) No Interference. The existence of the Plan, any Award Agreement, and the Awards granted hereunder shall not affect or restrict in any way the right or power of the Company, the Board, the Committee, or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization, or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock or of options, warrants, or rights to purchase stock or of bonds, debentures, or preferred or prior preference stocks whose rights are superior to or affect the Common Stock or the rights thereof or that are convertible into or exchangeable for Common Stock, or the dissolution or liquidation of the Company or any Affiliate, or any sale or transfer of all or any part of their assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
(w) Expenses; Titles and Headings. The expenses of administering the Plan shall be borne by the Company and its Affiliates. The titles and headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings shall control.
(x) Whistleblower Acknowledgments. Notwithstanding anything to the contrary herein, nothing in this Plan or any Award Agreement will (i) prohibit a Participant from making reports of possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Exchange Act or Section 806 of the Sarbanes-Oxley Act of 2002, or of any other whistleblower protection provisions of federal law or regulation, or (ii) require prior approval by the Company or any of its Affiliates of any reporting described in clause (i).
* * *
As adopted by the Board of Directors of the Company on [_____], 2021.
As approved by the stockholders of the Company on [_____], 2021.
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Exhibit K
Form of Acquiror Employee Stock Purchase Plan
[See attached.]
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Bowlero Corp.
Employee Stock Purchase Plan
1. Purpose. The purpose of this Employee Stock Purchase Plan (the “Plan”) of Bowlero Corp, a Delaware corporation (the “Company”), is to provide eligible Employees of the Company and its Designated Subsidiaries with a convenient opportunity to purchase Common Stock of the Company. It is the intention of the Company to have the Plan qualify as an “Employee Stock Purchase Plan” under Section 423 of the Code. The provisions of the Plan shall, accordingly, be construed so as to extend and limit participation in a manner consistent with the requirements of that section of the Code.
2. Definitions. The following definitions shall apply throughout the Plan.
(a) “Board” means the Board of Directors of the Company.
(b) “Code” means the United States Internal Revenue Code of 1986, as amended, and any successor thereto. References to any section of the Code shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successors thereto.
(c) “Committee” means a committee appointed by the Board. In the absence of a contrary designation by the Board, the Compensation Committee of the Board shall be the Committee hereunder.
(d) “Common Stock” means the Class A Common Stock of the Company, par value $0.0001 per share and any stock or other securities into which such Class A Common Stock may be converted or into which it may be exchanged.
(e) “Company” has the meaning set forth in Section 1.
(f) “Compensation” means the base pay (determined on such date as may be established by the Committee) received by an Employee from the Company or a Designated Subsidiary. Base pay shall (i) be determined prior to any salary reduction contributions under a cafeteria plan pursuant to Section 125 of the Code, any salary reduction amounts pursuant to a qualified transportation benefit program pursuant to Section 132(f) of the Code, and any elective deferrals to a nonqualified deferred compensation plan and to a cash or deferred plan pursuant to Section 401(k) of the Code and (ii) exclude any imputed income arising under any group insurance or benefit program, travel expenses, business and relocation expense, and income received in connection with stock options or other equity-based awards.
(g) “Continuous Status as an Employee” means the absence of any interruption or termination of service as an Employee. Continuous Status as an Employee shall not be considered interrupted in the case of (i) sick leave, military leave, or other bona fide leave of absence that is required by law to be considered uninterrupted service or that is otherwise approved by the Committee if the period of such leave does not exceed 90 days, or if longer, so long as the individual’s right to reemployment as an Employee is guaranteed either by contract or statute; or (ii) transfers between locations of the Company or between and among the Company and its Designated Subsidiaries. For purposes of clarification, the disposition of a Designated Subsidiary shall constitute a termination of the Continuous Status as an Employee of any Employee employed by such Designated Subsidiary.
(h) “Contributions” means all amounts credited to the notional account of a Participant pursuant to the Plan.
(i) “Corporate Transaction” means a sale of all or substantially all of the Company’s assets, or a merger, consolidation, or other capital reorganization of the Company with or into another corporation, or any other transaction or series of related transactions in which the Company’s stockholders immediately prior thereto own less than 50% of the voting stock of the Company (or its successor or ultimate parent company) immediately thereafter, but excluding any acquisition of voting stock by the Company or any of its affiliates or by any employee benefit plan sponsored or maintained by the Company or any of its affiliates.
(j) “Designated Subsidiaries” means all Subsidiaries, except with respect to any of such Subsidiaries that the Committee has determined is not eligible to participate in the Plan.
(k) “Employee” means any person who (i) has had Continuous Status as an Employee of the Company or one of its Designated Subsidiaries for a period of at least sixty (60) days, (ii) is customarily employed thereby for at least 20 hours per week and more than five (5) months in a calendar year, and (iii) is classified as an employee for tax purposes.
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(l) “Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and any successor thereto. References to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successors thereto.
(m) “Fair Market Value” means, for any date, with respect to a Share, the closing sales price of a Share on the primary exchange on which the Common Stock is traded on such date or, in the event that the Common Stock is not traded on such date, then the immediately preceding trading date. In the absence of an established market for Common Stock, the Fair Market Value of a Share shall be determined in good faith by the Committee and such determination shall be conclusive and binding on all persons. The “Fair Market Value” of all other property shall be determined in good faith by the Committee, and such determination shall be conclusive and binding on all persons.
(n) “Indemnifiable Person” shall have the meaning ascribed to it in Section 27.
(o) “Maximum Number of Shares” means, with respect to a given Offering Period, a number of Shares equal to the quotient of (x) $25,000 divided by (y) the Fair Market Value of a Share on the Offering Date.
(p) “New Purchase Date” shall have the meaning ascribed to it in Section 16(b).
(q) “Offering Date” means the first day of each Offering Period, as determined in accordance with Section 3.
(r) “Offering Period” means a period described in Section 3.
(s) “Plan” has the meaning set forth in Section 1.
(t) “Plan Administrator” means the Committee, or such other institution selected by the Committee.
(u) “Participant” means an eligible Employee who has elected to participate in the Plan in accordance with Section 5.
(v) “Purchase Date” means, unless otherwise determined by the Committee, December 31 of each calendar year or, in the event that the Common Stock is not traded on such date, the immediately preceding trading date, as applicable.
(w) “Purchase Price” means, with respect to a given Offering Period, an amount equal to 85% (or such greater percentage as designed by the Committee) of the Fair Market Value of a Share on (i) the Purchase Date or (ii) the Offering Date, whichever amount is lower; provided, that the Purchase Price will in no event be less than the par value of a Share.
(x) “Reserves” shall have the meaning ascribed to it in Section 16(a).
(y) “Rule 16b-3” means Rule 16b-3 adopted under Section 16 of the Exchange Act.
(z) “Securities Act” means the United States Securities Act of 1933, as amended, and any successor thereto. References to any section of (or rule promulgated under) the Securities Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successors thereto.
(aa) “Share” means a share of Common Stock, as adjusted in accordance with Section 16.
(bb) “Subsidiary” means a corporation which is a “subsidiary corporation” of the Company within the meaning of Section 424(f) of the Code.
3. Offering Periods. The Plan shall be implemented by a series of consecutive Offering Periods commencing on January 1 and ending on December 31 of each calendar year. The Committee shall have the authority to change the duration (subject to a maximum Offering Period of 27 months), frequency, start date, and end dates of Offering Periods.
4. Eligibility. Subject to the requirements of Section 5 and the limitations imposed by Section 423(b) of the Code (and unless different dates are established by the Committee in respect of any Offering Period), a person shall be eligible to participate in an Offering Period if such person is an Employee as of the date on which an election for
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participation in the Offering is required pursuant to Section 5(b) below; provided, however, that the Committee may provide that an Employee shall not be eligible to participate in an Offering Period if: (i) such Employee is a highly compensated employee within the meaning of Section 423(b)(4)(D) of the Code; (ii) such Employee has not met a service requirement designated by the Committee pursuant to Section 423(b)(4) (A) of the Code (which service requirement may not exceed two years); and/or (iii) such Employee is a citizen or resident of a foreign jurisdiction and the grant of a right to purchase Common Stock under the Plan to such Employee would be prohibited under the laws of such foreign jurisdiction or the grant of a right to purchase Common Stock under the Plan to such Employee in compliance with the laws of such foreign jurisdiction would cause the Plan to violate the requirements of Section 423 of the Code, as determined by the Committee in its sole discretion; provided, further, that any exclusion in clause (i), (ii) or (iii) shall be applied in an identical manner under each Offering Period to all Employees, in accordance with Treasury Regulation Section 1.423-2(e).
5. Participation.
(a) Participation in the Plan is completely voluntary. Except as set forth in Section 7(b) below, participation in one or more of the offerings under the Plan shall neither limit, nor require, participation in any other offering.
(b) An eligible Employee may become a Participant in respect of an Offering Period by electing to participate in the manner approved by the Committee. An Employee who elects to participate in an Offering Period shall do so at least ten (10) days prior to the Offering Date, unless a different time for electing to participate (including following the Offering Date) is set by the Committee.
(c) A Participant’s election shall indicate either a fixed dollar amount or a percentage of such Participant’s Compensation, in either case, as may be determined by the Committee, to be contributed during the applicable Offering Period; provided, however, that a Participant’s election shall be subject to the limitations of Section 7(b).
(d) The deduction rate selected by a Participation shall remain in effect for subsequent Offering Periods unless the Participant (i) submits a new election in the manner approved by the Committee, (ii) withdraws from the Plan, or (iii) terminates employment or otherwise becomes ineligible to participate in the Plan.
6. Method of Payment of Contributions.
(a) Payroll deductions shall be made from a Participant’s Compensation during an Offering Period in an aggregate amount equal to the Participant’s contribution election for such Offering Period. All payroll deductions made by a Participant shall be credited to his or her notional account under the Plan. Participant may not make a prepayment or any additional payments into such notional account. Payroll deductions in respect of any Offering Period shall commence on the Offering Date and shall end on the final day of the final payroll period ending on or prior to the applicable Purchase Date, unless sooner terminated by the Participant as provided in Section 10.
(b) Participants on an authorized leave of absence during an Offering Period may continue to participate in such Offering Period; provided, however, that a Participant on an authorized leave of absence will have contributions suspended during such leave of absence and, absent any other instruction from such Participant, such contributions will resume upon the next payroll following such Participant’s return from such leave of absence.
(c) Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of the Code and Section 7(b) herein, a Participant’s payroll deductions may be decreased by the Company to zero during any Offering Period.
7. Grant of Option.
(a) On each Offering Date, each Participant shall be deemed to have been granted an option to purchase as many Shares (rounded down to the nearest whole Share) as may be purchased with his or her Contributions during the related Offering Period at the Purchase Price; provided, however, that such option shall be subject to the limitations set forth in Section 7(b) below and Section 11, and may be reduced pursuant to Section 6, in each case, if applicable.
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(b) Notwithstanding any contrary provisions of the Plan, each option to purchase Shares under the Plan shall be limited as necessary to prevent any Employee from (i) immediately after the grant, owning capital stock of the Company and holding outstanding options to purchase capital stock of the Company possessing, in the aggregate, more than 5% of the total combined voting power or value of all classes of stock of the Company or of any Subsidiary, including for this purpose any stock attributed to such Employee pursuant to Section 424(d) of the Code, (ii) acquiring rights to purchase stock under all employee stock purchase plans (as described in Section 423 of the Code or any other similar arrangements maintained by the Company or any of its Subsidiaries) of the Company and its Subsidiaries which accrue at a rate that exceeds $25,000 of the Fair Market Value of such stock (determined at the time such option is granted) for each calendar year in which such option is outstanding and exercisable at any time, or (iii) purchasing, in respect of any Offering Period, more than the Maximum Number of Shares.
8. Exercise of Option; Interest.
(a) Unless a Participant withdraws from the Plan as provided in Section 10, his or her option for the purchase of Shares will be exercised automatically on the applicable Purchase Date, and the number of full Shares subject to the option will be purchased at the applicable Purchase Price with the accumulated Contributions in his or her notional account. No fractional Shares shall be issued. Any amounts accumulated in a Participant’s notional account that are not used to purchase Shares (other than any amount that is not sufficient to purchase a full Share, which shall be automatically carried forward to the next Offering Period) shall be refunded to the Participant as soon as practicable following the Purchase Date. Notwithstanding Section 9 below, the Shares purchased upon exercise of an option hereunder shall be deemed to be transferred to the Participant as of the Purchase Date. During his or her lifetime, a Participant’s option to purchase Shares hereunder is exercisable only by him or her.
(b) At the time an option granted under the Plan is exercised, in whole or in part, or at the time some or all of the Common Stock issued to a Participant under the Plan is disposed of, the Participant must make adequate provisions for any applicable federal, state, or other tax withholding obligations, if any, that arise upon the Purchase Date or the disposition of the Common Stock. At any time, the Company or a Designated Subsidiary may, but will not be obligated to, withhold from the Participant’s compensation the amount necessary to meet applicable withholding obligations, including any withholding required to make available to the Company any tax deductions or benefits attributable to the sale or disposition of Common Stock by the Participant earlier than as described in Section 423(a)(1) of the Code.
(c) No interest will be paid or allowed on any money paid into the Plan or credited to the notional account of any Participant.
9. Delivery. As promptly as practicable after each Purchase Date, the number of Shares purchased by each Participant upon exercise of his or her option shall be deposited into an account established in the Participant’s name with the Plan Administrator. The Committee may determine that no Share purchased in respect of an offering may be transferred out of such Participant’s account with the Plan Administrator other than in connection with a “disposition” (as such term is used in Section 423(a)(1) of the Code) of such Share for the longer of (x) two (2) years following the Offering Date applicable to such Share and (y) one (1) year following the Purchase Date applicable to such Share.
10. Voluntary Withdrawal; Termination of Employment.
(a) A Participant may withdraw all but not less than all the Contributions credited to his or her notional account under the Plan at any time prior to the applicable Purchase Date by giving written notice to the Plan Administrator in the manner directed by the Company. All of the Participant’s Contributions credited to his or her notional account with respect to an Offering Period will be paid to him or her as soon as administratively practicable after receipt of his or her notice of withdrawal, his or her option for the current Offering Period will be automatically terminated, and no further Contributions for the purchase of Shares may be made by the Participant with respect to such Offering Period. A Participant’s withdrawal from the Plan during an Offering Period will not have any effect upon his or her eligibility to participate in a succeeding Offering Period or in any similar plan that may hereafter be adopted by the Company.
(b) Upon termination of the Participant’s Continuous Status as an Employee prior to a Purchase Date for any reason, including retirement or death, the Contributions credited to his or her notional account will be returned to him or her, and his or her option will be automatically terminated; provided, however, that in the event of the death of a
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Participant, the Company shall deliver the Contributions to the executor or administrator of the estate of the Participant or, if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such amounts to the spouse or to any one or more dependents or relatives of the Participant.
11. Shares.
(a) Subject to adjustment as provided in Section 16, the maximum number of Shares that shall be made available for sale under the Plan shall be [X]1 subject to an annual increase on the first day of each calendar year beginning on January 1, 2022 and ending on and including January 1, 2031, equal to the least of (i) 1% of the aggregate number of Shares outstanding on the final day of the immediately preceding calendar year, (ii) [_____]2 Shares and (iii) such number of shares as is determined by the Board. If the Committee determines at any time that, on a given Purchase Date, the number of Shares with respect to which options are to be exercised may exceed the number of Shares that are available for sale under the Plan on such Purchase Date, the Company shall make a pro rata allocation of the Shares available for purchase on such Purchase Date, in as uniform a manner as shall be practicable and as it shall determine to be equitable among all Participants exercising options to purchase Common Stock on such Purchase Date, and the Committee may, in its discretion (x) continue all Offering Periods then in effect, or (y) terminate any or all Offering Periods then in effect pursuant to Section 17 below.
(b) Shares to be delivered to a Participant under the Plan will be registered in the name of the Participant.
12. Administration.
(a) Subject to the express provisions of the Plan, the Committee shall administer the Plan and shall have the sole and plenary power to (i) interpret and administer, reconcile any inconsistency in, correct any defect in, and supply any omission in the Plan; (ii) establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for the proper administration of the Plan; and (iii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan, including, without limitation to the foregoing, by changing the duration (subject to a maximum Offering Period of 27 months), frequency, start date, and end dates of Offering Periods and/or the Purchase Dates. The authority of the Committee includes, without limitation, the authority to (x) determine procedures for setting or changing payroll deduction percentages, and obtaining necessary tax withholdings, and (y) adopt amendments to the Plan in accordance with Section 17. All designations, determinations, interpretations, and other decisions by the Committee (or its delegate) regarding the Plan shall be within the sole discretion of the Committee, may be made at any time, and shall be final, conclusive, and binding upon all persons or entities, including, without limitation, the Company, any affiliate, any Participant, any holder or beneficiary of any option, and any shareholder of the Company. The expenses of administering the Plan shall be borne by the Company.
(b) The Committee may delegate any or all of its authority and obligations under this Plan to such committee or committees (including without limitation, a committee of the Board) or officer(s) of the Company as they may designate.
(c) Nothing in the Plan shall be deemed to authorize the Committee to take any action contrary to applicable law or regulation, or rules of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted.
(d) Notwithstanding any delegation of authority hereunder, the Board may itself take any action permitted under the Plan in its discretion at any time, and any reference in this Plan document to the rights and obligations of the Committee shall be construed to apply equally to the Board. Any references to the Board mean the Board only.
13. Transferability. Neither amounts accumulated in a Participant’s notional account nor any rights with regard to the exercise of an option or to receive Shares under the Plan may be assigned, transferred, pledged, or otherwise disposed of in any way (other than by will or by the laws of descent and distribution, or as provided in Section 10) by the Participant. Any such attempt at assignment, transfer, pledge, or other disposition shall be without effect, except that the Company may treat such act as an election to withdraw funds in accordance with Section 10.
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14. Use of Funds. All Contributions received or held by the Company under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such Contributions.
15. Reports. Statements of account will be made available to Participants by the Company or the Plan Administrator in the form and manner designated by the Committee.
16. Adjustments Upon Changes in Capitalization; Corporate Transactions.
(a) Subject to any required action by the stockholders of the Company, (i) the number of Shares covered by each option under the Plan that has not yet been exercised, (ii) the number of Shares that have been authorized for issuance under the Plan but that have not yet been placed under option (collectively, the “Reserves”), (iii) the number of Shares set forth in Section 11 above, and (iv) the Purchase Price for each then-current Offering Period shall, if applicable, be proportionately adjusted for any increase or decrease in the number of issued Shares resulting from a stock split, a reverse stock split, a stock dividend, a subdivision, combination, or reclassification of the Common Stock (including any such change in the number of shares of Common Stock effected in connection with a change in domicile of the Company), or any other increase or decrease in the number of Shares effected without receipt of consideration by the Company, or any increase or decrease in the value of a Share resulting from a spinoff or split-up; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.” Such adjustment shall be made by the Committee, whose determination in that respect shall be final, binding, and conclusive. Except as expressly provided above, no issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of Shares subject to an option.
(b) In the event of a dissolution or liquidation of the Company, any Offering Period then in progress will terminate immediately prior to the consummation of such action, unless otherwise provided by the Committee. In the event of a Corporate Transaction, each option outstanding under the Plan shall be assumed or an equivalent option shall be substituted by the successor corporation or a parent or subsidiary of such successor corporation. If the successor corporation (or its parent or subsidiary) refuses to assume or substitute for outstanding options, each Offering Period then in progress shall be shortened and a new Purchase Date shall be set by the Committee (the “New Purchase Date”), as of which New Purchase Date any Offering Period then in progress will terminate. The New Purchase Date shall be on or before the date of consummation of the Corporate Transaction, and the Company shall notify each Participant in writing, at least ten (10) days prior to the New Purchase Date, that the Purchase Date for his or her option has been changed to the New Purchase Date and that his or her option will be exercised automatically on the New Purchase Date, unless prior to such date he or she has withdrawn from the Offering Period as provided in Section 10. For purposes of this Section 16, an option granted under the Plan shall be deemed to be assumed, without limitation, if at the time of issuance of the stock or other consideration upon a Corporate Transaction, each holder of an option under the Plan would be entitled to receive upon exercise of the option the same number and kind of Shares or the same amount of property or cash, or number of securities (or combination thereof) as such holder would have been entitled to receive upon the occurrence of the transaction if the holder had been, immediately prior to the transaction, the holder of the number of shares of Common Stock covered by the option at such time (after giving effect to any adjustments in the number of Shares covered by the option as provided for in this Section 16); provided, however, that if the consideration received in the transaction is not solely common stock of the successor corporation or its parent (as defined in Section 424(e) of the Code), the Committee may, with the consent of the successor corporation, provide for the consideration to be received upon exercise of the option to be solely common stock of the successor corporation or its parent or subsidiary equal in Fair Market Value to the per-Share consideration received by holders of Common Stock in the transaction.
(c) If the Company consummates the sale or transfer of a Designated Subsidiary, business unit, or division to an unaffiliated person or entity, or the spin-off of a Designated Subsidiary, business unit, or division to shareholders during an Offering Period, the Contributions credited to the notional account of each Participant employed by such Designated Subsidiary, business unit, or division, as applicable, as of the time of such sale, transfer, or spin-off with respect the offering to which such Offering Period relates will be returned to the Participant without interest, and the Participant’s option will be automatically terminated.
(d) The existence of the Plan shall not affect or restrict in any way the right or power of the Company, the Board, the Committee, or the shareholders of the Company to make or authorize any adjustment, recapitalization, reorganization, or other change in the Company’s capital structure or its business, any merger or consolidation of the
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Company, any issue of stock or of options, warrants, or rights to purchase stock or of bonds, debentures, or preferred or prior-preference stocks whose rights are superior to or affect the Common Shares or the rights thereof or that are convertible into or exchangeable for Common Shares, or the dissolution or liquidation of the Company or any Affiliate, or any sale or transfer of all or any part of their assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
17. Amendment or Termination.
(a) The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof at any time; provided, that no such amendment, alteration, suspension, discontinuation, or termination shall be made without shareholder approval if such approval is necessary to comply with any tax or regulatory requirement applicable to the Plan (including, without limitation, as necessary to comply with any applicable rules or requirements of any securities exchange or inter-dealer quotation service on which the Shares may be listed or quoted); provided, further, that any such amendment, alteration, suspension, discontinuance, or termination that would materially and adversely affect the rights of any Participant shall not to that extent be effective without the consent of the affected Participant unless the Committee determines that such amendment, alteration, suspension, discontinuance, or termination is either required or advisable in order for the Company or the Plan to satisfy any applicable law or regulation.
(b) Except as provided in Section 16, no such termination of the Plan may affect options previously granted, provided that the Plan or an Offering Period may be terminated by the Board on a Purchase Date or by the Board’s setting a new Purchase Date with respect to an Offering Period then in progress if the Board determines that termination of the Plan and/or the Offering Period is in the best interests of the Company and the stockholders or if continuation of the Plan and/or the Offering Period would cause the Company to incur adverse accounting charges as a result of a change after the effective date of the Plan in the generally accepted accounting principles applicable to the Plan.
(c) Without stockholder consent and without regard to whether any Participant rights may be considered to have been adversely affected, the Committee shall be entitled to change the Offering Periods, limit the frequency and/or number of changes in the amount withheld that may be made during an Offering Period, permit payroll withholding in excess of the amount designated by a Participant in order to adjust for delays or mistakes in the Company’s processing of properly completed withholding elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of Common Stock for each Participant properly correspond with amounts withheld from the Participant’s Compensation, and establish such other limitations or procedures as the Committee determines in its sole discretion advisable that are consistent with the Plan.
18. No Rights to Continued Employment. Neither the Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or service of the Company or an affiliate, or to continue in the employ or the service of the Company or an affiliate.
19. Beneficiary Designation. The Participant’s beneficiary shall be the Participant’s spouse (or domestic partner if such status is recognized by the Company and in such jurisdiction), or if the Participant is otherwise unmarried at the time of death, the Participant’s estate, except to the extent that a different beneficiary is designated in accordance with procedures that may be established by the Committee from time to time for such purpose. Notwithstanding the foregoing, in the absence of a beneficiary validly designated under such Committee-established procedures and/or applicable law who is living (or in existence) at the time of death of a Participant residing or working outside the United States, any required distribution under the Plan shall be made to the executor or administrator of the estate of the Participant, or to such other individual as may be prescribed by applicable law.
20. Equal Rights and Privileges. Notwithstanding any provision of the Plan to the contrary and in accordance with Section 423 of the Code, all eligible Employees who are granted options under the Plan shall have the same rights and privileges.
21. No Rights as a Shareholder. Except as otherwise specifically provided in the Plan, no person shall be entitled to the privileges of ownership in respect of Shares that are subject to options hereunder until such Shares have been issued or delivered to that person.
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22. Withholding. To the extent required by applicable federal, state, or local law, a Participant must make arrangements satisfactory to the Company for the payment of any withholding or similar tax obligations that arise in connection with the Plan.
23. Notices. All notices or other communications by a Participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.
24. Conditions Upon Issuance of Shares.
(a) The Plan and the issuance and delivery of Shares under the Plan are subject to compliance with all applicable U.S. federal, state, local, and non-U.S. laws, rules, and regulations (including but not limited to state, U.S. federal, and non-U.S. securities law, and margin requirements) and to such approvals by any listing, regulatory, or governmental authority as may, in the opinion of counsel for the Company, be necessary or advisable in connection therewith. Any securities delivered under the Plan shall be subject to such restrictions, and the person acquiring such securities shall, if requested by the Company, provide such assurances and representations to the Company as the Company may deem necessary or desirable to assure compliance with all applicable legal requirements. To the extent permitted by applicable law, the Plan shall be deemed amended to the extent necessary to conform to such laws, rules, and regulations.
(b) Notwithstanding any terms or conditions of the Plan to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any Shares pursuant to the Plan unless such Shares have been properly registered for sale pursuant to the Securities Act with the Securities and Exchange Commission or unless the Company has received an opinion of counsel, satisfactory to the Company, that such Shares may be offered or sold without such registration pursuant to and in compliance with the terms of an available exemption. The Company shall be under no obligation to register for sale under the Securities Act any of the Shares to be offered or sold under the Plan. The Committee shall have the authority to provide that all Shares delivered under the Plan shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the Plan, U.S. federal securities laws, or the rules, regulations, and other requirements of the Securities and Exchange Commission, any securities exchange or inter-dealer quotation service upon which such Shares are then listed or quoted and any other applicable federal, state, local or non-U.S. laws, rules, regulations, and other requirements, and the Committee may cause a legend or legends to be put on any such certificates of Common Stock delivered under the Plan to make appropriate reference to such restrictions or may cause such Common Stock delivered under the Plan in book-entry form to be held subject to the Company’s instructions or subject to appropriate stop-transfer orders.
25. Term of Plan; Effective Date. The Plan was adopted by the Board on [ ], 2021, and approved by the Company’s stockholders [ ], 2021. The Plan shall be effective on [ ], 2021 (the “Effective Date”), and shall continue in force and effect until terminated under Section 17. Unless sooner terminated by the Board, the Plan shall terminate upon the ten (10) year anniversary of the Effective Date.
26. Additional Restrictions of Rule 16b-3. The terms and conditions of options granted hereunder to, and the purchase of Shares by, persons subject to Section 16 of the Exchange Act shall comply with the applicable provisions of Rule 16b-3. This Plan shall be deemed to contain, and such options shall contain, and the Shares issued upon exercise thereof shall be subject to, such additional conditions and restrictions as may be required by Rule 16b-3 to qualify for the maximum exemption from Section 16 of the Exchange Act with respect to Plan transactions.
27. Indemnification. No member of the Board or the Committee, nor any employee or agent of the Company exercising authority delegated by the Board or the Committee hereunder (each such person, an “Indemnifiable Person”), shall be liable for any action taken or omitted to be taken or any determination made in the administration of the Plan (unless constituting fraud or a willful criminal act or willful criminal omission). Each Indemnifiable Person shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense (including attorneys’ fees) that may be imposed upon or incurred by such Indemnifiable Person in connection with or resulting from any action, suit, or proceeding to which such Indemnifiable Person may be involved as a party or witness or otherwise by reason of any action taken or omitted to be taken or determination made under the Plan and against and from any and all amounts paid by such Indemnifiable Person with the Company’s approval (not to be unreasonably withheld) in settlement thereof, or paid by such Indemnifiable Person in satisfaction of any judgment in any such action, suit, or proceeding against such Indemnifiable Person, and the Company shall advance to such
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Indemnifiable Person any such expenses promptly upon written request (which request shall include an undertaking by the Indemnifiable Person to repay the amount of such advance if it shall ultimately be determined as provided below that the Indemnifiable Person is not entitled to be indemnified); provided, that the Company shall have the right, at its own expense, to assume and defend any such action, suit, or proceeding, and once the Company gives notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of recognized standing of the Company’s choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent that a final judgment or other final adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts or omissions or determinations of such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable Person’s fraud or willful criminal act or willful criminal omission or that such right of indemnification is otherwise prohibited by law or by the Company’s certificate of incorporation or by-laws. The foregoing right of indemnification shall not be exclusive of or otherwise supersede any other rights of indemnification to which such Indemnifiable Persons may be entitled under the Company’s certificate of incorporation or by-laws, as a matter of law, individual indemnification agreement or contract or otherwise, or any other power that the Company may have to indemnify such Indemnifiable Persons or hold them harmless.
28. Nonexclusivity of the Plan. Neither the adoption of the Plan by the Board nor the submission of the Plan to the shareholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of stock options or awards otherwise than under the Plan, and such arrangements may be either applicable generally or only in specific cases.
29. No Trust or Fund Created. The Plan shall not create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any affiliate, on the one hand, and the Participant or other person or entity, on the other hand. No provision of the Plan shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or to otherwise segregate any assets, nor shall the Company maintain separate bank accounts, books, records, or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company.
30. Reliance on Reports. Each member of the Committee and each member of the Board (and each such member’s respective designees) shall be fully justified in acting or failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent registered public accounting firm of the Company and its affiliates and/or any other information furnished in connection with the Plan by any agent of the Company or the Committee or the Board, other than such member or designee.
31. Relationship to Other Benefits. No payment under the Plan shall be taken into account in determining any benefits under any pension, retirement, profit sharing, group insurance, or other benefit plan of the Company except as otherwise specifically provided in such other plan.
32. Governing Law. The Plan shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws thereof, or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the State of Delaware.
33. Severability. If any provision of the Plan is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any person or entity, or would disqualify the Plan under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan, such provision shall be construed or deemed stricken as to such jurisdiction, person, or entity, and the remainder of the Plan shall remain in full force and effect.
34. Titles and Headings. The titles and headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings shall control.
* * *
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Annex L
Bowlero Corp.
Employee Stock Purchase Plan
1. Purpose. The purpose of this Employee Stock Purchase Plan (the “Plan”) of Bowlero Corp, a Delaware corporation (the “Company”), is to provide eligible Employees of the Company and its Designated Subsidiaries with a convenient opportunity to purchase Common Stock of the Company. It is the intention of the Company to have the Plan qualify as an “Employee Stock Purchase Plan” under Section 423 of the Code. The provisions of the Plan shall, accordingly, be construed so as to extend and limit participation in a manner consistent with the requirements of that section of the Code.
2. Definitions. The following definitions shall apply throughout the Plan.
(a) “Board” means the Board of Directors of the Company.
(b) “Code” means the United States Internal Revenue Code of 1986, as amended, and any successor thereto. References to any section of the Code shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successors thereto.
(c) “Committee” means a committee appointed by the Board. In the absence of a contrary designation by the Board, the Compensation Committee of the Board shall be the Committee hereunder.
(d) “Common Stock” means the Class A Common Stock of the Company, par value $0.0001 per share and any stock or other securities into which such Class A Common Stock may be converted or into which it may be exchanged.
(e) “Company” has the meaning set forth in Section 1.
(f) “Compensation” means the base pay (determined on such date as may be established by the Committee) received by an Employee from the Company or a Designated Subsidiary. Base pay shall (i) be determined prior to any salary reduction contributions under a cafeteria plan pursuant to Section 125 of the Code, any salary reduction amounts pursuant to a qualified transportation benefit program pursuant to Section 132(f) of the Code, and any elective deferrals to a nonqualified deferred compensation plan and to a cash or deferred plan pursuant to Section 401(k) of the Code and (ii) exclude any imputed income arising under any group insurance or benefit program, travel expenses, business and relocation expense, and income received in connection with stock options or other equity-based awards.
(g) “Continuous Status as an Employee” means the absence of any interruption or termination of service as an Employee. Continuous Status as an Employee shall not be considered interrupted in the case of (i) sick leave, military leave, or other bona fide leave of absence that is required by law to be considered uninterrupted service or that is otherwise approved by the Committee if the period of such leave does not exceed 90 days, or if longer, so long as the individual’s right to reemployment as an Employee is guaranteed either by contract or statute; or (ii) transfers between locations of the Company or between and among the Company and its Designated Subsidiaries. For purposes of clarification, the disposition of a Designated Subsidiary shall constitute a termination of the Continuous Status as an Employee of any Employee employed by such Designated Subsidiary.
(h) “Contributions” means all amounts credited to the notional account of a Participant pursuant to the Plan.
(i) “Corporate Transaction” means a sale of all or substantially all of the Company’s assets, or a merger, consolidation, or other capital reorganization of the Company with or into another corporation, or any other transaction or series of related transactions in which the Company’s stockholders immediately prior thereto own less than 50% of the voting stock of the Company (or its successor or ultimate parent company) immediately thereafter, but excluding any acquisition of voting stock by the Company or any of its affiliates or by any employee benefit plan sponsored or maintained by the Company or any of its affiliates.
(j) “Designated Subsidiaries” means all Subsidiaries, except with respect to any of such Subsidiaries that the Committee has determined is not eligible to participate in the Plan.
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(k) “Employee” means any person who (i) has had Continuous Status as an Employee of the Company or one of its Designated Subsidiaries for a period of at least sixty (60) days, (ii) is customarily employed thereby for at least 20 hours per week and more than five (5) months in a calendar year, and (iii) is classified as an employee for tax purposes.
(l) “Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and any successor thereto. References to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successors thereto.
(m) “Fair Market Value” means, for any date, with respect to a Share, the closing sales price of a Share on the primary exchange on which the Common Stock is traded on such date or, in the event that the Common Stock is not traded on such date, then the immediately preceding trading date. In the absence of an established market for Common Stock, the Fair Market Value of a Share shall be determined in good faith by the Committee and such determination shall be conclusive and binding on all persons. The “Fair Market Value” of all other property shall be determined in good faith by the Committee, and such determination shall be conclusive and binding on all persons.
(n) “Indemnifiable Person” shall have the meaning ascribed to it in Section 27.
(o) “Maximum Number of Shares” means, with respect to a given Offering Period, a number of Shares equal to the quotient of (x) $25,000 divided by (y) the Fair Market Value of a Share on the Offering Date.
(p) “New Purchase Date” shall have the meaning ascribed to it in Section 16(b).
(q) “Offering Date” means the first day of each Offering Period, as determined in accordance with Section 3.
(r) “Offering Period” means a period described in Section 3.
(s) “Plan” has the meaning set forth in Section 1.
(t) “Plan Administrator” means the Committee, or such other institution selected by the Committee.
(u) “Participant” means an eligible Employee who has elected to participate in the Plan in accordance with Section 5.
(v) “Purchase Date” means, unless otherwise determined by the Committee, December 31 of each calendar year or, in the event that the Common Stock is not traded on such date, the immediately preceding trading date, as applicable.
(w) “Purchase Price” means, with respect to a given Offering Period, an amount equal to 85% (or such greater percentage as designed by the Committee) of the Fair Market Value of a Share on (i) the Purchase Date or (ii) the Offering Date, whichever amount is lower; provided, that the Purchase Price will in no event be less than the par value of a Share.
(x) “Reserves” shall have the meaning ascribed to it in Section 16(a).
(y) “Rule 16b-3” means Rule 16b-3 adopted under Section 16 of the Exchange Act.
(z) “Securities Act” means the United States Securities Act of 1933, as amended, and any successor thereto. References to any section of (or rule promulgated under) the Securities Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successors thereto.
(aa) “Share” means a share of Common Stock, as adjusted in accordance with Section 16.
(bb) “Subsidiary” means a corporation which is a “subsidiary corporation” of the Company within the meaning of Section 424(f) of the Code.
3. Offering Periods. The Plan shall be implemented by a series of consecutive Offering Periods commencing on January 1 and ending on December 31 of each calendar year. The Committee shall have the authority to change the duration (subject to a maximum Offering Period of 27 months), frequency, start date, and end dates of Offering Periods.
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4. Eligibility. Subject to the requirements of Section 5 and the limitations imposed by Section 423(b) of the Code (and unless different dates are established by the Committee in respect of any Offering Period), a person shall be eligible to participate in an Offering Period if such person is an Employee as of the date on which an election for participation in the Offering is required pursuant to Section 5(b) below; provided, however, that the Committee may provide that an Employee shall not be eligible to participate in an Offering Period if: (i) such Employee is a highly compensated employee within the meaning of Section 423(b)(4)(D) of the Code; (ii) such Employee has not met a service requirement designated by the Committee pursuant to Section 423(b)(4) (A) of the Code (which service requirement may not exceed two years); and/or (iii) such Employee is a citizen or resident of a foreign jurisdiction and the grant of a right to purchase Common Stock under the Plan to such Employee would be prohibited under the laws of such foreign jurisdiction or the grant of a right to purchase Common Stock under the Plan to such Employee in compliance with the laws of such foreign jurisdiction would cause the Plan to violate the requirements of Section 423 of the Code, as determined by the Committee in its sole discretion; provided, further, that any exclusion in clause (i), (ii) or (iii) shall be applied in an identical manner under each Offering Period to all Employees, in accordance with Treasury Regulation Section 1.423-2(e).
5. Participation.
(a) Participation in the Plan is completely voluntary. Except as set forth in Section 7(b) below, participation in one or more of the offerings under the Plan shall neither limit, nor require, participation in any other offering.
(b) An eligible Employee may become a Participant in respect of an Offering Period by electing to participate in the manner approved by the Committee. An Employee who elects to participate in an Offering Period shall do so at least ten (10) days prior to the Offering Date, unless a different time for electing to participate (including following the Offering Date) is set by the Committee.
(c) A Participant’s election shall indicate either a fixed dollar amount or a percentage of such Participant’s Compensation, in either case, as may be determined by the Committee, to be contributed during the applicable Offering Period; provided, however, that a Participant’s election shall be subject to the limitations of Section 7(b).
(d) The deduction rate selected by a Participation shall remain in effect for subsequent Offering Periods unless the Participant (i) submits a new election in the manner approved by the Committee, (ii) withdraws from the Plan, or (iii) terminates employment or otherwise becomes ineligible to participate in the Plan.
6. Method of Payment of Contributions.
(a) Payroll deductions shall be made from a Participant’s Compensation during an Offering Period in an aggregate amount equal to the Participant’s contribution election for such Offering Period. All payroll deductions made by a Participant shall be credited to his or her notional account under the Plan. Participant may not make a prepayment or any additional payments into such notional account. Payroll deductions in respect of any Offering Period shall commence on the Offering Date and shall end on the final day of the final payroll period ending on or prior to the applicable Purchase Date, unless sooner terminated by the Participant as provided in Section 10.
(b) Participants on an authorized leave of absence during an Offering Period may continue to participate in such Offering Period; provided, however, that a Participant on an authorized leave of absence will have contributions suspended during such leave of absence and, absent any other instruction from such Participant, such contributions will resume upon the next payroll following such Participant’s return from such leave of absence.
(c) Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of the Code and Section 7(b) herein, a Participant’s payroll deductions may be decreased by the Company to zero during any Offering Period.
7. Grant of Option.
(a) On each Offering Date, each Participant shall be deemed to have been granted an option to purchase as many Shares (rounded down to the nearest whole Share) as may be purchased with his or her Contributions during the related Offering Period at the Purchase Price; provided, however, that such option shall be subject to the limitations set forth in Section 7(b) below and Section 11, and may be reduced pursuant to Section 6, in each case, if applicable.
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(b) Notwithstanding any contrary provisions of the Plan, each option to purchase Shares under the Plan shall be limited as necessary to prevent any Employee from (i) immediately after the grant, owning capital stock of the Company and holding outstanding options to purchase capital stock of the Company possessing, in the aggregate, more than 5% of the total combined voting power or value of all classes of stock of the Company or of any Subsidiary, including for this purpose any stock attributed to such Employee pursuant to Section 424(d) of the Code, (ii) acquiring rights to purchase stock under all employee stock purchase plans (as described in Section 423 of the Code or any other similar arrangements maintained by the Company or any of its Subsidiaries) of the Company and its Subsidiaries which accrue at a rate that exceeds $25,000 of the Fair Market Value of such stock (determined at the time such option is granted) for each calendar year in which such option is outstanding and exercisable at any time, or (iii) purchasing, in respect of any Offering Period, more than the Maximum Number of Shares.
8. Exercise of Option; Interest.
(a) Unless a Participant withdraws from the Plan as provided in Section 10, his or her option for the purchase of Shares will be exercised automatically on the applicable Purchase Date, and the number of full Shares subject to the option will be purchased at the applicable Purchase Price with the accumulated Contributions in his or her notional account. No fractional Shares shall be issued. Any amounts accumulated in a Participant’s notional account that are not used to purchase Shares (other than any amount that is not sufficient to purchase a full Share, which shall be automatically carried forward to the next Offering Period) shall be refunded to the Participant as soon as practicable following the Purchase Date. Notwithstanding Section 9 below, the Shares purchased upon exercise of an option hereunder shall be deemed to be transferred to the Participant as of the Purchase Date. During his or her lifetime, a Participant’s option to purchase Shares hereunder is exercisable only by him or her.
(b) At the time an option granted under the Plan is exercised, in whole or in part, or at the time some or all of the Common Stock issued to a Participant under the Plan is disposed of, the Participant must make adequate provisions for any applicable federal, state, or other tax withholding obligations, if any, that arise upon the Purchase Date or the disposition of the Common Stock. At any time, the Company or a Designated Subsidiary may, but will not be obligated to, withhold from the Participant’s compensation the amount necessary to meet applicable withholding obligations, including any withholding required to make available to the Company any tax deductions or benefits attributable to the sale or disposition of Common Stock by the Participant earlier than as described in Section 423(a)(1) of the Code.
(c) No interest will be paid or allowed on any money paid into the Plan or credited to the notional account of any Participant.
9. Delivery. As promptly as practicable after each Purchase Date, the number of Shares purchased by each Participant upon exercise of his or her option shall be deposited into an account established in the Participant’s name with the Plan Administrator. The Committee may determine that no Share purchased in respect of an offering may be transferred out of such Participant’s account with the Plan Administrator other than in connection with a “disposition” (as such term is used in Section 423(a)(1) of the Code) of such Share for the longer of (x) two (2) years following the Offering Date applicable to such Share and (y) one (1) year following the Purchase Date applicable to such Share.
10. Voluntary Withdrawal; Termination of Employment.
(a) A Participant may withdraw all but not less than all the Contributions credited to his or her notional account under the Plan at any time prior to the applicable Purchase Date by giving written notice to the Plan Administrator in the manner directed by the Company. All of the Participant’s Contributions credited to his or her notional account with respect to an Offering Period will be paid to him or her as soon as administratively practicable after receipt of his or her notice of withdrawal, his or her option for the current Offering Period will be automatically terminated, and no further Contributions for the purchase of Shares may be made by the Participant with respect to such Offering Period. A Participant’s withdrawal from the Plan during an Offering Period will not have any effect upon his or her eligibility to participate in a succeeding Offering Period or in any similar plan that may hereafter be adopted by the Company.
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(b) Upon termination of the Participant’s Continuous Status as an Employee prior to a Purchase Date for any reason, including retirement or death, the Contributions credited to his or her notional account will be returned to him or her, and his or her option will be automatically terminated; provided, however, that in the event of the death of a Participant, the Company shall deliver the Contributions to the executor or administrator of the estate of the Participant or, if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such amounts to the spouse or to any one or more dependents or relatives of the Participant.
11. Shares.
(a) Subject to adjustment as provided in Section 16, the maximum number of Shares that shall be made available for sale under the Plan shall be [X]1 subject to an annual increase on the first day of each calendar year beginning on January 1, 2022 and ending on and including January 1, 2031, equal to the least of (i) 1% of the aggregate number of Shares outstanding on the final day of the immediately preceding calendar year, (ii) [_____]2 Shares and (iii) such number of shares as is determined by the Board. If the Committee determines at any time that, on a given Purchase Date, the number of Shares with respect to which options are to be exercised may exceed the number of Shares that are available for sale under the Plan on such Purchase Date, the Company shall make a pro rata allocation of the Shares available for purchase on such Purchase Date, in as uniform a manner as shall be practicable and as it shall determine to be equitable among all Participants exercising options to purchase Common Stock on such Purchase Date, and the Committee may, in its discretion (x) continue all Offering Periods then in effect, or (y) terminate any or all Offering Periods then in effect pursuant to Section 17 below.
(b) Shares to be delivered to a Participant under the Plan will be registered in the name of the Participant.
12. Administration.
(a) Subject to the express provisions of the Plan, the Committee shall administer the Plan and shall have the sole and plenary power to (i) interpret and administer, reconcile any inconsistency in, correct any defect in, and supply any omission in the Plan; (ii) establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for the proper administration of the Plan; and (iii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan, including, without limitation to the foregoing, by changing the duration (subject to a maximum Offering 1 Note to Draft: Insert number of shares equal to 3% of the outstanding shares of the Company’s common stock immediately following the Closing (including, for clarity, the Class B shares issued in respect of the transaction bonus payable to Thomas Shannon). Period of 27 months), frequency, start date, and end dates of Offering Periods and/or the Purchase Dates. The authority of the Committee includes, without limitation, the authority to (x) determine procedures for setting or changing payroll deduction percentages, and obtaining necessary tax withholdings, and (y) adopt amendments to the Plan in accordance with Section 17. All designations, determinations, interpretations, and other decisions by the Committee (or its delegate) regarding the Plan shall be within the sole discretion of the Committee, may be made at any time, and shall be final, conclusive, and binding upon all persons or entities, including, without limitation, the Company, any affiliate, any Participant, any holder or beneficiary of any option, and any shareholder of the Company. The expenses of administering the Plan shall be borne by the Company.
(b) The Committee may delegate any or all of its authority and obligations under this Plan to such committee or committees (including without limitation, a committee of the Board) or officer(s) of the Company as they may designate.
(c) Nothing in the Plan shall be deemed to authorize the Committee to take any action contrary to applicable law or regulation, or rules of the NYSE or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted.
(d) Notwithstanding any delegation of authority hereunder, the Board may itself take any action permitted under the Plan in its discretion at any time, and any reference in this Plan document to the rights and obligations of the Committee shall be construed to apply equally to the Board. Any references to the Board mean the Board only.
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13. Transferability. Neither amounts accumulated in a Participant’s notional account nor any rights with regard to the exercise of an option or to receive Shares under the Plan may be assigned, transferred, pledged, or otherwise disposed of in any way (other than by will or by the laws of descent and distribution, or as provided in Section 10) by the Participant. Any such attempt at assignment, transfer, pledge, or other disposition shall be without effect, except that the Company may treat such act as an election to withdraw funds in accordance with Section 10.
14. Use of Funds. All Contributions received or held by the Company under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such Contributions.
15. Reports. Statements of account will be made available to Participants by the Company or the Plan Administrator in the form and manner designated by the Committee.
16. Adjustments Upon Changes in Capitalization; Corporate Transactions.
(a) Subject to any required action by the stockholders of the Company, (i) the number of Shares covered by each option under the Plan that has not yet been exercised, (ii) the number of Shares that have been authorized for issuance under the Plan but that have not yet been placed under option (collectively, the “Reserves”), (iii) the number of Shares set forth in Section 11 above, and (iv) the Purchase Price for each then-current Offering Period shall, if applicable, be proportionately adjusted for any increase or decrease in the number of issued Shares resulting from a stock split, a reverse stock split, a stock dividend, a subdivision, combination, or reclassification of the Common Stock (including any such change in the number of shares of Common Stock effected in connection with a change in domicile of the Company), or any other increase or decrease in the number of Shares effected without receipt of consideration by the Company, or any increase or decrease in the value of a Share resulting from a spinoff or split-up; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.” Such adjustment shall be made by the Committee, whose determination in that respect shall be final, binding, and conclusive. Except as expressly provided above, no issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of Shares subject to an option.
(b) In the event of a dissolution or liquidation of the Company, any Offering Period then in progress will terminate immediately prior to the consummation of such action, unless otherwise provided by the Committee. In the event of a Corporate Transaction, each option outstanding under the Plan shall be assumed or an equivalent option shall be substituted by the successor corporation or a parent or subsidiary of such successor corporation. If the successor corporation (or its parent or subsidiary) refuses to assume or substitute for outstanding options, each Offering Period then in progress shall be shortened and a new Purchase Date shall be set by the Committee (the “New Purchase Date”), as of which New Purchase Date any Offering Period then in progress will terminate. The New Purchase Date shall be on or before the date of consummation of the Corporate Transaction, and the Company shall notify each Participant in writing, at least ten (10) days prior to the New Purchase Date, that the Purchase Date for his or her option has been changed to the New Purchase Date and that his or her option will be exercised automatically on the New Purchase Date, unless prior to such date he or she has withdrawn from the Offering Period as provided in Section 10. For purposes of this Section 16, an option granted under the Plan shall be deemed to be assumed, without limitation, if at the time of issuance of the stock or other consideration upon a Corporate Transaction, each holder of an option under the Plan would be entitled to receive upon exercise of the option the same number and kind of Shares or the same amount of property or cash, or number of securities (or combination thereof) as such holder would have been entitled to receive upon the occurrence of the transaction if the holder had been, immediately prior to the transaction, the holder of the number of shares of Common Stock covered by the option at such time (after giving effect to any adjustments in the number of Shares covered by the option as provided for in this Section 16); provided, however, that if the consideration received in the transaction is not solely common stock of the successor corporation or its parent (as defined in Section 424(e) of the Code), the Committee may, with the consent of the successor corporation, provide for the consideration to be received upon exercise of the option to be solely common stock of the successor corporation or its parent or subsidiary equal in Fair Market Value to the per- Share consideration received by holders of Common Stock in the transaction.
(c) If the Company consummates the sale or transfer of a Designated Subsidiary, business unit, or division to an unaffiliated person or entity, or the spin-off of a Designated Subsidiary, business unit, or division to shareholders during an Offering Period, the Contributions credited to the notional account of each Participant employed by such
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Designated Subsidiary, business unit, or division, as applicable, as of the time of such sale, transfer, or spin-off with respect the offering to which such Offering Period relates will be returned to the Participant without interest, and the Participant’s option will be automatically terminated.
(d) The existence of the Plan shall not affect or restrict in any way the right or power of the Company, the Board, the Committee, or the shareholders of the Company to make or authorize any adjustment, recapitalization, reorganization, or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock or of options, warrants, or rights to purchase stock or of bonds, debentures, or preferred or prior-preference stocks whose rights are superior to or affect the Common Shares or the rights thereof or that are convertible into or exchangeable for Common Shares, or the dissolution or liquidation of the Company or any Affiliate, or any sale or transfer of all or any part of their assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
17. Amendment or Termination.
(a) The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof at any time; provided, that no such amendment, alteration, suspension, discontinuation, or termination shall be made without shareholder approval if such approval is necessary to comply with any tax or regulatory requirement applicable to the Plan (including, without limitation, as necessary to comply with any applicable rules or requirements of any securities exchange or inter-dealer quotation service on which the Shares may be listed or quoted); provided, further, that any such amendment, alteration, suspension, discontinuance, or termination that would materially and adversely affect the rights of any Participant shall not to that extent be effective without the consent of the affected Participant unless the Committee determines that such amendment, alteration, suspension, discontinuance, or termination is either required or advisable in order for the Company or the Plan to satisfy any applicable law or regulation.
(b) Except as provided in Section 16, no such termination of the Plan may affect options previously granted, provided that the Plan or an Offering Period may be terminated by the Board on a Purchase Date or by the Board’s setting a new Purchase Date with respect to an Offering Period then in progress if the Board determines that termination of the Plan and/or the Offering Period is in the best interests of the Company and the stockholders or if continuation of the Plan and/or the Offering Period would cause the Company to incur adverse accounting charges as a result of a change after the effective date of the Plan in the generally accepted accounting principles applicable to the Plan.
(c) Without stockholder consent and without regard to whether any Participant rights may be considered to have been adversely affected, the Committee shall be entitled to change the Offering Periods, limit the frequency and/or number of changes in the amount withheld that may be made during an Offering Period, permit payroll withholding in excess of the amount designated by a Participant in order to adjust for delays or mistakes in the Company’s processing of properly completed withholding elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of Common Stock for each Participant properly correspond with amounts withheld from the Participant’s Compensation, and establish such other limitations or procedures as the Committee determines in its sole discretion advisable that are consistent with the Plan.
18. No Rights to Continued Employment. Neither the Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or service of the Company or an affiliate, or to continue in the employ or the service of the Company or an affiliate.
19. Beneficiary Designation. The Participant’s beneficiary shall be the Participant’s spouse (or domestic partner if such status is recognized by the Company and in such jurisdiction), or if the Participant is otherwise unmarried at the time of death, the Participant’s estate, except to the extent that a different beneficiary is designated in accordance with procedures that may be established by the Committee from time to time for such purpose. Notwithstanding the foregoing, in the absence of a beneficiary validly designated under such Committee-established procedures and/or applicable law who is living (or in existence) at the time of death of a Participant residing or working outside the United States, any required distribution under the Plan shall be made to the executor or administrator of the estate of the Participant, or to such other individual as may be prescribed by applicable law.
20. Equal Rights and Privileges. Notwithstanding any provision of the Plan to the contrary and in accordance with Section 423 of the Code, all eligible Employees who are granted options under the Plan shall have the same rights and privileges.
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21. No Rights as a Shareholder. Except as otherwise specifically provided in the Plan, no person shall be entitled to the privileges of ownership in respect of Shares that are subject to options hereunder until such Shares have been issued or delivered to that person.
22. Withholding. To the extent required by applicable federal, state, or local law, a Participant must make arrangements satisfactory to the Company for the payment of any withholding or similar tax obligations that arise in connection with the Plan.
23. Notices. All notices or other communications by a Participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.
24. Conditions Upon Issuance of Shares.
(a) The Plan and the issuance and delivery of Shares under the Plan are subject to compliance with all applicable U.S. federal, state, local, and non-U.S. laws, rules, and regulations (including but not limited to state, U.S. federal, and non-U.S. securities law, and margin requirements) and to such approvals by any listing, regulatory, or governmental authority as may, in the opinion of counsel for the Company, be necessary or advisable in connection therewith. Any securities delivered under the Plan shall be subject to such restrictions, and the person acquiring such securities shall, if requested by the Company, provide such assurances and representations to the Company as the Company may deem necessary or desirable to assure compliance with all applicable legal requirements. To the extent permitted by applicable law, the Plan shall be deemed amended to the extent necessary to conform to such laws, rules, and regulations.
(b) Notwithstanding any terms or conditions of the Plan to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any Shares pursuant to the Plan unless such Shares have been properly registered for sale pursuant to the Securities Act with the Securities and Exchange Commission or unless the Company has received an opinion of counsel, satisfactory to the Company, that such Shares may be offered or sold without such registration pursuant to and in compliance with the terms of an available exemption. The Company shall be under no obligation to register for sale under the Securities Act any of the Shares to be offered or sold under the Plan. The Committee shall have the authority to provide that all Shares delivered under the Plan shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the Plan, U.S. federal securities laws, or the rules, regulations, and other requirements of the Securities and Exchange Commission, any securities exchange or inter-dealer quotation service upon which such Shares are then listed or quoted and any other applicable federal, state, local or non-U.S. laws, rules, regulations, and other requirements, and the Committee may cause a legend or legends to be put on any such certificates of Common Stock delivered under the Plan to make appropriate reference to such restrictions or may cause such Common Stock delivered under the Plan in book-entry form to be held subject to the Company’s instructions or subject to appropriate stop-transfer orders.
25. Term of Plan; Effective Date. The Plan was adopted by the Board on [ ], 2021, and approved by the Company’s stockholders [ ], 2021. The Plan shall be effective on [ ], 2021 (the “Effective Date”), and shall continue in force and effect until terminated under Section 17. Unless sooner terminated by the Board, the Plan shall terminate upon the ten (10) year anniversary of the Effective Date.
26. Additional Restrictions of Rule 16b-3. The terms and conditions of options granted hereunder to, and the purchase of Shares by, persons subject to Section 16 of the Exchange Act shall comply with the applicable provisions of Rule 16b-3. This Plan shall be deemed to contain, and such options shall contain, and the Shares issued upon exercise thereof shall be subject to, such additional conditions and restrictions as may be required by Rule 16b-3 to qualify for the maximum exemption from Section 16 of the Exchange Act with respect to Plan transactions.
27. Indemnification. No member of the Board or the Committee, nor any employee or agent of the Company exercising authority delegated by the Board or the Committee hereunder (each such person, an “Indemnifiable Person”), shall be liable for any action taken or omitted to be taken or any determination made in the administration of the Plan (unless constituting fraud or a willful criminal act or willful criminal omission). Each Indemnifiable Person shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense (including attorneys’ fees) that may be imposed upon or incurred by such Indemnifiable Person in connection with or resulting from any action, suit, or proceeding to which such Indemnifiable Person may be involved as a party or witness or otherwise by reason of any action taken or omitted to be taken or determination made under the Plan and against and from any and all amounts paid by such Indemnifiable Person with the Company’s approval (not to be unreasonably
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withheld) in settlement thereof, or paid by such Indemnifiable Person in satisfaction of any judgment in any such action, suit, or proceeding against such Indemnifiable Person, and the Company shall advance to such Indemnifiable Person any such expenses promptly upon written request (which request shall include an undertaking by the Indemnifiable Person to repay the amount of such advance if it shall ultimately be determined as provided below that the Indemnifiable Person is not entitled to be indemnified); provided, that the Company shall have the right, at its own expense, to assume and defend any such action, suit, or proceeding, and once the Company gives notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of recognized standing of the Company’s choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent that a final judgment or other final adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts or omissions or determinations of such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable Person’s fraud or willful criminal act or willful criminal omission or that such right of indemnification is otherwise prohibited by law or by the Company’s certificate of incorporation or by-laws. The foregoing right of indemnification shall not be exclusive of or otherwise supersede any other rights of indemnification to which such Indemnifiable Persons may be entitled under the Company’s certificate of incorporation or by-laws, as a matter of law, individual indemnification agreement or contract or otherwise, or any other power that the Company may have to indemnify such Indemnifiable Persons or hold them harmless.
28. Nonexclusivity of the Plan. Neither the adoption of the Plan by the Board nor the submission of the Plan to the shareholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of stock options or awards otherwise than under the Plan, and such arrangements may be either applicable generally or only in specific cases.
29. No Trust or Fund Created. The Plan shall not create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any affiliate, on the one hand, and the Participant or other person or entity, on the other hand. No provision of the Plan shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or to otherwise segregate any assets, nor shall the Company maintain separate bank accounts, books, records, or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company.
30. Reliance on Reports. Each member of the Committee and each member of the Board (and each such member’s respective designees) shall be fully justified in acting or failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent registered public accounting firm of the Company and its affiliates and/or any other information furnished in connection with the Plan by any agent of the Company or the Committee or the Board, other than such member or designee.
31. Relationship to Other Benefits. No payment under the Plan shall be taken into account in determining any benefits under any pension, retirement, profit sharing, group insurance, or other benefit plan of the Company except as otherwise specifically provided in such other plan.
32. Governing Law. The Plan shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws thereof, or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the State of Delaware.
33. Severability. If any provision of the Plan is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any person or entity, or would disqualify the Plan under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan, such provision shall be construed or deemed stricken as to such jurisdiction, person, or entity, and the remainder of the Plan shall remain in full force and effect.
34. Titles and Headings. The titles and headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings shall control.
* * *
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Cayman Islands law does not limit the extent to which a company’s memorandum and articles of association may provide for indemnification of officers and directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against willful default, willful neglect, civil fraud or the consequences of committing a crime. Isos’s amended and restated memorandum and articles of association provides for indemnification of our officers and directors to the maximum extent permitted by law, including for any liability incurred in their capacities as such, except through their own actual fraud, willful default or willful neglect. Isos has purchased a policy of directors’ and officers’ liability insurance that insures its officers and directors against the cost of defense, settlement or payment of a judgment in some circumstances and insures Isos against its obligations to indemnify its officers and directors.
Isos’s officers and directors have agreed to waive any right, title, interest or claim of any kind in or to any monies in the trust account, and have agreed to waive any right, title, interest or claim of any kind they may have in the future as a result of, or arising out of, any services provided to Isos and will not seek recourse against the trust account for any reason whatsoever. Accordingly, any indemnification provided will only be able to be satisfied by Isos if (i) Isos has sufficient funds outside of the trust account or (ii) Isos consummates an initial business combination.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling Isos pursuant to the foregoing provisions, Isos has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 21. Exhibits and Financial Statement Schedules.
(a) The following exhibits are filed as part of this Registration Statement:
EXHIBIT INDEX
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Exhibit
Number
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Description
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10.3
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Amended and Restated Forward Purchase Contract dated as of July 1, 2021, by and among Isos Acquisition Corporation and the subscribers named therein (included as Annex F to the proxy statement/prospectus).
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10.4
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Form of Stockholder Support Agreement (included as Annex G to the proxy statement/prospectus).
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10.5
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Form of Sponsor Support Agreement (included as Annex H to the proxy statement/prospectus).
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10.6
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Form of Lock-Up Agreement (included as Annex I to the proxy statement/prospectus).
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10.7
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Form of Registration Rights Agreement (included as Annex J to the proxy statement/prospectus).
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10.8^
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Stockholders Agreement, by and among Isos Acquisition Corporation, A-B Parent, LLC, Cobalt Recreation LLC, Thomas F. Shannon and Atairos Group, Inc., dated as of July 1, 2021.
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10.9^
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Investment Management Trust Agreement dated March 2, 2021, by and between Isos Acquisition Corporation and Continental Stock Transfer & Trust Company, as trustee.
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10.10
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First Lien Credit Agreement, dated as of July 3, 2017, among A-B Merger Sub II LLC (to be merged with and into Kingpin Intermediate Holdings LLC), A-B Merger Sub I Inc. (to be merged with and into Bowlmor AMF Corp.), the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.
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10.11
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First Incremental Amendment to the First Lien Credit Agreement, dated as of March 28, 2018, among Kingpin Intermediate Holdings LLC, Bowlero Corp. (f/k/a Bowlmor AMF Corp.), the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.
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10.12
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Second Amendment to the First Lien Credit Agreement, dated as of July 5, 2018, among Kingpin Intermediate Holdings LLC, Bowlero Corp., the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.
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10.13
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Third Incremental Amendment to the First Lien Credit Agreement, dated as of November 20, 2019, among Kingpin Intermediate Holdings LLC, Bowlero Corp., the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.
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10.14
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Fourth Amendment to the First Lien Credit Agreement, dated as of June 10, 2020, among Kingpin Intermediate Holdings LLC, Bowlero Corp., the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.
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10.15
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Fifth Amendment to the First Lien Credit Agreement, dated as of September 25, 2020, among Kingpin Intermediate Holdings LLC, Bowlero Corp., the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.
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10.16
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First Lien Credit Agreement, dated as of September 25, 2020, among Kingpin Intermediate Holdings LLC, Bowlero Corp., the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.
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10.17
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Bowlero Corp. 2021 Omnibus Incentive Plan (included as Annex K to the proxy statement/prospectus).
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10.18
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Bowlero Corp. Employee Stock Purchase Plan (included as Annex L to the proxy statement/prospectus).
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10.19^
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2017 Bowlmor AMF Corp. Stock Incentive Plan, as amended as of January 7, 2020.
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10.20
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Form of Notice of Grant of Stock Option Award and Option Award Agreement under the 2017 Bowlmor AMF Corp. Stock Incentive Plan.
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10.21
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Notice of Grant of Stock Option Award and Option Award Agreement for Thomas F. Shannon (Residual Pool Award) under the 2017 Bowlmor AMF Corp. Stock Incentive Plan.
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10.22
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Notice of Grant of Stock Option Award and Option Award Agreement for Brett I. Parker (Residual Pool Award) under the 2017 Bowlmor AMF Corp. Stock Incentive Plan.
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10.23
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Notice of Grant of Stock Option Award and Option Award Agreement for Thomas F. Shannon (Tranche 1 Pool Award) under the 2017 Bowlmor AMF Corp. Stock Incentive Plan.
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10.24
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Notice of Grant of Stock Option Award and Option Award Agreement for Brett I. Parker (Tranche 1 Pool Award) under the 2017 Bowlmor AMF Corp. Stock Incentive Plan.
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10.25
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Notice of Grant of Stock Option Award and Option Award Agreement for Thomas F. Shannon (Tranche 2 Pool Award) under the 2017 Bowlmor AMF Corp. Stock Incentive Plan.
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10.26
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Notice of Grant of Stock Option Award and Option Award Agreement for Brett I. Parker (Tranche 2 Pool Award) under the 2017 Bowlmor AMF Corp. Stock Incentive Plan.
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Exhibit
Number
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Description
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10.27^
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Employment Agreement, dated as of June 6, 2017, by and between Bowlmor AMF Corp. and Thomas F. Shannon.
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10.28^
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Employment Agreement, dated as of June 6, 2017, by and between Bowlmor AMF Corp. and Brett I. Parker.
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10.29^
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Transaction Bonus Agreement, dated July 1, 2021, by and between Bowlero Corp. and Thomas F. Shannon.
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10.30^
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Transaction Bonus Agreement, dated July 1, 2021, by and between Bowlero Corp. and Brett I. Parker.
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23.1
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Consent of Marcum LLP.
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23.2
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Consent of KPMG LLP.
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23.3*
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Consent of Hughes Hubbard & Reed LLP (included as part of Exhibit 5.1).
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24.1
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Powers of Attorney (included on the signature page to this Registration Statement).
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99.1*
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Form of Proxy Card for the extraordinary general meeting.
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99.2^
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Consent of Thomas F. Shannon to be named as a director.
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99.3^
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Consent of Brett I. Parker to be named as a director.
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99.4^
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Consent of John A. Young to be named as a director.
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99.5^
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Consent of George Barrios to be named as a director.
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99.6^
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Consent of Michelle Wilson to be named as a director.
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99.7
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Consent of Michael J. Angelakis to be named as a director.
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99.8
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Consent of Rachael A. Wagner to be named as a director.
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99.9
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Consent of Robert J. Bass to be named as a director.
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99.10
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Consent of Sandeep Mathrani to be named as a director.
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99.11
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Bowlero Stockholder Cash/Stock Election Form.
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101.INS
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Inline XBRL Instance Document
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101.SCH
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Inline XBRL Taxonomy Extension Schema Document
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101.CAL
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Inline XBRL Taxonomy Extension Calculation Linkbase Document
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101.DEF
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Inline XBRL Taxonomy Extension Definition Linkbase Document
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101.LAB
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Inline XBRL Taxonomy Extension Label Linkbase Document
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101.PRE
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Inline XBRL Taxonomy Extension Presentation Linkbase Document
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104
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Cover Page Interactive File
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Item 22. Undertakings.
(a) The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
i. To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
ii. To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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iii. To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining any liability under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
i. Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
ii. Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
iii. The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
iv. Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.
(7) That every prospectus: (i) that is filed pursuant to the immediately preceding paragraph, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, each such post-effective
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Table of Contents
amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the undersigned pursuant to the foregoing provisions, or otherwise, the undersigned has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the undersigned of expenses incurred or paid by a director, officer or controlling person of the undersigned in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the undersigned will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(9) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(10) The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
II-5
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of New York, State of New York, on September 20, 2021.
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ISOS ACQUISITION CORPORATION
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By:
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/s/ Michelle Wilson
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Michelle Wilson
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Co-Chief Executive Officer
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By:
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/s/ George Barrios
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George Barrios
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Co-Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Michelle Wilson
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Co-Chair of the Board and Co-Chief Executive Officer
|
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September 20, 2021
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Michelle Wilson
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(Co-Principal Executive Officer)
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/s/ George Barrios
|
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Co-Chair of the Board and Co-Chief Executive Officer
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September 20, 2021
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George Barrios
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(Co-Principal Executive Officer)
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/s/ Winston Meade
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Chief Financial Officer
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September 20, 2021
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Winston Meade
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(Principal Accounting Officer)
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/s/ Derek Chang*
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Director
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September 20, 2021
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Derek Chang
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/s/ Barbara Daniel*
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Director
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September 20, 2021
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Barbara Daniel
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/s/ Jacqueline Hernandez*
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Director
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September 20, 2021
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Jacqueline Hernandez
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/s/ Perkins Miller*
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Director
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September 20, 2021
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Perkins Miller
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/s/ Dan Reed*
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Director
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September 20, 2021
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Dan Reed
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/s/ John Rose*
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Director
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September 20, 2021
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John Rose
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*By:
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/s/ Michelle Wilson
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Name: Michelle Wilson
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Title: Attorney-in-Fact
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II-6
S-4/A
Isos Acquisition Corp.
This number excludes an aggregate of up to 843,750 Class B ordinary shares subject to forfeiture if the over-allotment option is not exercised in full or in part by the underwriters (see Note 5).
This number includes up to 843,750 Class B ordinary shares subject to forfeiture if the over-allotment option is not exercised in full or in part by the underwriters (see Note 5).
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Exhibit 8.1
|
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004-1482
Telephone: +1 (212) 837-6000
Fax: +1 (212) 422-4726
hugheshubbard.com
|
September 20, 2021
Isos Acquisition Corporation
55 Post Road W, Suite 200
Westport, CT 06880
Re: Registration Statement on Form F-4 (File No. 333-258080)
Ladies and Gentlemen:
We have acted as special counsel to Isos Acquisition
Corporation, Cayman Islands exempted company in connection with the Business Combination Agreement, dated as of July 1, 2021 (the “Business
Combination Agreement”), by and between Isos and Bowlero Corporation, a Delaware Corporation, which, among other things, provides
for Isos’s domestication from a Cayman Islands exempted company to a Delaware corporation pursuant to Section 338 of the Delaware
General Corporation Law and Part XII of the Cayman Islands Companies Act (As Revised) (the “Domestication”). This opinion
is being delivered in connection with the Registration Statement (File No. 333-258080) of Isos on Form S-4 filed on July 21, 2021 with
the Securities and Exchange Commission, as amended and supplemented through the date hereof (the “Registration Statement”).
Capitalized terms used but not defined herein have the respective meanings ascribed to them in the Registration Statement.
For purposes of giving this opinion, we have
examined originals or copies, certified or otherwise identified to our satisfaction, of such agreements and other documents as we
have deemed relevant and necessary, including the representation letter executed as of the date hereof for purposes of this opinion
by an officer of Isos on behalf of Isos (the “Officer’s Certificate”), the Business Combination Agreement,
the Ancillary Agreements (as defined in the Business Combination Agreement) and the Registration Statement and we have made such
investigations of law as we have deemed appropriate as a basis for the opinion expressed below. In our examination, we have assumed,
without independent verification, (i) that the original documents (including signatures) are authentic, (ii) that
documents submitted to us as copies conform to the corresponding original documents, (iii) that the execution and delivery by
each party to a document and the performance by such party of its obligations thereunder have been authorized by all necessary
measures and do not violate or result in a breach of or default under such party’s certificate or instrument of formation and
by-laws or the laws of such party’s jurisdiction of organization, (iv) that each agreement represents the entire
agreement between the parties with respect to the subject matter thereof, (v) that the parties to each agreement have complied,
and will comply, with all of their respective covenants, agreements and undertakings contained therein, (vi) that the
transactions provided for by each agreement were and will be carried out in accordance with their terms, and (vii) that the
representations and statements in the Officer’s Certificate, the Business Combination Agreement, the Ancillary Agreements (as
defined in the Business Combination Agreement), and the Registration Statement are true, correct and complete and will remain true,
correct and complete through the effective time of the Domestication, in each case without regard to any qualification as to
knowledge, belief, materiality, or otherwise, and that the parties to the Domestication will comply with the covenants and
undertakings in the agreements referenced above. In rendering our opinion we have made no independent investigation of the facts
referred to herein and have relied for the purpose of rendering this opinion exclusively on those facts that have been provided to
us by you and your agents, which we assume have been, and will continue to be, true.
The opinion set forth below is based on the Code,
administrative rulings, judicial decisions, Treasury regulations and other applicable authorities, all as in effect on the effective date
of the Registration Statement. The statutory provisions, regulations, and interpretations upon which our opinion is based are subject
to change, and such changes could apply retroactively. Any change in law or the facts regarding the Domestication, or any of the transactions
related thereto, or any inaccuracy in the facts or assumptions on which we relied, could affect the continuing validity of the opinion
set forth below. We assume no responsibility to inform you of any such changes or inaccuracy that may occur or come to our attention.
Moreover, there can be no assurance that our opinion will be accepted by the Internal Revenue Service or, if challenged, by a court.
Based upon the foregoing and subject to the assumptions,
exceptions, limitations and qualifications set forth herein, we confirm that the statements set forth in the Registration Statement under
the heading “U.S. Federal Income Tax Considerations—U.S. Holders—Effects of the Domestication to U.S. Holders”
(the “Tax Disclosure”), insofar as they address the material U.S. federal income tax considerations of the Domestication
for beneficial owners of Isos Class A ordinary shares and warrants, and discuss matters of U.S. federal income tax law and regulations
or legal conclusions with respect thereto, and except to the extent stated otherwise therein, are our opinion, subject to the qualifications,
assumptions and limitations stated herein and therein. In particular, this opinion is limited to the matters discussed in the Tax Disclosure,
and does not address (i) the U.S. federal income tax treatment of any shareholder subject to special rules under the Code or the Treasury
Regulations, as further described in the Tax Disclosure, (ii) any matter arising in connection with Section 367 of the Code, or (iii)
any matter arising in connection with the passive foreign investment company rules.
We hereby consent to be named in the Registration
Statement and to the filing of a copy of this opinion as Exhibit 8.1 to the Registration Statement. In giving such consent, we do not
thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended,
and the rules and regulations of the Securities and Exchange Commission promulgated thereunder. This opinion speaks as of its date,
and we undertake no (and hereby disclaim any) obligation to update this opinion.
We express our opinion herein only as to those
matters specifically set forth above and no opinion should be inferred as to the tax consequences of the Domestication under any state,
local or foreign law, or with respect to other areas of U.S. federal taxation. We do not express any opinion herein concerning any law
other than the federal law of the United States.
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Very truly yours,
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/s/ Hughes Hubbard & Reed LLP
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Hughes Hubbard & Reed LLP
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Exhibit 10.10
EXECUTION VERSION
FIRST LIEN CREDIT AGREEMENT*
Dated as of July 3, 2017
among
A-B MERGER SUB II LLC
(to be merged with and into KINGPIN INTERMEDIATE
HOLDINGS LLC),
as the Borrower,
A-B MERGER SUB I INC.
(to be merged with and into BOWLMOR AMF CORP.),
as Holdings,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Swingline Lender and an
Issuing Bank,
and
JPMORGAN CHASE BANK, N.A.,
CREDIT SUISSE SECURITIES (USA) LLC and
GOLDMAN SACHS BANK USA,
as Joint Lead Arrangers
and Joint Bookrunners
* Certain
exhibits and the schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The registrant agrees to
furnish supplementally a copy of any omitted exhibit or schedule to the SEC upon its request, however the registrant may request confidential
treatment of omitted items.
TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS
|
2
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Section 1.01.
|
Defined Terms
|
2
|
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Section 1.02.
|
Classification of Loans and Borrowings
|
74
|
|
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|
Section 1.03.
|
Terms Generally
|
75
|
|
|
|
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|
Section 1.04.
|
Accounting Terms; GAAP
|
76
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|
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|
Section 1.05.
|
Effectuation of Transactions
|
79
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|
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Section 1.06.
|
Timing of Payment and Performance
|
79
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|
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|
Section 1.07.
|
Times of Day
|
79
|
|
|
|
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|
Section 1.08.
|
Currency Equivalents Generally
|
80
|
|
|
|
|
|
Section 1.09.
|
Cashless Rollovers
|
80
|
|
|
|
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|
Section 1.10.
|
Alternative Currencies
|
81
|
|
|
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|
ARTICLE 2 THE CREDITS
|
81
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|
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|
Section 2.01.
|
Commitments
|
81
|
|
|
|
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|
Section 2.02.
|
Loans and Borrowings
|
82
|
|
|
|
|
|
Section 2.03.
|
Requests for Borrowings
|
83
|
|
|
|
|
|
Section 2.04.
|
Swingline Loans
|
84
|
|
|
|
|
|
Section 2.05.
|
Letters of Credit
|
85
|
|
|
|
|
|
Section 2.06.
|
[Reserved]
|
90
|
|
|
|
|
|
Section 2.07.
|
Funding of Borrowings
|
90
|
|
|
|
|
|
Section 2.08.
|
Type; Interest Elections
|
91
|
|
|
|
|
|
Section 2.09.
|
Termination and Reduction of Commitments
|
92
|
|
|
|
|
|
Section 2.10.
|
Repayment of Loans; Evidence of Debt
|
93
|
|
|
|
|
|
Section 2.11.
|
Prepayment of Loans
|
94
|
|
|
|
|
|
Section 2.12.
|
Fees
|
101
|
|
|
|
|
|
Section 2.13.
|
Interest
|
103
|
|
|
|
|
|
Section 2.14.
|
Alternate Rate of Interest
|
104
|
|
|
|
|
|
Section 2.15.
|
Increased Costs
|
104
|
|
|
|
|
|
Section 2.16.
|
Break Funding Payments
|
105
|
|
|
|
|
|
Section 2.17.
|
Taxes
|
106
|
|
Section 2.18.
|
Payments Generally; Allocation of Proceeds; Sharing of Payments
|
110
|
|
|
|
|
|
Section 2.19.
|
Mitigation Obligations; Replacement of Lenders
|
112
|
|
|
|
|
|
Section 2.20.
|
Illegality
|
113
|
|
|
|
|
|
Section 2.21.
|
Defaulting Lenders
|
114
|
|
|
|
|
|
Section 2.22.
|
Incremental Credit Extensions
|
116
|
|
|
|
|
|
Section 2.23.
|
Extensions of Loans and Revolving Credit Commitments
|
121
|
|
|
|
|
|
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
|
124
|
|
|
|
|
|
Section 3.01.
|
Organization; Powers
|
124
|
|
|
|
|
|
Section 3.02.
|
Authorization; Enforceability
|
124
|
|
|
|
|
|
Section 3.03.
|
Governmental Approvals; No Conflicts
|
124
|
|
|
|
|
|
Section 3.04.
|
Financial Condition; No Material Adverse Effect
|
124
|
|
|
|
|
|
Section 3.05.
|
Properties
|
125
|
|
|
|
|
|
Section 3.06.
|
Litigation and Environmental Matters
|
125
|
|
|
|
|
|
Section 3.07.
|
Compliance with Laws
|
126
|
|
|
|
|
|
Section 3.08.
|
Investment Company Status
|
126
|
|
|
|
|
|
Section 3.09.
|
Taxes
|
126
|
|
|
|
|
|
Section 3.10.
|
ERISA
|
126
|
|
|
|
|
|
Section 3.11.
|
Disclosure
|
126
|
|
|
|
|
|
Section 3.12.
|
Solvency
|
127
|
|
|
|
|
|
Section 3.13.
|
Capitalization and Subsidiaries
|
127
|
|
|
|
|
|
Section 3.14.
|
Security Interest in Collateral
|
127
|
|
|
|
|
|
Section 3.15.
|
Labor Disputes
|
127
|
|
|
|
|
|
Section 3.16.
|
Federal Reserve Regulations
|
128
|
|
|
|
|
|
Section 3.17.
|
Sanctions and Anti-Corruption Laws
|
128
|
|
|
|
|
|
ARTICLE 4 CONDITIONS
|
128
|
|
|
|
|
|
Section 4.01.
|
Closing Date
|
128
|
|
|
|
|
|
Section 4.02.
|
Each Credit Extension
|
132
|
|
|
|
|
|
ARTICLE 5 AFFIRMATIVE COVENANTS
|
133
|
|
|
|
|
|
Section 5.01.
|
Financial Statements and Other Reports
|
133
|
|
|
|
|
|
Section 5.02.
|
Existence
|
136
|
|
|
|
|
|
Section 5.03.
|
Payment of Taxes.
|
136
|
|
|
|
|
|
Section 5.04.
|
Maintenance of Properties
|
136
|
|
Section 5.05.
|
Insurance
|
136
|
|
|
|
|
|
Section 5.06.
|
Inspections
|
137
|
|
|
|
|
|
Section 5.07.
|
Maintenance of Book and Records
|
137
|
|
|
|
|
|
Section 5.08.
|
Compliance with Laws
|
137
|
|
|
|
|
|
Section 5.09.
|
Hazardous Materials Activity
|
138
|
|
|
|
|
|
Section 5.10.
|
Designation of Subsidiaries
|
139
|
|
|
|
|
|
Section 5.11.
|
Use of Proceeds
|
139
|
|
|
|
|
|
Section 5.12.
|
Covenant to Guarantee Obligations and Give Security
|
139
|
|
|
|
|
|
Section 5.13.
|
Maintenance of Ratings
|
141
|
|
|
|
|
|
Section 5.14.
|
Maintenance of Fiscal Year
|
141
|
|
|
|
|
|
Section 5.15.
|
Further Assurances
|
142
|
|
|
|
|
|
Section 5.16.
|
Conduct of Business
|
142
|
|
|
|
|
|
Section 5.17.
|
Annual Lender Call
|
142
|
|
|
|
|
|
Section 5.18.
|
Post-Closing Actions
|
142
|
|
|
|
|
|
ARTICLE 6 NEGATIVE COVENANTS
|
142
|
|
|
|
|
|
Section 6.01.
|
Indebtedness
|
142
|
|
|
|
|
|
Section 6.02.
|
Liens
|
149
|
|
|
|
|
|
Section 6.03.
|
No Further Negative Pledges
|
155
|
|
|
|
|
|
Section 6.04.
|
Restricted Payments; Certain Payments of Indebtedness
|
157
|
|
|
|
|
|
Section 6.05.
|
[Reserved]
|
163
|
|
|
|
|
|
Section 6.06.
|
Investments
|
163
|
|
|
|
|
|
Section 6.07.
|
Fundamental Changes; Disposition of Assets
|
168
|
|
|
|
|
|
Section 6.08.
|
Sale and Lease-Back Transactions
|
173
|
|
|
|
|
|
Section 6.09.
|
Transactions with Affiliates
|
173
|
|
|
|
|
|
Section 6.10.
|
[Reserved]
|
175
|
|
|
|
|
|
Section 6.11.
|
[Reserved]
|
175
|
|
|
|
|
|
Section 6.12.
|
Amendments of or Waivers with Respect to Restricted Debt
|
175
|
|
|
|
|
|
Section 6.13.
|
[Reserved]
|
176
|
|
|
|
|
|
Section 6.14.
|
Permitted Activities of Holdings
|
176
|
|
|
|
|
|
Section 6.15.
|
Financial Covenant
|
177
|
|
|
|
|
|
ARTICLE 7 EVENTS OF DEFAULT
|
178
|
|
|
|
|
|
Section 7.01.
|
Events of Default
|
178
|
|
ARTICLE 8 THE ADMINISTRATIVE AGENT
|
182
|
|
|
|
|
|
ARTICLE 9 MISCELLANEOUS
|
190
|
|
|
|
|
|
Section 9.01.
|
Notices
|
190
|
|
|
|
|
|
Section 9.02.
|
Waivers; Amendments
|
191
|
|
|
|
|
|
Section 9.03.
|
Expenses; Indemnity
|
199
|
|
|
|
|
|
Section 9.04.
|
Waiver of Claim.
|
200
|
|
|
|
|
|
Section 9.05.
|
Successors and Assigns
|
200
|
|
|
|
|
|
Section 9.06.
|
Survival
|
210
|
|
|
|
|
|
Section 9.07.
|
Counterparts; Integration; Effectiveness
|
210
|
|
|
|
|
|
Section 9.08.
|
Severability
|
211
|
|
|
|
|
|
Section 9.09.
|
Right of Setoff
|
211
|
|
|
|
|
|
Section 9.10.
|
Governing Law; Jurisdiction; Consent to Service of Process
|
211
|
|
|
|
|
|
Section 9.11.
|
Waiver of Jury Trial
|
213
|
|
|
|
|
|
Section 9.12.
|
Headings
|
213
|
|
|
|
|
|
Section 9.13.
|
Confidentiality
|
213
|
|
|
|
|
|
Section 9.14.
|
No Fiduciary Duty
|
214
|
|
|
|
|
|
Section 9.15.
|
Several Obligations
|
214
|
|
|
|
|
|
Section 9.16.
|
USA PATRIOT Act
|
214
|
|
|
|
|
|
Section 9.17.
|
Disclosure
|
214
|
|
|
|
|
|
Section 9.18.
|
Appointment for Perfection
|
214
|
|
|
|
|
|
Section 9.19.
|
Interest Rate Limitation
|
214
|
|
|
|
|
|
Section 9.20.
|
Intercreditor Agreement
|
215
|
|
|
|
|
|
Section 9.21.
|
Conflicts
|
215
|
|
|
|
|
|
Section 9.22.
|
Release of Guarantors
|
215
|
|
|
|
|
|
Section 9.23.
|
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
216
|
|
SCHEDULES:
|
|
|
|
|
|
|
|
Schedule 1.01(a)
|
–
|
Commitment Schedule
|
|
Schedule 1.01(b)
|
–
|
Existing Letters of Credit
|
|
Schedule 1.01(c)
|
–
|
[Reserved]
|
|
Schedule 1.01(d)
|
–
|
[Reserved]
|
|
Schedule 1.01(e)
|
–
|
Existing Credit Facilities
Excluded Properties
|
|
Schedule 1.01(f)
|
–
|
Excluded Properties
|
|
Schedule 1.01(g)
|
|
Liquor License Subsidiaries
|
|
Schedule 3.06
|
|
Litigation and Environmental
Matters
|
|
Schedule 3.13
|
–
|
Subsidiaries
|
|
Schedule 5.10
|
–
|
Unrestricted Subsidiaries
|
|
Schedule 5.18
|
|
Post-Closing Actions
|
|
Schedule 6.01
|
–
|
Existing Indebtedness
|
|
Schedule 6.02
|
–
|
Existing Liens
|
|
Schedule 6.03
|
–
|
Negative Pledges
|
|
Schedule 6.06
|
–
|
Existing Investments
|
|
Schedule 6.07
|
–
|
Certain Dispositions
|
|
Schedule 9.01
|
–
|
Borrower’s Website Address
for Electronic Delivery
|
|
|
|
|
|
EXHIBITS:
|
|
|
|
|
|
|
|
Exhibit A-1
|
–
|
Form of Assignment and Assumption
|
|
Exhibit A-2
|
–
|
Form of Affiliated Lender
Assignment and Assumption
|
|
Exhibit B
|
–
|
Form of Borrowing Request
|
|
Exhibit C
|
–
|
Form of Compliance Certificate
|
|
Exhibit D
|
–
|
Form of Interest Election
Request
|
|
Exhibit E
|
–
|
Form of Perfection Certificate
|
|
Exhibit F
|
–
|
[Reserved]
|
|
Exhibit G
|
–
|
Form of Promissory Note
|
|
Exhibit H-1
|
–
|
Form of Trademark Security
Agreement
|
|
Exhibit H-2
|
–
|
Form of Patent Security Agreement
|
|
Exhibit H-3
|
–
|
Form of Copyright Security
Agreement
|
|
Exhibit I
|
–
|
Form of Guaranty Agreement
|
|
Exhibit J
|
–
|
Form of Security Agreement
|
|
Exhibit K
|
–
|
Form of Letter of Credit Request
|
|
Exhibit L-1
|
–
|
Form of U.S. Tax Compliance
Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit
L-2
|
–
|
Form of U.S. Tax Compliance
Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit
L-3
|
–
|
Form of U.S. Tax Compliance
Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit
L-4
|
–
|
Form of U.S. Tax Compliance
Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit M
|
–
|
Form of Solvency Certificate
|
|
Exhibit N
|
–
|
Form of Intercreditor Agreement
|
FIRST LIEN CREDIT AGREEMENT
FIRST LIEN CREDIT AGREEMENT,
dated as of July 3, 2017 (this “Agreement”), by and among A-B Merger Sub I Inc., a Delaware corporation (“Merger
Sub 1”), A-B Merger Sub II LLC, a Delaware limited liability company (“Merger Sub 2”), the Lenders from time
to time party hereto, JPMorgan Chase Bank, N.A. (“JPM”), in its capacities as administrative agent for the Lenders
and collateral agent for the Secured Parties (in such capacities, together with its successor and permitted assigns, the “Administrative
Agent”), the Swingline Lender and an Issuing Bank, Credit Suisse AG, Cayman Islands Branch (“Credit Suisse”),
in its capacity as an Issuing Bank, and Goldman Sachs Bank USA (“GS Bank”), in its capacity as an Issuing Bank, with
JPM, Credit Suisse Securities (USA) LLC and Goldman Sachs Bank USA, as joint lead arrangers and joint bookrunners (in such capacities,
collectively, the “Arrangers”).
RECITALS
A. Pursuant
to the terms of the Acquisition Agreement, on the Closing Date, (i) Parent will acquire, by merger of Merger Sub 1 with and into the Target,
a majority of the issued and outstanding equity interests of the Target (with the Target being the surviving entity of such merger) (the
“Merger Sub 1 Merger”) and (ii) Merger Sub 2 will merge with and into Kingpin Intermediate (with Kingpin Intermediate
being the surviving entity of such merger) (the “Merger Sub 2 Merger”).
B. To consummate the Transactions,
certain of the Investors will directly or indirectly (including by way of repayment of existing debt of the Target and/or payments to
existing shareholders of the Target) make cash contributions to Merger Sub 1 and/or the Target (with all such cash contributions to be
in the form of (i) common equity, (ii) the Series A Preferred Stock, (iii) Qualified Capital Stock or (iv) other preferred Capital Stock
or other instruments (in the case of clause (iv), having terms reasonably acceptable to the Administrative Agent) (any such equity
or instruments “Permitted Equity”), which cash contributions shall be in an aggregate amount that, when taken together
with all equity interests (including restricted stock or options) retained, rolled-over or directly or indirectly invested in Permitted
Equity of Holdings and all Permitted Equity of Holdings issued to, or otherwise directly or indirectly held or acquired by, any shareholders,
directors or management of the Target (together, the “Equity Contribution”) will be not less than 30% (the “Minimum
Equity Percentage”) of the sum of (i) the aggregate principal amount of the Credit Facilities and Second Lien Facility funded
on the Closing Date (excluding (A) amounts drawn under the Revolving Facility on the Closing Date for working capital purposes and/or
purchase price adjustments, to fund Transaction Costs or to replace, backstop or cash collateralize existing letters of credit and (B)
any letters of credit outstanding on the Closing Date) and (ii) the Equity Contribution.
C. To
consummate the Transactions, the Borrower has requested that the Lenders extend credit in the form of (a) Initial Term Loans in an original
aggregate principal amount equal to $585,000,000 and (b) a Revolving Facility with an available amount of $50,000,000, in each case, subject
to increase as provided herein.
D. To consummate the Transactions,
the Borrower will also borrow term loans in an original aggregate principal amount equal to $110,000,000 under the Second Lien Credit
Agreement
E. The
Lenders are willing to extend the Initial Term Loans and to make available the Revolving Facility, in each case on the terms and subject
to the conditions set forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
Section 1.01. Defined Terms.
As used in this Agreement, the following terms have the meanings specified below:
“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at
a rate determined by reference to the Alternate Base Rate.
“Acceptable Intercreditor
Agreement” means the Intercreditor Agreement, a Market Intercreditor Agreement, or another intercreditor agreement that is reasonably
satisfactory to the Administrative Agent (which may, if applicable, consist of a payment “waterfall”).
“ACH” means automated clearing house transfers.
“Acquisition”
means the Mergers and the other transactions contemplated by the Acquisition Agreement.
“Acquisition Agreement” means that certain Agreement and Plan of Merger, dated as of June 6, 2017, by and among, inter alios, Parent, Merger Sub
1, Merger Sub 2, the Target and the other Persons party thereto.
“Additional Agreement” has the meaning
assigned to such term in Article 8.
“Additional Commitment”
means any commitment hereunder added pursuant to Sections 2.22, 2.23 or 9.02(c).
“Additional Credit
Facilities” means any credit facilities added pursuant to Sections 2.22, 2.23 or 9.02(c).
“Additional Lender” has the meaning assigned
to such term in Section 2.22(b).
“Additional Letter
of Credit Facility” means any letter of credit facility established by the Borrower and/or any Restricted Subsidiary outside
of this Agreement to obtain letters of credit required by customers, suppliers or landlords or otherwise required in the ordinary course
of business.
“Additional Loans” means any Additional
Revolving Loans and any Additional Term Loans.
“Additional Revolving
Credit Commitments” means any revolving credit commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional Revolving
Credit Exposure” means, with respect to any Person at any time, the aggregate outstanding principal amount at such time of all
Additional Revolving Loans of such Person, plus the aggregate amount at such time of such Person’s LC Exposure and Swingline
Exposure, in each case, attributable to its Additional Revolving Credit Commitment.
“Additional Revolving
Facility” means any revolving credit facility added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional Revolving
Lender” means any Lender with an Additional Revolving Credit Commitment or any Additional Revolving Credit Exposure.
“Additional Revolving
Loans” means any revolving loan added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional Term
Loan Commitments” means any term loan commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(i).
“Additional Term
Loans” means any term loan added pursuant to Section 2.22, 2.23 or 9.02(c)(i).
“Adjustment Date” means the
date of delivery of financial statements required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable.
“Administrative Agent”
has the meaning assigned to such term in the preamble to this Agreement.
“Administrative Questionnaire” has the
meaning assigned to such term in Section 2.22(d).
“Adverse Proceeding”
means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether
or not purportedly on behalf of Holdings, the Borrower or any of its Restricted Subsidiaries) at law or in equity, or before or by any
Governmental Authority, domestic or foreign, whether pending or, to the knowledge of Holdings, the Borrower or any of its Restricted Subsidiaries,
threatened in writing, against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries or any property of Holdings,
the Borrower or any of its Restricted Subsidiaries.
“Affiliate”
means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that
Person. No Person shall be an “Affiliate” of Holdings or any subsidiary thereof solely because it is an unrelated portfolio
company of the Sponsor and none of the Administrative Agent, the Arrangers, any Lender (other than any Affiliated Lender or any Debt Fund
Affiliate) or any of their respective Affiliates shall be considered an Affiliate of Holdings or any subsidiary thereof. For the avoidance
of doubt, the parties hereto agree that Comcast Corporation, a Pennsylvania corporation, is not an Affiliate of Holdings or the Borrower
as of the Closing Date.
“Affiliated Lender”
means any Non-Debt Fund Affiliate, Holdings, the Borrower and/or any of its Restricted Subsidiaries.
“Affiliated Lender
Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Affiliated Lender (with the consent
of any party whose consent is required by Section 9.05) and accepted by the Administrative Agent in the form of Exhibit A-2
or any other form approved by the Administrative Agent and the Borrower.
“Affiliated Lender Cap” has the meaning
assigned to such term in Section 9.05(g)(iv).
“Aggregate Revolving
Credit Exposure” means, at any time, the aggregate amount of the Lenders’ Revolving Credit Exposures at such time.
“Agreement”
has the meaning assigned to such term in the preamble to this First Lien Credit Agreement.
“Alternate Base
Rate” means, for any day, a rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such day
plus 0.50%, (b) to the extent ascertainable, the Published LIBO Rate (which rate shall be calculated based upon an Interest Period
of one month and shall be determined on a daily basis based on the rate determined on such day for such Interest Period at 11:00 a.m.
(London time)) plus 1.00%, (c) the Prime Rate and (d) solely with respect to Initial Term Loans, 2.00%. Any change in the Alternate
Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Published LIBO Rate, as the case may be, shall be
effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Published LIBO
Rate, as the case may be.
“Applicable Charges” has the meaning set
forth in Section 9.19.
“Applicable Percentage”
means, (a) with respect to any Term Lender of any Class, a percentage equal to a fraction the numerator of which is the aggregate outstanding
principal amount of the Term Loans and unused Additional Term Loan Commitments of such Term Lender under such Class and the denominator
of which is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan Commitments of all Term Lenders
under such Class and (b) with respect to any Revolving Lender of any Class, the percentage of the aggregate amount of the Revolving Credit
Commitments of such Class represented by such Lender’s Revolving Credit Commitment of such Class; provided that for purposes
of Section 2.21 and otherwise herein, when there is a Defaulting Lender, such Defaulting Lender’s Revolving Credit Commitment
shall be disregarded for any relevant calculation. In the case of clause (b), in the event that the Revolving Credit Commitments
of any Class have expired or been terminated, the Applicable Percentage of any Revolving Lender of such Class shall be determined on the
basis of the Revolving Credit Exposure of such Revolving Lender with respect to such Class, giving effect to any assignments and to any
Revolving Lender’s status as a Defaulting Lender at the time of determination.
“Applicable Price” has the meaning assigned
to such term in the definition of “Dutch Auction”.
“Applicable Rate”
means, for any day, (a) for Initial Term Loans, (i) in the case of ABR Loans, 3.25% per annum and (ii) in the case of LIBO Rate Loans,
4.25% per annum and (b) for Revolving Loans, the rate per annum set forth below under the caption “ABR Spread” or “LIBO
Rate Spread”, as the case may be, based upon the First Lien Leverage Ratio as of the last day of the most recently ended Test Period;
provided that until the first Adjustment Date following the completion of at least one full Fiscal Quarter ended after the Closing Date,
the “Applicable Rate” for any Revolving Loans shall be the applicable rate per annum set forth below in Category 1.
|
|
|
ABR Spread for
|
|
|
LIBO Rate Spread for
|
|
|
First Lien Leverage Ratio
|
|
Revolving Loans
|
|
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Revolving Loans
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Category 1
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Greater than 3.70 to 1.00
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3.25
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%
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4.25
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%
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Category 2
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Less than or equal to 3.70 to 1.00 and greater than 3.20 to 1.00
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3.00
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%
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4.00
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%
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Category 3
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Less than or equal to 3.20 to 1.00
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2.75
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%
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3.75
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%
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The Applicable Rate for Revolving Loans shall
be adjusted quarterly on a prospective basis on each Adjustment Date based upon the First Lien Leverage Ratio in accordance with the table
above; provided that if financial statements are not delivered when required pursuant to Section 5.01(a) or (b),
as applicable, the “Applicable Rate” for Revolving Loans shall be the rate per annum set forth above in Category 1
until such financial statements are delivered in compliance with Section 5.01(a) or (b), as applicable.
The Applicable Rate for any Class of Additional
Revolving Loans or Additional Term Loans shall be as set forth in the applicable Refinancing Amendment, Incremental Facility Amendment
or Extension Amendment.
“Approved Fund”
means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered, advised or
managed by (a) such Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers, advises
or manages such Lender.
“Arrangers” has the meaning assigned to
such term in the preamble to this Agreement.
“Assignment Agreement”
means, collectively, each Assignment and Assumption and each Affiliated Lender Assignment and Assumption.
“Assignment and Assumption”
means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by
Section 9.05 ), and accepted by the Administrative Agent in the form of Exhibit A-1 or any other form approved by the Administrative
Agent and the Borrower.
“Attributable Debt”
means, at any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet
of such Person (except in the footnotes thereto) prepared in accordance with GAAP, other than (a) Capital Lease Obligations arising as
a result of a modification of the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents to the extent such modification
is not prohibited hereunder (including the iStar Amendments), (b) Capital Lease Obligations arising as a result of the classification
of the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 or any Excluded Property Sale/Leaseback Transaction as a Capital Lease and
(c) Capital Lease Obligations arising as a result of any Excluded Property Sale/Leaseback Transaction. For the avoidance of doubt, this
definition of “Attributable Debt” shall be subject in all respects to the provisions of Section 1.04(c).
“Auction” has the meaning assigned to
such term in the definition of “Dutch Auction”.
“Auction Agent”
means (a) the Administrative Agent or any of its Affiliates or (b) any other financial institution or advisor engaged by the Borrower
(whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Auction pursuant to the definition
of “Dutch Auction”.
“Auction Amount” has the meaning assigned
to such term in the definition of “Dutch Auction”.
“Auction Notice” has the meaning assigned
to such term in the definition of “Dutch Auction”.
“Auction Party” has the meaning set forth
in the definition of “Dutch Auction”.
“Auction Response
Date” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Availability Period”
means the period from and including the Closing Date to but excluding the earliest of (a) the date of termination of the Initial Revolving
Credit Commitments pursuant to Section 2.09, (b) the date of termination of the Initial Revolving Credit Commitment of each Initial Revolving
Lender to make Initial Revolving Loans and the obligation of each Issuing Bank to issue Letters of Credit pursuant to Section 7.01 and
(c) the Initial Revolving Credit Maturity Date.
“Available Amount” means, at any time,
an amount equal to, without duplication:
(i) the
greater of $20,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; plus
(ii) the
CNI Growth Amount (provided that such amount shall not be available for any Restricted Payment pursuant to Section 6.04(a)(iii)(A) or
Restricted Debt Payment pursuant to Section 6.04(b)(vi)(A), in each case, if any Event of Default exists pursuant to Section 7.01(a) or,
with respect to the Borrower, Sections 7.01(f) or (g) at the time of determination pursuant to Section 1.04(e)); plus
(iii) the amount
of any capital contributions or other proceeds of any issuance of Capital Stock (other than any amounts (x) constituting a Cure
Amount or an Available Excluded Contribution Amount or proceeds of an issuance of Disqualified Capital Stock, (y) received from the
Borrower or any Restricted Subsidiary or (z) consisting of the proceeds of any loan or advance made pursuant to Section
6.06(h)(ii)) received as Cash equity by the Borrower or any of its Restricted Subsidiaries, plus the fair market value,
as determined by the Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Borrower
or any Restricted Subsidiary as a capital contribution or in return for any issuance of Capital Stock (other than any amounts (x)
constituting a Cure Amount or an Available Excluded Contribution Amount or proceeds of any issuance of Disqualified Capital Stock or
(y) received from the Borrower or any Restricted Subsidiary), in each case, during the period from and including the day immediately
following the Closing Date through and including such time; plus
(iv) the
aggregate principal amount of any Indebtedness or Disqualified Capital Stock, in each case, of the Borrower or any Restricted Subsidiary
issued after the Closing Date (other than Indebtedness or such Disqualified Capital Stock issued to the Borrower or any Restricted Subsidiary),
which has been converted into or exchanged for Capital Stock of the Borrower, any Restricted Subsidiary or any Parent Company that does
not constitute Disqualified Capital Stock, together with the fair market value of any Cash or Cash Equivalents (as determined by the Borrower
in good faith) and the fair market value (as determined by the Borrower in good faith) of any property or assets received by the Borrower
or such Restricted Subsidiary upon such exchange or conversion, in each case, during the period from and including the day immediately
following the Closing Date through and including such time; plus
(v) the net proceeds
received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately following the Closing
Date through and including such time in connection with the Disposition to any Person (other than the Borrower or any Restricted Subsidiary)
of any Investment made pursuant to Section 6.06(r)(i); plus
(vi) to
the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such
Investment, the proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately
following the Closing Date through and including such time in connection with cash returns, cash profits, cash distributions and similar
cash amounts, including cash principal repayments of loans and interest payments on loans, in each case received in respect of any Investment
made after the Closing Date pursuant to Section 6.06(r)(i) or, without duplication, otherwise received by the Borrower or any Restricted
Subsidiary from an Unrestricted Subsidiary (including any proceeds received on account of any issuance of Capital Stock by any Unrestricted
Subsidiary (other than solely on account of the issuance of Capital Stock to the Borrower or any Restricted Subsidiary)); plus
(vii) an
amount equal to the sum of (A) the amount of any Investments by the Borrower or any Restricted Subsidiary pursuant to Section
6.06(r)(i) in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary, (B) the amount of any
Investments by the Borrower or any Restricted Subsidiary pursuant to Section 6.06(r)(i) in any Unrestricted Subsidiary that
has been merged, consolidated or amalgamated with or into, or is liquidated, wound up or dissolved into, the Borrower or any
Restricted Subsidiary and (C) the fair market value (as determined by the Borrower in good faith) of the property or assets of any
Unrestricted Subsidiary that have been transferred, conveyed or otherwise distributed to the Borrower or any Restricted Subsidiary,
in each case, during the period from and including the day immediately following the Closing Date through and including such time; plus
(viii)
the amount of any Declined Proceeds; minus
(b) an amount equal
to the sum of (i) Restricted Payments made pursuant to Section 6.04(a)(iii)(A), plus (ii) Restricted Debt Payments made
pursuant to Section 6.04(b)(vi)(A), plus (iii) Investments made pursuant to Section 6.06(r)(i), in each case, after
the Closing Date and prior to such time, or contemporaneously therewith.
“Available Excluded
Contribution Amount” means the aggregate amount of Cash or Cash Equivalents or the fair market value of other assets or property
(as determined by the Borrower in good faith, but excluding any Cure Amount and any amounts that are used to increase the Available Amount)
received by the Borrower or any of its Restricted Subsidiaries after the Closing Date from:
(1) contributions
in respect of Qualified Capital Stock (other than any amounts or other assets received from the Borrower or any of its Restricted Subsidiaries),
and
(2) the sale of Qualified Capital
Stock of the Borrower or any of its Restricted Subsidiaries (other than (x) to the Borrower or any Restricted Subsidiary of the
Borrower, (y) pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or (z)
with the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)),
in each case, designated as Available Excluded Contribution Amounts
pursuant to a certificate of a Responsible Officer on or promptly after the date the relevant capital contribution is made or the relevant
proceeds are received, as the case may be, and which are excluded from the calculation of the Available Amount.
“Available RDP Capacity
Amount” means the amount of Restricted Debt Payments that may be made at the time of determination pursuant to Section 6.04(b)(iv)(A)
minus the amount of the Available RDP Capacity Amount utilized by the Borrower or any Restricted Subsidiary to make Investments pursuant
to Section 6.06(q)(ii).
“Available RP
Capacity Amount” means the amount of Restricted Payments that may be made at the time of determination pursuant to Sections
6.04(a)(ii)(D), (a)(vii) and (a)(x) minus the aggregate amount of the Available RP Capacity Amount utilized by the
Borrower or any Restricted Subsidiary to (a) make Investments pursuant to Section 6.06(q)(ii), (b) make Restricted Debt
Payments pursuant to Section 6.04(b)(iv)(B) or (c) incur Indebtedness pursuant to Section 6.01(ll).
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an
EEA Financial Institution.
“Bail-In Legislation”
means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council
of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation
Schedule.
“Banking Services”
means each and any of the following bank services: commercial credit cards, stored value cards, debit cards, purchasing cards, treasury
management services, netting services, overdraft protections, check drawing services, automated payment services (including depository,
overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs,
cash pooling services, foreign exchange and currency management services and any arrangements or services similar to any of the foregoing
and/or otherwise in connection with Cash management and Deposit Accounts.
“Banking Services
Obligations” means any and all obligations of any Loan Party, whether absolute or contingent and however and whenever created,
arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) (a) under any
arrangement that is in effect on the Closing Date between any Loan Party and a counterparty that is (or is an Affiliate of) the Administrative
Agent, any Lender or any Arranger as of the Closing Date or (b) under any arrangement that is entered into after the Closing Date by any
Loan Party with any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger at the time such
arrangement is entered into, in each case, in connection with Banking Services, in each case, that has been designated to the Administrative
Agent in writing by the Borrower as being Banking Services Obligations for purposes of the Loan Documents, it being understood that each
counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan Documents and (B)
to agree to be bound by the provisions of Article 8, Section 9.03 and Section 9.10 and the Intercreditor Agreement
and each other Acceptable Intercreditor Agreement, in each case as if it were a Lender.
“Bankruptcy Code” means Title 11 of the
United States Code (11 U.S.C. § 101 et seq.).
“Board” means the Board of Governors of
the Federal Reserve System of the U.S.
“Bona Fide Debt
Fund” means any debt fund, investment vehicle, regulated bank entity or unregulated lending entity engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business
and which is managed, sponsored or advised by any Person controlling, controlled by or under common control with (a) any competitor
of the Borrower and/or any of its subsidiaries or (b) any Affiliate of such competitor, but, in each case, with respect to which no
personnel involved with any investment in such Person or the management, control or operation of such Person (i) makes, has the
right to make or participates with others in making any investment decisions with respect to such Person or (ii) has access to any
information (other than information that is publicly available) relating to Holdings, the Borrower or its subsidiaries or any entity
that forms a part of any of their respective businesses; it being understood and agreed that the term “Bona Fide Debt
Fund” shall not include any Person that is separately identified to the Arrangers or the Administrative Agent in accordance
with clause (a)(i) or (a)(ii) of the definition of “Disqualified Institution” or any reasonably identifiable Affiliate
of any such Person on the basis of such Affiliate’s name.
“Borrower”
means (a) initially, Merger Sub 2, and after giving effect to the Merger Sub 2 Merger, Kingpin Intermediate (in each case, prior to the
consummation of a transaction described in clause (b) of this definition) and (b) following the consummation of a transaction permitted
hereunder that results in a Successor Borrower, such Successor Borrower.
“Borrowing”
means any Loans of the same Type and Class made, converted or continued on the same date and, in the case of LIBO Rate Loans, as to which
a single Interest Period is in effect.
“Borrowing Request”
means a request by the Borrower for a Borrowing in accordance with Section 2.03 and substantially in the form attached hereto as
Exhibit B or such other form that is reasonably acceptable to the Administrative Agent and the Borrower.
“Bowling Equipment”
means all pin setting machines (pinsetters/pinspotters), ball returns, settees, scoring systems (including front desk systems), lanes,
lane cleaning machines, bumpers, approaches, foul lights, gutters and masking units.
“Business Day”
means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that when used in connection with a LIBO Rate Loan, the term “Business Day” shall also exclude
any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
“Capital Expenditures”
means, as applied to any Person for any period, the aggregate amount, without duplication, of all expenditures (whether paid in cash or
accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases) that in accordance with GAAP,
are, or are required to be included as, capital expenditures on the consolidated statement of cash flows for such Person for such period.
“Capital Lease”
means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP (but subject to Section 1.04(c)), is or should be accounted for as a capital lease on the balance sheet of that Person.
“Capital Lease Obligations”
means, with respect to any Person, the amount of obligations attributable to any Capital Lease capitalized as a liability on the balance
sheet (excluding the footnotes thereto) of such Person in accordance with GAAP.
“Capital
Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and
membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the
foregoing, but excluding for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing.
“Captive Insurance Subsidiary”
means any Restricted Subsidiary of the Borrower that is subject to regulation as an insurance company (or any Restricted Subsidiary thereof).
“Cash” or “cash”
means money, currency or a credit balance in any Deposit Account, in each case determined in accordance with GAAP.
“Cash Equivalents” means, as at any
date of determination, (a) readily marketable securities (i) issued or directly and unconditionally guaranteed or insured as to
interest and principal by the U.S., U.K., Canada or a member state of the European Union or any political subdivision thereof or
(ii) issued by any agency or instrumentality of the U.S., U.K., Canada or a member state of the European Union or any political
subdivision thereof, the obligations of which are backed by the full faith and credit of the U.S., U.K., Canada or a member state of
the European Union or any political subdivision thereof, in each case maturing within two years after such date and, in each case,
including repurchase agreements and reverse repurchase agreements relating thereto; (b) readily marketable direct obligations issued
by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof or by any foreign
government, in each case maturing within two years after such date and having, at the time of the acquisition thereof, a rating of
at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating
such obligations, an equivalent rating from another nationally recognized statistical rating agency) and, in each case, repurchase
agreements and reverse repurchase agreements relating thereto; (c) commercial paper maturing no more than one year from the date of
creation thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from
Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from
another nationally recognized statistical rating agency); (d) deposits, money market deposits, time deposit accounts, certificates
of deposit or bankers’ acceptances (or similar instruments) maturing within one year after such date and issued or accepted by
any Lender or “Lender” in respect of the Second Lien Facility or by any bank organized under, or authorized to operate
as a bank under, the laws of the U.S., any state thereof or the District of Columbia or any political subdivision thereof or any
foreign bank or its branches or agencies and that has capital and surplus of not less than $75,000,000 and, in each case, repurchase
agreements and reverse repurchase agreements relating thereto; (e) securities with maturities of six months or less from the date of
acquisition backed by standby letters of credit issued by any commercial bank having capital and surplus of not less than
$75,000,000; (f) Indebtedness or Preferred Capital Stock issued by Persons with a rating of “BBB-” or higher from
S&P or “Baa3” or higher from Moody’s (or, if at the time, neither is issuing comparable ratings, then a
comparable rating of another nationally recognized statistical rating organization) with maturities of 12 months or less from the
date of acquisition; (g) bills of exchange issued in the U.S., U.K., Canada, a member state of the European Union or Japan eligible
for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent); (h) solely with respect to
any Captive Insurance Subsidiary, any investment that such Captive Insurance Subsidiary is not prohibited to make in accordance with
applicable law; and (i) shares or other interests of any investment company, money market mutual fund or other money market or
enhanced high yield fund that invests 95% or more of its assets in instruments of the types specified in clauses (a) through (h)
above (which investment company or fund may also hold Cash pending investment or distribution).
The term “Cash
Equivalents” shall also include (x) foreign currencies (in addition to Canadian dollars, Euros, Pound Sterling, Mexican Pesos,
any national currency of any member state of the European Union and any other currency held by the Borrower or any Restricted
Subsidiary in the ordinary course of business); provided that such amounts, if received by the Borrower or any Restricted
Subsidiary, are converted into Dollars, Canadian dollars, Euros, Pound Sterling, Mexican Pesos, any national currency of any member
state of the European Union or any other currency held by the Borrower or any Restricted Subsidiary in the ordinary course of
business as promptly as practicable (and in any event within ten Business Days following receipt thereof), (y) Investments of the
type and maturity described in clauses (a) through (i) above of foreign obligors, which Investments or obligors (or
the parent companies thereof) have the ratings described in such clauses or equivalent ratings from comparable foreign rating
agencies and (z) other short-term Investments utilized by Foreign Subsidiaries in accordance with normal investment practices for
cash management in Investments analogous to the Investments described in clauses (a) through (i) and in this
paragraph.
“Change in Law” means (a) the
adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender or any
Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or such Issuing Bank or by such
Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after the Closing Date (other than any such request, guideline or
directive to comply with any law, rule or regulation that was in effect on the Closing Date). For purposes of this definition and Section
2.15, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and
directives thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines,
requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any
successor or similar authority) or U.S. regulatory authorities, in each case pursuant to Basel III, shall in each case described in clauses
(a), (b) and (c) above, be deemed to be a Change in Law, regardless of the date enacted, adopted, issued or
implemented.
“Change of Control” means the earliest
to occur of:
(a) at
any time prior to a Qualifying IPO, the Permitted Holders ceasing to beneficially own, either directly or indirectly (within the meaning
of Rule 13d-3 and Rule 13d-5 under the Exchange Act as in effect on the Closing Date), Capital Stock representing more than 50% of the
total voting power of all of the outstanding voting Capital Stock of Holdings;
(b) at
any time on or after a Qualifying IPO, the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2)
of the Exchange Act as in effect on the Closing Date), including any group acting for the purpose of acquiring, holding or disposing of
Securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act as in effect on the Closing Date), but excluding (i) any Employee
Benefit Plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) one or more Permitted Holders
and (iii) any underwriter in connection with any Qualifying IPO, of Capital Stock of Holdings representing more than the greater of (x)
35% of the total voting power of all of the outstanding voting Capital Stock of Holdings and (y) the percentage of the total voting power
of all of the outstanding voting Capital Stock of Holdings collectively owned, directly or indirectly, beneficially by the Permitted Holders;
and
(c) the
Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of Holdings (other than during the pendency of any Holdings Reorganization
Transaction or Permitted Reorganization); it being understood and agreed for the avoidance of doubt that the Mergers shall not trigger
a “Change of Control” for any purpose under this Agreement or any other Loan Document.
Notwithstanding the
preceding or any provision of Section 13d-3 of the Exchange Act as in effect on the Closing Date, (i) a Person or group shall not be
deemed to beneficially own Capital Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant
agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition
of the Capital Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more
Permitted Holders, the issued and outstanding Capital Stock of Holdings owned, directly or indirectly, by any Permitted Holders that
are part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes
of determining whether a Change of Control has occurred so long as one or more Permitted Holders hold in excess of 50% of the issued
and outstanding Capital Stock owned, directly or indirectly, by such group and (iii) a Person or group will not be deemed to
beneficially own the Capital Stock of another Person as a result of its ownership of the Capital Stock or other securities of such
other Person’s parent entity (or related contractual rights) unless (A) it owns 50% or more of the total voting power of the
Capital Stock entitled to vote for the election of directors or board of managers of such parent entity and (B) such directors or
managers elected by the Person or group have a majority of the aggregate votes on the board of directors (or similar body) of such
parent entity.
“Charge” means any fee, loss, charge,
expense, cost, accrual or reserve of any kind.
“Class”,
when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial
Term Loans, Additional Term Loans of any series established as a separate “Class” pursuant to Sections 2.22, 2.23
or 9.02(c)(i), Initial Revolving Loans or Additional Revolving Loans of any series established as a separate “Class”
pursuant to Sections 2.22, 2.23 or 9.02(c)(ii) or Swingline Loans, (b) any Commitment, refers to whether such Commitment
is an Initial Term Loan Commitment, an Additional Term Loan Commitment of any series established as a separate “Class” pursuant
to Sections 2.22, 2.23 or 9.02(c)(i), an Initial Revolving Credit Commitment or an Additional Revolving Credit Commitment
of any series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(ii), (c) any
Lender, refers to whether such Lender has a Loan or Commitment of a particular Class and (d) any Revolving Credit Exposure, refers to
whether such Revolving Credit Exposure is attributable to a Revolving Credit Commitment of a particular Class (or Revolving Loans incurred
or Letters of Credit issued under a Revolving Credit Commitment of a particular Class).
“Closing Date”
means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
“Closing Date Material
Adverse Effect” shall have the meaning assigned to the term “Company Material Adverse Effect” in the Acquisition
Agreement as in effect on the Closing Date (it being understood that capitalized terms used in such definition and defined in the Acquisition
Agreement shall have the meanings ascribed to such terms in the Acquisition Agreement as in effect on the Closing Date).
“CNI Growth Amount” means, at any date of determination, an amount (which amount shall not be less than zero) equal to 50% of Consolidated Net Income
for the cumulative period from the first day of the Fiscal Quarter of the Borrower during which the Closing Date occurs to and including
the last day of the most recently ended Fiscal Quarter of the Borrower prior to such date for which consolidated financial statements
of the Borrower are internally available (treated as one accounting period).
“Code” means the Internal Revenue Code
of 1986.
“Collateral”
means any and all property of any Loan Party subject to a Lien under any Collateral Document and any and all other property of any
Loan Party, now existing or hereafter acquired, that is or becomes subject to a Lien pursuant to any Collateral Document to secure
the Secured Obligations. For the avoidance of doubt, in no event shall “Collateral” include any Excluded Asset.
“Collateral and Guarantee
Requirement” means, at any time, subject to (x) the applicable limitations set forth in this Agreement and/or any other Loan
Document (including any Acceptable Intercreditor Agreement) and (y) the time periods (and extensions thereof) set forth in Section
5.12, the requirement that:
(a)
the Administrative Agent shall have received;
(i) (A) a joinder
to the Loan Guaranty in substantially the form attached as an exhibit thereto, (B) a supplement to the Security Agreement in substantially
the form attached as an exhibit thereto, (C) if the respective Restricted Subsidiary required to comply with the requirements set forth
in this definition pursuant to Section 5.12 owns registrations of or applications for U.S. Patents, U.S. Trademarks and/or U.S.
Copyrights that constitute Collateral, an Intellectual Property Security Agreement in substantially the form attached as an exhibit hereto,
(D) a completed Perfection Certificate, (E) Uniform Commercial Code financing statements in appropriate form for filing in such jurisdictions
as the Administrative Agent may reasonably request and (F) an executed joinder to the Intercreditor Agreement in substantially the form
attached as an exhibit thereto; and
(ii) each
item of Collateral required to be delivered in physical form on or prior to such time pursuant to the Collateral Documents.
(b) the
Administrative Agent shall have received with respect to any Material Real Estate Asset (other than an Excluded Asset) acquired after
the Closing Date, a Mortgage and any necessary UCC fixture filing in respect thereof, in each case together with, to the extent customary
and appropriate (as reasonably determined by the Administrative Agent and the Borrower):
(i) evidence
that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any corresponding UCC
or equivalent fixture filing are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent
may deem reasonably necessary in order to create a valid and subsisting Lien on such Material Real Estate Asset in favor of the Administrative
Agent for the benefit of the Secured Parties, (B) such Mortgage and any corresponding UCC or equivalent fixture filings have been duly
recorded or filed, as applicable and (C) all filing and recording taxes and fees have been paid or otherwise provided for in a manner
reasonably satisfactory to the Administrative Agent;
(ii) a
fully paid policy of lender’s title insurance (a “Mortgage Policy”) in an amount reasonably acceptable to the
Administrative Agent (not to exceed the fair market value of such Material Real Estate Asset (as determined by the Borrower in good faith))
issued by a nationally recognized title insurance company in the applicable jurisdiction that is reasonably acceptable to the Administrative
Agent, insuring the relevant Mortgage as having created a valid subsisting Lien on the real property described therein with the ranking
or the priority which it is expressed to have in such Mortgage, subject only to Permitted Liens, together with such endorsements, coinsurance
and reinsurance as the Administrative Agent may reasonably request to the extent the same are available in the applicable jurisdiction;
(iii) a
customary legal opinion of local counsel for the relevant Loan Party in the jurisdiction in which such Material Real Estate Asset is located
and, if applicable, in the jurisdiction of formation of the relevant Loan Party, in each case as the Administrative Agent may reasonably
request; and
(iv) (A)
appraisals (if required under the Financial Institutions Reform Recovery and Enforcement Act of 1989, as amended) and (B) “Life-of-Loan”
flood certifications under Regulation H (together with evidence of federal flood insurance for any such Flood Hazard Property); provided
that the Administrative Agent may in its reasonable discretion accept any existing appraisal so long as such existing appraisal satisfies
any applicable local law requirements and sufficient for the applicable title insurance company to issue the endorsements referenced in
clause (ii) above.
Notwithstanding any provision
of any Loan Document to the contrary, if any mortgage tax or similar tax or charge is owed on the entire amount of the Obligations evidenced
hereby in connection with the delivery of a mortgage or UCC fixture filing pursuant to clause (b) above, then, to the extent permitted
by, and in accordance with, applicable Requirements of Law, the amount of such mortgage tax or similar tax or charge shall be calculated
based on the lesser of (x) the amount of the Obligations allocated to the applicable Material Real Estate Asset and (y) the fair market
value of the applicable Material Real Estate Asset at the time the Mortgage is entered into and determined in a manner reasonably acceptable
to Administrative Agent and the Borrower. Notwithstanding anything herein to the contrary, no Mortgage will be executed and delivered
with respect to any Material Real Estate Asset pursuant to the foregoing until the Administrative Agent has received written notice of
such Mortgage at least 45 days prior to such execution and delivery and has confirmed receipt of satisfactory flood due diligence and
evidence of compliance with the applicable Flood Insurance Laws.
“Collateral Documents”
means, collectively, (i) the Security Agreement, (ii) each Mortgage (if any), (iii) each Intellectual Property Security Agreement, (iv)
each Perfection Certificate, (v) any supplement to any of the foregoing delivered to the Administrative Agent pursuant to the definition
of “Collateral and Guarantee Requirement” and (vi) each of the other instruments and documents pursuant to which any Loan
Party grants a Lien on any assets as security for payment of the Secured Obligations.
“Commercial Letter
of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection with the
purchase of any materials, goods or services by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business
of such Person.
“Commercial Tort Claim” has the meaning
set forth in Article 9 of the UCC.
“Commitment”
means, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Initial Revolving Credit Commitment and
Additional Commitment, as applicable, in effect as of such time.
“Commitment Fee
Rate” means, on any date (a) with respect to the Initial Revolving Credit Commitment, subject to the provisions of the last
paragraph hereof, the applicable rate per annum set forth below based upon the First Lien Leverage Ratio as of the last day of the most
recently ended Test Period and (b) with respect to Additional Revolving Credit Commitments of any Class, the rate or rates per annum
specified in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment.
|
First Lien Leverage Ratio
|
|
Commitment Fee Rate
|
|
|
|
|
|
|
|
Category 1
|
|
|
|
|
Greater than 3.70 to 1.00
|
|
|
0.50
|
%
|
|
|
|
|
|
|
|
Category 2
|
|
|
|
|
|
Equal to or less than 3.70 to 1.00 but greater than 3.20 to 1.00
|
|
|
0.375
|
%
|
|
|
|
|
|
|
|
Category 3
|
|
|
|
|
Equal to or less than 3.20 to 1.00
|
|
|
0.25
|
%
|
The Commitment Fee Rate with respect to the
Initial Revolving Credit Commitment shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the First Lien
Leverage Ratio in accordance with the table set forth above; provided that (a) until the first Adjustment Date following the completion
of at least one full Fiscal Quarter after the Closing Date, the Commitment Fee Rate shall be the applicable rate per annum set forth
above in Category 1 and (b) if financial statements are not delivered when required pursuant to Section 5.01(a) or (b),
as applicable, the Commitment Fee Rate shall be the rate per annum set forth above in Category 1 until such financial statements are
delivered in compliance with Section 5.01(a) or (b), as applicable.
“Commitment Letter”
means that certain Amended and Restated Commitment Letter, dated as of June 15, 2017, by and among, inter alios, Parent and the
Arrangers, as amended to date.
“Commitment Schedule” means the Schedule
attached hereto as Schedule 1.01(a).
“Commodity Exchange Act” means the Commodity
Exchange Act (7 U.S.C. § 1 et seq.).
“Company Competitor”
means any competitor of the Borrower and/or any of its subsidiaries and/or the Target and/or any of its subsidiaries.
“Compliance Certificate”
means a Compliance Certificate substantially in the form of Exhibit C.
“Confidential Information” has the meaning
assigned to such term in Section 9.13.
“Consolidated
Adjusted EBITDA” means, as to any Person for any period, an amount determined for such Person and its Restricted Subsidiaries
on a consolidated basis equal to the total of (a) Consolidated Net Income for such period plus (b) the sum, without duplication,
of (to the extent deducted in calculating Consolidated Net Income, other than in respect of clauses (x), (xi), (xii),
(xiv), (xix), (xx), (xxi) and (xxii) below) the amounts of:
(i) Consolidated
Interest Expense (including (A) fees and expenses paid to the Administrative Agent in connection with its services hereunder, (B) other
bank, administrative agency (or trustee) and financing fees (including rating agency fees and other fees in respect of any Second Lien
Facility), (C) costs of surety bonds in connection with financing activities (whether amortized or immediately expensed) and (D) commissions,
discounts and other fees and charges owed with respect to revolving commitments, letters of credit, bank guarantees, bankers’ acceptances
or any similar facilities or financing and hedging agreements);
(ii) (A)
Taxes paid and any provision for Taxes, including income, profits, capital, foreign, federal, state, local, franchise and similar Taxes,
property Taxes, foreign withholding Taxes and foreign unreimbursed value added Taxes (including penalties and interest related to any
such Tax or arising from any Tax examination, and including pursuant to any Tax sharing arrangement or as a result of any Tax distribution)
of such Person paid or accrued during the relevant period and (B) any payments to a Parent Company in respect of Taxes permitted to be
made hereunder;
(iii) (A)
depreciation, (B) amortization, (C) any impairment Charge (including any bad debt expense) and (D) any asset write-off and/or write-down;
(iv) any
non-cash Charge, including the excess of rent expense over actual Cash rent paid, including the benefit of lease incentives (in the case
of a charge) during such period due to the use of straight line rent for GAAP purposes (provided that if any such non-Cash Charge
represents an accrual or reserve for potential Cash items in any future period, such Person may determine not to add back such non-Cash
Charge in the then-current period);
(v) [reserved];
(vi) Receivables
Fees and the amount of loss or discount on the sale of Receivables Facility Assets and related assets to a Receivables Subsidiary in connection
with a Receivables Facility;
(vii) the
amount of management, monitoring, consulting, transaction, advisory, termination and similar fees and related indemnities and expenses
(including reimbursements), paid or accrued and payments made to any Investor (and/or its Affiliates or management companies) (or prior
to the Closing Date, the Existing Sponsor and/or its Affiliates or management companies) for any financial advisory, consulting, financing,
underwriting or placement services or in respect of other investment banking activities and other transaction fees, and payments to outside
directors of the Borrower or a Parent Company actually paid by or on behalf of, or accrued by, such Person or any of its subsidiaries;
provided that such payment is permitted under this Agreement;
(viii) [reserved];
(ix) the
amount of earn-out and other contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise)
incurred in connection with (A) the Transactions, (B) acquisitions and Investments completed prior to the Closing Date and (C) any acquisition
or other Investment permitted by this Agreement, in each case, which is paid or accrued during the applicable period;
(x) pro forma
“run rate” cost savings, operating expense reductions, operational improvements and cost synergies (collectively,
“Expected Cost Savings”) (net of actual amounts realized) (1) that are reasonably identifiable, factually
supportable and projected by the Borrower in good faith to result from actions that have been taken or with respect to which
substantial steps have been taken or are expected to be taken (in the good faith determination of such Person) or (2) that have been
identified to the Administrative Agent prior to the Closing Date (including by inclusion in the Acquisition Agreement or the
Sponsor’s model and quality of earnings summaries delivered to the Arrangers on or about June 4, 2017 (in the case of the
model) and May 18, 2017 (in the case of the quality of earnings summary) related to (A) the Transactions and (B) any permitted asset
sale, acquisition (including the commencement of activities constituting a business line), combination, Investment, Disposition
(including the termination or discontinuance of activities constituting a business line), operating improvement, restructuring, cost
savings initiative, any similar initiative (including the effect of increased pricing in customer contracts) and/or specified
transaction, in each case prior to, on or after the Closing Date (any such operating improvement, restructuring, cost savings
initiative or similar initiative or specified transaction, a “Cost Saving Initiative”) (in each case, calculated
on a Pro Forma Basis as though such Expected Cost Savings and/or Cost Savings Initiative had been realized in full on the first day
of such period); provided, that the results of such Expected Cost Savings and/or Cost Saving Initiatives are projected by the
Borrower in good faith to result from actions that have been taken or with respect to which steps have been taken or are expected to
be taken (in the good faith determination of the Borrower) within 24 months after (i) with respect to the Transactions, the Closing
Date and (ii) with respect to any Cost Savings Initiative, the date of any such operating improvement, restructuring, cost savings
initiative or similar initiative or specified transaction;
(xi) Charges
attributable to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings initiatives (including
Cost Saving Initiatives), cost rationalization programs, operating expense reductions and/or synergies and/or similar initiatives and/or
programs (including in connection with any integration, restructuring or transition, any reconstruction, decommissioning, recommissioning
or reconfiguration of fixed assets for alternative uses, any office or facility opening and/or pre-opening), including the following:
any inventory optimization program and/or any curtailment, any business optimization Charge, any restructuring Charge (including any Charge
relating to any tax restructuring), any Charge relating to the closure or consolidation of any office or facility (including but not limited
to rent termination costs, moving costs and legal costs), any systems implementation Charge, any severance Charge, any one time compensation
Charge, any Charge relating to entry into a new market, any Charge relating to rights fee arrangements (including any early terminations
thereof), any Charge relating to any strategic initiative or contract, any signing Charge, any Charge relating to any entry into new markets
and contracts (including, without limitation, any renewals, extensions or other modifications thereof) or exiting a market or contract,
any retention or completion Charge or bonus, any recruiting Charge, any lease run-off Charge, any expansion and/or relocation Charge,
any Charge associated with any modification or curtailment to any pension and post-retirement employee benefit plan, any software or other
intellectual property development Charge, any Charge associated with new systems design, any implementation Charge, any transition Charge,
any Charge associated with improvements to IT or accounting functions, losses related to temporary decreases in work volume and expenses
related to maintaining underutilized personnel, any transition Charge, any Charge in connection with unused warehouse space, any Charge
relating to a new contract, any consulting Charge and/or any corporate development Charge; provided, that, in the case of any such Charge,
the results of any such action relating to such Charge are projected by the Borrower in good faith to be achieved within 24 months of
the undertaking thereof;
(xii) any
Charge with respect to any liability or casualty event, business interruption or any product recall, (i) so long as such Person has
submitted in good faith, and reasonably expects to receive payment in connection with, a claim for reimbursement of such amounts
under its relevant insurance policy within the next four Fiscal Quarters (with a deduction in the applicable future period for any
amount so added back to the extent not so reimbursed within the next four Fiscal Quarters) or (ii) without duplication of amounts
included in a prior period under the preceding clause (i), to the extent such Charge is covered by insurance, indemnification
or otherwise reimbursable by a third party (whether or not then realized so long as the Borrower in good faith expects to receive
proceeds arising out of such indemnification, insurance or reimbursement obligation within the next four Fiscal Quarters) (it being
understood that if the amount received in cash under any such agreement in any period exceeds the amount of expense paid during such
period, any excess amount received may be carried forward and applied against any expense in any future period);
(xiii) unrealized
net losses in the fair market value of any arrangements under Hedge Agreements;
(xiv) the
amount of any Cash actually received by such Person (or the amount of the benefit of any netting arrangement resulting in reduced Cash
expenditures) during such period, and not included in Consolidated Net Income in any period, to the extent that any non-Cash gain relating
to such Cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA pursuant to clause (c)(i)
below for any previous period and not added back;
(xv) the
amount of any “bad debt” expense related to revenue earned prior to the Closing Date;
(xvi) any
net Charges included in the Borrower’s consolidated financial statements due to the application of Accounting Standards Codification
Topic 810 (“ASC 810”);
(xvii) the
amount of any non-controlling interest or minority interest Charge consisting of income attributable to minority equity interests of third
parties in any non-wholly owned Restricted Subsidiary;
(xviii) the
amount of any Charges (including facility operating losses) related to any de novo facility or any facility renovation, including any
construction, pre-opening/re-opening and start-up period prior to opening (or re-opening, as applicable), until such facility has been
open (or renovated) and operating for a period of 18 consecutive months;
(xix) the
amount of any earned or billed amounts or other revenue that is attributable to services performed during such period but is not included
in Consolidated Net Income for such period; it being understood that if such revenue is added back in calculating Consolidated Adjusted
EBITDA for such period, such revenue shall not be included in Consolidated Net Income in the period in which it is actually recognized;
(xx) any
other adjustments, exclusions and add-backs (x) reflected in the Sponsor’s model and quality of earnings summaries delivered to
the Arrangers on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality of earnings summary) or
(y) that are consistent with Regulation S-X;
(xxi) for the
first 18 months following the opening of a de novo facility, an amount annualized over the applicable period based on the greater of
(x) actual Consolidated Adjusted EBITDA attributable to such de novo facility for each month such de novo facility has been in
operation and (y) the 12-month average Consolidated Adjusted EBITDA for all similar facilities that have been in operation for a
period of at least 18 months (as determined by the Borrower in good faith); provided that the aggregate amount added-back to
Consolidated Adjusted EBITDA solely pursuant to this clause (xxi) and clause (xxii) below (on an aggregate basis) shall not, for any
period, exceed an amount equal to 15% of Consolidated Adjusted EBITDA for such period, calculated prior to giving effect to such
add-backs; and
(xxii) for
the first 18 months following the renovation of a facility, an amount annualized over the applicable period based on the greater of (x)
actual Consolidated Adjusted EBITDA attributable to performance gains for such facility for each month such facility has been in operation
post-renovation and (y) the 12-month average Consolidated Adjusted EBITDA attributable to performance gains for all similar facilities
that have been in operation for a period of at least 18 months (as determined by the Borrower in good faith); provided that the
aggregate amount added-back to Consolidated Adjusted EBITDA solely pursuant to clause (xxi) above and this clause (xxii) (on an aggregate
basis) shall not, for any period, exceed an amount equal to 15% of Consolidated Adjusted EBITDA for such period, calculated prior to giving
effect to such add-backs;
minus (c) to the extent such amounts increase Consolidated Net
Income:
(i) non-Cash
gains or income; provided that if any non-Cash gain or income represents an accrual or deferred income in respect of potential
Cash items in any future period, such Person may determine not to deduct such non-Cash gain or income in the current period;
(ii) unrealized
net gains in the fair market value of any arrangements under Hedge Agreements;
(iii) [reserved];
(iv) the
amount added back to Consolidated Adjusted EBITDA pursuant to clause (b)(xii) above (as described in such clause) to the extent
the relevant business interruption insurance proceeds were not received within the time period required by such clause;
(v) to
the extent that such Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause (b)(iv)
above, the cash payment in respect thereof in the relevant future period;
(vi) the
excess of actual Cash rent paid over rent expense during such period due to the use of straight line rent for GAAP purposes;
(vii) any
Consolidated Net Income included in the Borrower’s consolidated financial statements due to the application of ASC 810; and
(viii) the
amount of any non-controlling interest or minority interest gains from income attributable to minority equity interests of third parties
in any non-wholly owned Restricted Subsidiary;
(d) increased
or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards Codification
Topic 460 or any comparable regulation.
Notwithstanding anything to
the contrary herein, it is agreed that for the purpose of calculating the Total Leverage Ratio, the First Lien Leverage Ratio, the Interest
Coverage Ratio and the Secured Leverage Ratio and/or the amount of any basket based on a percentage of Consolidated Adjusted EBITDA for
any period that includes the Fiscal Quarters ended July 3, 2016, October 2, 2016, January 1, 2017 and April 2, 2017, Consolidated Adjusted
EBITDA for such Fiscal Quarters shall be deemed to be $15,194,992, $34,765,574, $9,482,738 and $58,534,750 (which amounts are agreed not
to include adjustments pursuant to clauses (b)(x), (b)(xx), (b)(xxi) and (b)(xxii) above), respectively, in each case, as adjusted (i)
on a Pro Forma Basis, as applicable and (ii) pursuant to clauses (b)(x), (b)(xx), (b)(xxi) and (b)(xxii) above, as applicable for each
Test Period.
“Consolidated First
Lien Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt outstanding
on such date that is secured by a first priority Lien on any asset or property of such Person or its Restricted Subsidiaries that constitutes
Collateral.
“Consolidated Interest Expense”
means, with respect to any Person for any period, the sum of (a) consolidated total interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including (without duplication),
amortization of any debt issuance cost and/or original issue discount, any premium paid to obtain payment, financial assurance or
similar bonds, any interest capitalized during construction, any non-cash interest payment, the interest component of any deferred
payment obligation, commissions, discounts, yield and other fees and charges (including any interest expense) related to any
Qualified Receivables Facility, the interest component of any payment under any Capital Lease (regardless of whether accounted for
as interest expense under GAAP), any commission, discount and/or other fee or charge owed with respect to any letter of credit, bank
guarantee and/or bankers’ acceptance or any similar facilities, any fee and/or expense paid to the Administrative Agent in
connection with its services hereunder, any other bank, administrative agency (or trustee) and/or financing fee and any cost
associated with any surety bond in connection with financing activities (whether amortized or immediately expensed)), plus
(b) any cash dividend paid or payable in respect of Disqualified Capital Stock during such period other than to such Person or any
Loan Party, plus (c) any net losses, obligations or payments arising from or under any Hedge Agreement and/or other
derivative financial instrument issued by such Person for the benefit of such Person or its subsidiaries, in each case determined on
a consolidated basis for such period. For purposes of this definition, interest in respect of any Capital Lease shall be deemed to
accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capital Lease in
accordance with GAAP.
“Consolidated Net
Income” means, as to any Person (the “Subject Person”) for any period, the net income (or loss) of the Subject
Person and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity
with GAAP; provided that there shall be excluded, without duplication,
(a) (i) any
net income (loss) of any Person if such Person is not the Borrower or a Restricted Subsidiary, except that Consolidated Net Income
will be increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalent (or converted into
Cash or Cash Equivalents) by such Person to the Borrower or any other Restricted Subsidiary (subject, in the case of any such
Restricted Subsidiary that is not a Loan Party, to the limitations contained in clause (ii) below) and (ii) solely for the purpose
of determining the amount available for Restricted Payments under Section 6.04(a)(iii)(A) or the amount of Excess Cash Flow,
any net income (loss) of any Restricted Subsidiary (other than a Loan Party) if such Restricted Subsidiary is subject to
restrictions on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to
the Borrower or a Loan Party by operation of its organizational documents or any agreement, instrument, judgment, decree, order,
statute or governmental rule or regulation applicable thereto (other than (x) any restriction that has been waived or otherwise
released and (y) any restriction set forth in the Loan Documents, the documents related to any Incremental Equivalent Debt, the
documents relating to any Second Lien Facility and the documents relating to any Replacement Debt or Refinancing Indebtedness in
respect of any of the foregoing), except that Consolidated Net Income will be increased by the amount of dividends, distributions or
other payments made in Cash or Cash Equivalents (or converted into Cash or Cash Equivalents) by the Restricted Subsidiary (subject,
in the case of a dividend, distribution or other payment to another Restricted Subsidiary, to the limitations in this clause
(ii));
(b) any
gain or Charge attributable to any asset Disposition (including asset retirement costs or sales or issuances of Capital Stock) or of returned
or surplus assets, in each case, outside the ordinary course of business (as determined in good faith by such Person);
(c) (i)
any gain or Charge from (A) any extraordinary item (as determined in good faith by such Person) and/or (B) any non-recurring or unusual
item (as determined in good faith by such Person) and/or (ii) any Charge associated with and/or payment of any legal settlement, fine,
judgment or order;
(d) (i)
any unrealized or realized net foreign currency translation or transaction gains or Charges impacting net income (including currency re-measurements
of Indebtedness, any net gains or Charges resulting from Hedge Agreements for currency exchange risk associated with the above or any
other currency related risk, any gains or Charges relating to translation of asset and liabilities denominated in a foreign currency and
those resulting from intercompany Indebtedness), (ii) any realized or unrealized gain or Charge in respect of (x) any obligation under
any Hedge Agreement as determined in accordance with GAAP and/or (y) any other derivative instrument pursuant to, in the case of this
clause (y), Financial Accounting Standards Board’s Accounting Standards Codification No. 815-Derivatives and Hedging and
(iii) unrealized gains or losses in respect of any Hedge Agreement and any ineffectiveness recognized in earnings related to qualifying
hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions,
in respect of Hedge Agreements;
(e) any
net gain or Charge with respect to (i) any disposed, abandoned, divested and/or discontinued asset, property or operation (other than,
at the option of the Borrower, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination thereof),
(ii) any disposal, abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the option of the
Borrower, relating to assets or properties held for sale or pending the divestiture or discontinuation thereof) and/or (iii) any facility
that has been closed during such period;
(f) any
net income or Charge (less all fees and expenses related thereto) attributable to (i) the early extinguishment or cancellation of Indebtedness
or (ii) any Derivative Transaction;
(g) (i) any
Charge incurred as a result of, in connection with or pursuant to (or incurred by a Parent Company to the extent permitted to be
paid by the Borrower hereunder) any management equity plan, profits interest or stock option plan or any other management or
employee benefit plan or agreement, pension plan (including a non-cash deemed finance Charge), any stock subscription or
shareholders agreement or any distributor equity plan or any similar equity plan or agreement (including any deferred compensation
arrangement or trust), (ii) any Charge incurred in connection with the rollover, acceleration or payout of Capital Stock held by
management of any Parent Company, the Borrower and/or any of its subsidiaries, in each case under this clause (ii), to the
extent that any such cash Charge is funded with net Cash proceeds contributed to the Subject Person as a capital contribution or as
a result of the sale or issuance of Capital Stock (other than Disqualified Capital Stock) of the Subject Person and (iii) the amount
of payments made to optionholders of such Person or any Parent Company in connection with, or as a result of, any distribution being
made to equityholders of such Person or its Parent Companies, which payments are being made to compensate such optionholders as
though they were equityholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted
hereunder;
(h) any
Charge that is established, adjusted and/or incurred, as applicable, (i) within 12 months after the Closing Date that is required to be
established, adjusted or incurred, as applicable, as a result of the Transactions in accordance with GAAP, (ii) within 12 months after
the closing of any other acquisition that is required to be established, adjusted or incurred, as applicable, as a result of such acquisition
in accordance with GAAP or (iii) as a result of any change in, or the adoption or modification of, accounting principles or policies;
(i) any
(A) write-off or amortization made in such period of deferred financing costs and premiums paid or other expenses incurred directly in
connection with any early extinguishment of Indebtedness, (B) goodwill or other asset impairment charges, write-offs or write-downs and
(C) amortization of intangible assets (including amortization of goodwill, software, deferred or capitalized financing fees, debt issuance
costs, commissions and expenses and other intangible assets);
(j) (A)
the effects of adjustments (including the effects of such adjustments pushed down to the Subject Person and its subsidiaries) in component
amounts required or permitted by GAAP (including, without limitation, in the inventory, property and equipment, lease, rights fee arrangements,
software, goodwill, intangible asset, in-process research and development, deferred revenue, advanced billing and debt line items thereof),
resulting from the application of recapitalization accounting or acquisition accounting, as the case may be, in relation to the Transactions
or any consummated acquisition or similar Investment or the amortization or write-off of any amounts thereof (including any write-off
of in process research and development) and/or (B) the cumulative effect of any change in accounting principles or policies (effected
by way of either a cumulative effect adjustment or as a retroactive application, in each case, in accordance with GAAP) (except that,
if the Borrower determines in good faith that the cumulative effects thereof are not material to the interests of the Lenders, the effects
of any change in any such principles or policies may be included in any subsequent period after the Fiscal Quarter in which such change,
adoption or modification was made);
(k) the
income or loss of any Person accrued prior to the date on which such Person became a Restricted Subsidiary of such Subject Person or is
merged into or consolidated with such Subject Person or any Restricted Subsidiary of such Subject Person or the date that such other Person’s
assets are acquired by such Subject Person or any Restricted Subsidiary of such Subject Person (except to the extent required for any
calculation of Consolidated Adjusted EBITDA on a Pro Forma Basis in accordance with Section 1.04);
(l) any
deferred Tax expense associated with any tax deduction or net operating loss arising as a result of the Transactions, or the release of
any valuation allowance related to any such item;
(m) [reserved];
(n) earn-out,
non-compete and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments thereof
and purchase price adjustments, including in respect of any acquisition consummated prior to the Closing Date;
(o) [reserved];
(p) (A)
Transaction Costs, (B) any Charges incurred (1) in connection with any transaction (in each case, regardless of whether consummated),
whether or not permitted under this Agreement, including any issuance and/or incurrence of Indebtedness and/or any issuance and/or offering
of Capital Stock (including, in each case, by any Parent Company), any Investment, any acquisition, any Disposition, any recapitalization,
any merger, consolidation or amalgamation, becoming a standalone company, any option buyout or any repayment, redemption, refinancing,
amendment or modification of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums
and prepayment penalties) or any similar transaction, and/or (2) in connection with any Qualifying IPO (whether or not consummated), (C)
the amount of any Charges that are actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions
or similar agreements or insurance (it being understood that if the amount received in cash under any such agreement in any period exceeds
the amount of expense paid during such period, any excess amount received may be carried forward and applied against any expense in any
future period); provided that in respect of any reimbursable Charge that is added back in reliance on clause (C) above,
such relevant Person in good faith expects to receive reimbursement for such Charge within the next four Fiscal Quarters (with a deduction
in the applicable future period for any amount so added back to the extent not so reimbursed within the next four Fiscal Quarters) and/or
(D) Public Company Costs;
(q) non-cash
Charges incurred or accrued in connection with any single or one-time event (as determined in good faith by such Person), including in
connection with (A) the Transactions and/or any acquisition consummated after the Closing Date (including legal, accounting and other
professional fees and expenses incurred in connection with acquisitions and other Investments made prior to the Closing Date), (B) the
closing, consolidation or reconfiguration of any facility during such period or (C) one-time consulting costs;
(r) non-cash
compensation Charges and/or any other non-cash Charges arising from the granting of any stock, stock option or similar arrangement (including
any profits interest), the granting of any restricted stock, stock appreciation right and/or similar arrangement (including any repricing,
amendment, modification, substitution or change of any such stock option, restricted stock, stock appreciation right, profits interest
or similar arrangement or the vesting of any warrant); and
(s) to
the extent such amount would otherwise increase Consolidated Net Income, Taxes paid (including pursuant to any Tax sharing arrangement)
in cash (including, to the extent paid in cash, Taxes arising out of any tax examination) and (B) Tax distributions made in cash during
such period.
In addition, to the
extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, Consolidated Net Income will
include the proceeds of business interruption insurance in an amount representing the earnings for the applicable period that such proceeds
are intended to replace (whether or not received so long as the Borrower in good faith expects to receive such proceeds within the next
four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent not so received within
the next four Fiscal Quarters)).
“Consolidated
Secured Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt
outstanding on such date that is secured by a Lien on any asset or property of such Person or its Restricted Subsidiaries that constitutes
Collateral.
“Consolidated
Total Assets” means, as to any Person, at any date, all amounts that would, in conformity with GAAP, be set forth opposite the
caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person at such date.
“Consolidated Total
Debt” means, as to any Person at any date of determination, the aggregate principal amount of all third party debt for borrowed
money (including LC Disbursements that have not been reimbursed within three Business Days and the outstanding principal balance of all
Indebtedness of such Person represented by notes, bonds and similar instruments), Attributable Debt and purchase money Indebtedness (but
excluding, for the avoidance of doubt, undrawn letters of credit), in each case of such Person; provided that “Consolidated
Total Debt” shall be calculated (i) net of the Unrestricted Cash Amount, (ii) to exclude any obligation, liability or indebtedness
of such Person if, upon or prior to the maturity thereof, such Person has irrevocably deposited with the proper Person in trust or escrow
the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such obligation, liability or indebtedness,
and thereafter such funds and evidences of such obligation, liability or indebtedness or other security so deposited are not included
in the calculation of the Unrestricted Cash Amount, (iii) to exclude obligations under any Derivative Transaction, any Qualified Receivables
Facility, or under any Indebtedness that is non-recourse to the Borrower and its Restricted Subsidiaries and (iv) to exclude any iStar
Exchange or Excluded Property Transaction.
“Consolidated
Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.
“Consolidated
Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of
such period; provided that there shall be excluded (a) the effect of reclassification during such period between current assets
and long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior period to give effect
to such reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition of any Person,
facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and contingent obligations
under any Hedge Agreement and (d) the application of purchase or recapitalization accounting.
“Contractual
Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties
is bound or to which it or any of its properties is subject.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Copyright”
means the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright whether published or unpublished,
copyright registrations and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages and payments
now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past or future
infringements for any of the foregoing; (d) the right to sue for past, present and future infringements of any of the foregoing; and (e)
all rights corresponding to any of the foregoing.
“Cost Saving Initiative”
has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Credit Extension”
means each of (i) the making of a Revolving Loan or Swingline Loan or (ii) the issuance, amendment, modification, renewal or extension
of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase the Stated Amount of
the relevant Letter of Credit).
“Credit Facilities” means the Revolving
Facility and the Term Facility.
“Credit Suisse” has the meaning assigned
to such term in the preamble to this Agreement.
“Cure Amount” has the meaning assigned
to such term in Section 6.15(b).
“Cure Right” has the meaning assigned
to such term in Section 6.15(b).
“Current Assets”
means, at any date, all assets of the Borrower and its Restricted Subsidiaries which under GAAP would be classified as current assets
(excluding any (i) cash or Cash Equivalents (including cash and Cash Equivalents held on deposit for third parties by the Borrower and/or
any Restricted Subsidiary), (ii) permitted loans to third parties, (iii) deferred bank fees and derivative financial instruments related
to Indebtedness, (iv) the current portion of current and deferred Taxes and (v) assets held for sale or pension assets).
“Current Liabilities”
means, at any date, all liabilities of the Borrower and its Restricted Subsidiaries which under GAAP would be classified as current liabilities,
other than (i) current maturities of long term debt, (ii) outstanding revolving loans and letter of credit exposures, (iii) accruals
of Consolidated Interest Expense (excluding Consolidated Interest Expense that is due and unpaid), (iv) obligations in respect of derivative
financial instruments related to Indebtedness, (v) the current portion of current and deferred Taxes, (vi) liabilities in respect of
unpaid earnouts, (vii) accruals relating to restructuring reserves, (viii) liabilities in respect of funds of third parties on deposit
with the Borrower and/or any Restricted Subsidiary, (ix) the current portion of any Capital Lease, (x) any liabilities recorded in connection
with stock based awards, partnership interest based awards, awards of profits interests, deferred compensation awards and similar initiative
based compensation awards or arrangements and (xi) the current portion of any other long term liability for borrowed money.
“Debt Fund Affiliate”
means any Affiliate (other than a natural person) of the Sponsor that is a bona fide debt fund or investment vehicle that is engaged in,
or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans,
bonds and similar extensions of credit in the ordinary course of business.
“Debtor Relief Laws”
means the Bankruptcy Code of the U.S., and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the U.S. or other applicable jurisdictions
from time to time in effect and affecting the rights of creditors generally.
“Declined Proceeds” has the meaning assigned
to such term in Section 2.11(b)(v).
“Default”
means any event or condition which upon notice, lapse of time or both would become an Event of Default.
“Defaulting
Lender” means any Lender that has (a) defaulted in its obligations under this Agreement, including without limitation, to
make a Loan within two Business Days of the date required to be made by it hereunder or to fund its participation in a Letter of
Credit or Swingline Loan required to be funded by it hereunder within two Business Days of the date such obligation arose or such
Loan, Letter of Credit or Swingline Loan was required to be made or funded, (b) notified the Administrative Agent, any Issuing Bank
or the Swingline Lender or any Loan Party in writing that it does not intend to satisfy any such obligation or has made a public
statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in
which it commits to extend credit generally (unless such writing or public statement relates to such Lender’s obligation to
fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to
funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public
statement) cannot be satisfied), (c) failed, within two Business Days after the request of Administrative Agent or the Borrower, to
confirm in writing that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and
participations in then outstanding Letters of Credit and Swingline Loans; provided that such Lender shall cease to be a
Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent, (d)
become (or any parent company thereof has become) insolvent or been determined by any Governmental Authority having regulatory
authority over such Person or its assets, to be insolvent, or the assets or management of which has been taken over by any
Governmental Authority, (e) become (or any parent company thereof has become) the subject of a bankruptcy or insolvency proceeding,
or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in, any such proceeding or appointment, unless in the case of any Lender
subject to this clause (e), the Borrower and the Administrative Agent shall each have determined that such Lender intends,
and has all approvals required to enable it (in form and substance satisfactory to each of the Borrower and the Administrative
Agent), to continue to perform its obligations as a Lender hereunder or (f) become (or any parent company thereof has become) the
subject of a Bail-In Action; provided that no Lender shall be deemed to be a Defaulting Lender solely by virtue of the
ownership or acquisition of any Capital Stock in such Lender or its parent by any Governmental Authority; provided that such
action does not result in or provide such Lender with immunity from the jurisdiction of courts within the U.S. or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject,
repudiate, disavow or disaffirm any contract or agreement to which such Lender is a party.
“Deposit Account”
means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization,
excluding, for the avoidance of doubt, any investment property (within the meaning of the UCC) or any account evidenced by an instrument
or negotiable certificate of deposit (within the meaning of the UCC).
“Derivative
Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate
agreement, interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives
rise to similar credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction,
including any cross-currency interest-rate swap, any forward foreign-exchange contract, any currency option, and any other
instrument linked to exchange rates that gives rise to similar credit risks, (c) any equity derivative transaction, including any
equity-linked swap, any equity-linked option, any forward equity-linked contract, and any other instrument linked to equities that
gives rise to similar credit risk and (d) any commodity (including precious metal) derivative transaction, including any
commodity-linked swap, any commodity-linked option, any forward commodity-linked contract, and any other instrument linked to
commodities that gives rise to similar credit risks; provided, that, no phantom stock or similar plan providing for payments
only on account of services provided by current or former directors, officers, employees, members of management, managers or
consultants of the Borrower or its subsidiaries shall constitute a Derivative Transaction.
“Designated Non-Cash
Consideration” means the fair market value (as determined by the Borrower in good faith) of non-Cash consideration received
by the Borrower or any Restricted Subsidiary in connection with any Disposition pursuant to Section 6.07(h) and/or Section 6.08
that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth
the basis of such valuation (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection with a subsequent
sale or conversion of such Designated Non-Cash Consideration to Cash or Cash Equivalents).
“Discount Range” has the meaning assigned
to such term in the definition of “Dutch Auction”.
“Disposition”
or “Dispose” means the sale, lease, sublease, or other disposition of any property of any Person. The fair market value
of any assets or other property Disposed of shall be determined by the Borrower in good faith.
“Disqualified Capital
Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by
the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, prior to 91 days following
the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such redemption is in part, only such
part coming into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued shall constitute
Disqualified Capital Stock), (b) is or becomes convertible into or exchangeable (unless at the sole option of the issuer thereof) for
(i) debt securities or (ii) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time on or prior to
91 days following the Latest Maturity Date at the time such Capital Stock is issued, (c) contains any mandatory repurchase obligation
or any other repurchase obligation at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part,
which may come into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood
that if any such repurchase obligation is in part, only such part coming into effect prior to 91 days following such Latest Maturity Date
at the time such Capital Stock is issued shall constitute Disqualified Capital Stock) or (d) provides for the scheduled payments of dividends
in Cash on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided that any Capital
Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security
into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such
Capital Stock upon the occurrence of any change of control, Qualifying IPO or any Disposition occurring prior to 91 days following the
Latest Maturity Date at the time such Capital Stock is issued shall not constitute Disqualified Capital Stock if such Capital Stock provides
that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior to the Termination Date.
Notwithstanding the
preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees,
members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management,
managers or consultants, in each case in the ordinary course of business of Holdings, the Borrower or any Restricted Subsidiary,
such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer
thereof in order to satisfy applicable statutory or regulatory obligations and (B) no Capital Stock held by any Permitted Payee
shall be considered Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management
equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put
agreement, stockholder agreement or similar agreement that may be in effect from time to time.
Notwithstanding the foregoing,
in all cases both the Series A Preferred Stock and any preferred Capital Stock required by applicable Requirements of Law to be issued
in connection with obtaining liquor licenses shall be deemed not to be Disqualified Capital Stock hereunder.
“Disqualified Institution” means:
(a) (i)
any Person identified as such in writing to the Arrangers on June 5, 2017 by way of email from the Sponsor (or its attorneys on such date),
(ii) any Person identified as such by the Borrower in writing after June 5, 2017 (and reasonably satisfactory) to the Arrangers (or if
after the Closing Date, to the Administrative Agent in place of the Arrangers), (iii) any Affiliate of any Person described in clauses
(i) or (ii) above that is clearly identifiable as an Affiliate of such Person on the basis of such Affiliate’s name and
(iv) any other Affiliate of any Person described in clauses (i) or (ii) above that is identified by the Borrower in a written
notice to the Arrangers (if prior to the Closing Date) or the Administrative Agent (if after the Closing Date) (other than Bona Fide Debt
Funds other than such Bona Fide Debt Funds excluded pursuant to clause (a)(i) or (a)(ii) of this paragraph) (each such person described
in clauses (i) through (iv) above, a “Disqualified Lending Institution”);
(b) (i)
any Person that is a Company Competitor and/or any Affiliate of any Company Competitor (other than any Affiliate that is a Bona Fide Debt
Fund) and is identified by the Borrower as such in writing to the Arrangers (if prior to the Closing Date) or the Administrative Agent
(if after the Closing Date), (ii) any Affiliate of any Person described in clause (i) above (other than any Affiliate that is a
Bona Fide Debt Fund) that is clearly identifiable as an Affiliate of such person on the basis of such Affiliate’s name and (iii)
any other Affiliate of any Person described in clause (i) above that is identified by the Borrower in a written notice to the Arrangers
(if prior to the Closing Date) or to the Administrative Agent (if after the Closing Date) (it being understood and agreed that no Bona
Fide Debt Fund may be designated as a Disqualified Institution pursuant to this clause (iii), but such Bona Fide Debt Fund may
be designated as a Disqualified Lending Institution pursuant to clause (a) above); and
(c) any
Affiliate or Representative of any Arranger and/or any Initial Lender that is engaged as a principal primarily in private equity, mezzanine
financing or venture capital;
it being understood and agreed
that no written notice delivered pursuant to clauses (a)(ii), (a)(iv), (b)(i) and/or (b)(iii) above shall
apply retroactively to disqualify any Person that has previously acquired an assignment or participation interest in any Loans if such
Person was not a Disqualified Institution at the time of acquisition of such assignment or participation interest.
“Disqualified Lending
Institution” has the meaning assigned to such term in the definition of “Disqualified Institution”.
“Disregarded Domestic
Subsidiary” means any Domestic Subsidiary that has no material assets other than the Capital Stock and/or Indebtedness of one
or more Foreign Subsidiaries, IP Rights related to such Foreign Subsidiaries, Cash or Cash Equivalents, and other incidental assets related
thereto or that has no material assets other than Capital Stock and/or Indebtedness of one or more Disregarded Domestic Subsidiaries.
“Dollars” or “$” refers
to lawful money of the U.S.
“Domestic Subsidiary”
means any Restricted Subsidiary incorporated or organized under the laws of the U.S., any state thereof or the District of Columbia.
“Dutch Auction”
means an auction (an “Auction”) conducted by any Affiliated Lender or any Debt Fund Affiliate (any such Person, the
“Auction Party”) in order to purchase Initial Term Loans (or any Additional Term Loans), in accordance with the following
procedures (as may be modified by such Affiliated Lender or Debt Fund Affiliate (as applicable) and the applicable “auction agent”
in connection with a particular Auction transaction); provided that no Auction Party shall initiate any Auction unless (I) at least
five Business Days have passed since the consummation of the most recent purchase of Term Loans pursuant to an Auction conducted hereunder;
or (II) at least three Business Days have passed since the date of the last Failed Auction (or equivalent) which was withdrawn:
(a) Notice
Procedures. In connection with any Auction, the Auction Party will provide notification to the Auction Agent (for distribution to
the relevant Lenders) of the Term Loans that will be the subject of the Auction (an “Auction Notice”). Each Auction
Notice shall be in a form reasonably acceptable to the Auction Agent and shall (i) specify the maximum aggregate principal amount of the
Term Loans subject to the Auction, in a minimum amount of $10,000,000 and whole increments of $1,000,000 in excess thereof (or, in any
case, such lesser amount of such Term Loans then outstanding or which is otherwise reasonably acceptable to the Auction Agent and the
Administrative Agent (if different from the Auction Agent)) (the “Auction Amount”), (ii) specify the discount to par
(which may be a range (the “Discount Range”) of percentages of the par principal amount of the Term Loans subject to
such Auction), that represents the range of purchase prices that the Auction Party would be willing to accept in the Auction, (iii) be
extended, at the sole discretion of the Auction Party, to (x) each Lender and/or (y) each Lender with respect to any Term Loan on an individual
Class basis and (iv) remain outstanding through the Auction Response Date. The Auction Agent will promptly provide each appropriate Lender
with a copy of the Auction Notice and a form of the Return Bid to be submitted by a responding Lender to the Auction Agent (or its delegate)
by no later than 5:00 p.m. on the date specified in the Auction Notice (or such later date as the Auction Party may agree with the reasonable
consent of the Auction Agent) (the “Auction Response Date”).
(b) Reply
Procedures. In connection with any Auction, each Lender holding the relevant Term Loans subject to such Auction may, in its sole
discretion, participate in such Auction and may provide the Auction Agent with a notice of participation (the “Return
Bid”) which shall be in a form reasonably acceptable to the Auction Agent, and shall specify (i) a discount to par (that
must be expressed as a price at which it is willing to sell all or any portion of such Term Loans) (the “Reply
Price”), which (when expressed as a percentage of the par principal amount of such Term Loans) must be within the Discount
Range and (ii) a principal amount of such Term Loans, which must be in whole increments of $1,000,000 (or, in any case, such lesser
amount of such Term Loans of such Lender then outstanding or which is otherwise reasonably acceptable to the Auction Agent) (the
“Reply Amount”). Lenders may only submit one Return Bid per Auction, but each Return Bid may contain up to three
bids only one of which may result in a Qualifying Bid. In addition to the Return Bid, the participating Lender must execute and
deliver, to be held in escrow by the Auction Agent, an Assignment and Assumption with the dollar amount of the Term Loans to be
assigned to be left in blank, which amount shall be completed by the Auction Agent in accordance with the final determination of
such Lender’s Qualifying Bid pursuant to clause (c) below. Any Lender whose Return Bid is not received by the Auction
Agent by the Auction Response Date shall be deemed to have declined to participate in the relevant Auction with respect to all of
its Term Loans.
(c) Acceptance
Procedures. Based on the Reply Prices and Reply Amounts received by the Auction Agent prior to the applicable Auction Response Date,
the Auction Agent, in consultation with the Auction Party, will determine the applicable price (the “Applicable Price”)
for the Auction, which will be the lowest Reply Price for which the Auction Party can complete the Auction at the Auction Amount; provided
that, in the event that the Reply Amounts are insufficient to allow the Auction Party to complete a purchase of the entire Auction Amount
(any such Auction, a “Failed Auction”), the Auction Party shall either, at its election, (i) withdraw the Auction or
(ii) complete the Auction at an Applicable Price equal to the highest Reply Price. The Auction Party shall purchase the relevant Term
Loans (or the respective portions thereof) from each Lender with a Reply Price that is equal to or lower than the Applicable Price (“Qualifying
Bids”) at the Applicable Price; provided that if the aggregate proceeds required to purchase all Term Loans subject to
Qualifying Bids would exceed the Auction Amount for such Auction, the Auction Party shall purchase such Term Loans at the Applicable Price
ratably based on the principal amounts of such Qualifying Bids (subject to rounding requirements specified by the Auction Agent in its
discretion). If a Lender has submitted a Return Bid containing multiple bids at different Reply Prices, only the bid with the lowest Reply
Price that is equal to or less than the Applicable Price will be deemed to be the Qualifying Bid of such Lender (e.g., a Reply Price of
$100 with a discount to par of 1%, when compared to an Applicable Price of $100 with a 2% discount to par, will not be deemed to be a
Qualifying Bid, while, however, a Reply Price of $100 with a discount to par of 2.50% would be deemed to be a Qualifying Bid). The Auction
Agent shall promptly, and in any case within five Business Days following the Auction Response Date with respect to an Auction, notify
(I) the Borrower of the respective Lenders’ responses to such solicitation, the effective date of the purchase of Term Loans pursuant
to such Auction, the Applicable Price, and the aggregate principal amount of the Term Loans and the tranches thereof to be purchased pursuant
to such Auction, (II) each participating Lender of the effective date of the purchase of Term Loans pursuant to such Auction, the Applicable
Price, and the aggregate principal amount and the tranches of Term Loans to be purchased at the Applicable Price on such date, (III) each
participating Lender of the aggregate principal amount and the tranches of the Term Loans of such Lender to be purchased at the Applicable
Price on such date and (IV) if applicable, each participating Lender of any rounding and/or proration pursuant to the second preceding
sentence. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and Lenders shall be
conclusive and binding for all purposes absent manifest error.
(d) Additional Procedures.
(i) Once
initiated by an Auction Notice, the Auction Party may not withdraw an Auction other than a Failed Auction. Furthermore, in connection
with any Auction, upon submission by a Lender of a Qualifying Bid, such Lender (each, a “Qualifying Lender”) will be
obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Price.
(ii) To the extent
not expressly provided for herein, each purchase of Term Loans pursuant to an Auction shall be consummated pursuant to procedures consistent
with the provisions in this definition, established by the Auction Agent acting in its reasonable discretion and as reasonably
agreed by the Borrower.
(iii) In
connection with any Auction, the Borrower and the Lenders acknowledge and agree that the Auction Agent may require as a condition to any
Auction, the payment of customary fees and expenses by the Auction Party in connection therewith as agreed between the Auction Party and
the Auction Agent.
(iv) Notwithstanding
anything in any Loan Document to the contrary, for purposes of this definition, each notice or other communication required to be delivered
or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the Auction Agent’s (or its
delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication
actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business
Day.
(v) The
Borrower and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this definition by itself
or through any Affiliate of the Auction Agent and expressly consent to any such delegation of duties by the Auction Agent to such Affiliate
and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each
Affiliate of the Auction Agent and its respective activities in connection with any purchase of Term Loans provided for in this definition
as well as activities of the Auction Agent.
“EAP Substitution”
has the meaning assigned to such term in the iStar Sale/Leaseback Documents.
“EAP Substitution Property” means any
property that is the subject of an EAP Substitution.
“EEA Financial
Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the
supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described
in clause (a) of this definition or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution
described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA Resolution Authority”
means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ECF Prepayment Amount” has the meaning
assigned to such term in Section 2.11(b)(i).
“Effective Yield”
means, as to any Indebtedness, the effective yield applicable thereto calculated by the Administrative Agent in consultation with the
Borrower in a manner consistent with generally accepted financial practices, taking into account (a) interest rate margins, (b) interest
rate floors (subject to the proviso set forth below), (c) any amendment to the relevant interest rate margins and interest rate floors
prior to the applicable date of determination and (d) original issue discount and upfront or similar fees (based on an assumed four-year
average life to maturity or lesser remaining average life to maturity), but excluding (i) any advisory, arrangement, commitment, consent,
structuring, success, underwriting, ticking, unused line fees, amendment fees and/or any similar fees payable in connection therewith
(regardless of whether any such fees are paid to or shared in whole or in part with any lender) and (ii) any other fee that is not paid
directly by the Borrower generally to all relevant lenders ratably (or, if only one lender (or affiliated group of lenders) is providing
such Indebtedness, are fees of the type not customarily shared with lenders generally); provided, that with respect to any Indebtedness
that includes a “LIBOR floor” or “Base Rate floor”, that (A) to the extent that the Published LIBO Rate (for
an Interest Period of three months) or Alternate Base Rate (in each case without giving effect to any floor specified in the definition
thereof on the date on which the Effective Yield is being calculated) is less than such floor, the amount of such difference will be
deemed added to the interest rate margin applicable to such Indebtedness for purposes of calculating the Effective Yield and (B) to the
extent that the Published LIBO Rate (for an Interest Period of three months) or Alternate Base Rate (in each case, without giving effect
to any floor specified in the definitions thereof) is greater than such floor, the floor will be disregarded in calculating the Effective
Yield.
“Eligible Assignee”
means (a) any Lender, (b) any commercial bank, insurance company, finance company, financial institution, any fund that invests in loans
or any other “accredited investor” (as defined in Regulation D of the Securities Act), (c) any Affiliate of any Lender, (d)
any Approved Fund of any Lender or (e) to the extent permitted under Section 9.05(g) or with respect to the Revolving Loans and
Revolving Credit Commitments of any Defaulting Lender, any Affiliated Lender or any Debt Fund Affiliate; provided that in any event,
“Eligible Assignee” shall not include (i) any natural person, (ii) any Disqualified Institution or Defaulting Lender or (iii)
except as permitted under Section 9.05(g) or except with respect to the Revolving Loans and Revolving Credit Commitments of any
Defaulting Lender, the Borrower or any of its Affiliates.
“Employee Benefit
Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (regardless of whether such plan is
subject to ERISA) which is sponsored, maintained or contributed to by, or required to be contributed to by, Borrower or any of its Subsidiaries.
“Environmental Claim”
means any written investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order,
decree or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant to or in connection
with any actual or alleged violation of any Environmental Law; or (b) in connection with any actual or alleged Hazardous Materials Activity.
“Environmental
Laws” means any and all applicable foreign or domestic, federal, state or local (or any subdivision thereof), statutes,
ordinances, orders, decrees, rules, regulations, judgments, Governmental Authorizations, or any other applicable binding
requirements of Governmental Authorities or the common law relating to (a) pollution or the protection of the environment or natural
resources, human health and safety (to the extent relating to the exposure to any hazardous material) or other environmental
matters; or (b) any Hazardous Materials Activity or any exposure of any Person to any hazardous material.
“Environmental Liability”
means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties
or indemnities), of the Borrower or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) any Hazardous Materials Activity, (c) exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other legally binding arrangement
pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Contribution” has the meaning assigned
to such term in the Recitals to this Agreement.
“ERISA” means the Employee Retirement
Income Security Act of 1974.
“ERISA Affiliate”
means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section
414(b) of the Code of which that Person is a member; and (b) any trade or business (whether or not incorporated) which is a member of
a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that Person is a member.
“ERISA Event”
means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect
to any Pension Plan (excluding those for which the 30-day notice period has been waived); (b) the failure to meet the minimum funding
standard of Section 412 of the Code with respect to any Pension Plan; (c) the filing of any request for or receipt of a minimum funding
waiver under Section 412 of the Code with respect to any Pension Plan; (d) engaging in a non-exempt prohibited transaction within the
meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Pension Plan; (e) the provision by the administrator of
any Pension Plan pursuant to Section 4041(a)(2) or Section 302 of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (f) the withdrawal by the Borrower, any of its Restricted Subsidiaries or any of their respective
ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in
liability to the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4063 or
4064 of ERISA; (g) the filing by the PBGC of judicial proceedings to terminate any Pension Plan; (h) the imposition of liability on the
Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA
or by reason of the application of Section 4212(c) of ERISA; (i) a complete or partial withdrawal (within the meaning of Sections 4203
and 4205 of ERISA) of the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates from any Multiemployer
Plan if there is any potential liability therefor under Title IV of ERISA, or the receipt by the Borrower, any of its Restricted Subsidiaries
or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA,
or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; or (j) the incurrence of liability or the imposition
of a Lien pursuant to Section 436 or 430(k) of the Code or pursuant to ERISA with respect to any Pension Plan.
“EU Bail-In Legislation
Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as
in effect from time to time.
“Event of Default”
has the meaning assigned to such term in Article 7.
“Excess Cash Flow” means, for any Excess
Cash Flow Period, an amount (if positive) equal to:
(a) the sum, without duplication, of the amounts for such period of the following:
(i) Consolidated
Adjusted EBITDA for such period without giving effect to clause (b)(x) of the definition thereof, plus
(ii) the Consolidated Working Capital Adjustment for such period, plus
(iii) cash gains
of the type described in clauses (b), (c), (d), (e) and (f) of the definition of
“Consolidated Net Income”, to the extent not otherwise included in calculating Consolidated Adjusted EBITDA (except to
the extent such gains consist of proceeds utilized in calculating Net Proceeds falling under paragraph (a) of the definition
thereof or Net Insurance/Condemnation Proceeds subject to Section 2.11(b)(ii)), plus
(iv) to
the extent not otherwise included in the calculation of Consolidated Adjusted EBITDA for such period, cash payments received by the Borrower
or any of its Restricted Subsidiaries with respect to amounts deducted from Excess Cash Flow in a prior period pursuant to clause (b)(vii)
below, minus
(b) the
sum, without duplication, of the amounts for such period (or, in the case of clauses (b)(i), (b)(iii), (b)(iv), (b)(x), (b)(xi), (b)(xiii)
and (b)(xiv), at the option of the Borrower, amounts after such period to the extent paid prior to the date of the applicable Excess Cash
Flow payment) of the following:
(i) the
aggregate principal amount of (i) all optional prepayments of Indebtedness (other than any (A) optional prepayment of Indebtedness that
is deducted in calculating the amount of any Excess Cash Flow payment in accordance with Section 2.11(b)(i) or (B) revolving Indebtedness
except to the extent any related commitment is permanently reduced in connection with such repayment), (ii) all mandatory prepayments
and scheduled repayments of Indebtedness and (iii) the aggregate amount of any premiums, make-whole or penalty payments actually paid
in Cash by the Borrower and/or any Restricted Subsidiary that are or were required to be made in connection with any prepayment of Indebtedness,
in each case, except to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness), plus
(ii) [reserved], plus
(iii) Consolidated
Interest Expense to the extent paid or payable in Cash (including (A) fees and expenses paid to the Administrative Agent in connection
with its services hereunder, (B) other bank, administrative agency (or trustee) and financing fees (including rating agency fees and other
fees in respect of any Second Lien Facility), (C) costs of surety bonds in connection with financing activities (whether amortized or
immediately expensed) and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments, letters of
credit, bank guarantees, bankers’ acceptances or any similar facilities or financing and Hedge Agreements), plus
(iv) Taxes
(including Taxes paid or payable pursuant to any Tax sharing arrangement or arrangements and/or any Tax distribution) paid or payable,
and provisions for Taxes, to the extent payable in Cash with respect to such Excess Cash Flow Period, plus
(v) [reserved], plus
(vi) any
foreign translation losses paid or payable in Cash (including any currency re-measurement of Indebtedness, any net gain or loss resulting
from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction
or any other currency-related risk) to the extent included in calculating Consolidated Adjusted EBITDA, plus
(vii) amounts
added back under (i) clauses (b)(xii), (b)(xiv), (b)(xix), (b)(xx), (b)(xxi) or (b)(xxii)
of the definition of “Consolidated Adjusted EBITDA” or (ii) the last paragraph of the definition of Consolidated Net
Income with respect to business interruption insurance, in each case to the extent such amounts have not yet been received by the
Borrower or its Restricted Subsidiaries, plus
(viii) an
amount equal to (A) all Charges either (1) excluded in calculating Consolidated Net Income or (2) added back in calculating Consolidated
Adjusted EBITDA, in each case, to the extent paid or payable in cash and (B) without duplication of amounts deducted in clause (c)(i)
of the definition of Consolidated Adjusted EBITDA, any non-cash item of gain or income included in calculating Consolidated Net Income,
plus
(ix) [reserved], plus
(x) to
the extent not expensed (or exceeding the amount expensed) during such period or not deducted (or exceeding the amount deducted) in calculating
Consolidated Net Income, the aggregate amount of Charges paid or payable in Cash by the Borrower and its Restricted Subsidiaries during
such period, other than to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness), plus
(xi) Cash
payments (other than in respect of Taxes, which are governed by clause (iv) above) made during such period for any liability the accrual
of which in a prior period did not reduce Consolidated Adjusted EBITDA and therefore increased Excess Cash Flow in such prior period (provided
there was no other deduction to Consolidated Adjusted EBITDA or Excess Cash Flow related to such payment), except to the extent financed
with long term funded Indebtedness (other than revolving Indebtedness), plus
(xii) [reserved], plus
(xiii) amounts
paid in Cash (except to the extent financed with long term funded Indebtedness (other than revolving Indebtedness)) during such period
on account of (A) items that were accounted for as non-Cash reductions of Consolidated Net Income or Consolidated Adjusted EBITDA in a
prior period and (B) reserves or amounts established in purchase accounting to the extent such reserves or amounts are added back to,
or not deducted from, Consolidated Net Income, plus
(xiv) the
amount of any payment of Cash made during such period to be amortized or expensed over a future period and recorded as a long-term asset,
plus
(xv) the
amount of any Tax obligation of the Borrower and/or any Restricted Subsidiary that is estimated in good faith by the Borrower as due and
payable (but is not currently due and payable) by the Borrower and/or any Restricted Subsidiary as a result of the repatriation of any
dividend or similar distribution of net income of any Foreign Subsidiary to the Borrower and/or any Restricted Subsidiary, plus
(xvi) to
the extent included in the calculation of Consolidated Adjusted EBITDA for such period, the amount of any insurance proceeds received
by the Borrower or any Restricted Subsidiary during such period under the Representation and Warranty Insurance Policy, plus
(xvii) the
aggregate amount of any extraordinary, unusual, special or non-recurring cash Charges paid or payable during such period (whether or
not incurred in such Excess Cash Flow Period) that were excluded in calculating Consolidated Adjusted EBITDA (including any
component definition used therein) for such period, plus
(xviii) to
the extent included in calculating Consolidated Adjusted EBITDA, the aggregate amounts received by the Borrower or any Restricted Subsidiary
pursuant to any iStar Exchange or Excluded Property Transaction.
“Excess Cash Flow
Period” means each full Fiscal Year of the Borrower ending after the Closing Date (commencing, for the avoidance of doubt, with
the Fiscal Year ending on or about June 30, 2018).
“Exchange Act”
means the Securities Exchange Act of 1934 and the rules and regulations of the SEC promulgated thereunder.
“Excluded Assets” means each of the following:
(a) any
asset (including any General Intangibles and any contract, instrument, lease, license, permit, agreement or other document, or any property
or other right subject thereto (including pursuant to a purchase money security interest, capital lease or similar arrangement or, in
the case of after-acquired property, pre-existing secured Indebtedness not incurred in anticipation of the acquisition by the Loan Party
of such property)) the grant or perfection of a security interest in which would (i) constitute a violation of a restriction in favor
of a third party (other than a Loan Party) or result in the abandonment, invalidation or unenforceability of any right or assets of the
relevant Loan Party, (ii) result in a breach, termination (or a right of termination) or default under any such contract, instrument,
lease, license, permit, agreement or other document (including pursuant to any “change of control” or similar provision) (there
being no requirement pursuant to any Loan Document to obtain any consent in respect thereof from any Person that is not also a Loan Party)
or (iii) permit any Person (other than any Loan Party) to amend any rights, benefits and/or obligations of the relevant Loan Party or
Restricted Subsidiary in respect of such relevant asset or permit such Person to require any Loan Party or any subsidiary of the Borrower
to take any action materially adverse to the interests of such subsidiary or Loan Party; provided, however, that any such
asset will only constitute an Excluded Asset under clause (i), clause (ii) or clause (iii) above to the extent such
violation or breach, termination (or right of termination), default or right to amend would not be rendered ineffective pursuant to Sections
9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable
Requirement of Law; provided, further, that any such asset shall cease to constitute an Excluded Asset at such time as the
condition causing such violation, breach, termination (or right of termination) or default or right to amend or require other actions
no longer exists and to the extent severable, the security interest granted under the applicable Collateral Document shall attach immediately
to any portion of such General Intangible or other right that does not result in any of the consequences specified in clauses (i)
through (iii) above,
(b) the
Capital Stock of any (i) Captive Insurance Subsidiary, (ii) Unrestricted Subsidiary, (iii) broker-dealer subsidiary, (iv) not-for-profit
subsidiary and/or (v) special purpose entity used for any securitization facility permitted hereunder or any Receivables Subsidiary,
(c) any (i)
foreign IP Rights and/or (ii) intent-to-use (or similar) Trademark application prior to the filing of a “Statement of
Use”, “Amendment to Allege Use” or similar filing with respect thereto, only to the extent, if any, that, and
solely during the period, in which, if any, the grant of a security interest therein may impair the validity or enforceability, or
result in the voiding of, such intent-to-use Trademark application or any registration issuing therefrom under applicable law,
(d) any
asset or property (including Capital Stock), the grant or perfection of a security interest in which would (A) require any governmental
or regulatory consent, approval, license or authorization (there being no requirement under any Loan Document to obtain the consent, approval,
license or authorization of any Governmental Authority or other Person (other than any Loan Party), including, without limitation, no
requirement to comply with the Federal Assignment of Claims Act or any similar statute), (B) be prohibited or restricted by applicable
Requirements of Law (including enforceable anti-assignment provisions of applicable Requirements of Law), except, in the case of this
clause (B), to the extent such prohibition would be rendered ineffective under applicable anti-assignment provisions of the UCC
of any relevant jurisdiction notwithstanding such prohibition, (C) trigger termination of any contract pursuant to a “change of
control” or similar provision or (D) result in adverse tax or regulatory consequences to any Loan Party or any of its subsidiaries
or Parent Companies as determined by the Borrower in good faith following consultation with the Administrative Agent,
(e) (i)
except to the extent a security interest therein can be perfected by the filing of an “all-assets” UCC-1 financing statement,
any leasehold interest, (ii) any real property or real property interest that is not a Material Real Estate Asset, (iii) any real property
(including improvements) or real property interest (including improvements) that was leased by the Borrower or any of its Subsidiaries
and later deeded or conveyed to the Borrower or any other Loan Party, (iv) any real property (including improvements) or real property
interest (including improvements) owned by a Loan Party immediately prior to the Closing Date and not required to be subject to a mortgage
or security interest pursuant to the terms of the Existing Credit Facilities (including the real property (and improvements thereto) set
forth on Schedule 1.01(e) hereto) or the terms hereunder and (v) any Excluded Property,
(f) any
Capital Stock of any Person that is not a Wholly-Owned Restricted Subsidiary or that is an Immaterial Subsidiary,
(g) any Margin Stock,
(h) the
voting Capital Stock of any Foreign Subsidiary that is a “controlled foreign corporation” (as defined in Section 957(a) of
the Code) or Disregarded Domestic Subsidiary, other than 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary
or Disregarded Domestic Subsidiary, as applicable,
(i) any
Letter-of-Credit-Right (other than to the extent a security interest in such Letter-of-Credit-Right can be perfected by filing an “all-assets”
UCC financing statement, without need for any other action) and all Commercial Tort Claims,
(j) any
Cash or Cash Equivalents (other than Cash and Cash Equivalents representing identifiable proceeds of other Collateral, a security interest
in which can be perfected through the filing of an “all-assets” UCC financing statement or which is perfected or arises by
law (including without limitation, the UCC), in each case without need for any action by any Loan Party or any Affiliate thereof),
(k) any
Deposit Account or commodity or securities account (including any securities entitlement and any related asset) (except to the
extent a security interest therein can be perfected through the filing of an “all assets” UCC financing statement
(without need for any other action); it being understood that Cash and Cash Equivalents representing identifiable proceeds of other
Collateral as referred to in the preceding clause (j) are not excluded hereby, and shall constitute Collateral (but any other Cash
or Cash Equivalents shall not constitute Collateral), but there shall be no requirement for any control agreement (or similar
agreement)),
(l) any
motor vehicle, airplane or other asset subject to a certificate of title (other than to the extent a security interest therein can be
perfected by filing an “all assets” UCC financing statement (without need for any other action) and without the requirement
to list any VIN, serial or similar number),
(m) any
governmental or regulatory license or state or local franchise, charter, consent, permit or authorization to the extent the granting of
a security interest therein is prohibited or restricted thereby or by applicable Requirements of Law; provided, however,
that any such asset will only constitute an Excluded Asset under this clause (m) to the extent such prohibition or restriction
would not be rendered ineffective pursuant to applicable anti-assignment provisions of the UCC of any relevant jurisdiction,
(n) Receivables
Facility Assets and related assets sold or otherwise transferred to a Receivables Subsidiary or otherwise pledged, transferred or sold
in connection with a Receivables Facility, factoring transaction or any similar arrangement permitted hereunder,
(o) any
asset with respect to which the Administrative Agent and the relevant Loan Party have determined in good faith that the cost, burden,
difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its operations and business in the
ordinary course of business) of obtaining or perfecting a security interest therein outweighs the benefit of a security interest to the
relevant Secured Parties afforded thereby, and
(p) any
league deposits to the extent identifiable as such pursuant to the ledgers maintained by the Loan Parties.
“Excluded Property”
means any SLB Property, the properties (and improvements) set forth on Schedule 1.01(f) hereto, any EAP Substitution Property,
any other Real Estate Asset not required to be subject to a Mortgage in favor of the Administrative Agent and any other property purchased
with the proceeds of a Disposition of any of the foregoing.
“Excluded Property
Limited Recourse Financing” means any financing (other than a Sale and Lease-Back Transaction) with respect to an Excluded Property
that constitutes Limited Recourse Financing with respect to the Borrower or any Subsidiary.
“Excluded Property
Limited Recourse Financing Documents” means all definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the date hereof in connection with any Excluded
Property Limited Recourse Financing, in each case as the same may be amended, modified or supplemented from time to time hereafter in
accordance with the provisions thereof, and including all basic financing information and all other agreements, documents and instruments
relating to the Excluded Property Limited Recourse Financing and all exhibits and schedules to any of the foregoing.
“Excluded Property
Sale/Leaseback Transaction” means any Sale and Lease-Back Transaction with respect to one or more Excluded Properties effected
after the date hereof, including any amendment or modification of the iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“Excluded Property
Sale/Leaseback Transaction Documents” means the definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the date hereof in connection with any Excluded
Property Sale/Leaseback Transaction, in each case as the same may be amended, modified or supplemented from time to time hereafter in
accordance with the provisions thereof, and including all basic lease information and all other agreements, documents and instruments
relating to the Excluded Property Sale/Leaseback Transaction and all exhibits and schedules to any of the foregoing.
“Excluded Property
Transaction” means any Excluded Property Sale/Leaseback Transaction and any Excluded Property Limited Recourse Financing.
“Excluded Property
Transaction Documents” means the Excluded Property Sale/Leaseback Transaction Documents and any Excluded Property Limited Recourse
Financing Documents.
“Excluded Subsidiary” means:
(a) any Restricted Subsidiary that is not a Wholly-Owned Subsidiary,
(b) any Immaterial Subsidiary,
(c) any
Restricted Subsidiary that is prohibited or restricted by law, rule or regulation or contractual obligation from providing a Loan Guaranty
or that would require a governmental (including regulatory) or third party consent, approval, license or authorization to provide a Loan
Guaranty (including under any financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance
or similar legal principles) unless such consent has been received, it being understood that Holdings and its subsidiaries shall have
no obligation to obtain any such consent, approval, license or authorization,
(d) any not-for-profit subsidiary,
(e) any Captive Insurance Subsidiary or subsidiary that is a broker-dealer,
(f) any
special purpose entity (including a special purpose entity used for any permitted securitization or receivables facility or financing,
or established in connection with any iStar Exchange or Excluded Property Transaction) and any Receivables Subsidiary,
(g) any Foreign Subsidiary,
(h) (i)
any Disregarded Domestic Subsidiary or (ii) any Domestic Subsidiary that is a direct or indirect subsidiary of any Foreign Subsidiary
or any Disregarded Domestic Subsidiary,
(i) any Unrestricted Subsidiary,
(j) any
subsidiary acquired pursuant to a Permitted Acquisition or other Investment permitted by this Agreement that has assumed secured Indebtedness
not incurred in contemplation of such Permitted Acquisition or other Investment and any Restricted Subsidiary thereof that guarantees
such secured Indebtedness, in each case to the extent the terms of such secured Indebtedness prohibit such subsidiary from becoming a
Guarantor,
(k) [reserved],
(l) any
Restricted Subsidiary if the provision of a Loan Guaranty could reasonably be expected to result in adverse tax or regulatory consequences
to any Loan Party or any of its subsidiaries or Parent Companies as determined by the Borrower in good faith, and
(m) any
other Restricted Subsidiary with respect to which, in the good faith judgment of the Administrative Agent and the Borrower, the burden
or cost of providing a Loan Guaranty outweighs the benefits afforded thereby.
“Excluded Swap Obligation”
means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Loan Guaranty of such Loan
Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Loan Guaranty thereof) is or
becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the
application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible
contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to
Section 3.20 of the Loan Guaranty and any other “keepwell”, support or other agreement for the benefit of such Loan
Party) at the time the Loan Guaranty of such Loan Party or the grant of such security interest becomes effective with respect to such
Swap Obligation. If any Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only
to the portion of such Swap Obligation that is attributable to swaps for which such Loan Guaranty or security interest is or becomes illegal.
“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender or Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of any Loan Party hereunder, (a) Taxes imposed on (or measured by) its net income or franchise Taxes (i) by
the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) any branch profits taxes imposed
by the U.S. or any similar tax imposed by any other jurisdiction described in clause (a), (c) in the case of a Lender, any U.S.
withholding tax that is imposed on amounts payable to such Lender at the time such Lender acquires an interest in a Loan or Commitment
(or designates a new lending office), except (i) pursuant to an assignment or designation of a new lending office under Section 2.19
and (ii) to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from any Loan Party with respect to such withholding tax pursuant to Section 2.17, (d)
any tax imposed as a result of a failure by the Administrative Agent or any Lender or Issuing Bank to comply with Section 2.17(f)
and (e) any withholding tax under FATCA.
“Existing Credit Facilities” has the meaning
assigned to such term in Section 4.01(h).
“Existing Letter of Credit” means each
letter of credit set forth on Schedule 1.01(b).
“Existing Letter
of Credit Issuer” means each Lender or Affiliate of a Lender that issued an Existing Letter of Credit.
“Existing Sponsor” means Cerberus Capital
Management, L.P. and its respective Affiliates.
“Expected Cost Savings”
has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Extended Revolving Credit Commitment”
has the meaning assigned to such term in Section 2.23(a).
“Extended Revolving Loans” has the meaning
assigned to such term in Section 2.23(a).
“Extended Term Loans” has the meaning
assigned to such term in Section 2.23(a)(ii).
“Extension” has the meaning assigned
to such term in Section 2.23(a)(ii).
“Extension Amendment”
means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (to the extent required by Section
2.23) and the Borrower, executed by each of (a) the Borrower, (b) the Administrative Agent and (c) each Lender that has accepted
the applicable Extension Offer pursuant hereto and in accordance with Section 2.23.
“Extension Offer” has the meaning assigned
to such term in Section 2.23(a).
“Facility”
means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or, except with respect
to Articles 5 and 6, hereof owned, leased, operated or used by the Borrower or any of its Restricted Subsidiaries or any
of their respective predecessors or Affiliates.
“Failed Auction” has the meaning assigned
to such term in the definition of “Dutch Auction”.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreement entered into pursuant to Section 1471(b)(1) of the Code, and any law, regulation, rules, practice or other published administrative
guidance adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such section of the
Code.
“Federal Assignment of Claims Act” means
the Federal Assignment of Claims Act (41 U.S.C. § 15).
“Federal Funds Effective
Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds
transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York sets forth on its public
website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds
effective rate; provided that if such rate as determined above is at any time negative, the Federal Funds Effective Rate at such
time shall instead be zero.
“Fee Letter”
means that certain Amended and Restated Fee Letter, dated as of June 15, 2017, by and among, inter alios, Parent and the Arrangers,
as amended to date.
“Financial Covenant” means the covenant
in Section 6.15(a).
“First Lien Leverage
Ratio” means the ratio, as of any date of determination, of (a) Consolidated First Lien Debt as of such date to (b) Consolidated
Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “First Lien Leverage
Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries.
“First Priority”
means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that, subject to the Intercreditor
Agreement or any other applicable intercreditor agreement, such Lien is senior in priority to any other Lien to which such Collateral
is subject, other than any Permitted Lien.
“Fiscal Quarter” means a fiscal quarter
of any Fiscal Year.
“Fiscal Year”
means the fiscal year of the Borrower ending on or about June 30 of each calendar year, as such fiscal year end may be adjusted in accordance
with the terms of this Agreement.
“Fixed Amounts” has the meaning assigned
to such term in Section 1.04(g).
“Flood Hazard Property”
means any Material Real Estate Asset subject to a Mortgage if any building included in such Material Real Estate Asset is located in an
area designated by the Federal Emergency Management Agency as having special flood hazards.
“Flood Insurance
Laws” means, collectively, (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of 1973, (iii)
the National Flood Insurance Reform Act of 1994, (iv) the Flood Insurance Reform Act of 2004 and (v) the Biggert–Waters Flood Insurance
Reform Act of 2012, each as now or hereafter in effect or any successor statute thereto, and in each case, together with all statutory
and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing, as amended
or modified from time to time.
“Foreign Asset Disposition”
means a Disposition where the relevant asset is (A) the stock of or assets of a Foreign Subsidiary or (B) one or more assets of the Borrower
or any Restricted Subsidiary which are located outside the United States or any territory thereof.
“Foreign Lender”
means any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“Foreign Subsidiary” means any Restricted
Subsidiary that is not a Domestic Subsidiary.
“Funding Account” has the meaning assigned
to such term in Section 2.03(f).
“GAAP”
means generally accepted accounting principles in the U.S. in effect and applicable to the accounting period in respect of which reference
to GAAP is made.
“General Intangibles” has the meaning
set forth in Article 9 of the UCC.
“Governmental Authority”
means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or
instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether associated with the U.S., a foreign government or any
political subdivision of either thereof.
“Governmental Authorization”
means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Granting Lender” has the meaning assigned
to such term in Section 9.05(e).
“GS Bank” has the meaning assigned to
such term in the preamble to this Agreement.
“Guarantee”
of or by any Person (the “Guarantor”) means any obligation, contingent or otherwise, of the Guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “Primary
Obligor”) in any manner and including any obligation of the Guarantor (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner
of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other
monetary obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness
or monetary obligation, (e) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness
or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole
or in part) or (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of any
other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or any right, contingent or
otherwise, of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business, or customary and reasonable indemnity obligations
in effect on the Closing Date or entered into in connection with any acquisition, Disposition or other transaction permitted under this
Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made
or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith.
“Hazardous Materials”
means any chemical, material, substance or waste, or any constituent thereof, which is prohibited, limited or regulated by any Environmental
Law due to its hazardous, toxic or similar characteristics, including any chemical, material, substance or waste defined or listed as
“hazardous” or “toxic” in any Environmental Law.
“Hazardous Materials
Activity” means the use, manufacture, possession, storage, holding, Release, threatened Release, discharge, placement, generation,
transportation, processing, treatment, abatement, removal, investigation, remediation, disposal, disposition or handling of any Hazardous
Material, and any corrective action or response action with respect to any of the foregoing.
“Hedge Agreement”
means any agreement with respect to any Derivative Transaction between any Loan Party or any Restricted Subsidiary and any other Person.
“Hedging Obligations”
means, with respect to any Person, the obligations of such Person under any Hedge Agreement.
“Holdings”
means (a) initially, Merger Sub 1, and after giving effect to the Merger Sub 1 Merger, the Target (in each case prior to the consummation
of a transaction described in clause (b) of this definition) and (b) following the consummation of a transaction permitted hereunder
that results in a New Holdings, New Holdings.
“Holdings Reorganization
Transaction” means (a) the contribution by Holdings of 100% of the Capital Stock of the Borrower to a newly formed domestic
“shell” company owned or controlled by the Permitted Holders or (b) the merger or other consolidation of Holdings with another
Person that, after giving effect thereto, shall hold 100% of the Capital Stock of the Borrower, in each case, so long as, contemporaneously
therewith (as applicable) (i) New Holdings delivers to the Administrative Agent any new certificate issued (if any) to evidence the contributed
Capital Stock of the Borrower and grants a security interest in such Capital Stock in favor of the Administrative Agent pursuant to the
Security Agreement or a joinder thereto in a form reasonably satisfactory to the Administrative Agent and (ii) New Holdings assumes the
Loan Guaranty provided by Holdings and all other obligations of Holdings under this Agreement and each of the other Loan Documents to
which Holdings is a party pursuant to a supplement hereto or thereto that is reasonably acceptable to the Administrative Agent.
“IFRS”
means international accounting standards within the meaning of the IAS Regulation 1606/2002, as in effect from time to time (subject
to the provisions of Section 1.04), to the extent applicable to the relevant financial statements.
“Immaterial Subsidiary” means, as of any
date, any Restricted Subsidiary of the Borrower
(a) that
does not have assets in excess of 2.5% of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries and (b) that does
not contribute Consolidated Adjusted EBITDA in excess of 2.5% of the Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries,
in each case, as of the last day of the most recently ended Test Period; provided that, the Consolidated Total Assets and Consolidated
Adjusted EBITDA (as so determined) of all Immaterial Subsidiaries shall not exceed 5.0% of Consolidated Total Assets and 5.0% of Consolidated
Adjusted EBITDA, in each case, of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test Period;
provided further that, at all times prior to the first delivery of financial statements pursuant to Section 5.01(a) or (b),
this definition shall be applied based on the pro forma consolidated financial statements of the Target delivered pursuant to Section
4.01.
“Immediate Family
Member” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant,
parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling or step-siblings (and linear
descendants either thereof), mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships), any trust,
partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals, any of the
foregoing individual’s (including the initial individual) estate (or an executor or administrator acting on its behalf), heirs or
legatees or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any
such individual is the donor.
“Incremental Cap” means:
(a) the Shared Incremental Amount, plus
(b) in
the case of any Incremental Facility or Incremental Equivalent Debt that effectively extends the Maturity Date with respect to any Class
of Loans and/or commitments hereunder, an amount equal to the portion of the relevant Class of Loans or commitments that will be replaced
by such Incremental Facility or Incremental Equivalent Debt, plus
(c) in the case
of any Incremental Facility or Incremental Equivalent Debt that effectively replaces any Revolving Credit Commitment or Additional Revolving
Credit Commitment terminated in accordance with Section 2.19 hereof, an amount equal to the relevant terminated Revolving Credit
Commitment or Additional Revolving Credit Commitment, plus
(d) (i) the
amount of any optional prepayment of any Loan (including any Incremental Loan) in accordance with Section 2.11(a) and/or the amount
of any permanent reduction of any Revolving Credit Commitment, (ii) the amount of any optional prepayment, redemption or repurchase of
Incremental Equivalent Debt incurred pursuant to the Shared Incremental Amount, (iii) the amount of any optional prepayment, redemption
or repurchase of any Replacement Term Loan or Loans under any Replacement Revolving Facility (to the extent accompanied by a permanent
reduction in commitments) or any borrowing or issuance of Replacement Debt previously applied to the permanent prepayment of any Loan
hereunder or of any Incremental Equivalent Debt, (iv) the amount of any optional prepayment, redemption or repurchase of “Incremental
Loans” and/or “Incremental Equivalent Debt” incurred pursuant to the “Shared Incremental Amount” or of
any “Replacement Term Loans” previously applied to the permanent prepayment of any of the foregoing (each as defined in the
Second Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien Facility) and (v) the aggregate
amount of any Indebtedness referred to in clauses (i) through (iv) repaid or retired resulting from any assignment of such Indebtedness
to (and/or assignment and/or purchase of such Indebtedness by) Holdings, the Borrower and/or any Restricted Subsidiary; provided
that for each of clauses (i) through (v), the relevant prepayment, redemption, repurchase or assignment and/or purchase
was not funded with the proceeds of any long-term Indebtedness (other than revolving Indebtedness), plus
(e) an
unlimited amount so long as, in the case of this clause (e), on a Pro Forma Basis after giving effect to the incurrence of the
Incremental Facility or the Incremental Equivalent Debt, as applicable, and the application of the proceeds thereof (but without netting
the cash proceeds thereof, but giving effect to any related Subject Transaction) and to any relevant Subject Transaction (and, in the
case of any Incremental Revolving Facility then being established, assuming a full drawing thereunder), (i) if such Indebtedness is secured
by a first priority Lien on the Collateral, the First Lien Leverage Ratio does not exceed the greater of (x) 4.20:1.00 and (y) if such
Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the First Lien Leverage Ratio as of the last
day of the most recently ended Test Period, (ii) if such Indebtedness is secured by a Lien on the Collateral other than on a first priority
basis or is secured by a Lien on assets of the Borrower or any Restricted Subsidiary that are not Collateral, the Secured Leverage Ratio
does not exceed the greater of (x) 5.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted
hereunder, the Secured Leverage Ratio as of the last day of the most recently ended Test Period and (iii) if such Indebtedness is unsecured,
at the election of the Borrower, either (A) the Total Leverage Ratio does not exceed the greater of (x) 5.00:1.00 and (y) if such Indebtedness
is incurred to finance an acquisition or other Investment permitted hereunder, the Total Leverage Ratio as of the last day of the most
recently ended Test Period or (B) the Interest Coverage Ratio is not less than the lesser of (x) 2.00:1.00 and (y) if such Indebtedness
is incurred to finance an acquisition or other Investment permitted hereunder, the Interest Coverage Ratio as of the last day of the most
recently ended Test Period;
provided that:
(1) any
Incremental Facility and/or Incremental Equivalent Debt may be incurred under one or more of clauses (a) through (e) of this definition
as selected by the Borrower in its sole discretion (provided that, in the case of clause (e), an Incremental Facility may be incurred
only under clause (i) thereof),
(2) if
any Incremental Facility or Incremental Equivalent Debt is intended to be incurred under clause (e) of this definition and any other clause
of this definition in a single transaction or series of related transactions, (A) the incurrence of the portion of such Incremental Facility
or Incremental Equivalent Debt to be incurred or implemented under clause (e) of this definition shall be calculated first without giving
effect to any Incremental Facilities or Incremental Equivalent Debt to be incurred under any other clause of this definition, but giving
full pro forma effect to the use of proceeds of the entire amount of such Incremental Facility or Incremental Equivalent Debt and the
related transactions and (B) the incurrence of the portion of such Incremental Facility or Incremental Equivalent Debt to be incurred
or implemented under the other applicable clauses of this definition shall be calculated thereafter, and
(3) any
portion of any Incremental Facility or Incremental Equivalent Debt that is incurred under clauses (a) through (d) of this definition,
unless otherwise elected by the Borrower, shall automatically and without need for action by any Person, be reclassified as having been
incurred under clause (e) of this definition if, at any time after the incurrence thereof, when financial statements required pursuant
to Section 5.01(a) or (b) are delivered or, if earlier, become internally available, such portion of such Incremental Facility
or Incremental Equivalent Debt would, using the figures reflected in such financial statements, be (or have been) permitted under the
First Lien Leverage Ratio, Secured Leverage Ratio, Total Leverage Ratio or Interest Coverage Ratio test, as applicable, set forth in clause
(e) of this definition.
“Incremental Commitment” means
any commitment made by a lender to provide all or any portion of any Incremental Facility or Incremental Loans.
“Incremental Equivalent Debt” means any
Indebtedness that satisfies the following conditions:
(a) the
aggregate outstanding principal amount thereof does not exceed the Incremental Cap as in effect at the time of determination (after giving
effect to any reclassification on or prior to such date of determination),
(b) the
Weighted Average Life to Maturity of such Indebtedness is no shorter than the remaining Weighted Average Life to Maturity of the Initial
Term Loans and the final maturity date of such Indebtedness is no earlier than the Latest Term Loan Maturity Date applicable to the Initial
Term Loans, in each case as determined on the date of the issuance or incurrence, as applicable, thereof; provided, that the foregoing
limitations shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided, that any
loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans
shall be subject to the requirements of this clause (b) or (ii) Indebtedness subject to the Permitted Earlier Maturity Indebtedness
Exception,
(c) subject
to clause (b), such Indebtedness may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such
Indebtedness,
(d) if
such Indebtedness is in the form of broadly syndicated Dollar denominated term loans that are pari passu with the Initial Term
Loans in right of payment and with respect to security (other than customary bridge loans with a maturity date of not longer than one
year that are convertible or exchangeable into, or are intended to be refinanced with, any Indebtedness other than term loans that are
pari passu with the Initial Term Loans in right of payment and with respect to security), the MFN Provisions of Section 2.22(a)(v)
shall apply to such Indebtedness as if (but only to the extent, including after giving effect to applicable exclusions and sunset provisions)
such Indebtedness was an Incremental Term Facility of the type subject to the provisions of Section 2.22(a)(v), mutatis mutandis,
(e) if such
Indebtedness is secured by assets that constitute Collateral, the holders of such Indebtedness (or a representative therefor) shall be
party to an Acceptable Intercreditor Agreement,
(f) such
Indebtedness may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term
Loans made pursuant to Section 2.11(a) and (B) to the extent secured on a pari passu basis with the Initial Term Loans, on a pro rata
basis (but not on a greater than pro rata basis other than in the case of a prepayment with proceeds of Indebtedness refinancing such
Incremental Equivalent Debt) in any mandatory prepayment of Term Loans required pursuant to Section 2.11(b) or less than a pro rata basis
with the then-outstanding Term Facility, and
(g) if
any financial maintenance covenant is added to any such Indebtedness and such financial maintenance covenant is more favorable to the
lenders under such Indebtedness than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable after
the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable
financial maintenance covenant (together with, at the election of the Borrower, any applicable “equity cure” provisions with
respect to any such financial maintenance covenant).
“Incremental Facilities” has the meaning
assigned to such term in Section 2.22(a).
“Incremental Facility
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (solely for purposes
of giving effect to Section 2.22) and the Borrower executed by each of (a) Holdings and the Borrower, (b) the Administrative Agent
and (c) each Lender that agrees to provide all or any portion of the Incremental Facility being incurred pursuant thereto and in accordance
with Section 2.22.
“Incremental Loans” has the meaning assigned
to such term in Section 2.22(a).
“Incremental Revolving Facility” has the
meaning assigned to such term in Section 2.22(a).
“Incremental Revolving
Facility Lender” means, with respect to any Incremental Revolving Facility, each Revolving Lender providing any portion of such
Incremental Revolving Facility.
“Incremental Revolving Loans” has the
meaning assigned to such term in Section 2.22(a).
“Incremental Term Facility” has the meaning
assigned to such term in Section 2.22(a).
“Incremental Term Loans” has the meaning
assigned to such term in Section 2.22(a).
“Incurrence-Based Amounts” has the meaning
assigned to such term in Section 1.04(g).
“Indebtedness”
as applied to any Person means, without duplication, (a) all indebtedness of such Person for borrowed money; (b) the Attributable Debt
of such Person in respect of any Capital Lease of such Person; (c) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments to the extent the same would appear as a liability on a balance sheet (excluding the footnotes thereto) of such
Person prepared in accordance with GAAP; (d) any obligation of such Person owed for all or any part of the deferred purchase price of
property or services (excluding (w) any earn out obligation or purchase price adjustment until such obligation (A) becomes a liability
on the balance sheet of such Person (excluding the footnotes thereto) in accordance with GAAP and (B) has not been paid within 30 days
after becoming due and payable following expiration of any dispute resolution mechanics set forth in the applicable agreement governing
the applicable transaction, (x) any such obligations incurred under ERISA or under any employee consulting agreements, (y) accrued expenses,
trade accounts payable and accruals for payroll, in the ordinary course of business (including on an intercompany basis) and (z) liabilities
associated with customer prepayments and deposits), which purchase price is (i) due more than six months from the date of incurrence of
the obligation in respect thereof or (ii) evidenced by a note or similar written instrument; (e) all Indebtedness of others secured by
any Lien on any property or asset owned or held by such Person regardless of whether the Indebtedness secured thereby has been assumed
by such Person or is non-recourse to the credit of such Person; (f) the face amount of any letter of credit issued for the account of
such Person or as to which such Person is otherwise liable for reimbursement of drawings; (g) the Guarantee by such Person of the Indebtedness
of another; (h) all obligations of such Person in respect of any Disqualified Capital Stock; and (i) all net obligations of such Person
in respect of any Derivative Transaction, including any Hedge Agreement, whether or not entered into for hedging or speculative purposes;
provided that (i) in no event shall obligations under any Derivative Transaction be deemed “Indebtedness” for any calculation
of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio or any other financial
ratio under this Agreement, (ii) in all cases Indebtedness shall exclude any Excluded Property Limited Recourse Financing, (iii) the amount
of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (A) the aggregate unpaid
amount of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the documentation pursuant to
which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as determined by such Person in
good faith and (iv) the amount of any Limited Recourse Debt of any Person shall be deemed to be equal to the lesser of (A) the aggregate
unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the documentation pursuant
to which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as determined by such Person
in good faith.
For all purposes hereof, the
Indebtedness of any Person shall include the Indebtedness of any partnership or any Joint Venture (other than any Joint Venture that is
itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent
such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would otherwise be included
in the calculation of Consolidated Total Debt; provided that notwithstanding anything herein to the contrary, the term “Indebtedness”
shall not include, and shall be calculated without giving effect to, (x) the effects of Accounting Standards Codification Topic 815 and
related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder
as a result of accounting for any embedded derivatives created by the terms of such Indebtedness (it being understood that any such amounts
that would have constituted Indebtedness hereunder but for the application of this proviso shall not be deemed an incurrence of Indebtedness
hereunder), (y) the effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects
would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivative
created by the terms of such Indebtedness (it being understood that any such amounts that would have constituted Indebtedness hereunder
but for the application of this proviso shall not be deemed to be an incurrence of Indebtedness hereunder) and (z) Indebtedness of any
Parent Company appearing on the balance sheet of the Borrower or any of its Subsidiaries solely by reason of push down accounting under
GAAP.
“Indemnified Taxes”
means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan
Party under any Loan Document and
(b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” has the meaning assigned
to such term in Section 9.03(b).
“Information” has the meaning set forth
in Section 3.11(a).
“Information Memorandum”
means the Confidential Information Memorandum finalized on or about June 20, 2017, relating to the Borrower and its subsidiaries and the
Transactions.
“Initial Lenders”
means the Arrangers and the affiliates of the Arrangers who are party to this Agreement as Lenders on the Closing Date.
“Initial Revolving
Credit Commitment” means, with respect to any Person, the commitment of such Person to make Initial Revolving Loans (and acquire
participations in Letters of Credit and Swingline Loans) hereunder as set forth on the Commitment Schedule, or in the Assignment Agreement
pursuant to which such Lender assumed its Initial Revolving Credit Commitment, as applicable, as the same may be (a) reduced from time
to time pursuant to Section 2.09 or 2.19, (b) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.05 or (c) increased pursuant to Section 2.22. The aggregate amount of the Initial Revolving
Credit Commitments as of the Closing Date is $50,000,000.
“Initial Revolving
Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of all Initial
Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure and Swingline Exposure,
in each case, attributable to its Initial Revolving Credit Commitment.
“Initial Revolving Credit
Maturity Date” means the date that is five years after the Closing Date.
“Initial Revolving
Facility” means the Initial Revolving Credit Commitments and the Initial Revolving Loans and other extensions of credit thereunder.
“Initial Revolving
Lender” means any Person with an Initial Revolving Credit Commitment or any Initial Revolving Credit Exposure.
“Initial Revolving
Loan” means any revolving loan made by the Initial Revolving Lenders to the Borrower pursuant to Section 2.01(a)(ii).
“Initial Term Lender”
means any Person with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial Term
Loan Commitment” means, with respect to any Person, the commitment of such Person to make Initial Term Loans hereunder in
an aggregate amount not to exceed the amount set forth opposite such Person’s name on the Commitment Schedule, as the same may
be (a) reduced from time to time pursuant to Section 2.09 or Section 2.19 and (b) reduced or increased from time to
time pursuant to (x) assignments by or to such Person pursuant to Section 9.05 or (y) an Additional Term Loan
Commitment. The aggregate amount of the Initial Term Loan Commitments on the Closing Date is $585,000,000.
“Initial Term Loan Maturity Date” means
the date that is seven years after the Closing Date.
“Initial Term Loans”
means the term loans made by the Initial Term Lenders to the Borrower pursuant to Section 2.01(a)(i).
“Intellectual Property
Security Agreement” means any agreement executed on or after the Closing Date confirming or effecting the grant of any Lien
on IP Rights owned by any Loan Party to the Administrative Agent, for the benefit of the Secured Parties, in accordance with this Agreement,
including any of the following: (a) a Trademark Security Agreement substantially in the form of Exhibit H-1 hereto, (b) a Patent
Security Agreement substantially in the form of Exhibit H-2 hereto or (c) a Copyright Security Agreement substantially in the form
of Exhibit H-3 hereto.
“Intercreditor Agreement”
means the Intercreditor Agreement substantially in the form of Exhibit N hereto, dated as of the Closing Date, among, inter
alios, the Second Lien Collateral Agent, as agent for the Second Lien Claimholders referred to therein, the Administrative Agent,
as agent for the First Lien Claimholders referred to therein, if applicable, the provider of any Additional Letter of Credit Facility
(or a representative thereof) and the Loan Parties from time to time party thereto.
“Interest Coverage
Ratio” means, as of any date of determination, the ratio for the most recently ended Test Period of (a) Consolidated Adjusted
EBITDA for such Test Period to (b) Ratio Interest Expense for such Test Period; provided that, for purposes of calculating the
Interest Coverage Ratio for any period ending prior to the first anniversary of the Closing Date, Ratio Interest Expense shall be an amount
equal to actual Ratio Interest Expense from the Closing Date through the date of determination multiplied by a fraction the numerator
of which is 365 and the denominator of which is the number of days from the Closing Date through the date of determination.
“Interest Election
Request” means a request by the Borrower in the form of Exhibit D hereto or another form reasonably acceptable to the
Administrative Agent to convert or continue a Borrowing in accordance with Section 2.08.
“Interest Payment
Date” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December (commencing
with the last Business Day of September 2017) or the maturity date applicable to such Loan and (b) with respect to any LIBO Rate Loan,
the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a LIBO Rate Borrowing
with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing.
“Interest Period”
means with respect to any LIBO Rate Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding
day in the calendar month that is one, two, three or six months (or, to the extent available to all relevant affected Lenders, twelve
months or, to the extent acceptable to all applicable Lenders, a shorter period) thereafter, as the Borrower may elect; provided
that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business
Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Investment”
means (a) any purchase or other acquisition by the Borrower or any of its Restricted Subsidiaries of any of the Securities of any other
Person (other than any Loan Party), (b) the acquisition by purchase or otherwise (other than any purchase or other acquisition of inventory,
materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the business, property or
fixed assets of any other Person or any division or line of business or other business unit of any other Person and (c) any loan, advance
(other than any advance to any current or former employee, officer, director, member of management, manager, consultant or independent
contractor of the Borrower, any Restricted Subsidiary or any Parent Company for moving, entertainment and travel expenses, drawing accounts
and similar expenditures or payroll expenses or advances in the ordinary course of business) or capital contribution by the Borrower or
any of its Restricted Subsidiaries to any other Person. Subject to Section 5.10, the amount of any Investment shall be the original
cost of such Investment, plus the cost of any addition thereto that otherwise constitutes an Investment, without any adjustments
for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but giving effect to any repayments
of principal in the case of any Investment in the form of a loan and any return of capital or return on Investment in the case of any
equity Investment (whether as a distribution, dividend, redemption or sale).
“Investors”
means (a) the Sponsor, (b) the Management Investors and (c) other investors identified to the Administrative Agent in writing that, directly
or indirectly, beneficially own Capital Stock in Holdings on the Closing Date.
“IP Rights” has the meaning assigned to
such term in Section 3.05(c).
“IPO Reorganization
Transaction” means any transaction taken in connection with and reasonably related to consummating a Qualifying IPO by the Borrower
or any Parent Company thereof so long as, after giving effect thereto, (a) the Loan Parties are in compliance with the Collateral and
Guarantee Requirements and Section 5.12 and (b) the security interest of the Secured Parties in the Collateral, taken as a whole,
is not materially impaired (including by a material portion of the assets that constitute Collateral immediately prior to such IPO Reorganization
Transaction no longer constituting Collateral) as a result of such IPO Reorganization Transaction.
“IRS” means the U.S. Internal Revenue
Service.
“Issuing Bank”
means, as the context may require, (a) JPM, (b) solely with respect to any Existing Letter of Credit (and any amendment, renewal or extension
thereof in accordance with the terms of this Agreement), each Existing Letter of Credit Issuer and (c) each other Revolving Lender party
hereto from time to time that is appointed as an Issuing Bank in accordance with Section 2.05(i). Subject to the reasonable consent
of the Borrower (subject to the standards set forth in Section 9.05(b)), any Issuing Bank may, in its discretion, arrange for one
or more Letters of Credit to be issued by any Affiliate of such Issuing Bank, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“iStar Amendments”
means the iStar I Eighth Amendment, the iStar II Eighth Amendment and the iStar 2014 Amendment, individually or collectively (as the context
may require).
“iStar I Eighth Amendment”
means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers I LP, and solely with respect to the
Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and AMF Bowling Centers, Inc., as tenant.
“iStar II Eighth
Amendment” means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers II LP, as landlord,
and AMF Bowling Centers, Inc., as tenant.
“iStar 2014 Amendment”
means that certain lease amendment that is expected to be the “First Lease Amendment” in respect of the iStar Sale/Leaseback
2014 Documents, which is anticipated to include (among other things) certain changes generally consistent with the iStar I Eighth Amendment
and iStar II Eighth Amendment, to be entered into between BW Bowling Properties LP, and solely with respect to the Site (as defined in
subparagraph 34(n)(v) therein) located in Pennsylvania, BW Bowling Properties LLC, as landlord, and Leiserv, LLC and Brunswick Centres,
Inc., as tenant.
“iStar Exchange”
means those transactions described in Section 11 of each of the iStar I Eighth Amendment and the iStar II Eighth Amendment.
“iStar Exchange Documents”
means the agreements and other documents governing any iStar Exchange transaction, as more particularly described in each of the iStar
I Eighth Amendment and the iStar II Eighth Amendment.
“iStar Sale/Leaseback”
means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback Documents.
“iStar Sale/Leaseback
2014” means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback 2014 Documents.
“iStar Sale/Leaseback
2014 Documents” means (i) the Lease Agreement, dated as of September 18, 2014, by and among BW Bowling Properties LP, BW Bowling
Properties Canada Inc. and BW Bowling Properties LLC (collectively as landlord) and Leiserv, LLC and Brunswick Centres, Inc. (jointly
and severally, as tenant) and (ii) the Guaranty dated as of September 18, 2014 by Holdings in favor of BW Bowling Properties LP, BW Bowling
Properties Canada Inc. and BW Bowling Properties LLC, in each case as the same may be amended, modified or supplemented through the date
hereof and from time to time hereafter in accordance with the provisions thereof, and including all basic lease information and all other
agreements, documents and instruments relating to the iStar Sale/Leaseback 2014 and all exhibits and schedules to any of the foregoing.
“iStar
Sale/Leaseback Documents” means (I) (a) the Lease I Agreement dated as of February 27, 2004 between iStar Bowling Centers
I LP, and solely with respect to the Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and
AMF Bowling Centers, Inc., as tenant, as amended by (i) that certain First Lease Amendment dated as of June 30, 2004, intending to
be effective as of February 27, 2004, (ii) that certain Second Lease Amendment dated as of February 3, 2005, intending to be
effective as of February 27, 2004, (iii) that certain Third Lease Amendment dated as of June 18, 2008, intending to be effective as
of March 30, 2008, (iv) that certain Fourth Lease Amendment dated and intended to be effective as of July 1, 2013, (v) that certain
Fifth Lease Amendment dated and intended to be effective as of September 25, 2013, (vi) that certain Sixth Lease Amendment dated and
intended to be effective as of October 3, 2014, (vii) that certain Amended and Restated Seventh Lease Amendment dated and intended
to be effective as of September 9, 2016, and (viii) the iStar I Eighth Amendment, (b) the Guaranty dated as of July 1, 2013 by
Holdings in favor of iStar Bowling Centers I LP, and (II) (a) the Lease II Agreement dated as of February 27, 2004 between iStar
Bowling Centers II LP, as landlord, and AMF Bowling Centers, Inc., as tenant, as amended by (i) that certain First Lease Amendment
dated as of June 30, 2004, intending to be effective as of February 27, 2004, (ii) that certain Second Lease Amendment dated as of
February 3, 2005, intending to be effective as of February 27, 2004, (iii) that certain Third Lease Amendment dated as of June 18,
2008, intending to be effective as of March 30, 2008, (iv) that certain Fourth Lease Amendment dated and intended to be effective as
of July 1, 2013, (v) that certain Fifth Lease Amendment dated and intended to be effective as of September 25, 2013, (vi) that
certain Sixth Lease Amendment dated and intended to be effective as of October 3, 2014, (vii) that certain Amended and Restated
Seventh Lease Amendment dated and intended to be effective as of February 23, 2017, and (viii) the iStar II Eighth Amendment, and
(b) the Guaranty dated as of July 1, 2013 by Holdings in favor of iStar Bowling Centers II LP, in each case as the same may be
amended, modified or supplemented through the date hereof and from time to time hereafter in accordance with the provisions thereof,
and including all basic lease information and all other agreements, documents and instruments relating to the iStar Sale/Leaseback
and all exhibits and schedules to any of the foregoing.
“Joint Venture”
means the Thousand Oaks Company, a Texas corporation, and any other joint venture, in the form of a corporation, limited liability company,
business trust, joint venture, association, company or partnership, entered into by the Borrower or any of its Subsidiaries which (i)
is engaged in a line of business in accordance with Section 5.16 and (ii) is formed or organized in a manner that limits the exposure
of the Borrower and its Subsidiaries for the liabilities thereof to (A) the Investments of the Borrower and its Subsidiaries therein permitted
under Section 6.06 and (B) any Indebtedness of any Joint Venture or any Guarantee by the Borrower or any of its Subsidiaries in respect
of such Indebtedness, which Indebtedness or Guarantee are permitted at the time under Section 6.01.
“Junior Indebtedness”
means any Indebtedness for borrowed money (other than Indebtedness among Holdings, the Borrower and/or its subsidiaries) of the Borrower
or any of its Restricted Subsidiaries that is a Loan Party that is expressly subordinated in right of payment to the Obligations.
“Junior Lien Indebtedness”
means any Indebtedness for borrowed money that is secured by a security interest on the Collateral (other than Indebtedness among Holdings,
the Borrower and/or its subsidiaries) that is expressly junior or subordinated to the Lien securing the Credit Facilities with respect
to the Collateral, including any “Term Loans” governed by the Second Lien Credit Agreement.
“Kingpin Intermediate”
means Kingpin Intermediate Holdings LLC, a Delaware limited liability company.
“Latest Maturity
Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder
at such time, including the latest maturity or expiration date of any Initial Term Loan, Additional Term Loan, Revolving Loan, Additional
Revolving Loan, Initial Revolving Credit Commitment or Additional Commitment.
“Latest Revolving
Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any revolving
loan or revolving credit commitment hereunder at such time, including the latest maturity or expiration date of any Revolving Loan, any
Additional Revolving Loan, the Revolving Credit Commitment or any Additional Revolving Credit Commitment.
“Latest Term Loan
Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any term loan or
term commitment hereunder at such time, including the latest maturity or expiration date of any Additional Term Loan or Additional Term
Loan Commitment hereunder at such time.
“LC Collateral Account” has the meaning
assigned to such term in Section 2.05(j).
“LC Disbursement”
means a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
“LC Exposure”
means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the aggregate
principal amount of all LC Disbursements that have not yet been reimbursed at such time. The LC Exposure of any Revolving Lender at any
time shall equal its Applicable Percentage of the aggregate LC Exposure at such time.
“Legal Reservations”
means the application of relevant Debtor Relief Laws, general principles of equity and/or principles of good faith and fair dealing.
“Lenders”
means the Term Lenders, the Revolving Lenders, any Additional Lender, any lender with an Additional Commitment or an outstanding Additional
Loan and any other Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to be
a party hereto pursuant to an Assignment Agreement or as a result of the application of Section 9.05(g).
“Letter of Credit”
means any Standby Letter of Credit or Commercial Letter of Credit issued pursuant to this Agreement (and shall be deemed to include all
Existing Letters of Credit).
“Letter-of-Credit Right” has the meaning
set forth in Article 9 of the UCC.
“Letter of Credit
Sublimit” means $25,000,000, as increased from time to time in accordance with Section 2.22 hereof.
“LIBO Rate”
means, the Published LIBO Rate, as adjusted to reflect applicable reserves prescribed by governmental authorities; provided that,
(a) solely with respect to the Initial Term Loans, in no event shall the LIBO Rate be less than 1.00% per annum and (b) solely with respect
to the Initial Revolving Loans, in no event shall the LIBO Rate be less than 0.00% per annum.
“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capital Lease
having substantially the same economic effect as any of the foregoing), in each case, in the nature of security; provided that
in no event shall an operating lease in and of itself be deemed to constitute a Lien.
“Liquor License Subsidiaries”
means (i) as of the Closing Date, each of the Subsidiaries listed on Schedule 1.01(g) hereto and (ii) thereafter, any other Restricted
Subsidiary of the Borrower established solely for the purpose of satisfying applicable requirements of local Law with respect to the ownership
and use of liquor licenses and which has entered into or has a bona fide intent to enter into (A) a lease pursuant to which such Restricted
Subsidiary leases, as lessee, from Holdings or one or more of its Subsidiaries (other than another Liquor License Subsidiary) snack bar
and related space at one or more bowling centers and (B) a management services agreement with a Loan Party, pursuant to which such Loan
Party provides employees, management and related services to such Subsidiary.
“Limited Condition
Transaction” means any acquisition, Investment, Disposition, Restricted Payment or Restricted Debt Payment permitted by this
Agreement, in each case whose consummation is not conditioned on the availability of, or on obtaining, third-party financing.
“Limited Recourse
Financing” means, with respect to any Person, Indebtedness to the extent: (i) such Person, subject to customary exceptions for
nonrecourse Indebtedness financing, shall not have personal liability with respect to the Indebtedness and the lender thereunder shall
only seek recourse for satisfaction of the Indebtedness against the property or collateral secured thereunder; and (ii) no default with
respect thereto would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Loans or Loans under
any Second Lien Facility) of such Person to declare a default on such other Indebtedness or cause the payment thereof to be accelerated
or payable prior to its stated maturity.
“Loan Documents”
means this Agreement, any Promissory Note, each Loan Guaranty, the Collateral Documents, the Intercreditor Agreement, any Acceptable Intercreditor
Agreement and any other document or instrument designated by the Borrower and the Administrative Agent as a “Loan Document”,
including any Incremental Facility Amendment, Refinancing Amendment or Extension Amendment or any other amendment hereto or thereto. Any
reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto.
“Loan Guaranty”
means (a) the Guaranty Agreement, substantially in the form of Exhibit I hereto, executed by each Loan Party party thereto and
the Administrative Agent for the benefit of the Secured Parties and (b) each other guaranty agreement executed by any Person pursuant
to Section 5.12 in substantially the form attached as Exhibit I hereto or another form that is otherwise reasonably satisfactory
to the Administrative Agent and the Borrower.
“Loan Installment Date” has the meaning
assigned to such term in Section 2.10(a).
“Loan Parties” means Holdings, the Borrower
and each Subsidiary Guarantor.
“Loans”
means any Initial Term Loan, any Additional Term Loan, any Revolving Loan, any Swingline Loan or any Additional Revolving Loan.
“Management Investors”
means the officers, directors, managers, employees and members of management of (i) the Borrower, (ii) any Parent Company and/or (iii)
any subsidiary of the Borrower (including, on the Closing Date, those of the Target and its subsidiaries) and the Immediate Family Members
of any of the foregoing.
“Margin Stock” has the meaning assigned
to such term in Regulation U.
“Market Capitalization”
means, at any date of determination pursuant to Section 1.04(e), the amount equal to (a) the total number of then issued and outstanding
shares of common Capital Stock of the Borrower or any Parent Company multiplied by (b) the arithmetic mean of the closing prices
per share of such common Capital Stock on the principal securities exchange on which such common Capital Stock are traded for the 30 consecutive
trading days immediately preceding such date.
“Market Intercreditor
Agreement” means an intercreditor or subordination agreement or arrangement the terms of which are either (a)(i) consistent
with market terms governing intercreditor arrangements for the sharing or subordination of liens or arrangements relating to the distribution
of payments, as applicable, at the time the applicable agreement or arrangement is proposed to be established in light of the type of
Indebtedness subject thereto or (ii) taken as a whole, not materially less favorable to the Lenders than the terms of any Acceptable Intercreditor
Agreement governing similar priorities that is then in effect, in each case as determined by the Borrower in good faith or (b) in the
event a “Market Intercreditor Agreement” has been entered into after the Closing Date meeting the requirement of the preceding
clause (a), the terms of which are, taken as a whole, not materially less favorable to the Lenders than the terms of such Market Intercreditor
Agreement to the extent such agreement governs similar priorities.
“Material Adverse
Effect” means (a) on the Closing Date, a Closing Date Material Adverse Effect and (b) after the Closing Date, a material adverse
effect on (i) the business, financial condition or results of operations, in each case, of the Borrower and its Restricted Subsidiaries,
taken as a whole or (ii) the material rights and remedies (taken as a whole) of the Administrative Agent under the applicable Loan Documents.
“Material Debt
Instrument” means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged
and delivered to the Administrative Agent (or its bailee) pursuant to the Security Agreement.
“Material Real Estate
Asset” means any “fee-owned” Real Estate Asset acquired by any Loan Party after the Closing Date (other than as
part of the iStar Exchange or EAP Substitution) having a fair market value (as determined by the Borrower in good faith after taking into
account any liabilities with respect thereto that impact such fair market value) in excess of $12,500,000 as of the date of acquisition
thereof (provided that the aggregate fair market value of all properties acquired after the Closing Date and so excluded on account of
such dollar threshold (each determined at the time of such initial exclusion) shall not exceed $50,000,000).
“Maturity Date” means (a) with respect to the Initial Revolving Facility, the Initial Revolving Credit Maturity Date, (b) with respect to the
Initial Term Loans, the Initial Term Loan Maturity Date, (c) with respect to any Replacement Term Loans or Replacement Revolving Facility,
the final maturity date for such Replacement Term Loans or Replacement Revolving Facility, as the case may be, as set forth in the applicable
Refinancing Amendment, (d) with respect to any Incremental Facility, the final maturity date set forth in the applicable Incremental Facility
Amendment and (e) with respect to any Extended Revolving Credit Commitment or Extended Term Loans, the final maturity date set forth in
the applicable Extension Amendment.
“Maximum Rate” has the meaning assigned
to such term in Section 9.19.
“Merger Sub 1” has the meaning assigned
to such term in the Preamble to this Agreement.
“Merger Sub 1 Merger”
has the meaning assigned to such term in the Recitals to this Agreement.
“Merger Sub 2” has the meaning assigned
to such term in the Preamble to this Agreement.
“Merger Sub 2 Merger”
has the meaning assigned to such term in the Recitals to this Agreement.
“Mergers”
or “Merger” means the Merger Sub 1 Merger and/or the Merger Sub 2 Merger, as the context may require.
“MFN Provision” has the meaning assigned
to such term in Section 2.22(a)(v).
“Minimum Equity Percentage”
has the meaning assigned to such term in the Recitals to this Agreement.
“Minimum Extension Condition” has the
meaning assigned to such term in Section 2.23(b).
“Moody’s” means Moody’s Investors
Service, Inc.
“Mortgage”
means any mortgage, deed of trust, deed to secure debt or other agreement which conveys or evidences a Lien in favor of the Administrative
Agent, for the benefit of the Administrative Agent and the relevant Secured Parties, on any Material Real Estate Asset constituting Collateral.
“Mortgage Policy”
has the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement”.
“Multiemployer Plan”
means any employee benefit plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA, that is subject to the
provisions of Title IV of ERISA, and in respect of which the Borrower or any of its Restricted Subsidiaries, or any of their respective
ERISA Affiliates, makes or is obligated to make contributions or with respect to which any of them has any ongoing obligation or liability,
contingent or otherwise.
“Narrative Report”
means, with respect to the financial statements with respect to which it is delivered, a management discussion and narrative report describing
the operations of the Borrower and its Restricted Subsidiaries for the applicable Fiscal Quarter or Fiscal Year and for the period from
the beginning of the then-current Fiscal Year to the end of the period to which the relevant financial statements relate.
“Net Insurance/Condemnation
Proceeds” means an amount equal to: (a) any Cash payments or proceeds (including Cash Equivalents) received by the Borrower
or any of its Restricted Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder of any assets of
the Borrower or any of its Restricted Subsidiaries or (ii) as a result of the taking of any assets of the Borrower or any of its Restricted
Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets
to a purchaser with such power under threat of such a taking, minus (b) in respect of the Loan Parties or any of their respective subsidiaries,
Affiliates or direct or indirect equityholders (i) any actual out-of-pocket costs and expenses incurred in connection with the adjustment,
settlement or collection of any claims in respect thereof, (ii) payment of the outstanding principal amount of, premium or penalty, if
any, and interest and other amounts on any Indebtedness (other than the Loans, Indebtedness under any Second Lien Facility and any Indebtedness
secured by a Lien on the Collateral that is pari passu with or expressly subordinated to the Lien on the Collateral securing the
Secured Obligations) that is secured by a Lien on the assets in question and that is required to be repaid or otherwise comes due or would
be in default under the terms thereof as a result of such loss, taking or sale, (iii) in the case of a taking, the reasonable out-of-pocket
costs of putting any affected property in a safe and secure position, (iv) any selling costs and out-of-pocket expenses (including reasonable
broker’s fees or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums,
and related search and recording charges, deed or mortgage recording taxes, other expenses and brokerage, consultant and other customary
fees actually incurred in connection therewith and transfer and similar Taxes and the Borrower’s good faith estimate of income Taxes
paid or payable (including pursuant to Tax sharing arrangements or that are or would be imposed on intercompany distributions with such
proceeds)) in connection with any sale or taking of such assets as described in clause (a) of this definition, (v) any amounts
provided as a reserve in accordance with GAAP against any liabilities under any indemnification obligation or purchase price adjustments
associated with any sale or taking of such assets as referred to in clause (a) of this definition (provided that to the
extent and at the time any such amounts are released from such reserve, other than to make a payment for which such amount was reserved,
such amounts shall constitute Net Insurance/Condemnation Proceeds) and (vi) in the case of any covered loss or taking from any non-Wholly-Owned
Subsidiary, the pro rata portion thereof (calculated without regard to this clause (vi)) attributable to minority interests and
not available for distribution to or for the account of the Borrower or a Wholly-Owned Subsidiary as a result thereof.
“Net Proceeds”
means (a) with respect to any Disposition (including any Prepayment Asset Sale), the Cash proceeds (including Cash Equivalents and Cash
proceeds subsequently received (as and when received) in respect of non-cash consideration initially received), net of (with respect to
any Loan Party or its subsidiaries, Affiliates or direct or indirect equity owners) (i) selling costs and out-of-pocket expenses (including
broker’s fees or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums,
and related search and recording charges, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other
customary fees actually incurred in connection therewith and transfer and similar Taxes and the Borrower’s good faith estimate of
income Taxes paid or payable (including pursuant to Tax sharing arrangements or that are or would be imposed on intercompany distributions
with such proceeds) in connection with such Disposition), (ii) amounts provided as a reserve in accordance with GAAP against any liabilities
under any indemnification obligation or purchase price adjustment associated with such Disposition (provided that to the extent
and at the time any such amounts are released from such reserve, other than to make a payment for which such amount was reserved, such
amounts shall constitute Net Proceeds), (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness
(other than the Loans, Indebtedness under any Second Lien Facility and any other Indebtedness secured by a Lien on the Collateral that
is pari passu with or expressly subordinated to the Lien on the Collateral securing the Secured Obligations) which is secured by the asset
sold in such Disposition and which is required to be repaid or otherwise comes due or would be in default and is repaid (other than any
such Indebtedness that is assumed by the purchaser of such asset), (iv) Cash escrows (until released from escrow to the Borrower or any
of its Restricted Subsidiaries) from the sale price for such Disposition and (v) in the case of any Disposition by any non-Wholly-Owned
Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (v)) attributable to any
minority interest and not available for distribution to or for the account of the Borrower or a Wholly-Owned Subsidiary as a result thereof;
and (b) with respect to any issuance or incurrence of Indebtedness or Capital Stock, the Cash proceeds thereof, net of all Taxes and fees,
commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith.
“New Holdings”
means the Person that shall, immediately following the consummation of a Holdings Reorganization Transaction in accordance with the provisions
of the definition thereof, hold 100% of the Capital Stock of the Borrower.
“Non-Consenting Lender” has the meaning
assigned to such term in Section 2.19(b).
“Non-Debt Fund Affiliate”
means the Sponsor and any Affiliate of the Sponsor, other than any Debt Fund Affiliate.
“Notice of Intent to Cure” has the meaning
assigned to such term in Section 6.15(b).
“Obligations”
means all unpaid principal of and accrued and unpaid interest (including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, all LC Exposure,
all accrued and unpaid fees and all expenses, reimbursements, indemnities and all other advances to, debts, liabilities and obligations
of the Loan Parties to the Lenders or to any Lender, the Administrative Agent, any Issuing Bank or any indemnified party arising under
the Loan Documents in respect of any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute,
contingent, due or to become due, now existing or hereafter arising.
“Organizational Documents”
means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its by-laws, (b) with respect
to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with respect to any general partnership,
its partnership agreement, (d) with respect to any limited liability company, its articles of organization or certificate of formation,
and its operating agreement or limited liability company agreement and (e) with respect to any other form of entity, such other organizational
documents required by local Requirements of Law or customary under the jurisdiction in which such entity is organized to document the
formation and governance principles of such type of entity. In the event that any term or condition of this Agreement or any other Loan
Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference
to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
“Other Applicable Indebtedness” has the
meaning assigned to such term in Section 2.11(b)(i).
“Other Connection
Taxes” means, with respect to any Lender or Administrative Agent, Taxes imposed as a result of a present or former connection
between such recipient and the jurisdiction imposing such Tax (other than connections arising solely from such recipient having executed,
delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under,
or engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes”
means any and all present or future stamp, court or documentary taxes or any intangible, recording, filing or similar taxes, charges or
similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment
made pursuant to Section 2.19). For the avoidance of doubt, Other Taxes do not include any Excluded Taxes.
“Outstanding Amount”
means (a) with respect to Term Loans, Revolving Loans and Swingline Loans on any date, the amount of the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Loans and Swingline Loans,
as the case may be, occurring on such date, (b) with respect to any Letters of Credit, the aggregate amount available to be drawn under
such Letters of Credit after giving effect to any changes in the aggregate amount available to be drawn under such Letters of Credit or
the issuance or expiry of any Letters of Credit, including as a result of any LC Disbursements and (c) with respect to any LC Disbursements
on any date, the amount of the aggregate outstanding amount of such LC Disbursements on such date after giving effect to any disbursements
with respect to any Letter of Credit occurring on such date and any other changes in the aggregate amount of the LC Disbursements as of
such date, including as a result of any reimbursements by the Borrower of unreimbursed LC Disbursements.
“Parent” means A-B Parent LLC, a Delaware
limited liability company.
“Parent Company”
means (a) Holdings and (b) any other Person or group of Persons that are Affiliates of the Sponsor (but in any event not any portfolio
company of the Sponsor), of which the Borrower is an indirect Wholly-Owned Subsidiary.
“Participant” has the meaning assigned
to such term in Section 9.05(c).
“Participant Register” has the meaning
assigned to such term in Section 9.05(c).
“Patent”
means the following: (a) any and all patents and patent applications; (b) all inventions described and claimed therein; (c) all reissues,
divisions, continuations, renewals, extensions and continuations in part thereof; (d) all income, royalties, damages, claims and payments
now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future
infringements thereof; (e) all rights to sue for past, present and future infringements thereof; and (f) all rights corresponding to any
of the foregoing.
“PBGC” means the Pension Benefit Guaranty
Corporation.
“Pension Plan”
means any employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that is subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, which the Borrower or any of its Restricted Subsidiaries,
or any of their respective ERISA Affiliates, maintains or contributes to or has an obligation to contribute to, or otherwise has any liability
for, contingent or otherwise.
“Perfection Certificate” means a certificate
substantially in the form of Exhibit E.
“Perfection Requirements”
means (a) the filing of appropriate financing statements with the office of the Secretary of State or other appropriate office in the
state of organization of each Loan Party, (b) the filing of Intellectual Property Security Agreements or
other appropriate assignments or notices with the U.S. Patent and Trademark Office and/or the U.S. Copyright Office, as applicable, (c)
the proper recording or filing, as applicable, of Mortgages and fixture filings with respect to any Material Real Estate Asset constituting
Collateral, in each case in favor of the Administrative Agent for the benefit of the Secured Parties, (d) the delivery to the Administrative
Agent of any stock certificate or promissory note to the extent required to be delivered by the applicable Loan Documents and (e)
other filings, recordings and registrations necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the
Administrative Agent or to enforce the rights of the Administrative Agent and the Secured Parties under the Loan Documents.
“Permitted Acquisition”
means any acquisition by the Borrower or any of its Restricted Subsidiaries, whether by purchase, merger, amalgamation or otherwise,
of all or a substantial portion of the assets of, or any business line, unit or division or product line (including research and development
and related assets in respect of any product or facility) of, any Person or of a majority of the outstanding Capital Stock of any Person
(and, in any event, including any Investment in any Restricted Subsidiary which serves to increase the Borrower’s or any Restricted
Subsidiary’s respective equity ownership in such Restricted Subsidiary), in each case if (1) such Person is or becomes a Restricted
Subsidiary or (2) such Person, in one transaction or a series of related transactions, is amalgamated, merged or consolidated with or
into, or transfers or conveys all or a substantial portion of its assets (or such division, business line, unit or product line or facility)
to, or is liquidated into, the Borrower and/or any Restricted Subsidiary as a result of such transaction; provided that (i) the
target Person, assets, business or division in respect of such acquisition is a business permitted under Section 5.16 and (ii)
at the applicable time elected by the Borrower in accordance with Section 1.04(e), with respect to such acquisition, no Event of
Default under Section 7.01(a), (f) or (g) shall be continuing.
“Permitted Earlier
Maturity Indebtedness Exception” means, with respect to any Incremental Term Facility and any Incremental Equivalent Debt permitted
to be incurred hereunder, that up to $20,000,000 aggregate principal amount of such Indebtedness outstanding at any time (the “Specified
Debt”) may have a final maturity date that is earlier than, and a Weighted Average Life to Maturity that is shorter than the
remaining Weighted Average Life to maturity of, the Indebtedness with respect to which the Specified Debt is otherwise required to have
a later final maturity date or Weighted Average Life.
“Permitted Equity” has the meaning assigned
to such term in the Recitals to this Agreement.
“Permitted
Holders” means (a) the Investors, (b) the Shannon Holders and (c) any Person with which one or more Investors and/or the
Shannon Holders form a “group” (within the meaning of Section 14(d) of the Exchange Act as in effect on the date hereof)
so long as, in the case of this clause (c), the relevant Investors and /or the Shannon Holders collectively own more than 50%
of the relevant voting stock beneficially owned by the group.
“Permitted Liens” means Liens permitted
pursuant to Section 6.02.
“Permitted Payee”
means any future, current or former director, officer, member of management, manager, employee, independent contractor or consultant (or
any Immediate Family Member or transferee of any of the foregoing) of the Borrower (or any Parent Company or any subsidiary).
“Permitted Reorganization”
means any transaction or undertaking, including Investments, in connection with internal reorganizations and or restructurings (including
in connection with tax planning and corporate reorganizations), so long as, after giving effect thereto, (a) the Loan Parties shall comply
with the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest of the Secured Parties in the Collateral,
taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral immediately prior
to such Permitted Reorganization no longer constituting Collateral) as a result of such Permitted Reorganization.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or any other entity.
“Preferred Capital
Stock” means any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution or winding
up.
“Prepayment Asset
Sale” means any Disposition by the Borrower or its Restricted Subsidiaries made pursuant to Section 6.07(h).
“Primary Obligor” has the meaning assigned
to such term in the definition of “Guarantee”.
“Prime Rate”
means (a) the rate of interest publicly announced, from time to time, by the Administrative Agent at its principal office in New York
City as its “prime rate,” with the understanding that the “prime rate” is one of the Administrative Agent’s
base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for
those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as
the Administrative Agent may designate or (b) if the Administrative Agent has no “prime rate,” the rate of interest last quoted
by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such
rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected
Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein
(as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably determined by
the Administrative Agent).
“Pro Forma Basis”
or “pro forma effect” means, with respect to any determination of the Total Leverage Ratio, the First Lien Leverage
Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated
Total Assets (including component definitions thereof) that each Subject Transaction shall be deemed to have occurred as of the first
day of the applicable Test Period (or, in the case of Consolidated Total Assets (or with respect to any determination pertaining to the
balance sheet, including the acquisition of Cash and Cash Equivalents in connection with an acquisition of a Person, business line, unit,
division or product line), as of the last day of such Test Period) with respect to any test or covenant for which such calculation is
being made and that:
(a) (i)
in the case of (A) any Disposition of all or substantially all of the Capital Stock of any Restricted Subsidiary or any division and/or
product line of the Borrower or any Restricted Subsidiary or (B) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary,
income statement items (whether positive or negative) attributable to the property or Person subject to such Subject Transaction, shall
be excluded as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination
is being made and (ii) in the case of any Permitted Acquisition, Investment and/or designation of an Unrestricted Subsidiary as a Restricted
Subsidiary described in the definition of the term “Subject Transaction”, income statement items (whether positive or negative)
attributable to the property or Person subject to such Subject Transaction shall be included as of the first day of the applicable Test
Period with respect to any test or covenant for which the relevant determination is being made; provided that any pro forma adjustment
may be applied to any such test or covenant solely to the extent that such adjustment is consistent with, subject to the limitations set
forth in and without duplication with respect to the application of, the definition of “Consolidated Adjusted EBITDA”,
(b) any
Expected Cost Savings as a result of any Cost Savings Initiative shall be calculated on a pro forma basis as though such Expected Costs
Savings had been realized on the first day of the applicable Test Period and as if such Expected Cost Savings were realized in full during
the entirety of such period; provided that any pro forma adjustment may be applied to any such test or covenant solely to the extent that
such adjustment is consistent with, subject to the limitations set forth in and without duplication with respect to the application of,
the definition of “Consolidated Adjusted EBITDA”,
(c) any
retirement or repayment of Indebtedness (other than normal fluctuations in revolving Indebtedness incurred for working capital purposes)
shall be deemed to have occurred as of the first day of the applicable Test Period with respect to any test or covenant for which the
relevant determination is being made,
(d) any
Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in connection therewith shall be deemed to have occurred as
of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being made;
provided that (x) if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest
for the applicable Test Period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect
to such Indebtedness at the relevant date of determination (taking into account any interest hedging arrangements applicable to such Indebtedness),
(y) interest on any obligation with respect to any Capital Lease shall be deemed to accrue at an interest rate determined by a Responsible
Officer of the Borrower in good faith to be the rate of interest implicit in such obligation in accordance with GAAP and (z) interest
on any Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a Eurocurrency
interbank offered rate or other rate shall be determined to have been based upon the rate actually chosen, or if none, then based upon
such optional rate chosen by the Borrower, and
(e) the
acquisition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total Assets, whether pursuant to
any Subject Transaction or any Person becoming a subsidiary or merging, amalgamating or consolidating with or into the Borrower or any
of its subsidiaries, or the Disposition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total
Assets described in the definition of “Subject Transaction” shall be deemed to have occurred as of the last day of the applicable
Test Period with respect to any test or covenant for which such calculation is being made.
In the case of any calculation
of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio or Consolidated Total
Assets for any event described above that occurs prior to the date on which financial statements have been (or are required to be) delivered
pursuant to Section 5.01(b) for the Fiscal Year ended on or about June 30, 2017, any such calculation required to be made on a “Pro
Forma Basis” shall use the consolidated financial statements of Holdings delivered to the Arrangers for the Fiscal Quarter ended
April 2, 2017. Notwithstanding anything to the contrary set forth in the immediately preceding paragraph, for the avoidance of doubt,
when calculating the First Lien Leverage Ratio for purposes of the definitions of “Applicable Rate” and “Commitment
Fee Rate” and for purposes of Section 6.15 (other than for the purpose of determining pro forma compliance with Section
6.15 as a condition to taking any action under this Agreement), the events described in the immediately preceding paragraph that occurred
subsequent to the end of the applicable Test Period shall not be given pro forma effect.
“Projections”
means the projections of the Borrower and its Subsidiaries included in the Information Memorandum (or a supplement thereto).
“Promissory Note”
means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of Exhibit G
hereto, evidencing the aggregate outstanding principal amount of Loans of the Borrower to such Lender resulting from the Loans made by
such Lender.
“Public Company Costs”
means Charges associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection therewith and Charges relating to compliance with the provisions of the Securities
Act and the Exchange Act (and in each case, any similar Requirement of Law under any other applicable jurisdiction), as applicable to
companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity or
debt securities, directors’, compensation, fees and expense reimbursement, Charges relating to investor relations, shareholder meetings
and reports to shareholders or debtholders, directors’ and officers’ insurance, listing fees and all executive, legal and
professional fees related to the foregoing.
“Published LIBO Rate”
means, with respect to any Interest Period when used in reference to any Loan or Borrowing, (a) the rate of interest (rounded
upwards, if necessary, to the nearest 1/100th) appearing on Reuters Screen LIBOR01 Page
(or on any successor or substitute page of such service, or any successor to such service as determined by Administrative Agent) as the
London interbank offered rate for deposits in Dollars for a term comparable to such Interest Period, at approximately 11:00 a.m. (London
time) on the date which is two Business Days prior to the commencement of such Interest Period (but if more than one rate is specified
on such page, the rate will be an arithmetic average of all such rates) and (b) if such rate is not available at such time for any reason,
then the “Published LIBO Rate” for such Interest Period shall be the interest rate per annum reasonably determined by the
Administrative Agent in good faith to be the rate per annum at which deposits in Dollars for delivery on the first day of such Interest
Period in immediately available funds in the approximate amount of the LIBO Rate Loan being made, continued or converted by the Administrative
Agent and with a term equivalent to such Interest Period would be offered to the Administrative Agent by major banks in the London or
other offshore interbank market for Dollars at their request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period; provided that if such rate as determined above is at any time negative, the Published LIBO
Rate at such time shall instead be zero.
“Qualified Capital
Stock” of any Person means any Capital Stock of such Person that is not Disqualified Capital Stock.
“Qualified Receivables
Facility” means any Receivables Facility that meets the following conditions: (a) the Borrower shall have determined in good
faith that such Receivables Facility (including financing terms, covenants, termination events and other provisions) is in the aggregate
economically fair and reasonable to the Borrower and its Restricted Subsidiaries; (b) all sales of Receivables Facility Assets and related
assets by the Borrower or any Restricted Subsidiary to the Receivables Subsidiary or any other Person are made at fair market value (as
determined in good faith by the Borrower); (c) the financing terms, covenants, termination events and other provisions thereof shall be
on market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings; and (d) the obligations
under such Receivables Facility are non-recourse (except for customary representations, warranties, covenants and indemnities made in
connection with such facilities) to the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary).
“Qualifying Bid” has the meaning assigned
to such term in the definition of “Dutch Auction”.
“Qualifying IPO” means any transaction or series of related transactions that results in any of the common Capital Stock of
Holdings, any Parent Company or the Borrower being publicly traded on any U.S. national securities exchange or any analogous exchange
or any recognized securities exchange in Canada, the United Kingdom or any country in the European Union.
“Qualifying Lender” has the
meaning assigned to such term in the definition of “Dutch Auction”.
“Ratio Interest Expense”
means, with respect to any Person for any period, (a) consolidated total cash interest expense of such Person and its Restricted Subsidiaries
for such period, (i) including the interest component of any payment under any Capital Lease (regardless of whether accounted for as interest
expense under GAAP) and (ii) excluding (A) amortization, accretion or accrual of deferred financing fees, original issue discount, debt
issuance costs, discounted liabilities, commissions, fees and expenses, (B) any expense arising from any bridge, commitment, structuring
and/or other financing fee (including fees and expenses associated with the Transactions and agency and trustee fees), (C) any expense
resulting from the discounting of Indebtedness in connection with the application of recapitalization accounting or, if applicable, acquisition
accounting, (D) fees and expenses associated with any Dispositions, acquisitions, Investments, issuances of Capital Stock or Indebtedness
(in each case, whether or not consummated), (E) costs associated with obtaining, or breakage costs in respect of, any Hedge Agreement
or any other derivative instrument other than any interest rate Hedge Agreement or interest rate derivative instrument with respect to
Indebtedness, (F) penalties and interest relating to Taxes, (G) any “additional interest” or “liquidated damages”
for failure to timely comply with registration rights obligations, (H) interest expense with respect to Indebtedness of any Parent Company
of such Person appearing on the balance sheet of such Person solely by reason of push-down accounting under GAAP, (I) any payments with
respect to make-whole, prepayment or repayment premiums or other breakage costs of any Indebtedness, (J) any interest expense attributable
to the exercise of appraisal rights or other rights of dissenting shareholders and the settlement of any claims or actions (whether actual,
contingent or potential) with respect thereto in connection with the Transactions or any acquisition or Investment permitted hereunder
and (K) for the avoidance of doubt, any non-cash interest expense attributable to any movement in the mark to market valuation of any
obligation under any Hedge Agreement or any other derivative instrument and/or any payment obligation arising under any Hedge Agreement
or derivative instrument other than any interest rate Hedge Agreement or interest rate derivative instrument with respect to Indebtedness
minus (b) cash interest income for such period. For purposes of this definition, (x) interest in respect of any Capital Lease shall
be deemed to accrue at an interest rate determined by such Person in good faith to be the rate of interest implicit in such Capital Lease
in accordance with GAAP and (y) for the avoidance of doubt, unless already included in the calculation of interest expense, interest expense
shall be calculated after giving effect to any payments made or received under any Hedge Agreement or any other derivative instrument
with respect to Indebtedness.
“Real Estate Asset”
means, at any time of determination, all right, title and interest of any Loan Party in and to any and all parcels of or interests in
real property owned, leased or subleased by a Loan Party (including, but not limited to, land, improvements and fixtures thereon) of such
Loan Party.
“Receivables Facility”
means any of one or more receivables financing facilities or securitization financing facilities as amended, supplemented, modified, extended,
renewed, restated or refunded from time to time, pursuant to which the Borrower or any of the Restricted Subsidiaries sells or grants
a security interest in its Receivables Facility Assets to either (a) a Person that is not a Restricted Subsidiary or (b) a Restricted
Subsidiary or Receivables Subsidiary that in turn funds such purchase by selling or granting a security interest in its Receivables Facility
Assets to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables Subsidiary that
in turn funds itself by borrowing from such a Person, in each case, that constitutes a Qualified Receivables Facility.
“Receivables
Facility Asset” means (a) any accounts receivable, revenue stream or other right of payment, real estate asset, mortgage
receivable or related asset and (b) contract rights, lockbox accounts and records with respect to such assets customarily
transferred therewith, in each case subject to a Receivables Facility.
“Receivables Fees”
means distributions or payments made directly or by means of discounts with respect to any Receivables Facility Asset or participation
interest therein issued or sold in connection with, and other fees and expenses paid to a Person that is not a Restricted Subsidiary in
connection with, any Receivables Facility.
“Receivables Subsidiary”
means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities, and in each case engages
only in activities reasonably related or incidental thereto or another Person formed for the purposes of engaging in a Receivables Facility
in which the Borrower or any subsidiary makes an Investment and to which the Borrower or any subsidiary transfers Receivables Facility
Assets.
“Refinancing” has the meaning assigned
to such term in Section 4.01(h).
“Refinancing Amendment”
means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent and the Borrower executed by (a) Holdings
and the Borrower, (b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion of the Replacement Term Loans
or the Replacement Revolving Facility, as applicable, being incurred pursuant thereto and in accordance with Section 9.02(c).
“Refinancing Indebtedness” has the meaning
assigned to such term in Section 6.01(p).
“Refunding Capital Stock” has the meaning
assigned to such term in Section 6.04(a)(viii).
“Register” has the meaning assigned to
such term in Section 9.05(b).
“Regulation U”
means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Regulation X”
means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Related Funds”
means with respect to any Lender that is an Approved Fund, any other Approved Fund that is managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the respective directors, managers, officers, trustees,
employees, partners, agents, advisors and other representatives of such Person and such Person’s Affiliates.
“Release” means any release,
spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration
of any Hazardous Material into the indoor or outdoor environment (including the abandonment of any barrels, containers or other closed
receptacles containing any Hazardous Material).
“Replaced Revolving Facility” has the meaning
assigned to such term in Section 9.02(c).
“Replaced Term Loans” has the meaning
assigned to such term in Section 9.02(c).
“Replacement Debt”
means any Refinancing Indebtedness (whether borrowed in the form of secured or unsecured loans, issued in a public offering, Rule 144A
under the Securities Act or other private placement or bridge financing in lieu of the foregoing or otherwise) incurred in respect of
Indebtedness permitted under Section 6.01(a) (and any subsequent refinancing of such Replacement Debt).
“Replacement Revolving Facility” has the
meaning assigned to such term in Section 9.02(c).
“Replacement Term Loans” has the meaning
assigned to such term in Section 9.02(c).
“Reply Amount” has the meaning assigned
to such term in the definition of “Dutch Auction”.
“Reply Price” has the meaning assigned
to such term in the definition of “Dutch Auction”.
“Representation and
Warranty Insurance Policy” means the representation and warranty insurance policy obtained by the Sponsor in connection with
the Mergers.
“Representative” has the meaning assigned
to such term in Section 9.13.
“Repricing Transaction”
means each of (a) the optional prepayment (or mandatory prepayment pursuant to Section 2.11(b)(iii)), repayment, refinancing, substitution
or replacement of all or a portion of the Initial Term Loans substantially concurrently with the incurrence by any Loan Party of any broadly
syndicated term loans secured on a pari passu basis with the Initial Term Loans (including any first-lien secured Replacement Term
Loans) having an Effective Yield that is less than the Effective Yield applicable to the Initial Term Loans so prepaid, repaid, refinanced,
substituted or replaced and (b) any amendment, waiver or other modification to this Agreement that would have the effect of reducing the
Effective Yield applicable to the Initial Term Loans; provided that the primary purpose (as determined by the Borrower in good
faith) of such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification was to reduce the
Effective Yield applicable to the Initial Term Loans; provided, further, that in no event shall any such prepayment, repayment,
refinancing, substitution, replacement, amendment, waiver or other modification in connection with a Change of Control, Qualifying IPO
or Transformative Acquisition constitute a Repricing Transaction. Any determination by the Administrative Agent of the Effective Yield
for purposes of the definition shall be conclusive and binding on all Lenders, and the Administrative Agent shall have no liability to
any Person with respect to such determination absent bad faith, gross negligence or willful misconduct.
“Required Excess
Cash Flow Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 3.70:1.00,
50%, (b) if the First Lien Leverage Ratio is less than or equal to 3.70:1.00 and greater than 3.20:1.00, 25% and (c) if the First Lien
Leverage Ratio is less than or equal to 3.20:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies
to the determination of the amount of Excess Cash Flow that is required to be applied to prepay Subject Loans under Section 2.11(b)(i)
for any Excess Cash Flow Period, the First Lien Leverage Ratio shall be determined on the scheduled date of prepayment (after giving pro
forma effect to such prepayment and to any other repayment or prepayment at or prior to the time such Excess Cash Flow prepayment is due).
“Required Lenders”
means, at any time, Lenders having Loans or unused Revolving Credit Commitments or Additional Commitments representing more than 50% of
the sum of the total Loans and such unused commitments at such time.
“Required Net Proceeds
Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 3.70:1.00, 100%, (b)
if the First Lien Leverage Ratio is less than or equal to 3.70:1.00 and greater than 3.20:1.00, 50% and (c) if the First Lien Leverage
Ratio is less than or equal to 3.20:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies to the
determination of the amount of Net Proceeds or Net Insurance/Condemnation Proceeds that are required to be applied to prepay Subject Loans
under Section 2.11(b)(ii) for any payment, the First Lien Leverage Ratio shall be determined on the date on which such proceeds
are received by the applicable Borrower or Restricted Subsidiary (giving pro forma effect to the subject Dispositions and/or casualty
events and the application of the relevant proceeds thereof).
“Required Revolving
Lenders” means, at any time, Lenders having Initial Revolving Loans, Additional Revolving Loans, unused Initial Revolving Credit
Commitments or unused Additional Revolving Credit Commitments representing more than 50% of the sum of the total Initial Revolving Loans,
Additional Revolving Loans and such unused Revolving Credit Commitments at such time.
“Requirements of
Law” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational or
international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions,
decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other
determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having the force of law
and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer”
of any Person means the chief executive officer, the president, the chief financial officer, the treasurer, any assistant treasurer, any
executive vice president, any senior vice president, any vice president or the chief operating officer of such Person and any other individual
or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement, and, as
to any document delivered on the Closing Date, shall include any secretary or assistant secretary or any other individual or similar official
thereof with substantially equivalent responsibilities of a Loan Party and, solely for purposes of notices given pursuant to Article
2, any other officer of the applicable Loan Party so designated by any of the foregoing officers in a written notice to the Administrative
Agent (including, for the avoidance of doubt, by electronic means). Any document delivered hereunder that is signed by a Responsible Officer
of any Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on
the part of such Loan Party, and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Responsible Officer
Certification” means, with respect to the financial statements for which such certification is required, the certification of
a Responsible Officer of the Borrower that such financial statements fairly present, in all material respects, in accordance with GAAP,
the consolidated financial condition of the Borrower as at the dates indicated and its consolidated income and cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end adjustments and, in the case of quarterly financial statements,
the absence of footnotes.
“Restricted Amount” has the meaning set
forth in Section 2.11(b)(iv).
“Restricted Debt”
means any Junior Indebtedness and any Junior Lien Indebtedness, in each case to the extent the outstanding principal amount thereof is
equal to or greater than the Threshold Amount.
“Restricted Debt Payment” has the meaning
set forth in Section 6.04(b).
“Restricted Payment”
means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of the Borrower, except a dividend
payable solely in shares of Qualified Capital Stock (or in options, warrants or other rights to purchase such Qualified Capital Stock)
to the holders of such class, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value
of any shares of any class of the Capital Stock of the Borrower and (c) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of the Capital Stock of the Borrower now or hereafter outstanding.
The amount of any Restricted Payment (other than Cash) shall be the fair market value, as determined in good faith by the Borrower on
the applicable date set forth in Section 1.04(e), of the assets or securities proposed to be transferred or issued by the Borrower
pursuant to such Restricted Payment.
“Restricted Subsidiary”
means, as to any Person, any subsidiary of such Person that is not an Unrestricted Subsidiary. Unless otherwise specified, “Restricted
Subsidiary” shall mean any Restricted Subsidiary of the Borrower.
“Return Bid” has the meaning assigned
to such term in the definition of “Dutch Auction”.
“Revolving Credit
Commitment” means any Initial Revolving Credit Commitment and any Additional Revolving Credit Commitment.
“Revolving Credit
Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of such Lender’s
Initial Revolving Credit Exposure and Additional Revolving Credit Exposure.
“Revolving Facility”
means the Initial Revolving Facility and, if applicable, any Incremental Revolving Facility, any facility governing any Extended Revolving
Credit Commitment or Extended Revolving Loans and any Replacement Revolving Facility.
“Revolving Facility
Test Condition” means, as of any date of determination, without duplication, that the aggregate Outstanding Amount of (a) all
Revolving Loans (including Swingline Loans) as of such date, (b) LC Disbursements as of such date that have not been reimbursed within
three Business Days and (c) Letters of Credit (excluding (i) any Letter of Credit to the extent cash collateralized or back-stopped and
(ii) other Letters of Credit (or any portion thereof) in an aggregate face amount up to $15,000,000 (with only such Letter of Credit amounts
in excess of $15,000,000 being applied for purposes hereof)) exceeds an amount equal to 35% of the Total Revolving Credit Commitment.
“Revolving
Lender” means any Initial Revolving Lender and any Additional Revolving Lender. Unless the context otherwise requires, the
term “Revolving Lenders” shall include the Swingline Lender.
“Revolving Loans” means any Initial Revolving
Loans and any Additional Revolving Loans.
“S&P”
means Standard & Poor’s Financial Services LLC, a subsidiary of the McGraw-Hill Companies, Inc.
“Sale and Lease-Back Transaction” has
the meaning assigned to such term in Section 6.08.
“Sanctioned Country”
means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement,
Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“Sanctioned Person”
means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets
Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State, (b) any Person operating,
organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing
clause (a).
“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the Office of Foreign
Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State.
“Scheduled Consideration” has the meaning
assigned to such term in Section 2.11(b)(i).
“SEC”
means the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of its functions.
“Second Lien Claimholders” has the meaning
set forth in the Intercreditor Agreement.
“Second Lien Collateral Agent” has the
meaning set forth in the Intercreditor Agreement.
“Second Lien Credit
Agreement” means the Second Lien Credit Agreement, dated as of the Closing Date, among, inter alios, Holdings, the Borrower
and Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent and the lenders from time to time party thereto.
“Second Lien Facility”
means the credit facility governed by the Second Lien Credit Agreement and one or more debt facilities or other financing arrangements
(including indentures) providing for loans, notes or other long-term indebtedness that replace or refinance such facility or other financing
arrangement, including any such replacement or refinancing facility or indenture or other financing arrangement that increases or decreases
the amount permitted to be borrowed thereunder or alters the maturity thereof and whether by the same or any other agent, lender or group
of lenders, and any amendments, supplements, modifications, extensions, renewals, restatements, amendments and restatements or refundings
thereof or any such indentures or facilities or other financing arrangement that replace or refinance such credit facility (or any subsequent
replacement thereof), in each case to the extent permitted or not restricted by this Agreement.
“Secured Hedging
Obligations” means all Hedging Obligations (other than any Excluded Swap Obligations) under each Hedge Agreement that (a) is
in effect on the Closing Date between any Loan Party and a counterparty that is the Administrative Agent, a Lender, an Arranger or any
Affiliate of the Administrative Agent, a Lender or an Arranger as of the Closing Date or (b) is entered into after the Closing Date between
any Loan Party and any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger at the time such
Hedge Agreement is entered into, for which such Loan Party agrees to provide security and in each case that has been designated to the
Administrative Agent in writing by the Borrower as being a Secured Hedging Obligation for purposes of the Loan Documents, it being understood
that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan Documents
and (B) to agree to be bound by the provisions of Article 8, Sections 9.03 and 9.10 and the Intercreditor Agreement
and each other Acceptable Intercreditor Agreement as if it were a Lender.
“Secured Leverage
Ratio” means the ratio, as of any date of determination, of (a) Consolidated Secured Debt as of such date to (b) Consolidated
Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “Secured Leverage
Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries; provided that solely for
purposes of calculating the Secured Leverage Ratio in connection with the incurrence of Incremental Equivalent Debt, clause (a) of this
definition shall also include Consolidated Total Debt as of such date that is secured by a Lien on any non-Collateral assets of the Borrower
or any Restricted Subsidiary.
“Secured Obligations”
means all Obligations, together with (a) all Banking Services Obligations and (b) all Secured Hedging Obligations; provided
that Banking Services Obligations and Secured Hedging Obligations shall cease to constitute Secured Obligations on and after the Termination
Date.
“Secured Parties”
means (i) the Lenders, the Swingline Lender and each Issuing Bank, (ii) the Administrative Agent, (iii) each counterparty to a Hedge Agreement
with a Loan Party the obligations under which constitute Secured Obligations, (iv) each provider of Banking Services to any Loan Party
the obligations under which constitute Secured Obligations, (v) the Arrangers and (vi) the beneficiaries of each indemnification obligation
undertaken by any Loan Party under any Loan Document.
“Securities”
means any stock, shares, units, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares
or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing; provided that the term “Securities” shall not include any earn-out agreement or obligation or
any employee bonus or other incentive compensation plan or agreement.
“Securities Act” means the Securities Act of 1933 and the rules and regulations of the SEC promulgated thereunder.
“Securitization Repurchase
Obligation” means any obligation of a seller (or any guaranty of such obligation) of assets subject to a Qualified Receivables
Facility to repurchase such assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including,
without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim
of any kind as a result of any action taken by, any failure to take action by or any other event relating to such seller.
“Security Agreement”
means the First Lien Pledge and Security Agreement, substantially in the form of Exhibit J, among the Loan Parties and the Administrative
Agent for the benefit of the Secured Parties.
“Series A Preferred
Stock” means the shares of preferred stock of Holdings, designated as “Series A Preferred Stock”, having the terms
set forth in the certificate of incorporation of the Target, as amended and restated in connection with the Merger Sub I Merger.
“Shannon Holders”
means (i) Thomas Shannon, (ii) Cobalt Recreation LLC, (iii) any Immediate Family Member of Thomas Shannon, (iv) a trust, family-partnership
or estate-planning vehicle or other legal entity substantially all the economic interests of which are held by or for the benefit of Thomas
Shannon and/or any of his Immediate Family Members and (v) any other Affiliate of Thomas Shannon or any other Shannon Holder, including
The Cobalt Group LLC.
“Shared Incremental
Amount” means, as of any date of determination, (a) the greater of (i) $105,000,000 and (ii) 75% of Consolidated Adjusted EBITDA
as of the last day of the most recently ended Test Period minus (b) (i) the aggregate principal amount of all Incremental Facilities
and/or Incremental Equivalent Debt originally incurred or issued in reliance on the Shared Incremental Amount outstanding on such date
and (ii) the aggregate principal amount of “Incremental Loans” and “Incremental Equivalent Debt” (each as defined
in the Second Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien Facility) originally incurred
or issued in reliance on the Shared Incremental Amount outstanding on such date, in each case after giving effect to any reclassification
of any such Indebtedness as having been incurred under clause (e) of the definition of “Incremental Cap” hereunder
or clause (e) of the definition of “Incremental Cap” (as defined in the Second Lien Credit Agreement or any equivalent
term under any documentation governing any Second Lien Facility).
“Similar Business”
means any Person the majority of the revenues of which are derived from a business that would be permitted by Section 5.16 if the
references to “Restricted Subsidiaries” in Section 5.16 were read to refer to such Person.
“SLB Property”
means the real property interests (and Bowling Equipment and other tangible personal property located thereon) that are subject to the
iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“SPC” has the meaning assigned to such
term in Section 9.05(e).
“Specified Acquisition
Agreement Representations” means the representations and warranties made by or on behalf of the Target, its subsidiaries or
their respective businesses in the Acquisition Agreement which are material to the interests of the Lenders, but only to the extent that
Merger Sub (or its applicable affiliate) has the right to terminate its obligations under the Acquisition Agreement or to decline to consummate
the Acquisition as a result of a breach of such representations and warranties.
“Specified Representations”
means the representations and warranties set forth in Section 3.01(a)(i) (as it relates to Holdings and the Borrower), Section
3.02 (as it relates to the due authorization, execution, delivery and performance of the Loan Documents and the enforceability thereof),
Section 3.03(b)(i) (limited to the execution, delivery and performance of the Loan Documents, incurrence of the Indebtedness thereunder
and the granting of Guarantees and Liens in respect thereof), Section 3.08, Section 3.12, Section 3.14 (as it relates
to the creation, validity and perfection of the security interests in the Collateral, subject to the last sentence of Section 4.01),
Section 3.16 and Sections 3.17(a)(ii) and (c).
“Sponsor”
means Atairos Group, Inc. and the funds, partnerships, investment vehicles or other co-investment vehicles or other entities managed,
advised or controlled by Atairos Group, Inc. or its Affiliates (but in any event excluding any portfolio company of any of the foregoing).
“Standard Securitization
Undertakings” means representations, warranties, covenants and indemnities entered into by the Borrower or any Subsidiary of
the Borrower which the Borrower has determined in good faith to be customary in a Receivables Facility, including, without limitation,
those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Securitization Repurchase Obligation
shall be deemed to be a Standard Securitization Undertaking.
“Standby Letter of Credit”
means any Letter of Credit other than any Commercial Letter of Credit.
“Stated Amount”
means, with respect to any Letter of Credit, at any time, the maximum amount available to be drawn thereunder, in each case determined
(x) as if any future automatic increases in the maximum available amount provided for in any such Letter of Credit had in fact occurred
at such time and (y) without regard to whether any conditions to drawing could then be met but after giving effect to all previous drawings
made thereunder.
“Subject Loans”
means, as of any date of determination, (a) Initial Term Loans and (b) any Additional Term Loans that are subject to ratable prepayment
requirements in accordance with Section 2.11(b) on such date of repayment.
“Subject Person”
has the meaning assigned to such term in the definition of “Consolidated Net Income”.
“Subject Proceeds” has the meaning assigned
to such term in Section 2.11(b)(ii).
“Subject Transaction”
means, with respect to any Test Period, (a) the Transactions, (b) any Permitted Acquisition or any other acquisition, whether by purchase,
merger, amalgamation or otherwise, of all or substantially all of the assets of, or any business line, unit or division of, any Person
or any facility, or of a majority of the outstanding Capital Stock of any Person (but in any event including any Investment in any Restricted
Subsidiary which serves to increase the Borrower’s or any Restricted Subsidiary’s respective equity ownership in such Restricted
Subsidiary), in each case that is permitted by this Agreement, (c) any Disposition of all or substantially all of the assets or Capital
Stock of a subsidiary (or any business unit, line of business or division of the Borrower or a Restricted Subsidiary) not prohibited by
this Agreement, (d) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted
Subsidiary in accordance with Section 5.10 hereof, (e) any incurrence or repayment of Indebtedness (other than revolving Indebtedness),
(f) any Cost Savings Initiative and/or (g) any other event that by the terms of the Loan Documents requires pro forma compliance with
a test or covenant hereunder or requires such test or covenant to be calculated on a pro forma basis.
“Subsidiary”
or “subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of the total voting power of stock or other ownership interests entitled
(without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or
other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is
at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or a combination
thereof; provided that in determining the percentage of ownership interests of any Person controlled by another Person, no ownership
interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding. Unless otherwise specified,
“subsidiary” shall mean any subsidiary of the Borrower.
“Subsidiary Guarantor”
means (x) on the Closing Date, each subsidiary of the Borrower (other than any subsidiary that is an Excluded Subsidiary on the
Closing Date) and (y) thereafter, each subsidiary of the Borrower that becomes a guarantor of the Secured Obligations pursuant to the
terms of this Agreement, in each case, until such time as the relevant subsidiary is released from its obligations under the Loan Guaranty
in accordance with the terms and provisions hereof. Notwithstanding the foregoing, the Borrower may from time to time, upon notice to
the Administrative Agent (or in the case of a Foreign Subsidiary, the prior written consent of the Administrative Agent (not to be unreasonably
withheld or delayed)), elect to cause any subsidiary that would otherwise be an Excluded Subsidiary to become a Subsidiary Guarantor hereunder
(but shall have no obligation to do so), subject to the satisfaction of guarantee and collateral requirements consistent with the Collateral
and Guarantee Requirements or otherwise reasonably acceptable to the Borrower and the Administrative Agent (which shall include, in the
case of a Foreign Subsidiary, guarantee and collateral requirements customary under local law, including customary local limitations).
“Successor Borrower” has the meaning assigned
to such term in Section 6.07(a).
“Swap Obligations”
means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes
a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline Exposure”
means, at any time, the aggregate principal amount of Swingline Loans outstanding at such time. The Swingline Exposure of any Revolving
Lender at any time shall be equal to its Applicable Percentage of the aggregate Swingline Exposure at such time.
“Swingline Lender”
means JPM, in its capacity as lender of Swingline Loans hereunder, or any successor lender of Swingline Loans hereunder.
“Swingline Loan” means any Loan made pursuant
to Section 2.04.
“Target” means Bowlmor AMF Corp., a Delaware
corporation.
“Tax Group” has the meaning assigned to
such term in Section 6.04(a)(xv).
“Taxes”
means any and all present and future taxes (including “business activities” taxes), levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions
to tax or penalties applicable thereto.
“Termination Date” has the meaning assigned
to such term in the lead-in to Article 5.
“Term Facility”
means the Term Loans provided to or for the benefit of the Borrower pursuant to the terms of this Agreement.
“Term Lender”
means a Person with an Initial Term Loan Commitment or outstanding Initial Term Loan or an Additional Term Loan Commitment or an outstanding
Additional Term Loan.
“Term Loan” means the Initial Term Loans
and, if applicable, any Additional Term Loans.
“Test Period”
means, as of any date, (a) for purposes of determining actual compliance with Section 6.15(a), the period of four consecutive Fiscal
Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered
(or are required to have been delivered) and (b) for any other purpose, the period of four consecutive Fiscal Quarters then most recently
ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (or are
required to have been delivered) or, if earlier, are internally available; it being understood and agreed that prior to the first delivery
(or required delivery) of financial statements under Section 5.01(a), “Test Period” means the period of four consecutive
Fiscal Quarters most recently ended for which financial statements of Holdings and its consolidated subsidiaries are available.
“Threshold Amount” means $30,000,000.
“Total Leverage Ratio”
means the ratio, as of any date of determination, of (a) Consolidated Total Debt outstanding as of such date to (b) Consolidated Adjusted
EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “Total Leverage Ratio”
is used in this Agreement in each case for the Borrower and its Restricted Subsidiaries.
“Total Revolving
Credit Commitment” means, at any time, the aggregate amount of the Revolving Credit Commitments as in effect at such time. The
Total Revolving Credit Commitment as of the Closing Date is $50,000,000.
“Trademark”
means the following: (a) all trademarks (including service marks), common law marks, trade names, trade dress, and logos, slogans and
other indicia of origin under the laws of any jurisdiction in the world, and the registrations and applications for registration thereof
and the goodwill of the business symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims and payments for past and
future infringements thereof; (d) all rights to sue for past, present and future infringements of the foregoing, including the right to
settle suits involving claims and demands for royalties owing; and (e) all domestic rights corresponding to any of the foregoing.
“Transaction Costs”
means fees, premiums, expenses and other transaction costs (including original issue discount or upfront fees) payable or otherwise borne
by any Parent Company and/or its subsidiaries in connection with the Transactions and the transactions contemplated thereby.
“Transactions”
means, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party and
the Borrowing of Loans hereunder, (b) the Acquisition, (c) the Equity Contribution, (d) the Refinancing, (e) the execution, delivery and
performance of, including the incurrence of Indebtedness under, the Second Lien Credit Agreement and (f) the payment of the Transaction
Costs.
“Transformative Acquisition”
means any acquisition or Investment by the Borrower or any Restricted Subsidiary that is either (a) not permitted by the terms of this
Agreement immediately prior to the consummation of such acquisition or Investment or (b) if permitted by the terms of this Agreement immediately
prior to the consummation of such acquisition or Investment, would not provide the Borrower and its Subsidiaries with adequate flexibility
under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by
the Borrower acting in good faith.
“Treasury Capital Stock” has the meaning
assigned to such term in Section 6.04(a)(viii).
“Treasury Regulations”
means the U.S. federal income tax regulations promulgated under the Code.
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate or the Alternate Base Rate.
“UCC” means
the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required
to be applied in connection with the creation or perfection of security interests.
“Unrestricted Cash
Amount” means, as to any Person on any date of determination, the amount of (a) unrestricted Cash and Cash Equivalents of such
Person and its Restricted Subsidiaries and (b) Cash and Cash Equivalents of such Person and its Restricted Subsidiaries that are restricted
in favor of the Credit Facilities, any Second Lien Facility and/or other permitted pari passu or junior secured Indebtedness (which
may also include Cash and Cash Equivalents securing other Indebtedness that is secured by a Lien on Collateral along with the Credit Facilities,
any Second Lien Facility and/or any other permitted pari passu or junior secured Indebtedness), in each case as determined in accordance
with GAAP.
“Unrestricted Subsidiary”
means any subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary on the Closing Date and listed on Schedule
5.10 hereto or after the Closing Date pursuant to Section 5.10.
“Unused Revolving
Credit Commitment” of any Lender, at any time, means the remainder of the Revolving Credit Commitment of such Lender at such
time, if any, less the sum of (a) the aggregate Outstanding Amount of Revolving Loans made by such Lender, (b) such Lender’s LC
Exposure at such time and (c) except for purposes of Section 2.12(a), such Lender’s Applicable Percentage of the aggregate
Outstanding Amount of Swingline Loans.
“U.S.” or “United States”
means the United States of America.
“USA PATRIOT Act”
means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title
III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“U.S. Tax Compliance Certificate” has
the meaning assigned to such term in Section 2.17(f).
“Weighted Average
Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum
of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required
scheduled payments of principal, including payment at final maturity, in respect thereof by (ii) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of
such Indebtedness; provided that the effect of any prepayment made in respect of such Indebtedness shall be disregarded in making
such calculation.
“Wholly-Owned Subsidiary”
of any Person means a subsidiary of such Person 100% of the Capital Stock of which (other than directors’ qualifying shares or shares
required by Requirements of Law to be owned by a resident of the relevant jurisdiction) are owned by such Person or by one or more Wholly-Owned
Subsidiaries of such Person.
“Write-Down and
Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution
Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers
are described in the EU Bail-In Legislation Schedule.
Section 1.02. Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Term
Loan”) or by Type (e.g., a “LIBO Rate Loan”) or by Class and Type (e.g., a “LIBO Rate Term Loan”).
Borrowings also may be classified and referred to by Class (e.g., a “Term Loan Borrowing”) or by Type (e.g., a “LIBO
Rate Borrowing”) or by Class and Type (e.g., a “LIBO Rate Term Loan Borrowing”).
Section 1.03. Terms Generally.
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall.” The words “ordinary course of business”
or “ordinary course” shall, with respect to any Person, be deemed to refer to items or actions that are consistent with industry
practice of such Person’s business industry or such Person’s past practice (it being understood that the sale of accounts
receivable (and related assets) pursuant to supply-chain, factoring or reverse factoring arrangements entered into by the Borrower and
its Restricted Subsidiaries shall be deemed to be in the ordinary course of business so long as such accounts receivable (and related
assets) are sold for Cash in an amount not less than 95% of the face amount thereof). Unless the context requires otherwise (i) any definition
of or reference to any agreement, instrument or other document herein or in any Loan Document (including any Loan Document, the Second
Lien Credit Agreement and any Loan Document referred to therein) shall be construed as referring to such agreement, instrument or other
document as from time to time amended, restated, amended and restated, supplemented or otherwise modified or extended, replaced or refinanced
(subject to any restrictions or qualifications on such amendments, restatements, amendment and restatements, supplements or modifications
or extensions, replacements or refinancings set forth herein), (ii) any reference to any Requirement of Law in any Loan Document shall
include all statutory and regulatory provisions consolidating, amending, replacing, supplementing, superseding or interpreting such Requirement
of Law, (iii) any reference herein or in any Loan Document to any Person shall be construed to include such Person’s successors
and permitted assigns, (iv) the words “herein,” “hereof” and “hereunder,” and words of similar import,
when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision
hereof, (v) all references herein or in any Loan Document to Articles, Sections, clauses, paragraphs, Exhibits and Schedules shall be
construed to refer to Articles, Sections, clauses and paragraphs of, and Exhibits and Schedules to, such Loan Document, (vi) in the computation
of periods of time in any Loan Document from a specified date to a later specified date, the word “from” means “from
and including”, the words “to” and “until” mean “to but excluding” and the word “through”
means “to and including” and (vii) the words “asset” and “property”, when used in any Loan Document,
shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including
Cash, securities, accounts and contract rights.
(b) For purposes of determining
compliance at any time with Sections 6.01, 6.02, 6.04, 6.06 and 6.07, in the event that any Indebtedness,
Lien, Restricted Payment, Restricted Debt Payment, Investment or Disposition, as applicable, or portion thereof, at any time meets the
criteria of more than one of the categories of transactions or items permitted pursuant to any clause of such Sections 6.01 (other
than Sections 6.01(a) (in the case of Indebtedness incurred on the Closing Date) and (x)), 6.02 (other than Sections
6.02(a) and (t) (with respect to Section 6.01(x)), 6.04, 6.06 and 6.07 (each of the foregoing,
a “Reclassifiable Item”), the Borrower, in its sole discretion, may, from time to time, divide, classify or reclassify
such Reclassifiable Item (or portion thereof) under one or more clauses of each such Section and will only be required to include such
Reclassifiable Item (or portion thereof) in any one category; provided that, upon delivery of any financial statements pursuant
to Section 5.01(a) or (b) following the initial incurrence or making of any such Reclassifiable Item, if such Reclassifiable
Item could, based on such financial statements, have been incurred in reliance on Section 6.01(z) (in the case of Indebtedness
and Liens) or any “ratio-based” basket (in the case of all other Reclassifiable Items), such Reclassifiable Item shall automatically
be reclassified as having been incurred or made under the applicable provisions of Section 6.01(z) or such “ratio-based”
basket, as applicable (in each case, subject to any other applicable provision of Section 6.01(z) or such “ratio-based”
basket, as applicable). It is understood and agreed that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment
and/or Disposition need not be permitted solely by reference to one category of permitted Indebtedness, Lien, Restricted Payment, Restricted
Debt Payment, Investment and/or Disposition under Sections 6.01, 6.02, 6.04, 6.06 or 6.07, respectively,
but may instead be permitted in part under any combination thereof or under any other available exception.
Section 1.04. Accounting
Terms; GAAP.
(a) (i)
All financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time to
time and, except as otherwise expressly provided herein, all terms of an accounting or financial nature that are used in calculating the
Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted EBITDA,
Consolidated Net Income or Consolidated Total Assets shall be construed and interpreted in accordance with GAAP, as in effect from time
to time; provided that (A) if any change to GAAP or in the application thereof (including the conversion to IFRS as described below)
is implemented after the date of delivery of the financial statements described in Section 3.04(a) and/or there is any change in
the functional currency reflected in the financial statements or (B) if the Borrower elects or is required to report under IFRS, the Borrower
or the Required Lenders may request to amend the relevant affected provisions hereof (whether or not the request for such amendment is
delivered before or after the relevant change or election) to eliminate the effect of such change or election, as the case may be, on
the operation of such provisions and (x) the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment
of the relevant affected provisions (it being understood that no amendment or similar fee shall be payable to the Administrative Agent
or any Lender in connection therewith) to preserve the original intent thereof in light of the applicable change or election, as the case
may be and (y) the relevant affected provisions shall be interpreted on the basis of GAAP and the currency, in each case, as in effect
and applied immediately prior to the applicable change or election, as the case may be, until the request for amendment has been withdrawn
by the Borrower or the Required Lenders, as applicable, or this Agreement has been amended as contemplated hereby. Any consent required
from the Administrative Agent or any Required Lender with respect to the foregoing shall not be unreasonably withheld, conditioned or
delayed.
(ii) All
terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein
shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10-25 (previously referred to as
Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification, International Accounting Standard or
Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any
subsidiary at “fair value,” as defined therein, (ii) any treatment of Indebtedness in respect of convertible debt instruments
under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification, International Accounting Standard or Financial
Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein,
and such Indebtedness shall at all times be valued at the full stated principal amount thereof and (iii) the application of Accounting
Standards Codification 480, 815, 805 and 718 (to the extent these pronouncements under Accounting Standards Codification 718 result in
recording an equity award as a liability on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries in the circumstance
where, but for the application of the pronouncements, such award would have been classified as equity). If the Borrower notifies the Administrative
Agent that the Borrower (or its applicable Parent Company) is required to report under IFRS or has elected to do so through an early adoption
policy, “GAAP” shall mean international financial reporting standards pursuant to IFRS (provided thereafter, the Borrower
cannot elect to report under GAAP).
(b) Notwithstanding anything
to the contrary herein, but subject to Sections 1.04(d), (e) and (g), all financial ratios and tests (including
the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated
Total Assets, Consolidated Net Income and Consolidated Adjusted EBITDA) contained in this Agreement that are calculated with respect
to any Test Period during which any Subject Transaction occurs shall be calculated with respect to such Test Period and such Subject
Transaction on a Pro Forma Basis. Further, if since the beginning of any such Test Period and on or prior to the date of any required
calculation of any financial ratio or test (x) any Subject Transaction has occurred or (y) any Person that subsequently became a Restricted
Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning
of such Test Period has consummated any Subject Transaction, then, in each case, any applicable financial ratio or test shall be calculated
on a Pro Forma Basis for such Test Period as if such Subject Transaction had occurred at the beginning of the applicable Test Period
(or, in the case of Consolidated Total Assets (or with respect to any determination pertaining to the balance sheet, including the acquisition
of Cash and Cash Equivalents), as of the last day of such Test Period), it being understood, for the avoidance of doubt, that solely
for purposes of (x) calculating quarterly compliance with Section 6.15 and (y) calculating the First Lien Leverage Ratio for purposes
of the definitions of “Applicable Rate” and “Commitment Fee Rate”, in each case, the date of the required calculation
shall be the last day of the Test Period, and no Subject Transaction occurring thereafter shall be taken into account.
(c) Notwithstanding
anything to the contrary contained in paragraph (a) above or in the definition of “Attributable Debt”, “Capital
Lease” or “Capital Lease Obligation”, in the event of an accounting change or a change in the application of GAAP requiring
all or certain leases to be capitalized or otherwise accounted for as liabilities on the balance sheet of the applicable Person, unless
the Borrower elects otherwise, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof)
that would constitute Capital Leases (including leases that are classified as “Financing Leases” for purposes of GAAP) in
conformity with GAAP on the date hereof shall be considered Capital Leases, and all calculations and deliverables under this Agreement
or any other Loan Document shall be made or delivered, as applicable, in accordance therewith. Notwithstanding anything contained in any
Loan Document to the contrary, the leases relating to the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 and any Excluded Property
Sale/Leaseback Transaction shall be deemed not to be and shall not otherwise be classified as a Capital Lease (and the obligations in
respect thereof shall not be considered Indebtedness) for purposes of this Agreement and any other Loan Document.
(d) For
purposes of determining the permissibility of any action, change, transaction or event that by the terms of the Loan Documents requires
a calculation of any financial ratio or financial test (including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured
Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated Total
Assets), subject to the succeeding clause (e), such financial ratio or test shall be calculated at the time such action is taken,
such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall
be deemed to have occurred solely as a result of a change in such financial ratio or financial test occurring after the time such action
is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding
anything to the contrary herein (including in connection with any calculation made on a Pro Forma Basis), if the terms of this Agreement
require (i) compliance with any financial ratio or financial test (including, without limitation, Section 6.15(a) hereof, any First
Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage Ratio test) and/or
any cap expressed as a percentage of Consolidated Total Assets or Consolidated Adjusted EBITDA, (ii) accuracy of any representation or
warranty and/or the absence of a Default or Event of Default (or any type of default or event of default) or (iii) compliance with any
basket, as a condition to (A) the consummation of any transaction (including in connection with any acquisition or similar Investment
or the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of any Restricted Debt
Payment, in each case in connection with a Limited Condition Transaction, the determination of whether the relevant condition is satisfied
may be made, at the election of the Borrower, (1) in the case of any acquisition or similar Investment or any Disposition and any transaction
related thereto, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either
(x) the execution of the definitive agreement with respect to such acquisition, Investment or Disposition or (y) the consummation of such
acquisition, Investment or Disposition, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements
for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted
Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently
ended Test Period at the time of) (x) delivery of notice with respect to such Restricted Debt Payment or (y) the making of such Restricted
Debt Payment, in each case, after giving effect to the relevant acquisition, Restricted Payment and/or Restricted Debt Payment or other
transaction on a Pro Forma Basis (including, in each case, giving effect to the relevant transaction, any relevant Indebtedness (including
the intended use of proceeds thereof) and, at the election of the Borrower, giving pro forma effect to other prospective Limited Condition
Transactions that are acquisitions or similar Investments for which definitive agreements have been executed, and no Default or Event
of Default shall be deemed to have occurred solely as a result of an adverse change in such financial ratio or test occurring after the
time such election is made (but any subsequent improvement in the applicable financial ratio or test may be utilized by the Borrower or
any Restricted Subsidiary). For the avoidance of doubt, if the Borrower shall have elected the option set forth in clause (x) of any of
the preceding clauses (1), (2) or (3) in respect of any transaction, then the Borrower shall be permitted to consummate such transaction
even if any applicable test or condition shall cease to be satisfied subsequent to the Borrower’s election of such option. The provisions
of this paragraph (e) shall also apply in respect of the incurrence of any Incremental Facility.
(f)
[Reserved].
(g) Notwithstanding
anything to the contrary herein, unless the Borrower otherwise notifies the Administrative Agent, with respect to any amounts
incurred under the Revolving Facility, any Additional Revolving Facility or any other permitted revolving facility or any amounts
incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement (including Section
6.01(x) (as it relates to the incurrence of any “fixed” or similar amount incurred under any Second Lien Facility))
that does not require compliance with a financial ratio or financial test (including any First Lien Leverage Ratio test, any Secured
Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed
Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance
on a provision of this Agreement (including Section 6.01(x) (as it relates to the incurrence of any “incurrence
based” or similar amount incurred under any Second Lien Facility)) that requires compliance with a financial ratio or
financial test (including any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or
any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed
that (A) the incurrence of the Incurrence- Based Amount shall be calculated first without giving effect to any Fixed Amount but
giving full pro forma effect to the use of proceeds of such Fixed Amount and the related transactions and (B) the incurrence of the
Fixed Amount shall be calculated thereafter. Unless the Borrower elects otherwise, the Borrower shall be deemed to have used amounts
under an Incurrence-Based Amount then available to the Borrower prior to utilization of any amount under a Fixed Amount then
available to the Borrower. For the avoidance of doubt, all Indebtedness substantially concurrently incurred will be included for
purposes of calculating compliance with Sections 6.04(a)(xiii), 6.04(b)(vii) and 6.06(dd) (in each case, giving
pro forma effect to the intended use of proceeds thereof).
(h) The
principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the
principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(i) The
increase in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of interest
or a dividend in the form of additional Indebtedness, amortization of original issue discount and/or any increase in the amount of Indebtedness
outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency will not be deemed to be the granting
of a Lien for purposes of Section 6.02.
(j) For
purposes of determining compliance with Section 6.01 or Section 6.02, if any Indebtedness or Lien is incurred in reliance
on a basket measured by reference to a percentage of Consolidated Adjusted EBITDA, and any refinancing or replacement thereof would cause
the percentage of Consolidated Adjusted EBITDA to be exceeded if calculated based on the Consolidated Adjusted EBITDA on the date of such
refinancing or replacement, such percentage of Consolidated Adjusted EBITDA will be deemed not to be exceeded so long as the principal
amount of such refinancing or replacement Indebtedness or other obligation does not exceed an amount sufficient to repay the principal
amount of such Indebtedness or other obligation being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest,
penalties and premiums (including tender, prepayment or repayment premiums) thereon plus underwriting discounts and other customary fees,
commissions and expenses (including upfront fees, original issue discount or initial yield payment) incurred in connection with such refinancing
or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under Section
6.01.
(k) Any
financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific
action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying
the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number).
Section 1.05. Effectuation
of Transactions. Each of the representations and warranties contained in this Agreement (and all corresponding definitions) is made
after giving effect to the Transactions, unless the context otherwise requires.
Section 1.06. Timing of
Payment and Performance. When payment of any obligation or the performance of any covenant, duty or obligation is stated to be due
or required on a day which is not a Business Day, the date of such payment (other than as described in the definition of “Interest
Period”) or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension.
Section 1.07. Times of
Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard,
as applicable).
Section 1.08. Currency
Equivalents Generally.
(a) Notwithstanding
anything to the contrary in clause (b) below, for purposes of any determination under Article 5, Article 6 (other than Section
6.15 and the calculation of compliance with any financial ratio for purposes of taking any action hereunder) or Article 7 with
respect to the amount of any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition, Sale and Lease-Back
Transaction, affiliate transaction or other transaction, event or circumstance, or any determination under any other provision of this
Agreement (any of the foregoing, a “relevant transaction”), in a currency other than Dollars, (i) the Dollar equivalent
amount of a relevant transaction in a currency other than Dollars shall be calculated based on the rate of exchange quoted by the Bloomberg
Foreign Exchange Rates & World Currencies Page (or any successor page thereto, or in the event such rate does not appear on any Bloomberg
Page, by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative
Agent and the Borrower) for such foreign currency, as in effect at 11:00 a.m. (London time) on the date of such relevant transaction (which,
in the case of any Restricted Payment, Restricted Debt Payment, Investment, Disposition or incurrence of Indebtedness, shall be determined
as set forth in Section 1.04(e)); provided, that if any Indebtedness is incurred (and, if applicable, associated Lien granted)
to refinance or replace other Indebtedness denominated in a currency other than Dollars, and the relevant refinancing or replacement would
cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the
date of such refinancing or replacement, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the
principal amount of such refinancing or replacement Indebtedness (and, if applicable, associated Lien granted) does not exceed an amount
sufficient to repay the principal amount of such Indebtedness being refinanced or replaced, except by an amount equal to (x) unpaid accrued
interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts and other customary fees, commissions
and expenses (including upfront fees, original issue discount or initial yield payment) incurred in connection with such refinancing or
replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under Section 6.01
and (ii) for the avoidance of doubt, no Default or Event of Default shall be deemed to have occurred solely as a result of a change in
the rate of currency exchange occurring after the time of any relevant transaction so long as such relevant transaction was permitted
at the time incurred, made, acquired, committed, entered or declared as set forth in clause (i). For purposes of Section 6.15
and the calculation of compliance with any financial ratio for purposes of taking any action hereunder (including for purposes of calculating
compliance with the Incremental Cap) on any relevant date of determination, amounts denominated in currencies other than Dollars shall
be translated into Dollars at the applicable currency exchange rate used in preparing the financial statements delivered pursuant to Sections
5.01(a) or (b) (or, prior to the first such delivery, the financial statements referred to in Section 3.04), as applicable,
for the relevant Test Period. Notwithstanding the foregoing or anything to the contrary herein, to the extent that the Borrower would
not be in compliance with Section 6.15(a) if any Indebtedness denominated in a currency other than Dollars were to be translated
into Dollars on the basis of the applicable currency exchange rate used in preparing the financial statements delivered pursuant to Section
5.01(a) or (b), as applicable, for the relevant Test Period, but would be in compliance with Section 6.15(a) if such
Indebtedness that is denominated in a currency other than in Dollars were instead translated into Dollars on the basis of the average
relevant currency exchange rates over such Test Period (taking into account the currency translation effects, determined in accordance
with GAAP, of any Hedge Agreement permitted hereunder in respect of currency exchange risks with respect to the applicable currency in
effect on the date of determination for the Dollar equivalent amount of such Indebtedness), then, solely for purposes of compliance with
Section 6.15(a), the First Lien Leverage Ratio as of the last day of such Test Period shall be calculated on the basis of such
average relevant currency exchange rates.
(b) Each
provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time
specify with the Borrower’s consent to appropriately reflect a change in currency of any country and any relevant market convention
or practice relating to such change in currency.
Section 1.09. Cashless
Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that
any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental Loans, Replacement
Term Loans, Loans in connection with any Replacement Revolving Facility, Extended Term Loans, Extended Revolving Loans or loans incurred
under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a
“cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any requirement
hereunder or any other Loan Document that such payment be made “in Dollars”, “in immediately available funds”,
“in Cash” or any other similar requirement.
Section 1.10. Alternative
Currencies.
(a) The
Borrower may from time to time request that LIBO Rate Revolving Loans be made and/or Letters of Credit be issued in a currency other than
Dollars; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable
and convertible into Dollars. In the case of any such request with respect to the making of LIBO Rate Revolving Loans, such request shall
be subject to the approval of the Revolving Lenders of the applicable Class that will provide such Loans, and in the case of any such
request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the applicable Issuing Banks,
in each case as set forth in Section 9.02(b)(ii)(E).
(b) Any
such request shall be made to the Administrative Agent not later than 11:00 a.m., ten Business Days prior to the requested date of the
making of such Revolving Loan or issuance of such Letter of Credit (or such other time or date as may be agreed by the Administrative
Agent and, in the case of any such request pertaining to Letters of Credit, the applicable Issuing Banks, in its or their sole discretion).
In the case of any such request pertaining to LIBO Rate Revolving Loans, the Administrative Agent shall promptly notify each Revolving
Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the
applicable Issuings Bank thereof. Each applicable Revolving Lender (in the case of any such request pertaining to LIBO Rate Revolving
Loans) or each applicable Issuing Bank (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent,
not later than 11:00 a.m., five Business Days after receipt of such request whether it consents, in its sole discretion, to the making
of LIBO Rate Revolving Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(c) Any
failure by a Revolving Lender or Issuing Bank, as the case may be, to respond to such request within the time period specified in the
preceding paragraph shall be deemed to be a refusal by such Revolving Lender or Issuing Bank, as the case may be, to permit LIBO Rate
Revolving Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the applicable
Revolving Lenders consent to making LIBO Rate Revolving Loans or issuance of Letters of Credit in such requested currency, the Administrative
Agent shall so notify the Borrower and the Borrower and the Revolving Lenders shall amend this Agreement and the other Loan Documents
as necessary to accommodate such Borrowings and/or Letters of Credit (as applicable), in accordance with Section 9.02(b)(ii)(E).
If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.10, the
Administrative Agent shall promptly so notify the Borrower.
ARTICLE 2 THE CREDITS
Section 2.01. Commitments.
(a) Subject
to the terms and conditions set forth herein, (i) each Initial Term Lender severally, and not jointly, agrees to make Initial Term Loans
to the Borrower on the Closing Date in Dollars in a principal amount not to exceed its Initial Term Loan Commitment and (ii) each Revolving
Lender severally, and not jointly, agrees to make Revolving Loans to the Borrower in Dollars at any time and from time to time on and
after the Closing Date, and until the earlier of the Initial Revolving Credit Maturity Date and the termination of the Initial Revolving
Credit Commitment of such Revolving Lender in accordance with the terms hereof; provided that, after giving effect to any Borrowing
of Initial Revolving Loans, the Outstanding Amount of such Revolving Lender’s Initial Revolving Credit Exposure shall not exceed
such Revolving Lender’s Initial Revolving Credit Commitment. Within the foregoing limits and subject to the terms, conditions and
limitations set forth herein, the Borrower may borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in respect
of the Initial Term Loans may not be reborrowed.
(b) Subject
to the terms and conditions of this Agreement and any applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment,
each Lender with an Additional Commitment of a given Class, severally and not jointly, agrees to make Additional Loans of such Class to
the Borrower, which Loans shall not exceed for any such Lender at the time of any incurrence thereof the Additional Commitment of such
Class of such Lender as set forth in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment.
Section 2.02. Loans
and Borrowings.
(a) Each
Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their respective Commitments of the applicable Class. Each Swingline Loan shall be made in accordance with
the procedures set forth in Section 2.04.
(b) Subject
to Section 2.01 and Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or LIBO Rate Loans as the Borrower
may request in accordance herewith; provided that each Swingline Loan shall be an ABR Loan. Each Lender at its option may make
any LIBO Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any
exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement,
(ii) such LIBO Rate Loan shall be deemed to have been made and held by such Lender, and the obligation of the Borrower to repay such LIBO
Rate Loan shall nevertheless be to such Lender for the account of such domestic or foreign branch or Affiliate of such Lender and (iii)
in exercising such option, such Lender shall use reasonable efforts to minimize increased costs to the Borrower resulting therefrom (which
obligation of such Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs
for which it will not be compensated hereunder or that it otherwise determines would be disadvantageous to it and in the event of such
request for costs for which compensation is provided under this Agreement, the provisions of Section 2.15 shall apply); provided,
further, that any such domestic or foreign branch or Affiliate of such Lender shall not be entitled to any greater indemnification
under Section 2.17 with respect to such LIBO Rate Loan than that to which the applicable Lender was entitled on the date on which
such Loan was made (except in connection with any indemnification entitlement arising as a result of a Change in Law after the date on
which such Loan was made).
(c) At
the commencement of each Interest Period for any LIBO Rate Borrowing, such Borrowing shall comprise an aggregate principal amount that
is an integral multiple of $100,000 and not less than $500,000. Each ABR Borrowing when made shall be in a minimum principal amount of
$100,000; provided that an ABR Revolving Loan Borrowing may be made in a lesser aggregate amount that is (x) equal to the entire
aggregate Unused Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of 10 different Interest Periods in effect for LIBO Rate Borrowings at any time outstanding (or such greater
number of different Interest Periods as the Administrative Agent may agree from time to time).
(d) Notwithstanding
any other provision of this Agreement, the Borrower shall not, nor shall it be entitled to, request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date applicable to such Loans.
Section 2.03. Requests
for Borrowings. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of LIBO Rate Loans shall
be made upon irrevocable notice by the Borrower to the Administrative Agent (provided that notices in respect of any Borrowings
(x) to be made on the Closing Date may be conditioned on the closing of the Acquisition and (y) to be made in connection with any acquisition,
Investment or irrevocable repayment, redemption or refinancing of Indebtedness may be conditioned on the closing of such acquisition,
Investment or irrevocable repayment, redemption or refinancing of such Indebtedness). Each such notice must be in writing or by telephone
(and promptly confirmed in writing) and must be received by the Administrative Agent (by hand delivery, fax or other electronic transmission
(including “.pdf” or “.tif”)) not later than 12:00 p.m. (i) three Business Days prior to the requested day of
any Borrowing of, conversion to or continuation of LIBO Rate Loans (or 12:00 p.m. one Business Day in the case of any Borrowing of LIBO
Rate Loans to be made on the Closing Date) and (ii) on the requested date of any Borrowing of or conversion to ABR Loans (other than Swingline
Loans) (or, in each case, such later time as shall be acceptable to the Administrative Agent); provided, however, that if
the Borrower wishes to request LIBO Rate Loans having an Interest Period of other than one, two, three or six months in duration as provided
in the definition of “Interest Period,” (A) the applicable notice from the Borrower must be received by the Administrative
Agent not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion or continuation (or such
later time as is acceptable to the Administrative Agent), whereupon the Administrative Agent shall give prompt notice to the appropriate
Lenders of such request and determine whether the requested Interest Period is acceptable to them and (B) not later than 10:00 a.m. three
Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower
whether or not the requested Interest Period has been consented to by all the appropriate Lenders. Each written notice (or confirmation
of telephonic notice) with respect to a Borrowing by the Borrower pursuant to this Section 2.03 shall be delivered to the Administrative
Agent in the form of a written Borrowing Request, appropriately completed and signed by a Responsible Officer of the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:
(a)
the Class of such Borrowing;
(b)
the aggregate amount of the requested Borrowing;
(c)
the date of such Borrowing, which shall be a Business Day;
(d)
whether such Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing;
(e) in the
case of a LIBO Rate Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition
of the term “Interest Period”; and
(f) the
location and number of the Borrower’s account or any other designated account(s) to which funds are to be disbursed (the “Funding
Account”).
If no election as to the Type of Borrowing is
specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested LIBO
Rate Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative
Agent shall advise each Lender of the details thereof and of the amount of the Loan to be made as part of the requested Borrowing (x)
in the case of any ABR Borrowing, on the same Business Day of receipt of a Borrowing Request in accordance with this Section or (y) in
the case of any LIBO Rate Borrowing, no later than one Business Day following receipt of a Borrowing Request in accordance with this Section.
Section 2.04. Swingline
Loans.
(a) Subject
to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during
the Availability Period, in an aggregate principal amount at any time outstanding not to exceed $10,000,000; provided that (x)
the Swingline Lender shall not be required to make any Swingline Loan to refinance an outstanding Swingline Loan and (y) after giving
effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall not exceed
the Total Revolving Credit Commitment. Each Swingline Loan shall be in a minimum principal amount of not less than $100,000 or such lesser
amount as may be agreed by the Swingline Lender; provided that, notwithstanding the foregoing, a Swingline Loan may be in an aggregate
amount that is (x) equal to the entire unused balance of the aggregate Unused Revolving Credit Commitments or (y) required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Within the foregoing limits and subject to the terms
and conditions set forth herein, Swingline Loans may be borrowed, prepaid and reborrowed. To request a Swingline Loan, the Borrower shall
notify the Swingline Lender (with a copy to the Administrative Agent) of such request by telephone (confirmed by facsimile), not later
than 2:00 p.m. on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which
shall be a Business Day) and amount of the requested Swingline Loan. The Swingline Lender shall make each Swingline Loan available to
the Borrower on the same Business Day by means of a credit to the Funding Account or otherwise in accordance with the instructions of
the Borrower (including, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section
2.05(e), by remittance to the applicable Issuing Bank).
(b) The Swingline Lender
may by written notice given to the Administrative Agent not later than 12:00 p.m. on any Business Day require the Revolving Lenders to
acquire participations on the second Business Day following receipt of such notice in all or a portion of the Swingline Loans outstanding.
Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt
of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Revolving
Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Credit Commitments,
and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall
comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section
2.07 with respect to Revolving Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis mutandis,
to the payment obligations of the Revolving Lenders pursuant to this Section 2.04(b)), and the Administrative Agent shall promptly
remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower
of any participation in any Swingline Loan acquired pursuant to this Section 2.04(b), and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender
from the Borrower (or other Person on behalf of the Borrower) in respect of any Swingline Loan after receipt by the Swingline Lender
of the proceeds of any sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent
and any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders
that have made their payments pursuant to this Section 2.04(b) and to the Swingline Lender, as their interests may appear; provided
that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter
to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations
in any Swingline Loan pursuant to this Section 2.04(b) shall not relieve the Borrower of any default in the payment thereof.
(c) If any Revolving Lender
fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving
Lender pursuant to the foregoing provisions of this Section 2.04 by the time specified in Section 2.04(b), the Swingline
Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to
the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A certificate of the Swingline
Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (c)
shall be conclusive absent manifest error.
Section 2.05. Letters
of Credit.
(a)
General.
(i) Subject
to the terms and conditions set forth herein, (ii) each Issuing Bank agrees, in each case in reliance upon the agreements of the
other Revolving Lenders set forth in this Section 2.05, (A) from time to time on any Business Day during the period from the
Closing Date to the fifth Business Day prior to the Initial Revolving Credit Maturity Date, upon the request of the Borrower, to
issue Letters of Credit issued on sight basis only for the account of the Borrower (or any Restricted Subsidiary; provided
that the Borrower will be the applicant) and to amend or renew Letters of Credit previously issued by it, in accordance with Section
2.05(b), and (B) to honor drafts under the Letters of Credit, and (iii) the Revolving Lenders severally agree to
participate in the Letters of Credit issued pursuant to Section 2.05(d). Notwithstanding anything to the contrary contained
in this Agreement, no Issuing Bank shall be required to issue Commercial Letters of Credit without its consent.
(ii) No
Issuing Bank shall have an obligation to issue any Letter of Credit if (x) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, (y) customary “know
your customer” requirements of such Issuing Bank with respect to the beneficiary of such Letter of Credit would be violated or (z)
any law applicable to such Issuing Bank or any directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over such Issuing Bank shall prohibit, or direct that such Issuing Bank refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular.
(b) Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit, the Borrower shall
deliver to the applicable Issuing Bank and the Administrative Agent, at least three Business Days in advance of the requested date of
issuance (or such shorter period as is acceptable to the applicable Issuing Bank or, in the case of any issuance to be made on the Closing
Date, one Business Day prior to the Closing Date), a request to issue a Letter of Credit, which shall specify that it is being issued
under this Agreement, in the form of Exhibit K attached hereto. To request an amendment, extension or renewal of a Letter of Credit
(other than any automatic extension of a Letter of Credit permitted under Section 2.05(c)), the Borrower shall submit such a request to
the applicable Issuing Bank selected by the Borrower (with a copy to the Administrative Agent) at least three Business Days in advance
of the requested date of amendment, extension or renewal (or such shorter period as is acceptable to the applicable Issuing Bank), identifying
the Letter of Credit to be amended, extended or renewed, and specifying the proposed date (which shall be a Business Day) and other details
of the amendment, extension or renewal. Requests for the issuance, amendment, extension or renewal of any Letter of Credit must be accompanied
by such other information as shall be necessary to issue, amend, extend or renew such Letter of Credit. If requested by the applicable
Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in connection with
any request for a Letter of Credit. In the event of any inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower
with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. No Letter
of Credit, letter of credit application or other document entered into by the Borrower with the applicable Issuing Bank relating to any
Letter of Credit shall contain any representations or warranties, covenants or events of default not set forth in this Agreement (and
to the extent inconsistent herewith shall be rendered null and void or reformed automatically without further action by any Person to
conform to the terms of this Agreement), and all representations and warranties, covenants and events of default set forth therein shall
contain standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with those set forth in this Agreement
(and, to the extent inconsistent herewith, shall be deemed to automatically incorporate the applicable standards, qualifications, thresholds
and exceptions set forth herein without action by any Person). A Letter of Credit may be issued, amended, extended or renewed only if
(and on the issuance, amendment, extension or renewal of each Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, extension or renewal, (A) the sum of (x) the aggregate outstanding principal amount of
all Revolving Loans and Swingline Loans plus (y) the aggregate amount of all LC Exposures would not exceed the Total Revolving
Credit Commitment and (B) the LC Exposure does not exceed the Letter of Credit Sublimit (unless otherwise increased). In addition, no
Issuing Bank shall be required to issue, amend, extend or renew any Letter of Credit if the terms of such Letter of Credit extend beyond
the Maturity Date applicable to the Revolving Credit Commitments of any Class unless (1) the aggregate amount of the LC Exposure attributable
to Letters of Credit expiring after such Maturity Date does not exceed the aggregate amount of the Revolving Credit Commitments then in
effect that are scheduled to remain in effect after such Maturity Date, (2) all Revolving Lenders and such Issuing Bank shall have consented
to such expiry date or (3) 100% of the then-available face amount thereof is Cash collateralized or backstopped on or before the date
that such Letter of Credit is issued, amended, extended or renewed beyond such date. Promptly after the delivery of any Letter of Credit
or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable Issuing
Bank will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. Upon
receipt of such Letter of Credit or amendment, the Administrative Agent shall notify the Revolving Lenders, in writing, of such Letter
of Credit or amendment, and if so requested by a Revolving Lender, the Administrative Agent will provide such Revolving Lender with copies
of such Letter of Credit or amendment.
(c)
Expiration Date.
(i) Except
as set forth in Section 2.05(b) (above), no Standby Letter of Credit shall expire later than the earlier of (A) the date that is
one year after the date of the issuance of such Standby Letter of Credit (or such later date to which the relevant Issuing Bank may agree)
and (B) the Latest Revolving Loan Maturity Date; provided that, any Standby Letter of Credit may provide for the automatic extension
thereof for any number of additional periods each of up to one year in duration (none of which, in any event, shall extend beyond the
date referred to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized or backstopped
on or before the date that such Letter of Credit is extended beyond the date referred to in clause (B) above pursuant to arrangements
reasonably satisfactory to the relevant Issuing Bank).
(ii) Except
as set forth in Section 2.05(b) (above), no Commercial Letter of Credit shall expire later than the earlier to occur of (A) one
year after the issuance thereof (or such later date to which the relevant Issuing Bank may agree) and (B) the Latest Revolving Loan Maturity
Date; provided that any Commercial Letter of Credit may provide for the automatic extension thereof for any number of additional
periods each of up to one year in duration (none of which, in any event, shall extend beyond the date referred to in the preceding clause
(B) unless 100% of the then-available face amount thereof is Cash collateralized or backstopped on or before the date that such Letter
of Credit is extended beyond the date referred to in clause (B) above pursuant to arrangements reasonably satisfactory to the relevant
Issuing Bank).
(d) Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action
on the part of the applicable Issuing Bank or the Revolving Lenders, the applicable Issuing Bank hereby grants to each Revolving Lender,
and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender’s
Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of
the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account
of the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed
by the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded
to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to
this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default
or reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e)
Reimbursement.
(i) If
the applicable Issuing Bank makes any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement
by paying to the Administrative Agent (or, in the case of Commercial Letters of Credit, the applicable Issuing Bank) an amount equal to
such LC Disbursement not later than 1:00 p.m. on the second Business Day immediately following the date on which the Borrower receives
notice under paragraph (g) of this Section of such LC Disbursement (or, if such notice is received less than two hours prior to
the deadline for requesting ABR Borrowings pursuant to Section 2.03, on the third Business Day immediately following the date on
which the Borrower receives such notice); provided that the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.04 that such payment be financed with an ABR Revolving Loan or a Swingline
Loan and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting
Revolving Loan Borrowing or Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify
each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Revolving
Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.07 with
respect to Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations
of the Revolving Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it
from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph,
the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests
may appear.
(ii) If
any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable Issuing Bank any amount required
to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.05(e) by the time specified therein,
such Issuing Bank shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount
with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available
to such Issuing Bank at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A certificate of the applicable
Issuing Bank submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause
(ii) shall be conclusive absent manifest error.
(f) Obligations
Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement,
or any term or provision therein or herein, (ii) any draft or other document presented under any Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable
Issuing Bank under any Letter of Credit against presentation of a draft or other document that does not comply with the terms of such
Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s
obligations hereunder. Neither the Administrative Agent, the Revolving Lenders nor any Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or
any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating
to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms
or any consequence arising from causes beyond the control of such Issuing Bank; provided that the foregoing shall not be construed
to excuse such Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused
by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful
misconduct on the part of applicable Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof,
the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms
of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement
Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent
a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by facsimile) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder;
provided that no failure to give or delay in giving such notice shall relieve the Borrower of its obligation to reimburse such
Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
(h) Interim
Interest. If any Issuing Bank makes any LC Disbursement, then, unless the Borrower reimburses such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement
is made to but excluding the date that the Borrower reimburses such LC Disbursement (or the date on which such LC Disbursement is reimbursed
with the proceeds of Loans, as applicable), at the rate per annum then applicable to Revolving Loans that are ABR Loans; provided
that if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section
2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that
interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse
such Issuing Bank shall be for the account of such Revolving Lender to the extent of such payment.
(i)
Replacement of an Issuing Bank or Addition of New Issuing Banks.
Any Issuing Bank may be replaced
with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), the Borrower and the successor Issuing Bank
at any time by written agreement among the Borrower, the Administrative Agent and the successor Issuing Bank. The Administrative Agent
shall notify the Revolving Lenders of any such replacement of an Issuing Bank. At the time any such replacement becomes effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b)(ii). From and
after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the replaced
Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the replacement of any Issuing Bank hereunder, the replaced Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit after such replacement. The Borrower
may, at any time and from time to time with the consent of the Administrative Agent (which consent shall not be unreasonably withheld
or delayed) and the relevant Revolving Lender, designate one or more additional Revolving Lenders to act as an issuing bank under the
terms of this Agreement. Any Revolving Lender designated as an issuing bank pursuant to this paragraph (i) shall be deemed to be
an “Issuing Bank” (in addition to being a Revolving Lender) in respect of Letters of Credit issued or to be issued by such
Revolving Lender, and, with respect to such Letters of Credit, such term shall thereafter apply to the other Issuing Bank and such Revolving
Lender.
(j)
Cash Collateralization.
(i) If
any Event of Default exists and the Revolving Loans have been declared due and payable in accordance with Article 7 hereof, then
on the Business Day that the Borrower receives notice from the Administrative Agent at the direction of the Required Lenders demanding
the deposit of Cash collateral pursuant to this paragraph (j), upon such demand, the Borrower shall deposit, in an interest-bearing
account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders (the “LC
Collateral Account”), an amount in Cash equal to 100% of the LC Exposure as of such date (minus the amount then on deposit
in the LC Collateral Account); provided that the obligation to deposit such Cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event
of Default with respect to the Borrower described in Section 7.01(f) or (g).
(ii) Any
such deposit under clause (i) above shall be held by the Administrative Agent as collateral for the payment and performance of
the Secured Obligations in accordance with the provisions of this paragraph (j). The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account, and the Borrower hereby grants the Administrative
Agent, for the benefit of the Secured Parties, a First Priority security interest in the LC Collateral Account. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse
the applicable Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held
for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of the Required Revolving Lenders) be applied to satisfy other Secured Obligations. If
the Borrower is required to provide an amount of Cash collateral hereunder as a result of the occurrence of an Event of Default, such
amount (together with all interest and other earnings with respect thereto, to the extent not applied as aforesaid) shall be returned
to the Borrower promptly but in no event later than three Business Days after such Event of Default has been cured or waived.
(k) Existing
Letters of Credit. Existing Letters of Credit shall be deemed Letters of Credit for all purposes under this Agreement, without need
for any further action by the Borrower or any other Person.
Section 2.06. [Reserved].
Section 2.07. Funding
of Borrowings.
(a) Each
Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by
1:00 p.m. to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an amount
equal to such Lender’s respective Applicable Percentage; provided that Swingline Loans shall be made as provided in Section
2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like
funds, to the Funding Account or as otherwise directed by the Borrower; provided that Revolving Loans made to finance the reimbursement
of any LC Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.
(b) Unless
the Administrative Agent has received notice from any Lender prior to the proposed date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if any Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to the Loans comprising such Borrowing
at such time. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing and the Borrower’s obligation to repay the Administrative Agent such corresponding amount pursuant to
this Section 2.07(b) shall cease. If the Borrower pays such amount to the Administrative Agent, the amount so paid shall constitute
a repayment of such Borrowing by such amount. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent or the Borrower or any other Loan Party may have against any Lender
as a result of any default by such Lender hereunder.
Section 2.08. Type;
Interest Elections.
(a) Each
Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a LIBO Rate Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert any Borrowing to
a Borrowing of a different Type or to continue such Borrowing and, in the case of a LIBO Rate Borrowing, may elect Interest Periods therefor,
all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders based upon their Applicable Percentages and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Loans, which may not be converted
or continued.
(b) To
make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election either in writing (by hand
delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) or by telephone by the time that
a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and
shall be confirmed promptly by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)
to the Administrative Agent of a written Interest Election Request signed by a Responsible Officer of the Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii)
whether the resulting Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing; and
(iv) if
the resulting Borrowing is a LIBO Rate Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a LIBO Rate Borrowing
but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent shall advise each applicable Lender of the details thereof
and of such Lender’s portion of each resulting Borrowing.
(e) If
the Borrower fails to deliver a timely Interest Election Request with respect to a LIBO Rate Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing shall be converted at the end of such
Interest Period to a LIBO Rate Borrowing with an Interest Period of one month. Notwithstanding any contrary provision hereof, if an Event
of Default exists and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as such
Event of Default exists (i) no outstanding Borrowing may be converted to or continued as a LIBO Rate Borrowing and (ii) unless repaid,
each LIBO Rate Borrowing shall be converted to an ABR Borrowing at the end of the then-current Interest Period applicable thereto.
Section 2.09. Termination
and Reduction of Commitments.
(a) Unless
previously terminated, (i) the Initial Term Loan Commitments on the Closing Date shall automatically terminate upon the making of the
Initial Term Loans on the Closing Date, (ii) the Initial Revolving Credit Commitments shall automatically terminate on the Initial Revolving
Credit Maturity Date, (iii) the Additional Term Loan Commitments of any Class shall automatically terminate upon the making of the Additional
Term Loans of such Class and, if any such Additional Term Loan Commitment is not drawn on the date that such Additional Term Loan Commitment
is required to be drawn pursuant to the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment, the undrawn
amount thereof shall terminate unless otherwise provided in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility
Amendment and (iv) the Additional Revolving Credit Commitments of any Class shall automatically terminate on the Maturity Date specified
therefor in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment.
(b) Upon delivering the
notice required by Section 2.09(c), the Borrower may at any time terminate or from time to time reduce the Revolving Credit Commitments
of any Class; provided that (i) each reduction of the Revolving Credit Commitments of any Class shall be in an amount that is
an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Credit
Commitments of any Class if, after giving effect to such termination or reduction, as applicable, and any concurrent prepayment of Revolving
Loans and Swingline Loans, the aggregate amount of the Revolving Credit Exposure attributable to the Revolving Credit Commitments of
such Class would exceed the aggregate amount of the Revolving Credit Commitments of such Class; provided that, after the establishment
of any Additional Revolving Credit Commitment, any such termination or reduction of the Revolving Credit Commitments of any Class shall
be subject to the provisions set forth in Section 2.22, 2.23 and/or 9.02, as applicable.
(c) The
Borrower shall notify the Administrative Agent of any election to terminate or reduce any Class or Classes of Revolving Credit Commitments
under paragraph (b) of this Section (as selected by the Borrower) not later than 11:00 a.m. on or prior to the effective date of
such termination or reduction (or at least, not later than 11:00 a.m., three Business Days prior to the effective date of such termination
or reduction in the case of a termination or reduction involving a prepayment of LIBO Rate Borrowings (or such later date to which the
Administrative Agent may agree)), specifying such election and the effective date thereof. Promptly following receipt of any such notice,
the Administrative Agent shall advise the Revolving Lenders of each applicable Class or Classes of the contents thereof. Each notice delivered
by the Borrower pursuant to this Section shall be irrevocable; provided that any such notice may state that such notice is conditioned
upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of any Revolving Credit
Commitment pursuant to this Section 2.09 shall be permanent. Upon any reduction of any Revolving Credit Commitment, the Revolving
Credit Commitment of each Revolving Lender of the relevant Class shall be reduced by such Revolving Lender’s Applicable Percentage
of such reduction amount.
Section 2.10. Repayment
of Loans; Evidence of Debt.
(a) The
Borrower hereby unconditionally promises to repay the outstanding principal amount of the Initial Term Loans to the Administrative Agent
for the account of each applicable Term Lender (i) commencing September 29, 2017, on the last Business Day of each March, June, September
and December prior to the Initial Term Loan Maturity Date (each such date being referred to as a “Loan Installment Date”),
in each case in an amount equal to 0.25% of the original principal amount of the Initial Term Loans (as such payments may be reduced from
time to time as a result of the application of prepayments in accordance with Section 2.11 and purchases or assignments in accordance
with Section 9.05(g) or increased as a result of any increase in the amount of such Initial Term Loans pursuant to Section 2.22(a))
and (ii) on the Initial Term Loan Maturity Date, in an amount equal to the remainder of the principal amount of the Initial Term Loans
outstanding on such date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the
date of such payment. The Borrower shall repay the Additional Term Loans of any Class in such scheduled amortization installments and
on such date or dates as shall be specified therefor in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility
Amendment (as such payments may be reduced from time to time as a result of the application of prepayments in accordance with Section
2.11 and purchases or assignments in accordance with Section 9.05(g) or increased as a result of any increase in the amount
of such Additional Term Loans pursuant to Section 2.22(a)).
(b) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Revolving Lender the then unpaid
principal amount of each Revolving Loan on the Initial Revolving Credit Maturity Date and (ii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of (x) the 10th Business Day following the incurrence of such Swingline Loan and
(y) the Initial Revolving Credit Maturity Date. On the Initial Revolving Credit Maturity Date, the Borrower shall (A) cancel and return
all outstanding Letters of Credit (or alternatively, with respect to any outstanding Letter of Credit, furnish to the Administrative Agent
a Cash deposit (or if reasonably acceptable to the relevant Issuing Bank, a backup standby letter of credit) equal to 100% of the LC Exposure
(minus the amount then on deposit in the LC Collateral Account) as of such date) and (B) make payment in full in Cash of all accrued
and unpaid fees and all reimbursable expenses and other Obligations with respect to the Revolving Facility then due, together with accrued
and unpaid interest (if any) thereon.
(c) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from
time to time hereunder.
(d) The
Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for
the account of the Lenders or the Issuing Bank and each Lender’s share or the Issuing Bank’s share thereof.
(e) The
entries made in the accounts maintained pursuant to paragraphs (c) or (d) of this Section shall be prima facie evidence
of the existence and amounts of the obligations recorded therein (absent manifest error); provided that the failure of any Lender
or the Administrative Agent to maintain such accounts or any manifest error therein shall not in any manner affect the obligation of
the Borrower to repay the Loans in accordance with the terms of this Agreement; provided, further, that in the event of
any inconsistency between the accounts maintained by the Administrative Agent pursuant to paragraph (d) of this Section and any
Lender’s records, the accounts of the Administrative Agent shall govern.
(f) Any
Lender may request that Loans made by it be evidenced by a Promissory Note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a Promissory Note payable to such Lender and its registered permitted assigns; it being understood and agreed that such
Lender (and/or its applicable permitted assign) shall be required to return such Promissory Note to the Borrower in accordance with Section
9.05(b)(iii) and upon the occurrence of the Termination Date (or as promptly thereafter as practicable). If any Lender loses the
original copy of its Promissory Note, it shall execute an affidavit of loss containing a customary indemnification provision that is
reasonably satisfactory to the Borrower. The obligation of each Lender to execute an affidavit of loss containing a customary indemnification
provision that is reasonably satisfactory to the Borrower shall survive the Termination Date.
Section
2.11. Prepayment of Loans.
(a) Optional
Prepayments.
(i) Upon
prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from time
to time to prepay any Borrowing of Term Loans of one or more Classes (such Class or Classes to be selected by the Borrower in its sole
discretion) in whole or in part without premium or penalty (but subject to (A) in the case of Initial Term Loans only, Section 2.12(f)
and (B) if applicable, Section 2.16). Each such prepayment shall be paid to the Lenders in accordance with their respective
Applicable Percentages of the relevant Class.
(ii) Upon
prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from time
to time to prepay any Borrowing of Revolving Loans of any Class or any Borrowing of Swingline Loans, including any Additional Revolving
Loans, in whole or in part without premium or penalty (but subject to Section 2.16). Prepayments made pursuant to this Section
2.11(a)(ii), first, shall be applied ratably to the Swingline Loans and to outstanding LC Disbursements and second, shall be applied
ratably to the outstanding Revolving Loans, including any Additional Revolving Loans of the relevant Class.
(iii) The
Borrower shall notify the Administrative Agent (and, in the case of a prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed in writing) of any prepayment under this Section 2.11(a) (A) in the case of a prepayment of a LIBO Rate
Borrowing, not later than 1:00 p.m. three Business Days before the date of prepayment, (B) in the case of a prepayment of an ABR
Borrowing, not later than 1:00 p.m. on the date of prepayment or (C) in the case of a prepayment of a Swingline Loan,
not later than 1:00 p.m. on the date of prepayment (or, in each case, such later date or time to which the Administrative Agent may
reasonably agree). Each such notice shall be irrevocable (except as set forth in the proviso to this sentence) and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that a notice of
prepayment delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other transactions, in
which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Promptly following receipt of any such notice relating to any Borrowing, the
Administrative Agent shall advise the relevant Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in
an amount that would be permitted in the case of a Borrowing of the same Type and Class as provided in Section 2.02(c) or
such lesser amount that is then outstanding with respect to such Borrowing being repaid. Each prepayment of Term Loans shall be
applied to the Class of Term Loans as determined by the Borrower and specified in the applicable prepayment notice, and each
prepayment of Term Loans of such Class made pursuant to this Section 2.11(a) shall be applied against the remaining scheduled
installments of principal due in respect of the Term Loans of such Class in the manner specified by the Borrower or, if not so
specified on or prior to the date of such optional prepayment, in direct order of maturity.
(b) Mandatory
Prepayments.
(i) No
later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower are
delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on or about June 30, 2018, the Borrower shall prepay
Subject Loans in accordance with clause (vi) below in an aggregate principal amount (the “ECF Prepayment Amount”)
equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess
Cash Flow Period then most recently ended (this clause (A), the “Base ECF Prepayment Amount”), minus (B) at
the option of the Borrower, to the extent occurring during such Excess Cash Flow Period (or occurring after such Excess Cash Flow Period
and prior to the date of the applicable Excess Cash Flow payment), and without duplication (including duplication of any amounts deducted
in any prior Excess Cash Flow Period), the following (collectively, the “ECF Deductions”):
(1) the
aggregate principal amount of any Initial Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant
to Section 2.11(a);
(2) (x)
the aggregate principal amount of any Incremental Equivalent Debt, Replacement Debt and/or any other Indebtedness permitted to be incurred
pursuant to Section 6.01 to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral
securing the Credit Facilities, voluntarily prepaid, repurchased, redeemed or otherwise retired and (y) the aggregate principal amount
of any loans under any Second Lien Facility (including any Incremental Loans and Additional Loans (as defined in the Second Lien Credit
Agreement or any other document governing any Second Lien Facility)) prepaid pursuant to Section 2.11(a) of the Second Lien Credit
Agreement (or equivalent provision under any other document governing any Second Lien Facility) (to the extent the relevant voluntary
prepayments are permitted by the terms of this Agreement) and the aggregate principal amount of Incremental Equivalent Debt and/or Replacement
Debt (as defined in the Second Lien Credit Agreement or any other document governing any Second Lien Facility) secured on a pari passu
basis with the Second Lien Facility voluntarily prepaid, repurchased, redeemed or otherwise retired (or contractually committed to
be prepaid, repurchased, redeemed or otherwise retired);
(3) (1)
the amount of any reduction in the outstanding amount of any Initial Term Loans, Additional Term Loans, Incremental Equivalent Debt,
Replacement Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 6.01 to the extent secured by
Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Credit Facilities, resulting from
any purchase or assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch
Auction) (with respect to Initial Term Loans and/or Additional Term Loans) and any equivalent provisions with respect to any
Incremental Equivalent Debt, Replacement Debt and/or such other Indebtedness and/or (2) to the extent permitted by the terms of this
Agreement, the amount of any reduction in the outstanding amount of any loans under the Second Lien Facility and/or any
“Incremental Equivalent Debt”, “Replacement Debt” and/or other Indebtedness permitted to be incurred
thereunder to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the
Second Lien Facility (including any reduction resulting from any purchase or assignment made in accordance with Section
9.05(g) of the Second Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien
Facility) (including in connection with any Dutch Auction (as defined in the Second Lien Credit Agreement or any other document
governing any Second Lien Facility)) and any equivalent provisions with respect to any such “Incremental Equivalent
Debt”, “Replacement Debt” and/or such other Indebtedness;
(4) all
Cash payments in respect of Capital Expenditures as would be reported in the Borrower’s consolidated statement of cash flows and
all Cash payments made to acquire IP Rights;
(5) Cash
payments by the Borrower and its Restricted Subsidiaries made (or committed) in respect of long-term liabilities (including for purposes
of clarity, the current portion of such long-term liabilities) of the Borrower and its Restricted Subsidiaries other than Indebtedness,
except to the extent such Cash payments were deducted in the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA for
such period;
(6) Cash
payments in respect of any Investment (including acquisitions) permitted by Section 6.06 or otherwise consented to by the
Required Lenders (other than Investments (x) in Cash or Cash Equivalents or (y) in the Borrower or any Loan Party) and/or any
Restricted Payment permitted by Section 6.04(a) or otherwise consented to by the Required Lenders;
(7) the
aggregate consideration (i) required to be paid in Cash by the Borrower or its Restricted Subsidiaries pursuant to binding contracts
entered into prior to or during such period relating to Capital Expenditures, acquisitions or other Investments permitted by Section
6.06 or otherwise consented to by the Required Lenders and/or Restricted Payments described in clause (6) above and/or (ii)
otherwise committed or budgeted to be made in connection with Capital Expenditures, acquisitions or Investments and/or Restricted Payments
described in clause (6) above (clauses (i) and (ii) of this clause (7), the “Scheduled Consideration”) (other
than Investments in (x) Cash and Cash Equivalents or (y) the Borrower or any Loan Party) to be consummated or made during the period
of four consecutive Fiscal Quarters of the Borrower following the end of such period; provided that to the extent the aggregate
amount actually utilized to finance such Capital Expenditures, acquisitions, Investments or Restricted Payments during such subsequent
period of four consecutive Fiscal Quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added
to the calculation of Excess Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters;
(8) Cash
expenditures in respect of any Hedge Agreement during such period to the extent (A) not otherwise deducted in the calculation of Consolidated
Net Income or Consolidated Adjusted EBITDA and (B) not financed with long-term funded Indebtedness (other than revolving Indebtedness);
and
(9) the
aggregate amount of expenditures actually made by the Borrower and/or any Restricted Subsidiary in Cash (including any expenditure for
the payment of fees or other Charges (or any amortization thereof for such period) in connection with any Disposition, incurrence or
repayment of Indebtedness, issuance of Capital Stock, refinancing transaction, amendment or modification of any debt instrument, including
this Agreement, and including, in each case, any such transaction consummated prior to, on or after the Closing Date, and Charges incurred
in connection therewith, whether or not such transaction was successful), in each case to the extent that such expenditures were
(A)
not expensed and (B) not financed with long-term funded Indebtedness (other than revolving Indebtedness);
in
the case of each of clauses (1)-(9), (I) excluding any such payments, prepayments and expenditures made during such Fiscal
Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year, (II) in the
case of any prepayment of Revolving Loans and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction in the
relevant commitment, (III) to the extent that such payments, prepayments and expenditures were not financed with the proceeds of other
long-term funded Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries and (IV) in each case
under clause (3) above, based upon the actual amount of cash paid in connection with any relevant purchase or assignment; provided
that no prepayment under this Section 2.11(b)(i) shall be required unless the principal amount of Subject Loans required to
be prepaid exceeds $2,500,000 (and, in such case, only such amount in excess of $2,500,000 shall be required to be prepaid); provided,
further, that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is also required
to prepay, repurchase or offer to prepay or repurchase any Indebtedness that is secured on a pari passu basis (without regard
to the control of remedies) with any Secured Obligation pursuant to the terms of the documentation governing such Indebtedness (such
Indebtedness required to be so prepaid or repurchased or offered to be so prepaid or repurchased, “Other Applicable Indebtedness”)
with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis
(determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the relevant Other Applicable Indebtedness
(or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time) to the prepayment of
the Subject Loans and to the prepayment of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Subject Loans
that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; it being understood
that (1) the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the portion of such
ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining
amount, if any, of such ECF Prepayment Amount shall be allocated to the Subject Loans in accordance with the terms hereof and (2) to
the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount
shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in
accordance with the terms hereof.
(ii) No
later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation
Proceeds, in each case, in excess of (x) $10,000,000 in any single transaction or series of related transactions and (y) $15,000,000
in any Fiscal Year, the Borrower shall apply an amount equal to the Required Net Proceeds Percentage of the Net Proceeds or Net Insurance/Condemnation
Proceeds received with respect thereto in excess of such thresholds (collectively, the “Subject Proceeds”) to prepay
the outstanding principal amount of Subject Loans in accordance with clause (vi) below; provided that (A) if prior to the
date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject
Proceeds in assets used or useful in the business of the Borrower or any of its subsidiaries (including permitted acquisitions or other
Investments, but excluding Cash or Cash Equivalents), then the Borrower shall not be required to make a mandatory prepayment under this
clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following
receipt thereof, or (y) the Borrower or any of its subsidiaries has contractually committed to so reinvest the Subject Proceeds during
such 18-month period and the Subject Proceeds are so reinvested within six months after the expiration of such 18-month period; provided,
however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall
promptly prepay the outstanding principal amount of Subject Loans with the Subject Proceeds not so reinvested as set forth above (without
regard to the immediately preceding proviso) and (B) if, at the time that any such prepayment would be required hereunder, the Borrower
or any of its Restricted Subsidiaries is required to repay or repurchase (or offer to repay or repurchase) any Other Applicable Indebtedness,
then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase
or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject
Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount)
at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall
not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof
(and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof),
and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii)
shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness
prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection)
be applied to prepay the Subject Loans in accordance with the terms hereof.
(iii) In
the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness
by the Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, except
to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of the Initial Term
Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans in accordance with the requirements
of Section 9.02(c)), the Borrower shall, substantially simultaneously with (and in any event not later than two Business Days
thereafter) the receipt of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of
such Net Proceeds to prepay the outstanding principal amount of the relevant Initial Term Loans in accordance with clause (vi)
below.
(iv) Notwithstanding
anything in this Section 2.11(b) to the contrary, (A) the Borrower shall not be required to prepay any amount that would otherwise
be required to be paid pursuant to Sections 2.11(b)(i), (ii) or (iii) above to the extent that the relevant
Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary,
the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary or the relevant Indebtedness is incurred by any
Foreign Subsidiary (except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred by any Foreign Subsidiary
to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term
Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c)),
as the case may be, for so long as the Borrower determines in good faith that the repatriation to the Borrower of any such amount would
be prohibited or delayed (beyond the time period during which such prepayment is otherwise required to be made pursuant to Section
2.11(b)(i), (ii) or (iii) above) under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s
directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any officer,
director, employee, manager, member of management or consultant of such Foreign Subsidiary (including on account of financial assistance,
corporate benefit, thin capitalization, capital maintenance or similar considerations); it being understood and agreed that (i) solely
within 365 days following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or
the receipt of proceeds from the respective incurrence of Indebtedness, the Borrower shall take all commercially reasonable actions required
by applicable Requirements of Law to permit such repatriation and (ii) if the repatriation of the relevant affected Excess Cash Flow,
Subject Proceeds or Indebtedness proceeds, as the case may be, is permitted under the applicable Requirement of Law and, to the extent
applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in,
a material risk of personal or criminal liability for the Persons described above, in either case, within 365 days following the end
of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt of Net Proceeds in respect
of any such Indebtedness, the relevant Foreign Subsidiary will promptly repatriate the relevant Excess Cash Flow, Subject Proceeds or
Net Proceeds in respect of Indebtedness, as the case may be, and the repatriated Excess Cash Flow, Subject Proceeds or Net Proceeds in
respect of Indebtedness, as the case may be, will be promptly (and in any event not later than two Business Days after such repatriation)
applied (net of additional Taxes payable or reserved against such Excess Cash Flow, such Subject Proceeds or such Net Proceeds in respect
of Indebtedness, as a result thereof, in each case by any Loan Party, such Loan Party’s subsidiaries, and any Affiliates or indirect
or direct equity owners of the foregoing) to the repayment of the Initial Term Loans and Additional Term Loans pursuant to this Section
2.11(b) to the extent required herein (without regard to this clause (iv), (B) the Borrower shall not be required to prepay
any amount that would otherwise be required to be paid pursuant to Sections 2.11(b)(i) or (ii) to the extent that the relevant
Excess Cash Flow is generated by any Joint Venture or the relevant Subject Proceeds or Net Proceeds in respect of Indebtedness are received
by any Joint Venture for so long as the Borrower determines in good faith that the distribution to the Borrower of such Excess Cash Flow,
Subject Proceeds or Net Proceeds in respect of Indebtedness would be prohibited under the Organizational Documents (or any relevant shareholders’
or similar agreement) governing such Joint Venture; it being understood that if the relevant prohibition ceases to exist within the 365-day
period following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt
of Net Proceeds in respect of any such Indebtedness, the relevant Joint Venture will promptly distribute the relevant Excess Cash Flow,
the relevant Subject Proceeds or the relevant Net Proceeds in respect of Indebtedness, as the case may be, and the distributed Excess
Cash Flow, Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, will be promptly (and in any event not later
than ten Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to
the repayment of the Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause
(iv)) and (C) if the Borrower determines in good faith that the repatriation to the Borrower of any amounts required to mandatorily
prepay the Initial Term Loans and Additional Term Loans pursuant to Sections 2.11(b)(i), (ii) or (iii) above would
result in material and adverse tax consequences, taking into account any foreign tax credit or benefit actually realized in connection
with such repatriation (such amount, a “Restricted Amount”), as determined by the Borrower in good faith, the amount
the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i), (ii) or (iii) above, as applicable,
shall be reduced by the Restricted Amount; provided that to the extent that the repatriation of any Subject Proceeds, Excess Cash
Flow or the Net Proceeds in respect of any such Indebtedness from the relevant Foreign Subsidiary would no longer have a material and
adverse tax consequence within the 365-day period following the event giving rise to the relevant Subject Proceeds, the receipt of Net
Proceeds in respect of any such Indebtedness or the end of the applicable Excess Cash Flow Period, as the case may be, an amount equal
to the Subject Proceeds, Excess Cash Flow or the Net Proceeds in respect of any such Indebtedness, as applicable, not previously applied
pursuant to this clause (C), shall be promptly applied to the repayment of the Initial Term Loans and Additional Term Loans pursuant
to Section 2.11(b) as otherwise required above (without regard to this clause (iv));
(v) Each
Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent,
prior to any prepayment of Initial Term Loans and Additional Term Loans required to be made by the Borrower pursuant to this Section
2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined
Proceeds”), which Declined Proceeds may be retained by the Borrower and used for any legal purpose permitted (or not prohibited)
hereunder, including to increase the Available Amount; provided, further, that, for the avoidance of doubt, no Lender may
reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of
(w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of the Initial Term Loans or Additional
Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant
to Section 2.22, (y) Replacement Loans incurred to refinance all or a portion of the Term Loans in accordance with the requirements
of Section 9.02(c) and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance
with the requirements of Section 6.01(z). If any Lender fails to deliver a notice to the Administrative Agent of its election
to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent,
such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory
prepayment of Initial Term Loans and Additional Term Loans.
(vi) Except
as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of
Initial Term Loans and Additional Term Loans pursuant to this Section 2.11(b) shall be applied ratably to each Class of Term
Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any
prepayment constituting (w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of the
Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p), (x) Incremental Loans incurred to refinance all or a
portion of the Term Loans pursuant to Section 2.22, (y) Replacement Loans incurred to refinance all or a portion of the Term
Loans in accordance with the requirements of Section 9.02(c) and/or (z) Incremental Equivalent Debt incurred to refinance all
or a portion of the Term Loans in accordance with the requirements of Section 6.01(z) shall, in each case be applied solely
to each applicable Class of refinanced or replaced Term Loans), (B) with respect to each Class of Initial Term Loans and
Additional Term Loans, all accepted prepayments under Section 2.11(b)(i), (ii) or (iii) shall be applied
against the remaining scheduled installments of principal due in respect of the Initial Term Loans and Additional Term Loans as
directed by the Borrower (or, in the absence of direction from the Borrower, to the remaining scheduled amortization payments in
respect of the Initial Term Loans and Additional Term Loans in direct order of maturity), and (C) each such prepayment shall be paid
to the Term Lenders in accordance with their respective Applicable Percentages. The amount of such mandatory prepayments shall be
applied on a pro rata basis to the then outstanding Initial Term Loans and Additional Term Loans being prepaid irrespective of
whether such outstanding Loans are ABR Loans or LIBO Rate Loans; provided that the amount thereof shall be applied first to
ABR Loans to the full extent thereof before application to the LIBO Rate Loans in a manner that minimizes the amount of any payments
required to be made by the Borrower pursuant to Section 2.16. Any prepayment of Initial Term Loans made on or prior to the
date that is twelve months after the Closing Date pursuant to Section 2.11(b)(iii) as part of a Repricing Transaction shall
be accompanied by the fee set forth in Section 2.12(f).
(vii) In
the event that the Aggregate Revolving Credit Exposure exceeds the Total Revolving Credit Commitment then in effect, the Borrower shall,
within five Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Loans or Swingline Loans and/or reduce
LC Exposure in an aggregate amount sufficient to reduce such Aggregate Revolving Credit Exposure as of the date of such payment to an
amount not to exceed the Total Revolving Credit Commitment then in effect by taking any of the following actions as it shall determine
at its sole discretion: (A) prepayment of Revolving Loans or Swingline Loans or (B) with respect to the excess LC Exposure, deposit of
Cash in the LC Collateral Account or “backstopping” or replacement of the relevant Letters of Credit, in each case, in an
amount equal to 100% of such excess LC Exposure (minus the amount then on deposit in the LC Collateral Account).
(viii) At
the time of each prepayment required under Section 2.11(b)(i), (ii) or (iii), the Borrower shall deliver to the
Administrative Agent a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation
of the amount of such prepayment. Each such certificate shall specify the Borrowings being prepaid and the principal amount of each Borrowing
(or portion thereof) to be prepaid. Prepayments shall be accompanied by accrued interest as required by Section 2.13. All prepayments
of Borrowings under this Section 2.11(b) shall be subject to Section 2.16 and, except as set forth in the last sentence
of clause (vi) above, shall otherwise be without premium or penalty.
Section
2.12. Fees.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender of any Class (other than any Defaulting Lender)
a commitment fee, which shall accrue at a rate equal to the Commitment Fee Rate per annum applicable to the Revolving Credit Commitment
of such Class on the average daily amount of the Unused Revolving Credit Commitment of such Class of such Revolving Lender during the
period from and including the Closing Date to the date on which such Lender’s Revolving Credit Commitments of such Class terminate.
Accrued commitment fees shall be payable in arrears on the last Business Day of each March, June, September and December for the quarterly
period then ended (commencing on September 30, 2017, but in the case of the payment made on September 30, 2017, for the period from the
Closing Date to such date) and on the date on which the Revolving Credit Commitments of the applicable Class terminate. For purposes
of calculating the commitment fees only, no portion of the Revolving Credit Commitments shall be deemed utilized as a result of outstanding
Swingline Loans.
(b) The
Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender of any Class (other than any Defaulting
Lender) a participation fee with respect to its participation in each Letter of Credit, which shall accrue at the Applicable Rate used
to determine the interest rate applicable to LIBO Rate Revolving Loans on the daily face amount of such Lender’s LC Exposure attributable
to its Revolving Credit Commitment of such Class in respect of such Letter of Credit (excluding any portion thereof attributable to unreimbursed
LC Disbursements), during the period from and including the Closing Date to the later of the date on which such Revolving Lender’s
Revolving Credit Commitment of such Class terminates and the date on which such Revolving Lender ceases to have any LC Exposure related
to its Revolving Credit Commitment of such Class in respect of such Letter of Credit (including any such Letter of Credit Exposure that
may exist following the termination of such Revolving Credit Commitments) and (ii) to each Issuing Bank, for its own account, a fronting
fee, in respect of each Letter of Credit issued by such Issuing Bank for the period from the date of issuance of such Letter of Credit
to the expiration date of such Letter of Credit (or if terminated on an earlier date, to the termination date of such Letter of Credit),
computed at a rate equal to the rate agreed by such Issuing Bank and the Borrower (but in any event not to exceed 0.125% per annum) of
the daily face amount of such Letter of Credit, as well as such Issuing Bank’s reasonable and customary fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting
fees accrued to but excluding the last Business Day of each March, June, September and December shall be payable in arrears for the quarterly
period then ended (or, in the case of the payment made on September 30, 2017, for the period from the Closing Date to such date) on the
last Business Day of such calendar quarter; provided that all such fees shall be payable on the date on which the Revolving Credit
Commitments of the applicable Class terminate, and any such fees accruing after the date on which the Revolving Credit Commitments of
the applicable Class terminate shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to this paragraph shall
be payable within 30 days after receipt of a written demand (accompanied by reasonable back-up documentation) therefor.
(c) [Reserved].
(d) The
Borrower agrees to pay to the Administrative Agent, for its own account, the fees in the amounts and at the times separately agreed upon
by the Borrower and the Administrative Agent in writing.
(e) All
fees payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Administrative Agent (or
to the applicable Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation
fees, to the Revolving Lenders. Fees paid shall not be refundable under any circumstances except as otherwise provided in the Fee Letter.
Fees payable hereunder shall accrue through and including the last day of the month immediately preceding the applicable fee payment
date.
(f) In
the event that, on or prior to the date that is twelve months after the Closing Date, the Borrower (x) prepays, repays, refinances,
substitutes or replaces any Initial Term Loans in connection with a Repricing Transaction (including, for the avoidance of doubt,
any prepayment made pursuant to Section 2.11(b)(iii) that constitutes a Repricing Transaction) or (y) effects any amendment,
modification or waiver of, or consent under, this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the
Administrative Agent, for the ratable account of each of the applicable Initial Term Lenders, (I) in the case of clause (x),
a premium of 1.00% of the aggregate principal amount of the Initial Term Loans so prepaid, repaid, refinanced, substituted or
replaced and (II) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the Initial Term Loans
that are the subject of such Repricing Transaction outstanding immediately prior to such amendment. If, on or prior to the date that
is twelve months after the Closing Date, all or any portion of the Initial Term Loans held by any Term Lender are prepaid, repaid,
refinanced, substituted or replaced pursuant to Section 2.19(b)(iv) as a result of, or in connection with, such Term
Lender not agreeing or otherwise consenting to any waiver, consent, modification or amendment referred to in clause (y) above
(or otherwise in connection with a Repricing Transaction), such prepayment, repayment, refinancing, substitution or replacement will
be made at 101% of the principal amount so prepaid, repaid, refinanced, substituted or replaced. All such amounts shall be due and
payable on the date of effectiveness of such Repricing Transaction.
(g) Unless
otherwise indicated herein, all computations of fees shall be made on the basis of a 360-day year and shall be payable for the actual
days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of the amount of any
fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section
2.13. Interest.
(a) The
Term Loans and Revolving Loans comprising each ABR Borrowing (including Swingline Loans) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The
Term Loans and Revolving Loans comprising each LIBO Rate Borrowing shall bear interest at the LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate.
(c) [Reserved].
(d) Notwithstanding
the foregoing, during the existence and continuance of any Event of Default under Section 7.01(a), if any principal of or interest
on any Initial Term Loan or Revolving Loan, any LC Disbursement or any fee payable by the Borrower hereunder is not, in each case, paid
or reimbursed when due, whether at stated maturity, upon acceleration or otherwise, the relevant overdue amount shall bear interest,
to the fullest extent permitted by applicable Requirements of Law, after as well as before judgment, at a rate per annum equal to (i)
in the case of overdue principal or interest of any Initial Term Loan, Revolving Loan or unreimbursed LC Disbursement, 2.00% plus
the rate otherwise applicable to such Initial Term Loan, Revolving Loan or LC Disbursement as provided in the preceding paragraphs
of this Section or Section 2.05(h) or (ii) in the case of any other amount, 2.00% plus the rate applicable to Revolving
Loans that are ABR Loans as provided in paragraph (a) of this Section; provided that no amount shall be payable pursuant
to this Section 2.13(d) to any Defaulting Lender so long as such Lender is a Defaulting Lender; provided further that no
amounts shall accrue pursuant to this Section 2.13(d) on any overdue amount, reimbursement obligation in respect of any LC Disbursement
or other amount payable to a Defaulting Lender so long as such Lender is a Defaulting Lender.
(e) Accrued
interest on each Initial Term Loan, Revolving Loan or Swingline Loan shall be payable in arrears on each Interest Payment Date for such
Initial Term Loan, Revolving Loan or Swingline Loan and on the Maturity Date applicable to such Loan or upon the termination of the Revolving
Credit Commitments, as applicable; provided that (i) interest accrued pursuant to paragraph (d) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Initial Term Loan or Revolving Loan (other than a prepayment
of an ABR Revolving Loan prior to the termination of the relevant revolving Commitments), accrued interest on the principal amount repaid
or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any LIBO Rate Loan
prior to the end of the current Interest Period therefor, accrued interest on such Initial Term Loan or Revolving Loan shall be payable
on the effective date of such conversion. Accrued interest for any Class of Additional Revolving Loans or Additional Term Loans shall
be payable as set forth in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment.
(f) All
interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed for ABR Loans based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest error. Interest shall accrue on each
Loan from the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or
such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall bear interest for one day;
provided further that, in the case of any ABR Loan, interest shall accrue through and including the last day of the month preceding
the applicable Interest Payment Date.
Section
2.14. Alternate Rate of Interest. If at least two Business Days prior to the commencement of any Interest Period for a LIBO Rate
Borrowing:
(a) the
Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the LIBO Rate for such Interest Period; or
(b) the
Administrative Agent is advised by the Required Lenders that the LIBO Rate for such Interest Period will not adequately and fairly reflect
the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;
then
the Administrative Agent shall promptly give notice thereof to the Borrower and the Lenders by telephone or facsimile as promptly as
practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the
conversion of any Borrowing to, or continuation of any Borrowing as, a LIBO Rate Borrowing shall be ineffective and such Borrowing shall
be converted to an ABR Borrowing on the last day of the Interest Period applicable thereto and (ii) if any Borrowing Request requests
a LIBO Rate Borrowing, such Borrowing shall be made as an ABR Borrowing.
Section
2.15. Increased Costs.
(a)
If any Change in Law:
(i) imposes,
modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement reflected in the LIBO Rate) or Issuing Bank; or
(ii) imposes
on any Lender or Issuing Bank or the London interbank market any other condition affecting this Agreement or LIBO Rate Loans made by
any Lender or any Letter of Credit or participation therein;
and
the result of any of the foregoing is to increase the cost to the relevant Lender of making or maintaining any LIBO Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing
or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder
(whether of principal, interest or otherwise) in respect of any LIBO Rate Loan or Letter of Credit in an amount deemed by such Lender
or Issuing Bank to be material, then, within 30 days after the Borrower’s receipt of the certificate contemplated by paragraph
(c) of this Section, the Borrower will pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will
compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered (except that this provision
shall not apply to any Taxes, which shall be dealt with exclusively pursuant to Section 2.17); provided that the Borrower
shall not be liable for such compensation if (x) the relevant Change in Law occurs on a date prior to the date such Lender becomes a
party hereto, (y) such Lender invokes Section 2.20 or (z) in the case of requests for reimbursement under clause (ii) above
resulting from a market disruption, (A) the relevant circumstances do not generally affect the banking market or (B) the
applicable request has not been made by Lenders constituting Required Lenders.
(b) If
any Lender or Issuing Bank determines that any Change in Law regarding liquidity or capital requirements has or would have the effect
of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing
Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank
or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law other than due to
Taxes, which shall be dealt with exclusively pursuant to Section 2.17 (taking into consideration such Lender’s or Issuing
Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy),
then within 30 days of receipt by the Borrower of the certificate contemplated by paragraph (c) of this Section the Borrower will
pay to such Lender or such Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or such Issuing
Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.
(c) Any
Lender or Issuing Bank requesting compensation under this Section 2.15 shall be required to deliver a certificate to the Borrower
that (i) sets forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as applicable,
as specified in paragraph (a) or (b) of this Section, (ii) sets forth in reasonable detail the manner in which such amount
or amounts were determined and (iii) certifies that such Lender or Issuing Bank is generally charging such amounts to similarly situated
borrowers, which certificate shall be conclusive absent manifest error.
(d) Failure
or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such
Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to
compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior
to the date that such Lender or Issuing Bank notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided, further, that if
the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.
Section
2.16. Break Funding Payments. In the event of (a) the conversion or prepayment of any principal of any LIBO Rate Loan other
than on the last day of an Interest Period applicable thereto (whether voluntary, mandatory, automatic, by reason of acceleration or
otherwise), (b) the failure to borrow, convert, continue or prepay any LIBO Rate Loan on the date or in the amount specified in any
notice delivered pursuant hereto or (c) the assignment of any LIBO Rate Loan of any Lender other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense incurred by such Lender that is attributable to such
event (other than loss of profit). In the case of a LIBO Rate Loan, the loss, cost or expense of any Lender shall be the amount
reasonably determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the LIBO Rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest Period for such Loan) over (ii) the amount of
interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to
bid, at the commencement of such period, for deposits in the applicable currency of a comparable amount and period from other banks
in the Eurodollar market; it being understood that such loss, cost or expense shall in any case exclude any interest rate floor and
all administrative, processing or similar fees. Any Lender requesting compensation under this Section 2.16 shall be required
to deliver a certificate to the Borrower (i) setting
forth any amount or amounts that such Lender is entitled to receive pursuant to this Section, the basis therefor and, in reasonable
detail, the manner in which such amount or amounts were determined and (ii) certifying that such Lender is generally charging the
relevant amounts to similarly situated borrowers , which certificate shall be conclusive absent manifest error. The Borrower shall
pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof.
Section
2.17. Taxes.
(a) Any
and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and without
deduction for any Taxes, except as required by applicable Requirements of Law. If any applicable Requirement of Law requires the deduction
or withholding of any Tax from any such payment, then (i) if such Tax is an Indemnified Tax, the amount payable by the applicable Loan
Party shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, each Lender and each Issuing Bank (as applicable) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Loan Party shall make such deductions and (iii) such Loan Party
shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements of Law.
(b) In
addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements
of Law.
(c) Each
Loan Party shall indemnify the Administrative Agent, each Lender and each Issuing Bank within 30 days after receipt of the
certificate described in the succeeding sentence, for the full amount of any Indemnified Taxes payable or paid by the Administrative
Agent, such Lender or Issuing Bank, as applicable, on or with respect to any payment by or any payment on account of any obligation
of any Loan Party hereunder (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this
Section) and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority; provided, however that the Loan Parties shall not be
obligated to indemnify the Administrative Agent or such Lender or such Issuing Bank with respect to any penalties resulting from any
action or inaction of the Administrative Agent or such Lender or Issuing Bank; and provided further, that if such Loan Party
reasonably believes that such Taxes were not correctly or legally asserted, the Administrative Agent or such Lender or Issuing Bank,
as applicable, will use reasonable efforts to cooperate with such Loan Party to obtain a refund of such Taxes (which shall be repaid
to such Loan Party in accordance with Section 2.17(g)) so long as such efforts would not, in the sole determination of the
Administrative Agent or such Lender or Issuing Bank, result in any additional out-of-pocket costs or expenses not reimbursed by such
Loan Party or be otherwise materially disadvantageous to the Administrative Agent or such Lender or Issuing Bank, as applicable. In
connection with any request for reimbursement under this Section 2.17(c), the relevant Lender, Issuing Bank or the
Administrative Agent, as applicable, shall deliver a certificate to the Borrower (i) setting forth, in reasonable detail, the basis
and calculation of the amount of the relevant payment or liability and (ii) certifying that it is generally charging the relevant
amounts to similarly situated borrowers, which certificate shall be conclusive absent manifest error. Notwithstanding anything to
the contrary contained in this Section 2.17(c), the Borrower shall not be required to indemnify the Administrative
Agent or any Lender pursuant to this Section 2.17(c) for any amount to the extent the Administrative Agent or such Lender
fails to notify the Borrower of the relevant possible indemnification claim within 180 days after the Administrative Agent or such
Lender receives written notice from the applicable taxing authority of the specific tax assessment giving rise to such
indemnification claim.
(d) Each
Lender and each Issuing Bank shall severally indemnify the Administrative Agent, within 30 days after demand therefor, for (i) any Indemnified
Taxes on or with respect to any payment under any Loan Document that is attributable to such Lender or Issuing Bank (but only to the
extent that no Loan Party has already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation
of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s or Issuing Bank’s failure to comply with the
provisions of Section 9.05(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable
to such Lender or Issuing Bank, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document
and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender
or Issuing Bank by the Administrative Agent shall be conclusive absent manifest error. Each Lender and Issuing Bank hereby authorizes
the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or Issuing Bank under any Loan Document
or otherwise payable by the Administrative Agent to any Lender or Issuing Bank under any Loan Document or otherwise payable by the Administrative
Agent to any Lender or Issuing Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) As
soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority, such Loan Party shall deliver to the Administrative
Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment that is reasonably satisfactory to the Administrative Agent.
(f) Status of Lenders.
(i) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation as the Borrower or the Administrative Agent may reasonably request to permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by
the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or
not such Lender is subject to backup withholding or information reporting requirements. Each Lender hereby authorizes the Administrative
Agent to deliver to the Borrower and to any successor Administrative Agent any documentation provided to the Administrative Agent pursuant
to this Section 2.17(f).
(ii)
Without limiting the generality of the foregoing,
(A) each
Lender that is not a Foreign Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such
Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or
the Administrative Agent), two executed original copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal
backup withholding tax;
(B) each
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following
is applicable:
(1) in
the case of any Foreign Lender claiming the benefits of an income tax treaty to which the U.S. is a party (x) with respect to
payments of interest under any Loan Document, executed original copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption
from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and
(y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an
exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other
income” article of such tax treaty;
(2) executed original copies of IRS Form W-8ECI;
(3) in
the case of any Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a
certificate substantially in the form of Exhibit L-1 to the effect that such Foreign Lender is not a “bank” within
the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section
871(h)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S.
Tax Compliance Certificate”) and (y) executed original copies of IRS Form W-8BEN or W-8BEN-E; or
(4) to
the extent any Foreign Lender is not the beneficial owner, executed original copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI,
IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3,
IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such Foreign Lender
is a partnership and one or more partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may
provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such partner;
(C) each
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed
original copies of any other form prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction
in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by
applicable Requirements of Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required
to be made; and
(D) if
a payment made to any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law
and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation as is prescribed by applicable
Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested
by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations
under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount
to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made
to FATCA after the date of this Agreement.
Each
Lender agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update
such documentation or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g) If
the Administrative Agent or any Lender or Issuing Bank determines, in its sole discretion exercised in good faith, that it has received
a refund of any Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which such Loan Party has
paid additional amounts pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section
2.17), it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid,
by such Loan Party under this Section 2.17 with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or Issuing Bank (including any Taxes imposed with respect to such refund), and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such
Loan Party, upon the request of the Administrative Agent, such Lender or Issuing Bank, agrees to repay the amount paid over to such Loan
Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent,
such Lender or Issuing Bank in the event the Administrative Agent, such Lender or Issuing Bank is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the Administrative Agent,
any Lender or Issuing Bank be required to pay any amount to any Loan Party pursuant to this paragraph (g) to the extent that the
payment thereof would place the Administrative Agent, Lender or Issuing Bank in a less favorable net after-Tax position than the position
that the Administrative Agent or such Lender or Issuing Bank would have been in if the Tax subject to indemnification had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid.
This Section shall not be construed to require the Administrative Agent, any Lender or any Issuing Bank to make available its Tax returns
(or any other information relating to its Taxes which it deems confidential) to the relevant Loan Party or any other Person.
(h) The
Administrative Agent shall deliver to Borrower, on or before the date on which it becomes the Administrative Agent hereunder, either
(i) a duly executed original IRS Form W-9 (or any applicable successor form) certifying that the Administrative Agent is not
subject to backup withholding, or (ii) (A) a duly completed executed original IRS Form W-8ECI to establish that the Administrative
Agent is not subject to withholding Taxes under the Internal Revenue Code with respect to any amounts payable for the account of the
Administrative Agent under any of the Loan Documents and (B) a duly executed original IRS Form W-8IMY (or applicable successor
form) certifying that it is a U.S. branch that has agreed to be treated as a U.S. person for United States federal withholding Tax
purposes with respect to payments received by it from the Borrower for the account of others under the Loan Documents. The
Administrative Agent shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide the
certification described in the preceding sentence. The Administrative Agent shall also, at the time or times prescribed by law and
at such time or times reasonably requested by the Borrower, provide the Borrower such documentation as prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the
Borrower as may be necessary for the Borrower to comply with its FATCA obligations, to determine whether the Administrative Agent
has or has not complied with its FATCA obligations, and to determine the amount, if any, to deduct and withhold from a payment to
the Administrative Agent.
(i) Survival.
Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent
or any assignment of rights by, or the replacement of, any Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all obligations under any Loan Document.
Section
2.18. Payments Generally; Allocation of Proceeds; Sharing of Payments.
(a) Unless
otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to
the time expressed hereunder or under such Loan Document (or, if no time is expressly required, by 2:00 p.m.) on the date when due, in
immediately available funds, without set-off (except as otherwise provided in Section 2.17) or counterclaim. Any amounts received
after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable
account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or
the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16 or 2.17
and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received
by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. Each Lender agrees that in
computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round such
Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount. Except as set forth in any amendment entered
into pursuant to Section 9.02(b)(ii)(E) with respect to the making of Revolving Loans or Letters of Credit denominated in a currency
other than Dollars, all payments (including accrued interest) hereunder shall be made in Dollars. Any payment required to be made by
the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before
such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing
or settlement system used by the Administrative Agent to make such payment.
(b) Subject
in all respects to the provisions of the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement, all
proceeds of Collateral received by the Administrative Agent at any time when an Event of Default exists, shall, upon election by the
Administrative Agent or at the direction of the Required Lenders, be applied, first, to the payment of all costs and
expenses then due incurred by the Administrative Agent in connection with any collection, sale or realization on Collateral or
otherwise in connection with this Agreement, any other Loan Document or any of the Secured Obligations, including all court costs
and the fees and expenses of agents and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or
under any other Loan Document on behalf of any Loan Party and any other costs or expenses incurred in connection with the exercise
of any right or remedy hereunder or under any other Loan Document, second, on a pro rata basis, to pay any fees, indemnities
or expense reimbursements then due to the Administrative Agent (other than those covered in clause first above) or to the Swingline
Lender or any Issuing Bank from the Borrower constituting Secured Obligations, third, on a pro rata basis in accordance with
the amounts of the Secured Obligations (other than contingent indemnification obligations for which no claim has yet been made) owed
to the Secured Parties on the date of any such distribution, to the payment in full of the Secured Obligations (including, with
respect to LC Exposure, an amount to be paid to the Administrative Agent equal to 100% of the LC Exposure (minus the amount
then on deposit in the LC Collateral Account) on such date, to be held in the LC Collateral Account as Cash collateral for such
Obligations); provided that if any Letter of Credit expires undrawn, then any Cash collateral held to secure the related LC
Exposure shall be applied in accordance with this Section 2.18(b), beginning with clause first above, fourth, as
provided for under the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement, and fifth, to the
Borrower or as the Borrower shall direct.
(c) If
any Lender obtains payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) in respect of
any principal of or interest on any of its Loans of any Class or participations in LC Disbursements or Swingline Loans held by it resulting
in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans of such Class and participations in LC
Disbursements or Swingline Loans and accrued interest thereon than the proportion received by any other Lender with Loans of such Class
and participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for Cash
at face value) participations in the Loans of such Class and sub-participations in LC Disbursements or Swingline Loans of other Lenders
of such Class at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders
of such Class ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans of such
Class and participations in LC Disbursements or Swingline Loans; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored
to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not apply to (x) any payment made by
the Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by any Lender as consideration
for the assignment of or sale of a participation in any of its Loans to any permitted assignee or participant, including any payment
made or deemed made in connection with Sections 2.22, 2.23, 9.02(c) and/or Section 9.05. The Borrower consents
to the foregoing and agrees, to the extent it may effectively do so under applicable Requirements of Law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. The Administrative
Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this
Section 2.18(c) and will, in each case, notify the Lenders following any such purchases or repayments. Each Lender that purchases
a participation pursuant to this Section 2.18(c) shall from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same
extent as though the purchasing Lender were the original owner of the Obligations purchased.
(d) Unless
the Administrative Agent has received notice from the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of any Lender or any Issuing Bank hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the applicable Lender or Issuing Bank the amount due. In such event, if the Borrower has not in
fact made such payment, then each Lender or the applicable Issuing Bank severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If
any Lender fails to make any payment required to be made by it pursuant to Section 2.07(b) or Section 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by
the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.
Section
2.19. Mitigation Obligations; Replacement of Lenders.
(a) If
any Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO Rate Loans
pursuant to Section 2.20, or the Borrower is required to pay any additional amount to or indemnify any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or its participation in any Letter of Credit affected by such event,
or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17,
as applicable, in the future or mitigate the impact of Section 2.20, as the case may be, and (ii) would not subject such Lender
to any material unreimbursed out-of-pocket cost or expense and would not otherwise be disadvantageous to such Lender in any material
respect. The Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) If
(i) any Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO Rate
Loans pursuant to Section 2.20, (ii) the Borrower is required to pay any additional amount to or indemnify any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, (iii) any Lender is a Defaulting Lender or (iv) in connection
with any proposed amendment, waiver or consent requiring the consent of “each Lender”, “each Revolving Lender”
or “each Lender directly affected thereby” (or any other Class or group of Lenders other than the Required Lenders) with
respect to which Required Lender or Required Revolving Lender consent (or the consent of Lenders holding loans or commitments of such
Class or lesser group representing more than 50% of the sum of the total loans and unused commitments of such Class or lesser group at
such time) has been obtained, as applicable, any Lender is a non-consenting Lender (each such Lender, a “Non-Consenting Lender”),
then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, (x) terminate the applicable
Commitments and/or Additional Commitments of such Lender, and repay all Obligations of the Borrower owing to such Lender relating to
the applicable Loans and participations held by such Lender as of such termination date under one or more Credit Facilities or Additional
Credit Facilities as the Borrower may elect or (y) replace such Lender by requiring such Lender to assign and delegate (and such Lender
shall be obligated to assign and delegate), without recourse (in accordance with and subject to the restrictions contained in Section
9.05), all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations
(which Eligible Assignee may be another Lender, if any Lender accepts such assignment); provided that (A) such Lender shall
have received payment of an amount equal to the outstanding principal amount of its Loans and, if applicable, participations in LC Disbursements
and Swingline Loans, in each case of such Class of Loans, Commitments and/or Additional Commitments, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder with respect to such Class of Loans, Commitments and/or Additional Commitments, (B)
in the case of any assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant
to Section 2.17, such assignment will result in a reduction in such compensation or payments and (C) such assignment does not
conflict with applicable law. No Lender (other than a Defaulting Lender) shall be required to make any such assignment and delegation,
and the Borrower may not repay the Obligations of such Lender or terminate its Commitments or Additional Commitments, if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation
cease to apply. Each Lender agrees that if it is replaced pursuant to this Section 2.19, it shall execute and deliver to the Administrative
Agent an Assignment and Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent any Promissory Note
(if the assigning Lender’s Loans are evidenced by one or more Promissory Notes) subject to such Assignment and Assumption (provided
that the failure of any Lender replaced pursuant to this Section 2.19 to execute an Assignment and Assumption or deliver any
such Promissory Note shall not render such sale and purchase (and the corresponding assignment) invalid), such assignment shall be recorded
in the Register and any such Promissory Note shall be deemed cancelled. Each Lender hereby irrevocably appoints the Administrative Agent
(such appointment being coupled with an interest) as such Lender’s attorney-in-fact, with full authority in the place and stead
of such Lender and in the name of such Lender, from time to time in the Administrative Agent’s discretion, with prior written notice
to such Lender, to take any action and to execute any such Assignment and Assumption or other instrument that the Administrative Agent
may deem reasonably necessary to carry out the provisions of this clause (b). To the extent that any Lender is replaced pursuant
to Section 2.19(b)(iv) in connection with a Repricing Transaction requiring payment of a fee pursuant to Section 2.12(f),
the Borrower shall pay to each Lender being replaced as a result of such Repricing Transaction the fee set forth in Section 2.12(f).
Section
2.20. Illegality. If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental
Authority has asserted after the Closing Date that it is unlawful, for such Lender or its applicable lending office to make,
maintain or fund Loans whose interest is determined by reference to the Published LIBO Rate, or to determine or charge interest
rates based upon the Published LIBO Rate, or any Governmental Authority has imposed material restrictions on the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such
Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue LIBO Rate Loans in
Dollars or to convert ABR Loans to LIBO Rate Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender
making or maintaining ABR Loans the interest rate on which is determined by reference to the Published LIBO Rate component of the
Alternate Base Rate, the interest rate on which ABR Loans of such Lender, shall, if necessary to avoid such illegality, be
determined by the Administrative Agent without reference to the Published LIBO Rate component of the Alternate Base Rate, in each
case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination
no longer exist (which notice such Lender agrees to give promptly). Upon receipt of such notice, (x) the Borrower shall, upon
demand from such Lender (with a copy to the Administrative Agent), prepay or convert all of such Lender’s LIBO Rate Loans to
ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the
Administrative Agent without reference to the Published LIBO Rate component of the Alternate Base Rate) either on the last day of
the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBO Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such LIBO Rate Loans (in which case the Borrower shall not be required to make
payments pursuant to Section 2.16 in connection with such payment) and (y) if such notice asserts the illegality of
such Lender determining or charging interest rates based upon the Published LIBO Rate, the Administrative Agent shall during the
period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Published LIBO Rate
component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender
to determine or charge interest rates based upon the Published LIBO Rate. Upon any such prepayment or conversion, the Borrower shall
also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different lending office if such
designation will avoid the need for such notice and will not, in the determination of such Lender, otherwise be materially
disadvantageous to such Lender.
Section
2.21. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees
shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to Section 2.12(a) and, subject
to clause (d)(iv) below, on the participation of such Defaulting Lender in Letters of Credit pursuant to Section 2.12(b)
and pursuant to any other provisions of this Agreement or other Loan Document.
(b) The
Commitments, Loans and LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, each affected
Lender, the Required Lenders, Required Revolving Lenders or such other number of Lenders as may be required hereby or under any other
Loan Document have taken or may take any action hereunder (including any consent to any waiver, amendment or modification pursuant to
Section 9.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected
Lender which affects such Defaulting Lender disproportionately and adversely relative to other affected Lenders shall require the consent
of such Defaulting Lender.
(c) Any
payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Section 2.11, Section 2.15, Section 2.16, Section
2.17, Section 2.18, Article 7, Section 9.05 or otherwise, and including any amounts made available to the
Administrative Agent by such Defaulting Lender pursuant to Section 9.09), shall be applied at such time or times as may be
determined by the Administrative Agent and, where relevant, the Borrower as follows: first, to the payment of any amounts
owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of
any amounts owing by such Defaulting Lender to any applicable Issuing Bank and/or Swingline Lender hereunder; third, if so
reasonably determined by the Administrative Agent or reasonably requested by the applicable Issuing Bank, to be held as Cash
collateral for future funding obligations of such Defaulting Lender in respect of any participation in any Letter of Credit; fourth,
so long as no Default or Event of Default exists, as the Borrower may request, to the funding of any Loan in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement; fifth, if so determined by the
Administrative Agent or the Borrower, to be held in a deposit account and released in order to satisfy obligations of such
Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the non-Defaulting
Lenders, Issuing Banks or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any
non-Defaulting Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; seventh, to the payment of any amounts owing to the Borrower
as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result
of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Loan or LC Exposure in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such
Loan or LC Exposure was made or created, as applicable, at a time when the conditions set forth in Section 4.02 were
satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Exposure owed to, all non-Defaulting Lenders
on a pro rata basis prior to being applied to the payment of any Loans of, or LC Exposure owed to, such Defaulting Lender.
Any payments, prepayments or other amounts paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed
by any Defaulting Lender or to post Cash collateral pursuant to this Section 2.21(c) shall be deemed paid to and redirected
by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d)
If any Swingline Loans or LC Exposure exists at the time any Lender becomes a Defaulting Lender then:
(i) all
or any part of such Swingline Loans and LC Exposure shall be reallocated among the non-Defaulting Revolving Lenders in accordance with
their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures
does not exceed the total of all non-Defaulting Revolving Lenders’ Revolving Credit Commitments;
(ii) if
the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, without prejudice
to any other right or remedy available to it hereunder or under applicable Requirements of Law, within two Business Days following notice
by the Administrative Agent, Cash collateralize 100% of such Defaulting Lender’s LC Exposure and any obligations of such Defaulting
Lender to fund participations in any Swingline Loan (after giving effect to any partial reallocation pursuant to paragraph (i)
above and any Cash collateral provided by such Defaulting Lender or pursuant to Section 2.21(c) above) or make other arrangements
reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank and/or Swingline Lender with respect to such LC
Exposure and/or Swingline Loans and obligations to fund participations. Cash collateral (or the appropriate portion thereof) provided
to reduce LC Exposure or other obligations shall be released promptly following (A) the elimination of the applicable LC Exposure or
other obligations giving rise thereto (including by the termination of the Defaulting Lender status of the applicable Lender (or, as
appropriate, its assignee following compliance with Section 2.19)) or (B) the Administrative Agent’s good faith determination
that there exists excess Cash collateral (including as a result of any subsequent reallocation of Swingline Loans and LC Exposure among
non-Defaulting Lenders described in clause (i) above);
(iii) (A)
if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.21(d), then the fees payable to the
Revolving Lenders pursuant to Section 2.12(a) and (b), as the case may be, shall be adjusted to give effect to such reallocation
and (B) if the LC Exposure of any Defaulting Lender is Cash collateralized pursuant to this Section 2.21(d), then, without prejudice
to any rights or remedies of the applicable Issuing Bank, any Lender or any Borrower hereunder, no letter of credit fees shall be payable
under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure; and
(iv) if
any Defaulting Lender’s LC Exposure is not Cash collateralized, prepaid or reallocated pursuant to this Section 2.21(d),
then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Revolving Lender hereunder, all letter of credit
fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable
Issuing Bank until such Defaulting Lender’s LC Exposure is Cash collateralized or reallocated.
(e) So
long as any Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing
Bank shall be required to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably satisfied that
the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders, Cash collateral provided
pursuant to Section 2.21(c) and/or Cash collateral provided by the Borrower in accordance with Section 2.21(d), and participating
interests in any such or newly issued, extended or created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting
Revolving Lenders in a manner consistent with Section 2.21(d)(i) (it being understood that Defaulting Lenders shall not participate
therein).
(f) In
the event that the Administrative Agent and the Borrower agree that any Defaulting Lender has adequately remedied all matters that caused
such Lender to be a Defaulting Lender, then the Applicable Percentage of Swingline Loans and LC Exposure of the Revolving Lenders shall
be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment, and on such date such Revolving Lender shall
purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) or participations in Revolving
Loans as the Administrative Agent shall determine as are necessary in order for such Revolving Lender to hold such Revolving Loans or
participations in accordance with its Applicable Percentage. Notwithstanding the fact that any Defaulting Lender has adequately remedied
all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender and (y) except to the extent otherwise expressly
agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Section
2.22. Incremental Credit Extensions.
(a) The
Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment (i) add one or more new tranches of
term facilities and/or increase the principal amount of the Initial Term Loans or any Additional Term Loans by requesting new term loan
commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans
made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches
of revolving commitments and/or increase the Total Revolving Credit Commitment or any Additional Revolving Credit Commitment (any such
new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental
Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental
Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding
principal amount not to exceed the Incremental Cap; provided that:
(i) no
Incremental Commitment may be less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except
as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental Commitment,
and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that
the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no
Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any
existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or
Incremental Loan,
(iv) any
such Incremental Revolving Facility shall either (A) be subject to the same terms and conditions as any then-existing Revolving Facility
(and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental
Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving
Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the
lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders)
or (B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Initial Revolving Credit Maturity
Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment
and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the
Borrower) shall be substantially consistent with the Initial Revolving Loans or shall be reasonably satisfactory to the Administrative
Agent; provided, that if any financial maintenance covenant is added to any such Incremental Revolving Facility and such financial
maintenance covenant is more favorable to the lenders under such Incremental Revolving Facility than the Financial Covenant, either (x)
such financial maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving
Lenders shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the Borrower,
any applicable “equity cure” provisions with respect to any such financial maintenance covenant) (it being understood that
if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility,
no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other
provision is (1) also added for the benefit of any then-existing Revolving Facility or (2) only applicable after the applicable Latest
Revolving Loan Maturity Date),
(v) the
Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and the lender
or lenders providing such Incremental Facility; provided that, in the case of any broadly-syndicated Dollar denominated Incremental
Term Facility that is (x) originally incurred in reliance on clause (a) or clause (e) of the definition of “Incremental
Cap” (but not any reclassification pursuant to clause (3) of the proviso therein) and (y) scheduled to mature prior to the
date that is one year after the Initial Term Loan Maturity Date, the Effective Yield applicable thereto may not be more than 0.50% higher
than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the
Alternate Base Rate floor or LIBO Rate floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the
Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility (this proviso,
the “MFN Provision”); provided, further, that any increase in Effective Yield applicable to any Initial
Term Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may, at
the election of the Borrower, be effected through an increase in the Alternate Base Rate floor or LIBO Rate floor applicable to such
Initial Term Loans or an increase in the interest rate margin applicable to such Incremental Loans; provided further that the
MFN Provision shall not apply to Incremental Term Facilities having an aggregate principal amount not exceeding $20,000,000 (as selected
by the Borrower),
(vi) the
final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date at the time
of the incurrence thereof; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity
date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or
otherwise replace such bridge loans shall be subject to the requirements of this clause (vi) and (ii) the Permitted Earlier Maturity
Indebtedness Exception (to the extent designated by the Borrower),
(vii) the
Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity
of the Initial Term Loans; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity
date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or
otherwise replace such bridge loans shall be subject to the requirements of this clause (vii) or (ii) Permitted Earlier Maturity
Indebtedness Exception (to the extent designated by the Borrower),
(viii) subject
to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined
by the Borrower and the lenders providing such Incremental Term Facility,
(ix) subject
to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined
by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x) (A)
each Incremental Facility shall rank pari passu with the Initial Term Loans (in the case of any Incremental Term Facility) and
pari passu with the Initial Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment and
security and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other
than the Collateral,
(xi)
any Incremental Term Facility may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis
in any voluntary prepayment of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than
pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any
mandatory prepayment of Term Loans required pursuant to Section 2.11(b),
(xii) no
Event of Default under Section 7.01(a), (f) or (g) shall exist immediately prior to or after giving effect to the effectiveness of such
Incremental Facility (except in connection with any acquisition or other Investment or irrevocable notice of repayment or redemption
of Indebtedness, where no such Event of Default shall exist at the time as elected by the Borrower pursuant to Section 1.04(e)),
(xiii) except
as otherwise required or permitted in clauses (v) through (xi) above, all other terms of any Incremental Term Facility shall be as agreed
between the Borrower and the lenders providing such Incremental Term Facility,
(xiv) the
proceeds of any Incremental Facility may be used for working capital, Capital Expenditures and other general corporate purposes of the
Borrower and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments
and any other purpose not prohibited by the terms of the Loan Documents), and
(xv) on
the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans,
and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added
to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type
with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding
Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional
Term Loans, as applicable, of the same type with the same Interest Period of the respective Class.
(b) Incremental
Commitments may be provided by any existing Lender or by any other Eligible Assignee (any such other Eligible Assignee being called an
“Additional Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving
Facility, the Swingline Lender and any Issuing Bank) shall have consented (such consent not to be unreasonably withheld, conditioned
or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section
9.05(b) for an assignment of Loans to such Additional Lender; provided; further, that any Additional Lender that is
an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if
Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment.
(c) Each
Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and
the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative
Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Additional Lender
shall become a Lender for all purposes in connection with this Agreement.
(d) As
a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request,
the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements
and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Lender, an
administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative
Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative
Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental
Loans and (iv) upon its request, the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer
thereof:
(A) certifying
and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility
or Incremental Loans, and
(B) to
the extent applicable, certifying that the condition set forth in clause (a)(xii) above has been satisfied.
(e)
Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) if
such Incremental Revolving Facility is implemented by increasing the amount of then-existing Total Revolving Credit Commitments
(rather than by establishing a new Class of Revolving Loans), (i) each Revolving Lender immediately prior to such increase will automatically
and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant
Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such
Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving
effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental
Revolving Facility Lender) (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans
shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments (after giving effect to any
increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the
applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders
providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing
the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all
of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of
their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment
pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro
rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause
(i); and
(ii) if
such Incremental Revolving Facility is implemented pursuant to a request to add one or more new tranches of revolving commitments, (1)
the borrowing and repayment (except for (A) payments of interest and fees at different rates on the existing Revolving Facilities and
such Incremental Revolving Facility, (B) repayments required upon the Maturity Date of the then-existing Revolving Facility and such
Incremental Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of commitments (subject
to clause (3) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Facility Commitments
shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving
Facility, (2) all swingline loans and/or letters of credit made or issued, as applicable, under such Incremental Revolving Facility shall
be participated on a pro rata basis by all Revolving Lenders and (3) the permanent repayment of Loans with respect to, and termination
of commitments under, such Incremental Revolving Facility shall be made on a pro rata basis with the then-existing Revolving Facility
and any other then outstanding Incremental Revolving Facility, except that the Borrower shall be permitted to permanently repay and terminate
commitments under such Incremental Revolving Facility on a greater than pro rata basis as compared with any other revolving facility
with a later Maturity Date than such revolving facility.
(f) Effective
on the date of effectiveness of each Incremental Revolving Facility, the maximum amount of LC Exposure and/or Swingline Loans, as applicable,
permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Borrower and the relevant Issuing
Bank and/or the Swingline Lender, as applicable.
(g) The
Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to
any other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Loans
or commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate
in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches,
in each case on terms consistent with this Section 2.22.
(h) To
the extent the provisions of clause (a)(xv) above require that Term Lenders making new Incremental Term Loans add such Incremental Term
Loans to the then outstanding borrowings of LIBO Rate Loans of the respective Class of Initial Term Loans or Additional Term Loans, as
applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e.,
an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the respective Class and which
will end on the last day of such Interest Period).
(i) Notwithstanding
anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds of any Incremental
Facility are intended to be applied to finance an acquisition or other Investment and the lenders providing such Incremental Facility
so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality
(including the making and accuracy of Specified Representations as conformed for such acquisition or other Investment).
(j)
This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary.
Section
2.23. Extensions of Loans and Revolving Credit Commitments.
(a) Notwithstanding
anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from
time to time by the Borrower to all Lenders holding Loans of any Class or Commitments of any Class, in each case on a pro rata basis
(based on the aggregate outstanding principal amount of the respective Loans or Commitments of such Class) and on the same terms to each
such Lender, the Borrower is hereby permitted from time to time to consummate transactions with any individual Lender who accepts the
terms contained in the relevant Extension Offer to extend the Maturity Date of all or a portion of such Lender’s Loans and/or Commitments
of such Class and otherwise modify the terms of all or a portion of such Loans and/or Commitments pursuant to the terms of the relevant
Extension Offer (including by increasing the interest rate or fees payable in respect of such Loans and/or Commitments (and related outstandings)
and/or modifying the amortization schedule, if any, in respect of such Loans) (each, an “Extension”); it being understood
that any Extended Term Loans shall constitute a separate Class of Loans from the Class of Loans from which they were converted and any
Extended Revolving Credit Commitments shall constitute a separate Class of Revolving Credit Commitments from the Class of Revolving Credit
Commitments from which they were converted, so long as the following terms are satisfied:
(i) except
as to (x) interest rates, fees and final maturity (which shall, subject to the succeeding clause (iii)(y), be determined by
the Borrower and set forth in the relevant Extension Offer), (y) terms applicable to such Extended Revolving Credit Commitments or
Extended Revolving Loans that are more favorable to the lenders or the agent of such Extended Revolving Credit Commitments or
Extended Revolving Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents on or
prior to the effectiveness of such Extension for the benefit of the Revolving Lenders or, as applicable, the Administrative Agent
pursuant to the applicable Extension Amendment and (z) any terms or other provisions applicable only to periods after the Latest
Revolving Loan Maturity Date (in each case, as of the date of such Extension), the commitment of any Revolving Lender that agrees to
an Extension (an “Extended Revolving Credit Commitment”; and the Loans thereunder, “Extended Revolving
Loans”), and the related outstandings, shall be a revolving commitment (or related outstandings, as the case may be) with
substantially consistent terms (or terms not less favorable to existing Revolving Lenders) as the original Revolving Credit
Commitments (and related outstandings) provided hereunder; provided that to the extent any non-extended portion of the
Revolving Facility or any Additional Revolving Facility then exists, (1) the borrowing and repayment (except for (A) payments of
interest and fees at different rates on such revolving facilities (and related outstandings), (B) repayments required upon the
Maturity Date of such revolving facilities and (C) repayments made in connection with any permanent repayment and termination of
commitments (subject to clause (3) below)) of Extended Revolving Loans after the effective date of such Extended Revolving
Credit Commitments shall be made on a pro rata basis with such portion of the Revolving Facility or the relevant Additional
Revolving Facility, as applicable, (2) all swingline loans and/or letters of credit made or issued, as applicable, under any
Extended Revolving Credit Commitment shall be participated on a pro rata basis by all Revolving Lenders and (3) the permanent
repayment of Loans with respect to, and termination of commitments under, any such Extended Revolving Credit Commitment after the
effective date of such Extended Revolving Credit Commitments shall be made on a pro rata basis with such portion of the
Revolving Facility and/or any Additional Revolving Facility, except that the Borrower shall be permitted to permanently repay and
terminate commitments of any such revolving facility on a greater than pro rata basis (I) as compared to any other Revolving
Facilities with a later Maturity Date than such Revolving Facility and (II) to the extent refinanced or replaced with a Replacement
Revolving Facility or Replacement Debt;
(ii) except
as to (x) interest rates, fees, amortization, final maturity date, premiums, required prepayment dates and participation in prepayments
(which shall, subject to immediately succeeding clauses (iii)(x), (iv) and (v), be determined by the Borrower and
set forth in the relevant Extension Offer), (y) terms applicable to such Extended Term Loans that are more favorable to the lenders or
the agent of such Extended Term Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents
on or prior to the effectiveness of such Extension for the benefit of the Term Lenders or, as applicable, the Administrative Agent pursuant
to the applicable Extension Amendment and (z) any covenants or other provisions applicable only to periods after the Latest Term Loan
Maturity Date (in each case, as of the date of such Extension), the Term Loans of any Lender extended pursuant to any Extension (any
such extended Term Loans, the “Extended Term Loans”) shall have substantially consistent terms as the tranche of Term
Loans subject to the relevant Extension Offer;
(iii) (x)
the final maturity date of any Extended Term Loans shall be no earlier than the then applicable Latest Term Loan Maturity Date at the
time of extension and (y) no Extended Revolving Credit Commitments or Extended Revolving Loans shall have a final maturity date earlier
than (or require commitment reductions prior to) the then applicable Latest Revolving Loan Maturity Date;
(iv) the
Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity
of the Term Loans or any other Extended Term Loans extended thereby;
(v) subject
to clauses (iii) and (iv) above, any Extended Term Loans may otherwise have an amortization schedule as determined by the
Borrower and the Lenders providing such Extended Term Loans;
(vi) any
Extended Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment
of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis other than in the
case of prepayment with proceeds of Indebtedness refinancing such Extended Term Loans) in any mandatory prepayment of Term Loans required
pursuant to Section 2.11(b);
(vii) if
the aggregate principal amount of Loans or commitments, as the case may be, in respect of which Lenders shall have accepted the relevant
Extension Offer exceeds the maximum aggregate principal amount of Loans or commitments, as the case may be, offered to be extended by
the Borrower pursuant to such Extension Offer, then the Loans or commitments, as the case may be, of such Lenders shall be extended ratably
up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) held by Lenders that
have accepted such Extension Offer;
(viii) unless
the Administrative Agent otherwise agrees, each Extension shall be in a minimum amount of $5,000,000;
(ix) any
applicable Minimum Extension Condition shall be satisfied or waived by the Borrower; and
(x)
all documentation in respect of such Extension shall be consistent with the foregoing.
(b) With
respect to any Extension consummated pursuant to this Section 2.23, (i) no such Extension shall constitute a voluntary or mandatory
prepayment for purposes of Section 2.11, (ii) the scheduled amortization payments (in so far as such schedule affects payments
due to Lenders participating in the relevant Class) set forth in Section 2.10 shall be adjusted to give effect to such Extension
of the relevant Class and (iii) except as set forth in clause (a)(viii) above, no Extension Offer is required to be in any minimum
amount or any minimum increment; provided that the Borrower may, at its election, specify as a condition (a “Minimum
Extension Condition”) to consummating such Extension that a minimum amount (to be determined and specified in the relevant
Extension Offer in the Borrower’s sole discretion and which may be waived by the Borrower in its sole discretion) of Loans or commitments
(as applicable) of any or all applicable Classes be tendered. The Administrative Agent and the Lenders hereby consent to the transactions
contemplated by this Section 2.23 (including, for the avoidance of doubt, any payment of any interest, fees or premium in respect
of any tranche of Extended Term Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant
Extension Offer) and hereby waive the requirements of any provision of this Agreement (including Sections 2.10, 2.11 or
2.18) or any other Loan Document that may otherwise prohibit any Extension or any other transaction contemplated by this Section.
(c) No
consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (A) the consent of each Lender
agreeing to such Extension with respect to one or more of its Loans and/or commitments under any Class (or a portion thereof), (B) with
respect to any Extension of the Revolving Credit Commitments, the consent of each Issuing Bank to the extent the commitment to provide
Letters of Credit is to be extended and (C) with respect to any Extension of the Revolving Credit Commitments, the consent of the Swingline
Lender to the extent the swingline facility is to be extended (in each case which consent shall not be unreasonably withheld or delayed).
All Extended Term Loans and Extended Revolving Credit Commitments and all obligations in respect thereof shall constitute Secured Obligations
under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with
all other Secured Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative
Agent to enter into such amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to
establish new tranches or sub-tranches in respect of Loans or commitments so extended and such technical amendments as may be necessary
or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new
tranches or sub-tranches, in each case on terms consistent with this Section 2.23.
(d) In
connection with any Extension, the Borrower shall provide the Administrative Agent at least ten Business Days’ (or such shorter
period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including regarding
timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such
Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish
the purposes of this Section 2.23.
ARTICLE
3 REPRESENTATIONS AND WARRANTIES
On
the dates and to the extent required pursuant to Section 4.01 or Section 4.02, as applicable, Holdings (solely with respect to Sections
3.01, 3.02, 3.03, 3.06, 3.07, 3.08, 3.09, 3.12, 3.13, 3.14, 3.16
and 3.17) and the Borrower hereby represent and warrant to the Lenders that:
Section
3.01. Organization; Powers. Each of Holdings, the Borrower and each of its Restricted Subsidiaries (a) is (i) duly organized and
validly existing and (ii) in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of its jurisdiction
of organization, (b) has all requisite organizational power and authority to own its property and assets and to carry on its business
as now conducted and (c) is qualified to do business in, and is in good standing (to the extent such concept exists in the relevant jurisdiction)
in, every jurisdiction where its ownership, lease or operation of properties or conduct of its business requires such qualification;
except, in each case referred to in this Section 3.01 (other than clause (a)(i) and (b), in each case with respect to the
Borrower) where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
Section
3.02. Authorization; Enforceability. The execution, delivery and performance by each Loan Party of each of the Loan Documents
to which such Loan Party is a party are within such Loan Party’s corporate or other organizational power and have been duly authorized
by all necessary corporate or other organizational action of such Loan Party. Each Loan Document to which any Loan Party is a party has
been duly executed and delivered by such Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance
with its terms, subject to the Legal Reservations.
Section
3.03. Governmental Approvals; No Conflicts. The execution and delivery of the Loan Documents by each Loan Party party thereto
and the performance by such Loan Party thereof (a) do not require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) in connection
with the Perfection Requirements and (iii) such consents, approvals, registrations, filings, or other actions the failure to obtain or
make which would not be reasonably expected to have a Material Adverse Effect, (b) will not violate any (i) of such Loan Party’s
Organizational Documents or (ii) Requirements of Law applicable to such Loan Party which, in the case of this clause (b)(ii),
would reasonably be expected to have a Material Adverse Effect and (c) will not violate or result in a default under (i) the Second Lien
Credit Agreement or (ii) any other material Contractual Obligation in respect of Indebtedness having an aggregate principal amount exceeding
the Threshold Amount to which such Loan Party is a party which, in the case of this clause (c), would reasonably be expected to
result in a Material Adverse Effect.
Section
3.04. Financial Condition; No Material Adverse Effect.
(a) After
the Closing Date, the financial statements most recently provided pursuant to Section 5.01(a) or (b), as applicable, present
fairly, in all material respects, the financial position, results of operations and cash flows of the Borrower on a consolidated basis
as of such dates and for such periods in accordance with GAAP, (w) except as otherwise expressly noted therein, (x) subject, in the case
of financial statements provided pursuant to Section 5.01(a), to the absence of footnotes and normal year-end audit adjustments
and (y) except as may be necessary to reflect any differing entity and/or organizational structure prior to giving effect to the Transactions.
(b) Since
the Closing Date, there have been no events, developments or circumstances that have had, or would reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
Section
3.05. Properties.
(a) [Reserved.]
(b) The
Borrower and each of its Restricted Subsidiaries have good and valid fee simple title to or rights to purchase, or valid leasehold interests
in, or easements or other limited property interests in, all of their respective Real Estate Assets, free and clear of all Liens except
for Permitted Liens and have good title to their personal property and assets, in each case material to the business, except (i) for
defects in title that do not materially interfere with their ability to conduct their business as currently conducted or to utilize such
properties and assets for their intended purposes or (ii) where the failure to have such title or interest would not reasonably be expected
to have a Material Adverse Effect.
(c) The
Borrower and each of its Restricted Subsidiaries own or otherwise have a license or right to use all Patents, Trademarks, Copyrights
and other rights in works of authorship (including all copyrights embodied in software), domain names, trade secrets and all other intellectual
property rights (“IP Rights”) necessary to the conduct of the businesses of the Borrower and its Restricted Subsidiaries
as presently conducted, and, to the knowledge of the Borrower, such IP Rights do not infringe or misappropriate the IP Rights of any
third party, except to the extent such failure to own or license or have rights to use would not, or where such infringement or misappropriation
would not, reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section
3.06. Litigation and Environmental Matters. Except as set forth on Schedule 3.06:
(a) there
are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened in writing against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries which would reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect;
(b) except
for any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, (i)
neither Holdings, the Borrower nor any of its Restricted Subsidiaries has received written notice of any claim with respect to any Environmental
Liability, knows of any basis for any Environmental Liability or, to the knowledge of the Borrower, has become subject to any Environmental
Liability and (ii) neither Holdings, the Borrower nor any of its Restricted Subsidiaries is in violation of any Environmental Law or
has not obtained, maintained, or complied with any permit, license or other approval required under any Environmental Law; and
(c) neither
Holdings, the Borrower nor any of its Restricted Subsidiaries has treated, stored, transported, Released or disposed of any Hazardous
Material at or from any currently or formerly owned, leased or operated real estate or facility nor, to the knowledge of the Borrower,
has any Hazardous Material been Released from any third-party location relating to the Borrower’s or any of its Restricted Subsidiaries’
businesses, in each case in a manner that would reasonably be expected to have a Material Adverse Effect.
Section
3.07. Compliance with Laws. Each of Holdings, the Borrower and each of its Restricted Subsidiaries is in compliance with all Requirements
of Law applicable to it or its property, except, in each case where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, it being understood and agreed that this Section 3.07 shall not apply
to any law specifically referenced in Section 3.17.
Section
3.08. Investment Company Status. No Loan Party is required to be registered as an “investment company” under the Investment
Company Act of 1940.
Section
3.09. Taxes. Each of Holdings, the Borrower and each of its Restricted Subsidiaries has timely filed or caused to be filed all
Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it that
are due and payable, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which Holdings, the Borrower
or such Restricted Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent
that the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section
3.10. ERISA.
(a) Each
Pension Plan is in compliance in form and operation with its terms and with ERISA and the Code and all other applicable laws and regulations,
except where any failure to comply would not reasonably be expected to result in a Material Adverse Effect.
(b) No
ERISA Event has occurred in the five-year period prior to the date on which this representation is made or deemed made and is continuing
or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected
to occur, would reasonably be expected to result in a Material Adverse Effect.
Section
3.11. Disclosure.
(a) As
of the Closing Date, to the knowledge of the Borrower, all written factual information (other than the Projections, the model delivered
by the Sponsor to the Arrangers on June 4, 2017, other forward-looking or projected information, pro forma information and information
of a general economic or general industry nature (including any reports or memos prepared by third party consultants)) concerning Holdings,
the Borrower and its Restricted Subsidiaries and the Transactions and that was included in the Information Memorandum or otherwise prepared
by or on behalf of the foregoing or the Sponsor or their respective representatives and made available to any Initial Lender or the Administrative
Agent in connection with the Transactions on or before the Closing Date (the “Information”), when taken as a whole,
did not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after
giving effect to all supplements and updates thereto from time to time).
(b) The
Projections have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time furnished (it
being recognized that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies many
of which are beyond the Borrower’s control, that no assurance can be given that any particular financial projections (including
the Projections) will be realized, that actual results may differ from projected results and that such differences may be material).
Section
3.12. Solvency. As of the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date and
the incurrence of indebtedness and obligations on the Closing Date in connection with this Agreement and the Transactions, (i) the sum
of the debt (including contingent liabilities) of Holdings and its Subsidiaries, taken as a whole, does not exceed the fair value of
the assets of Holdings and its Subsidiaries, taken as a whole; (ii) the present fair saleable value of the assets of Holdings and its
Subsidiaries, taken as a whole, is not less than the amount that will be required to pay the probable liabilities (including contingent
liabilities) of Holdings and its Subsidiaries, taken as a whole, on their debts as they become absolute and matured; (iii) the capital
of Holdings and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of Holdings and its Subsidiaries,
taken as a whole, contemplated as of the Closing Date; and (iv) Holdings and its Subsidiaries, taken as a whole, do not intend to incur,
or believe that they will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debts
as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall
be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liability meets the criteria
for accrual under Statement of Financial Accounting Standards No. 5).
Section
3.13. Capitalization and Subsidiaries. Schedule 3.13 sets forth, in each case as of the Closing Date, (a) a correct
and complete list of the name of each subsidiary of Holdings and the ownership interest therein held by Holdings or its applicable
subsidiary and (b) the type of entity of Holdings and each of its subsidiaries.
Section
3.14. Security Interest in Collateral. Subject to the terms of the last paragraph of Section 4.01, the Legal
Reservations, the Perfection Requirements, the provisions, limitations and/or exceptions set forth in this Agreement and/or the
other relevant Loan Documents (including the Intercreditor Agreement or any other Acceptable Intercreditor Agreement), the
Collateral Documents create legal, valid and enforceable Liens on all of the Collateral in favor of the Administrative Agent, for
the benefit of itself and the other Secured Parties, and upon the satisfaction of the applicable Perfection Requirements, such Liens
constitute perfected Liens (with the priority such Liens are expressed to have within the relevant Collateral Documents) on the
Collateral (to the extent such Liens are required to be perfected under the terms of the Loan Documents) securing the Secured
Obligations, in each case as and to the extent set forth therein. For the avoidance of doubt, notwithstanding anything herein or in
any other Loan Document to the contrary, neither the Borrower nor any other Loan Party makes any representation or warranty (other
than any representation or warranty expressly made in such Loan Document) as to (A) the effects of perfection or non-perfection, the
priority or the enforceability of any pledge of or security interest in any Capital Stock of any Foreign Subsidiary, or as to the
rights and remedies of the Administrative Agent or any Lender with respect thereto, under foreign Requirements of Law, (B) the
enforcement of any security interest, or right or remedy with respect to any Collateral that may be limited or restricted by, or
require any consent, authorization approval or license under, any Requirement of Law, (C) on the Closing Date and until
required pursuant to Section 5.12 or the last paragraph of Section 4.01, as applicable, the pledge or creation of any security
interest, or the effects of perfection or non-perfection, the priority or enforceability of any pledge or security interest to the
extent the same is not required on the Closing Date pursuant to the final paragraph of Section 4.01 or (D) any Excluded
Asset.
Section
3.15. Labor Disputes. As of the Closing Date, except as individually or in the aggregate would not reasonably be expected to
have a Material Adverse Effect: (a) there are no strikes, lockouts or slowdowns against the Borrower or any of its Restricted
Subsidiaries pending or, to the knowledge of the Borrower or any of its Restricted Subsidiaries, threatened in writing and (b) the
hours worked by and payments made to employees of the Borrower and its Restricted Subsidiaries have not been in violation of
the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters.
Section
3.16. Federal Reserve Regulations. No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any purpose that results in a violation of the provisions of
Regulation U and X.
Section
3.17. Sanctions and Anti-Corruption Laws.
(a) (i)
None of Holdings, the Borrower nor any of its Restricted Subsidiaries nor, to the knowledge of the Borrower, any director, officer, agent,
employee or controlled Affiliate of any of the foregoing is a Sanctioned Person; and (ii) the Borrower will not directly or, to its knowledge,
indirectly, use the proceeds of the Loans or otherwise make available such proceeds to any Sanctioned Person, for the purpose of financing
the activities of any Sanctioned Person, or in any Sanctioned Country, or in any other matter, in each case, that would result in a violation
by any Person party to this Agreement of Sanctions.
(b)
Each Loan Party is in compliance with applicable Sanctions in all material respects.
(c) No
part of the proceeds of any Loan or any Letter of Credit will be used, directly or, to the knowledge of the Borrower, indirectly, for
any payments to any governmental official or employee, political party, official of a political party, candidate for political office,
or any other person or entity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the U.S.
Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption law.
ARTICLE
4 CONDITIONS
Section
4.01. Closing Date. The obligations of (i) each Lender to make Loans and (ii) any Issuing Bank to issue Letters of Credit shall
not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) Credit
Agreement and Loan Documents. The Administrative Agent (or its counsel) shall have received from each Loan Party party thereto
(i) a counterpart signed by each such Loan Party (or written evidence reasonably satisfactory to the Administrative Agent (which may
include a copy transmitted by facsimile or other electronic method) that such party has signed a counterpart) of (A) this
Agreement, (B) the Security Agreement, (C) the Loan Guaranty, (D) the Intercreditor Agreement and (E) any Promissory Note requested
by a Lender at least three Business Days prior to the Closing Date and (ii) a Borrowing Request as required by Section
2.03.
(b) Legal
Opinions. The Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders and each Issuing Bank
on the Closing Date, a customary written opinion of (i) Davis Polk & Wardwell LLP, in its capacity as special New York counsel for
Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings, the
Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the Borrower
and the Subsidiary Guarantors.
(c) Financial
Statements and Pro Forma Financial Statements. The Administrative Agent shall have received, (i) (x) audited consolidated
balance sheets of the Target and its consolidated subsidiaries as at the end of, and related consolidated statements of operations,
comprehensive loss, cash flows and stockholders’ equity of the Target and its consolidated subsidiaries for, the three most
recently completed fiscal years ended at least 110 days prior to the Closing Date and (y) an unaudited consolidated balance sheet of
the Target and its consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive
loss, cash flows and stockholders’ equity of the Target and its consolidated subsidiaries for, each subsequent fiscal quarter
(other than the fourth fiscal quarter of any fiscal year) of the Target and its consolidated subsidiaries subsequent to the last
fiscal year for which financial statements were delivered pursuant to the preceding clause (x) and ended at least 46 days before the
Closing Date (in the case of this clause (y), without footnotes) and (ii) a unaudited pro forma consolidated balance sheet and
related unaudited pro forma consolidated statement of income or operations of the Target as of, and for the twelve-month period
ending on, the last day of the most recently completed four-fiscal quarter period ended at least 46 days (or 110 days, in case such
four-fiscal quarter period is the end of the Target’s fiscal year) prior to the Closing Date, prepared after giving effect to
the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such
period (in the case of such statement of income or operations), which need not be prepared in compliance with Regulation S-X of the
Securities Act of 1933, as amended, or include adjustments for purchase accounting (including adjustments of the type contemplated
by Financial Accounting Standards Board Accounting Standards Codification 805, (formerly SFAS 141R)) (it being understood that any
purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations determined by the
Borrower). The Administrative Agent hereby acknowledges receipt of the financial statements referred to (i) in clause (i)(x) above
in respect of the fiscal years ended July 29, 2014, June 28, 2015 and July 3, 2016, (ii) in clause (i)(y) above in respect of the
fiscal quarters ended October 2, 2016, January 1, 2017 and April 2, 2017 and (iii) in clause (ii) above in respect of the pro forma
financial statements.
(d) Closing
Certificates; Certified Charters; Good Standing Certificates. The Administrative Agent (or its counsel) shall have received (i)
a certificate of each Loan Party, dated the Closing Date and executed by a secretary, assistant secretary or other senior officer
(as the case may be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or
written consents of its shareholders, board of directors, board of managers, members or other governing body authorizing the
execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, the borrowings
and issuance of Promissory Notes (if any) hereunder, and that such resolutions or written consents have not been modified, rescinded
or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the officers, managers,
directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which it is a party on the Closing
Date and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or
organization (or memorandum of association or other equivalent thereof) of such Loan Party certified by the relevant authority of
the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or operating, management, partnership
or similar agreement and (y) that such documents or agreements have not been amended (except as otherwise attached to such
certificate and certified therein as being the only amendments thereto as of such date) and (ii) a good standing (or equivalent)
certificate (if applicable) as of a recent date for such Loan Party from the relevant authority of its jurisdiction of
organization.
(e) Representations
and Warranties. (i) The Specified Acquisition Agreement Representations shall be true and correct in all material respects as of
the Closing Date solely to the extent required by the terms of the definition thereof and (ii) the Specified Representations shall
be true and correct in all material respects on and as of the Closing Date; provided that (A) in the case of any Specified
Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all
material respects as of the respective date or for the respective period, as the case may be and (B) if any Specified Representation
is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or
qualification, the definition thereof shall be the definition of “Closing Date Material Adverse Effect” for
purposes of the making or deemed making of such Specified Representation on, or as of, the Closing Date (or any date prior
thereto).
(f) Fees.
Prior to or substantially concurrently with the funding of the Initial Term Loans hereunder, the Administrative Agent shall have received
(i) all fees required to be paid by the Borrower on the Closing Date pursuant to the Fee Letter and (ii) all expenses required to be
paid by the Borrower for which invoices have been presented at least three Business Days prior to the Closing Date (including the reasonable
fees and expenses of legal counsel for the Administrative Agent that are payable under the Commitment Letter entered into between the
Arrangers and the Borrower with respect to the Credit Facilities), in each case on or before the Closing Date, which amounts may be offset
against the proceeds of the Loans or may be paid from the proceeds of the Initial Loans.
(g) [Reserved.]
(h) Refinancing.
Prior to or substantially concurrently with the initial funding of the Loans hereunder, including by use of proceeds thereof, the principal,
accrued and unpaid interest, fees, premium, if any, and other amounts (other than (x) obligations not then due and payable or that by
their terms survive the termination of the Existing Credit Facilities and (y) the Existing Letters of Credit, all of which, on the Closing
Date will be deemed to be Letters of Credit issued hereunder) under the First Lien Credit Agreement dated as of September 19, 2016 and
the Second Lien Credit Agreement dated as of September 19, 2016 (in each case, as amended, supplemented or otherwise modified from time
to time prior to the date hereof, the “Existing Credit Facilities”), will be repaid in full and all commitments to
extend credit under the Existing Credit Facilities will be terminated and any security interests and guarantees in connection therewith
shall be terminated and/or released (the “Refinancing”).
(i) Equity
Contribution. Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Equity Contribution shall
have been made substantially in the manner and at least in the amount set forth in the definition of Equity Contribution contained herein
(to the extent not otherwise applied to the Transactions).
(j) Solvency.
The Administrative Agent shall have received a certificate dated as of the Closing Date in substantially the form of Exhibit M
from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Target certifying as to the matters
set forth therein (or, at the option of Holdings, a third party opinion as to the solvency of the Target and its subsidiaries on a consolidated
basis in form and substance reasonably satisfactory to the Lead Arrangers issued by a nationally recognized firm reasonably acceptable
to the Lead Arrangers).
(k) Perfection
Certificate. Subject to the last paragraph of this Section 4.01, the Administrative Agent shall have received a completed
Perfection Certificate dated the Closing Date and signed by a Responsible Officer of each Loan Party, together with all attachments contemplated
thereby.
(l) Pledged
Stock; Stock Powers; Pledged Notes. Subject to the last paragraph of this Section 4.01, the Administrative Agent (or its bailee)
shall have received (i) the certificates representing the Capital Stock required to be pledged pursuant to the Security Agreement, together
with an undated stock or similar power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof
and (ii) each Material Debt Instrument (if any) required to be pledged pursuant to the Security Agreement endorsed (without recourse)
in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(m) Filings
Registrations and Recordings. Subject to the last paragraph of this Section 4.01, each document (including any UCC
financing statement) required by any Collateral Document or under law to be filed, registered or recorded in order to create
in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be
delivered pursuant to such Collateral Document, shall be in proper form for filing, registration or recordation.
(n) Transactions.
Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Acquisition shall be consummated in all material
respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, consents or
waivers thereto, other than those modifications, amendments, consents or waivers by Merger Sub 1 or its Affiliates that are materially
adverse to the interests of the Lenders in their capacities as such, unless consented to in writing by the Arrangers (such consent not
to be unreasonably withheld, delayed or conditioned); it being understood and agreed that (a) any changes to, or waivers, consents or
approvals by Merger Sub 1 or its Affiliates in respect of, the definition of Closing Date Material Adverse Effect shall be deemed materially
adverse, (b) any reduction in the purchase price of less than 10% or in accordance with the Acquisition Agreement (including pursuant
to any working capital or purchase price adjustment provision set forth in the Acquisition Agreement) shall be deemed not to be materially
adverse, (c) any other reduction in the purchase price shall be deemed not to be materially adverse so long as such decrease is allocated
first to reduce the Equity Contribution to the Minimum Equity Percentage, with any excess then allocated to reduce the Equity Contribution,
the principal amount of the Term Loans and the second lien term loans under the Second Lien Facility on a pro rata, dollar-for-dollar
basis and (d) any increase in the purchase price shall be deemed not to be materially adverse so long as such increase is funded by an
increase in the Equity Contribution or amounts available to be drawn under the Revolving Facility on the Closing Date or such increase
is pursuant to any working capital or purchase price (or similar) adjustment provision set forth in the Acquisition Agreement.
(o) Closing
Date Material Adverse Effect. Since June 6, 2017, there shall have not been an event, change, effect or circumstance that, individually
or in the aggregate has had, or that would reasonably be expected to result in, a Closing Date Material Adverse Effect.
(p) USA
PATRIOT Act. No later than three Business Days in advance of the Closing Date, the Administrative Agent shall have received all documentation
and other information reasonably requested in writing by the Administrative Agent with respect to any Loan Party at least ten Business
Days in advance of the Closing Date, which documentation or other information is required by U.S. regulatory authorities under applicable
“know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
For
purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding
the Loans hereunder, the Administrative Agent and each Lender that has executed this Agreement (or an Assignment and Assumption on the
Closing Date) shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required
hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may
be.
Notwithstanding
the foregoing, to the extent any Lien search or Collateral (including the creation or perfection of any security interest) is not or
cannot be provided on the Closing Date (other than, (i) a Lien on Collateral of any Loan Party that may be perfected by the filing
of a financing statement under the UCC (without need for any other action) and (ii) a pledge of the Capital Stock of the Borrower,
the Subsidiary Guarantors and each other wholly-owned Material Domestic Restricted Subsidiary to the extent certificated with
respect to which a Lien may be perfected on the Closing Date by the delivery of a stock or equivalent certificate, together with a
related stock or equivalent power executed in blank) after the Borrower’s use of commercially reasonable efforts to do so
without undue burden or expense (and with respect to the delivery of stock or equivalent certificates of relevant subsidiaries of
the Target whose Capital Stock is required to be pledged pursuant to the Security Agreement, only to the extent received
after the Borrower’s use of commercially reasonable efforts to do so), then the provision of any such Lien search and/or the
provision and/or perfection of such Collateral shall not constitute a condition precedent to the availability and initial funding of
the Loans on the Closing Date but may, if required, instead be delivered and/or perfected 90 days after the Closing Date pursuant to
arrangements to be mutually agreed between the Borrower and the Administrative Agent and subject to extensions as are reasonably
agreed by the Administrative Agent.
Section
4.02. Each Credit Extension. After the Closing Date, the obligation of each Revolving Lender to make a Credit Extension (which,
for the avoidance of doubt (including for purposes of the last paragraph of this Section 4.02), shall not include (A) any Incremental
Loans advanced in connection with any acquisition, other Investment or irrevocable repayment or redemption of Indebtedness and/or (B)
any Credit Extension under any Incremental Facility Amendment, Refinancing Amendment and/or Extension Amendment, in each case to the
extent not otherwise required by the lenders in respect of thereof) is subject to the satisfaction of the following conditions:
(a) (i)
In the case of a Borrowing, the Administrative Agent shall have received a Borrowing Request as required by Section 2.03, (ii)
in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a notice
requesting the issuance of such Letter of Credit as required by Section 2.05(b) or (iii) in the case of a Borrowing of Swingline
Loans, the Swingline Lender and the Administrative Agent shall have received a request as required by Section 2.04(a).
(b) The
representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct
in all material respects on and as of the date of any such Credit Extension with the same effect as though such representations and warranties
had been made on and as of the date of such Credit Extension; provided that to the extent that any representation and warranty
specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period.
(c) At
the time of and immediately after giving effect to the applicable Credit Extension, no Event of Default or Default shall have occurred
and be continuing.
Each
Credit Extension after the Closing Date shall be deemed to constitute a representation and warranty by the Borrower on the date thereof
as to the matters specified in paragraphs (b) and (c) of this Section.
ARTICLE
5 AFFIRMATIVE COVENANTS
From
the Closing Date until the date that all the Revolving Credit Commitments and all other Commitments have expired or terminated and the
principal of and interest on each Loan and all fees, expenses and other Obligations payable under any Loan Document (other than contingent
indemnification obligations for which no claim or demand has been made) have been paid in full in Cash and all Letters of Credit have
expired or have been terminated (or have been (x) collateralized or back-stopped by a letter of credit or otherwise in a manner reasonably
satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing Banks or (y) deemed reissued under another agreement
in a manner reasonably satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing Banks) and all LC Disbursements
have been reimbursed (such date, the “Termination Date”), Holdings (solely with respect to Sections 5.02 and
5.03) and the Borrower hereby covenant and agree with the Lenders that:
Section
5.01. Financial Statements and Other Reports. The Borrower will deliver to the Administrative Agent for delivery by the
Administrative Agent to each Lender:
(a) Quarterly
Financial Statements. As soon as available, and in any event within 45 days (or 90 days in the case of the first Fiscal Quarter ending
after the Closing Date and 75 days in the case of the second and third Fiscal Quarters ending after the Closing Date) after the end of
each of the first three Fiscal Quarters of each Fiscal Year, commencing with the Fiscal Quarter ending on or about September 30, 2017,
(i) the unaudited consolidated balance sheet of Holdings as at the end of such Fiscal Quarter and the related unaudited consolidated
statements of income and cash flows of Holdings for such Fiscal Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter and setting forth, in reasonable detail, in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year, all in reasonable detail, together with a Responsible Officer Certification (which
may be included in the applicable Compliance Certificate) with respect thereto and (ii) a Narrative Report; provided that such
financial statements shall only be required to reflect Holdings’ good faith estimate of any purchase accounting adjustments relating
to (A) the Acquisition for any Fiscal Quarter prior to on or about June 30, 2018 and (B) any acquisition consummated after the Closing
Date until the Fiscal Quarter ending on or about June 30 of the Fiscal Year following the Fiscal Year in which the relevant acquisition
was consummated;
(b) Annual
Financial Statements. As soon as available, and in any event within 120 days (or, in the case of the Fiscal Year ending on or about
June 30, 2017, 150 days) after the end of each Fiscal Year ending after the Closing Date, (i) the consolidated balance sheet of Holdings
as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows of Holdings
for such Fiscal Year and, commencing after the completion of the second full Fiscal Year ended after the Closing Date, setting forth,
in reasonable detail, in comparative form the corresponding figures for the previous Fiscal Year and (ii) with respect to such consolidated
financial statements, (A) a report thereon of an independent certified public accountant of recognized national standing or another accounting
firm reasonably acceptable to the Administrative Agent (which report shall be unqualified as to “going concern” and scope
of audit (except for any such qualification pertaining to, or disclosure of an exception or qualification resulting from, the maturity
(or impending maturity) of any Credit Facility, any Second Lien Facility or any other Indebtedness occurring within one year of the date
of delivery of the relevant audit opinion, any breach or anticipated breach of any financial covenant or the activities, operations,
financial results, assets or liabilities of any Unrestricted Subsidiary), and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial position of Holdings as at the dates indicated and its income and
cash flows for the periods indicated in conformity with GAAP and (B) a Narrative Report;
(c) Compliance
Certificate; Unrestricted Subsidiaries. (i) Within 5 Business Days after the delivery of financial statements of Holdings pursuant
to Section 5.01(a) or 5.01(b) with respect to any Fiscal Quarter or Fiscal Year, as applicable, a duly executed and completed
Compliance Certificate and (ii) within 5 Business Days after the delivery of financial statements of Holdings pursuant to Section
5.01(b), (A) a summary (which may be in footnote form) of the pro forma adjustments necessary to eliminate the accounts of Unrestricted
Subsidiaries (if any) from such financial statements and (B) a list identifying each subsidiary of the Borrower as a Restricted Subsidiary
or an Unrestricted Subsidiary as of the date of delivery of such financial statements or confirming that there is no change in such information
since the later of the Closing Date and the most recent prior delivery of such information;
(d) [Reserved];
(e) Notice
of Default or Event of Default. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) any Default or
Event of Default or (ii) the occurrence of any event or change that has caused or evidences or would reasonably be expected
to cause or evidence, either in any case or in the aggregate, a Material Adverse Effect, a reasonably detailed notice specifying the
nature and period of existence of such condition, event or change and what action the Borrower has taken, is taking and proposes to
take with respect thereto;
(f) Notice
of Litigation. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) the institution of any Adverse Proceeding
not previously disclosed in writing by the Borrower to the Administrative Agent or (ii) any material development in any Adverse Proceeding
that, in the case of either clauses (i) or (ii), would reasonably be expected to have a Material Adverse Effect, written notice thereof
by the Borrower together with such other non-privileged information as may be reasonably available to the Loan Parties to enable the
Lenders to evaluate such matters;
(g) ERISA.
Promptly upon any Responsible Officer of the Borrower becoming aware of the occurrence of any ERISA Event that would reasonably be expected
to have a Material Adverse Effect, a written notice specifying the nature thereof;
(h) Financial
Plan. Prior to a Qualifying IPO, together with the delivery of financial statements of the Borrower pursuant to Section 5.01(b)
with respect to any Fiscal Year, commencing with the Fiscal Year ending on or about June 30, 2018, an operating budget for the next
Fiscal Year in a form as customarily prepared by management of the Borrower for its internal use or such other form as the Borrower and
Administrative Agent may reasonably agree;
(i) Information
Regarding Collateral. Promptly (and, in any event, within 45 days of the relevant change or such later date as the Administrative
Agent may agree) written notice of any change (i) in any Loan Party’s legal name, (ii) in any Loan Party’s type of organization,
(iii) in any Loan Party’s jurisdiction of organization or (iv) in any Loan Party’s organizational identification number,
in each case to the extent such information is necessary to enable the Administrative Agent to perfect or maintain the perfection and
priority of its security interest in the Collateral of the relevant Loan Party, together with certified copies of the applicable Organizational
Documents reflecting the relevant change;
(j) Certain
Reports. Promptly upon their becoming publicly available and without duplication of any obligations with respect to any such information
that is otherwise required to be delivered under the provisions of any Loan Document, copies of (i) following a Qualifying IPO, all financial
statements, material reports, material notices and proxy statements sent or made available generally by Holdings to its security holders
acting in such capacity and (ii) all material regular and periodic reports and all material registration statements (other than on Form
S-8 or a similar form) and prospectuses, if any, filed by the Borrower or any of its Restricted Subsidiaries with any securities exchange
or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (other
than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered),
exhibits to any registration statement and, if applicable, any registration statement on Form S-8 or a similar form); provided that no
such delivery shall be required hereunder with respect to any of the foregoing to the extent that such are publicly available via EDGAR;
and
(k) Other
Information. Such other certificates, reports and information (financial or otherwise) as the Administrative Agent may
reasonably request from time to time regarding the financial condition or business of the Borrower and its Restricted Subsidiaries;
provided, however, that none of Holdings, the Borrower or any Restricted Subsidiary shall be required to disclose or provide any
information (i) that constitutes non-financial trade secrets or non-financial proprietary information of Holdings, the Borrower or
any of its subsidiaries or any of their respective customers and/or suppliers, (ii) in respect of which disclosure to the
Administrative Agent or any Lender (or any of their respective representatives) is prohibited by any applicable Requirement
of Law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of
which Holdings, the Borrower or any Restricted Subsidiary owes confidentiality obligations to any third party (provided such
confidentiality obligations were not entered into solely in contemplation of the requirements of this Section 5.01(k)); provided,
further, that in the event the Borrower does not provide any certificate, report or information requested pursuant to this clause
(k) in reliance on the preceding proviso, the Borrower shall provide notice to the Administrative Agent that such certificate,
report or information is being withheld and the Borrower shall use commercially reasonable efforts to describe, to the extent both
feasible and permitted under applicable Requirements of Law or confidentiality obligations, or without waiving such privilege, as
applicable, the applicable certificate, report or information.
Documents
required to be delivered pursuant to this Section 5.01 may be delivered electronically and, if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower (or a representative thereof) (x) posts such documents or (y) provides a link
thereto at the website address listed on Schedule 9.01 (as updated from time to time); provided that, other than with respect
to items required to be delivered pursuant to Section 5.01(j) above, the Borrower shall promptly notify (which notice may be by
facsimile or electronic mail) the Administrative Agent of the posting of any such documents on such website and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such documents; (ii) on which such documents are delivered by the
Borrower to the Administrative Agent for posting on behalf of the Borrower on IntraLinks, SyndTrak or another relevant website, if any,
to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); (iii) on which such documents are faxed to the Administrative Agent (or electronically mailed to an address provided
by the Administrative Agent); or (iv) in respect of the items required to be delivered pursuant to Section 5.01(j) above in respect
of information filed by Holdings, the Borrower or any of its Restricted Subsidiaries with any securities exchange or with the SEC or
any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (other than Form 10-Q
Reports and Form 10-K Reports), on which such items have been made available on the SEC website or the website of the relevant analogous
governmental or private regulatory authority or securities exchange.
Notwithstanding
the foregoing, the obligations in paragraphs (a), (b) and (h) of this Section 5.01 may be satisfied with
respect to any financial statements of Holdings by furnishing (A) the applicable financial statements of the Borrower (or any Parent
Company) or (B) the Borrower’s (or any Parent Company’s), as applicable, Form 10-K or 10-Q, as applicable, filed with
the SEC or any securities exchange, in each case, within the time periods specified in such paragraphs; provided that, with
respect to each of clauses (A) and (B), (i) to the extent such financial statements relate to any Parent Company, such
financial statements shall be accompanied by consolidating information (which consolidating information need not be audited) that
summarizes in reasonable detail the differences between the information relating to such Parent Company, on the one hand, and the
information relating to the Borrower or Holdings on a standalone basis, on the other hand, which consolidating information shall be
certified by a Responsible Officer of Holdings as having been fairly presented in all material respects and (ii) to the extent
such statements are in lieu of statements required to be provided under Section 5.01(b), such statements shall be accompanied
by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting
firm reasonably acceptable to the Administrative Agent, which report and opinion shall satisfy the applicable requirements set forth
in Section 5.01(b) as if the references to “Holdings” or “the Borrower” (as applicable) therein were
references to such Parent Company.
No
financial statement required to be delivered pursuant to Section 5.01(a) or (b) shall be required to include acquisition
accounting adjustments relating to the Transactions or any Permitted Acquisition or other Investment to the extent it is not practicable
to include any such adjustments in such financial statement.
Section
5.02. Existence. Except as otherwise permitted under Section 6.07 or as a result of the consummation of a Permitted Reorganization
or the consummation of a Holdings Reorganization Transaction, Holdings and the Borrower will, and the Borrower will cause each of its
Restricted Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights, franchises, licenses
and permits material to its business except, other than with respect to the preservation of the existence of the Borrower, to the extent
that the failure to do so would not reasonably be expected to result in a Material Adverse Effect; provided that neither Holdings
nor the Borrower nor any of the Borrower’s Restricted Subsidiaries shall be required to preserve any such existence (other than
with respect to the preservation of existence of the Borrower, except as otherwise permitted under Section 6.07 or as a result
of the consummation of a Permitted Reorganization), right, franchise, license or permit if a Responsible Officer of such Person or such
Person’s board of directors (or similar governing body) determines that the preservation thereof is no longer desirable in the
conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to
the Lenders.
Section
5.03. Payment of Taxes. Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to,
pay all Taxes imposed upon it or any of its properties or assets or in respect of any of its income or businesses or franchises
before any penalty or fine accrues thereon; provided that no such Tax need be paid if (a) it is being contested in good faith
by appropriate proceedings promptly instituted and diligently conducted, so long as (i) adequate reserves or other appropriate
provisions, as are required in conformity with GAAP, have been made therefor and (ii) in the case of a Tax which has or may become a
Lien against a material portion of the Collateral, such contest proceedings conclusively operate to stay the sale of such portion of
the Collateral to satisfy such Tax or (b) failure to pay or discharge the same would not reasonably be expected to
result in a Material Adverse Effect.
Section
5.04. Maintenance of Properties. The Borrower will, and will cause each of its Restricted Subsidiaries to, maintain or cause to
be maintained in good repair, working order and condition, ordinary wear and tear and casualty and condemnation excepted, all material
tangible property reasonably necessary to the normal conduct of business of the Borrower and its Restricted Subsidiaries and from time
to time will make or cause to be made all needed and appropriate repairs, renewals and replacements thereof except as expressly permitted
by this Agreement or where the failure to maintain such tangible properties or make such repairs, renewals or replacements would not
reasonably be expected to have a Material Adverse Effect.
Section
5.05. Insurance. Except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, the
Borrower will maintain or cause to be maintained, in each case, as determined by the Borrower in good faith, with financially sound
and reputable insurers, such insurance coverage with respect to liabilities, losses or damage in respect of the assets, properties
and businesses of the Borrower and its Restricted Subsidiaries as may customarily be carried or maintained under similar
circumstances by Persons of established reputation engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for
such Persons, including, but only if required by applicable law or regulation, flood insurance with respect to each Flood Hazard
Property, in each case in compliance with applicable Flood Insurance Laws, in each case, together with all statutory and regulatory
provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing, as amended or
modified from time to time. Each such policy of insurance shall (i) name the Administrative Agent on behalf of the Secured Parties
as a loss payee and mortgagee or an additional insured, as applicable, thereunder as its interests may appear and (ii) to the extent
available from the relevant insurance carrier, in the case of each casualty insurance policy (excluding any business
interruption insurance policy), contain a loss payable clause or endorsement that names the Administrative Agent, on behalf of the
Secured Parties, as the loss payee thereunder and, to the extent available, provide for at least 30 days’ prior written notice
to the Administrative Agent of any modification or cancellation of such policy (or 10 days’ prior written notice in the case
of the failure to pay any premiums thereunder); provided that the Borrower shall have 45 days after the Closing Date (or such
later date as agreed by the Administrative Agent) to comply with the requirements of the foregoing clauses (i) and (ii) with respect
to policies in effect on the Closing Date.
Section
5.06. Inspections. The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any authorized representative
designated by the Administrative Agent to visit and inspect any of the properties of the Borrower and any of its Restricted Subsidiaries
at which the principal financial records and executive officers of the applicable Person are located, to inspect, copy and take extracts
from its and their respective financial and accounting records, and to discuss its and their respective affairs, finances and accounts
with its and their Responsible Officers and independent public accountants (subject to such accountants’ customary policies and
procedures) (provided that the Borrower (or any of its subsidiaries) may, if it so chooses, be present at or participate in any
such discussion), all upon reasonable notice and at reasonable times during normal business hours; provided that (x) only the
Administrative Agent on behalf of the Lenders may exercise the rights of the Administrative Agent and the Lenders under this Section
5.06, (y) the Administrative Agent shall not exercise such rights more often than one time during any calendar year and (z) only
one such time per calendar year shall be at the expense of the Borrower; provided, further, that when an Event of Default
exists, the Administrative Agent (or any of its representatives or independent contractors) may do any of the foregoing at the expense
of the Borrower at any time during normal business hours and upon reasonable advance notice; provided, further that notwithstanding
anything to the contrary herein, neither the Borrower nor any Restricted Subsidiary shall be required to disclose, permit the inspection,
examination or making of copies of or taking abstracts from, or discuss any document, information or other matter (i) that constitutes
non-financial trade secrets or non-financial proprietary information of the Borrower and its subsidiaries and/or any of its customers
and/or suppliers, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives
or contractors) is prohibited by applicable law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney
work product or (iv) in respect of which Holdings, the Borrower or any Restricted Subsidiary owes confidentiality obligations to any
third party (provided such confidentiality obligations were not entered into solely in contemplation of the requirements of this Section
5.06); provided, further, that in the event any of the circumstances described in the preceding proviso exist, the Borrower
shall provide notice to the Administrative Agent thereof and shall use commercially reasonable efforts to describe, to the extent both
feasible and permitted under applicable Requirements of Law or confidentiality obligations, or without waiving such privilege, as applicable,
the applicable document, information or other matter.
Section
5.07. Maintenance of Book and Records. The Borrower will, and will cause its Restricted Subsidiaries to, maintain proper books
of record and account containing entries of all material financial transactions and matters involving the assets and business of the
Borrower and its Restricted Subsidiaries that are full, true and correct in all material respects and permit the preparation of consolidated
financial statements in accordance with GAAP.
Section
5.08. Compliance with Laws. The Borrower will comply, and will cause each of its Restricted Subsidiaries to comply, with the
requirements of all applicable laws, rules, regulations and orders of any Governmental Authority (including ERISA and all
Environmental Laws, Sanctions and the U.S. Foreign Corrupt Practices Act of 1977), except to the extent the failure of the Borrower
or the relevant Restricted Subsidiary to comply would not reasonably be expected to have a Material Adverse Effect.
Section
5.09. Hazardous Materials Activity.
(a) The Borrower will deliver to the Administrative Agent:
(i) reasonably
promptly following receipt by Borrower thereof, copies of all written environmental audits, investigations, analyses and reports of any
kind or character, whether prepared by personnel of the Borrower or any of its Restricted Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to any Environmental Liabilities or Hazardous Materials Activity that, in
each case could reasonably be expected to have a Material Adverse Effect;
(ii) reasonably
promptly following Borrower becoming aware of the occurrence thereof, written notice describing in reasonable detail (A) any Release
required to be reported by the Borrower or any of its Restricted Subsidiaries to any federal, state or local governmental or regulatory
agency under any applicable Environmental Law, (B) any remedial action taken by or on behalf of the Borrower or any of its Restricted
Subsidiaries in response to any Hazardous Materials Activity or Environmental Claim, or (C) any pending or threatened Environmental Claim,
that in the case of each of (A), (B) and (C) above, would reasonably be expected to have a Material Adverse Effect; and
(iii) reasonably
promptly following the sending or receipt thereof by the Borrower or any of its Restricted Subsidiaries, a copy of any and all written
communications with respect to any Release required to be reported by the Borrower or any of its Restricted Subsidiaries to any federal,
state or local governmental or regulatory agency or any Release required to be remediated pursuant to any Environmental Law, that in
each case would reasonably be expected to have a Material Adverse Effect.
(b) The
Borrower shall reasonably promptly take, and shall cause each of its Restricted Subsidiaries reasonably promptly to take, any and all
actions reasonably necessary to (i) cure any violation of Environmental Law by the Borrower or any of its Restricted Subsidiaries, and,
to the extent required by Environmental Law, address with appropriate corrective or remedial action any Release or threatened Release
of any Hazardous Material at or from any Facility, that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect and (ii) make an appropriate response to any Environmental Claim against the Borrower or any of its Restricted Subsidiaries
and discharge any obligations it may have to any Person thereunder, where failure to do so could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect; provided that it shall not be deemed to be a violation of this Section 5.09
if the Borrower or its Restricted Subsidiaries are in good faith contesting such violation or Environmental Claim in accordance with
applicable Environmental Law.
Section
5.10. Designation of Subsidiaries. The Borrower may at any time after the Closing Date designate (or re-designate) any
subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) no
subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of the Second
Lien Credit Agreement and (ii) as of the date of the designation thereof, no Unrestricted Subsidiary shall own any Capital Stock in
any Restricted Subsidiary of the Borrower (unless such Restricted Subsidiary is also designated as an Unrestricted Subsidiary
simultaneously with the aforementioned designation in accordance with the terms of this Section 5.10) or hold any
Indebtedness of or any Lien on any property of the Borrower or its Restricted Subsidiaries (unless the Borrower or such
Restricted Subsidiary is permitted hereunder to incur such Indebtedness or grant such Lien in favor of such Unrestricted Subsidiary). The designation of any subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower therein at the date
of designation in an amount equal to the portion of the fair market value of the net assets of such Restricted Subsidiary
attributable to the Borrower’s equity interest therein as estimated by the Borrower in good faith (and such designation shall
only be permitted to the extent such Investment is permitted under Section 6.06). The designation of any Unrestricted
Subsidiary as a Restricted Subsidiary shall constitute the incurrence or making, as applicable, at the time of designation of any
then-existing Investment, Indebtedness or Lien of such Restricted Subsidiary, as applicable; provided that upon a
re-designation of any Unrestricted Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have an
Investment in the resulting Restricted Subsidiary in an amount (if positive) equal to (a) the Borrower’s
“Investment” in such Restricted Subsidiary at the time of such re-designation less (b) the portion of the fair market
value of the net assets of such Restricted Subsidiary attributable to the Borrower’s equity therein at the time of such
re-designation. As of the Closing Date, the subsidiaries listed on Schedule 5.10 hereto have been designated as Unrestricted
Subsidiaries.
Section
5.11. Use of Proceeds. The Borrower shall use the proceeds of the Revolving Loans (a) on the Closing Date, (i) to
replace, backstop or cash collateralize Existing Letters of Credit, guarantees or performance or similar bonds or to issue Letters
of Credit and (ii) in an aggregate principal amount of up to $15,000,000 to pay Transaction Costs and expenses and for purchase
price and working capital adjustments, if any, under the Acquisition Agreement and to provide for ordinary course working capital
needs and general corporate purposes and (b) after the Closing Date, to finance the working capital needs and other general
corporate purposes of the Borrower and its subsidiaries (including for capital expenditures, acquisitions, working capital and/or
purchase price adjustments, the payment of transaction fees and expenses (in each case, including in connection with the
Acquisition), other Investments, Restricted Payments, Restricted Debt Payments and any other purpose not prohibited by the terms of
the Loan Documents). The Borrower shall use the proceeds of the Swingline Loans made after the Closing Date to finance the working
capital needs and other general corporate purposes of the Borrower and its subsidiaries and any other purpose not prohibited by the
terms of the Loan Documents. The Borrower shall use the proceeds of the Initial Term Loans (i) to effect all or a portion of the
Refinancing, (ii) to finance all or a portion of the Transactions (including working capital and/or purchase price adjustments and
the payment of Transaction Costs) and (iii) for general corporate purposes. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that would entail a violation of Regulation U. The Borrower shall use the proceeds
of the Incremental Term Loans for working capital, capital expenditures and other general corporate purposes of the Borrower and its
subsidiaries (including for Restricted Payments, Investments, Permitted Acquisitions and any other purpose not prohibited by the
terms of the Loan Documents).
Section
5.12. Covenant to Guarantee Obligations and Give Security.
(a) Upon
(i) the formation or acquisition after the Closing Date of any Restricted Subsidiary that is a Domestic Subsidiary (subject to
Section 6.06(hh)), (ii) the designation of any Unrestricted Subsidiary that is a Domestic Subsidiary as a Restricted Subsidiary,
(iii) any Restricted Subsidiary that is a Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted
Subsidiary ceasing to be an Excluded Subsidiary (including by election of the Borrower as set forth herein), (x) if the event giving
rise to the obligation under this Section 5.12(a) occurs during the first three Fiscal Quarters of any Fiscal Year, on or
before the date on which financial statements are required to be delivered pursuant to Section 5.01(a) for the Fiscal Quarter
in which the relevant formation, acquisition, designation or cessation occurred or (y) if the event giving rise to the obligation
under this Section 5.12(a) occurs during the fourth Fiscal Quarter of any Fiscal Year, on or before the date that is 60 days
after the end of such Fiscal Quarter (or, in the cases of clauses (x) and (y), such longer period as the
Administrative Agent may reasonably agree), the Borrower shall (A) cause such Restricted Subsidiary (other than any Excluded
Subsidiary) to comply with the requirements set forth in clause (a) of the definition of “Collateral and Guarantee
Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary (other
than any Excluded Subsidiary) to deliver to the Administrative Agent a signed copy of a customary opinion of counsel for such
Restricted Subsidiary, addressed to the Administrative Agent and the other relevant Secured Parties.
(b) Within
120 days (or such longer period as the Administrative Agent may reasonably agree) after the acquisition by any Loan Party of any Material
Real Estate Asset, other than any Excluded Asset, the Borrower shall cause such Loan Party to comply with the requirements set forth
in clause (b) of the definition of “Collateral and Guarantee Requirement”; it being understood and agreed that, with
respect to any Material Real Estate Asset (other than any Excluded Asset) owned by any Restricted Subsidiary at the time such Restricted
Subsidiary is required to become a Loan Party under Section 5.12(a) above, such Material Real Estate Asset shall be deemed to
have been acquired by such Restricted Subsidiary on the first day of the time period within which such Restricted Subsidiary is required
to become a Loan Party under Section 5.12(a).
Notwithstanding
anything to the contrary herein or in any other Loan Document, (i) the Administrative Agent may grant extensions of time (including
after the expiration of any relevant period, which apply retroactively) for the creation and perfection of security interests in, or
obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of
any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired,
after the Closing Date), and each Lender hereby consents to any such extension of time, (ii) any Lien required to be granted from
time to time pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and
limitations set forth in the Collateral Documents, (iii) perfection by control shall not be required with respect to assets
requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and
commodities accounts (other than control of pledged Capital Stock and/or Material Debt Instruments, in each case, that constitute
Collateral) and no blocked account agreement, account control agreement or similar agreement shall be required, (iv) no Loan Party
shall be required to seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar
letter or agreement, (v) no Loan Party will be required to (1) take any action outside of the United States or grant or perfect any
security interest in any asset located outside of the U.S. or conduct any foreign lien search, (2) execute any foreign law
guarantee, security agreement, pledge agreement, mortgage, deed or charge or (3) make any foreign intellectual property filing,
conduct any foreign intellectual property search or prepare any foreign intellectual property schedule with respect to any assets of
any Loan Party or enter into any source code escrow arrangement or register any intellectual property, (vi) in no event will the
Collateral include any Excluded Assets, (vii) no action shall be required to perfect any Lien with respect to (x) any vehicle or
other asset subject to a certificate of title, or any retention of title, extended retention of title rights, or similar rights
and/or (y) Letter-of-Credit Rights, in each case to the extent that a security interest therein cannot be perfected by filing a Form
UCC-1 (or similar) “all assets” financing statement without the requirement to list any VIN, serial or other number and
(viii) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those
assets as to which the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party to
conduct its operations and business in the ordinary course of business) of obtaining or perfecting such Lien (including any
mortgage, stamp, intangibles or other tax or expenses relating to such Lien) outweighs the benefit to the Lenders of the security
afforded thereby as reasonably determined by the Borrower and the Administrative Agent; provided that the foregoing shall not apply
and shall not operate to limit the obligation of the Loan Parties to provide security in foreign jurisdictions (subject to
“agreed security principles” to be negotiated in good faith between the Borrower and the Administrative Agent) if a
Foreign Subsidiary becomes a Guarantor.
Additionally,
(i) no action shall be required to create or perfect a Lien in any asset in respect of which the creation or perfection of a security
interest therein would (1) be prohibited by enforceable anti-assignment provisions set forth in any contract that is permitted or otherwise
not prohibited by the terms of this Agreement, (2) violate the terms of any contract relating to such asset that is permitted or otherwise
not prohibited by the terms of this Agreement, in each case, after giving effect to the applicable anti- assignment provisions of the
UCC or other applicable law or (3) trigger termination of any contract relating to such asset that is permitted or otherwise not prohibited
by the terms of this Agreement pursuant to any “change of control” or similar provision, it being understood that the Collateral
shall include any proceeds and/or receivables arising out of any contract described in this clause (other than Excluded Assets) to the
extent the assignment of such proceeds or receivables is expressly deemed effective under the UCC or other applicable Requirements of
Law notwithstanding the relevant prohibition, violation or termination right, (ii) no Loan Party shall be required to create or perfect
a security interest in any asset to the extent the creation or perfection of a security interest in such asset would (A) be prohibited
under any applicable Requirement of Law, after giving effect to any applicable anti-assignment provision of the UCC or other applicable
law and other than proceeds thereof (other than Excluded Assets) to the extent that the assignment of such proceeds is effective under
the UCC or other applicable Requirements of Law notwithstanding such Requirement of Law, (B) require any governmental consent, approval,
license or authorization (unless such consent, approval, license or authorization has been obtained), after giving effect to any applicable
anti-assignment provision of the UCC or other applicable law and other than proceeds thereof (other than Excluded Assets) to the extent
that the assignment of such proceeds is effective under the UCC or other applicable Requirements of Law notwithstanding such consent
or restriction and/or (C) result in adverse tax consequences or adverse regulatory consequences to any Loan Party or any of its subsidiaries
or Parent Companies as determined by the Borrower in good faith following consultation with the Administrative Agent, (iii) any joinder
or supplement to any Loan Guaranty, any Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that
is required to become a Loan Party pursuant to Section 5.12(a) above may, with the consent of the Administrative Agent (not to
be unreasonably withheld or delayed), include such schedules (or updates to schedules) as may be necessary to qualify any representation
or warranty set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is true and correct
to the extent required thereby or by the terms of any other Loan Document; and (iv) (A) no Loan Party will be required to take any action
required under the Federal Assignment of Claims Act or any similar law and (B) no Secured Party will be permitted to exercise any right
of setoff in respect of any account maintained solely for the purpose of receiving and holding government receivables.
Section
5.13. Maintenance of Ratings. The Borrower shall use commercially reasonable efforts to maintain public corporate credit facility
and public corporate family ratings in respect of Holdings from each of S&P and Moody’s; provided that in no event shall
the Borrower be required to maintain any specific rating with any such agency.
Section
5.14. Maintenance of Fiscal Year. The Borrower shall maintain its Fiscal Year-end as in effect on the Closing Date; provided that
the Borrower may, upon written notice to the Administrative Agent, change its Fiscal Year-end to another date, in which case the Borrower
and the Administrative Agent will, and are hereby authorized to (without requiring the consent of any other Person, including any Lender),
make any adjustments to this Agreement that are necessary to reflect such change in Fiscal Year.
Section
5.15. Further Assurances. Promptly upon reasonable request of the Administrative Agent and subject to the limitations described
in Section 5.12:
(a) The
Borrower will, and will cause each other Loan Party to, execute any and all further documents, financing statements, agreements, instruments,
certificates, notices and acknowledgments and take all such further actions (including the filing and recordation of financing statements,
fixture filings, Mortgages and/or amendments thereto and other documents), that may be required under any applicable law and which the
Administrative Agent may reasonably request to ensure the perfection and priority of the Liens created or intended to be created under
the Collateral Documents, all at the expense of the relevant Loan Parties. For the avoidance of doubt, in no event shall any (x) Excluded
Property or (y) property subject to a Sale and Lease-Back Transaction permitted hereunder be required to be made subject to the Collateral
Documents.
(b) The
Borrower will, and will cause each other Loan Party to, (i) correct any material defect or error that may be discovered in the execution,
acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral and (ii)
do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts (including
notices to third parties), deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from
time to time in order to ensure the creation and perfection of the Liens created under the Collateral Documents.
Section
5.16. Conduct of Business. The Borrower and its Restricted Subsidiaries shall engage only in those material lines of business
that consist of (a) the businesses engaged in by the Borrower or any Restricted Subsidiary on the Closing Date, reasonably related, similar,
incidental, complementary, ancillary, corollary, synergistic or related businesses or reasonable extensions, development or expansion
(or proposed to be engaged) of such businesses (including entertainment and amusement media and content business in connection therewith)
and (b) such other lines of business to which the Administrative Agent may consent.
Section
5.17. Annual Lender Call. Upon the request of the Administrative Agent following each delivery of financial statements pursuant
to Section 5.01(b) (commencing with respect to the financial statements delivered for the Fiscal Year ending on or about June
30, 2018), the Borrower shall participate in a conference call with Lenders arranged by the Administrative Agent to provide discussion
and analysis with respect to the financial condition and results of operations of the Borrower and its Restricted Subsidiaries at a time
at which the Borrower and the Administrative Agent mutually agree.
Section
5.18. Post-Closing Actions. Take the actions set forth on Schedule 5.18 within the time periods specified thereon (or by
such later time as the Administrative Agent may reasonably agree).
ARTICLE
6 NEGATIVE COVENANTS
From
the Closing Date and until the Termination Date has occurred, Holdings (solely with respect to Section 6.14) and the Borrower
covenant and agree with the Lenders that:
Section
6.01. Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the
Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Indebtedness
of the Borrower or any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary (or issued to any Parent Company
which is substantially contemporaneously transferred to the Borrower or any Restricted Subsidiary); provided that in the case
of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to a Loan Party, the making of the
corresponding loan or advance shall have been permitted as an Investment pursuant to Section 6.06; provided, further,
all such Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the
Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;
(c) Indebtedness
of any Joint Venture or Indebtedness of the Borrower or any Restricted Subsidiary incurred on behalf of any Joint Venture or any Guarantees
by the Borrower or any Restricted Subsidiary of Indebtedness of any Joint Venture in an aggregate outstanding principal amount for all
such Indebtedness not to exceed at any time the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of
the most recently ended Test Period;
(d) Indebtedness
arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out
or similar obligations), or payment obligations in respect of any non-compete, consulting or similar arrangements, in each case incurred
in connection with any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder or consummated prior
to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties, letters of credit, bank
guaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary
pursuant to any such agreement;
(e) Indebtedness
of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations (including health, safety and environmental
obligations), bids, leases, governmental contracts, trade contracts, surety, indemnity, stay, customs, judgment, appeal, performance,
completion and/or return of money bonds or guaranties or other similar obligations incurred in the ordinary course of business and (ii)
in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing
items;
(f) Indebtedness
of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, debit cards, purchasing cards,
treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including
depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services, including
Indebtedness arising from the financing by a bank or other financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business), employee credit card programs, cash pooling services, foreign exchange and currency
management services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management
and Deposit Accounts, including Banking Services Obligations and incentive, supplier finance or similar programs;
(g) (i)
Guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers, franchisees, licensees, sublicensees
and cross-licensees in the ordinary course of business, (ii) Indebtedness (A) incurred in the ordinary course of business in respect
of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of property or services or progress
payments in connection with such property and services or (B) consisting of obligations under deferred purchase price or other similar
arrangements incurred in connection with Permitted Acquisitions or any other Investment expressly permitted hereunder and (iii) Indebtedness
in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse
receipts or similar facilities entered into in the ordinary course of business;
(h) Guarantees
(including any co-issuance) by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower and/or
any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other
obligations not prohibited by this Agreement; provided that in the case of any such Guarantee by any Loan Party of the obligations
of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness
of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing (or anticipated), on the Closing Date
and, with respect to any such item of Indebtedness in an aggregate committed or principal amount in excess of $250,000, described on
Schedule 6.01;
(j) Indebtedness
of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness
shall not exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period;
(k) Indebtedness
of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements
entered into in the ordinary course of business;
(l)
Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay
obligations contained in supply arrangements in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory
in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness
of the Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness (including mortgage financing,
industrial revenue bond, industrial development bond or similar financings) or to finance the construction, purchase, repair, replacement
or improvement of any fixed or capital asset, in an aggregate outstanding principal amount not to exceed the greater of $65,000,000 and
49% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (excluding, for the avoidance of doubt,
the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Sale/Leaseback Transaction and iStar Exchanges);
(n) Indebtedness
of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or other Investment permitted
hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted
Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof and (ii)
either (A) the Borrower is in compliance with the applicable ratio set forth in clause (e) of the definition of Incremental Cap based
on whether such Indebtedness is secured by a pari passu lien on the Collateral or a junior Lien on the Collateral or is unsecured
or secured by Liens on assets not constituting Collateral (and for such purpose, such Indebtedness shall be deemed to have been incurred
to finance an acquisition or other Investment permitted hereunder), calculated on a Pro Forma Basis as of the last day of the most recently
ended Test Period or (B) the aggregate outstanding principal amount of such Indebtedness does not exceed the greater of $15,000,000 and
11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o) Indebtedness
consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any Permitted
Payee to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) the
Borrower and its Restricted Subsidiaries may become and remain liable for any Indebtedness extending, refinancing, refunding or replacing
any Indebtedness permitted under clauses (a), (c), (i), (j), (m), (n), (r), (u),
(v), (w), (y), (z), (dd), (gg), (ll) and (mm) of this Section 6.01 (in
any case, including any extending, refinancing, refunding or replacing Indebtedness incurred in respect thereof, “Refinancing
Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that (i) the principal amount
of such Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being extended, refinanced, refunded or replaced,
except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting
discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments)
incurred in connection with the relevant extension, refinancing, refunding or replacement, (B) an amount equal to any existing commitments
unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that
(1) any additional Indebtedness referred to in this clause (C) satisfies the other applicable requirements of this Section 6.01(p)
(with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception
pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Indebtedness
satisfies the applicable requirements of Section 6.02), (ii) in the case of Refinancing Indebtedness with respect to clauses
(a) and (z) (other than (x) customary bridge loans with a maturity date of not longer than one year; provided that
any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to
the requirements of this clause (ii) and (y) Refinancing Indebtedness having an aggregate principal amount outstanding not exceeding
$20,000,000 (as selected by the Borrower)), such Refinancing Indebtedness has (A) a final maturity on or later than (and, in the case
of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Latest Term Loan
Maturity Date at the time of the incurrence of such Refinancing Indebtedness and (y) the final maturity of the Indebtedness being extended,
refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, a Weighted Average Life to Maturity equal
to or greater than (x) the Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, refunded or replaced or
(y) the Weighted Average Life to Maturity of the outstanding Term Loans at the time of the incurrence of such Refinancing Indebtedness,
(iii) with respect to any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount, the terms thereof
(excluding pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and,
with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security) are not,
taken as a whole (as determined by the Borrower in good faith), more favorable to the lenders providing such Indebtedness than those
applicable to the Indebtedness being extended, refinanced, refunded or replaced (other than any covenants or any other terms or provisions
(X) applicable only to periods after the Latest Maturity Date at the time of the incurrence of such Refinancing Indebtedness, (Y) that
are then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of
a commitment with respect thereto)) for the applicable type of Indebtedness or (Z) solely in the case of Refinancing Indebtedness in
respect of Indebtedness incurred in reliance on clauses (a) and/or (z) of this Section 6.01, terms or other provisions
which are conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent, pursuant
to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)), (iv) the incurrence thereof shall be without
duplication of any amounts outstanding in reliance on the relevant clause of this Section 6.01 pursuant to which the Indebtedness
being extended, refinanced, refunded or replaced was incurred (i.e., the incurrence of such Refinancing Indebtedness shall not create
availability under such relevant clause), (v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted
under clause (a) of this Section 6.01, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the
time of such extension, refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured
Indebtedness), (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being extended, refinanced,
refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 (it being understood that Holdings may
not be the primary obligor of the applicable Refinancing Indebtedness if Holdings was not the primary obligor on the relevant refinanced
Indebtedness) and (C) if the Indebtedness being extended, refinanced, refunded or replaced was contractually subordinated to the Obligations
in right of payment (or the Liens securing such Indebtedness were contractually subordinated to such Liens on the Collateral securing
the Secured Obligations), such Indebtedness is contractually subordinated to the Obligations in right of payment (or the Liens securing
such Indebtedness are subordinated to the Liens on the relevant Collateral securing the Secured Obligations) either (x) on terms not
materially less favorable, taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being
extended, refinanced, refunded or replaced, taken as a whole or (y) pursuant to an Acceptable Intercreditor Agreement, (vi) except in
the case of Refinancing Indebtedness with respect to clause (a) of this Section 6.01, as of the date of the incurrence
of such Indebtedness and after giving effect thereto, no payment or bankruptcy (with respect to the Borrower) Event of Default exists
and (vii) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section
6.01, (A) such Refinancing Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari
passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Refinancing
Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Acceptable Intercreditor Agreement,
(B) if such Refinancing Indebtedness is secured, it is not secured by any assets other than the Collateral, (C) if such Refinancing Indebtedness
is Guaranteed, it shall not be Guaranteed by any Person other than a Loan Party and (D) such Refinancing Indebtedness is incurred under
(and pursuant to) documentation other than this Agreement, it being understood and agreed that any such Refinancing Indebtedness may
participate (x) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayment
of Term Loans as set forth in Section 2.11(b)(vi);
(q) endorsement
of instruments or other payment items for collection or deposit in the ordinary course of business;
(r) Indebtedness
in respect of any Additional Letter of Credit Facility in an aggregate principal or face amount at any time outstanding not to exceed
the greater of $40,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(s) Indebtedness
of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t)
[reserved];
(u) Indebtedness
of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the greater of $60,000,000
and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v) Indebtedness
of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 100% of the amount of any
capital contributions or other proceeds received by the Borrower or any Restricted Subsidiary (i) from the issuance or sale of its Qualified
Capital Stock or (ii) in the form of any cash contribution, plus the fair market value, as determined by the Borrower in good
faith, of Cash Equivalents, marketable securities or other property received by the Borrower or any Restricted Subsidiary from the issuance
and sale by it or any Parent Company of its or such Parent Company’s Qualified Capital Stock or a contribution to the Qualified
Capital Stock of any Parent Company, Holdings, the Borrower or any Restricted Subsidiary (including through consolidation, amalgamation
or merger), in each case after the Closing Date, and in each case other than (A) any proceeds received from the sale of Capital Stock
to, or contributions from, the Borrower or any of its Restricted Subsidiaries, (B) to the extent the relevant proceeds have otherwise
been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and (C) Cure Amounts and/or any Available
Excluded Contribution Amount;
(w) Indebtedness
arising under a Qualified Receivables Facility in an aggregate principal amount not to exceed the greater of $20,000,000 and 15% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period;
(x) Indebtedness
of the Borrower and/or any Restricted Subsidiary incurred in respect of (i) any Second Lien Facility and any “Incremental
Loans” and “Incremental Equivalent Debt” (each as defined in the Second Lien Credit Agreement or any equivalent
term under any Second Lien Facility) in an aggregate outstanding principal amount that does not exceed $137,500,000 plus the
aggregate outstanding principal amount of such “Incremental Loans” or “Incremental Equivalent Debt” so long
as the sum of the aggregate outstanding principal amount of any such “Incremental Loans” or “Incremental
Equivalent Debt” does not exceed the “Incremental Cap” (as applicable, and each as defined in the Second Lien
Credit Agreement as in effect on the Closing Date, including after giving effect to Sections 1.04(d) and 1.04(e)
thereof) and (ii) any refinancing, refunding or replacing of any Second Lien Facility or any such “Incremental Loans” or
“Incremental Equivalent Debt” after the Closing Date so long as (A) the aggregate outstanding principal amount of such
Indebtedness does not exceed an amount permitted to be incurred under the preceding clause (i), plus (1) an amount
equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon, (2) the amount of any underwriting
discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield
payments) incurred in connection with the relevant refinancing, (3) an amount equal to any existing commitments unutilized
thereunder and (4) any additional amounts permitted to be incurred pursuant to this Section 6.01 (with additional amounts
incurred in reliance on this clause (4) constituting a utilization of the relevant basket or exception pursuant to which such
additional amount is permitted), (B) such Indebtedness, if secured, is secured only by Liens permitted under Section 6.02(t), (C) except
with respect to revolving Indebtedness, the Weighted Average Life to Maturity of such Indebtedness is equal to or greater than the
remaining Weighted Average Life to Maturity of the Indebtedness being refinanced in reliance on this Section 6.01(x) at the time of
such refinancing (without giving effect to any prepayment thereof), (D) the final maturity date of such Indebtedness is equal to or
later than the final maturity date of the Indebtedness being refinanced in reliance on this Section 6.01(x) and (E) no such
Indebtedness is (1) guaranteed by any Person which is not a Loan Party or (2) secured by any assets other than the
Collateral;
(y) Indebtedness
of the Borrower and/or any Restricted Subsidiary incurred in connection with Sale and Lease-Back Transactions permitted pursuant to Section
6.08;
(z) Incremental
Equivalent Debt; provided that the aggregate principal amount of Incremental Equivalent Debt incurred by Restricted Subsidiaries
that are not Loan Parties shall not exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the
most recently ended Test Period;
(aa) Indebtedness
(including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with
respect to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers’ compensation claims
(or reimbursement type obligations regarding workers’ compensation claims), unemployment insurance (including premiums related
thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits or property,
casualty or liability insurance or self-insurance;
(bb)
Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current and former directors,
officers, employees, members of management, managers and consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary
in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions,
any Permitted Acquisition or any other Investment permitted hereby;
(cc) Indebtedness
of the Borrower and/or any Restricted Subsidiary in respect of any letter of credit or bank guarantee issued in favor of any issuing
bank or swingline lender to support any defaulting lender’s participation in letters of credit issued, or swingline loans made,
hereunder or under any Additional Letter of Credit Facility;
(dd) Indebtedness
of the Borrower or any Restricted Subsidiary supported by any Letter of Credit issued hereunder or under any Additional Letter of Credit
Facility or any other letters of credit or bank guarantees permitted hereunder;
(ee) unfunded
pension fund and other employee benefit plan obligations and liabilities incurred by the Borrower and/or any Restricted Subsidiary in
the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under Section
7.01(i);
(ff) without
duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind interest),
accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Borrower and/or
any Restricted Subsidiary hereunder;
(gg) (i)
to the extent constituting Indebtedness, obligations under the Acquisition Agreement and (ii) any Indebtedness permitted to remain outstanding
after the Closing Date pursuant to the Acquisition Agreement (excluding any Indebtedness required to be refinanced pursuant to the Refinancing);
(hh) customer
deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary
course of business;
(ii)
[reserved];
(jj) (i)
Indebtedness in connection with bankers’ acceptances, discounted bills of exchange or the discounting or factoring of receivables
for credit management purposes, in each case incurred or undertaken in the ordinary course of business on arm’s-length commercial
terms and (ii) the incurrence of Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights or the settlement
of any claims or actions (whether actual, contingent or potential) with respect to the Transactions or any other acquisition (by merger,
consolidation or amalgamation or otherwise) in accordance with the terms hereof;
(kk) obligations
in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any subsidiary of the
Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions
other than within the United States;
(ll) Indebtedness
in an aggregate principal amount outstanding at any time not to exceed the Available RP Capacity Amount;
(mm) Indebtedness
in respect of any Excluded Property Transaction or any transactions under any iStar Sale/Leaseback Documents; and
(nn) Guarantee
obligations incurred in the ordinary course of business under repurchase agreements in connection with the financing of Bowling Equipment
sales.
For
the avoidance of doubt, the accrual of interest, the accretion of accreted value, the accretion or amortization of original issue discount,
the payment of interest in the form of additional Indebtedness and increases in the amount of Indebtedness outstanding solely as a result
of fluctuations in the exchange rate of currencies shall be deemed to be permitted Indebtedness for purposes of this Section.
Section
6.02. Liens. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, create, incur, assume or permit
or suffer to exist any Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any
income or profits therefrom, except:
(a) Liens
created pursuant to the Loan Documents securing the Secured Obligations (including Cash collateralization of Letters of Credit as set
forth in Section 2.05);
(b) Liens
for Taxes or other governmental charges which are not overdue for a period of more than 45 days or, if more than 45 days overdue (i)
are being contested in accordance with Section 5.03 or (ii) with respect to which the failure to make payment would not reasonably
be expected to have a Material Adverse Effect;
(c) statutory
or common law Liens (and rights of set-off) of landlords, sub landlords, construction contractors, banks, carriers, warehousemen, mechanics,
repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements of Law, in each case incurred in the ordinary
course of business (i) for amounts not yet overdue by more than 45 days, (ii) for amounts that are overdue by more than 45 days (A) that
are being contested in good faith by appropriate proceedings, so long as any reserves or other appropriate provisions required by GAAP
have been made for any such contested amounts or (B) with respect to which no filing or other action has been taken to enforce such Lien
or (iii) with respect to which the failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(d) Liens
incurred (i) in the ordinary course of business in connection with workers’ compensation, unemployment insurance, health, disability
or employee benefits and other types of social security laws and regulations, (ii) in the ordinary course of business to secure the performance
of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, indemnitees,
performance, completion and return-of-money bonds and other similar obligations (including those to secure health, safety and environmental
obligations) (in each case, exclusive of obligations for the payment of borrowed money), (iii) pursuant to pledges and deposits of Cash
or Cash Equivalents in the ordinary course of business securing (x) any liability for reimbursement, premium or indemnification obligations
of insurance brokers or carriers providing property, casualty, liability or other insurance to Holdings, the Borrower and its subsidiaries
(including deductibles, self-insurance, co-payment, co-insurance and retentions) or (y) leases or licenses of property otherwise permitted
by this Agreement and (iv) to secure obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or
similar instruments posted with respect to the items described in clauses (i) through (iii) above;
(e) Liens
consisting of easements, covenants, conditions, rights-of-way, restrictions, encroachments, servitudes for railways, sewers, drains,
gas and oil and other pipelines, gas and water mains, electric light and power and telecommunication, telephone or telegraph or cable
television conduits, poles, wires and cables and other similar protrusions or encumbrances and other minor defects or irregularities
in title, in each case (x) which do not, in the aggregate, materially interfere with the ordinary conduct of the business of the Borrower
and/or its Restricted Subsidiaries, taken as a whole, or materially interfere with the use of the affected property for its intended
purpose or (y) where the failure to have such title would not reasonably be expected to have a Material Adverse Effect;
(f) Liens
consisting of any (i) interest or title of a lessor, sub-lessor, licensor or sub- licensor under any lease, license or similar
arrangement of real estate or other property (including intellectual property) permitted hereunder, (ii) landlord lien permitted by
the terms of any lease, sub-lease, license, sub-license or similar arrangement, (iii) restriction or encumbrance to which the
interest or title of such lessor, sub-lessor, licensor or sub-licensor may be subject, (iv) subordination of the interest of the
lessee, sub-lessee, licensee or sub-licensee under such lease, sub-lease, license, sub-license or similar arrangement to any
restriction or encumbrance referred to in the preceding clause (iii) or (v) deposit of cash with the owner or lessor of
premises leased and operated by the Borrower or any Restricted Subsidiary in the ordinary course of business to secure the
performance of obligations under the terms of the lease for such premises;
(g) Liens
(i) solely on any Cash (or Cash Equivalent) earnest money deposits (including as part of any escrow arrangement) made by the
Borrower and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any
Investment permitted hereunder (or to secure letters of credit, bank guarantees or similar instruments posted in respect thereof),
(ii) on advances of Cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted
pursuant to Sections 6.06(b), (e), (f), (p), (q), (r), (u), (x), (y) or (dd)
to be applied against the purchase price for such Investment or (iii) consisting of (A) an agreement to Dispose of any property in a
Disposition permitted under Section 6.07 and/or (B) the pledge of Cash or Cash Equivalents as part of an escrow or similar
arrangement required in any Disposition permitted under Section 6.07;
(h) precautionary
or purported Liens evidenced by the filing of UCC financing statements or similar financing statements under applicable Requirements
of Law relating solely to (i) operating leases or consignment or bailee arrangements entered into in the ordinary course of
business, (ii) the sale of accounts receivable in the ordinary course of business for which a UCC financing statement or
similar financing statement under applicable Requirements of Law is required and/or (iii) the sale of Receivables Facility Assets
and related assets in connection with any Qualified Receivables Facility;
(i) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation
of goods;
(j) Liens
in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority to
control or regulate the use of any dimensions of real property or any structure thereon, including Liens in connection with any condemnation
or eminent domain proceeding or compulsory purchase order;
(k) Liens
securing Indebtedness permitted pursuant to Section 6.01(p) (solely with respect to the permitted extension, refinancing, refunding
or replacement of Indebtedness permitted pursuant to Sections 6.01(a), (c), (i), (j), (m), (n),
(r), (u), (v), (w), (y), (z) and (gg)); provided that (i) no such Lien extends to any
asset not covered by the Lien securing the Indebtedness that is being refinanced other than (A) after-acquired property that is affixed
or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.01 and (B) proceeds
and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood that such extensions,
refinancings, refundings or replacements of individual financings of the type permitted under Section 6.01(m) provided by any
lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) if the Indebtedness
being refinanced was subject to intercreditor arrangements in respect of Liens on Collateral, then any refinancing Indebtedness in respect
thereof secured by Liens on Collateral shall be subject to intercreditor arrangements not materially less favorable to the Secured Parties,
taken as a whole, than the intercreditor arrangements governing the Indebtedness that is refinanced or the intercreditor arrangements
governing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l) Liens
existing on, or contractually committed or contemplated as of, the Closing Date and, with respect to each such Lien securing Indebtedness
in an aggregate committed or principal amount in excess of $250,000, described on Schedule 6.02 and any modification, replacement,
refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired
property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section
6.01 and (B) proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood
that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other
financings of such type provided by such lender or its affiliates) and (ii) any such modification, replacement, refinancing, renewal
or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 6.01;
(m)
Liens arising out of Sale and Lease-Back Transactions permitted under Section 6.08;
(n) Liens
securing Indebtedness permitted pursuant to Section 6.01(m); provided that any such Lien shall encumber only the asset
acquired, constructed, repaired, replaced or improved with the proceeds of such Indebtedness and proceeds and products thereof, replacements,
accessions or additions thereto and improvements thereon and customary security deposits with respect thereto (it being understood that
individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other
financings of such type provided by such lender or its affiliates);
(o) Liens
securing Indebtedness permitted pursuant to Section 6.01(n) on the relevant acquired assets or on the Capital Stock and assets
of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other
than the proceeds or products thereof, replacements, accessions or additions thereto and improvements thereon, it being understood that
individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other
financings of such type provided by such lender or its affiliates) or (y) was created in contemplation of the applicable acquisition
of assets or Capital Stock;
(p) (i)
Liens that are contractual rights of set-off or netting relating to (A) the establishment of depositary relations with banks or other
financial institutions not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of the Borrower
and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business
of the Borrower and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of the Borrower
and/or any Restricted Subsidiary in the ordinary course of business and (D) commodity trading or other brokerage accounts incurred in
the ordinary course of business, (ii) Liens encumbering reasonable customary initial deposits and margin deposits, (iii) bankers Liens
and rights and remedies as to Deposit Accounts or similar accounts, (iv) Liens of a collection bank arising under Section 4-208 or Section
4-210 of the UCC on items in the ordinary course of business, (v) Liens (including rights of set-off) in favor of banking or other financial
institutions arising as a matter of Law or under customary general terms and conditions encumbering deposits or other funds maintained
with a financial institution and that are within the general parameters customary in the banking industry or arising pursuant to such
banking institution’s general terms and conditions and (vi) Liens on the proceeds of any Indebtedness permitted hereunder incurred
in connection with any transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms
to secure such Indebtedness pending the application of such proceeds to finance such transaction or on Cash or Cash Equivalents set aside
at the time of the incurrence of such Indebtedness to the extent such Cash or Cash Equivalents prefund the payment of interest or fees
on such Indebtedness and are held in escrow pending application for such purpose;
(q) Liens
on assets and Capital Stock of Restricted Subsidiaries that are not Loan Parties (including Capital Stock owned by such Persons) securing
Indebtedness or other obligations of Restricted Subsidiaries that are not Loan Parties permitted pursuant to Section 6.01 (or
not prohibited under this Agreement);
(r) Liens
securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar
agreements entered into in the ordinary course of business of the Borrower and/or its Restricted Subsidiaries;
(s) Liens
disclosed in any Mortgage Policy delivered pursuant to Section 5.12 with respect to any Material Real Estate Asset, provided such
Liens do not, in the aggregate, materially interfere with the use of such Material Real Estate Asset, and any replacement, extension
or renewal of any such Lien; provided that no such replacement, extension or renewal Lien shall cover any property other than
the property that was subject to such Lien prior to such replacement, extension or renewal (and additions thereto, improvements thereon
and the proceeds thereof);
(t) Liens
securing Indebtedness incurred pursuant to Sections 6.01(x) and (z); provided that, if any such Lien is on Collateral,
the holders of such Indebtedness (or a representative thereof) shall be party to an Acceptable Intercreditor Agreement;
(u) other
Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed the
greater of $60,000,000 and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v) (i)
Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating
to litigation being contested in good faith not constituting an Event of Default under Section 7.01(h) and (ii) any cash deposits
securing any settlement of litigation;
(w)
(i) leases, licenses, subleases, sublicenses or cross-licenses granted to others, (ii) assignments of IP Rights granted to a customer
of the Borrower or any Restricted Subsidiary in the ordinary course of business which do not secure any Indebtedness or (iii) the rights
reserved or vested in any Person (including any Governmental Authority) by the terms of any lease, license, franchise, grant or permit
held by the Borrower or any of the Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise,
grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(x) Liens
on Securities or other assets that are the subject of repurchase agreements constituting Investments permitted under Section 6.06
arising out of such repurchase transaction;
(y) Liens
securing obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted
under Sections 6.01(d), (e), (g), (aa) and (cc);
(z) Liens
arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any assets or property and
bailee arrangements in the ordinary course of business and permitted by this Agreement or (ii) by operation of law under Article 2 of
the UCC (or any similar Requirement of Law of any jurisdiction);
(aa) Liens
(i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party,
in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 6.01 or
Section 6.09;
(bb) Liens
on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(cc) Liens
on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of
documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or goods;
(dd) Liens
securing (i) obligations under Hedge Agreements in connection with any Derivative Transaction of the type described in Section 6.01(s),
(ii) obligations of the type described in Section 6.01(f) and/or (iii) obligations of the type described in Section 6.01(r), which
Liens (A) in each case under this Section 6.02(dd), may be (but are not required to be) secured by all of the Collateral so long
as the Lien on the Collateral is subject to an Acceptable Intercreditor Agreement and (B) in the case of clause (iii) (to the
extent not secured as provided in clause (A)), may consist of pledges of Cash collateral in an amount not to exceed the greater
of $15,000,000 and 11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(ee) (i)
Liens on Capital Stock of Joint Ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons
and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to
non-Wholly-Owned Subsidiaries;
(ff) Liens
on cash or Cash Equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
(gg) Liens
permitted to remain outstanding following the Closing Date pursuant to the terms of the Acquisition Agreement (including liens on cash
or Cash Equivalents backstopping any letters of credit existing on the Closing Date) and any replacements, refinancings or renewals thereof,
so long as no such replacement, refinancings or renewal thereof increases the amount of such Lien except as otherwise permitted by this
Section 6.02;
(hh) Liens
on assets not constituting Collateral (x) securing obligations in an aggregate outstanding principal amount not to exceed the greater
of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period or (y) so long as the
Obligations in respect of the Credit Facilities are secured on a ratable basis (without regard to the control of remedies) with or prior
to the obligations so secured for so long as such obligations are so secured (which Liens, in the case of this clause (y), shall be subject
to an Acceptable Intercreditor Agreement);
(ii)
Liens on Receivables Facility Assets incurred in connection with a Receivables Facility;
(jj) undetermined
or inchoate Liens, rights of distress and charges incidental to current operations that have not at such time been filed or exercised,
or which relate to obligations not due or payable or if due, the validity of such Liens are being contested in good faith by appropriate
actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with
GAAP;
(kk) with
respect to any Foreign Subsidiary, Liens and privileges arising mandatorily by any Requirement of Law; provided such Liens and privileges
extend only to the assets or Capital Stock of such Foreign Subsidiary;
(ll) ground
leases or subleases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries
are located;
(mm) Liens
that are customary in the business of the Borrower and its Restricted Subsidiaries and that do not secure debt for borrowed money;
(nn) security
given to a public or private utility or any Governmental Authority as required in the ordinary course of business;
(oo) receipt
of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on the related
inventory and proceeds;
(pp) Liens
arising pursuant to Section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act or similar provision of
any applicable law;
(qq) Liens
in the nature of the right of setoff in favor of counterparties to contractual agreements with the Borrower or any Restricted Subsidiary
in the ordinary course of business;
(rr) Liens
granted pursuant to a security agreement between the Borrower or any Restricted Subsidiary and a licensee of IP Rights to secure the
damages, if any, incurred by such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization
or similar proceeding with respect to the Borrower or such Restricted Subsidiary;
(ss) Liens
arising solely in connection with rights of dissenting equity holders pursuant to any Requirement of Law in respect of the Transactions,
any Permitted Acquisition or other similar Investment;
(tt) Liens
arising under the iStar Sale/Leaseback Documents, the iStar Sale/Leaseback 2014 Documents, the iStar Exchange Documents or the Excluded
Property Transaction Documents, including options, whether or not then exercisable, to purchase Bowling Equipment of the Borrower and/or
one or more of its Subsidiaries, and letters of credit to secure the obligations of the Borrower or any applicable Restricted Subsidiary
thereunder;
(uu) Liens
on (x) any Excluded Property or (y) any other real property acquired after the Closing Date and not subject (or required to be subject)
to a Mortgage, provided that the aggregate amount of the obligations secured at any one time by such Liens pursuant to this clause (y)
does not exceed $50,000,000; and
(vv) Liens
deemed to exist in connection with repurchase obligations permitted to be incurred pursuant to Section 6.01(nn).
Section
6.03. No Further Negative Pledges. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries that are Loan
Parties to, enter into any agreement prohibiting in any material respect the creation or assumption of any Lien upon any of its properties
(other than Excluded Assets), whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to the Obligations,
except with respect to:
(a) restrictions
relating to any asset (or all of the assets) of and/or the Capital Stock of the Borrower and/or any Restricted Subsidiary which are imposed
pursuant to an agreement entered into in connection with any Disposition or other transfer, lease or license of such asset (or assets)
and/or all or a portion of the Capital Stock of the relevant Person that is permitted by this Agreement;
(b) restrictions
contained in the Loan Documents, any then extant Second Lien Facility, any Incremental Equivalent Debt, any Receivables Facility (limited
to the assets securing the Indebtedness arising thereunder) or any Additional Letter of Credit Facility (limited to the assets securing
the Indebtedness arising thereunder) (and clause (p) of Section 6.01 to the extent relating to any extension, refinancing, refunding
or replacement of any of the foregoing);
(c) restrictions
contained in any documentation governing any other Indebtedness permitted by Section 6.01 to the extent such restrictions (1)(x)
are, taken as a whole, in the good-faith judgment of the Borrower, not materially more restrictive as concerning the Borrower or any
Restricted Subsidiary than customary market terms for Indebtedness of such type or (y) are not materially more restrictive, taken as
a whole, than the restrictions contained in this Agreement (as determined by the Borrower in good faith) and (2) will not materially
impair the Borrower’s obligation or ability to make any payments required hereunder (as determined by the Borrower in good faith);
(d) restrictions
by reason of customary provisions restricting assignments, subletting or other transfers (including the granting of any Lien) contained
in leases, subleases, licenses, sublicenses, asset sale agreements and other agreements entered into in the ordinary course of business
(provided that such restrictions are limited to the relevant leases, subleases, licenses, sublicenses, asset sale or other agreements
and/or the property or assets secured by such Liens or the property or assets subject to such leases, subleases, licenses, sublicenses,
asset sale or other agreements, as the case may be);
(e) Permitted
Liens and restrictions in the agreements relating thereto that limit the right of the Borrower or any of its Restricted Subsidiaries
to Dispose of or encumber the assets subject to such Liens;
(f) provisions
limiting the Disposition, distribution or encumbrance of assets or property in joint venture agreements, sale and lease-back agreements,
stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements
(or the Persons the Capital Stock of which is the subject of such agreement (or any “shell company” parent with respect thereto));
(g) any
encumbrance or restriction assumed in connection with an acquisition of the property or Capital Stock of any Person, so long as such
encumbrance or restriction relates solely to the Person and its subsidiaries (including the Capital Stock of the relevant Person or Persons)
and/or property so acquired (or to the Person or Persons (and its or their subsidiaries) bound thereby) and was not created solely in
connection with or in anticipation of such acquisition;
(h) restrictions
imposed by customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture
agreements and other similar agreements that restrict the transfer of the assets of, or ownership interests in, the relevant partnership,
limited liability company, joint venture or any similar Person (or any “shell company” parent with respect thereto);
(i) restrictions
on Cash or other deposits permitted under Section 6.02 and/or 6.06 and any net worth requirements, including such restrictions
or requirements imposed by Persons under contracts entered into in the ordinary course of business or for whose benefit such Cash or
other deposits or net worth requirements exist;
(j) restrictions
(i) set forth in documents which exist on the Closing Date or (ii) which are contemplated as of the Closing Date and, in the case of
this clause (ii), as set forth on Schedule 6.03;
(k) restrictions
contained in documents governing Indebtedness of any Restricted Subsidiary that is not a Loan Party permitted hereunder;
(l)
[reserved];
(m) provisions
restricting the granting of a security interest in IP Rights contained in licenses, sublicenses or cross-licenses by the Borrower and
its Restricted Subsidiaries of such IP Rights, which licenses, sublicenses and cross-licenses were entered into in the ordinary course
of business (in which case such restriction shall relate only to such IP Rights);
(n) restrictions
arising under or as a result of applicable Requirements of Law or the terms of any license, authorization, concession or permit issued
or granted by a Governmental Authority;
(o) restrictions
with respect to a Restricted Subsidiary that was previously an Unrestricted Subsidiary, pursuant to or by reason of an agreement that
such Restricted Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided
that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such
restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property
of such Subsidiary;
(p) customary
restrictions imposed in connection with any Receivables Facility or similar transaction permitted hereunder;
(q) restrictions
contained in the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents as in effect on the date of this Agreement,
and restrictions contained in any iStar Exchange Documents or Excluded Property Transaction Documents; and
(r) other
restrictions or encumbrances imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing of the contracts, instruments or obligations referred to in clauses (a) through (q) above; provided
that no such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good
faith judgment of the Borrower, more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than those
in effect prior to the relevant amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Section
6.04. Restricted Payments; Certain Payments of Indebtedness.
(a)
The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the
Borrower may make Restricted Payments to the extent necessary to permit any Parent Company:
(A) to
pay general operating and compliance costs and expenses (including corporate overhead, legal or similar expenses and customary salary,
bonus and other benefits payable to directors, officers, employees, members of management, managers and/or consultants of any Parent
Company), in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable
and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent
Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance
of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent
Company other than the Borrower and/or its subsidiaries), the Borrower and/or its subsidiaries;
(B) to
pay franchise, excise and similar Taxes, and other fees, Taxes and expenses, required to maintain the organizational existence of such
Parent Company;
(C) to
pay customary salary, bonus, long-term incentive, severance and other benefits (including payment to certain service providers of the
Borrower or its Subsidiaries pursuant to any equity plan (whether in the form of options, cash settled options or otherwise)) payable
to Permitted Payees, as well as applicable employment, social security or similar taxes in connection therewith, to the extent such salary,
bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Borrower and/or its subsidiaries,
in each case, so long as such Parent Company applies the amount of any such Restricted Payment for such purpose;
(D) to
pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but excluding,
for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary of
any Parent Company other than the Borrower and/or its subsidiaries), the Borrower and its subsidiaries;
(E) for
the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion
of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Borrower
and/or its subsidiaries), the Borrower and its subsidiaries;
(F) to
pay (x) fees and expenses related to any debt and/or equity offerings (including refinancings), investments and/or acquisitions permitted
or not restricted by this Agreement (whether or not consummated, and including advisory, refinancing, subsequent transaction and exit
fees of any Parent Company of the Borrower) and expenses and indemnities of any trustee, agent, arranger, underwriter or similar role
and (y) after the consummation of an initial public offering or the issuance of debt securities, Public Company Costs; and
(G) to
finance any Investment permitted under Section 6.06 as if such Parent Company were subject to Section 6.06 (provided
that (x) any Restricted Payment under this clause (a)(i)(G) shall be made substantially concurrently with the closing or consummation
of such Investment or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection
therewith and (y) the relevant Parent Company shall, promptly following the closing or consummation thereof or at future times as may
be scheduled at the time of such closing or consummation to be made thereafter in connection therewith, cause (I) all property acquired
to be contributed to the Borrower or one or more of its Restricted Subsidiaries or (II) the merger, consolidation or amalgamation of
the Person formed or acquired into the Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment
in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Borrower or the
relevant Restricted Subsidiary);
(ii) the
Borrower may pay (or make Restricted Payments to allow any Parent Company to pay) for the repurchase, redemption, retirement or other
acquisition or retirement for value of Capital Stock of any Parent Company or any subsidiary held by any Permitted Payee:
(A) in
accordance with the terms of promissory notes issued pursuant to Section 6.01(o), so long as the aggregate amount of all Cash
payments made in respect of such promissory notes, together with the aggregate amount of Restricted Payments made pursuant to sub-clause
(D) of this clause (ii) below, (1) does not exceed the greater of $5,500,000 and 4% of Consolidated Adjusted EBITDA as of
the last day of the most recently ended Test Period (which amount shall, following a Qualifying IPO, increase to the greater of $7,500,000
and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period) in any Fiscal Year, which, if not used
in any Fiscal Year, may be carried forward to subsequent Fiscal Years (until so applied)) minus (2) any utilization of the Available
RP Capacity Amount in reliance on unused capacity under clause (D) below; plus
(B) with
the proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock of the Borrower or any Parent
Company (to the extent such proceeds are contributed to the Borrower or any Restricted Subsidiary in respect of Qualified Capital Stock
issued by the Borrower or such Restricted Subsidiary) (other than amounts constituting a Cure Amount or an Available Excluded Contribution
Amount); plus
(C)
with the net proceeds of any key-man life insurance policies; plus
(D) with
Cash and Cash Equivalents in an amount not to exceed, together with the aggregate amount of all cash payments made pursuant to sub-clause
(A) of this clause (ii) in respect of promissory notes issued pursuant to Section 6.01(o), (1) the greater of
$5,500,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (which amount shall, following
a Qualifying IPO, increase to the greater of $7,500,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently
ended Test Period) in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to subsequent Fiscal Years (until
so applied) minus (2) any utilization of the Available RP Capacity Amount in reliance on unused capacity under the immediately preceding
clause (1); plus
(E) with
the amount of any Cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of Capital Stock
of the Borrower or any Parent Company pursuant to any compensation arrangement, including any deferred compensation plan;
(iii) the
Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such
date that the Borrower elects to apply to this clause (iii)(A) plus (B) the portion, if any, of the Available Excluded Contribution
Amount on such date that the Borrower elects to apply to this clause (iii)(B) (plus, without duplication of amounts referred
to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing
Date, if the acquisition of such property or assets was financed with Available Excluded Contribution Amounts up to the amount of such
Available Excluded Contribution Amount, less any application thereof under Sections 6.04(b)(vi) or 6.06(r));
(iv) the
Borrower may make Restricted Payments (i) to any Parent Company to enable such Parent Company to (A) make Cash payments in lieu of the
issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable
for Capital Stock of such Parent Company, dividends, share splits, reverse share splits (or any combination thereof) and, mergers, consolidations,
amalgamations or other business combinations, and acquisitions and other Investments permitted hereunder and/or (B) honor any conversion
request by a holder of convertible Indebtedness, make any cash payments in lieu of fractional shares in connection with any conversion
and make payments on convertible Indebtedness in accordance with its terms and (ii) consisting of (A) payments made or expected to be
made in respect of withholding or similar Taxes payable by any Permitted Payee and/or (B) repurchases of Capital Stock in consideration
of the payments described in sub clause (A) above, including demand repurchases in connection with the exercise of stock options
and the issuance of restricted stock units or similar stock based awards;
(v) the
Borrower may repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in connection with), or make
Restricted Payments to any Parent Company to enable it to repurchase, redeem, acquire or retire Capital Stock upon (or make provisions
for withholdings in connection with), the exercise of warrants, options or other securities convertible into or exchangeable for Capital
Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants,
options or other securities convertible into or exchangeable for Capital Stock as part of a “cashless” exercise;
(vi) the
Borrower may make Restricted Payments the proceeds of which are applied (i) on the Closing Date, solely to effect the consummation of
the Transactions, (ii) on and after the Closing Date, to satisfy any payment obligations owing, or as otherwise required, under the Acquisition
Agreement (including payment of working capital and/or purchase price adjustments) and to pay Transaction Costs, in each case, with respect
to the Transactions, (iii) to satisfy obligations to direct or indirect holders of Capital Stock of the Borrower (immediately prior to
giving effect to the Transactions) in connection with, or as a result of, any working capital and/or purchase price adjustments, in each
case, with respect to the Transactions and (iv) to satisfy any settlement of claims or actions in connection with the Transactions
or to satisfy indemnity or other similar obligations in connection with the Transactions;
(vii) following
the consummation of the first Qualifying IPO, the Borrower may (or may make Restricted Payments to any Parent Company to enable it to)
make Restricted Payments with respect to any Capital Stock in an amount not to exceed (A) the greater of (x) an amount equal to 6.00%
per annum of the net Cash proceeds received by or contributed to the Borrower from any Qualifying IPO and (y) an amount equal to 6.00%
per annum of the Market Capitalization of the Borrower (or its direct or indirect Parent Company, as applicable) and its subsidiaries
minus (B) any utilization of the Available RP Capacity Amount in reliance on unused capacity under immediately preceding clause
(A);
(viii) the
Borrower may make Restricted Payments to (i) redeem, repurchase, defease, discharge, retire or otherwise acquire any (A) Capital Stock
(“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company,
in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent
sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower or any Parent Company
to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified
Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of
the proceeds of the substantially concurrent sale or issuance (other than to the Borrower or a Restricted Subsidiary) of any Refunding
Capital Stock;
(ix)
to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other
than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other
than Section 6.09(d));
(x) the
Borrower may make additional Restricted Payments in an aggregate amount not to exceed (A) the greater of $20,000,000 and 15% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (B) any utilization of the Available RP Capacity Amount
in reliance on unused capacity under immediately preceding clause (A);
(xi) the
Borrower may pay any dividend or other distribution or consummate any redemption within 60 days after the date of the declaration thereof
or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration or notice, the dividend,
distribution or redemption contemplated by such declaration or redemption notice would have complied with the provisions of this Section
6.04(a);
(xii) the
Borrower may make any Restricted Payment constituting the distribution or payment of Receivables Fees;
(xiii) the
Borrower may make additional Restricted Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total Leverage
Ratio would not exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default hereunder or shall result
therefrom;
(xiv) the
Borrower may make additional Restricted Payments in an amount not to exceed the amount of proceeds received by the Borrower and/or any
Restricted Subsidiary under the Representation and Warranty Insurance Policy during the term of this Agreement;
(xv) (A)
for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income
tax group for U.S. federal and/or applicable state or local income tax purposes of which a direct or indirect parent of the Borrower
is the common parent (a “Tax Group”), or for which the Borrower is a disregarded entity for U.S. federal income tax
purposes wholly-owned by a corporate parent (a “Corporate Parent”), the Borrower and each of its Subsidiaries may make Restricted
Payments (including pursuant to any Tax sharing agreement entered into by the Borrower and any of its Subsidiaries and Comcast Corporation,
a Pennsylvania corporation or its Affiliates) the proceeds of which shall be used by such common parent to pay the portion of any consolidated,
combined or similar U.S. federal, state or local income Taxes of such Tax Group, or by the Corporate Parent to pay the portion of the
U.S. federal, state or local income Taxes of such Corporate Parent, or any franchise taxes imposed in lieu thereof, for such taxable
period that are attributable to the income of the Borrower and/or its Subsidiaries, provided that such amount shall not be greater than
the amount of such U.S. federal, state or local income taxes that would be paid (for such taxable period) by the Borrower and its Subsidiaries
if the Borrower and/or such Subsidiaries had been a stand-alone corporate taxpayer (or stand-alone group of corporate taxpayers filing
on a consolidated, combined or similar basis) for all taxable years ending after the Closing Date (taking into account any net operating
loss carryforwards attributable to the Borrower and its Subsidiaries, as the case may be) and (B) without duplication of Restricted Payments
made under Section 6.04(a)(xv)(A), for any taxable period for which the Borrower is treated as a partnership for U.S. federal and/or
applicable state or local income tax purposes, the Borrower may make Restricted Payments to its equity owners at the times and in the
amounts necessary to enable such owners (and their direct or indirect owners) to pay their Tax obligations attributable to their direct
or indirect ownership interests in the Borrower in an aggregate amount equal to the product of (1) 50% (or such higher tax rate as shall
be applicable to a resident of New York City or California that indirectly owns an interest in the Borrower, taking into account the
character of the taxable income in question and the deductibility of state and local income taxes for U.S. federal income tax purposes)
and (2) the taxable income of the Borrower for such taxable year, less any cumulative taxable losses from prior taxable years to the
extent that such losses are of a character (ordinary or capital) that would permit such losses to be deducted by the direct or indirect
owners of the Borrower against the current taxable income of the Borrower allocable to such owners and have not previously been taken
into account in determining tax distributions;
(xvi) the
Borrower may make additional Restricted Payments constituting any part of a Permitted Reorganization or IPO Reorganization Transaction;
(xvii) the
Borrower may make a distribution, by dividend or otherwise, of the Capital Stock of, or debt owed to any Loan Party or any Restricted
Subsidiary by, any Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries, provided that
such Restricted Subsidiary owns no other material assets other than Capital Stock of one or more Unrestricted Subsidiaries); in each
case, other than Unrestricted Subsidiaries, the primary assets of which are Cash and/or Cash Equivalents; provided that any such
Capital Stock or debt that represents an Investment by the Borrower or any Restricted Subsidiary shall be deemed to continue to charge
(as utilization) the respective clause under Section 6.06 pursuant to which such Investment was made;
(xviii) the
Borrower may make payments and distributions to satisfy dissenters’ rights (including in connection with, or as a result of, the
exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) in respect thereof),
pursuant to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 6.07;
(xix) the
Borrower may make a Restricted Payment in respect of payments made for the benefit of the Borrower or any Restricted Subsidiary to the
extent such payments could have been made by the Borrower or any Restricted Subsidiary because such payments (A) would not otherwise
be Restricted Payments and (B) would be permitted by Section 6.09; and
(xx) the
Borrower may make a Restricted Payment in respect of required withholding or similar non-U.S. Taxes with respect to any Permitted Payee
and any repurchases of Capital Stock in consideration of such payments, including deemed repurchases in connection with the exercise
of stock options or the issuance of restricted stock units or similar stock based awards.
(b) The
Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any prepayment in Cash on or in respect of principal of or
interest on any Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted
Debt Payments”), except:
(i) any
refinancing, purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of any Restricted Debt made by
exchange for, or out of the proceeds of, Refinancing Indebtedness permitted by Section 6.01 and/or any extension, refinancing,
refunding or replacing Indebtedness permitted by Section 6.01(x);
(ii) payments
as part of, or to enable another Person to make, an “applicable high yield discount obligation” catch-up payment;
(iii) payments
of regularly scheduled principal and interest and payments of fees, expenses and indemnification obligations as and when due (other than
payments with respect to Junior Indebtedness that are prohibited by the subordination provisions thereof);
(iv) additional
Restricted Debt Payments in an aggregate amount not to exceed (A)(1) the greater of (x) $25,000,000 and (y) 19% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period minus (2) any utilization of the Available RDP Capacity Amount
in reliance on unused capacity under immediately preceding clause (A)(1) plus (B) the Available RP Capacity Amount;
(v) (A)
Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any Restricted
Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Borrower or any Restricted Subsidiary, (B) Restricted
Debt Payments as a result of the conversion of all or any portion of any Restricted Debt into Qualified Capital Stock of the Borrower
and/or any Restricted Subsidiary or Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest
with respect to any Restricted Debt that is permitted under Section 6.01;
(vi) Restricted
Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects
to apply to this clause (vi)(A) plus (B) the portion, if any, of the Available Excluded Contribution Amount on such date
that the Borrower elects to apply to this clause (vi)(B) (plus, without duplication of amounts previously referred to in
this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing Date, if
the acquisition of such property or assets was financed solely with Available Excluded Contribution Amounts up to the amount of such
Available Excluded Contribution Amount, less any application thereof under Sections 6.04(a)(iii) or 6.06(r));
(vii) additional
Restricted Debt Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total Leverage Ratio would not
exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default under Section 7.01(a) or, with
respect to the Borrower, Sections 7.01(f) or (g) or shall result therefrom; and
(viii) Restricted
Debt Payments in respect of Restricted Debt permitted to be assumed pursuant to Section 6.01(n), provided that any such Restricted
Debt Payment shall be deemed an Investment and shall only be permitted to the extent there exists the ability to make such Investment
pursuant to Section 6.06 at such time.
Section
6.05. [Reserved].
Section
6.06. Investments. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make or own any Investment
in any other Person except:
(a) Investments
in assets that are Cash or Cash Equivalents, or investments that were Cash or Cash Equivalents at the time made;
(b) (i)
Investments existing on the Closing Date in any subsidiary and any modification, replacement, renewal or extension thereof so long as
no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted
by this Section 6.06 and (ii) Investments made after the Closing Date among Holdings, the Borrower and/or one or more Restricted
Subsidiaries or in any Person that will, upon such Investment, become a Restricted Subsidiary;
(c) Investments
(i) constituting deposits, prepayments and/or other credits to suppliers or other trade counterparties, (ii) made in connection with
obtaining, maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors, suppliers,
licensors and licensees, in each case, in the ordinary course of business or, in the case of clause (iii), to the extent necessary
to maintain the ordinary course of supplies to the Borrower or any Restricted Subsidiary;
(d) Investments
in (i) any Unrestricted Subsidiary (including any Joint Venture that is an Unrestricted Subsidiary) in an aggregate outstanding amount
not to exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period
and (ii) any Similar Business (including any Joint Venture engaged in a Similar Business) in an aggregate outstanding amount not to exceed
the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; provided
that if any Investment pursuant to this clause (d)(ii) is made in any Person that is not a Restricted Subsidiary at the date of making
of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have
been made pursuant to clause (b)(ii) above and shall cease to have been made under this clause (d);
(e) (i)
Permitted Acquisitions and (ii) Investments in Restricted Subsidiaries that are not Loan Parties in amounts required to permit such Restricted
Subsidiaries to consummate Permitted Acquisitions;
(f) (i)
Investments existing on, or contractually committed to or contemplated as of, the Closing Date and, with respect to any such Investment
in excess of $250,000, described on Schedule 6.06 and (ii) any modification, replacement, renewal or extension of any Investment
described in clause (i) above so long as no such modification, renewal or extension thereof increases the amount of such
Investment except by the terms thereof or as otherwise permitted by this Section 6.06;
(g) Investments
received in lieu of Cash in connection with any Disposition permitted by Section 6.07 or any other disposition of assets not constituting
a Disposition;
(h) loans
or advances to Permitted Payees to the extent permitted by Requirements of Law, in connection with such Person’s purchase of Capital
Stock of any Parent Company, either (i) in an aggregate principal amount not to exceed the greater of $3,000,000 and 2% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period at any one time outstanding, (ii) so long as the proceeds of
such loan or advance are substantially contemporaneously contributed to the Borrower for the purchase of such Capital Stock or (iii)
so long as no Cash or Cash Equivalents are advanced in connection with such loan or advance;
(i) Investments
consisting of rebates and extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business;
(j) Investments
consisting of (or resulting from) Indebtedness permitted under Section 6.01 (including guarantees thereof) (other than Indebtedness
permitted under Sections 6.01(b) and (h)), Permitted Liens, Restricted Payments permitted under Section 6.04 (other
than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers, consolidations, amalgamations,
liquidations, windings up, dissolutions or Dispositions permitted by Section 6.07 (other than Section 6.07(a)(i) (if made
in reliance on subclause (ii)(y) of the proviso thereto), Section 6.07(b) (if made in reliance on clause (ii) of
the proviso thereto), Section 6.07(c)(ii) (if made in reliance on clause (B) therein) and Section 6.07(g));
(k) Investments
in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers,
vendors, suppliers, licensors, sublicensors, licensees and sublicensees;
(l) Investments
(including debt obligations and Capital Stock) received (i) in connection with the bankruptcy, work-out, reorganization or recapitalization
of any Person, (ii) in settlement or compromise of delinquent obligations of, or other disputes with or judgments against, customers,
trade-creditors, suppliers, licensees and other account debtors arising in the ordinary course of business, including pursuant to any
plan of reorganization or similar arrangement upon bankruptcy or insolvency of any customer, trade creditor, supplier or licensee, (iii)
in satisfaction of judgments against other Persons, (iv) as a result of foreclosure with respect to any secured Investment or other transfer
of title with respect to any secured Investment and/or (v) in settlement, compromise or resolution of litigation, arbitration or other
disputes;
(m) loans
and advances of payroll payments or other compensation to present or former employees, directors, members of management, officers, managers
or consultants of any Parent Company (to the extent such payments or other compensation relate to services provided to such Parent Company
(but excluding, for the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership or operations of any
subsidiary of any Parent Company other than the Borrower and/or its subsidiaries)), the Borrower and/or any subsidiary in the ordinary
course of business;
(n) Investments
to the extent that payment therefor is made solely with Capital Stock of any Parent Company or Capital Stock (other than Disqualified
Capital Stock) of the Borrower or any Restricted Subsidiary, in each case, to the extent not resulting in a Change of Control;
(o) (i)
Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated
or amalgamated with, the Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise
permitted by this Section 6.06 to the extent that such Investments were not made in contemplation of or in connection with such
acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation
or consolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of
this Section 6.06(o) so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment
except as otherwise permitted by this Section 6.06;
(p) Investments
made in connection with the Transactions and any Investments held by the Target or its Restricted Subsidiaries on the Closing Date and
permitted to remain (or not prohibited from remaining) outstanding after the Closing Date pursuant to the terms of the Acquisition Agreement;
(q) Investments
made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate amount at any time outstanding
not to exceed:
(i) the
greater of $50,000,000 and 37% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, plus
(ii)
the Available RP Capacity Amount plus the Available RDP Capacity Amount, plus
(iii) in
the event that (A) the Borrower or any of its Restricted Subsidiaries makes any Investment after the Closing Date in any Person that
is not a Restricted Subsidiary and (B) such Person subsequently becomes a Restricted Subsidiary, an amount equal to 100% of the
fair market value of such Investment as of the date on which such Person becomes a Restricted Subsidiary;
(r) Investments
made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount not to exceed
(i) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (r)(i) plus
(ii) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause
(r)(ii) (plus, without duplication of amounts referred to in this clause (ii), in an amount equal to the Net Proceeds from
a Disposition of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with
Available Excluded Contribution Amounts up to the amount of such Available Excluded Contribution Amount, less any application thereof
under Sections 6.04(a)(iii) or 6.04(b)(iv));
(s) (i)
Guarantees of leases or subleases (in each case other than Capital Leases) or of other obligations not constituting Indebtedness, (ii)
Guarantees of the lease obligations of suppliers, customers, franchisees and licensees of the Borrower and/or its Restricted Subsidiaries,
in each case, in the ordinary course of business and (iii) Investments consisting of Guarantees of any supplier’s obligations in
respect of commodity contracts, including Hedge Agreements, solely to the extent such commodities related to the materials or products
to be purchased by the Borrower or any Restricted Subsidiary;
(t) (i)
Investments in any Parent Company in amounts and for purposes for which Restricted Payments to such Parent Company are permitted under
Section 6.04(a); provided that any Investment made as provided above in lieu of any such Restricted Payment shall reduce availability
under the applicable Restricted Payment basket under Section 6.04(a) and (ii) Investments consisting of loans and advances to
any Parent Company in connection with the reimbursement of expenses incurred on behalf of the Borrower or any Restricted Subsidiary in
the ordinary course of business;
(u) Investments
made by any Restricted Subsidiary that is not a Loan Party with the proceeds received by such Restricted Subsidiary from an Investment
made by any Loan Party in such Restricted Subsidiary pursuant to this Section 6.06 (other than Investments made pursuant to clause
(ii) of Section 6.06(e));
(v) Investments
in subsidiaries in connection with reorganizations and/or restructurings, including any Permitted Reorganization and/or any IPO Reorganization
Transaction, and/or activities related to tax planning (including Investments in non-Cash or non-Cash Equivalents); provided that, after
giving effect to any such reorganization, restructuring and/or related activity, the security interest of the Administrative Agent in
the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral
immediately prior to such reorganization, restructuring or tax planning activities no longer constituting Collateral) as a result of
such reorganization, restructuring or tax planning activities;
(w) Investments
arising under or in connection with any Derivative Transaction of the type permitted under Section 6.01(s);
(x) Investments
made (i) in Joint Ventures, (ii) in connection with the creation, formation and/or acquisition of any Joint Venture or (iii) in any Restricted
Subsidiary to enable such Restricted Subsidiary to create, form and/or acquire any Joint Venture, in an aggregate outstanding amount
under this clause (x) not to exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the
most recently ended Test Period; provided that if any Investment pursuant to this clause (x) is made in any Person that is not a Restricted
Subsidiary at the date of making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment
shall thereafter be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been made under this clause (x);
(y) Investments
made in joint ventures as required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in joint
venture agreements and similar binding arrangements in effect on the Closing Date or entered into after the Closing Date in the ordinary
course of business;
(z) unfunded
pension fund and other employee benefit plan obligations and liabilities to the extent that they are permitted to remain unfunded under
applicable Requirements of Law;
(aa) Investments
in Holdings, the Borrower and/or any subsidiary in connection with intercompany cash management arrangements and related activities in
the ordinary course of business;
(bb) Investments
made in connection with any nonqualified deferred compensation plan or arrangement for any Permitted Payee;
(cc) any
Investment made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted
Subsidiary (but for the avoidance of doubt, after such subsidiary was designated as an Unrestricted Subsidiary) so long as the relevant
Investment was not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary;
(dd) additional
Investments so long as, as measured at the time provided for in Section 1.04(e), on a Pro Forma Basis, the Total Leverage Ratio
does not exceed 4.25:1.00;
(ee) Investments
consisting of the licensing or contribution of IP Rights pursuant to joint marketing, collaborations or other similar arrangements with
other Persons;
(ff) Investments
in or relating to any Receivables Subsidiary that, in the good faith determination of the Borrower, are necessary or advisable to effect
a Receivables Facility or any repurchases in connection therewith (including Investments of funds held in accounts permitted or required
by the arrangements governing such Receivables Facility or any related Indebtedness);
(gg) the
conversion to Qualified Capital Stock of any Indebtedness owed by the Borrower or any Restricted Subsidiary and permitted by Section
6.01;
(hh) Restricted
Subsidiaries of the Borrower may be established or created if the Borrower and such Restricted Subsidiary comply with the requirements
of Section 5.12, if applicable; provided that, in each case, to the extent such new Restricted Subsidiary is created solely
for the purpose of consummating a transaction pursuant to an acquisition or other Investment permitted by this Section 6.06, and
such new Restricted Subsidiary at no time holds any assets or liabilities other than any acquisition or Investment consideration contributed
to it contemporaneously with the closing of such transaction, such new Restricted Subsidiary shall not be required to take the actions
set forth in Section 5.12 until the respective acquisition is consummated (at which time the surviving entity of the respective
transaction shall be required to so comply in accordance with the provisions thereof);
(ii) contributions
in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners, members,
consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of
a bankruptcy of the Borrower or any of its Restricted Subsidiaries;
(jj) Investments
by Loan Parties in any Restricted Subsidiary that is not a Loan Party so long as such Investment is part of a series of simultaneous
Investments by the Borrower and the Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the intercompany
Investment being invested in one or more Loan Parties;
(kk) Investments
consisting of earnest money deposits required in connection with purchase agreements or other acquisitions or Investments otherwise permitted
under this Section 6.06 and any other pledges or deposits permitted by Section 6.02;
(ll) Term
Loans repurchased by Holdings, the Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance
with this Agreement and, to the extent permitted (or not prohibited) by Section 6.04(b), loans repurchased by the Borrower or
a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance with the terms of any other Indebtedness;
(mm) Guarantee
obligations of the Borrower or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations issued,
made or incurred for the benefit of any Restricted Subsidiary of the Borrower to the extent required by law or in connection with any
statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;
(nn) purchases
and acquisitions of inventory, supplies, materials, services, equipment or similar assets in the ordinary course of business; and
(oo) Investments
pursuant to, in connection with, or made with the proceeds of any Excluded Property Transaction and/or any iStar Exchange.
Section
6.07. Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries
to, enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves (or suffer any
liquidation or dissolution), or make any Disposition of assets having a fair market value in excess of $5,000,000, in a single transaction
or in a series of related transactions, and in excess of $10,000,000 in the aggregate for all such transactions in any Fiscal Year, except:
(a) any
Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary; provided
that (i) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (A) the Borrower shall be the continuing
or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation (including any immediate
and successive mergers, consolidations or amalgamations of entities) is not the Borrower (any such Person after giving effect to such
transaction or transactions, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or
existing under the law of the U.S., any state thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume
the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (3) except as the Administrative
Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed
and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being
understood and agreed that if the foregoing conditions under clauses (1) through (3) are satisfied, the Successor Borrower
will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (ii) in the case of any
such merger, consolidation or amalgamation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing
or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Subsidiary Guarantor
in a manner reasonably satisfactory to the Administrative Agent or (y) the relevant transaction shall be treated as an Investment and
otherwise be made in compliance with Section 6.06;
(b) Dispositions
(including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided
that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (as determined
by such Person in good faith) or (ii) treated as an Investment and otherwise be made in compliance with Section 6.06 (other than
in reliance on clause (j) thereof);
(c) (i)
the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution
is in the best interests of the Borrower, is not materially disadvantageous to the Lenders, and the Borrower or any Restricted Subsidiary
receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation
or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such
distribution shall be treated as an Investment and shall otherwise be made in compliance with Section 6.06 (other than in reliance
on clause (j) thereof); (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect
(A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause
(c)) or (B) any Investment permitted under Section 6.06; and (iii) the Borrower or any Restricted Subsidiary may be converted
into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or the
Collateral, taken as a whole;
(d) (x)
Dispositions of inventory or goods held for sale, equipment or other assets in the ordinary course of business (including on an intercompany
basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions
of surplus, obsolete, used or worn out property or other property that, in the good faith judgment of the Borrower, is (A) no longer
useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable
or not commercially reasonable to maintain;
(f) Dispositions
of Cash and/or Cash Equivalents or other assets that were Cash and/or Cash Equivalents when the relevant original Investment was made;
(g) Dispositions,
mergers, amalgamations, consolidations or conveyances that constitute (or are made in order to effectuate) Investments permitted pursuant
to Section 6.06 (other than Section 6.06(j)), Permitted Liens, Restricted Payments permitted by Section 6.04(a)
(other than Section 6.04(a)(ix)) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions
for fair market value; provided that with respect to (1) any single Disposition transaction with respect to assets having a fair
market value in excess of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended
Test Period or (2) any other Disposition transactions with respect to assets having a fair market value in excess of the greater of $10,000,000
and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, for all such transactions on an aggregate
basis in any Fiscal Year, at least 75% of the consideration for such Disposition, shall consist of Cash or Cash Equivalents (provided
that for purposes of the 75% Cash consideration requirement, (v) the amount of any Indebtedness or other liabilities (other than
Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Borrower or any Restricted Subsidiary)
of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet (or in the notes thereto), or
if the incurrence of such Indebtedness or other liability took place after the date of such balance sheet, that would have been shown
on such balance sheet or in the notes thereto, as determined in good faith by the Borrower) that are (i) assumed by the transferee of
any such assets and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors
in writing or (ii) otherwise cancelled or terminated in connection with such Disposition, (w) the amount of any trade-in value applied
to the purchase price of any replacement assets acquired in connection with such Disposition, (x) any Securities or other obligations
or assets received by the Borrower or any Restricted Subsidiary from such transferee (including earn-outs or similar obligations) that
are converted by such Person into Cash or Cash Equivalents, or by their terms are required to be satisfied for Cash or Cash Equivalents
(to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (y)
any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with
all other Designated Non-Cash Consideration received pursuant to this clause (y) and clause (C)(z) of the proviso to Section
6.08 that is at that time outstanding, not in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the
last day of the most recently ended Test Period, in each case shall be deemed to be Cash); provided, further, that the
Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to
the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii)
the proceeds of the relevant Disposition are promptly (or within 180 days) applied to the purchase price of such replacement property;
(j) Dispositions
of Investments in Joint Ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture or similar
parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(k) Dispositions
of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or
in connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(l) Dispositions
and/or terminations of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses (including the provision of software
under any open source license), the Dispositions or terminations of which (i) do not materially interfere with the business of the Borrower
and its Restricted Subsidiaries, (ii) relate to closed facilities or the discontinuation of any product line or (iii) are made in the
ordinary course of business;
(m) (i)
any termination of any lease, sublease, license or sub-license in the ordinary course of business (and any related Disposition of improvements
made to leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal property
and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims
(including in tort) in the ordinary course of business;
(n) Dispositions
of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain or condemnation proceedings (including
in lieu thereof or any similar proceeding);
(o) Dispositions
or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property) with respect to
facilities that are temporarily not in use, held for sale or closed;
(p)
the Transactions and any Dispositions in connection with the Transactions; (q) Dispositions of non-core assets and sales of Real
Estate Assets, in each case acquired in any acquisition or other Investment permitted hereunder, (x) which Disposition or sale is required
to obtain the approval of any anti-trust authority or (y) which, within 120 days of the date of such acquisition or Investment, are designated
in writing to the Administrative Agent as being held for sale and not for the continued operation of the Borrower or any of its Restricted
Subsidiaries or any of their respective businesses;
(r) exchanges
or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property
or assets so long as any such exchange or swap is made for fair value (as determined by the Borrower in good faith) for like property
or assets or property, assets or services of greater value or usefulness to the business of the Borrower and its Restricted Subsidiaries
as a whole, as determined in good faith by the Borrower; provided that upon the consummation of any such exchange or swap by any
Loan Party, to the extent the property received does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien
with the same priority as the Lien held on the property or assets so exchanged or swapped;
(s) Dispositions
of assets that do not constitute Collateral having a fair market value of not more than, in any Fiscal Year, the greater of $10,000,000
and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(t) (i)
licensing and cross-licensing (including sub-licensing) arrangements involving any technology, intellectual property or IP Rights of
the Borrower or any Restricted Subsidiary in the ordinary course of business, (ii) Dispositions, abandonments, cancellations or lapses
of IP Rights or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the good faith determination
of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical
to maintain in light of its use and (iii) Dispositions of any technology, intellectual property or other IP Rights of the Borrower or
any Restricted Subsidiary involving their customers in the ordinary course of business;
(u)
terminations or unwinds of Derivative Transactions;
(v) Dispositions
of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) Dispositions
of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers,
employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions
made to comply with any order or other directive of any Governmental Authority or any applicable Requirement of Law;
(y) any
merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary
in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) Dispositions
constituting any part of a Permitted Reorganization and/or an IPO Reorganization Transaction;
(aa) any
sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(bb) other
Dispositions involving assets having a fair market value of not more than, in any Fiscal Year, the greater of $15,000,000 and 11% of
Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, which amounts if not used in any Fiscal Year
may be carried forward to the next succeeding Fiscal Year (with such carried over amount deemed first applied in such succeeding Fiscal
Year), in any event not to exceed, in any Fiscal Year, the greater of $30,000,000 and 22% of Consolidated Adjusted EBITDA as of the last
day of the most recently ended Test Period;
(cc)
Dispositions contemplated on the Closing Date and described on Schedule 6.07 hereto;
(dd) Dispositions
or discounts of accounts receivable, or participations therein, or other rights to payment and related assets in connection with any
Receivables Facility;
(ee) the
Borrower and the Restricted Subsidiaries may issue, sell or dispose of Capital Stock to directors, officers, managers or employees for
purposes of (i) satisfying requirements with respect to directors’ qualifying shares and shares issued to foreign nationals, in
each case as required by applicable Requirements of Law and (ii) satisfying applicable Requirements of Law with respect to Liquor License
Subsidiaries;
(ff) the
Borrower and the Restricted Subsidiaries may enter into any netting arrangement of accounts receivable between or among the Borrower
and its Restricted Subsidiaries or among Restricted Subsidiaries of the Borrower made in the ordinary course of business;
(gg)
[reserved];
(hh) any
merger, consolidation, liquidation, wind-up or dissolution by one or more Restricted Subsidiaries in order to effectuate an iStar Exchange,
Excluded Property Transaction or any Sale and Lease-Back Transaction permitted hereunder;
(ii) the
sale, lease, transfer or other Disposition of any Excluded Property or consummation of any iStar Exchange by the Borrower or any Restricted
Subsidiaries;
(jj) Dispositions
of Bowling Equipment pursuant to the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback 2014 Documents by the Borrower or any
Restricted Subsidiaries;
(kk) Dispositions
of the Closed Sites and Closed Centers (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback II Documents);
(ll)
one or more Foreign Asset Dispositions;
(mm) Disposition
of Site #288 known as Starlite Lanes and of any EAP (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback 2014
Documents);
(nn) (i)
Dispositions in the ordinary course of business of Bowling Equipment, bowling products and other equipment used in the operation or maintenance
of bowling centers and related accessories to Foreign Subsidiaries of the Borrower for use in bowling centers operated by such Foreign
Subsidiaries and (ii) Dispositions of bowling products to Foreign Subsidiaries for resale by such Foreign Subsidiaries, in each case
at a price at least equal to the cost to the Borrower or selling subsidiary of such Bowling Equipment, bowling products, equipment used
in the operation or maintenance of bowling centers or related accessories; and
(oo) (i)
Disposition, licenses or other transfers of patents and other IP Rights, together with the goodwill associated therewith, related solely
to bowling products and the amusement products business, (ii) the granting of a royalty-free perpetual license to use certain “AMF”
trademarks only in the field of bowling and amusement products, equipment and systems and certain services related to the foregoing and
(iii) the granting of a license concerning the Pinspash trademark.
To
the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party,
such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents (which Liens shall be automatically
released upon the consummation of such Disposition) and the Administrative Agent shall be authorized to take, and shall take, any actions
reasonably requested by the Borrower or otherwise deemed appropriate in order to effect the foregoing.
Section
6.08. Sale and Lease-Back Transactions. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly
or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether
real, personal or mixed), whether now owned or hereafter acquired, which the Borrower or the relevant Restricted Subsidiary (a) has
sold or transferred or is to sell or to transfer to any other Person (other than the Borrower or any of its Restricted Subsidiaries)
and (b) intends to use for substantially the same purpose as the property which has been or is to be sold or transferred by the Borrower
or such Restricted Subsidiary to any Person (other than the Borrower or any of its Restricted Subsidiaries) in connection with such lease
(such a transaction described herein, a “Sale and Lease-Back Transaction”); provided that any Sale and Lease-Back
Transaction shall be permitted so long as either (A) the resulting Indebtedness, if any, is permitted by Section 6.01(m) or Section
6.01(z), (B) such Sale and Leaseback Transaction (i) was in existence on the Closing Date or (ii) is an iStar Sale/Leaseback (including
pursuant to an iStar Exchange), iStar Sale/Leaseback 2014 or Excluded Property Sale/Leaseback Transaction or (C) (1) such Sale and Lease-Back
Transaction is made in exchange for cash consideration (provided that for purposes of the foregoing cash consideration requirement,
(v) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations
or that are owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on such Person’s
most recent balance sheet (or in the notes thereto), or, if the incurrence of such Indebtedness or other liability took place after the
date of such balance sheet, that would have been shown on such balance sheet or in the notes thereto, as determined in good faith by
the Borrower) that are (i) assumed by the transferee of any such assets and for which the Borrower and/or its applicable Restricted Subsidiary
have been validly released by all relevant creditors in writing or (ii) otherwise cancelled or terminated in connection with the relevant
Sale and Lease Back Transaction, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired
in connection with such Disposition, (y) any Securities or other obligations or assets received by the Borrower or any Restricted Subsidiary
from such transferee (including earn-outs or similar obligations) that are converted by such Person into Cash or Cash Equivalents, or
by their terms are required to be satisfied for Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within
180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of the
relevant Sale and Lease Back Transaction having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration
received pursuant to this clause (z) and clause (y) of the proviso to Section 6.07(h) that is at that time outstanding,
not in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period, in each case shall be deemed to be Cash), (2) the Borrower or its applicable Restricted Subsidiary would otherwise be permitted
to enter into, and remain liable under, the applicable underlying lease and (3) the aggregate fair market value of the assets sold subject
to all Sale and Lease-Back Transactions under this clause (C) shall not exceed the greater of $65,000,000 and 49% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period.
Section
6.09. Transactions with Affiliates. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into
any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) involving payment in
excess of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period
in any individual transaction with any of their respective Affiliates on terms that are substantially less favorable to the Borrower
or such Restricted Subsidiary, as the case may be (as determined by the Borrower in good faith), than those that might be obtained at
the time in a comparable arm’s-length transaction from a Person who is not an Affiliate; provided that the foregoing restriction
shall not apply to:
(a) any
transaction between or among Holdings, the Borrower and/or one or more Restricted Subsidiaries (or any entity that becomes a Restricted
Subsidiary as a result of such transaction) to the extent permitted or not restricted by this Agreement;
(b) any
issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body)
of any Parent Company or of the Borrower or any Restricted Subsidiary;
(c) (i)
any collective bargaining, employment, indemnification, expense reimbursement or severance agreement or compensatory (including profit
sharing) arrangement entered into by the Borrower or any of its Restricted Subsidiaries with any Permitted Payee, (ii) any subscription
agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with any Permitted
Payee and (iii) payments or other transactions pursuant to any management equity plan, employee compensation, benefit plan, stock option
plan or arrangement, equity holder arrangement, supplemental executive retirement benefit plan, any health, disability or similar insurance
plan, or any employment contract or arrangement which covers any Permitted Payee and payments pursuant thereto;
(d) (i)
transactions permitted by Sections 6.01(d), (o), (bb) and (ee), 6.04 and 6.06(h), (m),
(o), (t), (v), (x), (y), (z), (aa), (bb), (cc), (ff), (gg),
(ii), (jj), (kk), (ll) and (mm), (ii) any Permitted Reorganization or IPO Reorganization Transaction
and (iii) issuances of Capital Stock and issuances and incurrences of Indebtedness not restricted by this Agreement and payments pursuant
thereto;
(e) the
existence of, or performance by the Borrower or any Restricted Subsidiary of its obligations under the terms of, any transaction or agreement
in existence on the Closing Date and any amendment, modification or extension thereof to the extent such amendment, modification or extension,
taken as a whole, is not (i) materially adverse to the Lenders or (ii) more disadvantageous to the Lenders than the relevant transaction
in existence on the Closing Date;
(f) (i)
so long as no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) (solely with respect to the Borrower in
the case of Section 7.01(f) and (g)) then exists or would result therefrom, the payment of management, monitoring, consulting,
advisory and similar fees to any Investor in an amount not to exceed in any Fiscal Year the greater of $3,000,000 and 1% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period, it being understood that (x) during any such Event of Default,
such fees may continue to accrue and become payable upon the waiver, termination or cure of such Event of Default and (y) any amount
not paid in any Fiscal Year may be carried forward and paid in subsequent Fiscal Years without limitation as to amount, but otherwise
subject to the requirements of this clause (f), (ii) customary termination fees payable to the Investors, (iii) customary compensation
to Affiliates in connection with financial advisory, financing, underwriting or placement services or in respect of other investment
banking activities and other transaction fees, which are approved, or made pursuant to arrangements approved, by the majority of the
members of the board of directors (or similar governing body) or a majority of disinterested members of the board of directors (or similar
governing body) of the Borrower in good faith and (iv) the payment of any indemnification obligations and expenses (and similar amounts)
owed to any Investor and any of their respective directors, officers, members of management, managers, employees and consultants, in
each case of clauses (i), (ii), (iii) and (iv) whether currently due or paid in respect of accruals from prior periods;
(g) the
Transactions, including the payment of Transaction Costs and payments required under the Acquisition Agreement;
(h) any
transaction or transactions approved by a majority of the disinterested members of the board of directors (or similar governing body)
of the Borrower at such time;
(i)
Guarantees permitted by Section 6.01 or Section 6.06;
(j) loans
and other transactions among the Loan Parties and their Subsidiaries, in each case to the extent permitted under this Article 6;
(k) the
payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board of directors
(or similar governing body), officers, employees, members of management, managers, consultants and independent contractors of the Borrower
and/or any of its Restricted Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity
on behalf of any Parent Company, to the extent attributable to the operations of the Borrower or its subsidiaries;
(l) transactions
with customers, clients, suppliers, licensees, Joint Ventures, purchasers or sellers of goods or services or providers of employees or
other labor entered into in the ordinary course of business, which are (i) fair to the Borrower and/or its applicable Restricted Subsidiary
in the good faith determination of the board of directors (or similar governing body) of the Borrower or the senior management thereof
or (ii) on terms not substantially less favorable to the Borrower and/or its applicable Restricted Subsidiary as might reasonably be
obtained from a Person other than an Affiliate;
(m) the
payment of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to shareholders
under any shareholder agreement and the existence or performance by the Borrower or any Restricted Subsidiary of its obligations under
any such registration rights or shareholder agreement;
(n) (i)
any purchase by Holdings of the Capital Stock of (or contribution to the equity capital of) the Borrower and (ii) any intercompany loans
made by Holdings to the Borrower or any Restricted Subsidiary;
(o) any
transaction in respect of which the Borrower delivers to the Administrative Agent a letter addressed to the board of directors (or equivalent
governing body) of the Borrower from an accounting, appraisal or investment banking firm of nationally recognized standing stating that
such transaction is on terms that are not substantially less favorable to the Borrower or the applicable Restricted Subsidiary than might
be obtained at the time in a comparable arm’s length transaction from a Person who is not an Affiliate;
(p) (i)
Investments by Affiliates in Securities or other Indebtedness of the Borrower or any Restricted Subsidiary (and payment of reasonable
out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the Investment is being offered by the Borrower
or such Restricted Subsidiary generally to other investors on the same or more favorable terms and (ii) payments to Affiliates in respect
of Securities or other Indebtedness of the Borrower or any Restricted Subsidiary contemplated in the foregoing subclause (i) or that
were acquired from Persons other than the Borrower and the Restricted Subsidiaries, in each case, in accordance with the terms of such
Securities or other Indebtedness;
(q)
[reserved];
(r) transactions
undertaken in the ordinary course of business pursuant to membership in a purchasing consortium; and
(s) any
transaction in connection with the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Transaction and/or any
iStar Exchange.
Section
6.10. [Reserved].
Section
6.11. [Reserved].
Section
6.12. Amendments of or Waivers with Respect to Restricted Debt. The Borrower shall not, nor shall it permit any of its Restricted
Subsidiaries to, amend or otherwise modify the terms of any Restricted Debt (or the documentation governing any Restricted Debt) if the
effect of such amendment or modification, together with all other amendments or modifications made, is materially adverse to the interests
of the Lenders (in their capacities as such); provided that, for purposes of clarity, it is understood and agreed that the foregoing
limitation shall not otherwise prohibit any Refinancing Indebtedness or any other replacement, refinancing, amendment, supplement, modification,
extension, renewal, restatement or refunding of any Restricted Debt, in each case, that is permitted under this Agreement in respect
thereof.
Section
6.13. [Reserved].
Section
6.14. Permitted Activities of Holdings. Holdings shall not:
(a) incur
any Indebtedness for borrowed money other than (i) the Indebtedness permitted to be incurred by Holdings under the Loan Documents and
any Second Lien Facility or otherwise in connection with the Transactions, (ii) Guarantees of Indebtedness or other obligations of the
Borrower and/or any Restricted Subsidiary, which Indebtedness or other obligations are otherwise permitted hereunder, (iii) Indebtedness
owed to the Borrower or any Restricted Subsidiary otherwise permitted hereunder and (iv) any Indebtedness or other obligations arising
in respect of its Guarantee of the iStar Sale/Leaseback, iStar Sale/Leaseback 2014, any Excluded Property Transaction and any iStar Exchange;
(b) create
or suffer to exist any Lien on any property or asset now owned or hereafter acquired by it other than (i) the Liens created under the
Collateral Documents and, subject to the Intercreditor Agreement, the collateral documents relating to any Second Lien Facility, in each
case, to which it is a party, (ii) any other Lien created in connection with the Transactions, (iii) Permitted Liens on the Collateral
that are secured on a pari passu or junior basis with the Secured Obligations, so long as such Permitted Liens secure Guarantees
permitted under clause (a)(ii) above and the underlying Indebtedness subject to such Guarantee is permitted to be secured on the
same basis pursuant to Section 6.02 and (iv) Liens of the type permitted under Section 6.02 (other than in respect of Indebtedness
for borrowed money not referred to in clause (a)(i) of this Section 6.13); or
(c) engage
in any material business activity or own any material assets other than (i) holding the Capital Stock of the Borrower and, indirectly,
any other subsidiary of the Borrower (and/or any Joint Venture of any thereof); (ii) performing its obligations under the Loan Documents
and any Second Lien Facility and other Indebtedness, Liens (including the granting of Liens) and Guarantees permitted hereunder; (iii)
issuing its own Capital Stock (including, for the avoidance of doubt, the making of any dividend or distribution on account of, or any
redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value of, any shares of any class of Capital
Stock permitted hereunder); (iv) filing Tax reports and paying Taxes, including Tax distributions made pursuant to Section 6.04(a)(xv)
and other customary obligations in the ordinary course (and contesting any Taxes); (v) preparing reports to Governmental Authorities
and to its shareholders; (vi) holding director and shareholder meetings, preparing organizational records and other organizational activities
required to maintain its separate organizational structure or to comply with applicable Requirements of Law; (vii) effecting any initial
public offering of its Capital Stock; (viii) holding (A) Cash, Cash Equivalents and other assets received in connection with permitted
distributions or dividends received from, or permitted Investments or permitted Dispositions made by, any of its subsidiaries or permitted
contributions to the capital of, or proceeds from the issuance of Capital Stock of, Holdings pending the application thereof and (B)
the proceeds of Indebtedness permitted by Section 6.01; (ix) providing indemnification for its officers, directors, members of
management, employees and advisors or consultants; (x) participating in tax, accounting and other administrative matters; (xi) making
payments of the type permitted under Section 6.09(f) and the performance of its obligations under any document, agreement and/or
Investment contemplated by the Transactions or otherwise not prohibited under this Agreement; (xii) complying with applicable Requirements
of Law (including with respect to the maintenance of its existence); (xiii) [reserved]; (xiv) repurchases of Indebtedness through open
market purchases and/or Dutch Auctions permitted hereunder; (xv) activities incidental to Permitted Acquisitions or similar Investments
consummated by the Borrower and/or any Restricted Subsidiaries, including the formation of acquisition vehicle entities and intercompany
loans and/or Investments incidental to such Permitted Acquisitions or similar Investments; (xvi) consummating the Holdings Reorganization
Transaction, any Permitted Reorganization or any IPO Reorganization Transaction; (xvii) the maintenance of its legal existence (including
the ability to incur and pay, as applicable, fees, costs and expenses and taxes related to such maintenance), (xviii) activities incidental
or reasonably related to any of the foregoing and (xvii) any transaction expressly permitted pursuant to clauses (a), (b)
and/or (d) of this Section 6.14; or
(d) consolidate
or amalgamate with, or merge with or into, or convey, sell or otherwise transfer all or substantially all of its assets to, any Person;
provided that, so long as no Event of Default exists or would result therefrom, (A) Holdings may consolidate or amalgamate with,
or merge with or into, any other Person (other than the Borrower and any of its subsidiaries) so long as (i) Holdings is the continuing
or surviving Person or (ii) if the Person formed by or surviving any such consolidation, amalgamation or merger is not Holdings, (x)
the successor Person expressly assumes all obligations of Holdings under this Agreement and the other Loan Documents to which Holdings
is a party pursuant to a supplement hereto and/or thereto in a form reasonably satisfactory to the Administrative Agent and (y) the Borrower
delivers a certificate of a Responsible Officer with respect to the satisfaction of the conditions set forth in clause (x) of
this clause (A)(ii) and (B) Holdings may (1) consummate the Holdings Reorganization Transaction and/or (2) otherwise convey,
sell or otherwise transfer all or substantially all of its assets to any other Person (other than the Borrower and any of its subsidiaries)
so long as (x) no Change of Control results therefrom, (y) the Person acquiring such assets expressly assumes all of the obligations
of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto and/or thereto
in a form reasonably satisfactory to the Administrative Agent and (z) the Borrower delivers a certificate of a Responsible Officer with
respect to the satisfaction of the conditions under clause (x) set forth in this clause (B); provided, further,
that (1) if the conditions set forth in the preceding proviso are satisfied, the successor to Holdings will succeed to, and be substituted
for, Holdings under this Agreement, (2) it is understood and agreed that Holdings may convert into another form of entity so long as
such conversion does not adversely affect the value of the Collateral pledged by Holdings, taken as a whole and (3) notwithstanding anything
to the contrary in this Section 6.14, nothing herein shall preclude Holdings from consummating any Permitted Reorganization or
IPO Reorganization Transaction.
Section
6.15. Financial Covenant.
(a) First
Lien Leverage Ratio. On the last day of any Test Period ending on or after the last day of the first full Fiscal Quarter ending after
the Closing Date on which the Revolving Facility Test Condition is then satisfied, the Borrower shall not permit the First Lien Leverage
Ratio to be greater than 6.25:1.00, stepping-down to a First Lien Leverage Ratio of 6.00:1.00 for the Fiscal Quarter ended on or about
September 30, 2020 and thereafter.
(b) Financial
Cure. Notwithstanding anything to the contrary in this Agreement (including Article 7), if the Borrower reasonably expects
to fail (or has failed) to comply with Section 6.15(a) above for any Fiscal Quarter, the Borrower shall have the right (the “Cure
Right”) (at any time during such Fiscal Quarter or thereafter until the date that is 10 Business Days after the date on which
financial statements for such Fiscal Quarter are required to be delivered pursuant to Section 5.01(a) or (b), as applicable)
to issue equity (which shall be common equity, Qualified Capital Stock or other equity (such other equity to be on terms reasonably acceptable
to the Administrative Agent)) for Cash or otherwise receive Cash contributions in respect of Qualified Capital Stock (the “Cure
Amount”), and thereupon the Borrower’s compliance with Section 6.15(a) shall be recalculated giving effect to
the following pro forma adjustment: Consolidated Adjusted EBITDA shall be increased (notwithstanding the absence of a related addback
in the definition of “Consolidated Adjusted EBITDA”), solely for the purpose of determining compliance with Section 6.15(a)
as of the end of such Fiscal Quarter and for applicable subsequent periods that include such Fiscal Quarter, by an amount equal to
the Cure Amount. If, after giving effect to the foregoing recalculation (but not, for the avoidance of doubt, except as expressly set
forth below, taking into account any immediate repayment of Indebtedness in connection therewith), the requirements of Section 6.15(a)
would be satisfied, then the requirements of Section 6.15(a) shall be deemed satisfied as of the end of the relevant Fiscal
Quarter with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default
of Section 6.15(a) that had occurred (or would have occurred) shall be deemed cured for the purposes of this Agreement. Notwithstanding
anything herein to the contrary, (i) in each four consecutive Fiscal Quarter period there shall be at least two Fiscal Quarters (which
may, but are not required to be, consecutive) in which the Cure Right is not exercised, (ii) during the term of this Agreement, the Cure
Right shall not be exercised more than five times, (iii) the Cure Amount shall be no greater than the amount required for the purpose
of complying with Section 6.15(a) (or to be in pro forma compliance with any financial covenant with respect to any other Indebtedness
that is being cured), (iv) upon the Administrative Agent’s receipt of a written notice from the Borrower that the Borrower
intends to exercise the Cure Right (a “Notice of Intent to Cure”), until the 10th Business Day following the date
on which financial statements for the Fiscal Quarter to which such Notice of Intent to Cure relates are required to be delivered pursuant
to Section 5.01(a) or (b), as applicable, neither the Administrative Agent (nor any sub-agent therefor) nor any Lender
shall exercise any right to accelerate the Loans or terminate the Revolving Credit Commitments or any Additional Commitments, and none
of the Administrative Agent (nor any sub-agent therefor) nor any Lender or Secured Party shall exercise any right to foreclose on or
take possession of the Collateral or any other right or remedy under the Loan Documents, in each case solely on the basis of the relevant
Event of Default under Section 6.15(a), (v) during any Test Period in which any Cure Amount is included in the calculation of
Consolidated Adjusted EBITDA as a result of any exercise of the Cure Right, such Cure Amount shall be (A) counted solely as an increase
to Consolidated Adjusted EBITDA (and not as a reduction of Indebtedness (by netting or otherwise), except to the extent that the proceeds
of such Cure Amount are actually applied to repay Indebtedness, such reduction may be credited in any subsequent Fiscal Quarter) for
the purpose of determining compliance with Section 6.15(a) and (B) disregarded for all other purposes, including the purpose
of determining whether any financial ratio-based condition has been satisfied, the Applicable Rate or the Commitment Fee Rate or the
availability of any carve-out set forth in Article 6 of this Agreement and (vi) no Revolving Lender or Issuing Bank shall be required
to make any Revolving Loan or issue any Letter of Credit hereunder if an Event of Default under Section 6.15(a) exists during
the 10 Business Day period during which the Borrower may exercise a Cure Right above unless and until the Cure Amount is actually received.
ARTICLE
7 EVENTS OF DEFAULT
Section
7.01. Events of Default. If any of the following events (each, an “Event of Default”) shall occur:
(a) Failure
To Make Payments When Due. Failure by the Borrower to pay (i) any installment of principal of any Loan when due, whether at stated
maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on any Loan,
any fee or other non-principal amount due hereunder within five Business Days after the date due.
(b) Default
in Other Agreements. (i) Failure by the Borrower or any of its Restricted Subsidiaries to pay when due any principal of or interest
on or any other amount payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in clause (a)
above) with an aggregate outstanding principal amount exceeding the Threshold Amount, in each case beyond the applicable notice period
and grace period, if any, provided therefor; or (ii) breach or default by the Borrower or any of its Restricted Subsidiaries with respect
to any other term of (A) one or more items of Indebtedness with an aggregate outstanding principal amount exceeding the Threshold Amount
or (B) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness (other than, for the avoidance
of doubt, with respect to Indebtedness consisting of Hedging Obligations, termination events or equivalent events pursuant to the terms
of the relevant Hedge Agreement which are not the result of any default thereunder by any Loan Party or any Restricted Subsidiary), in
each case beyond the applicable notice period and grace period, if any, provided therefor, if the effect of such breach or default is
to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause,
such Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; provided that clause (ii) of this paragraph (b) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness if such sale or
transfer is permitted hereunder; provided, further, that (x) with respect to any breach or default referred to in clause
(ii) above with respect to a financial covenant in any such Indebtedness, such breach or default shall only constitute an Event of
Default hereunder if such breach or default has resulted in the acceleration of such Indebtedness and the termination of commitments
thereunder and (y) any failure described under clauses (i) or (ii) above is unremedied and is not waived by the holders
of such Indebtedness prior to any termination of the Commitments or acceleration of the Loans pursuant to this Article 7; or
(c) Breach
of Certain Covenants. Failure of any Loan Party, as required by the relevant provision, to perform or comply with any term or condition
contained in Section 5.01(e)(i) (provided that subsequent delivery of a notice of Default or Event of Default shall cure
such Event of Default for failure to provide notice, unless a Responsible Officer of Holdings or the Borrower had actual knowledge that
such Default or Event of Default had occurred and was continuing and should have reasonably known in the course of his or her duties
that failure to provide such notice would constitute an Event of Default), Section 5.02 (as it applies to the preservation of
the existence of the Borrower), or Article 6; provided that, notwithstanding this clause (c), no breach or default
by any Loan Party under Section 6.15(a) will constitute an Event of Default with respect to any Term Loans unless and until the
Required Revolving Lenders have accelerated the Revolving Loans and any Additional Revolving Loans, terminated the commitments under
the Revolving Facility and demanded repayment of, or otherwise accelerated, the Indebtedness or other obligations under the Revolving
Facility and have not rescinded such demand or acceleration (the “Financial Covenant Standstill”); it being understood
and agreed that any breach of Section 6.15(a) (or any other financial covenant) is subject to cure as provided in Section 6.15(b),
and no Event of Default shall arise under Section 6.15(a) until the 10th Business Day after the day on which financial statements
are required to be delivered for the relevant Fiscal Quarter under Section 5.01(a) or (b), as applicable, and then only
to the extent the Cure Amount has not been received on or prior to such date; or
(d) Breach
of Representations, Etc. Any representation, warranty or certification made or deemed made by any Loan Party in any Loan Document
or in any certificate required to be delivered in connection herewith or therewith (including, for the avoidance of doubt, any Perfection
Certificate) (limited, on the Closing Date, solely to the Specified Representations and representations referred to in any officer’s
certificate delivered on the Closing Date that specifically refers to this Section 7.01(d)), shall be untrue in any material respect
as of the date made or deemed made and such untrue representation, warranty or certification shall remain untrue for a period of 30 days
after notice from the Administrative Agent to the Borrower (which notice shall only be given at the direction of the Required Lenders);
or
(e) Other
Defaults Under Loan Documents. Default by any Loan Party in the performance of or compliance with any term contained herein or in
any of the other Loan Documents, other than any such term referred to in any other Section of this Article 7, which default has
not been remedied or waived within 30 days after receipt by the Borrower of written notice thereof from the Administrative Agent; or
(f) Involuntary
Bankruptcy; Appointment of Receiver, Etc. (i) The entry by a court of competent jurisdiction of a decree or order for relief in respect
of Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) (any such Person, a “Specified
Person”) in an involuntary case under any Debtor Relief Law now or hereafter in effect, which decree or order is not stayed;
or any other similar relief shall be granted under any applicable federal, state or local law, which relief is not stayed; or (ii) the
commencement of an involuntary case against any Specified Person under any Debtor Relief Law; the entry by a court having jurisdiction
in the premises of a decree or order for the appointment of a receiver, receiver and manager, (preliminary) insolvency receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over any Specified Person, or over all or a substantial part
of its property; or the involuntary appointment of an interim receiver, trustee or other custodian of any Specified Person for all or
a substantial part of its property, which remains, in any case under this clause (f), undismissed, unvacated, unbonded or unstayed
pending appeal for 60 consecutive days; or
(g) Voluntary
Bankruptcy; Appointment of Receiver, Etc. (i) The entry against any Specified Person of an order for relief, the commencement by
any Specified Person of a voluntary case under any Debtor Relief Law, or the consent by any Specified Person to the entry of an order
for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Law, or the
consent by any Specified Person to the appointment of or taking possession by a receiver, receiver and manager, trustee or other custodian
for all or a substantial part of its property; (ii) the making by any Specified Person of a general assignment for the benefit of creditors;
or (iii) the admission by any Specified Person in writing of their inability to pay their respective debts as such debts become due;
or
(h) Judgments
and Attachments. The entry or filing of one or more final money judgments, writs or warrants of attachment or similar process against
the Borrower or any of its Restricted Subsidiaries or any of their respective assets involving in the aggregate at any time an amount
in excess of the Threshold Amount (in either case to the extent not adequately covered by indemnity from a third party as to which the
indemnifying party has been notified and not denied its indemnification obligations, self-insurance (if applicable) or insurance as to
which the relevant third party insurance company has been notified and not denied coverage), which judgment, writ, warrant or similar
process remains unpaid, undischarged, unvacated, unbonded or unstayed pending appeal for a period of 60 consecutive days; or
(i) Employee
Benefit Plans. The occurrence of one or more ERISA Events, which individually or in the aggregate result in liability of the Borrower
or any of its Restricted Subsidiaries in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect;
or
(j)
Change of Control. The occurrence of a Change of Control; or
(k) Guaranties,
Collateral Documents and Other Loan Documents. At any time after the execution and delivery thereof (i) any material Loan Guaranty
for any reason ceasing to be in full force and effect (other than in accordance with its terms or as a result of the occurrence of the
Termination Date) or being declared by a court of competent jurisdiction to be null and void or the repudiation in writing by any Loan
Party of its obligations thereunder (other than as a result of the discharge of such Loan Party in accordance with the terms thereof),
(ii) this Agreement or any material Collateral Document or any Lien on a material portion of the Collateral ceasing to be in full force
and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof, the occurrence of the Termination
Date or any other termination of such Collateral Document in accordance with the terms thereof) or being declared by a court of competent
jurisdiction to be null and void or (iii) other than in any bona fide, good faith dispute as to the scope of Collateral or whether any
Lien has been, or is required to be released, the contesting by any Loan Party of the validity or enforceability of any material provision
of any Loan Document (or any Lien on a material portion of the Collateral purported to be created by the Collateral Documents) in writing
or denial by any Loan Party in writing that it has any further liability (other than by reason of the occurrence of the Termination Date
or any other termination of any other Loan Document in accordance with the terms thereof), including with respect to future advances
by the Lenders, under any Loan Document to which it is a party; it being understood and agreed that the failure of the Administrative
Agent to maintain possession of any Collateral actually delivered to it or file any UCC (or equivalent) continuation statement shall
not result in an Event of Default under this clause (k); or
(l) Subordination.
The Obligations ceasing or the assertion in writing by any Loan Party that the Obligations cease to constitute senior indebtedness under
the subordination provisions of any document or instrument evidencing any permitted Junior Indebtedness in excess of the Threshold Amount
(in each case, to the extent required by such subordination provision) or any such subordination provision being invalidated by a court
of competent jurisdiction or otherwise ceasing, for any reason, to be valid, binding and enforceable obligations of the parties thereto;
then, and in every such Event of Default (other than (x) an Event of Default with respect to the Borrower described in clause (f)
or (g) of this Article or (y) any Event of Default arising under Section 6.15(a) ), and at any time thereafter during
the continuance of such Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to
the Borrower, take any of the following actions, at the same or different times: (i) terminate the Revolving Credit Commitments, and
thereupon such Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations
of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower and (iii) require that the Borrower deposit in the LC Collateral Account an
additional amount in Cash as reasonably requested by the Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding
LC Exposure (minus the amount then on deposit in the LC Collateral Account); provided that (A) upon the occurrence of an
Event of Default with respect to the Borrower described in clause (f) or (g) of this Article, any such Commitments shall
automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower, and the obligation of the Borrower to Cash collateralize the outstanding
Letters of Credit as aforesaid shall automatically become effective, in each case without further action of the Administrative Agent
or any Lender and (B) during the continuance of any Event of Default arising under Section 6.15(a), after giving effect to the
proviso to Section 7.01(c), (X) solely upon the request of the Required Revolving Lenders (but not the Required Lenders or any
other Lender or group of Lenders), the Administrative Agent shall, by notice to the Borrower, (1) terminate the Revolving Credit Commitments,
and thereupon such Revolving Credit Commitments shall terminate immediately, (2) declare the Revolving Loans then outstanding to
be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Revolving Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder in respect of the Revolving Loans, shall become due and
payable immediately, without presentment, demand, protest or other notice in respect thereof of any kind, all of which are hereby waived
by the Borrower and (3) require that the Borrower deposit in the LC Collateral Account an additional amount in Cash as reasonably requested
by the Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC Exposure (minus the amount then
on deposit in the LC Collateral Account) and (Y) subject to the Financial Covenant Standstill, the Administrative Agent may, and
at the request of the Required Lenders shall, by notice to the Borrower, declare the Loans then outstanding to be due and payable in
whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower. Upon the occurrence and during the continuance of an Event of Default,
subject to the Intercreditor Agreement and any other applicable intercreditor agreement, the Administrative Agent may, and at the request
of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law
or equity, including all remedies provided under the UCC.
ARTICLE
8 THE ADMINISTRATIVE AGENT
Each
of the Lenders and the Issuing Banks, on behalf of itself and its applicable Affiliates and in their respective capacities as such and
as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints
JPM (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions
on its behalf, including execution of the other Loan Documents or any other documents with respect to the rights of the Secured Parties
and the Collateral as contemplated by this Agreement and the Loan Documents, and to exercise such powers as are delegated to the Administrative
Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
Each
of the Secured Parties hereby irrevocably appoints and authorizes the Administrative Agent (as collateral agent) to act as the agent
of (and to hold any security interest created by the Loan Documents for and on behalf of or on trust for) such Secured Party for purposes
of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together
with such powers and discretion as are reasonably incidental thereto. The Lenders agree that any such actions by the Administrative Agent
shall bind such Secured Party.
Any
Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include
each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business
with any Loan Party or any subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding
any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan
Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information
to them.
The
Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting
the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative
Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers
that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed
by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under
the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to
take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary
to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings,
the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for
any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful
misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth
herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document,
(ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the
performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any
Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency
of the Collateral, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any
Loan Party or any Affiliate thereof, provided, further that, the foregoing paragraph is solely for the benefit of the Administrative
Agent and not any Lender.
Each
Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or
under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have
under applicable law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code
or other similar Dispositions of Collateral. Notwithstanding the foregoing, however, except as otherwise expressly limited herein, a
Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that
would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of a proof of claim in a case
under the Bankruptcy Code.
Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured
Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan
Guaranty; it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative
Agent on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents
may be exercised solely by the Administrative Agent and (ii) in the event of a foreclosure by the Administrative Agent on any of the
Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy
Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply
all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent
at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral
at any such Disposition.
No
holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection
with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement.
Each
of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or
by entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes
and shall be deemed to authorize) the Administrative Agent, on behalf of all Secured Parties, to take any of the following actions upon
the instruction of the Required Lenders:
(a) consent
to the Disposition of all or any portion of the Collateral free and clear of the Liens securing the Secured Obligations in connection
with any Disposition pursuant to the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including
Section 363 thereof;
(b) credit
bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly or
through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to the
applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including under Section 363 thereof;
(c) credit
bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly or
through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to the
applicable provisions of the UCC (or other applicable Debtor Relief Law), including pursuant to Sections 9-610 or 9-620 of the UCC;
(d) credit
bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly or
through one or more acquisition vehicles), in connection with any foreclosure or other Disposition conducted in accordance with applicable
law following the occurrence of an Event of Default, including by power of sale, judicial action or otherwise; and/or
(e) estimate
the amount of any contingent or unliquidated Secured Obligations of such Lender or other Secured Party;
it
being understood that no Lender shall be required to fund any new amount in connection with any purchase of all or any portion of the
Collateral by the Administrative Agent pursuant to the foregoing clauses (b), (c) or (d) without its prior written
consent.
Each
Secured Party agrees that the Administrative Agent is under no obligation to credit bid any part of the Secured Obligations or to purchase
or retain or acquire any portion of the Collateral; provided that, in connection with any credit bid or purchase described under
clauses (b), (c) or (d) of the preceding paragraph, the Secured Obligations owed to all of the Secured Parties (other
than with respect to contingent or unliquidated liabilities as set forth in the next succeeding paragraph) may be, and shall be, credit
bid by the Administrative Agent on a ratable basis. For the avoidance of doubt, nothing in this Article 8 shall limit any rights of Holdings
or its Subsidiaries under Section 363(k) of the Bankruptcy Code (or the corresponding provisions of any other applicable Debtor Relief
Law).
With
respect to each contingent or unliquidated claim that is a Secured Obligation, the Administrative Agent is hereby authorized by the Secured
Parties, but is not required, to estimate the amount thereof for purposes of any credit bid or purchase described in the second preceding
paragraph so long as the estimation of the amount or liquidation of such claim would not unduly delay the ability of the Administrative
Agent to credit bid the Secured Obligations or purchase the Collateral in the relevant Disposition. In the event that the Administrative
Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot
be estimated without unduly delaying the ability of the Administrative Agent to consummate any credit bid or purchase in accordance with
the second preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit
bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid.
Each
Secured Party whose Secured Obligations are credit bid under clauses (b), (c) or (d) of the third preceding paragraph
shall be entitled to receive interests in the Collateral or any other asset acquired in connection with such credit bid (or in the Capital
Stock of the acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in accordance with the
percentage obtained by dividing (x) the amount of the Secured Obligations of such Secured Party that were credit bid in such credit bid
or other Disposition by (y) the aggregate amount of all Secured Obligations that were credit bid in such credit bid or other Disposition.
In
addition, in case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan
Party, each Secured Party agrees that the Administrative Agent (irrespective of whether the principal of any Loan or LC Exposure is then
due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans or LC Exposure and
all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and
all other amounts to the extent due to the Lenders and the Administrative Agent under Sections 2.12 and 9.03) allowed in
such judicial proceeding; and
(ii) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.
Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and each Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative
Agent consents to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and
any other amount due to the Administrative Agent under Sections 2.12 and 9.03.
Nothing
contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or any Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or any Issuing
Bank in any such proceeding.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank,
the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received
notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
The
Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents
appointed by it. The Administrative Agent and any such sub-agent may perform any and all of their respective duties and exercise their
respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent and shall apply to their respective activities
in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent.
The
Administrative Agent may resign at any time by giving thirty days’ written notice to the Lenders, the Issuing Banks and the Borrower.
If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower
may, upon thirty days’ notice, remove the Administrative Agent. Upon receipt of any such notice of resignation or delivery of any
such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld
or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company or other Person reasonably
acceptable to the Borrower with offices in the U.S.; provided that during the existence and continuation of an Event of Default
under Section 7.01(a) or, with respect to the Borrower, Section 7.01(f) or (g), no consent of the Borrower shall
be required. If no successor shall have been appointed as provided above and accepted such appointment within thirty days after the retiring
Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of
a retirement, the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks,
appoint a successor Administrative Agent meeting the qualifications set forth above (including, for the avoidance of doubt, consent of
the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required Lenders, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies
the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal,
the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation
or removal shall nonetheless become effective in accordance with such notice and (i) the retiring or removed Administrative Agent shall
be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for perfection purposes, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed)
and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead
be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to
enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor
Administrative Agent, as provided for above in this Article 8. Upon the acceptance of its appointment as Administrative Agent
hereunder as a successor Administrative Agent, such successor Administrative Agent shall succeed to and become vested with all the rights,
powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the
retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations
hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative
Agent. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 9.03
shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related
Parties in respect of any action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative Agent
(including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding
anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative
Agent.
Any
resignation or removal of the Administrative Agent hereunder shall also constitute its resignation as Issuing Bank and the Swingline
Lender effective as of the date of effectiveness of its resignation or removal as Administrative Agent as provided above; it being understood
that in the event of any such resignation, any Letter of Credit then outstanding shall remain outstanding (irrespective of whether any
amounts have been drawn at such time). In the event of any such resignation as an Issuing Bank or the Swingline Lender, the Borrower
shall be entitled to appoint any Revolving Lender that is willing to accept such appointment as successor Issuing Bank or Swingline Lender
hereunder. Upon the acceptance of any appointment as Issuing Bank or Swingline Lender hereunder by a successor Issuing Bank or Swingline
Lender, as applicable, such successor Issuing Bank or Swingline Lender, as applicable, shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the resigning Issuing Bank or Swingline Lender, as applicable, and the resigning Issuing
Bank and Swingline Lender, as applicable, shall be discharged from its duties and obligations in such capacity hereunder. In the event
the Swingline Lender resigns, the Borrower shall promptly repay all outstanding Swingline Loans on the effective date of such resignation
(which repayment may be effectuated with the proceeds of a Borrowing).
Each
Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender or any of their respective Related Parties and based on such documents
and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under
or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Except
for notices, reports and other documents expressly required to be furnished to the Lenders and the Issuing Banks by the Administrative
Agent herein, the Administrative Agent shall not have any duty or responsibility to provide any Lender or any Issuing Bank with any credit
or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into the possession of the Administrative Agent or any of its
Related Parties.
Notwithstanding
anything to the contrary herein, the Arrangers shall not have any right, power, obligation, liability, responsibility or duty under this
Agreement, except in their respective capacities, as applicable, as the Administrative Agent, an Issuing Bank or a Lender hereunder.
Each
Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall:
(a) release
any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the occurrence of the Termination
Date, (ii) that is sold or to be sold or transferred as part of or in connection with any Disposition permitted under the Loan Documents
to a Person that is not a Loan Party, (iii) that does not constitute (or ceases to constitute) Collateral, (iv) if the property subject
to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Loan Guaranty otherwise in accordance
with the Loan Documents, (v) as required under clause (d) below or (vi) if approved, authorized or ratified in writing
by the Required Lenders (or such other number or percentage of Lenders as shall be necessary under the relevant circumstances as provided
in Section 9.02) in accordance with Section 9.02;
(b) without
limiting Section 9.22, release any Subsidiary Guarantor from its obligations under the Loan Guaranty (i) if such Person ceases
to be a Restricted Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions
or any event or other circumstance permitted hereunder); provided, that the release of any Subsidiary Guarantor from its obligations
under the Loan Guaranty if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition
thereof shall only be permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect
to such release and the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower
is deemed to have made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an
amount equal to the portion of the fair market value of the net assets of such Person attributable to the Borrower’s equity interest
therein as estimated by the Borrower in good faith and such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f))
at such time and/or (ii) upon the occurrence of the Termination Date;
(c) subordinate
any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property
that is permitted by Sections 6.02(c), 6.02(d), 6.02(e), 6.02(g), 6.02(l), 6.02(m), 6.02(n),
6.02(o), 6.02(q), 6.02(r), 6.02(u), 6.02(v)(ii),
6.02(x), 6.02(y), 6.02(z)(i), 6.02(bb), 6.02(cc), 6.02(dd), 6.02(ee), 6.02(ff),
6.02(gg), 6.02(hh), 6.02(ii),
6.02(ll), 6.02(tt) and 6.02(uu) (and any Refinancing Indebtedness in respect of any thereof to the extent such Refinancing
Indebtedness is permitted to be secured under Section 6.02(k)); and
(d) enter
into subordination, intercreditor, collateral trust and/or similar agreements (and any amendments thereof) with respect to Indebtedness
(including any Acceptable Intercreditor Agreement and any amendment thereto) that is (i) required or permitted to be subordinated hereunder
or pari passu with the Liens securing the Obligations and/or (ii) secured by Liens, and which Indebtedness contemplates an intercreditor,
subordination, collateral trust or similar agreement.
Upon
the request of the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority
to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under
the Loan Guaranty or its Lien on any Collateral pursuant to this Article 8. In each case as specified in this Article 8,
the Administrative Agent will (and each Lender and each Issuing Bank hereby authorizes the Administrative Agent to), at the Borrower’s
expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release
of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest
therein, or to release such Loan Party from its obligations under the Loan Guaranty, in each case in accordance with the terms of the
Loan Documents and this Article 8. The parties hereto acknowledge and agree that the Administrative Agent may rely conclusively
as to any of the matters described in this Section 9.02 and Section 9.22 (including as to its authority hereunder and thereunder)
on a certificate or similar instrument provided to it by any Loan Party without further inquiry or investigation, which certificate shall
be delivered to the Administrative Agent by the Loan Parties upon request.
The
Administrative Agent is authorized to enter into the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any other
intercreditor, subordination, collateral trust or similar agreement contemplated hereby with respect to any (a) Indebtedness (i) that
is (A) required or permitted to be subordinated hereunder or pari passu with the Liens securing the Obligations and/or (B) secured by
Liens and (ii) with respect to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor, subordination, collateral
trust or similar agreement (any such other intercreditor, subordination, collateral trust and/or similar agreement, an “Additional
Agreement”) and/or (b) Secured Hedging Obligations and/or Banking Services Obligations, whether or not constituting Indebtedness,
and each Secured Party acknowledges that the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any Additional
Agreement is binding upon them. Each Secured Party hereby (a) acknowledges that it has received a copy of the Intercreditor Agreement
and consents to the subordination of the Liens on the Collateral securing the Secured Obligations on the terms set forth in the Intercreditor
Agreement, (b) agrees that it will be bound by, and will not take any action contrary to, the provisions of the Intercreditor Agreement,
any other Acceptable Intercreditor Agreement or any Additional Agreement and (c) authorizes and instructs the Administrative Agent to
enter into the Intercreditor Agreement or any Additional Agreement (including any Acceptable Intercreditor Agreement) and to subject
the Liens on the Collateral securing the Secured Obligations to the provisions thereof. The foregoing provisions are intended as an inducement
to the Secured Parties to extend credit to the Borrower, and the Secured Parties are intended third-party beneficiaries of such provisions
and the provisions of the Intercreditor Agreement, any Acceptable Intercreditor Agreement and/or any other Additional Agreement.
To
the extent that the Administrative Agent (or any Affiliate thereof) is not reimbursed and indemnified by the Borrower in accordance with
the terms of this Agreement, the Lenders will reimburse and indemnify the Administrative Agent (and any Affiliate thereof) in proportion
to their respective Applicable Percentages (determined as if there were no Defaulting Lenders) for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent (or any Affiliate thereof) in performing its duties hereunder
or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided
that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
ARTICLE
9 MISCELLANEOUS
Section
9.01. Notices.
(a) Except
in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below),
all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by facsimile or email, as follows:
(i)
if to any Loan Party, to such Loan Party in the care of Holdings at:
Bowlmor
AMF Corp.
222
West 44th Street
New
York, New York 10036
Telephone:
+ 1 212 777-2622
Attention:
Brett I. Parker
Email:
with
a copy to (which shall not constitute notice to any Loan Party):
Atairos
Group, Inc.
620
Fifth Avenue, Sixth Floor
New
York, New York 10020
Telephone:
+1 646 690-5223
Attention:
Rachael A.Wagner
Email:
(ii)
if to the Administrative Agent, at:
JPMorgan
Chase Bank, N.A.
500
Stanton Christiana Rd.
NCC5
/ 1st Floor
Newark,
Delaware 19713
Attention:
Loan & Agency Services Group-Jonathan Martin
Telephone:
+1 302-634-1964
Fax:
+1 302 634-3301
Email:
with
a copy to:
JPMorgan
Chase Bank, N.A.
500
Stanton Christiana Rd.
NCC5
/ 1st Floor
Newark,
Delaware 19713
Attention:
Loan & Agency Services Group-William
Telephone:
+1 302 634-1964
Fax:
+1 302 634-3301
Email:
(iii) if
to any Lender, to it at its address, facsimile number or email address set forth in its Administrative Questionnaire.
All
such notices and other communications (A) sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof or three Business
Days after dispatch if sent by certified or registered mail, in each case, delivered, sent or mailed (properly addressed) to the relevant
party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance
with this Section 9.01 or (B) sent by facsimile shall be deemed to have been given when sent and when receipt has been confirmed
by telephone; provided that notices and other communications sent by telecopier shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient, such notices or other communications shall be deemed to have been
given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic
communications to the extent provided in clause (b) below shall be effective as provided in such clause (b).
(b) Notices
and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including e-mail and Internet
or Intranet websites) pursuant to procedures set forth herein or otherwise approved by the Administrative Agent. The Administrative Agent
or the Borrower (on behalf of any Loan Party) may, in its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures set forth herein or otherwise approved by it; provided that approval of such
procedures may be limited to particular notices or communications. All such notices and other communications (i) sent to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return
receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if not given during
the normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business
on the next Business Day for the recipient, and (ii) posted to an Internet or Intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described in the foregoing clause (b)(i) of notification that such
notice or communication is available and identifying the website address therefor.
(c) Any
party hereto may change its address or facsimile number or other notice information hereunder by notice to the other parties hereto;
it being understood and agreed that the Borrower may provide any such notice to the Administrative Agent as recipient on behalf of itself,
the Swingline Lender, each Issuing Bank and each Lender.
Section
9.02. Waivers; Amendments.
(a) No
failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under any other
Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision
of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same is permitted
by this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is
given. Without limiting the generality of the foregoing, to the extent permitted by law, the making of a Loan or the issuance of any
Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent,
any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Subject
to clauses (A), (B), (C), (D) and (E) of this Section 9.02(b) and Sections 9.02(c) and (d)
below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified, except
(i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders
(or the Administrative Agent with the consent of the Required Lenders) or (ii) in the case of any other Loan Document (other than any
waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the terms of such other Loan Document),
pursuant to an agreement or agreements in writing entered into by the Administrative Agent and each Loan Party that is party thereto,
with the consent of the Required Lenders; provided that, notwithstanding the foregoing:
(A) except
with the consent of each Lender directly and adversely affected thereby (but without requiring the consent of the Required Lenders),
no such agreement shall;
(1) increase
the Commitment or Additional Commitment of such Lender (other than with respect to any Incremental Facility pursuant to Section 2.22
in respect of which such Lender has agreed to be an Additional Lender); it being understood that no amendment, modification or waiver
of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment
or mandatory reduction of the Commitments or Additional Commitments shall constitute an increase of any Commitment or Additional Commitment
of such Lender;
(2) reduce
or forgive the principal amount of any Loan owed to such Lender or any amount due to such Lender on any Loan Installment Date (other
than, in each case, any waiver of, or consent to or departure from, any Default or Event of Default or any mandatory prepayment; it being
understood that no change in (i) the definition of “First Lien Leverage Ratio” or any other ratio used in the calculation
of any mandatory prepayment (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction or forgiveness
of any principal amount due hereunder);
(3)
(x) extend the scheduled final maturity of any Loan or (y) postpone any Loan Installment Date, any Interest Payment Date or the
date of any scheduled payment of any fee, in each case payable to such Lender hereunder (in each case, other than any extension for administrative
reasons agreed by the Administrative Agent) (other than, in each case, any waiver of, or consent or departure from, any Default or Event
of Default or any mandatory prepayment; it being understood that no change in the definition of “First Lien Leverage Ratio”
or any other ratio used in the calculation of any mandatory prepayment (including any component definition thereof) shall constitute
such an extension or postponement);
(4) reduce
the rate of interest (other than to waive any Default or Event of Default or obligation of the Borrower to pay interest at the default
rate of interest under Section 2.13(d), which shall only require the consent of the Required Lenders) or the amount of any fee
owed to such Lender; it being understood that no change in (i) the definition of “First Lien Leverage Ratio” or any other
ratio used in the calculation of the Applicable Rate or the Commitment Fee Rate, or in the calculation of any other interest or fee due
hereunder (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction in any rate of interest
or fee hereunder;
(5) extend
the expiry date of such Lender’s Commitment or Additional Commitment; it being understood that no amendment, modification or waiver
of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment
or mandatory reduction of the Commitments or Additional Commitments shall constitute an extension of any Commitment or Additional Commitment
of any Lender; and
(6) waive,
amend or modify the provisions of Section 2.18(b) of this Agreement in a manner that would by its terms alter the pro rata sharing
of payments required thereby (except in connection with any transaction permitted under Sections 2.22, 2.23, 9.02(c) and/or 9.05(g)
or as otherwise provided in this Section 9.02); and
(B)
no such agreement shall:
(1) change
(x) any of the provisions of Section 9.02(a) or Section 9.02(b) or the definition of “Required Lenders” to
reduce any voting percentage required to waive, amend or modify any right thereunder or make any determination or grant any consent thereunder,
without the prior written consent of each Lender or (y) the definition of “Required Revolving Lenders” without the prior
written consent of each Revolving Lender (it being understood that neither the consent of the Required Lenders nor the consent of any
other Lender shall be required in connection with any change to the definition of “Required Revolving Lenders”);
(2) release
all or substantially all of the Collateral from the Lien granted pursuant to the Loan Documents (except as otherwise permitted herein
or in the other Loan Documents, including pursuant to Article 8 or Section 9.22 hereof or pursuant to any Acceptable Intercreditor
Agreement), without the prior written consent of each Lender; or
(3) release
all or substantially all of the value of the Guarantees under the Loan Guaranty (except as otherwise permitted herein or in the other
Loan Documents, including pursuant to Article 8 or Section 9.22 hereof), without the prior written consent of each Lender;
(C) solely
with the consent of the Required Revolving Lenders (but without the consent of the Required Lenders or any other Lender), any such agreement
may (x) waive, amend or modify Section 6.15 (or the definition of “First Lien Leverage Ratio” or any component definition
thereof, in each case, as any such definition is used solely for purposes of Section 6.15) or waive any Default or Event of Default
in respect of Section 6.15 (other than as permitted under clause (y)), (y) waive, amend or modify any condition precedent set
forth in Section 4.02 hereof as it pertains to any Revolving Loan and/or Additional Revolving Loan and/or (z) waive any Default
or Event of Default that results from any representation made or deemed made by any Loan Party in any Loan Document in connection with
any Credit Extension under the Revolving Facility being untrue in any material respect as of the date made or deemed made;
(D) solely with
the consent of the relevant Issuing Bank and, in the case of clause (x), the Administrative Agent, any such agreement may (x)
increase or (y) decrease the Letter of Credit Sublimit; and
(E) solely
with the consent of the Borrower and applicable Class or Classes of Revolving Lenders and/or, if applicable, Issuing Banks, subject to
the provisions of Section 1.10, this Agreement may be amended or otherwise modified to permit the availability of Revolving Loans
and/or Letters of Credit denominated in a currency other than Dollars and to make technical changes to this Agreement and any other Loan
Document to accommodate the inclusion of any such new currency;
provided, further,
that no such agreement shall (x) amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank
or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, such Issuing Bank or the Swingline Lender,
as the case may be and (y) amend or modify the provisions of Section 2.05 (as it applies to any Issuing Bank) or any letter of
credit application or any bilateral agreement between the Borrower and any Issuing Bank regarding the respective rights and obligations
between the Borrower and such Issuing Bank in connection with the issuance (or deemed issuance) of Letters of Credit hereunder, without
the prior written consent of, with respect to Section 2.05, the Administrative Agent, the Borrower and such Issuing Bank, or otherwise,
the Borrower and such Issuing Bank . The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into
pursuant to Section 9.05, Commitment reductions or terminations pursuant to Section 2.09, incurrences of Additional Commitments
or Additional Loans pursuant to Sections 2.22, 2.23 or 9.02(c) and reductions or terminations of any such Additional
Commitments or Additional Loans. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve
or disapprove any amendment, waiver or consent hereunder, except that the Commitment and any Additional Commitment of any Defaulting
Lender may not be increased without the consent of such Defaulting Lender (it being understood that any Commitment, Additional Commitment
or Loan held or deemed held by any Defaulting Lender shall be excluded from any vote hereunder that requires the consent of any Lender,
except as expressly provided in Section 2.21(b)). Notwithstanding the foregoing, but without limiting the provisions of Section
2.22(g), this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative
Agent and the Borrower (i) to add one or more additional credit facilities to this Agreement and to permit any extension of credit from
time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the relevant benefits of
this Agreement and the other Loan Documents and (ii) to include appropriately the Lenders holding such credit facilities in any determination
of the Required Lenders on substantially the same basis as the Lenders prior to such inclusion.
(c)
Notwithstanding the foregoing, this Agreement may be amended:
(i) with
the written consent of the Borrower and the Lenders providing the relevant Replacement Term Loans to permit the refinancing or replacement
of all or any portion of the outstanding Initial Term Loans or any then-existing Additional Term Loans under any applicable Class (any
such loans being refinanced or replaced, the “Replaced Term Loans”) with one or more replacement term loans hereunder
(“Replacement Term Loans”) pursuant to a Refinancing Amendment; provided that
(A) the aggregate
principal amount of any Replacement Term Loans shall not exceed the aggregate principal amount of the Replaced Term Loans (plus
(1) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any such additional amounts are secured,
the related Liens are permitted under Section 6.02 and plus (2) the amount of accrued interest, penalties and premium (including
any tender premium) thereon, any committed but undrawn amount and underwriting discounts, fees (including upfront fees, original issue
discount or initial yield payments), commissions and expenses associated therewith),
(B) any
Replacement Term Loans (other than customary bridge loans with a maturity date of not longer than one year; provided that any loans,
notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements
of this clause (B)) must have a final maturity date that is equal to or later than the final maturity date of, and have a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Replaced Term Loans at the time of the
relevant refinancing, provided, that the foregoing limitation shall not apply to Replacement Term Loans having an aggregate principal
amount outstanding not exceeding $20,000,000 (as selected by the Borrower),
(C) any
Replacement Term Loans may be pari passu or junior in right of payment and pari passu (without regard to the control of
remedies) or junior with respect to the Collateral with the remaining portion of the Initial Term Loans or Additional Term Loans (provided
that if pari passu or junior as to payment or Collateral, such Replacement Term Loans shall be subject to an Acceptable Intercreditor
Agreement and may be, at the option of the Borrower, documented in a separate agreement or agreements), or be unsecured,
(D) if
any Replacement Term Loans are secured, such Replacement Term Loans may not be secured by any assets other than the Collateral,
(E) if
any Replacement Term Loans are guaranteed, such Replacement Term Loans may not be guaranteed by any Person other than one or more Loan
Parties,
(F) any
Replacement Term Loans that are pari passu with the Initial Term Loans in right of payment and security may participate (A) in
any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans as
set forth in Section 2.11(b)(vi),
(G) any
Replacement Term Loans shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F), optional
prepayment and redemption terms and, subject to preceding clause (B), an amortization schedule, as the Borrower and the lenders
providing such Replacement Term Loans may agree,
(H) [reserved],
(I) the
covenants and events of default of any Replacement Term Loans (excluding pricing, interest, fees, rate floors, premiums, optional
prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be (i)
substantially identical to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders
providing such Replacement Term Loans than those applicable to the Replaced Term Loans (other than covenants or other provisions
applicable only to periods after the latest Maturity Date of such Replaced Term Loans (in each case, as of the date of incurrence of
such Replacement Term Loans)), (ii) then-current market terms (as determined by the Borrower in good faith at the time of incurrence
or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (iii) reasonably
acceptable to the Administrative Agent (it being agreed that covenants and events of default of any Replacement Term Loans that are
more favorable to the lenders or the agent of such Replacement Term Loans than those contained in the Loan Documents and are then
conformed (or added) to the Loan Documents pursuant to the applicable Refinancing Amendment shall thereafter be deemed satisfactory
to the Administrative Agent), and
(ii) with
the written consent of the Borrower and the Lenders providing the relevant Replacement Revolving Facility to permit the refinancing or
replacement of all or any portion of any Revolving Credit Commitment or any Additional Revolving Credit Commitment under the applicable
Class (any such Revolving Credit Commitment or Additional Revolving Credit Commitment being refinanced or replaced, a “Replaced
Revolving Facility”) with a replacement revolving facility hereunder (a “Replacement Revolving Facility”)
pursuant to a Refinancing Amendment; provided that:
(A) the
aggregate principal amount of any Replacement Revolving Facility shall not exceed the aggregate principal amount of the Replaced Revolving
Facility (plus (x) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any such additional
amounts are secured, the related Liens are permitted under Section 6.02 and plus (y) the amount of accrued interest, penalties
and premium thereon, any committed but undrawn amounts and underwriting discounts, fees (including upfront fees and original issue discount),
commissions and expenses associated therewith),
(B) no
Replacement Revolving Facility (other than customary bridge loans with a maturity date of not longer than one year; provided that
any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to
the requirements of this clause (B)) may have a final maturity date (or require commitment reductions) prior to the final maturity
date of the relevant Replaced Revolving Facility at the time of such refinancing,
(C) any
Replacement Revolving Facility may be pari passu or junior in right of payment and pari passu (without regard to the control
of remedies) or junior with respect to the Collateral with the remaining portion of the Revolving Credit Commitments or any Additional
Revolving Credit Commitments (provided that if pari passu or junior as to payment or Collateral, such Replacement Revolving
Facility shall be subject to an Acceptable Intercreditor Agreement and may be, at the option of the Borrower, documented in a separate
agreement or agreements), or be unsecured,
(D) if
any Replacement Revolving Facility is secured, it may not be secured by any assets other than the Collateral,
(E) if
any Replacement Revolving Facility is guaranteed, it may not be guaranteed by any Person other than one or more Loan Parties,
(F) any
Replacement Revolving Facility shall be subject to the “ratability” provisions applicable to Extended Revolving Credit Commitments
and Extended Revolving Loans set forth in the proviso to clause (i) of Section 2.23(a), mutatis mutandis, to the
same extent as if fully set forth in this Section 9.02(c)(ii),
(G) any
Replacement Revolving Facility shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F),
optional prepayment and redemption terms as the Borrower and the lenders providing such Replacement Revolving Facility may agree,
(H) [reserved],
(I) the
covenants and events of default of any Replacement Revolving Facility (excluding pricing, interest, fees, rate floors, premiums,
optional prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be
(i) substantially identical to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders
providing such Replacement Revolving Facility than those applicable to the Replaced Revolving Facility (other than covenants or
other provisions applicable only to periods after the latest Maturity Date of such Replaced Revolving Facility (in each case, as of
the date of incurrence of the relevant Replacement Revolving Facility), (ii) then-current market terms (as determined by the
Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the
applicable type of Indebtedness or (iii) reasonably acceptable to the Administrative Agent (it being agreed that covenants and
events of default of any Replacement Revolving Facility that are more favorable to the lenders or the agent of such Replacement
Revolving Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents pursuant to
the applicable Refinancing Amendment shall be deemed satisfactory to the Administrative Agent); provided, that if any
financial maintenance covenant is added to any such Replacement Revolving Facility and such financial maintenance covenant is more
favorable to the lenders under such Replacement Revolving Facility than the Financial Covenant, either (x) such financial
maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders
shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the
Borrower, any applicable “equity cure” provisions with respect to any such financial maintenance covenant); and
(J) the commitments
in respect of the Replaced Revolving Facility shall be terminated, and all loans outstanding thereunder and all fees thereunder and payable
in connection therewith shall be paid in full, in each case on the date such Replacement Revolving Facility is implemented;
provided,
further, that, in respect of each of clauses (i) and (ii) of this clause (c), (x) any Non-Debt Fund Affiliate
and Debt Fund Affiliate shall be permitted (without Administrative Agent consent) to provide any Replacement Term Loans, it being understood
that in connection with such Replacement Term Loans, the relevant Non-Debt Fund Affiliate or Debt Fund Affiliate, as applicable, shall
be subject to the restrictions applicable to such Persons under Section 9.05 as if such Replacement Term Loans were Term Loans
and (y) any Debt Fund Affiliate (but not any Non-Debt Fund Affiliate) may provide (without Administrative Agent consent) any Replacement
Revolving Facility.
Each party hereto hereby agrees that, upon the
effectiveness of any Refinancing Amendment, this Agreement shall be amended by the Borrower, the Administrative Agent and the lenders
providing the relevant Replacement Term Loans or the Replacement Revolving Facility, as applicable, to the extent (but only to the extent)
necessary to reflect the existence and terms of such Replacement Term Loans or Replacement Revolving Facility, as applicable, incurred
or implemented pursuant thereto (including any amendment necessary to treat the loans and commitments subject thereto as a separate “tranche”
and “Class” of Loans and/or commitments hereunder). It is understood that any Lender approached to provide all or a portion
of any Replacement Term Loans or any Replacement Revolving Facility may elect or decline, in its sole discretion, to provide such Replacement
Term Loans or Replacement Revolving Facility.
(d) Notwithstanding
anything to the contrary contained in this Section 9.02 or any other provision of this Agreement or any provision of any other
Loan Document, (i) the Borrower and the Administrative Agent may, without the input or consent of any Lender, amend, supplement and/or
waive any guaranty, collateral security agreement, pledge agreement and/or related document (if any) executed in connection with this
Agreement to (x) comply with any Requirements of Law or the advice of counsel or (y) cause any such guaranty, collateral security agreement,
pledge agreement or other document to be consistent with this Agreement and/or the relevant other Loan Documents, (ii) the Borrower and
the Administrative Agent may, without the input or consent of any other Lender (other than the relevant Lenders (including Additional
Lenders) providing Loans under such Sections), effect amendments to this Agreement and the other Loan Documents as may be necessary in
the reasonable opinion of the Borrower and the Administrative Agent to (A) effect the provisions of Sections 2.22, 2.23,
5.12, 5.14, 5.15, 5.16 or 9.02(c), or any other provision specifying that any waiver, amendment or
modification may be made with the consent or approval of the Administrative Agent and/or (B) add terms (including representations and
warranties, conditions, prepayments, covenants or events of default), in connection with the addition of any Loan or Commitment hereunder
or the incurrence of any Incremental Equivalent Debt, any Replacement Term Loans, any Replacement Revolving Facility, any Replacement
Debt and/or any Refinancing Indebtedness incurred in reliance on Section 6.01(p) with respect to Indebtedness originally incurred
in reliance on Section 6.01(z), that are favorable to the then-existing Lenders, as reasonably determined by the Administrative
Agent (it being understood that, where applicable, any such amendment may be effectuated as part of an Incremental Facility Amendment
and/or a Refinancing Amendment), (iii) if the Administrative Agent and the Borrower have jointly identified any ambiguity, mistake, defect,
inconsistency, obvious error or any error or omission of a technical or administrative nature or any necessary or desirable technical
change, in each case, in any provision of any Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend
such provision solely to address such matter as reasonably determined by them acting jointly without the input or consent of any Lender,
(iv) the Administrative Agent and the Borrower may amend, restate, amend and restate or otherwise modify the Intercreditor Agreement or
any Acceptable Intercreditor Agreement as provided therein or to give effect thereto or to carry out the purpose thereof without the input
or consent of any Lender and (v) any amendment, waiver or modification of any term or provision that directly affects Lenders under one
or more Classes and does not directly affect Lenders under one or more other Classes may be effected with the consent of Lenders owning
50% of the aggregate commitments or Loans of such directly affected Class in lieu of the consent of the Required Lenders.
(e) Notwithstanding
anything to the contrary contained in this Section 9.02, if the Revolving Lenders are to receive the benefit of any additional or
modified financial maintenance covenant as a result of the application of the provisions set forth in clause (g) of the definition
of “Incremental Equivalent Debt”, Section 2.22(a)(iv) or Section 9.02(c)(ii)(I), then the Administrative
Agent and the Borrower shall be permitted, without the need for consent by any other Person, to effectuate such provisions by
promptly entering into an amendment to this Agreement.
Section 9.03. Expenses;
Indemnity.
(a) Subject to Section 9.05(f),
the Borrower shall pay, upon presentation of a summary statement, together with any supporting documentation reasonably requested by
the Borrower, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their
respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees,
disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel
in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including
via the Internet or through a service such as Intralinks) of the Credit Facilities, the preparation, execution, delivery and administration
of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision
of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of
any such amendment, modification or waiver was requested by the Borrower) and (ii) all reasonable and documented out-of-pocket expenses
incurred by the Administrative Agent, the Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited,
in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of
one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction
to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection
with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of
Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a)
shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail,
together with backup documentation supporting the relevant reimbursement request.
(b) The Borrower shall
indemnify each Arranger, the Administrative Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and
all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and
documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably
necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an
actual or perceived conflict of interest after the affected Person notifies the Borrower of such conflict, (x) one additional
counsel to all similarly situated affected Indemnitees, taken as a whole, and (y) one additional local counsel in any relevant
material jurisdiction to all similarly situated affected Indemnitees, taken as a whole), incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any
agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or
the consummation of the Transactions or any other transactions contemplated hereby or thereby (except for any Taxes, which shall be
governed exclusively by Section 2.17), (ii) the use of the proceeds of the Loans or any Letter of Credit or (iii) any actual
or prospective claim, litigation, investigation or proceeding relating to any of the foregoing (including any matters arising under
Environmental Law), whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto
(and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their
respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any
such loss, claim, damage or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction
(or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful
misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any such settlement agreement
acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s or a Related Party of such
Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding
brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought
by or against the Administrative Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative Agent, as an
Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its subsidiaries. Each
Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b)
to such Indemnitee for any fees, expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance
with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after
receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of
reimbursement of costs and expenses, after receipt by the Borrower of an invoice, setting forth such costs and expenses in
reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b)
shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities arising from any
non-Tax claim.
(c) The
Borrower shall not be liable for any settlement or compromise of, or the consent to the ending of any judgment with respect to, any proceeding
effected without its consent (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is so settled,
compromised or consented with the Borrower’s written consent, or if there is a final judgment entered against any Indemnitee in
any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above.
The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld,
conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought
hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims
that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or
culpability.
Section 9.04. Waiver of
Claim. To the extent permitted by applicable law, no party to this Agreement shall assert, and each hereby waives, any claim against
any other party hereto or any Related Party thereof, on any theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or any Letter of Credit or the use of the proceeds thereof, except, in the case of any
claim by any Indemnitee against the Borrower, to the extent such damages would otherwise be subject to indemnification pursuant to the
terms of Section 9.03.
Section 9.05. Successors
and Assigns.
(a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted
assigns; provided that (i) except as provided under Section 6.07 and/or pursuant to any Permitted Reorganization, the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted
assignment or transfer not complying with the terms of this Section shall be null and void and, with respect to any attempted
assignment or transfer to any Disqualified Institution, subject to Section 9.05(f)). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and permitted
assigns, Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Arrangers, the Administrative Agent, the Issuing Banks and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement. Any Successor Borrower permitted pursuant to a transaction
referred to in clause (i) of the proviso above, shall thereafter be deemed to be and become the “Borrower” for all
purposes hereunder, and such initial Borrower shall be released from its Obligations in respect of this Agreement and the other Loan
Documents.
(b) (i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement (including all or a portion of any Loan or Additional Commitment added pursuant
to Sections 2.22, 2.23 or 9.02(c) at the time owing to it) with the prior written consent (not to be unreasonably
withheld or delayed) of:
(A) the Borrower;
provided that the Borrower shall be deemed to have consented to any assignment of Term Loans (other than any such assignment to
a Disqualified Institution or an affiliate thereof referred to in the last proviso of this clause (i) and identified to the Administrative
Agent as such) if it has not responded to a written request for its consent from the Administrative Agent within 15 Business Days after
receiving such written request; provided, further, that no consent of the Borrower shall be required (x) for any assignment
of Initial Term Loans, Additional Term Loans, Initial Term Loan Commitments or Additional Term Loan Commitments to another Lender, an
Affiliate of any Lender or an Approved Fund or (y) during the continuance of an Event of Default under Section 7.01(a) or Sections
7.01(f) or (g) (solely with respect to the Borrower);
(B) the
Administrative Agent; provided, that no consent of the Administrative Agent shall be required for any assignment to another Lender,
any Affiliate of a Lender or any Approved Fund, or for any assignment to the Borrower and/or its Affiliates, which otherwise complies
with the terms of this Section 9.05; and
(C) in the
case of the Revolving Facility or any Additional Revolving Facility, each Issuing Bank and the Swingline Lender; provided,
that notwithstanding the foregoing, the Borrower may withhold its consent to any assignment to any Person that is not expressly a
Disqualified Institution but is known by the Borrower to be an Affiliate of a Disqualified Institution without regard as to whether
such Person is identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name.
(ii) Assignments shall
be subject to the following additional conditions:
(A) except in
the case of any assignment to another Lender, any Affiliate of any Lender or any Approved Fund or any assignment of the entire
remaining amount of the relevant assigning Lender’s Loans or commitments of any Class, the principal amount of Loans or
commitments of the assigning Lender subject to the relevant assignment (determined as of the date on which the Assignment Agreement
with respect to such assignment is delivered to the Administrative Agent and determined on an aggregate basis in the event of
concurrent assignments to Related Funds or by Related Funds) shall not be less than (x) $1,000,000, in the case of Initial Term
Loans, Additional Term Loans, Initial Term Loan Commitments and Additional Term Loan Commitments and (y) $5,000,000 in the case of
Revolving Loans, Additional Revolving Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments unless the
Borrower and the Administrative Agent otherwise consent to a lesser amount, and in each case any assigned amount may exceed such
minimum amount in an integral multiple of $1,000,000 in excess thereof;
(B) any
partial assignment shall be made as an assignment of a proportionate part of all the relevant assigning Lender’s rights and obligations
under this Agreement;
(C) the
parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement via an electronic settlement
system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and shall pay to the
Administrative Agent a processing and recordation fee of $3,500; provided that (x) such fee may be waived or reduced in the sole
discretion of the Administrative Agent, (y) such fee shall not apply for any assignment to an Affiliated Lender or Debt Fund Affiliate
and (z) only one such fee shall be payable in the event of simultaneous assignments to or from two or more Approved Funds;
(D) the
relevant Eligible Assignee, if it is not a Lender, shall deliver on or prior to the effective date of such assignment, to the Administrative
Agent and the Borrower (irrespective of whether an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g)
exists) (1) an Administrative Questionnaire and (2) any form required under Section 2.17; and
(E) the
assigning Lender shall, concurrently with its delivery of the same to the Administrative Agent, provide the Borrower with a copy of its
request for such assignment, which shall include the name of the prospective assignee (irrespective of whether an Event of Default under
Section 7.01(a) or Section 7.01(f) or Section 7.01(g) exists).
(iii) Except as
otherwise provided in Section 9.05(g), subject to the acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section, from and after the effective date specified in any Assignment Agreement, the Eligible Assignee thereunder shall be
a party hereto and, to the extent of the interest assigned pursuant to such Assignment Agreement, have the rights and obligations of
a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be (A) entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03 with respect to facts
and circumstances occurring on or prior to the effective date of such assignment and (B) subject to its obligations thereunder and
under Section 9.13). If any assignment by any Lender holding any Promissory Note is made after the issuance of such
Promissory Note, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable,
surrender such Promissory Note to the Administrative Agent for cancellation, and, if requested by either the assignee or the
assigning Lender, the Borrower shall issue and deliver a new Promissory Note to such assignee and/or to such assigning Lender, with
appropriate insertions, to reflect the new commitments and/or outstanding Loans of the assignee and/or the assigning Lender.
(iv) The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment
Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders and their respective successors
and assigns, and the commitment of, and principal amount of and interest on the Loans and LC Disbursements owing to, each Lender or Issuing
Bank pursuant to the terms hereof from time to time (the “Register”). Failure to make any such recordation, or any
error in such recordation, shall not affect the Borrower’s obligations in respect of such Loans and LC Disbursements. The entries
in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders
shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower, each Issuing Bank and each Lender (but only as to its
own holdings), at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon
its receipt of a duly completed Assignment Agreement executed by an assigning Lender and an Eligible Assignee, the Eligible Assignee’s
completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the assignee is
already a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and
any written consent to the relevant assignment required by paragraph (b) of this Section, the Administrative Agent shall promptly
accept such Assignment Agreement and record the information contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(vi) By
executing and delivering an Assignment Agreement, the assigning Lender and the Eligible Assignee thereunder shall be deemed to
confirm and agree with each other and the other parties hereto as follows: (A) such assigning Lender warrants that it is the legal
and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that the amount of its
commitments, and the outstanding balances of its Loans, in each case without giving effect to any assignment thereof which has not
become effective, are as set forth in such Assignment Agreement, (B) except as set forth in clause (A) above, such assigning
Lender makes no representation or warranty and assumes no responsibility with respect to any statement, warranty or representation
made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial
condition of the Borrower or any Restricted Subsidiary or the performance or observance by the Borrower or any Restricted Subsidiary
of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant
hereto; (C) such assignee represents and warrants that it is an Eligible Assignee (and not a Disqualified Institution), legally
authorized to enter into such Assignment Agreement; (D) such assignee confirms that it has received a copy of this Agreement, the
Intercreditor Agreement and each other then-applicable Acceptable Intercreditor Agreement, together with copies of the financial
statements referred to in Section 4.01(c) or the most recent financial statements delivered pursuant to Section 5.01
and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into
such Assignment Agreement; (E) such assignee will independently and without reliance upon the Administrative Agent, the assigning
Lender or any other Lender and based on such documents and information as it deems appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (F) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) such assignee
agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to
be performed by it as a Lender.
(c) (i) Any Lender may,
without the consent of the Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender, sell
participations to any bank or other entity (other than to any Disqualified Institution or an Affiliate thereof referred to in the
last proviso of clause (b)(i) of this Section 9.05 and identified to the Administrative Agent as such, any Defaulting
Lender or any natural Person) (a “Participant”) in all or a portion of such Lender’s rights and obligations
under this Agreement (including all or a portion of its commitments and the Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, the Issuing Banks and the
other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which any Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the
consent of the relevant Participant, agree to any amendment, modification or waiver described in (x) clause (A) of the first
proviso to Section 9.02(b) that directly and adversely affects the Loans or commitments in which such Participant has an
interest and (y) clauses (B)(1), (2) or (3) of the first proviso to Section 9.02(b). Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16
and 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section (it being understood that the documentation required under Section 2.17(f) shall be delivered to the
participating Lender, and if additional amounts are required to be paid pursuant to Section 2.17(a) or Section
2.17(c), to the Borrower). To the extent permitted by applicable Requirements of Law, each Participant also shall be entitled to
the benefits of Section 9.09 as though it were a Lender; provided that such Participant agrees to be subject to Section
2.18(c) as though it were a Lender.
(ii) No
Participant shall be entitled to receive any greater payment under Sections 2.15, 2.16 or 2.17 than the participating
Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written consent (in its sole discretion) expressly acknowledging such Participant
may receive a greater benefit. Any Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 2.17 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(f) as though it were a Lender and to deliver the tax forms required to
claim an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document and then only to the extent
of any amount to which such Lender would be entitled in the absence of any such participation (it being understood that the documentation
required under Section 2.17(f) shall be delivered to the participating Lender, and if additional amounts are required to be paid
pursuant to Section 2.17(a) or Section 2.17(c), to the Borrower).
Each Lender that sells a
participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters
the name and address of each Participant and their respective successors and assigns, and the principal amounts and stated interest
of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant
Register (including the identity of any Participant or any information relating to any Participant’s interest in any
Commitment, Loan, Letter of Credit or any other obligation under any Loan Document) to any Person except to the extent that such
disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under
Section 5f.103-1(c) of the Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error,
and each Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for
all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in
its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) (i)
Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (other than to
any Disqualified Institution, Defaulting Lender or any natural person) to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over such Lender,
and this Section 9.05 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release any Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(ii) No
Lender may at any time enter into a total return swap, total rate of return swap, credit default swap or other Derivative Instrument under
which any Loan or other Obligation hereunder is a reference obligation with any counterparty that is a Disqualified Institution, in each
case unless the terms of such Derivative Transaction do not allow for such Lender to provide Confidential Information regarding Holdings
or its subsidiaries to such counterparty and such Lender shall not agree to allow such counterparty (or its Affiliates) to direct the
vote of such Lender with respect to any matter regarding the Facilities (including in any bankruptcy or other restructuring transaction).
(e) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose
funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) in no
event may any Lender grant any option to provide to the Borrower all or any part of any Loan that such Granting Lender would have
otherwise been obligated to make to the Borrower pursuant to this Agreement to any Disqualified Institution or Defaulting Lender.
The making of any Loan by an SPC hereunder shall utilize the Commitment or Additional Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that (i) neither the grant to any
SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations
of the Borrower under this Agreement (including its obligations under Section 2.15, 2.16 or 2.17) and no SPC
shall be entitled to any greater amount under Section 2.15, 2.16 or 2.17 or any other provision of this
Agreement or any other Loan Document that the Granting Lender would have been entitled to receive, unless the grant to such SPC is
made with the prior written consent of the Borrower (in its sole discretion), expressly acknowledging that such SPC’s
entitlement to benefits under Section 2.15, 2.16 or 2.17 is not limited to what the Granting Lender would have
been entitled to receive absent the grant to the SPC, (ii) no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting Lender) and (iii) the Granting Lender shall for all
purposes including approval of any amendment, waiver or other modification of any provision of the Loan Documents, remain the Lender
of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such
SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the Requirements of Law of the U.S. or
any State thereof; provided that (i) such SPC’s Granting Lender is in compliance in all material respects with its
obligations to the Borrower hereunder and (ii) each Lender designating any SPC hereby agrees to indemnify, save and hold harmless
each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against
such SPC during such period of forbearance. In addition, notwithstanding anything to the contrary contained in this Section
9.05, any SPC may (i) with notice to, but without the prior written consent of, the Borrower or the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its interests in any Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guaranty or credit or liquidity enhancement to such SPC.
(f) (i) Any assignment or
participation by a Lender without the Borrower’s consent (A) to any Disqualified Institution or any Affiliate thereof or (B)
to the extent the Borrower’s consent is required under this Section 9.05, to any other Person, shall be null and void,
and the Borrower shall be entitled to seek specific performance to unwind any such assignment or participation and/or specifically
enforce this Section 9.05(f) in addition to injunctive relief (without posting a bond or presenting evidence of irreparable
harm) or any other remedies available to the Borrower at law or in equity; it being understood and agreed that Holdings, the
Borrower and its subsidiaries will suffer irreparable harm if any Lender breaches any obligation under this Section 9.05 as
it relates to any assignment, participation or pledge of any Loan or Commitment to any Disqualified Institution or any Affiliate
thereof or any other Person to whom the Borrower’s consent is required but not obtained. Nothing in this Section
9.05(f) shall be deemed to prejudice any right or remedy that Holdings or the Borrower may otherwise have at law or equity or
pursuant to Section 9.05(f)(ii) below;
(ii) If any
assignment or participation under this Section 9.05 is made to any Affiliate of any Disqualified Institution (other than any
Bona Fide Debt Fund that is not itself a Disqualified Institution) without the Borrower’s prior written consent (any such
person, a “Disqualified Person”), then the Borrower may, at its sole expense and effort, upon notice to the
applicable Disqualified Person and the Administrative Agent, (A) terminate any Commitment of such Disqualified Person and repay all
obligations of the Borrower owing to such Disqualified Person, (B) in the case of any outstanding Term Loans held by such
Disqualified Person, purchase such Term Loans by paying the lesser of (x) par and (y) the amount that such Disqualified Person paid
to acquire such Term Loans, plus accrued interest thereon, accrued fees and all other amounts payable to it hereunder and/or
(C) require such Disqualified Person to assign, without recourse (in accordance with and subject to the restrictions contained in
this Section 9.05), all of its interests, rights and obligations under this Agreement to one or more Eligible Assignees and
if such person does not execute and deliver to the Administrative Agent a duly executed Assignment Agreement reflecting such
assignment within five Business Days of the date on which the Eligible Assignee executes and delivers such Assignment Agreement to
such person, then such person shall be deemed to have executed and delivered such Assignment Agreement without any action on its
part; provided that (I) in the case of clauses (A) and (B), the Borrower shall not be liable to the relevant
Disqualified Person under Section 2.16 if any LIBO Rate Loan owing to such Disqualified Person is repaid or purchased other
than on the last day of the Interest Period relating thereto, (II) in the case of clause (C), the relevant assignment shall
otherwise comply with this Section 9.05 (except that (x) no registration and processing fee required under this Section
9.05 shall be required with any assignment pursuant to this paragraph and (y) any Term Loan acquired by any Affiliated Lender
pursuant to this paragraph will not be included in calculating compliance with the Affiliated Lender Cap for a period of 90 days
following such transfer; provided that, to the extent the aggregate principal amount of Term Loans held by Affiliated Lenders
exceeds the Affiliated Lender Cap on the 91st day following such transfer, then such excess amount shall either be (x) contributed
to Holdings, the Borrower or any of its subsidiaries and retired and cancelled immediately upon such contribution or (y)
automatically cancelled)) and (III) in no event shall such Disqualified Person be entitled to receive amounts set forth in Section
2.13(d). Further, any Disqualified Person identified by the Borrower to the Administrative Agent (A) shall not be permitted to
(x) receive information or reporting provided by any Loan Party, the Administrative Agent or any Lender and/or (y) attend and/or
participate in conference calls or meetings attended solely by the Lenders and the Administrative Agent, (B) (x) shall not for
purposes of determining whether the Required Lenders or the majority Lenders under any Class have (i) consented (or not consented)
to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any
departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required
the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan
Document, have a right to consent (or not consent), otherwise act or direct or require the Administrative Agent or any Lender to
take (or refrain from taking) any such action; it being understood that all Loans held by any Disqualified Person shall be deemed to
be not outstanding for all purposes of calculating whether the Required Lenders, majority Lenders under any Class or all Lenders
have taken any action and (y) shall be deemed to vote in the same proportion as Lenders that are not Disqualified Persons in any
proceeding under any Debtor Relief Law commenced by or against the Borrower or any other Loan Party and (C) shall not be entitled to
receive the benefits of Section 9.03. For the sake of clarity, the provisions in this Section 9.05(f) shall not apply
to any Person that is an assignee of any Disqualified Person, if such assignee is not a Disqualified Person;
(iii) Upon
the request of any Lender, the Administrative Agent may and the Borrower will make the list of Disqualified Institutions (other than any
Disqualified Institution that is a reasonably identifiable Affiliate of another Disqualified Institution on the basis of such Person’s
name) at the relevant time and such Lender may provide the list to any potential assignee for the purpose of verifying whether such Person
is a Disqualified Institution, in each case so long as such Lender and such potential assignee agree to keep the list of Disqualified
Institutions confidential in accordance with the terms hereof;
(iv) The
Borrower shall deliver the list of Disqualified Institutions and any updates, supplements or modifications thereto to JPMDQ_Contact@jpmorgan.com
and any such updates, supplements or modifications thereto shall only become effective 3 days after such notice. In the event the list
of Disqualified Institutions is not in accordance with the foregoing, it shall be deemed not received and not effective (except with respect
to any delivery on or prior to the Closing Date); and
(v) Notwithstanding
anything herein to the contrary, the Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain,
inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions.
(g) Notwithstanding
anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under
this Agreement in respect of its Initial Term Loans or Additional Term Loans to an Affiliated Lender on a non-pro rata basis
(A) through Dutch Auctions, or similar transactions pursuant to procedures to be established by the applicable “auction
agent” that are consistent with this Section 9.05(g), in each case open to all Lenders holding the relevant Initial
Term Loans or such Additional Term Loans, as applicable, on a pro rata basis or (B) through open market purchases, in each
case with respect to clauses (A) and (B), without the consent of the Administrative Agent; provided that:
(i) any
Initial Term Loans or Additional Term Loans acquired by Holdings, the Borrower or any of its subsidiaries shall, to the extent permitted
by applicable Requirements of Law, be retired and cancelled immediately upon the acquisition thereof; provided that upon any such
retirement and cancellation, the aggregate outstanding principal amount of the Initial Term Loans or Additional Term Loans, as applicable,
shall be deemed reduced by the full par value of the aggregate principal amount of the Initial Term Loans or Additional Term Loans so
retired and cancelled, and each principal repayment installment with respect to the Initial Term Loans pursuant to Section 2.10(a)
shall be reduced on a pro rata basis by the full par value of the aggregate principal amount of Initial Term Loans so cancelled;
(ii) any
Initial Term Loans or Additional Term Loans acquired by any Affiliated Lender may (but shall not be required to) be contributed to Holdings,
the Borrower or any of its subsidiaries or Parent Companies for purposes of cancelling such Indebtedness, and in exchange thereof such
Affiliated Lender may receive debt or equity securities of such entity or a direct or indirect parent entity or subsidiary thereof that
are otherwise permitted to be issued by such entity at such time, it being understood that (x) any such Initial Term Loans or Additional
Term Loans shall, to the extent permitted by applicable Requirements of Law, be retired and cancelled immediately upon such contribution
and (y) any such contribution shall be treated as a capital contribution that builds the Available Amount pursuant to clause (iii)
of the definition thereof by an amount equal to the fair market value (as determined by the Borrower in good faith) of the Initial Term
Loans or Additional Term Loans so contributed; provided that if the fair market value of such Initial Term Loans or Additional
Term Loans cannot be determined by the Borrower, the fair market value shall be deemed to be the purchase price of such Initial Term Loans
or Additional Term Loans paid by such Affiliated Lender); provided that upon any such cancellation, the aggregate outstanding principal
amount of the Initial Term Loans or Additional Term Loans, as applicable, shall be deemed reduced, as of the date of such contribution,
by the full par value of the aggregate principal amount of the Initial Term Loans or Additional Term Loans so contributed and cancelled,
and each principal repayment installment with respect to the Initial Term Loans pursuant to Section 2.10(a) shall be reduced pro
rata by the full par value of the aggregate principal amount of Initial Term Loans so contributed and cancelled;
(iii) the
relevant Affiliated Lender and assigning Lender shall have executed an Affiliated Lender Assignment and Assumption;
(iv) after
giving effect to such assignment and to all other assignments to all Affiliated Lenders, the aggregate principal amount of all
Initial Term Loans and Additional Term Loans then held by all Affiliated Lenders shall not exceed 25% of the aggregate principal
amount of the Initial Term Loans and Additional Term Loans then outstanding (after giving effect to any substantially simultaneous
cancellations thereof) (the “Affiliated Lender Cap”); provided that each party hereto acknowledges and
agrees that the Administrative Agent shall not be liable for any losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements of any kind or nature whatsoever incurred or suffered by any Person in connection with any
compliance or non-compliance with this clause (g)(iv) or any purported assignment exceeding the Affiliated Lender Cap (it
being understood and agreed that the Affiliated Lender Cap is intended to apply to any Loans made available to Affiliated Lenders by
means other than formal assignment (e.g., as a result of an acquisition of another Lender (other than any Debt Fund Affiliate) by
any Affiliated Lender or the provision of Additional Term Loans by any Affiliated Lender); provided, further, that to
the extent that any assignment to any Affiliated Lender would result in the aggregate principal amount of all Initial Term Loans and
Additional Term Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap (after giving effect to any substantially
simultaneous cancellations thereof), the assignment of the relevant excess amount shall be null and void;
(v) in
connection with any assignment effected pursuant to a Dutch Auction and/or open market purchase conducted by Holdings, the Borrower or
any of its Restricted Subsidiaries, (A) the relevant Person may not use the proceeds of any Revolving Loans or Additional Revolving Loans
to fund such assignment and (B) no Event of Default exists at the time of acceptance of bids for the Dutch Auction or the confirmation
of such open market purchase, as applicable;
(vi) by
its acquisition of Term Loans, each relevant Affiliated Lender shall be deemed to have acknowledged and agreed that:
(A) the
Term Loans held by such Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any Required
Lender or other Lender vote (and the Term Loans held by such Affiliated Lender shall be deemed to be voted pro rata along with
the other Lenders that are not Affiliated Lenders); provided that (x) such Affiliated Lender shall have the right to vote (and
the Term Loans held by such Affiliated Lender shall not be so disregarded) with respect to any amendment, modification, waiver, consent
or other action that requires the vote of all Lenders or all Lenders directly and adversely affected thereby, as the case may be, and
(y) no amendment, modification, waiver, consent or other action shall (1) disproportionately affect such Affiliated Lender in its capacity
as a Lender as compared to other Lenders of the same Class that are not Affiliated Lenders or (2) deprive any Affiliated Lender of its
share of any payments which the Lenders are entitled to share on a pro rata basis hereunder, in each case without the consent of
such Affiliated Lender; and
(B) such
Affiliated Lender, solely in its capacity as an Affiliated Lender, will not be entitled to (i) attend (including by telephone) or participate
in any meeting or discussion (or portion thereof) among the Administrative Agent or any Lender or among Lenders to which the Loan Parties
or their representatives are not invited or (ii) receive any information or material prepared by the Administrative Agent or any Lender
or any communication by or among the Administrative Agent and one or more Lenders, except to the extent such information or materials
have been made available by the Administrative Agent or any Lender to any Loan Party or its representatives (and in any case, other than
the right to receive notices of Borrowings, prepayments and other administrative notices in respect of its Initial Term Loans or Additional
Term Loans required to be delivered to Lenders pursuant to Article 2); and
(vii) neither the
Sponsor nor any Affiliated Lender shall be required to represent or warrant that it is not in possession of material non-public information
with respect to Holdings, the Borrower and/or any subsidiary thereof and/or their respective securities in connection with any assignment
permitted by this Section 9.05(g). Notwithstanding anything to the contrary contained herein, any Lender may, at any time, assign
all or a portion of its rights and obligations under this Agreement in respect of its Initial Term Loans, Additional Term Loans, Revolving
Credit Commitments or Additional Revolving Credit Commitments to any Debt Fund Affiliate, and any Debt Fund Affiliate may, from time
to time, purchase Initial Term Loans, Additional Term Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments
(x) on a non-pro rata basis through Dutch Auctions or similar transactions open to all applicable Lenders or (y) on a non-pro
rata basis through open market purchases without the consent of the Administrative Agent, in each case, notwithstanding the requirements
set forth in subclauses (i) through (vii) of this clause (g); provided that the Initial Term Loans, Additional
Term Loans and unused commitments and other Loans of all Debt Fund Affiliates shall not account for more than 49.9% of the amounts included
in determining whether the Required Lenders or Required Revolving Lenders have (A) consented to any amendment, modification, waiver,
consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom or (B) directed
or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to any Loan
Document. Any Initial Term Loans or Additional Term Loans acquired by any Debt Fund Affiliate may (but shall not be required to) be contributed
to the Borrower or any of its subsidiaries or parent entities for purposes of cancelling such Indebtedness and in exchange thereof such
Debt Fund Affiliate may receive debt or equity securities of such entity or a direct or indirect parent entity or subsidiary thereof
that are otherwise permitted to be issued by such entity at such time (it being understood that (x) any Initial Term Loans or Additional
Term Loans so contributed shall, to the extent permitted by applicable Requirements of Law, be retired and cancelled immediately upon
contribution thereof and (y) any such contribution shall be treated as a capital contribution that builds the Available Amount pursuant
to clause (iii) of the definition thereof by an amount equal to the fair market value (as determined by the Borrower in good faith)
of the Initial Term Loans or Additional Term Loans so contributed; provided that if the fair market value of such Initial Term
Loans or Additional Term Loans cannot be determined by the Borrower, the fair market value shall be deemed to be the purchase price of
such Initial Term Loans or Additional Term Loans paid by such Debt Fund Affiliate)); provided that upon any such cancellation,
the aggregate outstanding principal amount of the Initial Term Loans or Additional Term Loans shall be deemed reduced, as of the date
of such contribution, by the full par value of the aggregate principal amount of the Initial Term Loans or Additional Term Loans so contributed
and cancelled, and each principal repayment installment with respect to the Initial Term Loans pursuant to Section 2.10(a) shall
be reduced pro rata by the full par value of the aggregate principal amount of Initial Term Loans so contributed and cancelled.
(h) Notwithstanding
anything to the contrary herein, at the election of the Borrower, Revolving Loans and Revolving Credit Commitments held by a
Defaulting Lender may be assigned to an Affiliated Lender without the need for the consent of any other Person, with the price of
such assignment being the lower of (i) par plus accrued and unpaid interest and commitment fees thereon and (ii) such lower amount
as agreed by the applicable Defaulting Lender and such Affiliated Lender; provided that Revolving Lenders that are not
Defaulting Lenders shall have the right to repurchase such assigned Revolving Loans and Revolving Credit Commitments from such
Affiliated Lender, with the price of such assignment being the lower of (i) par plus accrued and unpaid interest and commitment fees
thereon and (ii) such lower amount as agreed by such Revolving Lender and such Affiliated Lender; provided further that the
provisions of clause (g)(vi) above shall apply with respect to such Revolving Loans or Revolving Credit Commitments acquired
and held by an Affiliated Lender, other than an Affiliated Lender that is a Debt Fund Affiliate, in which case only the limitation
set forth in the final paragraph of Section 9.05(g) shall apply.
Section 9.06. Survival.
All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or
other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have
been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of
any Loans and issuance of any Letter of Credit regardless of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent may have had notice or knowledge of any Default or Event of Default or incorrect
representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect until the
Termination Date. The provisions of Sections 2.15, 2.16, 2.17, 9.03 and 9.13 and Article 8
shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit and the Revolving Credit Commitment or any Additional
Commitment, the occurrence of the Termination Date or the termination of this Agreement or any provision hereof but in each case,
subject to the limitations set forth in this Agreement.
Section 9.07. Counterparts;
Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts),
each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the
other Loan Documents and the Fee Letter constitute the entire agreement among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement shall become
effective when it has been executed by Holdings, the Borrower and the Administrative Agent and when the Administrative Agent has received
counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Delivery of an executed counterpart
of a signature page to this Agreement by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective
as delivery of a manually executed counterpart of this Agreement.
Section 9.08. Severability.
To the extent permitted by applicable Requirements of Law, any provision of any Loan Document held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 9.09. Right of
Setoff. At any time when an Event of Default exists, upon the written consent of the Administrative Agent and each Issuing Bank, each
Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Requirements of Law, to set
off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations (in
any currency) at any time owing by the Administrative Agent, such Issuing Bank or such Lender to or for the credit or the account of the
Borrower or any Loan Party against any of and all the Secured Obligations held by the Administrative Agent, such Issuing Bank or such
Lender, irrespective of whether or not the Administrative Agent, such Issuing Bank or such Lender shall have made any demand under the
Loan Documents and although such obligations may be contingent or unmatured or are owed to a branch or office of such Lender or Issuing
Bank different than the branch or office holding such deposit or obligation on such Indebtedness. Any applicable Lender or Issuing Bank
shall promptly notify the Borrower and the Administrative Agent of such set-off or application; provided that any failure to give
or any delay in giving such notice shall not affect the validity of any such set-off or application under this Section. The rights of
each Lender, each Issuing Bank and the Administrative Agent under this Section are in addition to other rights and remedies (including
other rights of setoff) which such Lender, such Issuing Bank or the Administrative Agent may have.
Section 9.10. Governing
Law; Jurisdiction; Consent to Service of Process.
(a) THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING
UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS),
WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED, THAT (I) THE INTERPRETATION OF THE DEFINITION OF “CLOSING DATE
MATERIAL ADVERSE EFFECT” AND THE DETERMINATION OF WHETHER A CLOSING DATE MATERIAL ADVERSE EFFECT HAS OCCURRED, (II) THE
DETERMINATION OF THE ACCURACY OF ANY SPECIFIED ACQUISITION AGREEMENT REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY
THEREOF MERGER SUB 1 OR ITS APPLICABLE AFFILIATE HAS A RIGHT TO TERMINATE ITS OBLIGATIONS UNDER THE ACQUISITION AGREEMENT OR DECLINE
TO CONSUMMATE THE ACQUISITION AND (III) THE DETERMINATION OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE
TERMS OF THE ACQUISITION AGREEMENT AND, IN ANY CASE, ANY CLAIM OR DISPUTE ARISING OUT OF ANY SUCH INTERPRETATION OR DETERMINATION OR
ANY ASPECT THEREOF, SHALL IN EACH CASE BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
(b) EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL (EXCEPT AS
PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, FEDERAL
COURT; PROVIDED THAT WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE ACQUISITION AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED THEREBY WHICH DOES NOT INVOLVE ANY CLAIMS AGAINST THE ARRANGERS, THE ISSUING BANKS, THE LENDERS OR ANY INDEMNIFIED
PERSON, THIS SENTENCE SHALL NOT OVERRIDE ANY JURISDICTION PROVISION IN THE ACQUISITION AGREEMENT. EACH PARTY HERETO AGREES THAT SERVICE
OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST
SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION
OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE REQUIREMENTS
OF LAW. EACH PARTY HERETO AGREES THAT THE ADMINISTRATIVE AGENT RETAINS THE RIGHT TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS
OF ANY OTHER JURISDICTION SOLELY IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT.
(c) EACH PARTY HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
(d) TO
THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS
UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL) DIRECTED
TO IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01. EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION TO SUCH SERVICE
OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY
LOAN DOCUMENT THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE
RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE REQUIREMENTS OF LAW.
Section 9.11. Waiver of
Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 9.12. Headings.
Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement
and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Section 9.13. Confidentiality.
Each of the Administrative Agent, each Lender, each Issuing Bank and each Arranger agrees (and each Lender agrees to cause its SPC,
if any) to maintain the confidentiality of the Confidential Information (as defined below), except that Confidential Information may
be disclosed (a) to its and its Affiliates’ directors, officers, managers, employees, independent auditors, or other experts
and advisors, including accountants, legal counsel and other advisors (collectively, the “Representatives”) on a
confidential, “need to know” basis solely in connection with the transactions contemplated hereby and who are informed
of the confidential nature of the Confidential Information and are or have been advised of their obligation to keep the Confidential
Information of this type confidential; provided that such Person shall be responsible for its Affiliates’ and their
Representatives’ compliance with this paragraph; provided, further, that unless the Borrower otherwise consents,
no such disclosure shall be made by the Administrative Agent, any Issuing Bank, any Arranger, any Lender or any Affiliate or
Representative thereof to any Affiliate or Representative of the Administrative Agent, any Issuing Bank, any Arranger, or any Lender
that is a Disqualified Institution, (b) upon the demand or request of any regulatory or governmental authority having jurisdiction
over such Person or its Affiliates (in which case such Person shall, except with respect to any audit or examination conducted by
bank accountants or any Governmental Authority or regulatory authority exercising examination or regulatory authority, to the extent
permitted by applicable Requirements of Law, (i) inform the Borrower promptly in advance thereof and (ii) ensure that any
information so disclosed is accorded confidential treatment), (c) to the extent compelled by legal process in, or reasonably
necessary to, the defense of such legal, judicial or administrative proceeding, in any legal, judicial or administrative proceeding
or otherwise as required by applicable Requirements of Law (in which case such Person shall (i) to the extent permitted by law,
inform the Borrower promptly in advance thereof, (ii) ensure that any such information so disclosed is accorded confidential
treatment and (iii) allow the Borrower a reasonable opportunity to object to such disclosure in such proceeding), (d) to any other
party to this Agreement, (e) subject to an acknowledgment and agreement by the relevant recipient that the Confidential Information
is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as otherwise reasonably
acceptable to the Borrower and the Administrative Agent, including as set forth in the Information Memorandum) in accordance with
the standard syndication process of the Arrangers or market standards for dissemination of the relevant type of information, which
shall in any event require “click through” or other affirmative action on the part of the recipient to access the
Confidential Information and acknowledge its confidentiality obligations in respect thereof, to (i) any Eligible Assignee of or
Participant in, or any prospective Eligible Assignee of or prospective Participant in, any of its rights or obligations under this
Agreement, including any SPC (in each case other than a Disqualified Institution), (ii) any pledgee referred to in Section
9.05, (iii) any actual or prospective direct or indirect contractual counterparty (or its advisors) to any Derivative
Transaction (including any credit default swap) or similar derivative product under which payments are to be made by reference to
the Borrower and its Obligations, (iv) any actual or prospective direct or indirect contractual counterparty (or its advisors) to
any Derivative Transaction (including any credit default swap) or similar derivative product to which any Loan Party is a party and
(v) subject to the Borrower’s prior approval of the information to be disclosed (not to be unreasonably withheld or delayed),
to Moody’s or S&P on a confidential basis in connection with obtaining or maintaining ratings as required under Section
5.13, (f) with the prior written consent of the Borrower and (g) to the extent the Confidential Information becomes
publicly available other than as a result of a breach of this Section by such Person, its Affiliates or their respective
Representatives. For purposes of this Section, “Confidential Information” means all information relating to
Holdings, the Borrower and/or any of its subsidiaries and their respective businesses, the Sponsor or the Transactions (including
any information obtained by the Administrative Agent, any Issuing Bank, any Lender or any Arranger, or any of their respective
Affiliates or Representatives, based on a review of the books and records relating to Holdings, the Borrower and/or any of its
subsidiaries and their respective Affiliates from time to time, including prior to the date hereof) other than any such information
that is publicly available to the Administrative Agent or any Arranger, Issuing Bank, or Lender on a non-confidential basis prior to
disclosure by Holdings, the Borrower or any of its subsidiaries. For the avoidance of doubt, in no event shall any disclosure of any
Confidential Information be made to Person that is a Disqualified Institution at the time of disclosure.
Section 9.14. No
Fiduciary Duty. Each of the Administrative Agent, the Arrangers, each Lender, each Issuing Bank and their respective Affiliates
(collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict
with those of the Loan Parties, their stockholders and/or their respective affiliates. Each Loan Party agrees that nothing in the
Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied
duty between any Lender, on the one hand, and such Loan Party, its respective stockholders or its respective affiliates, on the
other. Each Loan Party acknowledges and agrees that: (i) the transactions contemplated by the Loan Documents (including the exercise
of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one
hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has
assumed an advisory or fiduciary responsibility in favor of any Loan Party, its respective stockholders or its respective affiliates
with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process
leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Loan Party, its respective
stockholders or its respective Affiliates on other matters) or any other obligation to any Loan Party except the obligations
expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of
such Loan Party, its respective management, stockholders, creditors or any other Person. Each Loan Party acknowledges and agrees
that such Loan Party has consulted its own legal, tax and financial advisors to the extent it deemed appropriate and that it is
responsible for making its own independent judgment with respect to such transactions and the process leading thereto.
Section 9.15. Several Obligations.
The respective obligations of the Lenders hereunder are several and not joint and the failure of any Lender to make any Loan, issue any
Letter of Credit or perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder.
Section 9.16. USA PATRIOT
Act. Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Loan Parties that pursuant to the
requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies each Loan Party, which information
includes the name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party in accordance
with the USA PATRIOT Act.
Section 9.17. Disclosure.
Each Loan Party, each Issuing Bank and each Lender hereby acknowledges and agrees that the Administrative Agent and/or its Affiliates
from time to time may hold investments in, make other loans to or have other relationships with any of the Loan Parties and their respective
Affiliates.
Section 9.18. Appointment
for Perfection. Each Lender hereby appoints each other Lender and each Issuing Bank as its agent for the purpose of perfecting Liens
for the benefit of the Administrative Agent, the Issuing Banks and the Lenders, in assets which, in accordance with Article 9 of the UCC
or any other applicable Requirements of Law can be perfected only by possession. If any Lender or Issuing Bank (other than the Administrative
Agent) obtains possession of any Collateral, such Lender or such Issuing Bank shall notify the Administrative Agent thereof; and, promptly
upon the Administrative Agent’s request therefor shall deliver such Collateral to the Administrative Agent or otherwise deal with
such Collateral in accordance with the Administrative Agent’s instructions.
Section 9.19. Interest
Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan or Letter
of Credit, together with all fees, charges and other amounts which are treated as interest on such Loan or Letter of Credit under applicable
law (collectively, the “Applicable Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”)
which may be contracted for, charged, taken, received or reserved by the Lender or Issuing Bank holding such Loan or Letter of Credit
in accordance with applicable Requirements of Law, the rate of interest payable in respect of such Loan or Letter of Credit hereunder,
together with all Applicable Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest
and Applicable Charges that would have been payable in respect of such Loan or Letter of Credit but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Applicable Charges payable to such Lender or Issuing Bank in respect
of other Loans or Letters of Credit or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender or
Issuing Bank.
Section 9.20. Intercreditor
Agreement. REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT. EACH LENDER AND ISSUING BANK HEREUNDER AGREES THAT IT WILL BE BOUND
BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND AUTHORIZES AND INSTRUCTS THE
ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS “FIRST LIEN CREDIT AGREEMENT COLLATERAL AGENT” AND ON
BEHALF OF SUCH LENDER OR ISSUING BANK. THE PROVISIONS OF THIS SECTION 9.20 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT
PROVISIONS OF THE INTERCREDITOR AGREEMENT, THE FORM OF WHICH IS ATTACHED AS AN EXHIBIT TO THIS AGREEMENT. REFERENCE MUST BE MADE TO
THE INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER AND ISSUING BANK IS RESPONSIBLE FOR
MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE
ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER OR ISSUING BANK AS TO THE SUFFICIENCY OR
ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT. THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO
THE LENDERS UNDER THE SECOND LIEN CREDIT AGREEMENT TO EXTEND CREDIT THEREUNDER AND SUCH LENDERS ARE INTENDED THIRD PARTY
BENEFICIARIES OF SUCH PROVISIONS AND THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.
Section 9.21. Conflicts.
Notwithstanding anything to the contrary contained herein or in any other Loan Document (but excluding the Intercreditor Agreement), in
the event of any conflict or inconsistency between this Agreement and any other Loan Document (excluding the Intercreditor Agreement),
the terms of this Agreement shall govern and control; provided that in the case of any conflict or inconsistency between the Intercreditor
Agreement and any other Loan Document, the terms of the Intercreditor Agreement shall govern and control.
Section 9.22. Release of
Guarantors. Notwithstanding anything in Section 9.02(b) to the contrary, (a) any Subsidiary Guarantor shall automatically be
released from its obligations hereunder (and its Loan Guaranty shall be automatically released) (i) upon the consummation of any permitted
transaction or series of related transactions if as a result thereof such Subsidiary Guarantor ceases to be a Restricted Subsidiary (included
by merger or dissolution) or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions permitted
hereunder; or (ii) upon the occurrence of the Termination Date, (b) any Subsidiary Guarantor that qualifies as an “Excluded Subsidiary”
shall be released from its obligations hereunder (and its Loan Guaranty shall be automatically released) by the Administrative Agent promptly
following the request therefor by the Borrower and/or (c) the Person constituting Holdings immediately prior to the consummation of a
Holdings Reorganization Transaction whereby the existing “Holdings” is not intended to remain as such shall be automatically
released from its obligations hereunder (and its Loan Guaranty shall be automatically released) upon the consummation of such Holdings
Reorganization Transaction; provided, that the release of any Subsidiary Guarantor from its obligations under the Loan Guaranty
if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition thereof shall only be
permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect to such release and
the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower is deemed to have
made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an amount equal to the
portion of the fair market value of the net assets of such Person attributable to the Borrower’s equity interest therein as estimated
by the Borrower in good faith and such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f)) at such time. In
connection with any such release, the Administrative Agent shall, subject to receipt of an officer’s certificate from the Borrower
certifying that such transaction and release are permitted hereunder, promptly execute and deliver to the relevant Loan Party, at such
Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence termination or release. Any execution
and delivery of documents pursuant to the preceding sentence of this Section 9.22 shall be without recourse to or warranty by the
Administrative Agent.
Section 9.23. Acknowledgement
and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other
agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial
Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion
powers of an EEA Resolution Authority and each party hereto agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may
be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects of any
Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its
parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
or
(iii) the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution
Authority.
[Signature Pages Follow]
IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day
and year first above written.
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A-B MERGER SUB I INC.,
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as Holdings,
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By:
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/s/ Rachael Wagner
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Name:
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Rachael Wagner
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Title:
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President
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A-B MERGER SUB II LLC.,
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as Borrower
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By:
A-B Merger Sub I Inc., its sole member
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By:
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/s/ Rachael Wagner
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Name:
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Rachael Wagner
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Title:
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President
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Signature Page to First Lien Credit Agreement
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After giving effect to the Merger Sub I Merger,
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BOWLMOR AMF CORP.,
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as Holdings,
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By:
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/s/ Brett I. Parker
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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After giving effect to the Merger Sub II Merger,
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KINGPIN INTERMEDIATED HOLDINGS LLC,
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as Borrower
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By:
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/s/ Brett I. Parker
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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Signature Page to First Lien Credit Agreement
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JPMORGAN CHASE BANK, N. A., individually, as
Administrative Agent, Term Lender, Revolving Lender,
Swingline Lender and Issuing Bank
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By:
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/s/ Peter B. Thauer
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Name:
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Peter B. Thauer
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Title:
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Managing Director
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Signature Page to First Lien Credit Agreement
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as Revolving Lender and Existing Letter of Credit Issuer
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By:
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/s/ John D. Toronto
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Name:
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John D. Toronto
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Title:
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Authorized Signatory
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By:
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/s/ Whitney Gaston
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Name:
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Whitney Gaston
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Title:
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Authorized Signatory
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Signature Page to First Lien Credit Agreement
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GOLDMAN SACHS BANK USA, as Revolving Lender
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By:
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/s/ Thomas M. Manning
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Name:
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Thomas M. Manning
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Title:
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Authorized Signatory
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Signature Page to First Lien Credit Agreement
EXHIBIT A-1
[FORM OF]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption
(the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).
Capitalized terms used but not defined herein shall have the meanings given to them in the First Lien Credit Agreement identified below
(as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “First Lien Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex I attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein
in full.
For an agreed consideration,
the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions and the First Lien Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below, (i) all of the Assignor’s rights and obligations in its capacity
as a Lender under the First Lien Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective
facilities identified below (including any letters of credit and swingline loans included in such facilities) and (ii) to the extent permitted
to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender)
against any Person, whether known or unknown, arising under or in connection with the First Lien Credit Agreement, any other documents
or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing,
including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses
(i) and (ii) above being referred to herein collectively as the “Assigned Interest”). In the case where
the Assigned Interest covers all of the Assignor’s rights and obligations under the First Lien Credit Agreement, the Assignor shall
cease to be a party thereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03
of the First Lien Credit Agreement with respect to facts and circumstances occurring on or prior to the Effective Date and subject to
its obligations hereunder and under Section 9.13 of the First Lien Credit Agreement. Such sale and assignment is (i) subject to
acceptance and recording thereof in the Register by the Administrative Agent pursuant to Section 9.05(b)(v) of the First Lien Credit
Agreement, (ii) without recourse to the Assignor and (iii) except as expressly provided in this Assignment and Assumption, without representation
or warranty by the Assignor.
1. Assignor: [●]
2. Assignee: [●]
[and is an Affiliate/Approved Fund of [identify Lender]1]
3. Borrower: Kingpin
Intermediate Holdings LLC
4. Administrative Agent: JPMorgan
Chase Bank, N.A., as administrative agent under the First Lien Credit Agreement
5. First Lien Credit Agreement: That certain
First Lien Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified and
in effect on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings LLC,
a Delaware limited liability company (the “Borrower”), Bowlmor AMF Corp., a Delaware corporation (“Holdings”),
the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities as an issuing bank, the swingline lender
and as administrative agent for the Lenders and collateral agent for the Secured Parties.
6. Assigned Interest:
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Class of
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Amount of
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Percentage Assigned of
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Aggregate Amount of
Commitment/Loans
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Loans
Assigned
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Commitment/Loans
Assigned2
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Commitment/Loans under
Relevant Class3
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CUSIP Number
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$
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$
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%
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$
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$
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%
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$
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$
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%
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Effective Date: [●][●], 20[●] [TO
BE INSERTED BY THE ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR].
7. THE
PARTIES HERETO ACKNOWLEDGE THAT ANY ASSIGNMENT TO ANY DISQUALIFIED INSTITUTION WITHOUT OBTAINING THE REQUIRED CONSENT OF THE BORROWER
OR, TO THE EXTENT THE BORROWER’S CONSENT IS REQUIRED UNDER SECTION 9.05 OF THE FIRST LIEN CREDIT AGREEMENT, TO ANY OTHER
PERSON, SHALL BE NULL AND VOID, AND THE BORROWER SHALL BE ENTITLED TO PURSUE THE REMEDIES DESCRIBED IN SECTION 9.05 OF THE FIRST
LIEN CREDIT AGREEMENT, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE TO UNWIND ANY SUCH ASSIGNMENT IN ADDITION TO INJUNCTIVE RELIEF
OR ANY OTHER REMEDIES AVAILABLE TO THE BORROWER AT LAW OR IN EQUITY.
[Signature Page Follows]
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2
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Not to be less than (x) $1,000,000 in the case of Initial
Term Loans, Additional Term Loans, Initial Term Commitments and Additional Term Commitments and (y) $5,000,000 in the case of Revolving
Loans, Additional Revolving Loans, Revolving Credit Commitments or Additional Revolving Commitments unless the Borrower and the Administrative
Agent otherwise consent.
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3
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Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
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The terms set forth in this Assignment and Assumption are
hereby agreed to:
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ASSIGNOR
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[NAME OF ASSIGNOR]
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By:
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Name:
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Title:
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☐
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ASSIGNEE HAS EXAMINED THE LIST OF DISQUALIFIED INSTITUTIONS
AND REPRESENTS AND WARRANTS THAT (A) IT IS NOT IDENTIFIED ON SUCH LIST AND (B) IT IS NOT AN AFFILIATE OF ANY INSTITUTION IDENTIFIED ON
SUCH LIST [(OTHER THAN, IN THE CASE OF THIS CLAUSE (B), A BONA FIDE DEBT FUND THAT IS AN AFFILIATE OF A COMPANY COMPETITOR OR
ANY OTHER DISQUALIFIED INSTITUTION]4 5.
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ASSIGNEE
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[NAME OF ASSIGNEE]
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By:
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Name:
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Title:
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Consented to and Accepted:
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[JPMORGAN CHASE BANK, N.A., as
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Administrative Agent]6
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By:
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Name:
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Title:
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[ISSUING BANK]7
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By:
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Name:
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Title:
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[SWINGLINE LENDER, as Swingline Lender]8
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By:
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4
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Insert bracketed language if Assignee is a Bona Fide Debt
Fund and not otherwise identified on the list of Disqualified Institutions.
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5
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To be completed by Assignee.
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6
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To be added only if the consent of the Administrative Agent is required.
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7
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To be added only with respect to an assignment under the Revolving Facility or any Additional Revolving Facility.
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8
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To be added only with respect to an assignment under the Revolving Facility or any Additional Revolving Facility.
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[Consented to:]9
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[KINGPIN INTERMEDIATE HOLDINGS LLC,
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as Borrower]
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By:
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Name:
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Title:
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9
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To be added only if the consent of the Borrower is required by Section 9.05(b)(i)(A) of the First Lien Credit Agreement.
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Annex I
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations
and Warranties.
1.1 Assignor.
The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim, (iii) its Commitment, and the outstanding balances of its Loans, in
each case without giving effect to assignments thereof which have not become effective, are as set forth herein and (iv) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) makes no representation or warranty and assumes no responsibility with respect to (i) any statements, warranties
or representations made in or in connection with the First Lien Credit Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto (other than this Assignment and Assumption) or any collateral thereunder, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Restricted Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the
performance or observance by Holdings, the Borrower, any of its Restricted Subsidiaries or Affiliates or any other Person of any of their
respective obligations under any Loan Document.
1.2 Assignee.
The Assignee (a) represents and warrants that (i) it is an Eligible Assignee and has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the First Lien Credit Agreement, (ii) it satisfies the requirements, if any, specified in the First Lien Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective
Date, it shall be bound by the provisions of the First Lien Credit Agreement and the other Loan Documents as a Lender thereunder and,
to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder and (iv) it has received a copy of the First
Lien Credit Agreement and the Intercreditor Agreement, together with copies of the most recent financial statements referred to in Section
4.01(c) or the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents
and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption
and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, (v) it has examined the list of Disqualified Institutions and it is not (A) a Disqualified
Institution or (B) an Affiliate of a Disqualified Institution [(other than, in the case of this Clause (B), a Bona Fide Debt Fund
that is an affiliate of a Company Competitor but not an Affiliate of any other Disqualified Institution)]10
and (vi) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant
to Section 2.17 of the First Lien Credit Agreement, duly completed and executed by the Assignee.
2. Payments.
From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and
to the Assignee for amounts which have accrued from and after the Effective Date.
3. General
Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective
successors and permitted assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by facsimile or by email as
a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of this Assignment
and Assumption. This Assignment and Assumption shall be construed in accordance with and governed by the laws of the State of New York.
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10
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Insert bracketed language if Assignee is a Bona Fide Debt
Fund and not otherwise identified on the list of Disqualified Institutions or an Affiliate of a non-Company Competitor Disqualified Institution.
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EXHIBIT A-2
[FORM OF]
AFFILIATED LENDER
ASSIGNMENT AND ASSUMPTION
This Affiliated Lender Assignment
and Assumption (the “Affiliated Lender Assignment and Assumption”) is dated as of the Effective Date set forth below
and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Affiliated
Lender] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in
the First Lien Credit Agreement identified below (as amended, restated, amended and restated, supplemented or otherwise modified from
time to time, the “First Lien Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex I attached hereto are hereby agreed to and incorporated herein by reference
and made a part of this Affiliated Lender Assignment and Assumption as if set forth herein in full.
For an agreed consideration,
the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions and the First Lien Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below, (i) all of the Assignor’s rights and obligations in its capacity
as a Term Lender under the First Lien Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under
the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes
of action and any other right of the Assignor (in its capacity as a Term Lender) against any Person, whether known or unknown, arising
under or in connection with the First Lien Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice
claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to
clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred
to herein collectively as the “Assigned Interest”). In the case where the Assigned Interest covers all of the Assignor’s
rights and obligations under the First Lien Credit Agreement, the Assignor shall cease to be a party thereto but shall continue to be
entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03 of the First Lien Credit Agreement with respect
to facts and circumstances occurring on or prior to the Effective Date and subject to its obligations hereunder and under Section 9.13
of the First Lien Credit Agreement. Such sale and assignment is (i) subject to acceptance and recording thereof in the Register by the
Administrative Agent pursuant to Section 9.05(b)(v) of the First Lien Credit Agreement, (ii) without recourse to the Assignor and
(iii) except as expressly provided in this Affiliated Lender Assignment and Assumption, without representation or warranty by the Assignor.
1. Assignor: [●]
2. Assignee: [●]
and is an Affiliated Lender [that is a Non-Debt Fund Affiliate /
the Borrower or a subsidiary thereof].
3. Borrower: Kingpin Intermediate Holdings LLC
4. Administrative Agent: JPMorgan
Chase Bank, N.A., as administrative agent under the First Lien Credit Agreement
5. First Lien Credit Agreement: That certain
First Lien Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified
and in effect on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings
LLC, a Delaware limited liability company (the “Borrower”), Bowlmor AMF Corp., a Delaware corporation
(“Holdings”), the lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities as an
issuing bank, the swingline lender and as administrative agent and collateral agent for the lenders.
6. Assigned Interest:
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Amount of
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Percentage Assigned of
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Aggregate Amount of
Commitment/Loans
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Class of
Loans Assigned
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Commitment/Loans
Assigned11
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Commitment/Loans under
Relevant Class12
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CUSIP
Number
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$
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$
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%
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$
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$
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%
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$
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$
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%
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Effective Date: [●][●], 20[●] [TO
BE INSERTED BY THE ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR].
[Signature Page Follows]
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11
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Not to be less than (x) $1,000,000 in the case of Initial
Term Loans, Additional Term Loans, Initial Term Commitments and Additional Term Commitments and (y) $5,000,000 in the case of Revolving
Loans, Additional Revolving Loans, Revolving Credit Commitments or Additional Revolving Commitments unless the Borrower and the Administrative
Agent otherwise consent.
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12
|
Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
|
The terms set forth in this Affiliated Lender Assignment
and Assumption are hereby agreed to:
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ASSIGNOR
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[NAME OF ASSIGNOR]
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By:
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Name:
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Title:
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ASSIGNEE
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[NAME OF ASSIGNEE]
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By:
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Name:
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Title:
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[Consented to:]13
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[KINGPIN INTERMEDIATE HOLDINGS LLC],
as Borrower
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By:
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Name:
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Title:
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13
|
To be added only if the consent of the Borrower is required by Section 9.05(b)(i)(A) of the First Lien Credit Agreement.
|
ANNEX I TO EXHIBIT A-2
STANDARD TERMS AND CONDITIONS FOR
AFFILIATED LENDER ASSIGNMENT AND ASSUMPTION
1. Representations
and Warranties.
1.1 Assignor.
The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim, (iii) its Commitment, and the outstanding balances of its Loans, in
each case without giving effect to assignments thereof which have not become effective, are as set forth herein, and (iv) it has full
power and authority, and has taken all action necessary, to execute and deliver this Affiliated Lender Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) makes no representation or warranty and assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection with the First Lien Credit Agreement, any other Loan Document
or any other instrument or document furnished pursuant thereto (other than this Affiliated Lender Assignment and Assumption) or any collateral
thereunder, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Restricted Subsidiaries or Affiliates or any other Person obligated
in respect of any Loan Document or (iv) the performance or observance by Holdings, the Borrower, any of its Restricted Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2 Assignee.
The Assignee (a) represents and warrants that (i) it is an Eligible Assignee and has full power and authority, and has taken all
action necessary, to execute and deliver this Affiliated Lender Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the First Lien Credit Agreement, (ii) it satisfies the requirements, if any,
specified in the First Lien Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the First Lien Credit Agreement and
the other Loan Documents as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the First Lien Credit Agreement and the Intercreditor Agreement, together with copies of
the most recent financial statements referred to in Section 4.01(c) or delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to
enter into this Affiliated Lender Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made
such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, (v) if it is a
Foreign Lender, attached to the Affiliated Lender Assignment and Assumption is any documentation required to be delivered by it
pursuant to Section 2.17 of the First Lien Credit Agreement, duly completed and executed by the Assignee, (vi) after giving
effect to this Affiliated Lender Assignment and Assumption, the aggregate principal amount of all Term Loans and Additional Term
Loans then held by all Affiliated Lenders does not exceed the Affiliated Lender Cap (after giving effect to any substantially
simultaneous cancellations thereof) and (vii) in the case of Holdings or any of its subsidiaries, (1) no Indebtedness incurred under
the Revolving Facility or any Additional Revolving Facility has been utilized to fund the purchase of the Assigned Interest and (2)
no Default or Event of Default exists at the time of acceptance of bids for any Dutch Auction or the confirmation of any open market
purchase; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other
Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Documents, (ii) it appoints and authorizes the Administrative Agent to take
such action on its behalf and to exercise such powers and discretion under the First Lien Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent, by the terms
thereof, together with such powers as are reasonably incidental thereto, and (iii) it will perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. In connection with
any Dutch Auction, the Assignor has acknowledged and agreed that in connection with this Assignment and Assumption, (1) the
applicable Affiliated Lender or its Affiliates may have, and later may come into possession of, MNPI, (2) the Assignor has
independently, without reliance on the applicable Affiliated Lender, the Investors, Holdings, the Borrower, any of their respective
subsidiaries, the Administrative Agent, the Arrangers or any of their respective Affiliates, made its own analysis and determination
to participate in such assignment notwithstanding the Assignor’s lack of knowledge of the MNPI, (3) none of the applicable
Affiliated Lenders, the Investors, Holdings, the Borrower, any of their respective subsidiaries, the Administrative Agent, the
Arrangers or any of their respective Affiliates shall have any liability to the Assignor, and the Assignor hereby waives and
releases, to the extent permitted by law, any claims it may have against the applicable Affiliated Lender, the Investors, Holdings,
the Borrower, each of their respective subsidiaries, the Administrative Agent, the Arrangers and their respective Affiliates, under
applicable laws or otherwise, with respect to the nondisclosure of the MNPI and (4) the MNPI may not be available to the
Administrative Agent, the Arrangers or the other Lenders. The Assignee agrees that, solely in its capacity as an Affiliated Lender,
it will not be entitled to (a) attend (including by telephone) or participate in any meeting or discussions (or portion thereof)
among the Administrative Agent or any Lender or among Lenders to which the Loan Parties or their representatives are not invited or
(b) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the
Administrative Agent and one or more Lenders, except to the extent such information or materials have been made available by the
Administrative Agent or any Lender to any Loan Party or its representatives (and in any case, other than the right to receive
notices of Borrowings, prepayments and other administrative notices in respect of its Term Loans or Additional Term Loans required
to be delivered to Lenders pursuant to Article 2 of the First Lien Credit Agreement).
2. Payments.
From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and
to the Assignee for amounts which have accrued from and after the Effective Date.
3. General
Provisions. This Affiliated Lender Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and permitted assigns. This Affiliated Lender Assignment and Assumption may be executed in
any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page
of this Affiliated Lender Assignment and Assumption by facsimile or by email as a “.pdf” or “.tif”
attachment shall be effective as delivery of a manually executed counterpart of this Affiliated Lender Assignment and Assumption.
This Affiliated Lender Assignment and Assumption shall be construed in accordance with and governed by the laws of the State of New
York.
EXHIBIT B
[FORM OF]
BORROWING REQUEST
JPMorgan Chase Bank, N.A.
500 Stanton Christiana Rd.
NCC5 / 1st Floor
Newark, DE 19713
Attention: Loan & Agency Services Group-Jonathan Martin
Tel: 302-634-1964
Fax:302-634-3301
Email:
With a copy to:
JPMorgan Chase Bank, N.A.
500 Stanton Christiana Rd.
NCC5 / 1st Floor
Newark, DE 19713
Attention: Loan & Agency Services Group-William
Tel: 302-634-1964
Fax: 302-634-3301
Email:
[●][●], 20[●]14
Ladies and Gentlemen:
Reference is hereby made to that certain First
Lien Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified and in
effect on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings LLC, a Delaware
limited liability company (the “Borrower”), Bowlmor AMF Corp., a Delaware corporation (“Holdings”),
the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities as an issuing bank, the swingline lender
and as administrative agent and collateral agent for the Lenders. Terms defined in the First Lien Credit Agreement are used herein with
the same meanings unless otherwise defined herein.
The undersigned hereby gives you notice pursuant
to Section 2.03 of the First Lien Credit Agreement that it requests the Borrowings under the First Lien Credit Agreement to be
made on July 3, 2017, and in that connection sets forth below the terms on which the Borrowings are requested to be made:
(A) Borrower [Kingpin Intermediate Holdings LLC]15
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14
|
The Administrative Agent must be notified in writing or by
telephone (with such telephonic notification to be promptly confirmed in writing), which must be received by the Administrative Agent
(by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) not later than 12:00 p.m.
(i) three Business Days prior to the requested day of any Borrowing of LIBO Rate Loans (or 12:00 p.m. one Business Day in the case of
any Borrowing of LIBO Rate Loans to be made on the Closing Date) and (ii) on the requested date of any Borrowing of ABR Loans (other
than Swingline Loans) (or, in each case, such later time as shall be acceptable to the Administrative Agent); provided, however,
that if the Borrower wishes to request LIBO Rate Loans having an Interest Period of other than one, two, three or six months in duration
as provided in the definition of “Interest Period,” (A) the applicable notice from the Borrower must be received by the Administrative
Agent not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion or continuation (or such
time as is acceptable to the Administrative Agent, whereupon the Administrative Agent shall give prompt notice to the appropriate Lenders
of such request and determine whether the requested Interest Period is acceptable to them and (B) not later than 10:00 a.m. three Business
Days before the requested date of such Borrowing, the Administrative Agent shall notify the Borrower whether or not the requested Interest
Period has been consented to by all the appropriate Lenders.
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(B)
|
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Date of Borrowing (which shall be a Business Day)
|
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[●]
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(C)
|
|
Aggregate Amount of Borrowing16
|
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$
|
[●]
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(D)
|
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Type of Borrowing17
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[●]
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(E)
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Class of Borrowing
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[●]
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(F)
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Interest Period18 (in the case of a LIBO Rate Borrowing)
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[●]
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(G)
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Amount, Account Number and Location
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Wire Transfer Instructions:
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Amount
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$[●]
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Bank:
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[●]
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ABA No.:
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[●]
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Account No.:
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[●]
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Account Name:
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[●]
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[The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Borrowing:
(A) The
representations and warranties of the Loan Parties set forth in the First Lien Credit Agreement and the other Loan Documents are true
and correct in all material respects on and as of the date of the Borrowing with the same effect as though such representations and warranties
had been made on and as of the date of such Borrowing; provided that to the extent that any representation and warranty specifically
refers to a given date or period, it is true and correct in all material respects as of such earlier date or for such period.
(B) At
the time of and immediately after giving effect to the Borrowing, no Default or Event of Default shall have occurred and be continuing.]19
[Signature Page Follows]
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15
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For Borrowings made on the Closing Date, replace with A-B Merger Sub II, LLC.
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16
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Subject to Section 2.02(c) of First Lien Credit Agreement.
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17
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State whether a LIBO Rate Borrowing or ABR Borrowing. If
no Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing.
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18
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Must be a period contemplated by the definition of “Interest
Period”. If no Interest Period is specified, then the Interest Period shall be of one-month’s duration.
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19
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Include bracketed language only for Borrowings after Closing
Date.
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[KINGPIN INTERMEDIATE HOLDINGS LLC]20
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By:
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Name:
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Title:
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20
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For Borrowings made on the Closing Date, use A-B Merger Sub
II, LLC.
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EXHIBIT C
[FORM OF]
COMPLIANCE OFFICER CERTIFICATE
[●][●], 20[●]
To: The Administrative Agent and each of the Lenders parties to
the First Lien Credit Agreement described below
This Compliance Certificate is furnished pursuant
to that certain First Lien Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise
modified and in effect on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings
LLC, a Delaware limited liability company (the “Borrower”), Bowlmor AMF Corp., a Delaware corporation (“Holdings”),
the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities as an issuing bank, the swingline lender
and as administrative agent and collateral agent for the Lenders. Unless otherwise defined herein, capitalized terms used in this Compliance
Certificate have the meanings ascribed thereto in the First Lien Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES,
AS A RESPONSIBLE OFFICER OF THE BORROWER, IN SUCH CAPACITY AND NOT IN AN INDIVIDUAL CAPACITY, THAT:
1. I am the duly elected
[●] of the Borrower and a Responsible Officer of the Borrower;
2. I
have reviewed the terms of the First Lien Credit Agreement and I have made, or have caused to be made under my supervision, a review in
reasonable detail of the transactions and conditions of the Borrower and its Restricted Subsidiaries, on a consolidated basis, during
the [Fiscal Quarter][Fiscal Year] covered by the attached financial statements;
3. [The
attached financial statements fairly present, in all material respects, in accordance with GAAP, the consolidated financial condition
of [Holdings] as at the dates indicated and its income and cash flows for the periods indicated, subject to the absence of footnotes and
changes resulting from audit and normal year-end adjustments.]21
4. [Schedule
1 attached hereto sets forth reasonably detailed calculations of Excess Cash Flow for such Fiscal Year.]22
5. [Attached
as Schedule 2 hereto is a list of the subsidiaries of the Borrower that identifies each subsidiary as a Restricted Subsidiary or
an Unrestricted Subsidiary as of the date hereof.] [There is no change in the list of Restricted Subsidiaries and Unrestricted Subsidiaries
since the date of the last Compliance Certificate.]23
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21
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Include to the extent the relevant Compliance Certificate
is delivered in connection with unaudited quarterly financials.
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22
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Only required to the extent the relevant Compliance Certificate
is delivered in connection with audited annual financialstatements (commencing with the Fiscal Year ending September 30, 2017).
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23
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Only required to provide in connection with Compliance Certificate
delivered with annual audited financials.
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6. [Attached as Schedule
3 hereto are (i) a summary of the pro forma adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from
the attached financial statements and (ii) if the attached financial statements relate to any Parent Company, consolidating
financial information summarizing in reasonable detail the information related to such Parent Company, on the one hand, and the
information relating to the Borrower on a standalone basis, on the other hand.]24
25
7. [Attached
hereto as Schedule 4 is the Narrative Report required to be delivered with the attached financial statements in accordance with
Section 5.01(a) or (b) of the First Lien Credit Agreement, as applicable].26
8. Attached
as Schedule 5 hereto are calculations in reasonable detail demonstrating compliance with the covenant set forth in Section 6.15(a)
of the First Lien Credit Agreement.
[Signature Page Follows]
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24
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Only required if a subsidiary of the Borrower is or has been
designated as an Unrestricted Subsidiary at the time of delivery of the applicable Compliance Certificate.
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25
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Only required to provide in connection with Compliance Certificate
delivered with annual audited financials.
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26
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Applies to each delivery of annual and quarterly financial
statements pursuant to Section 5.01(a) or (b) of the First Lien Credit Agreement.
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The foregoing certifications,
together with the information set forth in the Schedules hereto and the financial statements delivered with this Compliance Certificate
in support hereof, are made and delivered as of the date first written above. 27
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[BOWLMOR AMF CORP.]
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By:
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Name:
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Title:
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[KINGPIN INTERMEDIATE HOLDINGS LLC]
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By:
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Name:
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Title:
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27
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Please note the deadlines for satisfaction of the following
requirements correspond with the delivery of each Compliance Certificate (unless otherwise indicated):
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1.
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The delivery of documents and deliverables required under Section 4.02(a) of the Security Agreement relating to any
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(i) certificated
Securities and/or (ii) Tangible Chattel Paper and/or Instruments having a face amount in excess of $5,000,000, in each case acquired during
the Fiscal Quarter covered by the attached financial statements. NOTE: If any Loan Party acquires (i) certificated Securities
and/or (ii) Tangible Chattel Paper and/or Instruments having a face amount in excess of $5,000,000 during the fourth Fiscal Quarter of
any Fiscal Year, the documents and deliverables required under Section 4.02(a) of the Security Agreement must be delivered within
60 days after the end of such Fiscal Quarter.
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2.
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The delivery of documents and deliverables required under Section 4.03(c) of the Security Agreement
relating to any registration (or any application for registration of) any Patent, Trademark or Copyright with the United States Patent
and Trademark Office or the United States Copyright Office, as applicable, filed or acquired during the Fiscal Quarter covered by the
attached financial statements. NOTE: If any Loan Party acquires any registration (or files any application for registration)
of any Parent, Trademark or Copyright with the United States Patent and Trademark Office or the United States Copyright Office, as applicable,
during the fourth Fiscal Quarter of any Fiscal Year, the documents and deliverables required under Section 4.03(c) of the Security
Agreement must be delivered within 60 days after the end of such Fiscal Quarter.
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3.
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To the extent the relevant Compliance Certificate is delivered in connection with audited annual financials and prior to a Qualifying
IPO, delivery of the Financial Plan required by Section 5.01(h) of the First Lien Credit Agreement.
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4.
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The delivery of the documents required to be delivered under Section 5.12(a) of the First Lien
Credit Agreement as a result of (i) the formation or acquisition after the Closing Date of any Restricted Subsidiary that is a Domestic
Subsidiary rather than an Excluded Subsidiary, (ii) the designation of any Unrestricted Subsidiary as a Restricted Subsidiary (other than
an Excluded Subsidiary), (iii) any Restricted Subsidiary that is a Domestic Subsidiary (other than a Restricted Subsidiary that otherwise
constitutes an Excluded Subsidiary) ceasing to be an Immaterial Subsidiary and/or (iv) any Restricted Subsidiary that is an Immaterial
Subsidiary and a Domestic Subsidiary ceasing to be an Excluded Subsidiary, in each case during the Fiscal Quarter covered by the attached
financial statements. NOTE: upon the taking of any action or the occurrence of any event described in clauses (i)
through (iv) during the fourth Fiscal Quarter of any Fiscal Year, the documents required to be delivered under Section 5.12(a)
of the First Lien Credit Agreement must be delivered within 60 days after the end of such Fiscal Quarter.
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SCHEDULE 1
Calculation of Excess Cash Flow
SCHEDULE 2
List of Restricted Subsidiaries and Unrestricted
Subsidiaries
SCHEDULE 3
Summary of Pro Forma Adjustments/Consolidating
Information
SCHEDULE 4
[Narrative Report]
SCHEDULE 5
[First Lien Leverage Ratio]
EXHIBIT D
[FORM OF]
INTEREST ELECTION REQUEST
JPMorgan Chase Bank, N.A.
500 Stanton Christiana Rd.
NCC5 / 1st Floor
Newark, DE 19713
Attention: Loan & Agency Services Group-Jonathan Martin
Tel: 302-634-1964
Fax:302-634-3301
Email:
With a copy to:
JPMorgan Chase Bank, N.A.
500 Stanton Christiana Rd.
NCC5 / 1st Floor
Newark, DE 19713
Attention: Loan & Agency Services Group-William
Tel: 302-634-1964
Fax: 302-634-3301
Email:
[●][●], 20[●]28
Ladies and Gentlemen:
Reference is hereby made to
that certain First Lien Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise
modified and in effect on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings
LLC, a Delaware limited liability company (the “Borrower”), Bowlmor AMF Corp., a Delaware corporation (“Holdings”),
the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities as an issuing bank, the swingline lender
and as administrative agent and collateral agent for the Lenders. Terms defined in the First Lien Credit Agreement are used herein with
the same meanings unless otherwise defined herein.
The undersigned hereby gives
you notice pursuant to Section 2.08 of the First Lien Credit Agreement of an interest rate election, and in that connection sets
forth below the terms thereof:
(A)
[on [insert applicable date] (which is a Business Day), the undersigned will convert $[●]29
of the aggregate outstanding principal amount of the [Term][Revolving] Loans, bearing interest at the [ABR][LIBO]
Rate, into a [LIBO][ABR] Loan [and, in the case of a LIBO Rate Loan, having an Interest Period of [●] month(s)]30[;
and][.]]
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28
|
The Administrative Agent must be notified in writing or by
telephone (with such telephonic notification to be promptly confirmed in writing), which must be received by the Administrative Agent
(by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) not later than 12:00 p.m.
(i) three Business Days prior to the requested day of conversion or continuation of LIBO Rate Loans (or 12:00 p.m. one Business Day in
the case of any conversion or continuation of LIBO Rate Loans on the Closing Date) and (ii) on the requested date of any conversion of
any Borrowing to ABR Loans or any continuation of any Borrowing as ABR Loans (or, in each case, such later time as shall be acceptable
to the Administrative Agent); provided, however, that if the Borrower wishes to request a conversion or continuation of
LIBO Rate Loans with an Interest Period of other than one, two, three or six months in duration as provided in the definition of “Interest
Period,” (A) the applicable notice from the Borrower must be received by the Administrative Agent not later than 11:00 a.m. four
Business Days prior to the requested date of such conversion or continuation, whereupon the Administrative Agent shall give prompt notice
to the appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to them and (B) not later
than 10:00 a.m. three Business Days before the requested date of such conversion or continuation, the Administrative Agent shall notify
the Borrower whether or not the requested Interest Period has been consented to by all the appropriate Lenders.
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29
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Subject to Section 2.02(c) of the First Lien Credit
Agreement.
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30
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Must be a period contemplated by the definition of “Interest
Period”.
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(B) [on
[insert applicable date] (which is a Business Day), the undersigned will continue $[●] of the aggregate
outstanding principal amount of the [Term][Revolving] Loans bearing interest at the LIBO Rate, as LIBO Rate Loans having an
Interest Period of [●] month(s)31.]
[Signature Page Follows]
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31
|
Must be a period contemplated by the definition of “Interest
Period”.
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[KINGPIN INTERMEDIATE HOLDINGS LLC]
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By:
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Name:
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Title:
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EXHIBIT E
FORM OF
PERFECTION CERTIFICATE
[See attached]
EXHIBIT F
[Reserved]
EXHIBIT
G
[FORM OF]
PROMISSORY NOTE
|
$[●]
|
New York, New York
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|
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[●][●], 20[●]
|
FOR VALUE RECEIVED, the undersigned
hereby promises to pay on demand to [●] (the “Lender”) or its registered permitted assign, at the office of JPMorgan
Chase Bank, N.A. (“JPM”) at [●], [Term] [Revolving] [Swingline] Loans in the principal amount
of $[●] or such lesser amount as is outstanding from time to time, on the dates and in the amounts set forth in the First Lien Credit
Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified and in effect on the
date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings LLC, a Delaware limited
liability company (the “Borrower”), Bowlmor AMF Corp., a Delaware corporation (“Holdings”), the
lenders from time to time party thereto and JPM, in its capacities as an issuing bank, the swingline lender and as administrative agent
for the Lenders and collateral agent for the Secured Parties (in such capacity, the “Administrative Agent”). The Borrower
also promises to pay interest from the date of such Loans on the principal amount thereof from time to time outstanding, in like Dollars,
at such office, in each case, in the manner and at the rate or rates per annum and payable on the dates provided in the First Lien Credit
Agreement. Terms used but not defined herein shall have the meanings assigned to such terms in the First Lien Credit Agreement.
The Borrower promises to pay
interest on any overdue principal and, to the extent permitted by Requirements of Law, overdue interest from the relevant due dates, in
each case, in the manner, at the rate or rates and under the circumstances provided in the First Lien Credit Agreement.
The Borrower hereby waives
diligence, presentment, demand, protest and notice of any kind to the extent possible under any Requirements of Law. The non-exercise
by the holder hereof of any of its rights hereunder in any particular instance shall not constitute a waiver thereof in that or any subsequent
instance.
All Borrowings evidenced by
this promissory note and all payments and prepayments of the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder hereof on the schedules attached hereto and made a part hereof or on a continuation thereof which shall be attached
hereto and made a part hereof, or otherwise recorded by such holder in its internal records; provided, however, that the
failure of the holder hereof to make such a notation or any error in such notation shall not affect the obligations of the Borrower under
this Note.
This promissory note is one
of the promissory notes referred to in the First Lien Credit Agreement that, among other things, contains provisions for the acceleration
of the maturity hereof upon the happening of certain events, for optional and mandatory prepayment of the principal hereof prior to the
maturity hereof and for the amendment or waiver of certain provisions of the First Lien Credit Agreement, all upon the terms and conditions
therein specified. This promissory note is entitled to the benefit of the First Lien Credit Agreement, and the obligations hereunder are
guaranteed and secured as provided therein and in the other Loan Documents referred to in the First Lien Credit Agreement.
If any assignment by the Lender
holding this Promissory Note occurs after the date of the issuance hereof, the Lender agrees that it shall, upon the effectiveness of
such assignment or as promptly thereafter as practicable, surrender this Promissory Note to the Administrative Agent for cancellation
THE ASSIGNMENT OF THIS NOTE
AND ANY RIGHTS WITH RESPECT THERETO ARE SUBJECT TO THE PROVISIONS OF THE FIRST LIEN CREDIT AGREEMENT, INCLUDING THE PROVISIONS GOVERNING,
THE REGISTER AND THE PARTICIPANT REGISTER.
THIS PROMISSORY NOTE SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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[KINGPIN INTERMEDIATE HOLDINGS LLC],
as the Borrower
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By:
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Name:
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Title:
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SCHEDULE A
LOANS, CONVERSIONS AND REPAYMENTS OF ABR
LOANS
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Date
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Amount
of ABR Loans
|
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Amount Converted to ABR Loans
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Amount
of Principal of ABR Loans Repaid
|
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Amount of ABR Loans Converted to LIBO Rate Loans
|
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Unpaid
Principal Balance of ABR Loans
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Notation
Made
By
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SCHEDULE B
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS
OF LIBO RATE LOANS
|
Date
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Amount of LIBO Rate Loans
|
|
Amount Converted to LIBO Rate Loans
|
|
Interest Period and LIBO Rate with Respect Thereto
|
|
Amount of Principal of LIBO Rate Loans Repaid
|
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Amount of LIBO Rate Loans Converted to ABR Loans
|
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Unpaid Principal Balance of LIBO Rate Loans
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Notation Made By
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EXHIBIT H-1
[FORM OF]
FIRST LIEN TRADEMARK SECURITY AGREEMENT
This FIRST LIEN TRADEMARK
SECURITY AGREEMENT is entered into as of [●][●], 20[●], (this “Agreement”), among [●] ([each,
a][the] “Grantor”) and JPMorgan Chase Bank, N.A. (“JPM”), as collateral agent (in such
capacity, the “Collateral Agent”) for the Secured Parties.
Reference is made to
that certain First Lien Pledge and Security Agreement, dated as of July 3, 2017 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time and in effect on the date hereof, the “Security Agreement”),
among the Loan Parties party thereto and the Collateral Agent. The First Lien Lenders (as defined below) have extended credit to A-B
Merger Sub II LLC, a Delaware limited liability company (the “Borrower”)
subject to the terms and conditions set forth in that certain First Lien Credit Agreement dated as of July 3, 2017 (as amended,
restated, amended and restated, supplemented or otherwise modified and in effect on the date hereof, the “First Lien Credit
Agreement”), by and among Borrower, A-B Merger Sub I Inc., a Delaware corporation (“Holdings”), the
lenders from time to time party thereto (collectively, the “First Lien Lenders”) and JPM, in its capacities as an
issuing bank, the swingline lender and as administrative agent for the First Lien Lenders and collateral agent for the Secured
Parties. Consistent with the requirements set forth in Sections 4.01 and 5.12 of the First Lien Credit Agreement and Section
4.03(c) of the Security Agreement, the parties hereto agree as follows:
SECTION 1. Terms.
Capitalized terms used in this Agreement and not otherwise defined herein have the meanings specified in the Security Agreement.
SECTION 2. Grant of
Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full of the Secured
Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign, mortgage,
transfer and grant to the Collateral Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of the Secured
Parties, a continuing security interest in all of its right, title or interest in, to or under all of the following assets, whether now
owned or at any time hereafter acquired by or arising in favor of [such][the] Grantor and regardless of where located (collectively,
the “Trademark Collateral”):
A. all
Trademarks, including those Trademark registrations and registration applications in the United States Patent and Trademark Office listed
on Schedule I hereto;
B.
all goodwill associated with or symbolized by the Trademarks;
C.
all assets, rights and interests that uniquely reflect or embody the Trademarks;
D. the
right to sue third parties for past, present and future infringements, dilutions or violations of any Trademark; and
E.
all proceeds of and rights associated with the foregoing;
in each case to the extent the foregoing items constitute Collateral.
Notwithstanding anything to the contrary in (A) through (E)
above, this Agreement shall not constitute a grant of a security interest in any Excluded Assets, including any “intent-to-use”
Trademark applications prior to the filing and acceptance of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act
or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto.
SECTION 3. Security
Agreement. The security interests granted to the Collateral Agent herein are granted in furtherance, and not in limitation of,
the security interests granted to the Collateral Agent pursuant to the Security Agreement. [Each][The] Grantor hereby acknowledges
and affirms that the rights and remedies of the Collateral Agent with respect to the Trademark Collateral are more fully set forth in
the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein. In
the event of any conflict between the terms of this Agreement and the Security Agreement, the terms of the Security Agreement shall govern.
SECTION 4. Governing
Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the day and year first above written.
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[●]
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By:
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Name: [●]
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Title: [●]
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JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
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By:
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Name:
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Title:
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SCHEDULE I
TRADEMARKS
|
REGISTERED OWNER
|
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REGISTRATION NUMBER
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TRADEMARK
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TRADEMARKS APPLICATIONS
|
APPLICANT
|
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APPLICATION NO.
|
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TRADEMARK
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EXHIBIT A
[FORM OF]
FIRST LIEN TRADEMARK SECURITY AGREEMENT SUPPLEMENT
This FIRST LIEN TRADEMARK
SECURITY AGREEMENT SUPPLEMENT is entered into as of [●][●], 20[●], this “Trademark Security Agreement Supplement”),
among [●] ([each, a][the] “Grantor”) and JPMorgan Chase Bank, N.A. (“JPM”), as collateral agent (in such
capacity, the “Collateral Agent”) for the Secured Parties.
Reference is made to that
certain First Lien Pledge and Security Agreement, dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or
otherwise modified from time to time and in effect on the date hereof, the “Security Agreement”), among the Loan Parties
party thereto and the Collateral Agent. The First Lien Lenders (as defined below) have extended credit to Kingpin Intermediate Holdings
LLC, a Delaware limited liability company (the “Borrower”) subject to the terms and conditions set forth in that certain
First Lien Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified and
in effect on the date hereof, the “First Lien Credit Agreement”), by and among Borrower, Bowlmor AMF Corp., a Delaware
corporation (“Holdings”), the lenders from time to time party thereto (collectively, the “First Lien Lenders”)
and JPM, in its capacities as an issuing bank, the swingline lender and as administrative agent for the First Lien Lenders and collateral
agent for the Secured Parties. Consistent with the requirements set forth in Sections 4.01 and 5.12 of the First Lien Credit
Agreement, the [Grantor][Grantors] and the Collateral Agent have entered into that certain First Lien Trademark Security
Agreement, dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time
and in effect on the date hereof, the “Trademark Security Agreement”). Under the terms of the Security Agreement, the
Grantor has granted to the Collateral Agent for the benefit of the Secured Parties as security interest in the Additional Trademark Collateral
(as defined below) and have agreed, consistent with the requirements of Section 4.03(c) of the Security Agreement, to execute this
Trademark Security Agreement Supplement. Now, therefore, the parties hereto agree as follows:
SECTION 1. Terms.
Capitalized terms used in this Trademark Security Agreement Supplement and not otherwise defined herein have the meanings specified in
the Security Agreement.
SECTION 2. Grant of
Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full of the Secured
Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign, mortgage,
transfer and grant to the Collateral Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of the Secured
Parties, a continuing security interest in all of its right, title or interest in, to or under all of the following assets, whether now
owned or at any time hereafter acquired by or arising in favor of the [such][the] Grantor and regardless of where located
(collectively, the “Additional Trademark Collateral”):
A. the
Trademark registrations and registration applications in the United States Patent and Trademark Office listed on Schedule I hereto;
B. all
goodwill associated with or symbolized by such Trademark registrations and registration applications;
C. all
assets, rights and interests that uniquely reflect or embody such Trademark registrations and registration applications;
D. the
right to sue third parties for past, present and future infringements, dilutions or violations of such Trademark registrations and registration
applications; and
E.
all proceeds of and rights associated with the foregoing;
in each case to the extent the foregoing items constitute Collateral.
Notwithstanding anything to the contrary in (A)
through (E) above, this Trademark Security Agreement Supplement shall not constitute a grant of a security interest in any Excluded Assets,
including any “intent-to-use” Trademark applications prior to the filing and acceptance of a “Statement of Use”
pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with
respect thereto.
SECTION 3. Security
Agreement. The security interests granted to the Collateral Agent herein are granted in furtherance, and not in limitation of,
the security interests granted to the Collateral Agent pursuant to the Security Agreement. [Each][The] Grantor hereby acknowledges
and affirms that the rights and remedies of the Collateral Agent with respect to the Additional Trademark Collateral are more fully set
forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein.
In the event of any conflict between the terms of this Trademark Security Agreement Supplement and the Security Agreement, the terms of
the US Security Agreement shall govern.
SECTION 4. Governing
Law. This Trademark Security Agreement Supplement shall be governed by, and construed in accordance with, the laws of the State
of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have duly
executed this Trademark Security Agreement Supplement as of the day and year first above written.
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[●]
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By:
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Name: [●]
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Title: [●]
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JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
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By:
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Name:
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Title:
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SCHEDULE I
TRADEMARKS
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REGISTERED OWNER
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REGISTRATION NUMBER
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TRADEMARK
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TRADEMARKS APPLICATIONS
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APPLICANT
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APPLICATION NO.
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TRADEMARK
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EXHIBIT H-2
[FORM OF]
FIRST LIEN PATENT SECURITY AGREEMENT
This FIRST LIEN PATENT SECURITY
AGREEMENT is entered into as of [●][●], 20[●] (this “Agreement”), among [●] ([each, a][the]
“Grantor”) and JPMorgan Chase Bank, N.A. (“JPM”), as collateral agent (in such capacity, the “Collateral
Agent”) for the Secured Parties.
Reference is made to that
certain First Lien Pledge and Security Agreement, July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time and in effect on the date hereof, the “Security Agreement”), among the Loan Parties party
thereto and the Collateral Agent. The First Lien Lenders (as defined below) have extended credit to A-B Merger Sub II LLC, a Delaware
limited liability company (the “Borrower”) subject to the terms and conditions set forth in that certain First Lien
Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified and in effect
on the date hereof, the “First Lien Credit Agreement”), by and among Borrower, A-B Merger Sub I Inc.., a Delaware corporation
(“Holdings”), the lenders from time to time party thereto (collectively, the “First Lien Lenders”)
and JPM, in its capacities as an issuing bank, the swingline lender and as administrative agent for the First Lien Lenders and collateral
agent for the Secured Parties. Consistent with the requirements set forth in Sections 4.01 and 5.12 of the First Lien Credit
Agreement and Section 4.03(c) of the Security Agreement, the parties hereto agree as follows:
SECTION 1. Terms.
Capitalized terms used in this Agreement and not otherwise defined herein have the meanings specified in the Security Agreement.
SECTION 2. Grant of
Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full of the Secured
Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign, mortgage,
transfer and grant to the Collateral Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of the Secured
Parties, a continuing security interest in all right, title or interest in, to or under all of the following assets, whether now owned
or at any time hereafter acquired by or arising in favor of [such][the] Grantor and regardless of where located (collectively,
the “Patent Collateral”):
A. all
Patents, including those Patent registrations and pending applications in the United States Patent and Trademark Office listed on Schedule
I hereto;
B.
the right to sue third parties for past, present and future infringements of any Patent; and
C.
all proceeds of and any right associated with the foregoing;
in each case to the extent the foregoing items constitute Collateral.
Notwithstanding anything to the contrary in (A) through (C)
above, this Agreement shall not constitute a grant of a security interest in any Excluded Assets.
SECTION 3. Security Agreement. The
security interests granted to the Collateral Agent herein are granted in furtherance, and not in limitation of, the security interests
granted to the Collateral Agent pursuant to the Security Agreement. [Each][The] Grantor hereby acknowledges and affirms
that the rights and remedies of the Collateral Agent with respect to the Patent Collateral are more fully set forth in the Security Agreement,
the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein. In the event of any conflict
between the terms of this Agreement and the Security Agreement, the terms of the Security Agreement shall govern.
SECTION 4. Governing Law. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the day and year first above written.
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[●]
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By:
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Name: [●]
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Title: [●]
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JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
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By:
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Name:
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Title:
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SCHEDULE I
PATENTS
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REGISTERED OWNER
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SERIAL
NUMBER
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DESCRIPTION
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PATENTS APPLICATIONS
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APPLICANT
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APPLICATION NO.
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DESCRIPTION
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EXHIBIT A
[FORM OF]
FIRST LIEN PATENT SECURITY AGREEMENT SUPPLEMENT
This FIRST LIEN PATENT SECURITY
AGREEMENT SUPPLEMENT is entered into as of [●][●], 20[●] (this “Patent Security Agreement Supplement”),
among [●] ([each, a][the] “Grantor”) and JPMorgan Chase Bank, N.A. (“JPM”),
as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties.
Reference is made to that certain First Lien Pledge
and Security Agreement, dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from
time to time and in effect on the date hereof, the “Security Agreement”), among the Loan Parties party thereto and
the Collateral Agent. The First Lien Lenders (as defined below) have extended credit to Kingpin Intermediate Holdings LLC, a Delaware
limited liability company (the “Borrower”) subject to the terms and conditions set forth in that certain First Lien
Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified and in effect
on the date hereof, the “First Lien Credit Agreement”), by and among, the Borrower, Bowlmor AMF Corp., a Delaware corporation
(“Holdings”), the lenders from time to time party thereto (collectively, the “First Lien Lenders”)
and JPM, in its capacities as an issuing bank, the swingline lender and as administrative agent for the First Lien Lenders and collateral
agent for the Secured Parties. Consistent with the requirements set forth in Sections 4.01 and 5.12 of the First Lien Credit
Agreement, the [Grantor][Grantors] and the Collateral Agent have entered into that certain First Lien Patent Security Agreement,
dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time and in effect
on the date hereof, the “Patent Security Agreement”). Under the terms of the Security Agreement, the Grantor has granted
to the Collateral Agent for the benefit of the Secured Parties as security interest in the Additional Patent Collateral (as defined below)
and have agreed, consistent with the requirements of Section 4.03(c) of the Security Agreement, to execute this Patent Security
Agreement Supplement. Now, therefore, the parties hereto agree as follows:
SECTION 1. Terms.
Capitalized terms used in this Patent Security Agreement Supplement and not otherwise defined herein have the meanings specified in the
Security Agreement.
SECTION 2. Grant of
Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full of the Secured
Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign, mortgage,
transfer and grant to the Collateral Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of the Secured
Parties, a continuing security interest in all right, title or interest in, to or under all of the following assets, whether now owned
or at any time hereafter acquired by or arising in favor of [such][the] Grantor and regardless of where located (collectively,
the “Additional Patent Collateral”):
A. the
Patent registrations and pending applications in the United States Patent and Trademark Office listed on Schedule I hereto;
B. the
right to sue third parties for past, present and future infringements of such Patent registrations and pending applications; and
C.
all proceeds of and any right associated with the foregoing;
in each case to the extent the foregoing items constitute Collateral.
Notwithstanding anything to the contrary in (A) through (C)
above, this Patent Security Agreement Supplement shall not constitute a grant of a security interest in any Excluded Assets.
SECTION 3. Security
Agreement. The security interests granted to the Collateral Agent herein are granted in furtherance, and not in limitation of,
the security interests granted to the Collateral Agent pursuant to the Security Agreement. [Each][The] Grantor hereby acknowledges
and affirms that the rights and remedies of the Collateral Agent with respect to the Additional Patent Collateral are more fully set forth
in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein.
In the event of any conflict between the terms of this Patent Security Agreement Supplement and the Security Agreement, the terms of the
Security Agreement shall govern.
SECTION 4. Governing
Law. This Patent Security Agreement Supplement shall be governed by, and construed in accordance with, the laws of the State of
New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have duly
executed this Patent Security Agreement Supplement as of the day and year first above written.
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[●]
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By:
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Name: [●]
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Title: [●]
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JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
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By:
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Name:
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Title:
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SCHEDULE I
PATENTS
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REGISTERED OWNER
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SERIAL NUMBER
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DESCRIPTION
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PATENTS APPLICATIONS
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APPLICANT
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APPLICATION NO.
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DESCRIPTION
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EXHIBIT H-3
[FORM OF]
FIRST LIEN COPYRIGHT SECURITY AGREEMENT
This FIRST LIEN COPYRIGHT
SECURITY AGREEMENT is entered into as of [●] [●],[●] (this “Agreement”), among [●]
([each, a][the] “Grantor”) and JPMorgan Chase Bank, N.A. (“JPM”), as collateral agent
(in such capacity, the “Collateral Agent”) for the Secured Parties.
Reference is made to that
certain First Lien Pledge and Security Agreement, dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or
otherwise modified from time to time and in effect on the date hereof, the “Security Agreement”), among the Loan Parties
party thereto and the Collateral Agent. The First Lien Lenders (as defined below) have extended credit to A-B Merger Sub II LLC, a Delaware
limited liability company (the “Borrower”) subject to the terms and conditions set forth in that certain First Lien
Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified and in effect
on the date hereof, the “First Lien Credit Agreement”), by and among the Borrower, A-B Merger Sub I Inc., a Delaware
corporation (“Holdings”), the lenders from time to time party thereto (collectively, the “First Lien Lenders”)
and JPM, in its capacities as an issuing bank, the swingline lender and as administrative agent for the First Lien Lenders and collateral
agent for the Secured Parties. Consistent with the requirements set forth in Sections 4.01 and 5.12 of the First Lien Credit
Agreement and Section 4.03(c) of the Security Agreement, the parties hereto agree as follows:
SECTION 1. Terms.
Capitalized terms used in this Agreement and not otherwise defined herein have the meanings specified in the Security Agreement.
SECTION 2. Grant of
Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full of the Secured
Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign, mortgage,
transfer and grant to the Collateral Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of the Secured
Parties, a continuing security interest in all right, title or interest in, to or under all of the following assets, whether now owned
or at any time hereafter acquired by [such][the] Grantor and regardless of where located (collectively, the “Copyright
Collateral”):
A. all
Copyrights, including those Copyright registrations and pending applications for registration in the United States Copyright Office listed
on Schedule I;
B.
the right to sue third parties for past, present and future infringements of any Copyright, and
C.
all proceeds of and rights associated with the foregoing;
in each case to the extent the foregoing items constitute Collateral.
Notwithstanding anything to the contrary in (A) through (C)
above, this Agreement shall not constitute a grant of a security interest in any Excluded Assets.
SECTION
3. Security Agreement. The security interests granted to the Collateral Agent herein are granted in furtherance, and
not in limitation of, the security interests granted to the Collateral Agent pursuant to the Security Agreement.
[Each][The] Grantor hereby acknowledges and affirms that the rights and remedies of the Collateral Agent with respect
to the Copyright Collateral are more fully set forth in the Security Agreement, the terms and provisions of which are hereby
incorporated herein by reference as if fully set forth herein. In the event of any conflict between the terms of this Agreement and
the Security Agreement, the terms of the Security Agreement shall govern.
SECTION 4. Governing Law. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the day and year first above written.
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[●]
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By:
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Name: [●]
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Title: [●]
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JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
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By:
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Name:
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Title:
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SCHEDULE I
COPYRIGHTS
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REGISTERED OWNER
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REGISTRATION
NUMBER
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TITLE
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COPYRIGHT APPLICATIONS
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APPLICANT
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APPLICATION NUMBER
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TITLE
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EXHIBIT A
[FORM OF]
FIRST LIEN COPYRIGHT SECURITY AGREEMENT SUPPLEMENT
This FIRST LIEN COPYRIGHT
SECURITY AGREEMENT SUPPLEMENT is entered into as of [●][●], [●] (this “Copyright Security Agreement Supplement”),
among [●] ([each, a][the] “Grantor”) and JPMorgan Chase Bank, N.A. (“JPM”),
as Collateral Agent (the “Collateral Agent”) for the Secured Parties.
Reference is made to that
certain First Lien Pledge and Security Agreement, dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or
otherwise modified from time to time and in effect on the date hereof, the “Security Agreement”), among the Loan Parties
party thereto and the Collateral Agent. The First Lien Lenders (as defined below) have extended credit to Kingpin Intermediate Holdings
LLC, a Delaware limited liability company subject to the terms and conditions set forth in that certain First Lien Credit Agreement dated
as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified and in effect on the date hereof, the
“First Lien Credit Agreement”), by and among Borrower, Bowlmor AMF Corp., a Delaware corporation (“Holdings”),
the lenders from time to time party thereto (collectively, the “First Lien Lenders”) and JPM, in its capacities as
an issuing bank, the swingline lender for the First Lien Lenders and as administrative agent and collateral agent for the Secured Parties.
Consistent with the requirements set forth in Sections 4.01 and 5.12 of the First Lien Credit Agreement, the [Grantor][Grantors]
and the Collateral Agent have entered into that certain First Lien Copyright Security Agreement, dated as of July 3, 2017 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to time and in effect on the date hereof, the “Copyright
Security Agreement”). Under the terms of the Security Agreement, the Grantor has granted to the Collateral Agent for the benefit
of the Secured Parties as security interest in the Additional Copyright Collateral (as defined below) and have agreed, consistent with
the requirements of Section 4.03(c) of the Security Agreement, to execute this Copyright Security Agreement Supplement. Now, therefore,
the parties hereto agree as follows:
SECTION 1. Terms.
Capitalized terms used in this Copyright Security Agreement Supplement and not otherwise defined herein have the meanings specified in
the Security Agreement.
SECTION 2. Grant of
Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full of the Secured
Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign, mortgage,
transfer and grant to the Collateral Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of the Secured
Parties, a continuing security interest in all right, title or interest in, to or under all of the following assets, whether now owned
or at any time hereafter acquired by [such][the] Grantor and regardless of where located (collectively, the “Additional
Copyright Collateral”):
A. the
Copyright registrations and pending applications for registration in the United States Copyright Office listed on Schedule I hereto;
B. the
right to sue third parties for past, present and future infringements of such Copyright registrations and pending applications for registration,
and
C.
all proceeds of and rights associated with the foregoing;
in each case to the extent the foregoing items constitute Collateral.
Notwithstanding anything to the contrary in (A) through (C)
above, this Copyright Security Agreement Supplement shall not constitute a grant of a security interest in any Excluded Assets.
SECTION 3. Security
Agreement. The security interests granted to the Collateral Agent herein are granted in furtherance, and not in limitation of,
the security interests granted to the Collateral Agent pursuant to the Security Agreement. [Each][The] Grantor hereby acknowledges
and affirms that the rights and remedies of the Collateral Agent with respect to the Additional Copyright Collateral are more fully set
forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein.
In the event of any conflict between the terms of this Copyright Security Agreement Supplement and the Security Agreement, the terms of
the Security Agreement shall govern.
SECTION 4. Governing
Law. This Copyright Security Agreement Supplement shall be governed by, and construed in accordance with, the laws of the State
of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have duly
executed this Copyright Security Agreement Supplement as of the day and year first above written.
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[●]
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By:
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Name: [●]
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Title: [●]
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JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
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By:
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Name:
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Title:
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SCHEDULE I
COPYRIGHTS
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REGISTERED OWNER
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REGISTRATION
NUMBER
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TITLE
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COPYRIGHT APPLICATIONS
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APPLICANT
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APPLICATION NUMBER
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TITLE
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EXHIBIT I
FORM OF
GUARANTY AGREEMENT
[See attached]
EXECUTION VERSION
FIRST LIEN LOAN GUARANTY
THIS FIRST LIEN LOAN GUARANTY
(as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Loan Guaranty”)
is entered into as of July 3, 2017 by and among A-B Merger Sub I Inc., a Delaware corporation, and after giving effect to the Merger Sub
I Merger, Bowlmor AMF Corp., a Delaware corporation (“Holdings”), the Subsidiary Parties (as defined below) from time
to time party hereto (Holdings and the Subsidiary Parties, collectively, the “Loan Guarantors”) and JPMorgan Chase
Bank, N.A., in its capacity as administrative agent and collateral agent for the lenders party the First Lien Credit Agreement referred
to below (in such capacity, the “Administrative Agent”).
PRELIMINARY STATEMENT
Reference is hereby made to
that certain First Lien Credit Agreement dated as of July 3 , 2017 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “First Lien Credit Agreement”), by and among, inter alios, Holdings, the Borrower
(as defined below), the First Lien Lenders (as defined below) and the Administrative Agent.
The Loan Guarantors are entering
into this Loan Guaranty in order to induce the First Lien Lenders to enter into and extend credit to the Borrower under the First Lien
Credit Agreement and to guarantee the Secured Obligations.
Each Loan Guarantor will obtain
benefits from the incurrence of Loans by the Borrower and the issuance of, and participation in, Letters of Credit for the account of
the Borrower and its subsidiaries and the incurrence by the Loan Parties of Secured Hedging Obligations and Banking Services Obligations.
ACCORDINGLY, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions
of Certain Terms Used Herein. As used in this Loan Guaranty, in addition to the terms defined in the preamble and Preliminary Statement
above, the following terms shall have the following meanings:
“Accommodation Payment” has the meaning
assigned to such term in Section 2.09.
“Administrative Agent” has the meaning
assigned to such term in the preamble.
“Article”
means a numbered article of this Loan Guaranty, unless another document is specifically referenced.
“Borrower” means the “Borrower”
under and as defined in the First Lien Credit Agreement.
“Exhibit”
refers to a specific exhibit to this Loan Guaranty, unless another document is specifically referenced.
“First Lien Credit
Agreement” has the meaning assigned to such term in the Preliminary Statement.
“First Lien Lenders” means the
“Lenders” under and as defined in the First Lien Credit Agreement.
“Guaranteed Obligations” has the meaning
assigned to such term in Section 2.01.
“Guarantor Percentage” has the meaning
assigned to such term in Section 2.09(a).
“Guaranty Supplement” has the meaning
assigned to such term in Section 3.04.
“Holdings” has the meaning set forth in
the preamble, or, as applicable, means New Holdings.
“Loan Guarantors” has the meaning assigned
to such term in the preamble.
“Loan Guaranty” has the meaning assigned
to such term in the preamble.
“Maximum Liability” has the meaning assigned
to such term in Section 2.09(a).
“Non-ECP Guarantor” means each Loan Guarantor
other than a Qualified ECP Guarantor.
“Non-Paying Guarantor” has the meaning
assigned to such term in Section 2.09(a).
“Obligated Party” has the meaning assigned
to such term in Section 2.02.
“Paying Guarantor” has the meaning assigned
to such term in Section 2.09(a).
“Qualified ECP Guarantor”
means, in respect of any Swap Obligation, each Loan Guarantor that has total assets exceeding $10,000,000 at the time the relevant Loan
Guaranty or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes
an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause
another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II)
of the Commodity Exchange Act.
“Section”
means a numbered section of this Loan Guaranty, unless another document is specifically referenced.
“subsidiary” has the meaning assigned
to such term in the First Lien Credit Agreement.
“Subsidiary Parties”
means (a) the Restricted Subsidiaries of the Borrower identified on Exhibit A hereto and (b) each other Restricted Subsidiary that
becomes a party to this Loan Guaranty as a Subsidiary Party after the date hereof, in accordance with Section 3.04 herein and Section
5.12 of the First Lien Credit Agreement.
“UFCA” has the meaning assigned to such
term in Section 2.09(a).
“UFTA” has the meaning assigned to such
term in Section 2.09(a).
The foregoing definitions
shall be equally applicable to both the singular and plural forms of the defined terms. Capitalized terms used in this Loan Guaranty and
not otherwise defined herein shall have the meanings set forth in the First Lien Credit Agreement.
ARTICLE 2
LOAN GUARANTY
Section 2.01. Guaranty.
Except as otherwise provided for herein (including under Section 3.15), each Loan Guarantor hereby agrees that it is jointly and
severally liable for, and, as primary obligor and not merely as surety, absolutely, unconditionally and irrevocably guarantees to the
Administrative Agent (acting as agent for the Secured Parties, pursuant to Article 8 of the First Lien Credit Agreement) for the
ratable benefit of the Secured Parties, the full and prompt payment, when and as the same shall become due, whether at stated maturity,
upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations (excluding, for the avoidance of doubt, any Excluded
Swap Obligations), together with any and all expenses which may be incurred by the Administrative Agent and the other Secured Parties
in collecting any of the Guaranteed Obligations that are reimbursable in accordance with Section 9.03 of the First Lien Credit
Agreement (collectively, the “Guaranteed Obligations”). Each Loan Guarantor further agrees that the Guaranteed Obligations
may be extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee
notwithstanding any such extension or renewal. If any or all of the Guaranteed Obligations becomes due and payable hereunder, each Loan
Guarantor, unconditionally and irrevocably, promises to pay such Guaranteed Obligations to the Administrative Agent for the benefit of
the Secured Parties, on demand. Each Loan Guarantor unconditionally and irrevocably guarantees the payment of any and all of the Guaranteed
Obligations whether or not due or payable by the Borrower upon the occurrence of any of the Events of Default specified in Sections
7.01(f) or (g) of the First Lien Credit Agreement and thereafter irrevocably and unconditionally promises to pay such Guaranteed
Obligations to the Administrative Agent for the benefit of the Secured Parties. This Loan Guaranty is a continuing one and all liabilities
to which it applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
Section 2.02. Guaranty
of Payment. This Loan Guaranty is a guaranty of payment and not of collection. Each Loan Guarantor waives any right to require the
Administrative Agent or any First Lien Lender to sue the Borrower, any Loan Guarantor, any other guarantor, or any other Person obligated
for all or any part of the Guaranteed Obligations (each of the Borrower, each Loan Guarantor, each other guarantor or such other Person,
an “Obligated Party”), or otherwise to enforce its rights in respect of any Collateral securing all or any part of
the Guaranteed Obligations. The Administrative Agent may enforce this Loan Guaranty at any time when an Event of Default has occurred
and is continuing.
Section 2.03. No Discharge
or Diminishment of Loan Guaranty.
(a) Except
as otherwise provided for herein (including under Section 3.15), the obligations of each Loan Guarantor hereunder are
unconditional, irrevocable and absolute and not subject to any reduction, limitation, impairment or termination for any reason,
including: (i) any claim of waiver, release, extension, renewal, settlement, surrender, alteration, or compromise of any of the
Guaranteed Obligations, by operation of law or otherwise; (ii) any change in the corporate existence, structure or ownership of the
Borrower or any Obligated Party; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any other
Obligated Party, or their assets or any resulting release or discharge of any obligation of any Obligated Party; (iv) the existence
of any claim, setoff or other rights which any Loan Guarantor may have at any time against any Obligated Party, the Administrative
Agent, any First Lien Lender or any other Person, whether in connection herewith or in any unrelated transactions; (v) any direction
as to application of payments by the Borrower or by any other party; (vi) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Guaranteed Obligations; (vii) any payment on or in reduction of any
such other guaranty or undertaking; (viii) any dissolution, termination or increase, decrease or change in personnel by the Borrower
or (ix) any payment made to any Secured Party on the Guaranteed Obligations which any such Secured Party repays to the Borrower
pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each Loan
Guarantor waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding.
(b) Except
for termination of a Loan Guarantor’s obligations hereunder or as expressly permitted by Section 3.15, the obligations of
each Loan Guarantor hereunder are not subject to any defense or setoff, counterclaim, recoupment, or termination whatsoever by reason
of the invalidity, illegality, or unenforceability of any of the Guaranteed Obligations or otherwise, or any Requirements of Law purporting
to prohibit payment by any Obligated Party, of the Guaranteed Obligations or any part thereof.
(c) Further,
the obligations of any Loan Guarantor hereunder are not discharged or impaired or otherwise affected by: (i) the failure of the
Administrative Agent to assert any claim or demand or to enforce any remedy with respect to all or any part of the Guaranteed
Obligations; (ii) any waiver or modification of or supplement to any provision of any agreement relating to the Guaranteed
Obligations; (iii) any release, non-perfection, or invalidity of any indirect or direct security for the obligations of the Borrower
for all or any part of the Guaranteed Obligations or any obligations of any other guarantor of or other Person liable for any of the
Guaranteed Obligations; (iv) any action or failure to act by the Administrative Agent with respect to any Collateral securing any
part of the Guaranteed Obligations; or (v) any default, failure or delay, willful or otherwise, in the payment or performance of any
of the Guaranteed Obligations, or any other circumstance, act, omission or delay that might in any manner or to any extent vary the
risk of such Loan Guarantor or that would otherwise operate as a discharge of any Loan Guarantor as a matter of law or equity, in
each case, other than as set forth in Section 3.15.
Section 2.04. Defenses
Waived. To the fullest extent permitted by applicable law, and except for termination of a Loan Guarantor’s obligations
hereunder or as otherwise provided for herein (including under Section 3.15), each Loan Guarantor hereby waives any defense
based on or arising out of any defense of the Borrower or any other Loan Guarantor or arising out of the disability of the Borrower
or any other Loan Guarantor or any other party or the unenforceability of all or any part of the Guaranteed Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of the Borrower or any other Loan Guarantor. Without
limiting the generality of the foregoing, each Loan Guarantor irrevocably waives acceptance hereof, presentment, demand, protest
and, to the fullest extent permitted by applicable law, any notice not provided for herein or in any other Loan Document, including
notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Loan Guaranty, and notices of the
existence, creation or incurring of new or additional Guaranteed Obligations, as well as any requirement that at any time any action
be taken by any Person against any Obligated Party, or any other Person, including any right (except as may be required by
applicable law and to the extent the relevant requirement cannot be waived) to require the Administrative Agent to (i) proceed
against the Borrower, any other Loan Guarantor or any other party, (ii) proceed against or exhaust any security held from the
Borrower, any other Loan Guarantor or any other party or (iii) pursue any other remedy in the Administrative Agent’s power
whatsoever. The Administrative Agent may, at its election and in accordance with the terms of the applicable Loan Documents,
foreclose on any Collateral held by it by one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent permitted by applicable law), accept an assignment of any such Collateral in lieu of
foreclosure or otherwise act or fail to act with respect to any Collateral securing all or a part of the Guaranteed Obligations, and
the Administrative Agent may, at its election, compromise or adjust any part of the Guaranteed Obligations, make any other
accommodation with any Obligated Party or exercise any other right or remedy available to it against any Obligated Party, or any
security, without affecting or impairing in any way the liability of such Loan Guarantor under this Loan Guaranty, except as
otherwise provided in Section 3.15. To the fullest extent permitted by applicable law, each Loan Guarantor waives any defense
arising out of any such election even though such election may operate, pursuant to applicable law, to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of any Loan Guarantor against any Obligated Party or any
security.
Section 2.05. Authorization.
Each Loan Guarantor authorizes the Administrative Agent without notice or demand (except as may be required by applicable law and to the
extent the relevant requirement cannot be waived), and without affecting or impairing its liability hereunder (except as set forth in
Section 3.15), from time to time, subject to the Intercreditor Agreement and the terms of the referenced Loan Documents, to:
(a) change
the manner, place or terms of payment of, and/or change or extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon),
any security therefor, or any liability incurred directly or indirectly in respect thereof, and this Loan Guaranty shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take
and hold security for the payment of the Guaranteed Obligations and sell, exchange, release, impair, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing,
the Guaranteed Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset there against;
(c) exercise
or refrain from exercising any rights against the Borrower, any other Loan Party or others or otherwise act or refrain from acting;
(d) release
or substitute any endorser, any guarantor, the Borrower, any other Loan Party and/or any other obligor;
(e) settle
or compromise any of the Guaranteed Obligations, any security therefor or any liability (including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability
(whether due or not) of the Borrower to its creditors other than the Secured Parties;
(f) apply
any sums by whomsoever paid or howsoever realized to any liability or liabilities of the Borrower to the Secured Parties regardless of
what liability or liabilities of the Borrower remain unpaid;
(g) consent
to or waive any breach of, or any act, omission or default under, this Loan Guaranty, the First Lien Credit Agreement, any other Loan
Document, any Hedge Agreement with respect to any Secured Hedging Obligation, any instrument or agreement relating to Banking Services
Obligations or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify or supplement this Loan
Guaranty, the First Lien Credit Agreement, any other Loan Document, any Hedge Agreement with respect to any Secured Hedging Obligation,
any instrument or agreement relating to Banking Services Obligations or any of such other instruments or agreements; and/or
(h) take
any other action which would, under otherwise applicable principles of common law, give rise to a legal or equitable discharge of the
Loan Guarantors from their respective liabilities under this Loan Guaranty.
Section 2.06. Rights of
Subrogation. No Loan Guarantor will assert any right, claim or cause of action, including a claim of subrogation, contribution or
indemnification that it has against any Loan Party in respect of this Loan Guaranty until the occurrence of the Termination Date; provided
that if any amount shall be paid to such Loan Guarantor on account of such subrogation rights at any time prior to the Termination Date,
then unless such Loan Guarantor has already discharged its liabilities under this Loan Guaranty in an amount equal to such Loan Guarantor’s
Maximum Liability as of such date, such amount shall be held by the recipient Loan Guarantor in trust for the benefit of the Secured Parties
and shall forthwith be paid by the recipient Loan Guarantor to the Administrative Agent to be credited and applied to the Guaranteed Obligations,
whether matured or unmatured, in accordance with Section 2.18(b) of the First Lien Credit Agreement.
Section 2.07. Reinstatement;
Stay of Acceleration. If at any time any payment of any portion of the Guaranteed Obligations is rescinded or must otherwise be restored
or returned upon the insolvency, bankruptcy, or reorganization of the Borrower or otherwise, each Loan Guarantor’s obligations under
this Loan Guaranty with respect to that payment shall be reinstated at such time as though the payment had not been made. If acceleration
of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower,
all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Guaranteed Obligations shall nonetheless
be payable by the other Loan Guarantors forthwith on demand by the Administrative Agent.
Section 2.08. Information.
Each Loan Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks that each Loan Guarantor assumes and incurs under this Loan Guaranty, and agrees that none of the Administrative Agent, any First
Lien Lender or any other Secured Party shall have any duty to advise any Loan Guarantor of information known to it regarding those circumstances
or risks.
Section 2.09. Contribution;
Subordination; Maximum Liability.
(a) In the
event any Loan Guarantor (a “Paying Guarantor”) makes any payment or payments under this Loan Guaranty or suffers
any loss as a result of any realization upon any Collateral granted by it to secure its obligations under this Loan Guaranty (each
such payment or loss, an “Accommodation Payment”), each other Loan Guarantor (each a “Non-Paying
Guarantor”) shall contribute to such Paying Guarantor an amount equal to such Non-Paying Guarantor’s
“Guarantor Percentage” of such Accommodation Payments by such Paying Guarantor. For purposes of this Article 2,
each Non-Paying Guarantor’s “Guarantor Percentage” with respect to any such Accommodation Payments by a
Paying Guarantor shall be determined as of the date on which such Accommodation Payment was made by reference to the ratio of (a)
such Non-Paying Guarantor’s Maximum Liability (as defined below) as of such date to (b) the aggregate Maximum Liability of all
Loan Guarantors hereunder (including such Paying Guarantor) as of such date. As of any date of determination, the “Maximum
Liability” of each Loan Guarantor shall be equal to the maximum amount of liability which could be asserted against such
Loan Guarantor hereunder and under the First Lien Credit Agreement without (i) rendering such Loan Guarantor “insolvent”
within the meaning of Section 101(32) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act
(“UFTA”) or Section 2 of the Uniform Fraud Conveyance Act (“UFCA”), (ii) leaving such Loan
Guarantor with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA
or Section 5 of the UFCA, or (iii) leaving such Loan Guarantor unable to pay its debts as they become due within the meaning of
Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA. Nothing in this provision shall affect any Loan
Guarantor’s several liability for the entire amount of the Guaranteed Obligations (up to such Loan Guarantor’s Maximum
Liability). Each of the Loan Guarantors covenants and agrees that its right to receive any contribution under this Loan Guaranty
from a Non-Paying Guarantor shall be subordinate and junior in right of payment to the Secured Obligations until the Termination
Date. If, prior to the Termination Date, any such contribution payments are received by a Paying Guarantor at any time when an Event
of Default has occurred and is continuing, such contribution payments shall be collected, enforced and received by such Loan
Guarantor as trustee for the Secured Parties and be paid over to the Administrative Agent on account of the Secured Obligations, but
without affecting or impairing in any manner the liability of such Loan Guarantor under the other provisions of this Loan Guaranty.
This provision is for the benefit of the Administrative Agent, the First Lien Lenders and the other Secured Parties.
(b) It is the
desire and intent of the Loan Guarantors and the Secured Parties that this Loan Guaranty shall be enforced against the Loan
Guarantors to the fullest extent permissible under the law and public policies applied in each jurisdiction in which enforcement is
sought. The provisions of this Loan Guaranty are severable, and in any action or proceeding involving any state corporate law, or
any state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if
the obligations of any Loan Guarantor under this Loan Guaranty would otherwise be held or determined to be avoidable, invalid or
unenforceable on account of the amount of such Loan Guarantor’s liability under this Loan Guaranty, then, notwithstanding any
other provision of this Loan Guaranty to the contrary, the amount of such liability shall, without any further action by the Loan
Guarantors or the Secured Parties, be automatically limited and reduced to such Loan Guarantor’s Maximum Liability. Each Loan
Guarantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the Maximum Liability of such Loan
Guarantor without impairing this Loan Guaranty or affecting the rights and remedies of the Administrative Agent hereunder; provided
that nothing in this sentence shall be construed to increase any Loan Guarantor’s obligations hereunder beyond its Maximum
Liability.
Section 2.10. Representations
and Warranties. On the date hereof, and to the extent required in accordance with the terms of the First Lien Credit Agreement, each
Loan Guarantor hereby makes each applicable representation and warranty made in the Loan Documents by the Borrower with respect to such
Loan Guarantor, and each Loan Guarantor hereby further acknowledges and agrees with respect to such Loan Guarantor that such Loan Guarantor
has, independently and without reliance upon any Secured Party and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Loan Guaranty and each other Loan Document to which it is or is to be a party,
and such Loan Guarantor has established adequate means of obtaining from each other Loan Guarantor on a continuing basis information pertaining
to the business, condition (financial or otherwise), operations, performance, properties and prospects of each other Loan Guarantor.
Section 2.11. Covenants.
Each Loan Guarantor covenants and agrees that until the Termination Date, such Loan Guarantor will perform and observe, and cause each
of its respective Restricted Subsidiaries to perform and observe, all of the terms, covenants and agreements set forth in the Loan Documents
that the Borrower has agreed to cause such Loan Guarantor or such Restricted Subsidiaries to perform or observe.
ARTICLE 3
GENERAL PROVISIONS
Section 3.01. Liability
Cumulative. The liability of each Loan Guarantor under this Loan Guaranty is in addition to and shall be cumulative with all liabilities
of such Loan Guarantor to the Administrative Agent and the First Lien Lenders under the First Lien Credit Agreement and the other Loan
Documents to which such Loan Guarantor is a party or in respect of any obligations or liabilities of the other Loan Guarantors, without
any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the
contrary.
Section 3.02. No Waiver;
Amendments. No delay or omission of the Administrative Agent to exercise any right or remedy granted under this Loan Guaranty shall
impair such right or remedy or be construed to be a waiver of any Default or Event of Default or an acquiescence therein, and any single
or partial exercise of any such right or remedy shall not preclude any other or further exercise thereof or the exercise of any other
right or remedy. No waiver, amendment or other variation of the terms, conditions or provisions of this Loan Guaranty whatsoever shall
be valid unless in writing signed by the Loan Guarantors and the Administrative Agent in accordance with Section 9.02 of the First
Lien Credit Agreement and then only to the extent specifically set forth in such writing.
Section 3.03. Severability
of Provisions. To the extent permitted by applicable law, any provision of this Loan Guaranty held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining provisions of this Loan Guaranty; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 3.04. Additional
Subsidiaries. Certain Restricted Subsidiaries of the Borrower may be required to enter into this Loan Guaranty as a Subsidiary Party
pursuant to and in accordance with Section 5.12 of the First Lien Credit Agreement. Upon execution and delivery by any such Restricted
Subsidiary of an instrument in substantially the form of Exhibit B hereto (each, a “Guaranty Supplement”), such
Restricted Subsidiary shall become a Subsidiary Party hereunder with the same force and effect as if originally named as a Subsidiary
Party herein. The execution and delivery of any such instrument shall not require the consent of any other Loan Guarantor hereunder or
any other Person. The rights and obligations of each Loan Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Loan Guarantor as a party to this Loan Guaranty.
Section 3.05. Headings.
The titles of and section headings in this Loan Guaranty are for convenience of reference only, and shall not govern the interpretation
of any of the terms and provisions of this Loan Guaranty.
Section 3.06. Entire Agreement.
This Loan Guaranty and the other Loan Documents constitute the entire agreement among the parties relating to the subject matter hereof
and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.
Section 3.07. CHOICE OF
LAW. THIS LOAN GUARANTY AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS LOAN GUARANTY, WHETHER IN TORT, CONTRACT
(AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Section 3.08. CONSENT
TO JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) EACH PARTY HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR NEW
YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUIT, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS LOAN GUARANTY AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH PARTY
HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENTS BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE
SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE
LAW.
(b) TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND
AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL) DIRECTED TO IT AT ITS
ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01 OF THE FIRST LIEN CREDIT AGREEMENT. EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION
TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER
THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS LOAN GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY TO THIS LOAN GUARANTY
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Section 3.09. WAIVER OF
JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS LOAN GUARANTY, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS LOAN GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 3.10. Indemnity.
Each Loan Guarantor hereby agrees to indemnify the Administrative Agent and the other Indemnitees, as set forth in Section 9.03
of the First Lien Credit Agreement.
Section 3.11. Counterparts.
This Loan Guaranty may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute
an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature
page of this Loan Guaranty by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery
of a manually executed counterpart of this Loan Guaranty.
Section 3.12. INTERCREDITOR
AGREEMENT GOVERNS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE GUARANTEE OF THE GUARANTEED OBLIGATIONS GRANTED TO THE ADMINISTRATIVE
AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THIS LOAN GUARANTY AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE ADMINISTRATIVE
AGENT ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND ANY OTHER ACCEPTABLE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY
CONFLICT BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT OR ANY OTHER ACCEPTABLE INTERCREDITOR AGREEMENT, ON THE ONE HAND, AND THIS
LOAN GUARANTY, ON THE OTHER HAND, THE PROVISIONS OF SUCH INTERCREDITOR AGREEMENT OR OTHER ACCEPTABLE INTERCREDITOR AGREEMENT, AS APPLICABLE,
SHALL GOVERN AND CONTROL.
Section 3.13. Successors
and Assigns. Whenever in this Loan Guaranty any of the parties hereto is referred to, such reference shall be deemed to include the
successors and permitted assigns of such party; and all covenants, promises and agreements by or on behalf of any Loan Guarantor or the
Administrative Agent that are contained in this Loan Guaranty shall bind and inure to the benefit of their respective successors and permitted
assigns. Except in a transaction permitted under the First Lien Credit Agreement (including a transaction resulting in a Successor Borrower
or New Holdings), no Loan Guarantor may assign any of its rights or obligations hereunder without the written consent of the Administrative
Agent.
Section 3.14. Survival
of Agreement. Without limitation of any provision of the First Lien Credit Agreement or Section 3.10 hereof, all covenants,
agreements, indemnities, representations and warranties made by the Loan Guarantors in the Loan Documents and in the certificates or other
instruments delivered in connection with or pursuant to this Loan Guaranty or any other Loan Document shall be considered to have been
relied upon by the First Lien Lenders and shall survive the execution and delivery of the Loan Documents and the making of any Loans,
regardless of any investigation made by any such First Lien Lender or on its behalf and notwithstanding that the Administrative Agent
or any First Lien Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at
the time any credit is extended under the First Lien Credit Agreement, and shall continue in full force and effect until the Termination
Date, or with respect to any individual Loan Guarantor until such Loan Guarantor is otherwise released from its obligations under this
Loan Guaranty in accordance with Section 3.15.
Section 3.15. Release of
Loan Guarantors. A Subsidiary Party shall automatically be released from its obligations hereunder and its Loan Guaranty shall be
automatically released in the circumstances described in Article 8 and Section 9.22 of the First Lien Credit Agreement.
In connection with any such release, the Administrative Agent shall promptly execute and deliver to any Loan Guarantor, at such Loan Guarantor’s
expense, all documents that such Loan Guarantor shall reasonably request to evidence such termination or release. Any execution and delivery
of documents pursuant to the preceding sentence of this Section 3.15 shall be without recourse to or warranty by the Administrative
Agent (other than as to the Administrative Agent’s authority to execute and deliver such documents).
Section 3.16. Payments.
All payments made by any Loan Guarantor hereunder will be made without setoff, counterclaim or other defense and on the same basis as
payments are made by the Borrower under Sections 2.17 and 2.18 of the First Lien Credit Agreement.
Section 3.17. Notice, etc.
All notices and other communications provided for hereunder shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by facsimile or email, as follows:
(a) if
to any Loan Guarantor, addressed to it in care of the Borrower at its address specified in Section 9.01 of the First Lien Credit
Agreement;
(b) if
to the Administrative Agent or any First Lien Lender, at its address specified in Section 9.01 of the First Lien Credit Agreement;
(c) if
to any Secured Party in respect of any Secured Hedging Obligations, at its address specified in the Hedge Agreement to which it is a party;
or
(d) if
to any Secured Party in respect of any Banking Services Obligations, at its address specified in the relevant documentation to which it
is a party.
Section 3.18. Setoff.
In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, while an Event
of Default has occurred and is continuing, the Administrative Agent, each First Lien Lender, each Issuing Bank and each of their respective
Affiliates shall be entitled to rights of setoff to the extent provided in Section 9.09 of the First Lien Credit Agreement.
Section 3.19. Waiver of
Consequential Damages, Etc. To the extent permitted by applicable law, none of the Loan Guarantors nor the Secured Parties shall assert,
and each hereby waives, any claim against each other or any Related Party thereof, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this
Loan Guaranty or any agreement or instrument contemplated hereby, except, in the case of any claim by any Indemnitee against any of the
Loan Guarantors, to the extent such damages would otherwise be subject to indemnification pursuant to the terms of Section 3.10.
Section 3.20. Keepwell.
Each Qualified ECP Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds
or other support as may be needed from time to time by each other Loan Guarantor to honor all of its obligations under this Loan Guaranty
in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section
3.20 for the maximum amount of such liability that can be hereby incurred, without rendering its obligations under this Section
3.20, or otherwise under this Loan Guaranty, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer,
and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect
until the Termination Date. Each Qualified ECP Guarantor intends that this Section 3.20 constitute, and this Section 3.20
shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Guarantor for
all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
[Signature
Page Follows]
IN WITNESS WHEREOF, each Loan Guarantor and the
Administrative Agent have executed this Loan Guaranty as of the date first above written.
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A-B MERGER SUB I INC.
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as Holdings
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By:
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Name:
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Title:
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BOWLMOR AMF CORP.,
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as Holdings
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By:
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Name:
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Title:
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Signature Page to First Lien Loan Guaranty
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Kingpin Intermediate LLC
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Strike Holdings LLC
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Bowlmor Lanes LLC
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Bowlmor Times Square, LLC
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Westwood Lanes, LLC
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Strike Miami, LLC
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Strike Cupertino VFP, LLC
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Strike Tustin TDTL, LLC
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Strike Consulting, LLC
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Strike Long Island, LLC
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Bowlero Jupiter Lanes, LLC
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Leiserv, LLC
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Brunswick Recreation LLC
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Brunswick Zone XL Colorado Springs, LLC
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Brunswick Zone XL Rockford LLC
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Bowlero Scottsdale, LLC
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Bowlero Leesburg, LLC
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Bowlero Dania, LLC
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AMF Worldwide Bowling Centers Holdings Inc.
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AMF Bowling Centers Holdings Inc.
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AMF Bowling Centers, Inc.
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Texas Operations Holding Company, Inc.
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AMF Bowling Worldwide, Inc.
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Goode Bowling Corp.
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By:
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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Signature Page to First Lien Loan Guaranty
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JPMORGAN CHASE BANK, N.A.,
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as Administrative Agent
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By:
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Name:
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Title:
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Signature Page to First Lien Loan Guaranty
EXHIBIT B
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this
“Agreement”), dated as of [●], 20[●], is entered into among [●], a [●] (the “New Subsidiary”),
and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”) pursuant to that
certain First Lien Loan Guaranty, dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “First Lien Loan Guaranty”), by and among A-B Merger Sub I Inc., a Delaware corporation (“Holdings”),
the Subsidiary Parties from time to time party thereto (Holdings and the Subsidiary Parties, collectively, the “Loan Guarantors”)
and JPMorgan Chase Bank, N.A., in its capacity as administrative agent and collateral agent for the lenders party the First Lien Credit
Agreement. All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the First Lien Loan Guaranty.
[Each] [The] New Subsidiary
and the Administrative Agent, for the benefit of the Secured Parties, hereby agree as follows:
1. [Each]
[The] New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this Agreement, [each] [the] New Subsidiary will
be deemed to be a Loan Guarantor under the First Lien Loan Guaranty and a Loan Guarantor for all purposes of the First Lien Credit Agreement
and shall have all of the rights, benefits, duties and obligations of a Loan Guarantor thereunder as if it had executed the First Lien
Loan Guaranty. [Each] [The] New Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions
and conditions contained in the First Lien Loan Guaranty. Without limiting the generality of the foregoing terms of this paragraph
1, [each] [the] New Subsidiary hereby absolutely and unconditionally guarantees, jointly and severally with the other Loan Guarantors,
to the Administrative Agent and the Secured Parties, the prompt payment of the Guaranteed Obligations in full when due (whether at stated
maturity, upon acceleration or otherwise) to the extent of and in accordance with the First Lien Loan Guaranty.
2. [Each]
[The] New Subsidiary hereby waives acceptance by the Administrative Agent and the Secured Parties of the guaranty by the New Subsidiary
upon the execution of this Agreement by the New Subsidiary.
3. [Each]
[The] New Subsidiary hereby (x) makes, as of the date hereof, each representation and warranty set forth in Section 2.10 of the
First Lien Loan Guaranty, except as set forth on Schedule A hereto] and (y) agrees to perform and observe, and to cause each of
its Restricted Subsidiaries to perform and observe, the covenants set forth in Section 2.11 of the First Lien Loan Guaranty.
4. From and after the execution
and delivery hereof by the parties hereto, this Agreement shall constitute a “Loan Document” for all purposes of the First
Lien Credit Agreement and the other Loan Documents.
5. This Agreement may be
executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or by
email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of
this Agreement.
6. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
IN WITNESS WHEREOF, [each]
[the] New Subsidiary has caused this Agreement to be duly executed by its authorized officer and the Administrative Agent, for the benefit
of the Secured Parties, has caused the same to be accepted by its authorized officer, as of the day and year first above written.
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[NEW SUBSIDIARY]
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By:
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Name:
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Title:
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[Signature Page to Joinder Agreement to First
Lien Loan Guaranty]
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Acknowledged and accepted:
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JPMORGAN CHASE BANK, N.A.,
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as Administrative Agent
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By:
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Name:
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Title:
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[Signature Page to Joinder Agreement to First
Lien Loan Guaranty]
[SCHEDULE A
CERTAIN EXCEPTIONS]
EXHIBIT J
FORM OF
SECURITY AGREEMENT
[See attached]
EXECUTION VERSION
FIRST LIEN PLEDGE AND SECURITY AGREEMENT
THIS FIRST LIEN PLEDGE AND
SECURITY AGREEMENT (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Security
Agreement”) is entered into as of July 3, 2017 by and among A-B Merger Sub II LLC, a Delaware limited liability company, and
after giving effect to the Merger Sub 2 Merger, Kingpin Intermediate (the “Borrower”), A-B Merger Sub I Inc., a Delaware
corporation, and after giving effect to the Merger Sub I Merger, Bowlmor AMF Corp., a Delaware corporation (“Holdings”),
the Subsidiary Parties and the other Grantors from time to time party hereto and JPMorgan Chase Bank, N.A. (“JPM”),
in its capacity as administrative agent and collateral agent for the Secured Parties (together with its successors and assigns, in such
capacities, the “Agent”).
PRELIMINARY STATEMENT
Holdings, the Borrower, the
First Lien Lenders (as defined below) and others are entering into that certain First Lien Credit Agreement dated as of July 3, 2017 (as
amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “First Lien Credit Agreement”).
The Grantors are entering into this Security Agreement in order to induce the First Lien Lenders to enter into and extend credit to the
Borrower under the First Lien Credit Agreement and to secure the Secured Obligations, including their obligations under the Loan Guaranty.
ACCORDINGLY, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Terms Defined
in First Lien Credit Agreement. All capitalized terms used herein and not otherwise defined shall have the meanings assigned to such
terms in the First Lien Credit Agreement.
Section 1.02. Terms Defined
in UCC. Terms defined in the UCC that are not otherwise defined in this Security Agreement or the First Lien Credit Agreement are
used herein as defined in Articles 8 or 9 of the UCC, as the context may require (including without limitation, as if such terms were
capitalized in Article 8 or 9 of the UCC, as the context may require, the following terms: “Account,” “Chattel
Paper,” “Commercial Tort Claim,” “Commodities Account,” “Deposit Accounts,”
“Document,” “Electronic Chattel Paper,” “Equipment,” “Fixture,”
“General Intangible,” “Goods,” “Instruments,” “Inventory,”
“Investment Property,” “Letter-of-Credit Right,” “Securities Account,” “Securities
Entitlement,” “Supporting Obligation” and “Tangible Chattel Paper”).
Section 1.03. Definitions
of Certain Terms Used Herein. As used in this Security Agreement, in addition to the terms defined in the preamble and Preliminary
Statement above, the following terms shall have the following meanings:
“Agent” has the meaning set forth in the
preamble.
“Article”
means a numbered article of this Security Agreement, unless another document is specifically referenced.
“Borrower”
has the meaning set forth in the preamble, or, as applicable, means any Successor Borrower.
“Collateral” has the meaning set forth
in Article 2.
“Contract Rights”
means all rights of any Grantor under any Contract, including, without limitation, (i) any and all rights to receive and demand payments
under such Contract, (ii) any and all rights to receive and compel performance under such Contract and (iii) any and all other rights,
interests and claims now existing or in the future arising in connection with such Contract.
“Contracts”
means all contracts between any Grantor and one or more additional parties (including, without limitation, any Hedge Agreement, licensing
agreement and any partnership agreement, joint venture agreement and/or limited liability company agreement).
“Control”
has the meaning set forth in Article 8 or, if applicable, in Section 9-104, 9-105, 9-106 or 9-107 of Article 9 of the UCC.
“Copyrights” means, with respect to any
Grantor, all Copyrights owned by such Grantor.
“Domain Names”
means all Internet domain names and associated URL addresses in or to which any Grantor now or hereafter has any right, title or interest.
“Exhibit”
refers to a specific exhibit to this Security Agreement, unless another document is specifically referenced.
“First Lien Credit Agreement” has the
meaning set forth in the Preliminary Statement.
“First Lien Lenders”
means the “Lenders” under and as defined in the First Lien Credit Agreement.
“Grantors”
means Holdings, the Borrower and each of the Subsidiary Parties party hereto, and any other Person added as a “New Grantor”
hereunder, pursuant to Section 7.10.
“Holdings” has the meaning set forth in
the preamble, or, as applicable, means New Holdings.
“Intellectual Property
Security Agreement Supplements” means (a) a Trademark Security Agreement Supplement, (b) a Patent Security Agreement Supplement
or (c) a Copyright Security Agreement Supplement, in each case, substantially in the form of Exhibit A to the relevant Intellectual
Property Security Agreement, as applicable.
“JPM” has the meaning set forth in the
preamble.
“Licenses”
means, with respect to any Grantor, all of such Grantor’s right, title, and interest in and to (a) any and all licensing agreements
or similar arrangements (whether as licensor or licensee) in and to its owned Patents, Copyrights, Trademarks, Trade Secrets or Software,
(b) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without
limitation, damages and payments for past and future breaches thereof and (c) all rights to sue for past, present, and future breaches
thereof.
“Money” has the meaning set forth in Article
1 of the UCC.
“Patents” means, with respect to any Grantor,
all Patents owned by such Grantor.
“Permits”
means, to the extent permitted to be assigned by the terms thereof or by applicable law, all licenses, permits, rights, orders, variances,
franchises or authorizations of or from any Governmental Authority.
“Pledged Collateral”
means all Pledged Stock, including all stock certificates, options or rights of any nature whatsoever in respect of the Pledged Stock
that may be issued or granted to, or held by, any Grantor while this Security Agreement is in effect, all Instruments, Securities and
other Investment Property owned by any Grantor, whether or not physically delivered to the Agent pursuant to this Security Agreement,
whether now owned or hereafter acquired by such Grantor and any and all Proceeds thereof, excluding any items constituting Excluded Assets.
“Pledged Stock”
means, with respect to any Grantor, the shares of Capital Stock described in Schedule 3 to the Perfection Certificate as held by
such Grantor, together with any other shares of Capital Stock required to be pledged by such Grantor pursuant to the terms hereof or Section
5.12 of the First Lien Credit Agreement, excluding any items constituting Excluded Assets.
“Proceeds”
has the meaning assigned in Article 9 of the UCC and, in any event, shall also include but not be limited to (i) any and all
proceeds of any insurance, indemnity, warranty or guaranty payable to the Agent or any Grantor from time to time with respect to any
of the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to any Grantor from time to time in
connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any
Governmental Authority (or any Person acting under color of Governmental Authority), (iii) any and all Stock Rights and (iv) any and
all other amounts from time to time paid or payable under or in connection with any of the Collateral.
“Receivables”
means any Account, Chattel Paper, Document, Investment Property, Instrument and/or any General Intangible, in each case, that is a right
or claim to receive money, but in any case, excluding any item constituting an Excluded Asset.
“Section”
means a numbered section of this Security Agreement, unless another document is specifically referenced.
“Security Agreement” has the meaning set
forth in the preamble.
“Software”
means computer programs, source code, object code and supporting documentation including “software” as such term is defined
in Article 9 of the UCC, as well as computer programs that may be construed as included in the definition of Goods.
“Stock Rights”
means all dividends, instruments or other distributions and any other right or property which any Grantor shall receive or shall become
entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any Capital Stock constituting Collateral,
any right to receive any Capital Stock constituting Collateral and any right to receive earnings, in which such Grantor now has or hereafter
acquires any right, issued by an issuer of such Capital Stock.
“Subsidiary Parties”
means (a) the Subsidiaries of the Borrower party hereto on the Closing Date and (b) each Restricted Subsidiary that becomes a party to
this Security Agreement after the date hereof in accordance with Section 7.10 hereof and Section 5.12 of the First Lien
Credit Agreement.
“Trade
Secrets” means, with respect to any Grantor, all of such Grantor’s right, title and interest in and to the
following: (a) all confidential and proprietary information, including unpatented inventions, invention disclosures, engineering or
other data, information, production procedures, know-how, financial data, customer lists, supplier lists, business and marketing
plans, processes, schematics, algorithms, techniques, analyses, proposals, source code, and data collections; (b) all income,
royalties, damages, and payments now or hereafter due or payable with respect thereto, including, without limitation, damages,
claims and payments for past and future infringements thereof; (c) all rights to sue for past, present and future infringements of
the foregoing, including the right to settle suits involving claims and demands for royalties owing; and (d) all rights
corresponding to any of the foregoing.
“Trademarks” means, with respect to any
Grantor, all Trademarks owned by such Grantor.
The foregoing definitions
shall be equally applicable to both the singular and plural forms of the defined terms.
ARTICLE 2
GRANT OF SECURITY
INTEREST
Section 2.01. Grant of
Security Interest. (a) As security for the prompt and complete payment or performance, as the case may be, in full of the Secured
Obligations, each Grantor hereby pledges, collaterally assigns, mortgages, transfers and grants to the Agent, its successors and permitted
assigns, on behalf of and for the benefit of the Secured Parties, a continuing security interest in all of its right, title and interest
in, to and under all of the following personal property and other assets, whether now owned by or owing to, or hereafter acquired by or
arising in favor of such Grantor, and regardless of where located (all of which are collectively referred to as the “Collateral”):
(i) all Accounts;
(ii) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(iii) all Copyrights, Patents, Trademarks and Trade Secrets;
(iv) all Documents;
(v) all Equipment;
(vi) all Fixtures;
(vii) all General Intangibles;
(viii) all Goods;
(ix) all Instruments;
(x) all Inventory;
(xi) all Investment Property, Pledged Stock and other Pledged Collateral;
(xii) all Money, cash and cash equivalents;
(xiii) all letters of credit and Letter-of-Credit Rights;
(xiv) all
Deposit Accounts, Securities Accounts, Commodities Accounts and all other demand, deposit, time, savings, cash management, passbook and
similar accounts maintained by such Grantor with any bank or other financial institution and all monies, securities, Instruments and other
investments deposited or required to be deposited in any of the foregoing;
(xv) all Securities Entitlements in any or all of the foregoing;
(xvi) all Permits;
(xvii) all Software and all recorded data of any kind or nature, regardless of the medium of recording;
(xviii) all Domain Names;
(xix) all Contracts, together with all Contract Rights arising thereunder;
(xx) all Licenses;
(xxi) all Supporting Obligations; and
(xxii) all
accessions to, substitutions and replacements for and Proceeds and products of the foregoing, together with all books and records, customer
lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any General Intangibles
at any time evidencing or relating to any of the foregoing and all collateral security and guarantees given by any Person with respect
to any of the foregoing.
(b)
Notwithstanding the foregoing, the term “Collateral” (and any component definition thereof) shall not include any
Excluded Asset. Notwithstanding anything to the contrary contained herein, immediately upon the ineffectiveness, lapse or
termination of any restriction or condition set forth in the definition of “Excluded Assets” in the First Lien Credit
Agreement that prevented the grant of a security interest in any right, interest or other asset that would have, but for such
restriction or condition, constituted Collateral, the Collateral shall include, and the relevant Grantor shall be deemed to have
granted a security in, such previously restricted or conditioned rights, interests or other assets, as the case may be, as if such
restriction or condition had never been in effect. For the avoidance of doubt, “Excluded Assets” shall not include any
proceeds, products, substitutions or replacements of Excluded Assets (unless such proceeds, products, substitutions or replacements
would otherwise constitute Excluded Assets).
ARTICLE 3
REPRESENTATIONS AND
WARRANTIES
The Grantors, jointly and
severally, represent and warrant to the Agent on the date and to the extent required pursuant to Section 4.01 and 4.02 of the First Lien
Credit Agreement, for the benefit of the Secured Parties, that:
Section 3.01. Title, Perfection
and Priority; Filing Collateral. This Security Agreement is effective to create a legal, valid and, subject to the Legal Reservations,
enforceable Lien on and security interest in the Collateral, in which a security interest may be created under the UCC in favor of the
Agent for the benefit of the Secured Parties and, subject to the terms of the last paragraph of Section 4.01 of the First Lien
Credit Agreement and the satisfaction of the Perfection Requirements, the Agent will have a fully perfected Lien (with the priority set
forth in the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement then in effect, if any) on the Collateral
securing the Secured Obligations to the extent required hereby.
Section 3.02. Intellectual
Property.
(a) Upon
filing of appropriate financing statements with the Secretary of State (or equivalent office) of the state of organization of such Grantor
and the filing of the applicable Intellectual Property Security Agreement with the United States Copyright Office or the United States
Patent and Trademark Office, as applicable, the Agent shall have a fully perfected Lien (with the priority set forth in the Intercreditor
Agreement or any other applicable Acceptable Intercreditor Agreement then in effect, if any) subject to no other Liens (other than Permitted
Liens) on the Collateral constituting such Grantor’s United States registered Patents, Trademarks and Copyrights under the UCC (and
applications therefor) and the laws of the United States for the benefit of the Secured Parties, and such perfected security interests
shall be enforceable as such against any and all creditors of and purchasers from the Grantors, subject to the Legal Reservations.
(b) No
Grantor is aware of any written third-party claim (i) that any of its owned Patent, Trademark or Copyright registrations or applications
that constitute Collateral is invalid or unenforceable, or (ii) challenging such Grantor’s rights to such registrations and applications,
other than, in each case, to the extent any such third-party claims would not reasonably be expected to have a Material Adverse Effect.
Section 3.03. Pledged
Collateral; Instruments and Chattel Paper.
(a) (i)
All Pledged Stock has been duly authorized and validly issued (to the extent such concepts are relevant with respect to such Pledged Collateral)
by the issuer thereof and is fully paid and non-assessable, (ii) as of the Closing Date, each Grantor is the direct owner, beneficially
and of record, of the Pledged Stock described in Schedule 3 to the Perfection Certificate as held by such Grantor and (iii) as
of the Closing Date, each Grantor holds the Pledged Stock described in Schedule 3 to the Perfection Certificate as held by such
Grantor free and clear of all Liens (other than Permitted Liens).
Section 3.04. Perfection
Certificate. The Perfection Certificate has been duly prepared, completed and executed and the certifications set forth therein are
true, complete and correct in all material respects (except the information therein with respect to the exact legal name of each Grantor
shall be correct and complete in all respects) as of the date hereof.
Section 3.05. Recourse.
This Security Agreement is made with full recourse to each Grantor and pursuant to and upon all the warranties, representations, covenants
and agreements on the part of such Grantor contained herein and in the Loan Documents.
ARTICLE 4
COVENANTS
From the date hereof, and thereafter until the Termination
Date:
Section 4.01. General.
(a) Authorization
to File Financing Statements; Ratification. Each Grantor hereby authorizes the Agent to file all financing statements with
respect to the Collateral naming such Grantor as debtor and the Agent as secured party, in form appropriate for filing under the UCC
of the relevant jurisdiction and filings with the United States Patent and Trademark Office and the United States Copyright Office
in favor of the Agent and, subject in each case to the limitations set forth in this Security Agreement and the other Loan
Documents, each Grantor agrees to file or shall authorize the Agent to file such other documents and to take such other actions as
may from time to time be reasonably requested by the Agent in order to establish and maintain a valid, enforceable (subject to the
Legal Reservations) and perfected security interest (with the priority set forth in the Intercreditor Agreement or any other
applicable Acceptable Intercreditor Agreement then in effect, if any) in and subject, in the case of Pledged Collateral, to the
extent required pursuant to Section 4.02 hereof, Control of, the Collateral. Each Grantor shall pay any applicable filing
fees, recordation fees and related expenses relating to its Collateral in accordance with Section 9.03(a) of the First Lien
Credit Agreement. Any financing statement filed by the Agent may be filed in any filing office in any applicable UCC jurisdiction
and may (i) indicate the Collateral (A) as all assets of the applicable Grantor or words of similar effect, regardless of whether
any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC of such jurisdiction, or (B) by any
other description which reasonably approximates the description contained in this Security Agreement and (ii) contain any other
information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or
amendment, including (A) in each case to the extent applicable, whether the Grantor is an organization, the type of organization and
any organization identification number issued to the Grantor and (B) in the case of a financing statement filed as a fixture filing,
a sufficient description of the relevant real property to which the Collateral relates. Each Grantor agrees to furnish any such
information to the Agent promptly upon request.
(b) Further
Assurances. Each Grantor agrees, at its own expense, to take any and all actions reasonably necessary to defend title to the Collateral
against all Persons (other than Persons holding Permitted Liens on such Collateral that have priority over the Agent’s Lien) and
to defend the security interest of the Agent in the Collateral and the priority thereof against any Lien that is not a Permitted Lien.
(c) Change
of Name, Etc. Following delivery of any notice required by Section 5.01(i) of the First Lien Credit Agreement, the relevant
Grantor shall promptly make all filings required under the UCC or other applicable law and take all other actions reasonably requested
by the Agent and deemed by the Agent to be necessary or reasonable and appropriate to ensure that the Agent shall continue at all times
following such change to have a valid, legal, enforceable (subject to the Legal Reservations and other limitations set forth herein) and
perfected security interest (with the priority set forth in the Intercreditor Agreement or any other applicable Acceptable Intercreditor
Agreement then in effect, if any) subject to no other Liens (other than Permitted Liens) in such Collateral for its benefit and the benefit
of the other Secured Parties.
Section 4.02. Pledged
Collateral.
(a) Delivery
of Certificated Securities, Tangible Chattel Paper, Instruments and Documents. Each Grantor will, subject to the Intercreditor
Agreement or any other applicable Acceptable Intercreditor Agreement then in effect, if any, after the Closing Date, hold in trust
for the Agent upon receipt and, (x) if the event giving rise to the obligation under this Section 4.02(a) occurs during the
first three Fiscal Quarters of any Fiscal Year, on or before the date on which financial statements are required to be delivered
pursuant to Section 5.01(a) of the First Lien Credit Agreement for the Fiscal Quarter in which the relevant event occurred or
(y) if the event giving rise to the obligation under this Section 4.02(a) occurs during the fourth Fiscal Quarter of any
Fiscal Year, on or before the date that is 60 days after the end of such Fiscal Quarter (or, in each of the cases of clauses
(x) and (y), such longer period as the Agent may reasonably agree), deliver to the Agent for the benefit of the Secured
Parties any (1) certificated Securities representing or evidencing Pledged Collateral and (2) Tangible Chattel Paper and Instruments
(A) in each case under this clause (2), having an outstanding balance in excess of $5,000,000 and (B) in each case under clauses
(1) and (2), constituting Collateral received after the date hereof, accompanied by undated instruments of transfer or
assignment duly executed in blank.
(b) Uncertificated
Securities and Pledged Collateral. With respect to any partnership interest or limited liability company interest owned by any
Grantor that is required to be pledged to the Agent pursuant to the terms hereof (other than a partnership interest or limited
liability company interest held by a Clearing Corporation, Securities Intermediary or other financial intermediary of any kind)
which is not represented by a certificate and which is not a Security for purposes of the UCC, such Grantor shall not permit any
issuer of such partnership interests or limited liability company interests to (i) enter into any agreement with any Person, other
than the Agent or any holder of a Permitted Lien, subject to an applicable intercreditor agreement, whereby such issuer effectively
delivers “control” of such partnership interests or limited liability company interests (as applicable) under the UCC to
such Person or (ii) allow such partnership interests or limited liability company interests (as applicable) to become Securities
unless such Grantor complies with the procedures set forth in Section 4.02(a) within the time period prescribed therein. Each
Grantor which is an issuer of any uncertificated Pledged Collateral described in this Section 4.02(b) hereby agrees to comply
with all instructions from the Agent without such Grantor’s further consent, in each case subject to the notice requirements
set forth in Section 5.01(a)(iv) hereof.
(c) Registration
in Nominee Name; Denominations. Subject to the terms of the Intercreditor Agreement or any other applicable Acceptable Intercreditor
Agreement then in effect, if any, the Agent, on behalf of the Secured Parties, shall hold certificated Pledged Collateral required to
be delivered to the Agent under clause (a) above in the name of the applicable Grantor, endorsed or assigned in blank or in favor
of the Agent, but at any time when an Event of Default has occurred and is continuing and upon at least three Business Days’ prior
notice to the Borrower, the Agent shall have the right (in its sole and absolute discretion) to hold the Pledged Collateral in its own
name as pledgee, or in the name of its nominee (as pledgee or as sub-agent). Subject to the terms of the Intercreditor Agreement or any
other applicable Acceptable Intercreditor Agreement then in effect, if any, at any time when an Event of Default has occurred and is continuing,
the Agent shall have the right to exchange the certificates representing Pledged Collateral for certificates of smaller or larger denominations
for any purpose consistent with this Security Agreement.
(d) Exercise
of Rights in Pledged Collateral. Subject, in each case, to the Intercreditor Agreement or any other applicable Acceptable Intercreditor
Agreement then in effect, if any, it is agreed that:
(i) without
in any way limiting the foregoing and subject to clause (ii) below, each Grantor shall have the right to exercise all voting rights
or other rights relating to the Pledged Collateral for any purpose that does not violate this Security Agreement, the First Lien Credit
Agreement or any other Loan Document;
(ii) each
Grantor will permit the Agent or its nominee at any time when an Event of Default has occurred and is continuing to exercise the rights
and remedies provided under Section 5.01(a)(iv) (subject to the notice requirements set forth therein); and
(iii) subject
to Section 5.01(a)(iv), each Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other
distributions paid on or distributed in respect of the Pledged Collateral; provided that any non-cash dividends or other distributions
that would constitute Pledged Collateral, whether resulting from a subdivision, combination or reclassification of the outstanding Capital
Stock of the issuer of any Pledged Collateral or received in exchange for Pledged Collateral or any part thereof, or in redemption thereof,
or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise,
shall, to the extent constituting Collateral, be and become part of the Pledged Collateral, and, if received by any Grantor, shall be
delivered to the Agent as and to the extent required by clause (a) above.
(e) Return
of Pledged Collateral. So long as no Event of Default has occurred and is continuing, the Agent shall promptly deliver to the applicable
Grantor (without recourse and without any representation or warranty) any Pledged Collateral in its possession if requested to be delivered
to the issuer thereof in connection with any redemption, exchange or disposition (other than a Loan Party) of such Pledged Collateral
that is permitted by the First Lien Credit Agreement.
Section 4.03. Intellectual
Property. (a) At any time when an Event of Default has occurred and is continuing and upon the written request of the Agent, each
Grantor will (i) use its commercially reasonable efforts to obtain all consents and approvals necessary or appropriate for the assignment
to or for the benefit of the Agent of any License held by such Grantor in the U.S. that constitutes Collateral to enable the Agent to
enforce the security interests granted hereunder and (ii) to the extent required pursuant to any material License in the U.S. that constitutes
Collateral under which such Grantor is the licensee, deliver to the licensor thereunder any notice of the grant of security interest hereunder
or such other notices required to be delivered thereunder in order to permit the security interest created or permitted to be created
hereunder pursuant to the terms of such License.
(b) Each
Grantor shall notify the Agent promptly if it knows or reasonably expects that any application for, or registration of, any Patent, Trademark,
or Copyright (now or hereafter existing) that constitutes Collateral may become abandoned or dedicated to the public, or of any determination
or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent
and Trademark Office, the United States Copyright Office or any court) that may result in abandoning such Grantor’s ownership of
any such Patent, Trademark or Copyright, its right to register the same, or its right to keep and maintain the same, except, in each case,
to the extent the same is permitted or not restricted by the First Lien Credit Agreement or where the same, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
(c) In the
event that any Grantor files an application for the registration of any Patent, Trademark or Copyright with the United States Patent
and Trademark Office or the United States Copyright Office, or acquires any such application or registration by purchase or
assignment, in each case, after the Closing Date and to the extent the same constitutes Collateral (and other than as a result of an
application that is then subject to an Intellectual Property Security Agreement or Intellectual Property Security Agreement
Supplement becoming registered or issued, as applicable), it shall, (i) if the event giving rise to the obligation under this Section
4.03(c) occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the date on which financial statements
are required to be delivered pursuant to Section 5.01(a) of the First Lien Credit Agreement for the Fiscal Quarter in which
the relevant event occurred or (ii) if the event giving rise to the obligation under this Section 4.03(c) occurs during the
fourth Fiscal Quarter of any Fiscal Year, on or before the date on which financial statements are required to be delivered pursuant
to Section 5.01(b) of the Credit Agreement for the Fiscal Year in which the relevant event occurred (or, in the case of each of clauses
(i) and (ii), such longer period to which the Agent may reasonably agree), notify the Agent and execute and deliver to
the Agent, at such Grantor’s expense, any Intellectual Property Security Agreement or Intellectual Property Security Agreement
Supplement, as applicable, or other similar instrument as the Agent may reasonably request and require to evidence the Agent’s
security interest in such registered Patent, Trademark or Copyright (or application therefor), and the General Intangibles of such
Grantor relating thereto or represented thereby.
(d) Each
Grantor shall take all commercially reasonable actions necessary or reasonably requested by the Agent to maintain and pursue each application
for, and to obtain and maintain the registration of, each Patent, Trademark, Domain Name and Copyright that constitutes Collateral (now
or hereafter existing), including by, subject to such Grantor’s business judgment, filing applications for renewal, affidavits of
use, affidavits of noncontestability and, by initiating opposition and interference and cancellation proceedings against third parties,
except, in each case, where failure to do so (i) could not reasonably be expected to result in a Material Adverse Effect or (ii) is otherwise
permitted (or not restricted) under the First Lien Credit Agreement.
(e) Each
Grantor shall promptly notify the Agent of any material infringement or misappropriation of such Grantor’s Patents, Trademarks,
Copyrights or Trade Secrets that constitute Collateral of which it becomes aware and shall take such actions as it determines in its reasonable
business judgment are reasonable and appropriate under the circumstances to protect such Patent, Trademark, Copyright or Trade Secret,
except where such infringement or misappropriation could not reasonably be expected to cause a Material Adverse Effect.
Section 4.04. [Reserved].
Section 4.05. Insurance.
Subject to the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement then in effect, if any, and except to
the extent otherwise permitted to be retained by any Grantor or applied by any Grantor pursuant to the terms of the Loan Documents, the
Agent shall, at the time any proceeds of any insurance are distributed to the Secured Parties, apply such proceeds in accordance with
Section 5.04 hereof. Each Grantor assumes all liability and responsibility in connection with the Collateral acquired by it, and
the liability of such Grantor to pay the Secured Obligations shall in no way be affected or diminished by reason of the fact that such
Collateral may be lost, destroyed, stolen, damaged or for any reason whatsoever unavailable to such Grantor.
Section 4.06. Grantors
Remain Liable Under Contracts. Each Grantor (rather than the Agent or any Secured Party) shall remain liable (as between itself and
any relevant counterparty) to observe and perform all the conditions and obligations to be observed and performed by it under any Contract
relating to the Collateral, all in accordance with the terms and conditions thereof. Neither the Agent nor any other Secured Party shall
have any obligation or liability under any Contract by reason of or arising out of this Security Agreement or the receipt by the Agent
or any other Secured Party of any payment relating to such Contract pursuant hereto, nor shall the Agent or any other Secured Party be
obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Contract, to make any payment, to make
any inquiry as to the nature or sufficiency of any performance or to collect the payment of any amounts which may have been assigned to
them or to which they may be entitled at any time or times.
Section 4.07. Grantors
Remain Liable Under Accounts. Notwithstanding anything herein to the contrary, the Grantors shall remain liable under each of
the Accounts to observe and perform all of the conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise to such Accounts. Neither the Agent nor any other Secured Party shall have
any obligation or liability under any Account (or any agreement giving rise thereto) by reason of or arising out of this Security
Agreement or the receipt by the Agent or any other Secured Party of any payment relating to such Account pursuant hereto, nor shall
the Agent or any other Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant
to any Account (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency
of any payment received by them or as to the sufficiency of any performance by any party under any Account (or any agreement giving
rise thereto), to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts
which may have been assigned to them or to which they may be entitled at any time or times.
ARTICLE 5
REMEDIES
Section 5.01. Remedies.
(a) Each Grantor agrees that, at any time when an Event of Default has occurred and is continuing, the Agent may exercise any or all of
the following rights and remedies (in addition to the rights and remedies existing under applicable law):
(i) the
rights and remedies provided in this Security Agreement, the First Lien Credit Agreement, or any other Loan Document; provided
that this Section 5.01(a) shall not limit any rights available to the Agent prior to an Event of Default;
(ii) the
rights and remedies available to a secured party under the UCC (whether or not the UCC applies to the affected Collateral) or under any
other applicable law (including, without limitation, any law governing the exercise of a bank’s right of setoff or bankers’
Lien) when a debtor is in default under a security agreement;
(iii) without
notice (except as specifically provided in Section 7.01 or elsewhere herein), demand or advertisement of any kind to any Grantor
or any other Person, personally, or by agents or attorneys, enter the premises of any Grantor where any Collateral is located (through
self-help and without judicial process) to collect, receive, assemble, process, appropriate, sell, lease, assign, grant an option or options
to purchase or otherwise dispose of, deliver, or realize upon, the Collateral or any part thereof in one or more parcels at one or more
public or private sales (which sales may be adjourned or continued from time to time with or without notice and may take place at such
Grantor’s premises or elsewhere), for cash, on credit or for future delivery without assumption of any credit risk, and upon such
other terms as the Agent may deem commercially reasonable;
(iv) upon
at least three Business Days’ prior written notice to the Borrower, transfer and register in its name or in the name of its nominee
the whole or any part of the Pledged Collateral, to exercise the voting and all other rights as a holder with respect thereto to the exclusion
of the Borrower, to collect and receive all cash dividends, interest, principal and other distributions made thereon and to otherwise
act with respect to the Pledged Collateral as though the Agent was (and, to the extent received by a Grantor shall be held in trust for
the Administrative Agent and the other Secured Parties and further, turned over to the Administrative Agent in the same form received
(with necessary endorsements)) the outright owner thereof; and
(v) to
take possession of the Collateral or any part thereof, by directing such Grantor in writing to deliver the same to the Agent at any reasonable
place or places designated by the Agent, in which event such Grantor shall at its own expense:
(1) forthwith
cause the same to be moved to the place or places so designated by the Agent and there delivered to the Agent;
(2) store
and keep any Collateral so delivered to the Agent at such place or places pending further action by the Agent; and
(3) while
the Collateral shall be so stored and kept, provide such security and maintenance services as shall be reasonably necessary to protect
the same and to preserve and maintain it in good condition.
(b) Each
Grantor acknowledges and agrees that compliance by the Agent, on behalf of the Secured Parties, with any applicable state or federal law
requirements in connection with a disposition of the Collateral will not be considered to adversely affect the commercial reasonableness
of any sale of the Collateral.
(c) The
Agent shall have the right in any public sale and, to the extent permitted by applicable law, in any private sale, to purchase for the
benefit of the Agent and the Secured Parties, all or any part of the Collateral so sold, free of any right of equity redemption, which
equity redemption each Grantor hereby expressly releases.
(d) Until the
Agent is able to effect a sale, lease, transfer or other disposition of any particular Collateral under this Section 5.01,
the Agent shall have the right to hold or use such Collateral, or any part thereof, to the extent that it deems appropriate for the
purpose of preserving such Collateral or the value of such Collateral, or for any other purpose deemed reasonably appropriate by the
Agent. At any time when an Event of Default has occurred and is continuing, the Agent may, if it so elects, seek the appointment of
a receiver or keeper to take possession of any Collateral and to enforce any of the Agent’s remedies (for the benefit of the
Agent and Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment.
(e) Notwithstanding
the foregoing, the Agent shall not be required to (i) make any demand upon, or pursue or exhaust any of their rights or remedies against,
the Grantors, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue
or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof, (ii) marshal
the Collateral or any guarantee of the Secured Obligations or to resort to the Collateral or any such guarantee in any particular order,
or (iii) effect a public sale of any Collateral.
(f) Each
Grantor recognizes that the Agent may be unable to effect a public sale of any or all the Pledged Collateral and may be compelled to
resort to one or more private sales thereof. Each Grantor also acknowledges that any private sale may result in prices and other
terms less favorable to the seller than if such sale were a public sale and, notwithstanding such circumstances, agrees that no such
private sale shall be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private.
The Agent shall be under no obligation to delay a sale of any of the Pledged Collateral for the period of time necessary to permit
any Grantor or the issuer of any Pledged Collateral to register such securities for public sale under the Securities Act of 1933, as
amended, or under applicable state securities laws, even if any Grantor and the issuer would agree to do so.
(g) Notwithstanding
the foregoing, any rights and remedies provided in this Section 5.01 shall be subject to the Intercreditor Agreement or any other
applicable Acceptable Intercreditor Agreement then in effect, if any, and (ii) with respect to any Pledged Collateral that constitutes
membership interests in any limited liability company or any partnership interests in any partnership, which limited liability company
or partnership (as applicable) is not wholly-owned by the Borrower and/or any other Grantors, the transfer restrictions set forth in the
relevant partnership agreement or limited liability company operating agreement (as applicable).
Section 5.02. Grantors’ Obligations Upon
Default. Upon the request of the Agent at any time when an Event of Default has occurred and is continuing, each Grantor will:
(a) at
its own cost and expense (i) assemble and make available to the Agent, the Collateral and all books and records relating thereto at any
place or places reasonably specified by the Agent that is reasonably convenient to both parties, whether at such Grantor’s premises
or elsewhere, (ii) deliver all tangible evidence of its Accounts and Contract Rights (including, without limitation, all documents evidencing
the Accounts and all Contracts) and such books and records to the Agent or to its representatives (copies of which evidence and books
and records may be retained by such Grantor) and (iii) if the Agent so directs and in a form and in a manner reasonably satisfactory to
the Agent, legend the Accounts and the Contracts, as well as books, records and documents (if any) of such Grantor evidencing or pertaining
to such Accounts and Contracts with an appropriate reference to the fact that such Accounts and Contracts have been assigned to the Agent
and that the Agent has a security interest therein; and
(b) permit
the Agent and/or its representatives and/or agents, to enter, occupy and use any premises where all or any part of the Collateral, or
the books and records relating thereto, or both, are located, to take possession of all or any part of the Collateral or the books and
records relating thereto, or both, to remove all or any part of the Collateral or the books and records relating thereto, or both, and
to conduct sales of the Collateral, without any obligation to pay any Grantor for such use and occupancy, in each case, for a reasonable
period of time in order to effectuate its rights and remedies hereunder or under applicable law, provided that the Agent shall provide
the applicable Grantor with reasonable notice thereof prior to or promptly after such occupancy.
Section 5.03. Intellectual
Property Remedies. (a) For the purpose of enabling the Agent to exercise the rights and remedies under this Article 5 at
any time when an Event of Default has occurred and is continuing and at such time as the Agent shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to the Agent a power of attorney, effective during the continuance of
an Event of Default, to sign any document which may be required by the United States Patent and Trademark Office, the United States
Copyright Office or similar registrar in order to effect an absolute assignment of all of such Grantor’s right, title and
interest in each registered Patent, Trademark, Domain Name and Copyright and each application for any such registration, in each
case, that constitutes Collateral and record the same. At any time when an Event of Default has occurred and is continuing, the
Agent may (i) declare the entire right, title and interest of such Grantor in and to each Patent, Trademark, Domain Name, Copyright
or Trade Secret in each case, that constitutes Collateral to be vested in the Agent for the benefit of the Secured Parties, in which
event such right, title and interest shall immediately vest in the Agent for the benefit of the Secured Parties, and the Agent shall
be entitled to exercise the power of attorney referred to in this Section 5.03 to execute, cause to be acknowledged and
notarized and record such absolute assignment with the applicable agency or registrar; (ii) sell any Grantor’s Inventory
directly to any Person, including without limitation Persons who have previously purchased any Grantor’s Inventory from such
Grantor and in connection with any such sale or other enforcement of the Agent’s rights under this Security Agreement and
subject to any restrictions contained in applicable third party licenses entered into by such Grantor, sell Inventory which bears
any Trademark owned by or licensed to any Grantor and any Inventory that is covered by any Copyright owned by or licensed to any
Grantor, and the Agent may finish any work in process and affix any relevant Trademark owned by or licensed to such Grantor and sell
such Inventory as provided herein; (iii) direct such Grantor to refrain, in which event such Grantor shall refrain, from using any
such Patent, Trademark, Domain Name, Copyright, and Trade Secret, in each case, that constitutes Collateral in any manner
whatsoever, directly or indirectly; and (iv) assign or sell any such Patent, Trademark, Copyright, Domain Name, and/or Trade Secret,
in each case, that constitutes Collateral as well as the goodwill of such Grantor’s business symbolized by any such Trademark
and the right to carry on the business and use the assets of such Grantor in connection with which any such Trademark or Domain Name
has been used.
(b) Subject
to the terms and conditions set forth herein and in the other Loan Documents, each Grantor hereby grants to the Agent an irrevocable (until
the Termination Date, at which time such license shall automatically and immediately terminate), nonexclusive license to its right to
use, license or sublicense any Patent, Trademark, Copyright, Domain Name and/or Trade Secret now owned or hereafter acquired by such Grantor,
wherever the same may be located, and including in such license access to all media in which any of the licensed items may be recorded
or stored and (to the extent not prohibited by any applicable license) to all computer software and programs used for compilation or printout
thereof, but, in each case (x) only to the extent such Grantor has the right to grant such license and such license is permitted under
applicable law, and (y) subject to the terms and conditions of, and only to the extent permitted under, any applicable Contract. The use
of the license granted to the Agent pursuant to the preceding sentence may be exercised, at the option of the Agent, only when an Event
of Default has occurred and is continuing and shall be subject to (i) any license granted by any Grantor in compliance with (or not in
violation of) the provisions of this Security Agreement prior to the occurrence of such Event of Default, (ii) in the case of Trademarks,
sufficient rights to quality control and inspection in favor of such Grantor to avoid the risk of invalidation and to preserve the value
of such Trademarks and (iii) in the case of Trade Secrets, the requirement that the secret status of such Trade Secrets be maintained
and reasonable steps are taken to ensure they are maintained.
Section 5.04. Application
of Proceeds. (a) Subject to the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement then in effect,
if any, the Agent shall apply the proceeds of any collection, sale, foreclosure or other realization upon any Collateral, as well as any
Collateral consisting of Cash, as set forth in Section 2.18(b) of the First Lien Credit Agreement.
(b) Except
as otherwise provided herein or in any other Loan Document, the Agent shall have absolute discretion as to the time of application of
any such proceeds, money or balance in accordance with this Security Agreement. Upon any sale of Collateral by the Agent (including pursuant
to a power of sale granted by statute or under a judicial proceeding), a receipt by the Agent or of the officer making the sale of such
proceeds, moneys or balances shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser
or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Agent or such officer
or be answerable in any way for the misapplication thereof. It is understood that the Grantors shall remain jointly and severally liable
to the extent of any deficiency between the amount of the proceeds of the Collateral and the aggregate amount of the Secured Obligations.
ARTICLE 6
ACCOUNT VERIFICATION;
ATTORNEY IN FACT; PROXY
Section 6.01. Account Verification.
The Agent may at any time and from time to time when an Event of Default has occurred and is continuing, in the Agent’s own name,
in the name of a nominee of the Agent, or in the name of any Grantor, communicate (by mail, telephone, facsimile or otherwise) with the
Account debtors of such Grantor, parties to Contracts with such Grantor and obligors in respect of Instruments of such Grantor to verify
with such Persons, to the Agent’s reasonable satisfaction, the existence, amount, terms of, and any other matter relating to, Accounts,
Contracts, Instruments, Chattel Paper, payment intangibles and/or other Receivables that constitute Collateral.
Section 6.02. Authorization
for the Agent to Take Certain Action. (a) Each Grantor hereby irrevocably authorizes the Agent and appoints the Agent (and all
officers, employees or agents designated by the Agent) as its true and lawful attorney in fact for the purpose of carrying out the
provisions of this Security Agreement (i) at any time and from time to time in its sole discretion (A) to execute (to the extent
necessary under the law of the applicable jurisdiction) on behalf of such Grantor as debtor and to file financing statements
necessary or desirable in the Agent’s reasonable discretion to perfect and to maintain the perfection and priority of the
Agent’s security interest in the Collateral and (B) to file a carbon, photographic or other reproduction of this Security
Agreement as a financing statement and to file any amendment of a financing statement with respect to the Collateral (which would
not add new collateral or add a debtor, except as otherwise provided for herein or in any other Loan Document) in such offices as
the Agent in its reasonable discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the
Agent’s security interest in the Collateral; (ii) at any time when an Event of Default has occurred and is continuing, in the
sole discretion of the Agent (in the name of such Grantor or otherwise), subject to the terms of the Intercreditor Agreement or any
other applicable Acceptable Intercreditor Agreement then in effect, if any, (A) to endorse and collect any cash proceeds of the
Collateral and to apply the proceeds of any Collateral received by the Agent to the Secured Obligations as provided herein or in the
First Lien Credit Agreement or any other Loan Document, subject to the terms of the Intercreditor Agreement or any other applicable
Acceptable Intercreditor Agreement then in effect, if any, (B) to demand payment or enforce payment of any Receivable in the name of
the Agent or such Grantor and to endorse any check, draft and/or any other instrument for the payment of money relating to any such
Receivable, (C) to sign such Grantor’s name on any invoice or bill of lading relating to any Receivable, any draft against any
Account debtor of such Grantor, and/or any assignment and/or verification of any Receivable, (D) to exercise all of any
Grantor’s rights and remedies with respect to the collection of any Receivable and any other Collateral, (E) to settle,
adjust, compromise, extend or renew any Receivable, (F) to settle, adjust or compromise any legal proceedings brought to collect any
Receivable, (G) to prepare, file and sign such Grantor’s name on a proof of claim in bankruptcy or similar document against
any Account debtor of such Grantor, (H) to prepare, file and sign such Grantor’s name on any notice of Lien, assignment or
satisfaction of Lien or similar document in connection with any Receivable, (I) to change the address for delivery of mail addressed
to such Grantor to such address as the Agent may designate and to receive, open and dispose of all mail addressed to such Grantor
(provided copies of such mail are provided to such Grantor), (J) to discharge past due taxes, assessments, charges, fees or Liens on
the Collateral (except for Permitted Liens), (K) to make, settle and adjust claims in respect of Collateral under policies of
insurance and endorse the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such
policies of insurance, (L) to make all determinations and decisions with respect thereto and (M) to obtain or maintain the policies
of insurance of the types referred to in Section 5.05 of the First Lien Credit Agreement or to pay any premium in whole or in
part relating thereto; and (iii) subject to the terms of the Intercreditor Agreement or any other applicable Acceptable
Intercreditor Agreement then in effect, if any, to do all other acts and things or institute any proceedings which the Agent may
reasonably deem to be necessary or advisable (pursuant to this Security Agreement and the other Loan Documents and in accordance
with applicable law) to carry out the terms of this Security Agreement and to protect the interests of the Secured Parties; and,
when and to the extent required pursuant to Section 9.03(a) of the First Lien Credit Agreement, such Grantor agrees to
reimburse the Agent for any payment made in connection with this paragraph or any expense (including expenses of one outside counsel
(and, if necessary, of one local counsel in any relevant jurisdiction), court costs and related expenses) and other charges related
thereto incurred by the Agent in connection with any of the foregoing (it being understood that any such sums shall constitute
additional Secured Obligations); provided that, this authorization shall not relieve such Grantor of any of its obligations
under this Security Agreement or under the First Lien Credit Agreement.
(b) All
acts of such attorney or designee are hereby ratified and approved by each Grantor. The powers conferred on the Agent, for the benefit
of the Agent and Secured Parties, under this Section 6.02 are solely to protect the Agent’s interests in the Collateral and
shall not impose any duty upon the Agent or any Secured Party to exercise any such powers.
Section 6.03. PROXY.
EACH GRANTOR HEREBY IRREVOCABLY (UNTIL THE TERMINATION DATE) CONSTITUTES AND APPOINTS THE AGENT AS ITS PROXY AND ATTORNEY-IN-FACT (AS
SET FORTH IN SECTION 6.02 ABOVE) WITH RESPECT TO THE PLEDGED COLLATERAL, INCLUDING THE RIGHT TO VOTE SUCH PLEDGED COLLATERAL, WITH
FULL POWER OF SUBSTITUTION TO DO SO. IN ADDITION TO THE RIGHT TO VOTE ANY SUCH PLEDGED COLLATERAL, THE APPOINTMENT OF THE AGENT AS PROXY
AND ATTORNEY-IN-FACT SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF SUCH PLEDGED
COLLATERAL WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS
AND VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER
OF ANY SUCH PLEDGED COLLATERAL ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF SUCH PLEDGED COLLATERAL
OR ANY OFFICER OR AGENT THEREOF), IN EACH CASE ONLY WHEN AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING AND UPON THREE BUSINESS DAYS’
PRIOR WRITTEN NOTICE TO THE BORROWER.
Section 6.04. NATURE OF
APPOINTMENT; LIMITATION OF DUTY. THE APPOINTMENT OF THE AGENT AS PROXY AND ATTORNEY-IN-FACT IN THIS ARTICLE 6 IS COUPLED WITH
AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE DATE ON WHICH THIS SECURITY AGREEMENT IS TERMINATED IN ACCORDANCE WITH SECTION 7.12.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN, NEITHER THE AGENT, NOR ANY SECURED PARTY, NOR ANY OF THEIR RESPECTIVE AFFILIATES, OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL HAVE ANY DUTY TO EXERCISE ANY RIGHT OR POWER GRANTED HEREUNDER OR OTHERWISE OR TO
PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO, EXCEPT TO THE EXTENT SUCH DAMAGES ARE
ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PERSON AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION IN
A FINAL AND NON-APPEALABLE DECISION SUBJECT TO SECTION 7.20 HEREOF; PROVIDED, THAT THE FOREGOING EXCEPTION SHALL NOT BE
CONSTRUED TO OBLIGATE THE AGENT TO TAKE OR REFRAIN FROM TAKING ANY ACTION WITH RESPECT TO THE COLLATERAL.
ARTICLE 7
GENERAL PROVISIONS
Section 7.01. Waivers.
To the maximum extent permitted by applicable law, each Grantor hereby waives notice of the time and place of any judicial hearing in
connection with the Agent’s taking possession of the Collateral or of any public sale or the time after which any private sale or
other disposition of all or any part of the Collateral may be made, including without limitation, any and all prior notice and hearing
for any prejudgment remedy or remedies. To the extent such notice may not be waived under applicable law, any notice made shall be deemed
reasonable if sent to any Grantor, addressed as set forth in Article 8, at least 10 days prior to (a) the date of any such public
sale or (b) the time after which any such private Disposition may be made. To the maximum extent permitted by applicable law, each Grantor
waives all claims, damages, and demands against the Agent arising out of the repossession, retention or sale of the Collateral, except
those arising out of the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final
and non-appealable judgment. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the
benefit and advantage of, and covenants not to assert against the Agent, any valuation, stay (other than an automatic stay under any applicable
Debtor Relief Law), appraisal, extension, moratorium, redemption or similar law and any and all rights or defenses it may have as a surety
now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order
or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise. Except as otherwise specifically
provided herein, each Grantor hereby waives presentment, demand, protest, any notice (to the maximum extent permitted by applicable law)
of any kind or all other requirements as to the time, place and terms of sale in connection with this Security Agreement or any Collateral.
Section 7.02. Limitation
on Agent’s Duty with Respect to the Collateral. The Agent shall not have any obligation to clean or otherwise prepare the
Collateral for sale. The Agent shall use reasonable care with respect to the Collateral in its possession; provided that the
Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its possession if such
Collateral is accorded treatment substantially equal to which it accords its own property. The Agent shall not have any other duty
as to any Collateral in its possession or control or in the possession or control of any agent or nominee of the Agent, or any
income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. To the extent that
applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and
agrees that it would be commercially reasonable for the Agent (a) to fail to incur expenses to prepare Collateral for Disposition or
otherwise to transform raw material or work in process into finished goods or other finished products for Disposition, (b) to fail
to obtain third party consents for access to Collateral to be Disposed of, or to obtain or, if not required by other law, to fail to
obtain governmental or third party consents for the collection or Disposition of Collateral to be collected or Disposed of, (c) to
fail to exercise collection remedies against Account debtors or other Persons obligated on Collateral or to remove Liens on or any
adverse claims against Collateral, (d) to exercise collection remedies against Account debtors and other Persons obligated on
Collateral directly or through the use of collection agencies and other collection specialists, (e) to advertise Dispositions of
Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to
contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring all or any
portion of such Collateral, (g) to hire one or more professional auctioneers to assist in the Disposition of Collateral, whether or
not the Collateral is of a specialized nature, (h) to Dispose of Collateral by utilizing internet sites that provide for the auction
of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers
of assets, (i) to Dispose of assets in wholesale rather than retail markets, (j) to disclaim Disposition warranties, such as title,
possession or quiet enjoyment, (k) to purchase insurance or credit enhancements to insure the Agent against risks of loss in
connection with any collection or Disposition of Collateral or to provide to the Agent a guaranteed return from the collection or
Disposition of Collateral or (l) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment
bankers, consultants and other professionals to assist the Agent in the collection or Disposition of any of the Collateral. Each
Grantor acknowledges that the purpose of this Section 7.02 is to provide non-exhaustive indications of what actions or
omissions by the Agent would be commercially reasonable in the Agent’s exercise of remedies with respect to the Collateral and
that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated
in this Section 7.02. Without limitation upon the foregoing, nothing contained in this Section 7.02 shall be construed
to grant any rights to any Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Security
Agreement or by applicable law in the absence of this Section 7.02.
Section 7.03. Compromises
and Collection of Collateral. Each Grantor and the Agent recognize that setoffs, counterclaims, defenses and other claims may be asserted
by obligors with respect to certain of the Receivables, that certain of the Receivables may be or become uncollectible in whole or in
part and that the expense and probability of success in litigating a disputed Receivable may exceed the amount that reasonably may be
expected to be recovered with respect to any Receivable. In view of the foregoing, each Grantor agrees that the Agent may at any time
and from time to time, if an Event of Default has occurred and is continuing, compromise with the obligor on any Receivable, accept in
full payment of any Receivable such amount as the Agent in its sole discretion shall determine or abandon any Receivable, and any such
action by the Agent shall be commercially reasonable so long as the Agent acts in good faith based on information known to it at the time
it takes any such action.
Section 7.04. Agent Performance
of Debtor Obligations. Without having any obligation to do so, the Agent may, at any time when an Event of Default has occurred and
is continuing, upon prior notice to the Borrower, perform or pay any obligation which any Grantor has agreed to perform or pay under this
Security Agreement and which obligation is due and unpaid and not being contested by such Grantor in good faith, and such Grantor shall
reimburse the Agent for any amounts paid by the Agent pursuant to this Section 7.04. Each Grantor’s obligation to reimburse
the Agent pursuant to the preceding sentence shall be a Secured Obligation payable in accordance with Section 9.03(a) of the First
Lien Credit Agreement.
Section 7.05. No Waiver;
Amendments; Cumulative Remedies. No delay or omission of the Agent (subject to the provisions of Article 8 of the First Lien
Credit Agreement) to exercise any right or remedy granted under this Security Agreement shall impair such right or remedy or be construed
to be a waiver of any Default or Event of Default or an acquiescence therein, and no single or partial exercise of any such right or remedy
shall preclude any other or further exercise thereof or the exercise of any other right or remedy. No waiver, amendment or other variation
of the terms, conditions or provisions of this Security Agreement whatsoever shall be valid unless in writing signed by the Borrower and
the Agent with the concurrence or at the direction of the First Lien Lenders to the extent required under Section 9.02 of the First
Lien Credit Agreement and then only to the extent in such writing specifically set forth. All rights and remedies contained in this Security
Agreement or afforded by law shall be cumulative and all shall be available to the Agent until the Termination Date.
Section 7.06. Limitation
by Law; Severability of Provisions. All rights, remedies and powers provided in this Security Agreement may be exercised only to
the extent that the exercise thereof does not violate any applicable provisions of law, and all of the provisions of this Security
Agreement are intended to be subject to all applicable mandatory provisions of law that may be controlling and to be limited to the
extent necessary so that such provisions do not render this Security Agreement invalid, unenforceable or not entitled to be recorded
or registered, in whole or in part. To the extent permitted by applicable provisions of law, any provision of this Security
Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the
remaining provisions of this Security Agreement; and the invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
Section 7.07. Security
Interest Absolute. All rights of the Agent hereunder, the security interests granted hereunder and all obligations of each Grantor
hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the First Lien Credit Agreement,
any other Loan Document, any agreement with respect to any of the Secured Obligations or any other agreement or instrument relating to
any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations,
or any other amendment or waiver of or any consent to any departure from the First Lien Credit Agreement, any other Loan Document or any
other agreement or instrument relating to the foregoing, (c) any exchange, release or nonperfection of any Lien on any Collateral, or
any release or amendment or waiver of or consent under or departure from any guaranty, securing or guaranteeing all or any of the Secured
Obligations, (d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any Grantor,
(e) any exercise or non-exercise, or any waiver of, any right, remedy, power or privilege under or in respect of this Security Agreement
or any other Loan Document or (f) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any
Grantor in respect of the Secured Obligations or this Security Agreement (other than a termination of any Lien contemplated by Section
7.12 or the occurrence of the Termination Date).
Section 7.08. Benefit of
Security Agreement. The terms and provisions of this Security Agreement shall be binding upon and inure to the benefit of each Grantor,
the Agent and the Secured Parties and their respective successors and permitted assigns (including all Persons who become bound as a debtor
to this Security Agreement). No sales of participations, assignments, transfers, or other dispositions of any agreement governing the
Secured Obligations or any portion thereof or interest therein shall in any manner impair the Lien granted to the Agent hereunder for
the benefit of the Agent and the Secured Parties.
Section 7.09. Survival
of Representations. All representations and warranties of each Grantor contained in this Security Agreement shall survive the execution
and delivery of this Security Agreement until the Termination Date.
Section 7.10. Additional
Subsidiaries. Upon the execution and delivery by the Agent and any New Holdings, Successor Borrower or Restricted Subsidiary of an
instrument in the form of Exhibit A in accordance with Section 5.12(a) of the First Lien Credit Agreement, such New Holdings, successor
Borrower or Restricted Subsidiary, as applicable, shall become a Grantor hereunder with the same force and effect as if such New Holdings,
successor Borrower or Restricted Subsidiary was originally named as a Grantor herein. The execution and delivery of any such instrument
shall not require the consent of any other Grantors or other Person hereunder. The rights and obligations of each Grantor hereunder shall
remain in full force and effect notwithstanding the addition of any new party to the Credit Agreement as a party to this Security Agreement.
Section 7.11. Headings.
The titles of and section headings in this Security Agreement are for convenience of reference only, and shall not govern the interpretation
of any of the terms and provisions of this Security Agreement.
Section 7.12. Termination
or Release. (a) This Security Agreement shall continue in effect until the Termination Date, and the Liens granted hereunder shall
automatically be released in the circumstances described in Article 8 of the First Lien Credit Agreement.
(b) In
connection with any termination or release pursuant to paragraph (a) above, the Agent shall promptly execute (if applicable) and
deliver to any Grantor, at such Grantor’s expense, all UCC termination statements and similar documents that such Grantor shall
reasonably request to evidence and/or effectuate such termination or release. Any execution and delivery of documents pursuant to this
Section 7.12 shall be without recourse to or representation or warranty by the Agent or any Secured Party. The Borrower shall reimburse
the Agent for all reasonable and documented costs and expenses, including any fees and expenses of one outside counsel (and, if necessary,
of one local counsel in any relevant jurisdiction), incurred by it in connection with any action contemplated by this Section 7.12
pursuant to and to the extent required by Section 9.03(a) of the First Lien Credit Agreement.
(c) At
any time that any Grantor desires that the Agent take any action to acknowledge or give effect to any release of Collateral pursuant to
the foregoing Section 7.12(a), such Grantor shall deliver to the Agent a certificate signed by a Responsible Officer of such Grantor
(or the Borrower on behalf of such Grantor) stating that the release of the respective Collateral is permitted pursuant to such Section
7.12(a) and the terms of the First Lien Credit Agreement. At any time that any Grantor desires that the Agent take any action to acknowledge
or give effect to any release of a Grantor hereunder, it shall deliver to the Agent a certificate signed by a Responsible Officer of such
Grantor (or the Borrower on behalf of such Grantor) stating that the release of such Grantor (and its Collateral) is permitted pursuant
to such Section 7.12(a) and the terms of the First Lien Credit Agreement.
(d) The
Agent shall have no liability whatsoever to any other Secured Party as the result of any release of Collateral by it in accordance with
(or which the Agent in good faith believes to be in accordance with) the terms of this Section 7.12.
Section 7.13. Entire Agreement.
This Security Agreement, together with the other Loan Documents (including the Intercreditor Agreement or any other applicable Acceptable
Intercreditor Agreement then in effect, if any), embodies the entire agreement and understanding between each Grantor and the Agent relating
to the Collateral and supersedes all prior agreements and understandings between any Grantor and the Agent relating to the Collateral.
Section 7.14. CHOICE
OF LAW. THIS SECURITY AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SECURITY AGREEMENT, WHETHER
IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
Section 7.15. CONSENT
TO JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) EACH PARTY
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S.
FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT AND AGREES THAT ALL CLAIMS, CONTROVERSIES OR
DISPUTES IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT SERVICE OF ANY
PROCESS, SUMMONS, NOTICE OR DOCUMENTS BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH
PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
APPLICABLE LAW. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND
EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS SECURITY AGREEMENT IN ANY SUCH COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION, SUIT OR
PROCEEDING IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT THE AGENT AND FIRST LIEN LENDERS RETAIN THE RIGHT TO BRING PROCEEDINGS
AGAINST ANY GRANTOR IN THE COURTS OF ANY OTHER JURISDICTION SOLELY IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS IN RESPECT OF THE
COLLATERAL UNDER THIS SECURITY AGREEMENT.
(b) TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS SECURITY AGREEMENT HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL)
DIRECTED TO IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01 OF THE FIRST LIEN CREDIT AGREEMENT. EACH PARTY TO THIS
SECURITY AGREEMENT HEREBY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM
IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS SECURITY AGREEMENT
WILL AFFECT THE RIGHT OF ANY PARTY TO THIS SECURITY AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Section 7.16. WAIVER OF
JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION, LEGAL PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS SECURITY AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 7.17. Indemnity.
Each Grantor hereby agrees to indemnify the Indemnitees, as, and to the extent, set forth in Section 9.03 of the First Lien Credit
Agreement.
Section 7.18. Counterparts.
This Security Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Security Agreement by facsimile or by email as a “.pdf” or “.tif”
attachment or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Security
Agreement.
Section 7.19. INTERCREDITOR
AGREEMENT GOVERNS.
(a) NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, THE LIENS AND SECURITY INTERESTS GRANTED TO THE AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT
TO THIS SECURITY AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE AGENT WITH RESPECT TO ANY COLLATERAL HEREUNDER ARE SUBJECT TO
THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT OR ANY
OTHER APPLICABLE ACCEPTABLE INTERCREDITOR AGREEMENT THEN IN EFFECT, IF ANY, ON THE ONE HAND, AND THIS SECURITY AGREEMENT, ON THE OTHER
HAND, THE PROVISIONS OF SUCH INTERCREDITOR AGREEMENT OR OTHER APPLICABLE ACCEPTABLE INTERCREDITOR AGREEMENT, SHALL GOVERN AND CONTROL.
Section 7.20. Waiver of
Consequential Damages, Etc. To the extent permitted by applicable law, none of the Grantors or Secured Parties shall assert, and each
hereby waives, any claim against each other or any Related Party thereof, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Security Agreement
or any agreement or instrument contemplated hereby, except, in the case of any claim by any Indemnitee against any of the Grantors, to
the extent such damages would otherwise be subject to indemnification pursuant to the terms of Section 7.17.
Section 7.21. Mortgages. In the case of a conflict
between this Security Agreement and any Mortgage with respect to any Material Real Estate Asset that is also subject to a valid and enforceable
Lien under the terms of such Mortgage (including Fixtures), the terms of such Mortgage shall govern.
Section 7.22. Successors
and Assigns. Whenever in this Security Agreement any party hereto is referred to, such reference shall be deemed to include the successors
and permitted assigns of such party; and all covenants, promises and agreements by or on behalf of any Grantor or the Agent in this Security
Agreement shall bind and inure to the benefit of their respective successors and permitted assigns. Except in a transaction expressly
permitted under the First Lien Credit Agreement, no Grantor may assign any of its rights or obligations hereunder without the written
consent of the Agent.
Section 7.23. Survival
of Agreement. Without limiting any provision of the First Lien Credit Agreement or Section 7.17 hereof, all covenants, agreements,
indemnities, representations and warranties made by the Grantors in the Loan Documents and in the certificates or other instruments delivered
in connection with or pursuant to this Security Agreement or any other Loan Document shall be considered to have been relied upon by the
First Lien Lenders and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation
made by any such First Lien Lender or on its behalf and notwithstanding that the Agent or any First Lien Lender may have had notice or
knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended under the First
Lien Credit Agreement, and shall continue in full force and effect until the Termination Date, or with respect to any individual Grantor
until such Grantor is otherwise released from its obligations under this Security Agreement in accordance with the terms hereof.
ARTICLE 8
NOTICES
Section 8.01. Sending Notices.
Any notice required or permitted to be given under this Security Agreement shall be delivered in accordance with Section 9.01 of
the First Lien Credit Agreement (it being understood and agreed that references in such Section to “herein”, “hereunder”
and other similar terms shall be deemed to be references to this Security Agreement).
ARTICLE 9
THE AGENT
JPM has been appointed Agent
for the First Lien Lenders hereunder pursuant to Article 8 of the First Lien Credit Agreement. It is expressly understood and agreed
by the parties to this Security Agreement that any authority conferred upon the Agent hereunder is subject to the terms of the delegation
of authority made by the First Lien Lenders to the Agent pursuant to the First Lien Credit Agreement, and that the Agent has agreed to
act (and any successor Agent shall act) as such hereunder only on the express conditions contained in such Article 8. Any successor
Agent appointed pursuant to Article 8 of the First Lien Credit Agreement shall be entitled to all the rights, interests and benefits
of the Agent hereunder.
By accepting the benefits
of this Security Agreement and each other Loan Document, each Secured Party expressly acknowledges and agrees that this Security Agreement
and each other Loan Document may be enforced only by the action of the Agent, and that such Secured Party shall not have any right individually
to seek to enforce or to enforce this Security Agreement or to realize upon the security to be granted hereby, it being understood and
agreed that such rights and remedies may be exercised by the Agent for the benefit of the Secured Parties upon the terms of this Security
Agreement and the other Loan Documents.
[Signature
Pages Follow]
IN WITNESS WHEREOF, each Grantor and the Agent
have executed this Security Agreement as of the date first above written.
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A-B Merger Sub II LLC, a Delaware limited liability
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company,
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as Borrower
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By:
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Name:
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Title:
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A-B Merger Sub I Inc., a Delaware corporation,
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as Holdings
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By:
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Name:
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Title:
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Signature Page to First Lien Pledge and Security
Agreement
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Kingpin Intermediate LLC
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Strike Holdings LLC
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Bowlmor Lanes LLC
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Bowlmor Times Square, LLC
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Westwood Lanes, LLC
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Strike Miami, LLC
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Strike Cupertino VFP, LLC
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Strike Tustin TDTL, LLC
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Strike Consulting, LLC
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Strike Long Island, LLC
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Bowlero Jupiter Lanes, LLC
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Leiserv, LLC
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Brunswick Recreation LLC
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Brunswick Zone XL Colorado Springs, LLC
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Brunswick Zone XL Rockford LLC
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Bowlero Scottsdale, LLC
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Bowlero Leesburg, LLC
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Bowlero Dania, LLC
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AMF Worldwide Bowling Centers Holdings Inc.
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AMF Bowling Centers Holdings Inc.
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AMF Bowling Centers, Inc.
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Texas Operations Holding Company, Inc.
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AMF Bowling Worldwide, Inc.
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Goode Bowling Corp.
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By:
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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Signature Page to First Lien Pledge and Security
Agreement
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JPMORGAN CHASE BANK, N.A.,
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as Agent
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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Signature Page to First Lien Pledge and Security
Agreement
EXHIBIT A
[FORM OF] FIRST LIEN SECURITY AGREEMENT JOINDER
A. SUPPLEMENT
NO. [●] dated as of [●] (this “Supplement”), to the First Lien Pledge and Security Agreement dated as of
July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Security
Agreement”), by and among A-B Merger Sub II LLC, a Delaware limited liability company (the “Borrower”), A-B
Merger Sub I Inc., a Delaware corporation (“Holdings”), the Subsidiary Parties from time to time party thereto (the
foregoing, collectively, the “Loan Parties”) and JPMorgan Chase Bank, N.A. (“JPM”), in its capacity
as administrative agent and collateral agent for the Secured Parties (in such capacities, the “Agent”).
B. Reference
is made to the First Lien Credit Agreement dated as of July 3, 2017, (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “First Lien Credit Agreement”), by and among, inter alios, Holdings, the Borrower,
the First Lien Lenders and the Agent.
C. Capitalized
terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the First Lien Credit Agreement or
the Security Agreement, as applicable.
D. The Grantors have entered
into the Security Agreement in order to induce the First Lien Lenders to make Loans. Section 7.10 of the Security Agreement and Section
5.12 of the First Lien Credit Agreement provide that [additional Restricted Subsidiaries of the Borrower may become Subsidiary Parties
and Grantors under the Security Agreement] [New Holdings / Successor Borrower may become a Grantor under the Security Agreement] by executing
and delivering an instrument in the form of this Supplement. [Each] [The] undersigned Restricted Subsidiary [New Holdings / Successor
Borrower] ([each] [the] “New Grantor”) is executing this Supplement in accordance with the requirements of the First
Lien Credit Agreement to become a [Subsidiary Party and] a Grantor under the Security Agreement in order to induce the First Lien Lenders
to make additional Loans and as consideration for Loans previously made.
Accordingly, the Agent and [each] [the] New Grantor agree
as follows:
SECTION 1. In accordance with
Section 7.10 of the Security Agreement, [each] [the] New Grantor by its signature below becomes a [Subsidiary Party and a] Grantor
under the Security Agreement with the same force and effect as if originally named therein as a [Subsidiary Party and a] Grantor, and
[each] [the] New Grantor hereby (a) agrees to all the terms and provisions of the Security Agreement applicable to it as [a Subsidiary
Party and] Grantor thereunder and (b) makes the representations and warranties applicable to it as a Grantor under the Security Agreement[,
subject to Schedule A hereto,]1 on and as of the date hereof; it being understood
and agreed that any representation or warranty that expressly relates to an earlier date shall be deemed to refer to the date hereof.
In furtherance of the foregoing, [each] [the] New Grantor, as security for the payment and performance in full of the Secured Obligations,
does hereby create and grant to the Agent, its successors and permitted assigns, for the benefit of the Secured Parties, their successors
and permitted assigns, a security interest in and Lien on all of [each] [the] New Grantor’s right, title and interest in and to
the Collateral of [each] [the] New Grantor. Each reference to a “Grantor” [and “Subsidiary Party”] in the Security
Agreement shall be deemed to include [each] [the] New Grantor. The Security Agreement is hereby incorporated herein by reference.
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1
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Delete if Schedule A would be blank.
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SECTION 2. [Each] [The] New
Grantor represents and warrants to the Agent and the other Secured Parties that this Supplement has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding obligation, enforceable (subject to the Legal Reservations) against it in
accordance with its terms.
SECTION 3. This Supplement
may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Agent shall have
received a counterpart of this Supplement that bears the signature of [each] [the] New Grantor and the Agent has executed a counterpart
hereof. Delivery of an executed signature page to this Supplement by facsimile transmission or by email as a “.pdf” or “.tif”
attachment shall be as effective as delivery of a manually signed counterpart of this Supplement.
SECTION 4. Attached hereto
is a duly prepared, completed and executed Perfection Certificate with respect to [each] [the] New Grantor, and [each] [the] New Grantor
hereby represents and warrants that the information set forth therein is correct and complete in all material respects (except the information
therein with respect to the exact legal name of each Grantor shall be correct and complete in all respects) as of the date hereof.
SECTION 5. Except as expressly
supplemented hereby, the Security Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one
or more of the provisions contained in this Supplement is invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and in the Security Agreement shall not in any way be affected or impaired
thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The Borrower and the Agent hereto shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible
to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications
and notices hereunder shall be in writing and given as provided in Section 8.01 of the Security Agreement.
SECTION 9. [Each] [The] New
Grantor agrees to reimburse the Agent for its expenses in connection with this Supplement, including the fees, other charges and disbursements
of counsel in accordance with Section 9.03(a) of the First Lien Credit Agreement.
SECTION 10. This Supplement
shall constitute a Loan Document, under and as defined in, the First Lien Credit Agreement.
[Signature pages follow]
IN WITNESS WHEREOF, [each] [the] New Grantor has
duly executed this Supplement to the Security Agreement as of the day and year first above written.
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[NAME OF NEW GRANTOR]
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By:
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Name:
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Title:
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[Signature Page to First Lien Security Agreement
Joinder]
[SCHEDULE A
CERTAIN EXCEPTIONS]
EXHIBIT K
[FORM OF]
LETTER OF CREDIT REQUEST
[Issuing Bank],32
as Issuing Bank
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Attention:
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[Name]
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[Address]
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Fax: [●]
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with a copy to: JPMorgan Chase Bank, N.A.,
as Administrative Agent for the Lenders referred to below
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Attention:
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Loan & Agency Services Group-William
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Tel: 302-634-1964
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Fax: 302-634-3301
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Email:
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[[●][●], 20[●]]33
Ladies and Gentlemen:
We hereby request that [●]34,
as an Issuing Bank, in its individual capacity, [issue, amend, renew, extend][a/an] [existing] [Standby]
[Commercial] Letter of Credit on [●]35 (the “Date of Issuance”),
which Letter of Credit shall be in the aggregate amount of [●]36 and shall be for
the account of [●]37. The beneficiary of the requested Letter of Credit is [●]38,
and such Letter of Credit will be in support of [●]39 and will have a stated expiration
date of [●]40. For the purposes of this Letter of Credit Request, unless otherwise
defined herein, all capitalized terms used herein and defined in the First Lien Credit Agreement dated as of July 3, 2017 (as amended,
restated, amended and restated, supplemented or otherwise modified and in effect on the date hereof, the “First Lien Credit
Agreement”), by and among, Kingpin Intermediate Holdings LLC, a Delaware limited liability company (the “Borrower”),
Bowlmor AMF Corp., a Delaware corporation (“Holdings”), the lenders from time to time party thereto and JPMorgan Chase
Bank, N.A., in its capacities as an issuing bank, the swingline lender and as administrative agent and collateral agent for the lenders.
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32
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Insert name and address of the applicable Issuing Bank.
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33
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Must be delivered to the applicable Issuing Bank and the
Administrative Agent, at least three Business Days in advance of the requested date of issuance, amendment, extension or renewal (or
such shorter period as is acceptable to the applicable Issuing Bank).
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34
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Insert name of the applicable Issuing Bank.
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35
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Insert date of issuance, which must be a Business Day.
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36
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Insert aggregate initial amount of Letter of Credit.
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37
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Insert name of account party.
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38
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Insert name and address of beneficiary.
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39
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Insert brief description of obligations(s) to be supported
by the Letter of Credit.
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40
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Date may not be later than the date referred to in Section
2.05(c) of the First Lien Credit Agreement.
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[We hereby certify that:
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(A)
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The representations and warranties of the Loan Parties set forth in the First Lien Credit Agreement and
the other Loan Documents are true and correct in all material respects on and as of the Date of Issuance with the same effect as though
such representations and warranties had been made on and as of the Date of Issuance; provided that to the extent that a representation
and warranty specifically refers to a given date or period, it is true and correct in all material respects as of such date or for such
period.
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(B)
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As of the Date of Issuance and immediately after giving effect to the requested Letter of Credit, no Default or Event of Default shall
have occurred and be continuing.]41
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[Signature Page Follows]
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41
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Include bracketed language only for issuances of Letters of Credit
after Closing Date.
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[KINGPIN INTERMEDIATE HOLDINGS LLC, as the Borrower]
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By:
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Name:
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Title:
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EXHIBIT L-1
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income
Tax Purposes)
Reference is hereby made to
that certain First Lien Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise
modified and in effect on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings
LLC, a Delaware limited liability company (the “Borrower”), Bowlmor AMF Corp., a Delaware corporation (“Holdings”),
the lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities as an issuing bank, the swingline lender
and as administrative agent for the First Lien Lenders and collateral agent for the Secured Parties.
Pursuant to the provisions
of Section 2.17(f)(ii)(B)(3) of the First Lien Credit Agreement, the undersigned hereby certifies that (i) it is the sole record
and beneficial owner of the Loan(s) (as well as any Promissory Notes evidencing such Loan(s)) in respect of which it is providing this
certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10 percent
shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign
corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished
the Administrative Agent and the Borrower with a duly executed certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E
(as appropriate). By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes,
the undersigned shall promptly so inform each of the Borrower and the Administrative Agent, and (2) the undersigned shall have at all
times furnished each of the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either
the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein,
terms defined in the First Lien Credit Agreement and used herein shall have the meanings given to them in the First Lien Credit Agreement.
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[NAME OF LENDER]
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By:
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Name:
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Title:
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Date: [●][●], 20[●]
EXHIBIT L-2
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal
Income Tax Purposes)
Reference is hereby made to
that certain First Lien Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise
modified and in effect on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings
LLC, a Delaware limited liability company (the “Borrower”), Bowlmor AMF Corp., a Delaware corporation (“Holdings”),
the lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities as an issuing bank, the swingline lender
and as administrative agent for the First Lien Lenders and collateral agent for the Secured Parties.
Pursuant to the provisions
of Section 2.17(f)(ii)(B)(4) of the First Lien Credit Agreement, the undersigned hereby certifies that (i) it is the sole record
and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a “bank” within
the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10 percent shareholder” of the Borrower within the meaning
of Section 871(h)(3)(B) of the Code, and (iv) it is not a “controlled foreign corporation” related to the Borrower as described
in Section 881(c)(3)(C) of the Code.
The undersigned has furnished
its participating Lender and the Administrative Agent with a duly executed certificate of its non-U.S. Person status on IRS Form W-8BEN
or W-8BEN-E (as appropriate). By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform such Lender and the Administrative Agent in writing, and (2) the undersigned shall have
at all times furnished such Lender and the Administrative Agent with a properly completed and currently effective certificate in either
the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined
in the First Lien Credit Agreement and used herein shall have the meanings given to them in the First Lien Credit Agreement.
[NAME OF PARTICIPANT]
Date: [●][●], 20[●]
EXHIBIT L-3
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income
Tax Purposes)
Reference is hereby made to
that certain First Lien Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise
modified and in effect on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings
LLC, a Delaware limited liability company (the “Borrower”), Bowlmor AMF Corp., a Delaware corporation (“Holdings”),
the lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities as an issuing bank, the swingline lender
and as administrative agent for the First Lien Lenders and collateral agent for the Secured Parties.
Pursuant to the provisions
of Section 2.17(f)(ii)(B)(4) of the First Lien Credit Agreement, the undersigned hereby certifies that (i) it is the sole record
owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the
sole beneficial owners of such participation, (iii) with respect to such participation, neither the undersigned nor any of its direct
or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course
of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members
is a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct
or indirect partners/members is a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C)
of the Code.
The undersigned has furnished
its participating Lender and the Administrative Agent with a duly executed IRS Form W-8IMY accompanied by one of the following forms from
each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E (as appropriate) or
(ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E (as appropriate) from each of such partner’s/member’s
beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if
the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and the Administrative Agent
and (2) the undersigned shall have at all times furnished such Lender and the Administrative Agent with a properly completed and currently
effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar
years preceding such payments.
Unless otherwise defined herein,
terms defined in the First Lien Credit Agreement and used herein shall have the meanings given to them in the First Lien Credit Agreement.
[NAME OF PARTICIPANT]
Date: [●][●], 20[●]
EXHIBIT L-4
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income
Tax Purposes)
Reference is hereby made to
that certain First Lien Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise
modified and in effect on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings
LLC, a Delaware limited liability company (the “Borrower”), Bowlmor AMF Corp., a Delaware corporation (“Holdings”),
the lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities as an issuing bank, the swingline lender
and as administrative agent for the First Lien Lenders and collateral agent for the Secured Parties.
Pursuant to the provisions
of Section 2.17(f)(ii)(B)(4) of the First Lien Credit Agreement, the undersigned hereby certifies that (i) it is the sole record
owner of the Loan(s) (as well as any Promissory Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate,
(ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Promissory Note(s) evidencing
such Loan(s)), (iii) with respect to the extension of credit pursuant to this First Lien Credit Agreement or any other Loan Document,
neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan
agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none
of its direct or indirect partners/members is a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B)
of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to the Borrower
as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished
the Administrative Agent and the Borrower with a duly executed IRS Form W-8IMY accompanied by one of the following forms from each of
its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E (as appropriate) or (ii) an
IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E (as appropriate) from each of such partner’s/member’s beneficial
owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the
undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years
preceding such payments.
Unless otherwise defined herein,
terms defined in the First Lien Credit Agreement and used herein shall have the meanings given to them in the First Lien Credit Agreement.
[Signature Page Follows]
[NAME OF LENDER]
Date: [●][●], 20[●]
EXHIBIT M
[FORM OF]
SOLVENCY CERTIFICATE
July 3, 2017
This Solvency Certificate
(this “Solvency Certificate”) is being executed and delivered pursuant to Section 4.01(j) of that certain First
Lien Credit Agreement dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified and in
effect on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings LLC, a
Delaware limited liability company (the “Borrower”), Bowlmor AMF Corp., a Delaware corporation (“Holdings”),
the lenders from time to time party thereto and JPM, in its capacities as an issuing bank, the swingline lender and as administrative
agent for the First Lien Lenders and collateral agent for the Secured Parties (in such capacity, the “Administrative Agent”).
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the First Lien Credit
Agreement.
I, [●], certify that
I am the duly appointed, qualified and acting chief financial officer (or other officer with reasonably equivalent duties) of Holdings,
and, in such capacity and not in my individual capacity (and without personal liability), certify that based upon facts and circumstances
as they exist as of the date hereof (and disclaiming any responsibility for changes in such facts and circumstances after the date hereof):
On the date hereof, after
giving effect to the Transactions and the related transactions contemplated by the Loan Documents, Holdings and its subsidiaries, when
taken as a whole on a consolidated basis, (a) have property with fair value greater than the total amount of their debts and liabilities,
contingent, subordinated or otherwise (it being understood that the amount of contingent liabilities at any time shall be computed as
the amount that, in light of all the facts and circumstances existing at such time, can reasonably be expected to become an actual or
matured liability), (b) have assets with present fair salable value not less than the amount that will be required to pay their liability
on their debts as they become absolute and matured, (c) will be able to pay their debts and liabilities, subordinated, contingent or otherwise,
as they become absolute and matured and (d) are not engaged in business or a transaction, and are not about to engage in business or a
transaction, for which they have unreasonably small capital.
The undersigned is familiar
with the business and financial position of Holdings and its subsidiaries. In reaching the conclusions set forth in this Solvency Certificate,
the undersigned has made such investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature
of the particular business anticipated to be conducted by Holdings and its subsidiaries after consummation of the transactions contemplated
by the Loan Documents.
[Signature Page Follows]
IN WITNESS WHEREOF, I have executed this Solvency Certificate
on the date first above written.
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BOWLMOR AMF CORP.
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By:
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Name:
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Title:
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[Signature Page To First Lien Solvency Certificate]
EXHIBIT N
[FORM OF]
INTERCREDITOR AGREEMENT
[See attached]
EXECUTION VERSION
INTERCREDITOR AGREEMENT
dated as of July 3, 2017
among
A-B MERGER SUB II LLC (to be merged with and into
KINGPIN INTERMEDIATE HOLDINGS LLC),
as the Borrower,
A-B MERGER SUB I INC. (to be merged with and into
BOWLMOR AMF CORP.),
as Holdings,
EACH OF THE OTHER OBLIGORS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.,
as First Lien Collateral Agent,
and
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
as Second Lien Collateral Agent
TABLE OF CONTENTS
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Page
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SECTION 1. Definitions.
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2
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1.1
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Defined Terms
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2
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1.2
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Terms Generally
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17
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1.3
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Cap Amount
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17
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SECTION 2. Lien Priorities.
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18
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2.1
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Relative Priorities
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18
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2.2
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Prohibition on Contesting Liens; No Marshalling
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18
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2.3
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No New Liens
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19
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2.4
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Similar Liens and Agreements
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19
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2.5
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Nature of Obligations
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19
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2.6
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Additional Lien Obligations
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19
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SECTION 3. Enforcement.
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20
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3.1
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Exercise of Remedies
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20
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3.2
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Actions Upon Breach; Specific Performance
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24
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3.3
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Agreement Among First Lien Claimholders to Coordinate
Enforcement
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24
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SECTION 4. Payments.
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26
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4.1
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Application of Proceeds
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26
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4.2
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Payments Over
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27
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SECTION 5. Other Agreements.
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29
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5.1
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Releases
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29
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5.2
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Insurance
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30
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5.3
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Amendments to First Lien Financing Documents and Second
Lien Financing Documents
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31
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5.4
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Confirmation of Subordination in Second Lien Collateral
Documents
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32
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5.5
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Gratuitous Bailee/Agent for Perfection
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32
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5.6
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When Discharge of First Lien Obligations Deemed to
Not Have Occurred
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33
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5.7
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Purchase Right
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34
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5.8
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Excluded Cash Collateral
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35
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SECTION 6. Insolvency or Liquidation Proceedings.
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36
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6.1
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Finance and Sale Issues
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36
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6.2
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Relief from the Automatic Stay
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37
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6.3
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Adequate Protection
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37
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6.4
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No Waiver
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38
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6.5
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Reinstatement
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38
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6.6
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Reorganization Securities
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39
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6.7
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Post-Petition Interest
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39
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6.8
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Waiver
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40
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6.9
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Separate Grants of Security and Separate Classification
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40
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6.10
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Effectiveness in Insolvency or Liquidation Proceedings
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40
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SECTION 7. Reliance; Waivers; Etc.
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41
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7.1
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Reliance
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41
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7.2
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No Warranties or Liability
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41
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7.3
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No Waiver of Lien Priorities
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41
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7.4
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Waiver of Liability; Indemnity
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43
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7.5
|
|
Obligations Unconditional
|
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44
|
|
|
|
|
|
|
|
SECTION 8. Miscellaneous.
|
|
44
|
|
|
|
|
|
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8.1
|
|
Conflicts
|
|
44
|
|
|
|
|
|
|
|
8.2
|
|
Effectiveness; Continuing Nature of this Agreement; Severability
|
|
44
|
|
|
|
|
|
|
|
8.3
|
|
Amendments; Waivers
|
|
45
|
|
|
|
|
|
|
|
8.4
|
|
Information Concerning Financial Condition of the Obligors and its Subsidiaries
|
|
45
|
|
|
|
|
|
|
|
8.5
|
|
Subrogation
|
|
46
|
|
|
|
|
|
|
|
8.6
|
|
Application of Payments
|
|
46
|
|
|
|
|
|
|
|
8.7
|
|
SUBMISSION TO JURISDICTION; WAIVERS
|
|
46
|
|
|
|
|
|
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|
8.8
|
|
Notices
|
|
47
|
|
|
|
|
|
|
|
8.9
|
|
Further Assurances
|
|
47
|
|
|
|
|
|
|
|
8.10
|
|
CHOICE OF LAW
|
|
48
|
|
|
|
|
|
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|
8.11
|
|
Binding on Successors and Assigns
|
|
48
|
|
|
|
|
|
|
|
8.12
|
|
Headings
|
|
48
|
|
|
|
|
|
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|
8.13
|
|
Counterparts
|
|
48
|
|
|
|
|
|
|
|
8.14
|
|
Authorization; Binding Effect on Claimholders
|
|
48
|
|
|
|
|
|
|
|
8.15
|
|
Exclusive Means of Exercising Rights under this Agreement
|
|
48
|
|
|
|
|
|
|
|
8.16
|
|
No Third Party Beneficiaries; Provisions Solely to Define Relative Rights
|
|
49
|
|
8.17
|
|
No Indirect Actions
|
|
49
|
|
|
|
|
|
|
|
8.18
|
|
Obligors; Additional Obligors
|
|
49
|
|
|
|
|
|
|
|
8.19
|
|
Right of First Lien Collateral Agent to Continue
|
|
50
|
|
|
|
|
|
|
|
8.20
|
|
Second Lien Claimholders
|
|
50
|
|
|
|
|
|
|
|
8.21
|
|
Additional Lien Obligations
|
|
50
|
|
|
|
|
|
|
|
8.22
|
|
Additional Intercreditor Agreements
|
|
51
|
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT
(as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, this “Agreement”)
is dated as of July 3, 2017, and entered into by and among JPMorgan Chase Bank, N.A., in its capacity as collateral agent for
the holders of the First Lien Obligations (as defined below) (in such capacity, the “First Lien Credit Agreement Collateral
Agent”), and Credit Suisse AG, Cayman Islands Branch, in its capacity as collateral agent for the holders of
the Second Lien Obligations (as defined below) (in such capacity, the “Second Lien Credit Agreement Collateral Agent”),
and acknowledged and agreed to by A-B Merger Sub II LLC, a Delaware limited liability company (the “Borrower”), A-B
Merger Sub I Inc., a Delaware corporation (“Holdings”) and the other Obligors (as defined below) from time to time
party hereto. Capitalized terms used in this Agreement have the meanings assigned to them in Section 1 below.
RECITALS
Holdings, the Borrower, the
financial institutions party thereto from time to time and JPMorgan Chase Bank, N.A. (“JPMCB”), as administrative agent
and collateral agent (in such capacities, the “First Lien Credit Agreement Administrative Agent”), have entered into
the First Lien Credit Agreement dated as of July 3, 2017 (as Refinanced from time to time in accordance with the terms of this Agreement,
the “First Lien Credit Agreement”);
Holdings, the Borrower, the
financial institutions party thereto from time to time, and Credit Suisse AG, Cayman Islands Branch (“Credit Suisse”),
as administrative agent and collateral agent (in such capacities, the “Second Lien Credit Agreement Administrative Agent”),
have entered into the Second Lien Credit Agreement dated as of July 3, 2017 (as Refinanced from time to time in accordance with the terms
of this Agreement, the “Second Lien Credit Agreement”);
The obligations of each First Lien Obligor under (i) the
First Lien Financing Documents, (ii) any First Lien Hedging Agreements and (iii) any Banking Services Agreements will be secured on
a first priority basis by Liens on certain assets of each First Lien Obligor pursuant to the terms of the First Lien Collateral
Documents;
The obligations of each Second
Lien Obligor under the Second Lien Financing Documents will be secured on a second priority basis by Liens on certain assets of each Second
Lien Obligor pursuant to the terms of the Second Lien Collateral Documents;
The First Lien Financing Documents
and the Second Lien Financing Documents require, among other things, that the parties thereto shall set forth in this Agreement their
respective rights and remedies with respect to the Collateral;
The Obligors may, from time
to time, to the extent permitted by this Agreement, the First Lien Financing Documents and the Second Lien Financing Documents then in
effect, incur additional secured debt which the Obligors and the lenders thereunder may elect, subject to the terms and conditions hereof,
to be secured by the Collateral on a first priority basis or a second priority basis;
In order to induce the First
Lien Collateral Agent and the First Lien Claimholders to consent to the Obligors incurring the Second Lien Obligations and to induce the
First Lien Claimholders to extend credit and other financial accommodations and lend monies to or for the benefit of the First Lien Obligors,
the Second Lien Collateral Agent on behalf of the Second Lien Claimholders (and each Second Lien Claimholder by its acceptance of the Second
Lien Collateral Documents) has agreed to the intercreditor and other provisions set forth in this Agreement; and
In order to induce the Second
Lien Collateral Agent and the Second Lien Claimholders to consent to the Obligors incurring the First Lien Obligations and to induce the
Second Lien Claimholders to extend credit and other financial accommodations and lend monies to or for the benefit of the Second Lien
Obligors, the First Lien Collateral Agent on behalf of the First Lien Claimholders (and each First Lien Claimholder by its acceptance
of the First Lien Collateral Documents) has agreed to the intercreditor and other provisions set forth in this Agreement.
AGREEMENT
In consideration of the foregoing,
the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions.
1.1 Defined Terms. As
used in this Agreement, the following terms shall have the meanings set forth in this Section 1.1. Capitalized terms used herein
but not defined herein shall have the meanings ascribed to such terms in the First Lien Credit Agreement and/or Second Lien Credit Agreement,
as the context may require:
“Additional First Lien
Obligations” means obligations with respect to Indebtedness of the Borrower or any other applicable Obligor issued, guaranteed
or incurred following the date of this Agreement and documented in an agreement other than any agreement governing any then-existing First
Lien Obligations (which, for the absence of doubt, may include any First Lien Incremental Facility, First Lien Replacement Term Loan and/or
First Lien Replacement Revolving Facility) to the extent (a) such Indebtedness is not expressly prohibited by the terms of the then extant
First Lien Credit Agreement, the Second Lien Credit Agreement and each then extant Additional First Lien Obligations Agreement and Additional
Second Lien Obligations Agreement from being secured by Liens on the Collateral ranking pari passu with the Liens securing the
First Lien Obligations, (b) the Obligors have granted Liens on the Collateral to secure the obligations in respect of such Indebtedness,
(c) the Additional First Lien Obligations Agent, for the holders of such Indebtedness, has entered into a joinder agreement on behalf
of the holders of such Indebtedness pursuant to Section 8.21(b) acknowledging that such holders shall be bound by the terms hereof
applicable to First Lien Claimholders and (d) an amendment to this Agreement shall have been entered into pursuant to Section 8.3
to the extent contemplated pursuant to Section 8.21(c).
“Additional First Lien
Obligations Agent” means any Person appointed to act as trustee, agent or similar representative for the holders of the applicable
Additional First Lien Obligations pursuant to any Additional First Lien Obligations Agreement (including, in the case of any bilateral
arrangement, the actual holder of the relevant Additional First Lien Obligations unless such holder has otherwise appointed a trustee,
agent or similar representative on its own behalf, in which case, such trustee, agent or similar representative shall be such “Additional
First Liens Obligations Agent”).
“Additional First
Lien Obligations Agreement” means (i) the indenture, credit agreement, guarantee or other agreement evidencing or governing
any Additional First Lien Obligations that are designated as Additional First Lien Obligations pursuant to Section 8.21, (ii)
any other “Loan Documents” or “Financing Documents” (or similar term) as may be defined in the agreements and
documents referred to in the foregoing clause (i) and (iii) other agreements, documents and instruments executed in connection with the
foregoing, in each case, as Refinanced from time to time in accordance with the terms thereof and hereof.
“Additional First Lien
Obligations Claimholders” means, at any relevant time, the lenders, noteholders, creditors and secured parties under any Additional
First Lien Obligations Agreements, any Additional First Lien Obligations Agent and the other agents under such Additional First Lien Obligations
Agreements, in each case, in their capacities as such.
“Additional Lien Obligations”
means, collectively, the Additional First Lien Obligations and the Additional Second Lien Obligations.
“Additional Lien Obligations
Agent” means the Additional First Lien Obligations Agent and/or the Additional Second Lien Obligations Agent, as applicable.
“Additional Lien Obligations
Agreements” means, collectively, the Additional First Lien Obligations Agreements and the Additional Second Lien Obligations
Agreements.
“Additional Second
Lien Obligations” means obligations with respect to Indebtedness of the Borrower or any other applicable Obligor issued, guaranteed
or incurred following the date of this Agreement and documented in an agreement other than any agreement governing any then-existing Second
Lien Obligations (which, for the absence of doubt, may include any Second Lien Incremental Facility and/or Second Lien Replacement Term
Loan) to the extent (a) such Indebtedness is not expressly prohibited by the terms of the then extant First Lien Credit Agreement, the
Second Lien Credit Agreement and each then extant Additional First Lien Obligations Agreement and Additional Second Lien Obligations Agreement
from being secured by Liens on the Collateral ranking pari passu in right of security with the Liens securing the Second Lien Obligations,
(b) the Obligors have granted Liens on the Collateral to secure the obligations in respect of such Indebtedness, (c) the Additional Second
Lien Obligations Agent, for the holders of such Indebtedness, has entered into a joinder agreement on behalf of the holders of such Indebtedness
pursuant to Section 8.21(b) acknowledging that such holders shall be bound by the terms hereof applicable to Second Lien Claimholders
and (d) an amendment to this Agreement shall have been entered into pursuant to Section 8.3 to the extent contemplated pursuant
to Section 8.21(c).
“Additional Second
Lien Obligations Agent” means any Person appointed to act as trustee, agent or similar representative for the holders of the
applicable Additional Second Lien Obligations pursuant to any Additional Second Lien Obligations Agreement (including, in the case of
any Additional Second Lien Obligations evidenced or governed by a bilateral agreement, the actual holder of such Additional Second Lien
Obligations unless such holder has otherwise appointed a trustee, agent or similar representative on its own behalf, in which case, such
trustee, agent or similar representative shall be such “Additional Second Lien Obligations Agent”).
“Additional Second
Lien Obligations Agreement” means (i) the indenture, credit agreement, guarantee or other agreement evidencing or governing
any Additional Second Lien Obligations that are designated as Additional Second Lien Obligations pursuant to Section 8.21, (ii)
any other “Loan Documents” or “Financing Documents” (or similar term) as may be defined in the agreements or documents
referred to in the foregoing clause (i) and (iii) other agreements, documents and instruments executed in connection with the foregoing,
in each case, as Refinanced from time to time in accordance with the terms thereof and hereof.
“Additional Second
Lien Obligations Claimholders” means, at any relevant time, the lenders, noteholders, creditors and secured parties under any
Additional Second Lien Obligations Agreements, any Additional Second Lien Obligations Agent and the other agents under such Additional
Second Lien Obligations Agreements, in each case, in their capacities as such.
“Affiliate”
means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that
Person.
“Agreement” has the meaning set forth in
the Preamble to this Agreement.
“Banking Services”
means each and any of the following bank services provided to any First Lien Obligor: commercial credit cards, stored value cards, debit
cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment
services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services),
employee credit card programs, cash pooling services, foreign exchange and currency management services and any arrangements or services
similar to any of the foregoing and/or otherwise in connection with cash management and deposit accounts.
“Banking Services Agreement”
means any documentation governing any Banking Services Obligations.
“Banking Services Obligations”
means any and all obligations of any First Lien Obligors, whether absolute or contingent and however and whenever created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) (a) under any arrangement that is
in effect on the date of the First Lien Credit Agreement between any First Lien Obligors and a counterparty that is (or is an Affiliate
of) the First Lien Credit Agreement Administrative Agent, any First Lien Lender or any arranger under any First Lien Financing Document
as of the date of the First Lien Credit Agreement or (b) under any arrangement that is entered into after the date of the First Lien Credit
Agreement by any First Lien Obligors with any counterparty that is (or is an Affiliate of) the First Lien Credit Agreement Administrative
Agent, a First Lien Lender or any arranger under any First Lien Financing Document at the time such arrangement is entered into or any
similar term in any Additional First Lien Obligations Agreement (or in any Refinancing of any of the foregoing), in each case, in connection
with Banking Services, in each case, that has been designated to the First Lien Credit Agreement Administrative Agent in writing by the
Borrower as being Banking Services Obligations for purposes of the First Lien Documents.
“Bankruptcy Code” means Title 11 of the
United States Code (11. U.S.C. § 101 et seq.).
“Borrower”
has the meaning set forth in the Preamble to this Agreement, or as applicable, means any Successor Borrower.
“Business Day”
means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law
to remain closed.
“Cap Amount” means, as of any date of
determination, the sum of (a) the product of (i) (x) $635,000,000, plus (y) such additional amounts permitted to be incurred
by the Borrower and/or other Obligors under or pursuant to all “Incremental Facilities” and “Incremental
Equivalent Debt” (each as defined in the First Lien Credit Agreement (as in effect on the date hereof)) or pursuant to any
similar terms in any Additional First Lien Obligations Agreement and any corresponding provisions in any Refinancing thereof to the
extent such similar or corresponding provisions do not permit an aggregate principal amount of Indebtedness in excess of an amount
equal to the “Incremental Cap” (as defined in the First Lien Credit Agreement on the date hereof) multiplied by
(ii) 125%, and (b) any accrued and unpaid interest, penalties and premiums (including tender premiums) payable on account of the
First Lien Credit Agreement or any Additional First Lien Obligations in connection therewith, and (c) any underwriting discounts,
fees, commissions and expenses (including original issue discount, upfront fees or initial yield payments), attorneys’ fees,
costs, expenses and indemnities paid or payable in connection with any Permitted Refinancing thereof that constitutes Additional
First Lien Obligations. It is understood and agreed that any portion of the Cap Amount that is calculated in connection with the
incurrence of Additional First Lien Obligations in reliance on a financial ratio or financial test shall, subject to Section 1.04(e)
of the First Lien Credit Agreement (or any similar provision in any First Lien Financing Document), be calculated at the time of the
incurrence thereof and the Cap Amount shall not thereafter be deemed to be exceeded solely as a result of a subsequent change in any
financial ratio or financial test occurring after such Additional First Lien Obligations are incurred or the applicable calculation
with respect to such incurrence is made. For the avoidance of doubt, Banking Services Obligations and Secured Hedging Obligations
shall not be subject to the Cap Amount.
“Capital Lease”
means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is or is required to be accounted for as a capital lease on the balance sheet of that Person.
“Cash Collateral” has the meaning assigned
to that term in Section 6.1(a).
“Cash Equivalents”
means, as at any date of determination, (a) readily marketable securities (i) issued or directly and unconditionally guaranteed or insured
as to interest and principal by the U.S., U.K., Canada or a member state of the European Union or any political subdivision thereof or
(ii) issued by any agency or instrumentality of the U.S., U.K., Canada or a member state of the European Union or any political subdivision
thereof, the obligations of which are backed by the full faith and credit of the U.S., U.K., Canada or a member state of the European
Union or any political subdivision thereof, in each case maturing within two years after such date and, in each case, including repurchase
agreements and reverse repurchase agreements relating thereto; (b) readily marketable direct obligations issued by any state of the U.S.
or any political subdivision of any such state or any public instrumentality thereof or by any foreign government, in each case maturing
within two years after such date and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least
P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from
another nationally recognized statistical rating agency) and, in each case, repurchase agreements and reverse repurchase agreements relating
thereto; (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s
shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (d) deposits, money
market deposits, time deposit accounts, certificates of deposit or bankers’ acceptances (or similar instruments) maturing within
one year after such date and issued or accepted by any First Lien Lender or Second Lien Lender or by any bank organized under, or authorized
to operate as a bank under, the laws of the U.S., any state thereof or the District of Columbia or any political subdivision thereof
or any foreign bank or its branches or agencies and that has capital and surplus of not less than $75,000,000 and, in each case, repurchase
agreements and reverse repurchase agreements relating thereto; (e) securities with maturities of six months or less from the date of
acquisition backed by standby letters of credit issued by any commercial bank having capital and surplus of not less than $75,000,000;
(f) Indebtedness or “Preferred Capital Stock” (as defined in the First Lien Credit Agreement) issued by Persons with a rating
of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the time, neither is issuing
comparable ratings, then a comparable rating of another nationally recognized statistical rating organization) with maturities of 12
months or less from the date of acquisition; (g) bills of exchange issued in the U.S., U.K., Canada, a member state of the European Union
or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent); (h) solely with
respect to any “Captive Insurance Subsidiary” (as defined in the First Lien Credit Agreement), any investment that such “Captive
Insurance Subsidiary” is not prohibited to make in accordance with applicable law; and (i) shares or other interests of any investment
company, money market mutual fund or other money market or enhanced high yield fund that invests 95% or more of its assets in instruments
of the types specified in clauses (a) through (h) above (which investment company or fund may also hold Cash pending investment or distribution).
The term “Cash Equivalents”
shall also include (x) foreign currencies (in addition to Canadian dollars, Euros, Pound Sterling, Mexican Pesos, any national currency
of any member state of the European Union and any other currency held by the Borrower or any “Restricted Subsidiary” (as
defined in the First Lien Credit Agreement) in the ordinary course of business); provided that such amounts, if received by the Borrower
or any “Restricted Subsidiary”, are converted into Dollars, Canadian dollars, Euros, Pound Sterling, Mexican Pesos, any national
currency of any member state of the European Union or any other currency held by the Borrower or any “Restricted Subsidiary”
in the ordinary course of business as promptly as practicable (and in any event within ten Business Days following receipt thereof),
(y) Investments of the type and maturity described in clauses (a) through (i) above of foreign obligors, which Investments or obligors
(or the parent companies thereof) have the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies
and (z) other short-term Investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management
in Investments analogous to the Investments described in clauses (a) through (i) and in this paragraph.
“Claimholders” means each of the First
Lien Claimholders and the Second Lien Claimholders.
“Collateral”
means all of the assets and property of any Obligor, whether real, personal or mixed, that constitute (or are required to constitute)
both First Lien Collateral and Second Lien Collateral, including any property subject to Liens granted pursuant to Section 6 to
secure both First Lien Obligations and Second Lien Obligations, in each case other than any Excluded Cash Collateral.
“Collateral Agent”
means each of the First Lien Collateral Agent and/or the Second Lien Collateral Agent (as applicable).
“Collateral Documents”
means the First Lien Collateral Documents and the Second Lien Collateral Documents.
“Comparable Second
Lien Collateral Document” means, in relation to any Collateral subject to any Lien created under any First Lien Collateral Document,
the Second Lien Financing Document (if any) that creates (or purports to create) a Lien on the same Collateral, granted by the same Obligor
(as the same may be Refinanced from time to time in accordance with the terms hereof or thereof).
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise, and the terms “Controlling” and “Controlled”
have meanings correlative thereto.
“Credit Suisse” has the meaning assigned
to that term in the Recitals to this Agreement.
“Debtor Relief
Laws” means the Bankruptcy Code of the U.S., and all other liquidation, conservatorship, bankruptcy, general assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the U.S.
or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Derivative
Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate
agreement, interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives
rise to similar credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction,
including any cross-currency interest-rate swap, any forward foreign-exchange contract, any currency option, and any other
instrument linked to exchange rates that gives rise to similar credit risks, (c) any equity derivative transaction, including any
equity-linked swap, any equity-linked option, any forward equity-linked contract, and any other instrument linked to equities that
gives rise to similar credit risk and (d) any commodity (including precious metal) derivative transaction, including any
commodity-linked swap, any commodity-linked option, any forward commodity-linked contract, and any other instrument linked to
commodities that gives rise to similar credit risks; provided, that no phantom stock or similar plan providing for payments only on
account of services provided by current or former directors, officers, employees, members of management, managers or consultants of
the Borrower or its subsidiaries shall constitute a Derivative Transaction.
“DIP Financing” has the meaning assigned
to that term in Section 6.1.
“Directing First Lien
Collateral Agent” means (a) the First Lien Credit Agreement Collateral Agent unless (and until) the Discharge of First Lien
Obligations has occurred solely with respect to the First Lien Obligations under the First Lien Credit Agreement and the First Lien Financing
Documents with respect thereto and (b) thereafter, the First Lien Collateral Agent designated in writing by the Required First Lien Claimholders
from time to time to act as Directing First Lien Collateral Agent hereunder.
“Directing Second Lien
Collateral Agent” means (a) the Second Lien Credit Agreement Collateral Agent unless (and until) the Discharge of Second Lien
Obligations has occurred solely with respect to the Second Lien Obligations under the Second Lien Credit Agreement and the Second Lien
Financing Documents with respect thereto and (b) thereafter, the Second Lien Collateral Agent designated in writing by the holders of
a majority of the Second Lien Obligations constituting principal from time to time to act as Directing Second Lien Collateral Agent hereunder.
“Discharge of First
Lien Obligations” means, except to the extent otherwise expressly provided in Section 5.6:
(a) payment
in full in cash of the outstanding principal of, reimbursement obligations in respect of drawn and
unreimbursed First Lien Letters of Credit and interest (including Post-Petition Interest), and premium, if any, on all Indebtedness outstanding
under the First Lien Documents and constituting First Lien Obligations (other than undrawn letters of credit and any Other Obligations);
(b) except
as otherwise provided in clause (d) below, payment in full in cash of all other First Lien Obligations (or, in the case of any
Other Obligations, the cash collateralization or backstopping of such Other Obligations on terms reasonably satisfactory to the applicable
lender or counterparty, as applicable) that are due and payable or otherwise accrued and owing at or prior to the time such principal
and interest are paid (other than any indemnification or expense reimbursement obligations or any other obligations that by the terms
of any First Lien Document expressly survive termination of such First Lien Document, in each case for which no claim or demand for payment,
whether oral or written, has been made at such time);
(c) termination
or expiration of all commitments, if any, to extend credit that would constitute First Lien Obligations;
(d) termination or cash collateralization
or backstopping (in an amount and manner reasonably satisfactory to the applicable First Lien Issuing Banks, but in no event greater
than 100% of the aggregate undrawn face amount) of all First Lien Letters of Credit issued under the First Lien Documents and constituting
First Lien Obligations; and
(e) adequate
provision has been made for any contingent or unliquidated First Lien Obligations related to claims, causes of action or liabilities that
have been asserted against the First Lien Claimholders for which indemnification is required under the First Lien Documents;
provided
that the Discharge of First Lien Obligations shall not be deemed to have occurred if such payments are made with the proceeds of other
First Lien Obligations that constitute an exchange or replacement for or a Refinancing of such First Lien Obligations.
Upon the satisfaction
of the conditions set forth in clauses (a) through (e) with respect to any First Lien Obligations, the applicable First
Lien Collateral Agent agrees to promptly deliver to the other First Lien Collateral Agents and the Second Lien Collateral Agents written
notice of the same.
“Discharge of Second Lien Obligations”
means, with respect to any Second Lien Obligations:
(a) payment
in full in cash of the outstanding principal of and interest (including Post-Petition Interest), and premium, if any, on all Indebtedness
outstanding under the Second Lien Financing Documents and constituting Second Lien Obligations;
(b) payment
in full in cash of all other Second Lien Obligations that are due and payable or otherwise accrued and owing at or prior to the time such
principal and interest are paid (other than any indemnification or expense reimbursement obligations or any other obligations that by
the terms of any Second Lien Financing Document expressly survive termination of such Second Lien Financing Document, in each case for
which no claim or demand for payment, whether oral or written, has been made at such time); and
(c) adequate
provision has been made for any contingent or unliquidated Second Lien Obligations related to claims, causes of action or liabilities
that have been asserted against the Second Lien Claimholders or for which indemnification is required under the Second Lien Financing
Documents;
provided
that the Discharge of Second Lien Obligations shall not be deemed to have occurred if such payments are made with the proceeds of other
Second Lien Obligations that constitute an exchange or replacement for or a Refinancing of such Second Lien Obligations.
Upon the satisfaction
of the conditions set forth in clauses (a) through (c) with respect to any Second Lien Obligation, the applicable Second
Lien Collateral Agent agrees to promptly deliver to the other Second Lien Collateral Agents and the First Lien Collateral Agents written
notice of the same.
“Disposition” has the meaning
assigned to that term in Section 5.1(b) and “Dispose” shall have a corresponding meaning.
“Enforcement Action” means any action to:
(a) foreclose, execute, levy,
or collect on, appropriate, take possession or control of, sell or otherwise realize upon (judicially or non-judicially), or lease, license,
or otherwise dispose of (whether publicly or privately), Collateral or otherwise exercise or enforce remedial rights with respect to
Collateral under the First Lien Documents or the Second Lien Financing Documents (including by way of setoff, recoupment, notification
of a public or private sale or other disposition pursuant to the UCC or other applicable law, notification to account debtors, notification
to depositary banks under deposit account control agreements, or exercise of rights under landlord consents, if applicable);
(b) solicit
bids from third Persons, approve bid procedures for any proposed disposition of Collateral, to conduct the liquidation or disposition
of Collateral or engage or retain sales brokers, marketing agents, investment bankers, accountants, appraisers, auctioneers, or other
third Persons for the purposes of valuing, marketing, promoting, and selling Collateral;
(c) receive
a transfer of Collateral in satisfaction of Indebtedness or any other Obligation secured thereby or enter into any cooperation, compromise
or similar arrangement with any Obligor;
(d) otherwise
enforce a security interest or exercise another right or remedy, as a secured creditor or otherwise, pertaining to the Collateral at law,
in equity, or pursuant to the First Lien Documents or the Second Lien Financing Documents (including the commencement of applicable legal
proceedings or other actions with respect to all or any portion of the Collateral to facilitate the actions described in any of the preceding
clauses, and exercising voting rights in respect of equity interests comprising Collateral); or
(e) Dispose of Collateral by
any Obligor after the occurrence and during the continuation of an “event of default” under the First Lien Documents or the
Second Lien Financing Documents with the consent of First Lien Collateral Agent or Second Lien Collateral Agent, as applicable (in either
case, to the extent that such consent is required).
“Excess First Lien
Obligations” means any Obligations that would constitute First Lien Obligations but for the exclusion therefrom pursuant to
clause (c) of the definition of First Lien Obligations. If any Excess First Lien Obligations exist, the portion of obligations
outstanding under the First Lien Documents constituting Excess First Lien Obligations shall be (x) determined as agreed in writing among
the First Lien Claimholder or (y) if no such agreement applies, the latest principal amounts advanced (it being agreed for such purposes
that principal advanced pursuant to a revolving credit commitment or delayed draw commitment shall be deemed advanced on the date such
commitment first became binding on the applicable creditors).
“Excluded Cash Collateral”
means cash or Cash Equivalents pledged as collateral in respect of First Lien Letters of Credit and other letters of credit issued under
or pursuant to any First Lien Document in an amount not exceeding 100% of the aggregate undrawn face amount thereof or cash or Cash Equivalents
otherwise specifically pledged to any First Lien Claimholder or group of First Lien Claimholders that secures only the First Lien Obligations
owing to such First Lien Claimholders.
“First Lien Claimholders”
means, at any relevant time, the holders of First Lien Obligations at that time, including the First Lien Lenders, the First Lien Collateral
Agent, the other agents under the First Lien Credit Agreement and any Additional First Lien Obligations Claimholders.
“First Lien Collateral”
means (i) the “Collateral”, as such term is defined in the First Lien Credit Agreement and/or, as applicable, any other First
Lien Financing Document and (ii) any other assets and property of any Obligor, whether real, personal or mixed, with respect to which
a Lien is granted or purported to be granted as security for any First Lien Obligations (including any Excluded Cash Collateral).
“First Lien Collateral
Agent” means the First Lien Credit Agreement Collateral Agent and any Additional First Lien Obligations Agent.
“First Lien Collateral
Documents” means the “Collateral Documents” (as defined in the First Lien Credit Agreement) and any other agreement,
document or instrument pursuant to which a Lien is granted securing any First Lien Obligations or under which rights or remedies with
respect to such Liens are governed.
“First Lien Credit Agreement” has the meaning
set forth in the Recitals to this Agreement.
“First Lien Credit
Agreement Administrative Agent” has the meaning set forth in the Recitals to this Agreement.
“First Lien Credit
Agreement Collateral Agent” has the meaning set forth in the Preamble to this Agreement.
“First Lien Documents”
means (i) the First Lien Financing Documents, (ii) the First Lien Hedging Agreements and (iii) the Banking Services Agreements, in each
case, as Refinanced or replaced from time to time in accordance with the terms thereof and hereof.
“First Lien Financing
Documents” means the First Lien Credit Agreement, the First Lien Collateral Documents, the other “Loan Documents”
(as defined in the First Lien Credit Agreement), any Additional First Lien Obligations Agreement and each of the other agreements, documents
and instruments providing for or evidencing any other First Lien Obligation (other than any Other Obligation), and any other document
or instrument executed or delivered at any time in connection with any First Lien Obligations (other than any Other Obligations), including
any intercreditor or joinder agreement among holders of First Lien Obligations, to the extent such are effective at the relevant time,
as each may be Refinanced from time to time in accordance with the provisions of this Agreement.
“First Lien Hedging
Agreements” means any Hedge Agreement entered into with respect to any Secured Hedging Obligations.
“First Lien Incremental
Facility” means any “Incremental Facility” and/or any “Incremental Equivalent Debt” under and as defined
in the First Lien Credit Agreement, or any facility or debt incurred pursuant to any similar terms in any Additional First Lien Obligations
Agreement and any corresponding provision applicable to any Refinancing of any of the foregoing.
“First Lien Issuing
Bank” means (i) each “Issuing Bank” under, and as defined in, the First Lien Credit Agreement and (ii) each other
issuing bank in respect of a First Lien Letter of Credit.
“First Lien Lenders”
means the “Lenders” under and as defined in the First Lien Credit Agreement (or any similar term in any Additional First Lien
Obligations Agreement or in any Refinancing of any of the foregoing) and also shall include all First Lien Issuing Banks and each swingline
lender under any First Lien Financing Document.
“First Lien Letters
of Credit” means any letters of credit issued (or deemed issued) from time to time under the First Lien Credit Agreement or
any other First Lien Financing Document.
“First Lien Obligations” means, subject
to clause (c) hereof and without duplication, the following:
(a) (i)
all obligations of the Borrower and the other First Lien Obligors from time to time arising under or in respect of the due and punctual
payment of (A) the principal of, and interest (including any Post-Petition Interest) and premium, if any, on, the loans made pursuant
to and under the First Lien Financing Documents, when and as due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, (B) each payment required to be made by the Borrower and the other First Lien Obligors under the First Lien Financing
Documents in respect of any First Lien Letter of Credit, when and as due, including (without duplication) payments in connection with
unreimbursed disbursements in respect of First Lien Letters of Credit, interest thereon (including any Post-Petition Interest) and obligations
to provide cash collateral and (C) all other monetary obligations, including fees, costs, expenses and indemnities (including any Post-Petition
Interest), whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency
of any Insolvency or Liquidation Proceeding), of the Borrower and the other First Lien Obligors under the First Lien Financing Documents;
and (ii) the due and punctual payment and performance of all Other Obligations (in each case, including any Post-Petition Interest) of
the Borrower and the other First Lien Obligors, in each case whether or not allowed or allowable in an Insolvency or Liquidation Proceeding;
(b) to
the extent any payment with respect to any First Lien Obligation (whether by or on behalf of any Obligor, as proceeds of security, enforcement
of any right of setoff or otherwise) is declared to be a fraudulent conveyance, fraudulent transfer or a preference in any respect, set
aside or required to be paid to a debtor in possession or trustee, any Second Lien Claimholder, receiver or similar Person, then the obligation
or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the First
Lien Claimholders and the Second Lien Claimholders, be deemed to be reinstated and outstanding as if such payment had not occurred. To
the extent that any interest, fees, expenses or other charges (including interest accruing at the default rate and Post-Petition Interest)
to be paid pursuant to the First Lien Financing Documents, the First Lien Hedging Agreements or the Banking Services Agreements are disallowed
by order of any court, including by order of a court of competent jurisdiction presiding over an Insolvency or Liquidation Proceeding,
such interest, fees, expenses and charges (including default interest and Post-Petition Interest) shall, as between the First Lien Claimholders
and the Second Lien Claimholders, be deemed to continue to accrue and be added to the amount to be calculated as the “First Lien
Obligations”; and
(c) notwithstanding
the foregoing, if the sum of: (i) Indebtedness for borrowed money constituting principal outstanding under the First Lien Credit Agreement
and the other First Lien Financing Documents (but excluding, for the avoidance of doubt, any First Lien Hedging Agreements or Banking
Services Agreements); plus (ii) the aggregate face amount of any First Lien Letters of Credit issued (or deemed issued) but not
reimbursed under the First Lien Financing Documents is in excess of the Cap Amount, then only that portion of such Indebtedness and such
aggregate face amount of First Lien Letters of Credit not in excess of the Cap Amount shall be deemed to be First Lien Obligations and
interest and reimbursement obligations with respect to such Indebtedness and First Lien Letters of Credit shall only constitute First
Lien Obligations to the extent related to Indebtedness and face amounts of First Lien Letters of Credit deemed to be included in the First
Lien Obligations.
“First Lien Obligors”
means, collectively, the “Loan Parties” under and as defined in the First Lien Credit Agreement or any similar term in any
other First Lien Document or in any Refinancing of any of the foregoing.
“First Lien Replacement
Revolving Facility” means a “Replacement Revolving Facility” under and as defined in the First Lien Credit Agreement
or any similar term in any other First Lien Document or in any Refinancing of any of the foregoing.
“First Lien Replacement
Term Loan” means a “Replacement Term Loan” under and as defined in the First Lien Credit Agreement or any similar
term in any other First Lien Document or in any Refinancing of any of the foregoing.
“Governmental Authority”
means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or
instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether associated with a state or locality of the United States,
the United States, or a foreign government.
“Hedge Agreement”
means any agreement with respect to any Derivative Transaction between any First Lien Obligor or any “Restricted Subsidiary”
(as defined in the First Lien Credit Agreement or any similar term in any other First Lien Document or in any Refinancing thereof) and
any other Person.
“Hedging Obligations”
means, with respect to any Person, the obligations of such Person under any Hedge Agreement.
“Hedging Termination
Value” means, in respect of any one or more First Lien Hedging Agreements, after taking into account the effect of any netting
agreements relating to such First Lien Hedging Agreements (to the extent, and only to the extent, such netting agreements are legally
enforceable in Insolvency or Liquidation Proceedings against the applicable counterparty Obligor thereunder), (a) for any date on or after
the date such First Lien Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in preceding clause (a), the amount(s) determined as the mark-to-market
value(s) for such First Lien Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations
provided by any recognized dealer in such First Lien Hedging Agreements (which may include a First Lien Lender or any Affiliate of a First
Lien Lender).
“Holdings”
has the meaning set forth in the Preamble to this Agreement, or as applicable, means New Holdings.
“Indebtedness”
means and includes all Obligations that constitute “Indebtedness” within the meaning of the First Lien Credit Agreement or
the Second Lien Credit Agreement, as applicable; for the avoidance of doubt “Indebtedness” shall not include Hedging Obligations
and/or Banking Services Obligations.
“Insolvency or Liquidation
Proceeding” means (a) any voluntary or involuntary case or proceeding under the Bankruptcy Code or any other Debtor Relief Laws
with respect to any Obligor, (b) the appointment of a receiver, interim receiver, receiver and manager, (preliminary) insolvency receiver,
liquidator, sequestrator, trustee or other custodian for, or the taking of possession by any of the foregoing of, all or a substantial
part of the property of any Obligor, (c) except as expressly permitted under the First Lien Documents, any liquidation, administration
(or appointment of an administrator), dissolution, reorganization or winding up of any Obligor whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy or (d) any general assignment for the benefit of creditors or any other marshaling of assets
and liabilities of any Obligor.
“JPMCB” has the meaning assigned to that
term in the Recitals to this Agreement.
“Legal Requirements”
means, as to any Person, the organizational documents of such Person, and any treaty, law (including the common law), statute, ordinance,
code, rule, regulation, guidelines, license, permit requirement, judgment, decree, verdict, order, consent order, consent decree, writ,
declaration or injunction or determination of an arbitrator or a court or other Governmental Authority, and the interpretation or administration
thereof, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property
is subject.
“Lien” means
any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority
or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capital Lease having substantially
the same economic effect as any of the foregoing), in each case, in the nature of security; provided that in no event shall an
operating lease in and of itself be deemed a Lien.
“Moody’s” means Moody’s Investors
Service, Inc.
“New First Lien Agent” has the meaning assigned
to that term in Section 5.6.
“New First Lien Debt Notice” has the meaning
assigned to that term in Section 5.6.
“New Holdings” has the meaning assigned
to that term in the First Lien Credit Agreement.
“Obligations”
means all obligations of every nature of each Obligor from time to time owed to any agent or trustee, the First Lien Claimholders, the
Second Lien Claimholders or any of them or their respective Affiliates under the First Lien Documents or the Second Lien Financing Documents,
whether for principal, premium, interest or payments for early termination of any First Lien Hedging Agreement or fees, expenses, indemnification
or otherwise and all guaranties of any of the foregoing and including any Post-Petition Interest, in each case, whether outstanding on
the date of this Agreement or incurred or arising from time to time after the date of this Agreement and whether primary, secondary, direct,
contingent, fixed or otherwise.
“Obligors”
means each First Lien Obligor and each Second Lien Obligor and each other Person that has executed and delivered, or may from time to
time hereafter execute and deliver, a First Lien Collateral Document or a Second Lien Collateral Document as a “grantor” or
“pledgor” (or the equivalent thereof).
“Other Obligations”
means the Banking Services Obligations and the Secured Hedging Obligations.
“Pay-Over Amount” has the meaning assigned
to that term in Section 6.3(b).
“Permitted Refinancing”
means, with respect to any Indebtedness under the First Lien Documents or the Second Lien Financing Documents, the Refinancing of such
Indebtedness in accordance with the requirements of Section 5.3(a) or 5.3(b), as the case may be.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or any other entity.
“Pledged Collateral” has the meaning set
forth in Section 5.5(a).
“Post-Petition Interest”
means interest, fees, expenses and other charges that pursuant to the First Lien Documents or the Second Lien Financing Documents, as
the case may be, continue to accrue after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest,
fees, expenses and other charges are allowed or allowable under any Debtor Relief Law or other applicable Legal Requirements or in any
such Insolvency or Liquidation Proceeding.
“Priority Lien” has the meaning assigned
to that term in Section 5.1(e).
“Purchase Price” has the meaning assigned
to that term in Section 5.7.
“Recovery” has the meaning assigned to that
term in Section 6.5.
“Refinance”
means, in respect of any Indebtedness and any agreement governing any such Indebtedness, to refinance, extend, increase, renew, defease,
amend, restate, amend and restate, modify, supplement, restructure, replace, refund or repay, or to issue other Indebtedness in exchange
or replacement for or refinancing of, such Indebtedness in whole or in part, including by adding or replacing lenders, creditors, agents,
obligors and/or guarantors, and including, in each case, but not limited to, after the original instrument giving rise to such Indebtedness
has been terminated. “Refinanced” and “Refinancing” shall have correlative meanings.
“Required First Lien
Claimholders” means (a) at all times prior to the occurrence of the Discharge of First Lien Obligations (other than the Other
Obligations), the First Lien Claimholders holding more than 50% of the sum of (i) the aggregate outstanding principal amount of First
Lien Obligations (including outstanding First Lien Letters of Credit that have been issued but not reimbursed and excluding the Other
Obligations) plus (ii) the aggregate unfunded commitments to extend credit which, when funded, would constitute First Lien Obligations
under the First Lien Documents (other than First Lien Documents with respect to Other Obligations), and (b) at all times following the
occurrence of the Discharge of First Lien Obligations (other than the Other Obligations), the First Lien Claimholders holding more than
50% of the sum of (i) the then outstanding Secured Hedging Obligations plus (ii) the then outstanding Banking Services Obligations
(determined by the First Lien Collateral Agent in such reasonable manner as is acceptable to it).
“S&P”
means Standard & Poor’s Financial Services LLC, a subsidiary of the McGraw-Hill Companies, Inc.
“Second Lien Adequate Protection Payments”
has the meaning assigned to that term in Section 6.3(b).
“Second Lien Claimholders”
means, at any relevant time, the holders of Second Lien Obligations at that time, including the Second Lien Lenders, the Second Lien Collateral
Agent, the other agents under the Second Lien Credit Agreement and any Additional Second Lien Obligations Claimholders.
“Second Lien Collateral”
means (i) the “Collateral”, as such term is defined in the Second Lien Credit Agreement and (ii) any other assets and property
of any Obligor, whether real, personal or mixed, with respect to which a Lien is granted or purported to be granted as security for any
Second Lien Obligations.
“Second Lien Collateral
Agent” means the Second Lien Credit Agreement Collateral Agent and any Additional Second Lien Obligations Agent.
“Second Lien Collateral
Documents” means the “Collateral Documents” (as defined in the Second Lien Credit Agreement) and any other agreement,
document or instrument pursuant to which a Lien is granted securing any Second Lien Obligations or under which rights or remedies with
respect to such Liens are governed.
“Second Lien Credit Agreement” has the
meaning set forth in the Recitals to this Agreement.
“Second Lien Credit
Agreement Administrative Agent” has the meaning set forth in the Recitals to this Agreement.
“Second Lien Credit
Agreement Collateral Agent” has the meaning set forth in the Preamble to this Agreement.
“Second Lien Financing
Documents” means the Second Lien Credit Agreement, the Second Lien Collateral Documents, the other “Loan Documents”
(as defined in the Second Lien Credit Agreement), any Additional Second Lien Obligations Agreement, and each of the other agreements,
documents and instruments providing for or evidencing any other Second Lien Obligation, and any other document or instrument executed
or delivered at any time in connection with any Second Lien Obligations, including any intercreditor or joinder agreement among holders
of Second Lien Obligations, to the extent such are effective at the relevant time, as each may be Refinanced from time to time in accordance
with the provisions of this Agreement and the First Lien Credit Agreement.
“Second Lien Incremental
Facility” means any “Incremental Facility” and/or any “Incremental Equivalent Debt” under and as defined
in the Second Lien Credit Agreement, or any facility or debt incurred pursuant to any similar terms in any Additional Second Lien Obligations
Agreement and any corresponding provision applicable to any Refinancing of any of the foregoing.
“Second Lien Lenders”
means the “Lenders” under and as defined in the Second Lien Credit Agreement or any similar term in any Additional Second
Lien Obligations Agreement or in any Refinancing of any of the foregoing.
“Second Lien Obligations” means the following:
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(a)
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all obligations of the Borrower and the other Second Lien Obligors from time to time arising under or
in respect of the due and punctual payment of (A) the principal of, and interest (including any Post-Petition Interest) and premium, if
any, on, the loans made pursuant to and under the Second Lien Financing Documents, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise and (B) all other monetary obligations, including fees, costs, expenses and indemnities
(including any Post-Petition Interest), whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations
incurred during the pendency of any Insolvency or Liquidation Proceeding), of the Borrower and the other Second Lien Obligors under the
Second Lien Financing Documents, in each case whether or not allowed or allowable in an Insolvency or Liquidation Proceeding;
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(b)
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to the extent any payment with respect to any Second Lien
Obligation (whether by or on behalf of any Obligor, as proceeds of security, enforcement of any right of setoff or otherwise) is declared
to be a fraudulent conveyance, fraudulent transfer or a preference in any respect, set aside or required to be paid to a debtor in possession
or trustee, any receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes
of this Agreement and the rights and obligations of the First Lien Claimholders and the Second Lien Claimholders, be deemed to be reinstated
and outstanding as if such payment had not occurred. To the extent that any interest, fees, expenses or other charges (including interest
accruing at the default rate or any Post-Petition Interest) to be paid pursuant to the Second Lien Financing Documents are disallowed
by order of any court, including by order of a court of competent jurisdiction presiding over an Insolvency or Liquidation Proceeding,
such interest, fees, expenses and charges (including default interest and Post-Petition Interest) shall, as between the First Lien Claimholders
and the Second Lien Claimholders, be deemed to continue to accrue and be added to the amount to be calculated as the “Second Lien
Obligations”; and
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(c)
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as set forth in Section 2.7 of this Agreement, to the extent remaining outstanding after the Discharge
of First Lien Obligations (other than Other Obligations) has occurred, at the election of the Borrower, Other Obligations that were First
Lien Obligations immediately prior to such Discharge of First Lien Obligations.
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“Second Lien Obligors”
means, collectively, the “Loan Parties” under and as defined in the Second Lien Credit Agreement or any similar term in any
other Second Lien Financing Document or in any Refinancing of any of the foregoing.
“Second Lien Replacement
Term Loan” means a “Replacement Term Loan” under and as defined in the Second Lien Credit Agreement or any similar
term in any other Second Lien Financing Document or in any Refinancing of any of the foregoing.
“Secured Hedging Obligations”
means all Hedging Obligations (other than any “Excluded Swap Obligation” (as defined in the First Lien Credit Agreement or
any similar term in any other First Lien Document or in any Refinancing of any of the foregoing)) under each Hedge Agreement that (a)
is in effect on the date of the First Lien Credit Agreement between any First Lien Obligor and a counterparty that is (or is an Affiliate
of) the First Lien Credit Agreement Administrative Agent, any First Lien Lender or any arranger under any First Lien Financing Document
as of the date of the First Lien Credit Agreement or (b) is entered into after the date of the First Lien Credit Agreement between any
First Lien Obligor and any counterparty that is (or is an Affiliate of) the First Lien Credit Agreement Administrative Agent, any First
Lien Lender or any arranger under any First Lien Financing Document at the time such Hedge Agreement is entered into, for which the relevant
First Lien Obligor agrees to provide security, in each case that has been designated to the First Lien Credit Agreement Administrative
Agent in writing by the Borrower as being a Secured Hedging Obligation for purposes of the First Lien Documents.
“Shared Collateral
Document” means any Collateral Document that itself is both a First Lien Collateral Document and a Second Lien Collateral Document.
“Short Fall” has the meaning assigned to
that term in Section 6.3(b).
“Standstill Period” has the meaning assigned
to that term in Section 3.1(a)(i).
“subsidiary”
means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business
entity of which more than 50% of the total voting power of stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing
similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or a combination thereof; provided
that in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interests in the
nature of a “qualifying share” of the former Person shall be deemed to be outstanding; provided, further, that
the Borrower may at any time in its discretion, with respect to any joint venture in which the Borrower, directly or indirectly, maintains
any “Investment” (as defined in the First Lien Credit Agreement), designate in a writing delivered to the First Lien Credit
Agreement Administrative Agent that such joint venture shall not be deemed to be a subsidiary for any purpose under the First Lien Credit
Agreement, and, accordingly, such joint venture shall not be deemed to be a subsidiary for any purpose under this Agreement. Unless otherwise
specified, “subsidiary” shall mean any subsidiary of Holdings.
“Successor Borrower” has the meaning assigned
to that term in the First Lien Credit Agreement.
“UCC” means
the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.
1.2 Terms Generally.
The definitions of terms in this Agreement shall apply equally to the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise:
(a) any
definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument
or other document as from time to time permitted to be Refinanced or replaced in accordance with the terms hereof;
(b) any reference herein to any Person shall
be construed to include such Person’s permitted successors and assigns;
(c) the
words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer
to this Agreement in its entirety and not to any particular provision hereof;
(d) all references herein to Sections, clauses
or paragraphs shall be construed to refer to Sections, clauses or paragraphs of this Agreement, unless otherwise specified;
(e) any
reference to any law or regulation shall (i) include all statutory and regulatory provisions consolidating, amending, replacing, interpreting
or supplementing such law or regulation, and (ii) unless otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time; and
(f) the
words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
1.3 Cap Amount. For
the avoidance of doubt, it is understood and agreed that any increase in the aggregate Indebtedness for borrowed money constituting principal
outstanding under the First Lien Credit Agreement and the other First Lien Documents (in each case, including in any Refinancing thereof)
after the date of the original incurrence or issuance of such Indebtedness solely as a result of a fluctuation in the exchange rate of
the currency in which such Indebtedness is denominated shall be ignored for purposes of determining compliance with the Cap Amount, and
any such incremental Indebtedness attributable to any such currency fluctuation shall be deemed to be a First Lien Obligation for all
purposes hereof.
SECTION 2. Lien
Priorities.
2.1 Relative Priorities.
Notwithstanding the date, time, method, manner or order of grant, attachment, recordation or perfection of any Liens securing the Second
Lien Obligations granted on the Collateral or of any Liens securing the First Lien Obligations granted on the Collateral and notwithstanding
any provision of the UCC or any other applicable law or the Second Lien Financing Documents or any defect or deficiencies in, or failure
to perfect or lapse in perfection of, or avoidance as a fraudulent conveyance, fraudulent transfer, preference or otherwise of, the Liens
securing the First Lien Obligations or any other circumstance whatsoever, whether or not any Insolvency or Liquidation Proceeding has
been commenced by or against any Obligor, the Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders, hereby
agrees that:
(a) any
Lien on the Collateral securing or purporting to secure any First Lien Obligations now or hereafter held by or on behalf of the First
Lien Collateral Agent or any First Lien Claimholders or any agent or trustee therefor, regardless of how acquired, whether by grant, possession,
statute (including any judgment lien), operation of law, subrogation or otherwise, shall be senior in all respects and prior to any Lien
on the Collateral securing or purporting to secure any of the Second Lien Obligations;
(b) any
Lien on the Collateral securing or purporting to secure any Second Lien Obligations now or hereafter held by or on behalf of the Second
Lien Collateral Agent, any Second Lien Claimholders or any agent or trustee therefor regardless of how acquired, whether by grant, possession,
statute (including any judgment lien), operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to
all Liens on the Collateral securing or purporting to secure any of the First Lien Obligations;
(c) all
Liens on the Collateral securing or purporting to secure any First Lien Obligations shall be and remain senior in all respects and prior
to all Liens on the Collateral securing or purporting to secure any Second Lien Obligations for all purposes, whether or not such Liens
securing any First Lien Obligations are subordinated to any Lien securing any other obligation of the Obligors or any other Person; and
(d) the
parties hereto acknowledge and agree that it is their intent that the First Lien Obligations (and the security therefor) constitute a
separate and distinct class (and separate and distinct claims) from the Second Lien Obligations (and the security therefor).
2.2 Prohibition on Contesting
Liens; No Marshalling. Each Second Lien Collateral Agent, for itself and on behalf of each Second Lien Claimholder, and each First
Lien Collateral Agent, for itself and on behalf of each First Lien Claimholder, agrees that it will not (and hereby waives any right
to) directly or indirectly contest or challenge, or support any other Person in contesting or challenging, in any proceeding (including
any Insolvency or Liquidation Proceeding), (i) the validity or enforceability of any Collateral Document or any Obligation thereunder,
(ii) the existence, validity, perfection, priority or enforceability of the Liens and security interests granted pursuant to the Collateral
Documents, or the allowability of any claims asserted, with respect to the First Lien Obligations and the Second Lien Obligations, or
(iii) the relative rights and duties of the holders of the First Lien Obligations and the Second Lien Obligations granted and/or established
in this Agreement or any Collateral Document with respect to such Liens and security interests; provided that nothing in this
Agreement shall be construed to prevent or impair the rights of any First Lien Collateral Agent or any First Lien Claimholder to enforce
this Agreement or to exercise any of its remedies or rights hereunder, including the provisions of this Agreement relating to the priority
of the Liens securing the First Lien Obligations as provided in Sections 2.1 and 3.1. Until the Discharge of First Lien
Obligations, neither the Second Lien Collateral Agent nor any Second Lien Claimholder will assert any marshaling, appraisal, valuation
or other similar right that may otherwise be available to a junior secured creditor.
2.3 No New Liens. So
long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced
by or against any of the Obligors, the parties hereto agree that if any Second Lien Claimholder shall acquire or hold any Lien on any
assets of any Obligor securing any Second Lien Obligation which assets are not also subject to the first priority Lien of the First Lien
Claimholders under the First Lien Collateral Documents, then without limiting any other rights and remedies available to the First Lien
Collateral Agent and/or the First Lien Claimholders, the applicable Second Lien Collateral Agent, on behalf of itself and the other Second
Lien Claimholders, and each other Second Lien Claimholder (by its acceptance of the benefits of the Second Lien Financing Documents) agrees
that any amounts received by or distributed to any of them pursuant to or as a result of Liens so granted shall be subject to Section
4.2 hereof.
2.4 Similar Liens and Agreements.
The parties hereto agree that it is their intention that the Second Lien Collateral shall not be more expansive than the First Lien Collateral.
In furtherance of the foregoing and of Section 8.9 hereof, each Second Lien Collateral Agent and the other Second Lien Claimholders
agree, subject to the other provisions of this Agreement:
(a) upon
request by the Directing First Lien Collateral Agent, to cooperate in good faith (and to direct their counsel to cooperate in good faith)
from time to time in order to determine the specific items included in the Second Lien Collateral and the steps taken to perfect their
respective Liens thereon and the identity of the respective parties obligated under the Second Lien Financing Documents; and
(b) that
the documents, agreements or instruments creating or evidencing the First Lien Collateral and the Second Lien Collateral and guaranties
for the First Lien Obligations and the Second Lien Obligations, subject to Section 5.3(c), shall be in all material respects the
same forms of documents, agreements or instruments, other than with respect to Excluded Cash Collateral, the first Lien and the second
Lien nature of the Obligations thereunder, the identity of the secured parties that are parties thereto or secured thereby and other matters
contemplated by this Agreement.
2.5 Nature of Obligations.
The priorities of the Liens provided in Section 2.1 shall not be altered or otherwise affected by (a) any Permitted Refinancing
of the First Lien Obligations or the Second Lien Obligations, nor (b) any action or inaction which any of the First Lien Claimholders
or Second Lien Claimholders may take or fail to take in respect of the Collateral. Each Second Lien Collateral Agent, for itself and on
behalf of its related Second Lien Claimholders, agrees and acknowledges that a portion of the First Lien Obligations may be revolving
in nature and that the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently
reborrowed.
2.6 Additional Lien Obligations.
The parties hereto agree and acknowledge that the Borrower and other Obligors may incur Additional First Lien Obligations, additional
Hedging Obligations, additional Banking Services Obligations and Additional Second Lien Obligations from time to time without notice to
any other party hereto except as expressly provided herein and, in any event, on and subject to the terms and conditions of this Agreement
(including limitations imposed by the Cap Amount, to the extent applicable) and of the First Lien Documents and Second Lien Financing
Documents as in effect at the applicable time.
2.7 Banking Services Obligations/Secured
Hedging Obligations. The parties hereto agree that, at the election of the Borrower following the otherwise complete Discharge of
First Lien Obligations, any Other Obligations outstanding may continue to be subject to this Agreement and shall be deemed to be (and
shall be) Second Lien Obligations for all purposes hereunder; provided that, if such an election is made by the Borrower then,
at the time of the Discharge of First Lien Obligations, the Collateral Agents shall be directed and authorized to make amendments to this
Agreement (without requiring the consent of any other Person) to the extent reasonably necessary to reflect the nature of such Other Obligations
as “Second Lien Obligations” hereunder, to provide that the documents governing such Other Obligations shall be “Second
Lien Financing Documents”, and to make other conforming changes consistent with the foregoing.
SECTION 3. Enforcement.
3.1 Exercise of Remedies.
(a) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced
by or against any of the Obligors, the Second Lien Collateral Agents and the Second Lien Claimholders hereby agree that they:
(1) will not
exercise or seek to exercise any rights or remedies (including setoff or recoupment) with respect to any Collateral (including,
without limitation, the exercise of any right under any lockbox agreement, account control agreement, landlord waiver or
bailee’s letter or similar agreement or arrangement to which any Second Lien Collateral Agent or any Second Lien Claimholder
is a party) or institute or commence, or join with any Person in instituting or commencing, any Enforcement Action or any other
action or proceeding with respect to such rights or remedies (including any action of foreclosure, enforcement, collection or
execution and any Insolvency or Liquidation Proceeding); provided that the Directing Second Lien Collateral Agent may
commence an Enforcement Action or otherwise exercise any or all such rights or remedies after the passage of a period of at least
180 days has elapsed since the Directing First Lien Collateral Agent shall have received notice from the Directing Second Lien
Collateral Agent with respect to any of the following (and requesting that enforcement action be taken with respect to the
Collateral) and so long as the respective payment default shall not have been cured or waived (and the respective acceleration shall
not have been rescinded): (i) a payment default exists with respect to the Second Lien Obligations following the final maturity of
the Second Lien Obligations or (ii) after the acceleration by the relevant Second Lien Claimholders of the maturity of all then
outstanding Second Lien Obligations (the “Standstill Period”); provided further that notwithstanding
anything herein to the contrary, in no event shall the Second Lien Collateral Agents or any Second Lien Claimholder exercise any
rights or remedies with respect to the Collateral or institute or commence, or join with any Person in instituting or commencing,
any Enforcement Action or any action or proceeding with relation to such rights or remedies, if, notwithstanding the expiration of
the Standstill Period, the Directing First Lien Collateral Agent or the First Lien Claimholders shall have commenced and be
diligently pursuing an Enforcement Action or other exercise of their rights or remedies (unless stayed from taking or pursuing such
actions pursuant to Debtor Relief Law) or any Obligor is then a debtor in any Insolvency or Liquidation Proceeding;
(2) will not contest,
protest or object to any Enforcement Action or any other foreclosure proceeding or action brought by the Directing First Lien Collateral
Agent or any First Lien Claimholder or any other exercise by the Directing First Lien Collateral Agent or any First Lien Claimholder
of any rights and remedies relating to the Collateral under the First Lien Documents or otherwise; and
(3) subject
to their rights under clause (a)(1) above, will not object to the forbearance by the Directing First Lien Collateral Agent or the
First Lien Claimholders from bringing or pursuing any Enforcement Action or any other foreclosure proceeding or action or any other exercise
of any rights or remedies relating to the Collateral, in each case so long as any proceeds received by the Directing First Lien Collateral
Agent in excess of those necessary to achieve a Discharge of First Lien Obligations are distributed in accordance with Section 4.1.
(b) Until
the Discharge of First Lien Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or
against any First Lien Obligor, subject to Section 3.1(a)(1), the Directing First Lien Collateral Agent (acting at the instructions
of the Required First Lien Claimholders) and the First Lien Claimholders shall have the exclusive right to commence and maintain an Enforcement
Action or otherwise enforce rights, exercise remedies (including set-off, recoupment and the right to “credit bid” their debt,
except that the Second Lien Collateral Agents shall have the “credit bid” rights set forth in Section 3.1(c)(6)), to
make determinations regarding the release, disposition or restrictions with respect to the Collateral without any consultation with or
the consent of any Second Lien Collateral Agent or any Second Lien Claimholder; provided that any proceeds received by the Directing
First Lien Collateral Agent in excess of those necessary to achieve a Discharge of First Lien Obligations are distributed in accordance
with Section 4.1. In commencing or maintaining any Enforcement Action or otherwise exercising rights and remedies with respect
to the Collateral, the Directing First Lien Collateral Agent (acting at the instructions of the Required First Lien Claimholders) and
the First Lien Claimholders may enforce the provisions of the First Lien Documents and exercise remedies thereunder, all in such order
and in such manner as they may determine in the exercise of their sole discretion in compliance with any applicable law and without consultation
with any Second Lien Collateral Agent or any Second Lien Claimholder and regardless of whether any such exercise is adverse to the interest
of any Second Lien Claimholder. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise
dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights
and remedies of a secured creditor under the UCC or other applicable law and of a secured creditor under Debtor Relief Laws of any applicable
jurisdiction.
(c) Notwithstanding
the foregoing, each Second Lien Collateral Agent and any Second Lien Claimholder may:
(1) file
a claim or statement of interest with respect to the Second Lien Obligations; provided that an Insolvency or Liquidation Proceeding
has been commenced by or against any of the Second Lien Obligors;
(2) take
any action in order to create, perfect, preserve or protect (but not enforce) its Lien on the Collateral, to the extent not adverse to
the priority status of the Liens on the Collateral securing the First Lien Obligations, or the rights of any First Lien Collateral Agent
or the First Lien Claimholders to exercise remedies in respect thereof;
(3) file
any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading
made by any Person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Lien Claimholders, including
any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement;
(4) vote
on any plan of reorganization, arrangement, compromise or liquidation, file any proof of claim, make other filings and make any arguments
and motions with respect to the Second Lien Obligations and the Collateral that are, in each case, in accordance with the terms of this
Agreement (including Section 6.6(b)); provided that no filing of any claim or vote, or pleading relating to such claim or
vote, to accept or reject a disclosure statement, plan of reorganization, arrangement, compromise or liquidation, or any other document,
agreement or proposal similar to the foregoing by the Second Lien Collateral Agent or any Second Lien Claimholder may be inconsistent
with or in contravention of the provisions of this Agreement;
(5) exercise
any of its rights or remedies with respect to the Collateral after the termination of the Standstill Period to the extent permitted by
Section 3.1(a)(1); and
(6) bid for or
purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by the Directing First Lien Collateral
Agent or any First Lien Claimholder, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such
bid may not include a “credit bid” in respect of any Second Lien Obligations unless the cash proceeds of such bid are otherwise
sufficient to cause the Discharge of First Lien Obligations.
Each Second Lien Collateral
Agent, on behalf of itself and the related Second Lien Claimholders, agrees that it will not take or receive any Collateral or any proceeds
of Collateral in connection with any Enforcement Action or any other exercise of any right or remedy (including set-off and recoupment)
with respect to any Collateral or in any Insolvency or Liquidation Proceeding in its capacity as a creditor, in each case unless and until
the Discharge of First Lien Obligations has occurred, except in connection with any foreclosure expressly permitted by Section 3.1(a)(1)
to the extent that such Second Lien Collateral Agent and the related Second Lien Claimholders are permitted to retain the proceeds thereof
in accordance with Section 4.1 of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge
of First Lien Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(b) and this Section 3.1(c),
the sole right of each Second Lien Collateral Agent and the related Second Lien Claimholders with respect to the Collateral is to hold
a Lien on the Collateral pursuant to the Second Lien Collateral Documents for the period and to the extent granted therein and to receive
a share of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurred.
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(d)
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Subject to Sections 3.1(a) and (c) and Section 6.3(b):
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(1) each
Second Lien Collateral Agent, for itself and on behalf of the related Second Lien Claimholders, agrees that each Second Lien Collateral
Agent and the related Second Lien Claimholders will not take any action that would hinder, delay, limit or prohibit any exercise of rights
or remedies under the First Lien Documents or is otherwise prohibited hereunder, including any collection, sale, lease, exchange, transfer
or other disposition of the Collateral, whether by foreclosure or otherwise, or that would limit, invalidate, avoid or set aside any Lien
securing any First Lien Obligations or any First Lien Collateral Document or subordinate the priority of the First Lien Obligations to
the Second Lien Obligations or grant Liens securing the Second Lien Obligations equal ranking to the Liens securing the First Lien Obligations;
(2) each Second
Lien Collateral Agent, for itself and on behalf of the related Second Lien Claimholders, hereby waives any and all rights it or the related
Second Lien Claimholders may have as a junior Lien creditor or otherwise (whether arising under the UCC or under any other law) to object
to the manner in which any First Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First Lien Obligations
or the Liens securing the First Lien Obligations granted in any of the First Lien Collateral undertaken in accordance with this Agreement,
regardless of whether any action or failure to act by or on behalf of any First Lien Collateral Agent or First Lien Claimholders is adverse
to the interest of any Second Lien Claimholders; and
(3) each
Second Lien Collateral Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in the Second Lien Collateral
Documents or any other Second Lien Financing Document shall be deemed to restrict in any way the rights and remedies of any First Lien
Collateral Agent or the First Lien Claimholders with respect to the Collateral as set forth in this Agreement and the First Lien Documents.
(e) Except
as otherwise set forth in this Agreement, the Second Lien Collateral Agents and the Second Lien Claimholders may exercise rights and remedies
as unsecured creditors against the Obligors that have guaranteed or granted Liens to secure the Second Lien Obligations in accordance
with the terms of the Second Lien Financing Documents and applicable law (other than initiating or joining in an involuntary case or proceeding
under any Insolvency or Liquidation Proceeding); provided that (i) any such exercise shall not be permitted to be inconsistent
with, or otherwise in contravention of, the terms of this Agreement (including Sections 2.2 and 6) and (ii) in the event
that any Second Lien Claimholder becomes a judgment Lien creditor in respect of Collateral as a result of its enforcement of its rights
as an unsecured creditor with respect to the Second Lien Obligations, such judgment Lien shall be subject to the terms of this Agreement
for all purposes (including in relation to the First Lien Obligations) as the other Liens securing the Second Lien Obligations are subject
to this Agreement.
(f) Each
Second Lien Collateral Agent, for itself and on behalf of the related Second Lien Claimholders, and each other Second Lien Claimholder
(by its acceptance of the benefits of the Second Lien Financing Documents) agrees that each Second Lien Collateral Agent and the other
Second Lien Claimholders will not, without the prior written consent of the Required First Lien Claimholders (or the applicable First
Lien Collateral Agent at their direction or with their consent), issue any payment blockage or similar notice with respect to any First
Lien Obligations before the Discharge of First Lien Obligations has occurred.
3.2 Actions Upon
Breach; Specific Performance. If any Second Lien Claimholder, in contravention of the terms of this Agreement, in any way takes
or attempts to or threatens to take any action with respect to the Collateral (including, without limitation, any attempt to realize
upon or enforce any remedy with respect to this Agreement), or fails to take any action required by this Agreement, this Agreement
shall create an irrefutable presumption and admission by such Second Lien Claimholder that relief against such Second Lien
Claimholder by injunction, specific performance and/or other appropriate equitable relief is necessary to prevent irreparable harm
to the First Lien Claimholders, it being understood and agreed by each Second Lien Collateral Agent on behalf of each related Second
Lien Claimholder that (i) the First Lien Claimholders’ damages from its actions may at that time be difficult to ascertain and
may be irreparable, and (ii) each Second Lien Claimholder waives any defense that the First Lien Claimholders cannot demonstrate
damage and/or be made whole by the awarding of damages. The Directing First Lien Collateral Agent may demand specific performance of
this Agreement to give effect to this Section 3.2 and each of the Directing First Lien Collateral Agent, as with respect to
any Second Lien Collateral Agent or Second Lien Claimholder, and the Directing Second Lien Collateral Agent, as with respect to any
First Lien Collateral Agent or First Lien Claimholder, may demand specific performance of this Agreement. Each First Lien Collateral
Agent, on behalf of itself and the related First Lien Claimholders, and each Second Lien Collateral Agent, on behalf of itself and
the related Second Lien Claimholders, hereby irrevocably waive any defense based on the adequacy of a remedy at law and any other
defense which might be asserted to bar the remedy of specific performance in any action which may be brought by any First Lien
Collateral Agent or the First Lien Claimholders or any Second Lien Collateral Agent or the Second Lien Claimholders, as the case may
be. No provision of this Agreement shall constitute or be deemed to constitute a waiver by any First Lien Collateral Agent on behalf
of itself and the related First Lien Claimholders or any Second Lien Collateral Agent on behalf of itself and the related Second
Lien Claimholders of any right to seek damages from any Person in connection with any breach or alleged breach of this Agreement. Agreement Among First Lien Claimholders to Coordinate Enforcement. Each First Lien Claimholder, solely as among themselves in
such capacity and solely for their mutual benefit, hereby agrees that the First Lien Collateral Agent designated as the Directing
First Lien Collateral Agent shall have the sole right and power, as among the First Lien Collateral Agents and the First Lien
Claimholders, to take and direct any right or remedy with respect to Collateral in accordance with the terms of this Agreement and
the relevant First Lien Collateral Documents.
Each First Lien Collateral Agent and each First Lien Claimholder
further agrees:
(a) The
Directing First Lien Collateral Agent will not have any fiduciary duties nor will it have responsibilities or obligations other than those
expressly assumed by it in this Agreement and the other First Lien Collateral Documents. The Directing First Lien Collateral Agent will
not be required to take any action that is contrary to applicable Legal Requirements or any provision of this Agreement or the other First
Lien Collateral Documents.
(b) The
Directing First Lien Collateral Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents, attorneys, accountants, appraisers or other experts or advisors selected by it in good faith as it may reasonably
require and will not be responsible for any misconduct or negligence on the part of any of them.
(c) The
Directing First Lien Collateral Agent has accepted and is bound by the First Lien Collateral Documents executed by the Directing First
Lien Collateral Agent as of the date of this Agreement and, as contemplated under such First Lien Collateral Documents or the First Lien
Credit Agreement, the Directing First Lien Collateral Agent shall execute additional First Lien Collateral Documents delivered to it after
the date of this Agreement; provided, however, that such additional First Lien Collateral Documents do not adversely affect
the rights, privileges, benefits and immunities of the Directing First Lien Collateral Agent. The Directing First Lien Collateral Agent
will not otherwise be bound by, or be held obligated by, the provisions of any credit agreement, indenture or other agreement governing
First Lien Obligations (other than this Agreement and the other First Lien Financing Documents to which it is a party).
(d) The Directing First Lien
Collateral Agent may at any time solicit written instructions from the Required First Lien Claimholders as to any action that it may
be requested to take, or that it may propose to take, in the performance of any of its rights or obligations under this Agreement or
the other First Lien Collateral Documents. No written direction given to the Directing First Lien Collateral Agent that in the sole
judgment of the Directing First Lien Collateral Agent imposes, is inconsistent with other written direction it has received or purports
to impose or could reasonably be expected to impose upon the Directing First Lien Collateral Agent any obligation or liability not set
forth in or arising under this Agreement and the other First Lien Collateral Documents will be binding upon the Directing First Lien
Collateral Agent unless the Directing First Lien Collateral Agent elects, at its sole option, to accept such direction. So long as the
Discharge of First Lien Obligations has not occurred, the Directing First Lien Collateral Agent shall not be obligated to take instructions
from any Persons other than the Required First Lien Claimholders. The Directing First Lien Collateral Agent shall have no duty to take
any discretionary action or exercise any discretionary powers, except discretionary rights and powers that it is requested to exercise
in writing by the Required First Lien Claimholders. The Directing First Lien Collateral Agent shall not be required to take any action
that in its opinion, or in the opinion of its counsel, may expose the Directing First Lien Collateral Agent to any liability or that
is contrary to any First Lien Financing Document or any applicable Legal Requirements.
(e) The
Directing First Lien Collateral Agent will not be responsible or liable to any Claimholder for any action taken or omitted to be taken
by it hereunder or under any other First Lien Collateral Document, except for its own gross negligence or willful misconduct as determined
by a final and non-appealable judgment of a court of competent jurisdiction.
(f) The Directing First Lien
Collateral Agent may seek and rely upon, and shall be fully protected in relying upon, any judicial order or judgment, upon any advice,
opinion or statement of legal counsel, independent consultants and other experts selected by it in good faith and upon any certification,
instruction, notice or other writing delivered to it by any Obligor in compliance with the provisions of this Agreement or delivered
to it by any First Lien Claimholders for whom it acts, without being required to determine the authenticity thereof or the correctness
of any fact stated therein or the propriety or validity of service thereof. The Directing First Lien Collateral Agent may act in reliance
upon any instrument comporting with the provisions of this Agreement or any signature reasonably believed by it to be genuine and may
assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with
the provisions hereof or the other First Lien Collateral Documents has been duly authorized to do so. To the extent an officers’
certificate or opinion of counsel is required or permitted under this Agreement to be delivered to the Directing First Lien Collateral
Agent in respect of any matter, the Directing First Lien Collateral Agent may rely conclusively on the officers’ certificate or
opinion of counsel as to such matter and such officers’ certificate or opinion of counsel shall be full warranty and protection
to the Directing First Lien Collateral Agent for any action taken, suffered or omitted by it under the provisions of this Agreement and
the other First Lien Collateral Documents.
(g) The
Directing First Lien Collateral Agent will not be required to inquire as to the occurrence or absence of any “Event of Default”
(or like term) as defined in any First Lien Document or Second Lien Financing Document, and will not be affected by or required to act
upon any notice or knowledge as to the occurrence of any such Event of Default unless and until it is directed to do so by the Required
First Lien Claimholders.
(h) As
to any matter not expressly provided for by this Agreement or the other First Lien Collateral Documents, the Directing First Lien Collateral
Agent will act or refrain from acting as directed and will be fully protected if it does so, and any action taken, suffered or omitted
pursuant to hereto or thereto shall be binding on the holders of First Lien Obligations and Second Lien Obligations.
(i) The
Directing First Lien Collateral Agent will not be required to advance or expend any funds or otherwise incur any financial liability in
the performance of its duties or the exercise of its powers or rights hereunder unless it has been provided with security or indemnity
reasonably satisfactory to it against any and all liability or expense which may be incurred by it by reason of taking or continuing to
take such action.
(j) In the event of any conflict
between any terms and provisions set forth in this Agreement and those set forth in the First Lien Collateral Documents and/or the Second
Lien Collateral Documents, as applicable, the terms and provisions of this Agreement shall supersede and control the terms and provisions
of such First Lien Collateral Documents or Second Lien Collateral Documents. In the event there is any bona fide, good faith disagreement
between the other parties to this Agreement or any of the Collateral Documents resulting in adverse claims being made in connection with
Collateral held by the Directing First Lien Collateral Agent and the terms of this Agreement or any of the Collateral Documents do not
unambiguously mandate the action the Directing First Lien Collateral Agent is to take or not to take in connection therewith under the
circumstances then existing, or the Directing First Lien Collateral Agent is in doubt as to what action it is required to take or not
to take hereunder or under the Collateral Documents, it will be entitled to refrain from taking any action (and will incur no liability
for doing so) until directed otherwise in writing by a request signed jointly by the parties hereto entitled to give such direction or
by order of a court of competent jurisdiction.
(k) Beyond
the exercise of reasonable care in the custody of Collateral in its possession, the Directing First Lien Collateral Agent will have no
duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or
as to preservation of rights against prior parties or any other rights pertaining thereto and the Directing First Lien Collateral Agent
will not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office
at any time or times or otherwise perfecting or maintaining the perfection of any Liens on the Collateral. The Directing First Lien Collateral
Agent will be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property, and the Directing First Lien Collateral Agent will not be liable
or responsible to any Claimholder for any loss or diminution in the value of any of the Collateral by reason of the act or omission of
any carrier, forwarding agency or other agent or bailee selected by the Directing First Lien Collateral Agent in good faith.
(l) The
Directing First Lien Collateral Agent will not be responsible for the existence, genuineness or value of any of the Collateral or for
the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by
reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence
or willful misconduct on the part of the Directing First Lien Collateral Agent as determined by a final and non-appealable judgment of
a court of competent jurisdiction, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein,
for the validity of the title of any Obligor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments
or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Directing First Lien Collateral Agent hereby disclaims
any representation or warranty to the present and future Claimholders concerning the perfection of the Liens granted hereunder or in the
value of any of the Collateral.
(m) Notwithstanding
anything to the contrary contained herein: (i) each of the parties thereto will remain liable under each of the First Lien Collateral
Documents (other than this Agreement) to the extent set forth therein to perform all of their respective duties and obligations thereunder
to the same extent as if this Agreement had not been executed, (ii) the exercise by the Directing First Lien Collateral Agent of any of
its rights, remedies or powers hereunder will not release such parties from any of their respective duties or obligations under the other
First Lien Collateral Documents; and (iii) the Directing First Lien Collateral Agent will not be obligated to perform any of the obligations
or duties of any of the parties thereunder other than those of the First Lien Collateral Agent.
SECTION 4. Payments.
4.1 Application of Proceeds.
So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against any Obligor, any Collateral or any proceeds (whether in cash or otherwise) thereof received in connection with
any Enforcement Action or other exercise of rights or remedies by any First Lien Collateral Agent or First Lien Claimholders (including
any Disposition referred to in Section 5.1) or in any Insolvency or Liquidation Proceeding, shall be applied by the Directing First Lien
Collateral Agent (or, after the Discharge of First Lien Obligations, by the Directing Second Lien Collateral Agent as further provided
below):
(a) first,
to the payment in full of the First Lien Obligations and to pay the amount equal to 100% of the amount required to cash collateralize
outstanding and undrawn First Lien Letters of Credit constituting First Lien Obligations, in such order as specified in the relevant First
Lien Documents,
(b) second,
to the payment in full of the Second Lien Obligations, in such order as specified in the relevant Second Financing Lien Documents,
(c) third,
to the payment in full of the Excess First Lien Obligations and to pay the amount equal to 100% of the amount required to cash collateralize
outstanding and undrawn First Lien Letters of Credit constituting Excess First Lien Obligations, in such order as specified in the relevant
First Lien Documents, and
(d) fourth,
after all First Lien Obligations, Second Lien Obligations and Excess First Lien Obligations have been paid in full, to the relevant Obligor
or as the Borrower shall otherwise direct.
Upon the Discharge of First
Lien Obligations, the Directing First Lien Collateral Agent shall deliver to the Directing Second Lien Collateral Agent any remaining
Collateral and proceeds thereof held by it in the same form as received, with any necessary endorsements (such endorsements shall be without
recourse and without representation or warranty) to the Directing Second Lien Collateral Agent, or as a court of competent jurisdiction
may otherwise direct, to be applied by the Directing Second Lien Collateral Agent: (i) first, to the Second Lien Obligations, in such
order as specified in the relevant Second Lien Financing Documents until paid in full, (ii) second, to the Excess First Lien Obligations
in such order as specified in the relevant First Lien Documents until paid in full and (iii) third, to the relevant Obligor or as the
Borrower shall otherwise direct.
4.2 Payments
Over.
(a) So
long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced
by or against any Obligor, any Collateral or any proceeds thereof (including assets or proceeds subject to Liens referred to in Section
2.3 and any assets or proceeds subject to Liens that have been avoided or otherwise invalidated) or any distribution in respect of
the Collateral (whether or not expressly characterized as such) received by any First Lien Collateral Agent or any First Lien Claimholders
in connection with any Enforcement Action or other exercise of any right or remedy (including setoff or recoupment) relating to the Collateral
in contravention of this Agreement in all cases shall be segregated and held in trust and forthwith paid over to the Directing First Lien
Collateral Agent for the benefit of the First Lien Claimholders in the same form as received, with any necessary endorsements or as a
court of competent jurisdiction may otherwise direct. The Directing First Lien Collateral Agent is hereby authorized to make any such
endorsements as agent for the other First Lien Collateral Agents or any such First Lien Claimholders. This authorization is coupled with
an interest and is irrevocable until the Discharge of First Lien Obligations.
(b) So long as the Discharge
of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against
any Obligor, any Collateral or proceeds thereof (including assets or proceeds subject to Liens referred to in Section 2.3 and
any assets or proceeds subject to Liens that have been avoided or otherwise invalidated) or any distribution in respect of the Collateral
(whether or not expressly characterized as such) received by any Second Lien Collateral Agent or any Second Lien Claimholders in connection
with any Enforcement Action or other exercise of any right or remedy (including setoff or recoupment) relating to the Collateral in contravention
of this Agreement shall be segregated and held in trust and forthwith paid over to the Directing First Lien Collateral Agent for the
benefit of the First Lien Claimholders in the same form as received, with any necessary endorsements or as a court of competent jurisdiction
may otherwise direct. The Directing First Lien Collateral Agent is hereby authorized to make any such endorsements as agent for the Directing
Second Lien Collateral Agent or any such Second Lien Claimholders. This authorization is coupled with an interest and is irrevocable
until the Discharge of First Lien Obligations.
(c) Except
to the extent otherwise expressly provided in Section 6, so long as the Discharge of First Lien Obligations has not occurred, if in any
Insolvency or Liquidation Proceeding any Second Lien Collateral Agent or any Second Lien Claimholders shall receive any distribution of
money or other property in respect of or on account of the Collateral (including any assets or proceeds subject to Liens that have been
avoided or otherwise invalidated), such money or other property shall be segregated and held in trust and forthwith paid over to the Directing
First Lien Collateral Agent for the benefit of the First Lien Claimholders in the same form as received, with any necessary endorsements.
Any Lien received by any Second Lien Collateral Agent or any Second Lien Claimholders in respect of any of the Second Lien Obligations
in any Insolvency or Liquidation Proceeding shall be subject to the terms of this Agreement.
(d) So
long as the Discharge of Second Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced
by or against any Obligor, any Collateral or any proceeds thereof (including assets or proceeds subject to Liens referred to in Section
2.3 and any assets or proceeds subject to Liens that have been avoided or otherwise invalidated) or any distribution in respect of
the Collateral (whether or not expressly characterized as such) received by any Second Lien Collateral Agent or any Second Lien Claimholders
in connection with any Enforcement Action or other exercise of any right or remedy (including setoff or recoupment) relating to the Collateral
in contravention of this Agreement in all cases shall be segregated and held in trust and forthwith paid over to the Directing Second
Lien Collateral Agent for the benefit of the Second Lien Claimholders in the same form as received, with any necessary endorsements or
as a court of competent jurisdiction may otherwise direct. The Directing Second Lien Collateral Agent is hereby authorized to make any
such endorsements as agent for the other Second Lien Collateral Agents or any such Second Lien Claimholders. This authorization is coupled
with an interest and is irrevocable until the Discharge of Second Lien Obligations.
(e) Without limiting the
foregoing, until the Discharge of First Lien Obligations occurs, each Second Lien Collateral Agent, for itself and on behalf of its related
Second Lien Claimholders, hereby irrevocably constitutes and appoints the Directing First Lien Collateral Agent and any officer or agent
of the Directing First Lien Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Second Lien Collateral Agent or any such Second Lien Claimholder or in the Directing
First Lien Collateral Agent’s own name, from time to time in the Directing First Lien Collateral Agent’s discretion, for
the purpose of carrying out the terms of this Section 4.2, to take any and all appropriate action and to execute any and all documents
and instruments which may be necessary to accomplish the purposes of this Section 4.2, including any endorsements or other instruments
of transfer or release. This power is coupled with an interest and is irrevocable until the Discharge of First Lien Obligations.
SECTION 5. Other
Agreements.
5.1 Releases.
(a) In connection with any
Enforcement Action by the Directing First Lien Collateral Agent or any other exercise of the Directing First Lien Collateral Agent’s
rights or remedies in respect of the Collateral, in each case, prior to the Discharge of First Lien Obligations, the Directing First
Lien Collateral Agent is irrevocably authorized (at the cost of the Obligors in accordance with the terms of the applicable First Lien
Financing Document and without any consent, sanction, authority or further confirmation from the Directing Second Lien Collateral Agent,
any Second Lien Claimholder or any Obligor): (i) to release any of its Liens on any part of the Collateral or any other claim over the
asset that is the subject of the Enforcement Action, and the Liens on such part of the Collateral or any other claim over the asset that
is the subject of the Enforcement Action, if any, of any Second Lien Collateral Agent, for itself or for the benefit of the Second Lien
Claimholders, shall be automatically, unconditionally and simultaneously released to the same extent as the Liens or other claims of
the Directing First Lien Collateral Agent are so released, and the Directing First Lien Collateral Agent is irrevocably authorized to
execute and deliver or enter into any release of such Liens or claims that may, in the discretion of the Directing First Lien Collateral
Agent, be considered necessary or reasonably desirable in connection with such releases and (ii) if the asset that is the subject of
such Enforcement Action consists of the equity interests of any Obligor, to release (x) such Obligor and any subsidiary of such Obligor
from all or any part of its First Lien Obligations, in which case such Obligor and any subsidiary of such Obligor shall be automatically,
unconditionally and simultaneously released to the same extent from its Second Lien Obligations, and (y) any Liens or other claims on
any assets of such Obligor and any subsidiary of such Obligor, in which case the Liens or other claims on such assets of each Second
Lien Collateral Agent, for itself or for the benefit of its related Second Lien Claimholders, shall be automatically, unconditionally
and simultaneously released to the same extent as such Liens or other claims of the Directing First Lien Collateral Agent and each other
First Lien Collateral Agent are so released (and the Directing First Lien Collateral Agent is irrevocably authorized to execute and deliver
or enter into any release of such Liens or claims that may, in the discretion of the Directing First Lien Collateral Agent, be considered
necessary or reasonably desirable in connection with such releases). Without limiting the foregoing, the Directing Second Lien Collateral
Agent, for itself and on behalf of any Second Lien Claimholders, promptly shall execute and deliver to the Directing First Lien Collateral
Agent or the relevant Obligor such termination statements, releases and other documents as the Directing First Lien Collateral Agent
or such Obligor may request to effectively confirm the foregoing releases.
(b) If in connection with
any sale, lease, exchange, transfer or other disposition of any Collateral by any Obligor (collectively, a “Disposition”)
permitted under the terms of the First Lien Financing Documents and not expressly prohibited under the terms of the Second Lien Financing
Documents (other than in connection with an Enforcement Action or other exercise of any First Lien Collateral Agent’s rights or
remedies in respect of the Collateral which shall be governed by Section 5.1(a) above), the Directing First Lien Collateral Agent,
for itself or on behalf of any of the First Lien Claimholders, releases any of its Liens on any part of the Collateral, or releases any
Obligor from its obligations under its guaranty of the First Lien Obligations, in each case other than in connection with, or following,
the Discharge of First Lien Obligations, then the Liens, if any, of each Second Lien Collateral Agent, for itself or for the benefit
of the Second Lien Claimholders, on such Collateral, and the obligations of such Obligor under its guaranty of the Second Lien Obligations,
shall be automatically, unconditionally and simultaneously released; provided, that such release by such Second Lien Collateral
Agent, for itself or for the benefit of the Second Lien Claimholders, shall not extend to or otherwise affect any of the rights of the
Second Lien Claimholders to the proceeds from any such Disposition in the manner set forth in this Agreement. Each Second Lien Collateral
Agent, for itself or on behalf of any such Second Lien Claimholders, promptly shall execute and deliver to the Directing First Lien Collateral
Agent or such Obligor such termination statements, releases and other documents as the Directing First Lien Collateral Agent or such
Obligor may request to effectively confirm such release.
(c) Until the Discharge of
First Lien Obligations occurs, each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Claimholders, hereby irrevocably
constitutes and appoints the Directing First Lien Collateral Agent and any officer or agent of the Directing First Lien Collateral Agent,
with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead
of such Second Lien Collateral Agent or such Second Lien Claimholder or in the Directing First Lien Collateral Agent’s own name,
from time to time in the Directing First Lien Collateral Agent’s discretion, for the purpose of carrying out the terms of this
Section 5.1, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary
to accomplish the purposes of this Section 5.1, including any endorsements or other instruments of transfer or release. This power
is coupled with an interest and is irrevocable until the Discharge of First Lien Obligations.
(d) Until
the Discharge of First Lien Obligations occurs, to the extent that any First Lien Collateral Agent or the First Lien Claimholders (i)
have released any Lien on Collateral or any Obligor from its obligation under any guaranty in respect of First Lien Obligations and any
such Liens or such guaranty are later reinstated or (ii) obtain any new Liens or additional guaranties from any Obligor or any subsidiary
of Holdings, then the Directing Second Lien Collateral Agent, for itself and for the Second Lien Claimholders, shall be granted a Lien
on any such Collateral, subject to the Lien subordination provisions of this Agreement, and an additional guaranty in respect of the applicable
Second Lien Obligations, as the case may be.
(e) If, prior to the Discharge of First Lien
Obligations, a subordination of the First Lien Collateral Agent’s Lien on any Collateral is permitted (or in good faith believed
by the Directing First Lien Collateral Agent to be permitted) under the First Lien Credit Agreement or other First Lien Financing Documents
to another Lien permitted under the First Lien Credit Agreement or other First Lien Financing Documents (a “Priority Lien”),
then (i) the Directing First Lien Collateral Agent is authorized to execute and deliver a subordination agreement with respect thereto
in form and substance satisfactory to it, and (ii) each other First Lien Collateral Agent, for itself and on behalf of the related First
Lien Claimholders, and each Second Lien Collateral Agent, for itself and on behalf of the related Second Lien Claimholders, shall promptly
execute and deliver to the Directing First Lien Collateral Agent or the relevant Obligor (as applicable) an identical subordination agreement
subordinating the Liens of such other First Lien Collateral Agent or Second Lien Collateral Agent (as applicable) for the benefit of
the related First Lien Claimholders or related Second Lien Claimholders to such Priority Lien.
5.2 Insurance. Unless
and until the Discharge of First Lien Obligations has occurred, the Directing First Lien Collateral Agent (acting at the direction of
the Required First Lien Claimholders) shall have the sole and exclusive right, subject to the rights of the First Lien Obligors under
the First Lien Financing Documents, to adjust settlement for any insurance policy covering the Collateral in the event of any loss thereunder
and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) affecting the Collateral.
Unless and until the Discharge of First Lien Obligations has occurred, and subject to the rights of the First Lien Obligors under the
First Lien Financing Documents, all proceeds of any such policy and any such award (or any payments with respect to a deed in lieu of
condemnation) in respect of the Collateral shall be paid to the Directing First Lien Collateral Agent for the benefit of the First Lien
Claimholders pursuant to the terms of the First Lien Documents (including, without limitation, for purposes of cash collateralization
of commitments, First Lien Letters of Credit and obligations under Hedge Agreements governing any Secured Hedging Obligations) and thereafter,
to the extent the Discharge of First Lien Obligations has occurred, and subject to the rights of the Second Lien Obligors under the Second
Lien Financing Documents, to the Directing Second Lien Collateral Agent for the benefit of the Second Lien Claimholders to the extent
required under the Second Lien Collateral Documents and then, to the extent the Discharge of the Second Lien Obligations has occurred,
to the Directing First Lien Collateral Agent for the benefit of the First Lien Claimholders pursuant to the terms of the First Lien Documents
on account of any Excess First Lien Obligations, and then to the extent no Excess First Lien Obligations are outstanding, to the owner
of the subject property, as directed by the Borrower or as a court of competent jurisdiction may otherwise direct. Until the Discharge
of First Lien Obligations has occurred, if any Second Lien Collateral Agent or any Second Lien Claimholders shall, at any time, receive
any proceeds of any such insurance policy or any such award or payment in contravention of this Agreement, it shall segregate and hold
in trust and forthwith pay such proceeds over to the Directing First Lien Collateral Agent in accordance with the terms of Section
4.2.
5.3 Amendments to First Lien Financing Documents and Second
Lien Financing Documents.
(a) To the extent not in
contravention of the terms of this Agreement, the First Lien Financing Documents may be amended, restated, amended and restated, supplemented
or otherwise modified in accordance with their terms and the First Lien Financing Documents may be Refinanced, in each case, without
notice to, or the consent of, any Second Lien Collateral Agent or any Second Lien Claimholders, all without affecting the Lien subordination
or other provisions of this Agreement; provided that, if the Refinancing debt is secured by a Lien on the Collateral, the holders
of such Refinancing debt (or an agent or trustee on behalf thereof) shall bind themselves in a writing addressed to the applicable Second
Lien Collateral Agent and the Second Lien Claimholders to the terms of this Agreement or another intercreditor agreement that is permitted
under the terms of this Agreement. Without limiting the foregoing, the First Lien Financing Documents may be amended, restated, amended
and restated, supplemented or otherwise modified and/or Refinanced from time to time in accordance with their terms in order to effect
the making or provision of (x) any First Lien Incremental Facility, (y) any First Lien Replacement Term Loan or First Lien Replacement
Revolving Facility or (z) any “Extended Term Loans”, “Extended Revolving Loans” or “Extended Revolving
Credit Commitment” (each as defined in the First Lien Credit Agreement or any similar term in any other First Lien Document), in
each case without notice to, or the consent of, the Directing Second Lien Collateral Agent or any other Second Lien Claimholder.
(b) To the extent not in
contravention of the terms of this Agreement, the Second Lien Financing Documents may be amended, restated, amended and restated, supplemented
or otherwise modified in accordance with their terms and the Second Lien Financing Documents may be Refinanced, in each case, without
notice to, or the consent of, any First Lien Collateral Agent or any First Lien Claimholders, all without affecting the Lien subordination
or other provisions of this Agreement; provided that, if the Refinancing debt is secured by a Lien on the Collateral, the holders
of such Refinancing debt (or an agent or trustee on behalf thereof) shall bind themselves in a writing addressed to the First Lien Collateral
Agents and the First Lien Claimholders to the terms of this Agreement. Without limiting the foregoing, the Second Lien Financing Documents
may be amended, restated, amended and restated, supplemented or otherwise modified and/or Refinanced from time to time in accordance
with their terms in order to effect the making or provision of (x) any Second Lien Incremental Facility, (y) any Second Lien Replacement
Term Loan or (z) any “Extended Term Loans” (as defined in the Second Lien Credit Agreement or any similar term in any other
Second Lien Financing Document), in each case without notice to, or the consent of, the Directing First Lien Collateral Agent or any
other First Lien Claimholder.
(c) In
the event any First Lien Collateral Agent or the First Lien Claimholders and the relevant Obligor(s) enter into any amendment, restatement,
amendment and restatement, supplement, waiver, consent or other modification in respect of any of the First Lien Collateral Documents
for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First Lien Collateral
Document or changing in any manner the rights of such First Lien Collateral Agent, such First Lien Claimholders or any Obligor thereunder,
then such amendment, restatement, amendment and restatement, supplement, waiver, consent or other modification shall apply automatically
to any comparable provision of the Comparable Second Lien Collateral Document without the consent of any Second Lien Collateral Agent
or any Second Lien Claimholders and without any action by any Second Lien Collateral Agent or any Obligor, provided that:
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(1)
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no such amendment, waiver or consent shall have the effect of:
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(A) removing
assets subject to the Lien of the Second Lien Collateral Documents, except to the extent that a release of such Lien is permitted or required
by Section 5.1 of this Agreement;
(B) imposing additional duties on any Second
Lien Collateral Agent without its consent; or
(C) permitting
other Liens on the Collateral not permitted under the terms of the Second Lien Financing Documents or Section 6 hereof; and
(2) notice
of such amendment, restatement, amendment and restatement, supplement, waiver, consent or other modification shall have been given to
each Second Lien Collateral Agent (although the failure to give any such notice shall in no way affect the effectiveness of any such amendment,
waiver or consent).
5.4 Confirmation of Subordination
in Second Lien Collateral Documents. Each Second Lien Obligor and each Second Lien Collateral Agent, on behalf of itself and the related
Second Lien Claimholders, agrees that each Second Lien Collateral Document shall include the following language (or language to similar
effect approved by the Directing First Lien Collateral Agent):
“Notwithstanding anything herein
to the contrary, the lien and security interest granted to the Second Lien Collateral Agent pursuant to this Agreement and the exercise
of any right or remedy by the Second Lien Collateral Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated
as of July 3, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Intercreditor
Agreement”), among Kingpin Intermediate Holdings LLC, Bowlmor AMF Corp., JPMorgan Chase Bank, N.A., as First Lien Collateral Agent,
Credit Suisse AG, Cayman Islands Branch, as Second Lien Collateral Agent and certain other Persons party or that may become party thereto
from time to time. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the
Intercreditor Agreement shall govern and control.”
5.5 Gratuitous
Bailee/Agent for Perfection.
(a) Each Collateral Agent
agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees)
to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC or other applicable law (such Collateral
being the “Pledged Collateral”) as collateral agent for each other First Lien Collateral Agent and the First Lien
Claimholders and as gratuitous bailee for each Second Lien Collateral Agent (such bailment being intended, among other things, to satisfy
the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting
the security interest granted under the First Lien Documents and the Second Lien Financing Documents, respectively, subject to the terms
and conditions of this Section 5.5.
(b) Until the Discharge of
First Lien Obligations has occurred, the Directing First Lien Collateral Agent shall be entitled to deal with the Pledged Collateral
in accordance with the terms of the First Lien Documents as if the Liens of any Second Lien Collateral Agent under the Second Lien Collateral
Documents did not exist. The rights of each Second Lien Collateral Agent shall at all times be subject to the terms of this Agreement
and to each First Lien Collateral Agent’s rights under the First Lien Documents.
(c) No
First Lien Collateral Agent shall have any obligation whatsoever to the First Lien Claimholders, any Second Lien Collateral Agent or any
Second Lien Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Obligors or to preserve rights or benefits
of any Person except as expressly set forth in this Section 5.5. The duties or responsibilities of any First Lien Collateral Agent
under this Section 5.5 shall be limited solely to holding the Pledged Collateral as bailee in accordance with this Section 5.5
and delivering the Pledged Collateral to the Directing Second Lien Collateral Agent upon a Discharge of First Lien Obligations as provided
in paragraph (e) below.
(d) None of the
Directing First Lien Collateral Agent or any First Lien Claimholder shall have by reason of the First Lien Collateral Documents, the
Second Lien Collateral Documents, this Agreement or any other document, a fiduciary relationship in respect of any Second Lien
Collateral Agent or any Second Lien Claimholder, and each Second Lien Collateral Agent and the Second Lien Claimholders hereby waive
and release the Directing First Lien Collateral Agent, each other First Lien Collateral Agent and each First Lien Claimholder from
all claims and liabilities arising pursuant to the Directing First Lien Collateral Agent’s role under this Section 5.5
as gratuitous bailee with respect to the Pledged Collateral. It is understood and agreed that the interests of the Directing First
Lien Collateral Agent and the First Lien Claimholders, on the one hand, and the Second Lien Collateral Agents and the Second Lien
Claimholders, on the other hand, may differ and the Directing First Lien Collateral Agent and the First Lien Claimholders shall be
fully entitled to act in their own interest without taking into account the interests of the Second Lien Collateral Agents or the
Second Lien Claimholders.
(e) Upon
the Discharge of First Lien Obligations, the Directing First Lien Collateral Agent shall deliver the remaining Pledged Collateral in its
possession (if any) (or proceeds thereof) together with any necessary endorsements (such endorsement shall be without recourse and without
any representation or warranty), first, to the Directing Second Lien Collateral Agent, to the extent Second Lien Obligations remain
outstanding and second, to the Obligors to the extent no Obligations or Excess First Lien Obligations remain outstanding (in each
case, so as to allow such Person to obtain possession or control of such Pledged Collateral) or as a court of competent jurisdiction or
applicable Legal Requirements may otherwise direct. Following the Discharge of First Lien Obligations, the Directing First Lien Collateral
Agent further agrees to take all other actions reasonably requested by the Directing Second Lien Collateral Agent at the expense of the
Obligors (which expense reimbursement shall be subject to the provisions of the applicable First Lien Document) in connection with the
Directing Second Lien Collateral Agent obtaining a first-priority interest in the Pledged Collateral.
5.6 When Discharge of First
Lien Obligations Deemed to Not Have Occurred. If, at any time substantially concurrently with or after the Discharge of First Lien
Obligations has occurred, the Borrower or any other First Lien Obligor thereafter enters into any Refinancing of any First Lien Financing
Document evidencing a First Lien Obligation, which Refinancing is permitted hereby and by the terms of the Second Lien Financing Documents,
then such Discharge of First Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement (other
than with respect to any actions taken as a result of the occurrence of such first Discharge of First Lien Obligations), and the obligations
under such Refinancing of the First Lien Financing Document shall automatically be treated as First Lien Obligations for all purposes
of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the First
Lien Collateral Agent under such First Lien Financing Documents shall be the Directing First Lien Collateral Agent for all purposes of
this Agreement. Upon receipt of a notice from the Borrower or any other First Lien Obligor (the “New First Lien Debt Notice”)
stating that the Borrower or such other First Lien Obligor has entered into a new First Lien Financing Document (which notice shall include
the identity of the new first lien collateral agent; such agent, the “New First Lien Agent”), each Second Lien Collateral
Agent shall promptly (a) enter into such documents and agreements (including amendments or supplements to, or amendment and restatement
of, this Agreement) as the Borrower, such other First Lien Obligor or such New First Lien Agent shall reasonably request in order to
provide to the New First Lien Agent the rights contemplated hereby, in each case consistent in all material respects with the terms of
this Agreement and (b) deliver to the New First Lien Agent any Pledged Collateral held by it together with any necessary endorsements
(or otherwise allow the New First Lien Agent to obtain control of such Pledged Collateral). The New First Lien Agent shall agree in a
writing addressed to the Second Lien Collateral Agents and the Second Lien Claimholders to be bound by the terms of this Agreement.
5.7 Purchase Right.
(a) Without prejudice to the enforcement of any of the First Lien Claimholders’ remedies under the First Lien Financing
Documents, this Agreement, at law or in equity or otherwise, the First Lien Claimholders agree that at any time following: (i) an
acceleration of all First Lien Obligations in accordance with the terms of the First Lien Financing Documents or (ii) the
commencement of any Insolvency or Liquidation Proceeding with respect to the Borrower which constitutes an “Event of
Default” under the First Lien Financing Documents, the First Lien Claimholders will offer each Second Lien Claimholder the
option to purchase at par the entire aggregate amount of outstanding First Lien Obligations (including unfunded commitments under
the First Lien Financing Documents) at the Purchase Price without warranty or representation or recourse except as provided in Section
5.7(c), on a pro rata basis among the First Lien Claimholders. The “Purchase Price” will equal the sum
of: (1) the principal amount of all loans, advances or similar extensions of credit included in the First Lien Obligations
(including the unreimbursed amount of all issued letters of credit (including, without limitation, First Lien Letters of Credit)),
but excluding the undrawn amount of then outstanding letters of credit (including, without limitation, the undrawn amount of then
outstanding First Lien Letters of Credit), and all accrued and unpaid interest thereon through the date of purchase, (2) any
prepayment penalties or premiums, (3) the net aggregate amount then owing to counterparties under First Lien Hedging Agreements and
Banking Services Agreements, including all amounts owing to the counterparties as a result of the termination (or early termination)
thereof, with respect to any such First Lien Hedging Agreements in an amount not to exceed the Hedging Termination Value of such
First Lien Hedging Agreements and (4) all accrued and unpaid fees, expenses and other amounts owed to the First Lien Claimholders
under the First Lien Documents on the date of purchase. The Purchase Price shall be accompanied by an amount of cash collateral
under the sole dominion and control of the Directing First Lien Collateral Agent in immediately available funds as the Directing
First Lien Collateral Agent determines is reasonably necessary to secure the First Lien Claimholders in connection with any issued
and outstanding First Lien Letters of Credit under the First Lien Financing Documents but in any event not to exceed 105% of the sum
of (x) the aggregate undrawn amount of all such First Lien Letters of Credit outstanding pursuant to the First Lien Financing
Documents and (y) the aggregate facing and similar fees which will accrue thereon through the stated maturity of the First Lien
Letters of Credit (assuming no drawings thereon before stated maturity). It is understood and agreed that (x) at the time any facing
or similar fees are owing to an issuer with respect to any First Lien Letter of Credit, the Directing First Lien Collateral Agent
may apply amounts deposited with it as described above to pay the same and (y) upon any drawing under any First Lien Letter of
Credit, the Directing First Lien Collateral Agent shall apply amounts deposited with it as described above to repay the respective
unpaid drawing. After giving effect to any payment made as described above in this paragraph (a), those amounts (if any) then
on deposit with the Directing First Lien Collateral Agent as cash collateral, described in this paragraph (a) which exceed
105% of the sum of the aggregate undrawn amount of all then outstanding First Lien Letters of Credit and the aggregate facing and
similar fees (to the respective issuers or guarantee banks, as applicable) which will accrue thereon through the stated maturity of
the then outstanding First Lien Letters of Credit (assuming no drawings thereon before stated maturity), shall be returned to the
respective purchaser or purchasers (as their interests appear). Furthermore, at such time as all First Lien Letters of Credit have
been cancelled, expired or been fully drawn, as the case may be, and after all applications described above have been made, any
excess cash collateral deposited by the purchaser or purchasers as described above in this paragraph (a) (and not previously
applied or released as provided above) shall be returned to the respective purchaser or purchasers, as their interests appear.
(b) The
respective Second Lien Claimholders shall irrevocably accept or reject such offer within ten (10) Business Days of the receipt thereof
and the parties shall endeavor to close promptly thereafter. If any Second Lien Claimholders accept such offer, it shall be exercised
pursuant to documentation mutually acceptable to each of the First Lien Collateral Agents and the relevant Second Lien Collateral Agents.
If the Second Lien Claimholders reject such offer (or do not so irrevocably accept such offer within the required timeframe), the First
Lien Claimholders shall have no further obligations pursuant to this Section 5.7 and may take any further actions in their sole
discretion in accordance with the First Lien Documents and this Agreement. Each First Lien Claimholder will retain all rights to indemnification
and expense reimbursement provided in the relevant First Lien Documents for all claims and other amounts relating to periods prior to
the purchase of the First Lien Obligations pursuant to this Section 5.7.
(c) The
purchase and sale of the First Lien Obligations under this Section 5.7 will be without recourse and without representation or warranty
of any kind by the First Lien Claimholders, except that the First Lien Claimholders shall severally and not jointly represent and warrant
to the Second Lien Claimholders that on the date of the purchase, immediately before giving effect to such purchase:
(1) the
principal of and accrued and unpaid interest on the First Lien Obligations, and the fees, expenses and other amounts in respect thereof
owed to the respective First Lien Claimholders, are as stated in any assignment agreement prepared in connection with the purchase and
sale of the First Lien Obligations;
(2) each
First Lien Claimholder owns the First Lien Obligations purported to be owned by it free and clear of any Liens (other than participation
interests not prohibited by the applicable First Lien Documents, in which case the Purchase Price will be appropriately adjusted so that
the relevant Second Lien Claimholders do not pay amounts represented by any such participation interests that remain in effect); and
(3) that
such First Lien Claimholder has the right to assign the First Lien Obligations being assigned by it and its assignment has been duly authorized
and delivered.
5.8 Excluded Cash Collateral.
Notwithstanding any other provision to the contrary contained in this Agreement, it is understood and agreed that this Agreement shall
not restrict the rights of any First Lien Collateral Agent or the other First Lien Claimholders to pursue enforcement proceedings, exercise
remedies or make determinations with respect to the Excluded Cash Collateral or otherwise take actions with respect to the Excluded Cash
Collateral in accordance with the applicable First Lien Documents and such Excluded Cash Collateral shall be applied as specified in
the applicable First Lien Document and will not constitute Collateral hereunder; provided, however, that if any Obligor
shall fail to pay any of the First Lien Obligations owing under the applicable First Lien Document pursuant to which such Excluded Cash
Collateral is provided as and when required thereunder, then the applicable First Lien Claimholder agrees that to the extent it seeks
to satisfy any such First Lien Obligations owing to it, such First Lien Claimholder shall first proceed to satisfy such First Lien Obligations
with the proceeds of Excluded Cash Collateral (or any letter of credit or other credit support issued or pledged in favor of such First
Lien Claimholder to support such First Lien Obligations). If, following the application of any such Excluded Cash Collateral, letter
of credit or other credit support to the repayment of such First Lien Obligations owing to the applicable First Lien Claimholder, such
First Lien Claimholder has not received the full amount of the First Lien Obligations then due and owing to it, it shall be entitled
to its pro rata share of any Collateral proceeds as otherwise contemplated by this Agreement. Nothing in this Agreement shall be construed
to impair the right of any First Lien Claimholder to recoup, set off, net or off-set amounts (including amounts delivered as margin or
cash collateral) to satisfy such First Lien Obligations secured by Excluded Cash Collateral to the extent permitted under the applicable
First Lien Document, or exercise its rights and remedies with respect to any Excluded Cash Collateral pledged for its sole benefit or
as a beneficiary under and pursuant to any other credit support issued solely in its favor, each of which will be governed by the terms
of such First Lien Document.
SECTION 6. Insolvency
or Liquidation Proceedings.
6.1 Finance and Sale Issues.
(a) Until the Discharge of First Lien Obligations has occurred, if any Obligor shall be subject to any Insolvency or Liquidation Proceeding
and the Directing First Lien Collateral Agent shall desire to permit the use of “Cash Collateral” (as such term is
defined in Section 363(a) of the Bankruptcy Code or any similar Debtor Relief Law), on which the First Lien Collateral Agents or any other
creditor has a Lien or to permit any Obligor to obtain financing, whether from the First Lien Claimholders or any other Person, under
Section 364 of the Bankruptcy Code or any similar Debtor Relief Law (“DIP Financing”), then (i) each Second Lien Collateral
Agent, on behalf of itself and the related Second Lien Claimholders, agrees that (A) it will raise no objection to, oppose or contest
(or join with or support any third party opposing, objecting or contesting) such Cash Collateral use or DIP Financing (including any proposed
orders for such Cash Collateral use and/or DIP Financing which are acceptable to the Directing First Lien Collateral Agent) and (B) it
will be deemed to have consented to such Cash Collateral use or DIP Financing (including such proposed orders) and (ii) to the extent
the Liens securing the First Lien Obligations are subordinated to or pari passu with such DIP Financing, each Second Lien Collateral
Agent (A) will subordinate its Liens in the Collateral to the Liens securing such DIP Financing (and all Obligations relating thereto,
any “carve-out” therefrom agreed to on behalf of First Lien Claimholders by the Directing First Lien Collateral Agent, and
to all adequate protection Liens granted to the First Lien Claimholders on the same basis as the Liens securing the Second Lien Obligations
are subordinated to the Liens securing the First Lien Obligations under this Agreement) and (B) will not request adequate protection or
any other relief in connection therewith (except, as expressly agreed by the Directing First Lien Collateral Agent or to the extent permitted
by Section 6.3); provided that the aggregate principal amount of the DIP Financing plus the aggregate outstanding
principal amount of First Lien Obligations under the First Lien Financing Documents (which, for the avoidance of doubt, excludes any Other
Obligations) plus the aggregate face amount of any First Lien Letters of Credit issued and not reimbursed under the First Lien Financing
Documents does not exceed the Cap Amount.
(b) Each Second Lien Collateral
Agent on behalf of the related Second Lien Claimholders agrees that it will not seek consultation rights in connection with, and it will
raise no objection, oppose or contest (or join with or support any third party objecting, opposing or contesting), a motion to sell,
liquidate or otherwise dispose of Collateral under Section 363 of the Bankruptcy Code (or any successor provision or any comparable provision
of any other Debtor Relief Law) if the requisite First Lien Claimholders have consented to such sale, liquidation or other disposition.
Each Second Lien Collateral Agent on behalf of the related Second Lien Claimholders further agrees that it will not directly or indirectly
oppose or impede entry of any order in connection with such sale, liquidation or other disposition, including orders to retain professionals
or set bid procedures in connection with such sale, liquidation or disposition if the requisite First Lien Claimholders have consented
to (i) such retention of professionals and bid procedures in connection with such sale, liquidation or disposition of such assets and
(ii) the sale, liquidation or disposition of such assets, in which event the Second Lien Claimholders will be deemed to have consented
to the sale or disposition of Collateral pursuant to Section 363(f) of the Bankruptcy Code (or any successor provision or any comparable
provision of any other applicable Debtor Relief Law), provided that such motion does not impair the rights of the Second Lien Claimholders
under Section 363(k) of the Bankruptcy Code (or any successor provision or any comparable provision of any other applicable Debtor Relief
Laws), so long as the cash proceeds of any such bid by the Second Lien Claimholders are sufficient to cause the Discharge of the First
Lien Obligations, and further provided that the Cap Amount shall be reduced by an amount equal to the net cash proceeds of such sale
or other disposition which are used to pay the principal, face or stated amount of the First Lien Obligations under the First Lien Financing
Documents.
6.2 Relief from the Automatic
Stay. Until the Discharge of First Lien Obligations has occurred, each Second Lien Collateral Agent, on behalf of itself and the
other Second Lien Claimholders, and each other Second Lien Claimholder (by its acceptance of the benefits of the Second Lien Financing
Documents) agrees that none of them shall: (a) seek (or support any other Person seeking) relief from or modification of the automatic
stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, in each case without the prior written
consent of the Directing First Lien Collateral Agent or (b) oppose (or support any other Person in opposing) any request by the Directing
First Lien Collateral Agent or other First Lien Claimholder for relief from or modification of such stay.
6.3 Adequate
Protection.
(a) Each
Second Lien Collateral Agent, on behalf of itself and the related Second Lien Claimholders, agrees that none of them shall contest (or
support any other Person contesting):
(i) any request by any First Lien Collateral
Agent or the related First Lien Claimholders for adequate protection under any Debtor Relief Law; or
(ii) any
objection by any First Lien Collateral Agent or the related First Lien Claimholders to any motion, relief, action or proceeding based
on such First Lien Collateral Agent or the related First Lien Claimholders claiming a lack of adequate protection with respect to the
Collateral.
(b) Notwithstanding
the foregoing provisions in this Section 6.3, in any Insolvency or Liquidation Proceeding:
(i)
if the First Lien Claimholders (or any subset thereof) are granted adequate protection in the form of a Lien on additional or
replacement collateral in connection with any use of Cash Collateral or DIP Financing, then each Second Lien Collateral Agent, on behalf
of itself or any of the related Second Lien Claimholders, may seek or request adequate protection in the form of a Lien on such additional
or replacement collateral, which Lien will be subordinated to the Liens securing and providing adequate protection for the First Lien
Obligations and in respect of such use of Cash Collateral or DIP Financing (and all Obligations relating thereto) on the same basis as
the other Liens securing the Second Lien Obligations are so subordinated to the First Lien Obligations under this Agreement; and
(ii) the Second
Lien Collateral Agents and the Second Lien Claimholders shall only be permitted to seek adequate protection with respect to their respective
rights in the Collateral in any Insolvency or Liquidation Proceeding in the form of (A) a Lien on additional collateral; provided
that as adequate protection for the First Lien Obligations, each First Lien Collateral Agent, on behalf of the related First Lien
Claimholders, is also granted a senior Lien on such additional collateral; (B) Liens on replacement Collateral; provided that
as adequate protection for the First Lien Obligations, each First Lien Collateral Agent, on behalf of the related First Lien Claimholders,
is also granted senior Liens on such replacement Collateral; (C) an administrative expense claim; provided that as adequate protection
for the First Lien Obligations, each First Lien Collateral Agent, on behalf of the related First Lien Claimholders, is also granted an
administrative expense claim which is senior and prior to the administrative expense claim of the Second Lien Collateral Agents and the
Second Lien Claimholders; and (D) cash payments with respect to interest on the Second Lien Obligations; provided that (1) as
adequate protection for the First Lien Obligations, each First Lien Collateral Agent, on behalf of the related First Lien Claimholders,
is also granted cash payments with respect to interest on the First Lien Obligations, and (2) such cash payments do not exceed an amount
equal to the interest accruing on the principal amount of Second Lien Obligations outstanding on the date such relief is granted at the
interest rate under the Second Lien Financing Documents and accruing from the date the applicable Second Lien Collateral Agents are granted
such relief. If any Second Lien Claimholder receives post-petition interest and/or adequate protection payments in an Insolvency or Liquidation
Proceeding (“Second Lien Adequate Protection Payments”), and a Discharge of First Lien Obligations does not occur
upon the effectiveness of the plan of reorganization or similar dispositive restructuring plan for, or conclusion of, that Insolvency
or Liquidation Proceeding, then, each Second Lien Claimholder shall pay over to the First Lien Claimholders an amount (the “Pay-Over
Amount”) equal to the lesser of (x) the Second Lien Adequate Protection Payments received by such Second Lien Claimholders
and (y) the amount of the short-fall (the “Short Fall”) in payments needed to achieve a Discharge of First Lien Obligations;
provided that to the extent any portion of the Short Fall represents payments received by the First Lien Claimholders in the form
of promissory notes, equity or other property, equal in value to the cash paid in respect of the Pay-Over Amount, the First Lien Claimholders
shall, upon receipt of the Pay-Over Amount, transfer those promissory notes, equity or other property, pro rata, equal in value
to the cash paid in respect of the Pay-Over Amount to the applicable Second Lien Claimholders in exchange for the Pay-Over Amount. Notwithstanding
anything herein to the contrary, the First Lien Claimholders shall not be deemed to have consented to, and expressly retain their rights
to object to, the grant of adequate protection in the form of cash payments to the Second Lien Claimholders made pursuant to this Section
6.3(b). To the extent the First Lien Collateral Agents are not granted such adequate protection in the applicable form, any amounts
recovered by or distributed to any Second Lien Collateral Agent or any other Second Lien Claimholder pursuant to or as a result of any
such Lien on additional or replacement collateral, any such administrative expense claim, or any such cash payment shall be subject to
Section 4.2. Without limiting the generality of the foregoing, to the extent that the First Lien Claimholders are granted adequate
protection in the form of payments in the amount of current post-petition fees and expenses, then the Second Lien Collateral Agents and
the Second Lien Claimholders shall not be prohibited from seeking adequate protection in the form of payments in the amount of current
post-petition incurred fees and expenses, subject to the right of the First Lien Claimholders (and any other Persons) to object to the
reasonableness of the amounts of fees and expenses so sought by the Second Lien Claimholders.
6.4 No Waiver. Nothing
contained herein shall prohibit or in any way limit any First Lien Collateral Agent or any First Lien Claimholder from objecting in any
Insolvency or Liquidation Proceeding or otherwise to any action taken by any Second Lien Collateral Agent or any of the Second Lien Claimholders,
including the seeking by any Second Lien Collateral Agent or any Second Lien Claimholders of adequate protection or the asserting by any
Second Lien Collateral Agent or any Second Lien Claimholders of any of its rights and remedies under the Second Lien Financing Documents
or otherwise.
6.5 Reinstatement. If
any First Lien Claimholder is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the
estate of any Obligor any amount paid in respect of First Lien Obligations (a “Recovery”), then such First Lien Claimholders
shall be entitled to a reinstatement of First Lien Obligations with respect to all such recovered amounts on the date of such Recovery,
and from and after the date of such reinstatement the Discharge of First Lien Obligations shall be deemed not the have occurred for all
purposes hereunder. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force
and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties
hereto from such date of reinstatement. Any amounts received by any Second Lien Collateral Agent or any Second Lien Claimholder on account
of the Second Lien Obligations after the termination of this Agreement shall, in the event of a reinstatement of this Agreement pursuant
to this Section 6.5, be held in trust for and paid over to the Directing First Lien Collateral Agent for the benefit of the First
Lien Claimholders, for application to the reinstated First Lien Obligations. This Section 6.5 shall survive termination of this
Agreement.
6.6 Reorganization
Securities.
(a) If,
in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized
debtor are distributed pursuant to a plan of reorganization, arrangement, compromise or liquidation or similar dispositive restructuring
plan, both on account of First Lien Obligations and on account of Second Lien Obligations, then, to the extent the debt obligations distributed
on account of the First Lien Obligations and on account of the Second Lien Obligations are secured by Liens upon the same property, the
provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect
to the Liens securing such debt obligations.
(b) No
Second Lien Claimholder (whether in the capacity of a secured creditor or an unsecured creditor) shall propose, vote in favor of, or otherwise
directly or indirectly support any plan of reorganization or similar dispositive restructuring plan that is inconsistent with or in contravention
of the priorities or other provisions of this Agreement, other than with the prior written consent of the Directing First Lien Collateral
Agent or to the extent any such plan is proposed or supported by the number of First Lien Claimholders (and amount of claims of such First
Lien Claimholders) required under Section 1126(c) of the Bankruptcy Code or any similar provision of any other Debtor Relief Law or provides
for the Discharge of First Lien Obligations in full in cash upon the “effectiveness” of such plan of reorganization or similar
dispositive restructuring plan.
6.7 Post-Petition
Interest.
(a) Neither
any Second Lien Collateral Agent nor any Second Lien Claimholder shall oppose or seek to challenge (or join with any third party opposing
or challenging) any claim by any First Lien Collateral Agent or any First Lien Claimholder for allowance in any Insolvency or Liquidation
Proceeding of First Lien Obligations consisting of Post-Petition Interest. Regardless of whether any such claim for Post-Petition Interest
is allowed or allowable, and without limiting the generality of the other provisions of this Agreement, this Agreement expressly is intended
to include and does include the “rule of explicitness” in that this Agreement expressly entitles the First Lien Claimholders,
and is intended to provide the First Lien Claimholders with the right, to receive payment of all Post-Petition Interest through distributions
made pursuant to the provisions of this Agreement even though such Post-Petition Interest is not allowed or allowable against the bankruptcy
estate of the Borrower or any other Obligor under Section 502(b)(2) or Section 506(b) of the Bankruptcy Code or under any other provision
of the Bankruptcy Code or any other Debtor Relief Law.
(b) Except
to the extent otherwise provided herein, neither any First Lien Collateral Agent nor any other First Lien Claimholder shall oppose or
seek to challenge any claim by any Second Lien Collateral Agent or any Second Lien Claimholder for allowance in any Insolvency or Liquidation
Proceeding of Second Lien Obligations consisting of Post-Petition Interest to the extent of the value of the Lien of any Second Lien Collateral
Agent on behalf of the Second Lien Claimholders on the Collateral (after taking into account the value of the First Lien Obligations).
6.8 Waiver. (a) Each
Second Lien Collateral Agent, for itself and on behalf of the Second Lien Claimholders, waives any claim it may hereafter have against
any First Lien Claimholder arising out of the election of any First Lien Claimholder of the application of Section 1111(b)(2) of the Bankruptcy
Code, and/or out of any cash collateral or financing arrangement or out of any grant of a security interest in connection with the Collateral
in any Insolvency or Liquidation Proceeding.
(b) Each
Second Lien Collateral Agent, for itself and on behalf of its related Second Lien Claimholders, agrees that it will not assert or enforce
any claim under Section 506(c) of the Bankruptcy Code (or any similar provision of any other Debtor Relief Law) senior to or on a parity
with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral.
6.9 Separate Grants of Security
and Separate Classification. Each Second Lien Collateral Agent, for itself and on behalf of the related Second Lien Claimholders,
and each First Lien Collateral Agent, for itself and on behalf of the related First Lien Claimholders, acknowledges and agrees that,
(a) the
grants of Liens pursuant to the First Lien Collateral Documents and the Second Lien Collateral Documents constitute, and, in the case
of any Shared Collateral Documents, are intended to constitute, two separate and distinct grants of Liens; and
(b) because
of, among other things, their differing rights in the Collateral, the Second Lien Obligations are fundamentally different from the First
Lien Obligations and must, subject to applicable law, be separately classified in any plan of reorganization or other dispositive restructuring
plan proposed, confirmed or adopted in an Insolvency or Liquidation Proceeding.
To further effectuate the intent
of the parties as provided in the immediately preceding sentence, if it is held that the claims of the First Lien Claimholders and the
Second Lien Claimholders in respect of the Collateral constitute only one secured claim (rather than separate classes of senior and junior
secured claims), then each of the parties hereto hereby acknowledges and agrees that, subject to Sections 2.1 and 4.1, all
distributions shall be made as if there were separate classes of senior and junior secured claims against the Obligors in respect of the
Collateral (with the effect being that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose ignoring
all claims held by the Second Lien Claimholders), the First Lien Claimholders shall be entitled to receive, in addition to amounts distributed
to them in respect of principal, pre-petition interest and other claims, all amounts owing (or that would be owing if there were such
separate classes of senior and junior secured claims) in respect of Post-Petition Interest, including any additional interest payable
pursuant to the First Lien Documents, arising from or related to a default, whether or not such claim is allowed or allowable as a claim
in any Insolvency or Liquidation Proceeding, before any distribution is made in respect of the claims held by the Second Lien Claimholders
with respect to the Collateral, with each Second Lien Collateral Agent, for itself and on behalf of the Second Lien Claimholders, hereby
acknowledging and agreeing to turn over to the Directing First Lien Collateral Agent, for itself and on behalf of the First Lien Claimholders,
Collateral or proceeds of Collateral otherwise received or receivable by them to the extent necessary to effectuate the intent of this
sentence, even if such turnover has the effect of reducing the claim or recovery of the Second Lien Claimholders).
6.10 Effectiveness in Insolvency
or Liquidation Proceedings. The parties acknowledge that this Agreement is a “subordination agreement” under Section 510(a)
of the Bankruptcy Code and under any other applicable Debtor Relief Law, which will be effective before, during and after the commencement
of any Insolvency or Liquidation Proceeding. All references in this Agreement to any Obligor will include such Person as a debtor-in-possession
and any receiver or trustee for such Person in any Insolvency or Liquidation Proceeding.
SECTION 7. Reliance;
Waivers; Etc.
7.1 Reliance. Other than
for any reliance on the terms of this Agreement, each First Lien Collateral Agent, on behalf of itself and the related First Lien Claimholders,
acknowledges that it and such First Lien Claimholders have, independently and without reliance on any Second Lien Collateral Agent or
any related Second Lien Claimholder, and based on documents and information deemed by them appropriate, made their own credit analysis
and decision to enter into each of the First Lien Documents (as applicable) and be bound by the terms of this Agreement, and they will
continue to make their own credit decision in taking or not taking any action under the First Lien Documents or this Agreement. Each Second
Lien Collateral Agent, on behalf of itself and the related Second Lien Claimholders, acknowledges that it and such Second Lien Claimholders
have, independently and without reliance on any First Lien Collateral Agent or any First Lien Claimholder, and based on documents and
information deemed by them appropriate, made their own credit analysis and decision to enter into each of the Second Lien Financing Documents
(as applicable) and be bound by the terms of this Agreement, and they will continue to make their own credit decision in taking or not
taking any action under the Second Lien Financing Documents or this Agreement.
7.2 No Warranties or Liability.
Each First Lien Collateral Agent, on behalf of itself and the related First Lien Claimholders, acknowledges and agrees that, except as
set forth in the first sentence of Section 8.14, no Second Lien Collateral Agent or other Second Lien Claimholders have made any
express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability
or enforceability of any of the Second Lien Financing Documents, the ownership of any Collateral or the perfection or priority of any
Liens thereon. The Second Lien Claimholders will be entitled to manage and supervise their respective extensions of credit under the Second
Lien Financing Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate. Each Second Lien
Collateral Agent, on behalf of itself and the related Second Lien Claimholders, acknowledges and agrees that, except as set forth in the
first sentence of Section 8.14, no First Lien Collateral Agent or other First Lien Claimholders have made any express or implied
representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability
of any of the First Lien Financing Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon. The
First Lien Claimholders will be entitled to manage and supervise their respective loans and extensions of credit under the First Lien
Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate. The Second Lien Collateral Agents
and the Second Lien Claimholders shall have no duty to the First Lien Collateral Agents or any of the First Lien Claimholders, and the
First Lien Collateral Agents and the First Lien Claimholders shall have no duty to the Second Lien Collateral Agents or any of the Second
Lien Claimholders, to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of an event of
default or default under any agreements with any Obligor (including the First Lien Documents and the Second Lien Financing Documents),
regardless of any knowledge thereof which they may have or be charged with.
7.3 No
Waiver of Lien Priorities.
(a) No
right of the First Lien Claimholders, the First Lien Collateral Agents or any of them to enforce any provision of this Agreement or of
any First Lien Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of any Obligor
or by any act or failure to act by any First Lien Claimholder or any First Lien Collateral Agent, or by any noncompliance by any Person
with the terms, provisions and covenants of this Agreement, any of the First Lien Documents or the Second Lien Financing Documents, regardless
of any knowledge thereof which the First Lien Collateral Agents or the First Lien Claimholders, or any of them, may have or be otherwise
charged with.
(b) Without
in any way limiting the generality of the foregoing paragraph (a) (but subject to the rights of the First Lien Obligors under the
First Lien Documents and subject to the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agents
and any of them may, at any time and from time to time in accordance with the First Lien Documents and/or applicable law, without the
consent of, or notice to, any Second Lien Collateral Agent or any Second Lien Claimholders, without incurring any liabilities to any Second
Lien Collateral Agent or any Second Lien Claimholders and without impairing or releasing the Lien priorities and other benefits provided
in this Agreement (even if any right of subrogation or other right or remedy of any Second Lien Collateral Agent or any Second Lien Claimholders
is affected, impaired or extinguished thereby) do any one or more of the following:
(1) make
loans and advances to any Obligor or issue, provide, guaranty or obtain First Lien Letters of Credit for the account of any Obligor or
otherwise extend credit to any Obligor, in any amount and on any terms, whether pursuant to a commitment or as a discretionary advance
and whether or not any default or event of default or failure of condition is then continuing;
(2) change
the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter the terms
of, any of the First Lien Obligations or any Lien on any First Lien Collateral or guaranty thereof or any liability of any Obligor, or
any liability incurred directly or indirectly in respect thereof (including any increase in or extension of the First Lien Obligations,
without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify
or supplement in any manner any Liens held by any First Lien Collateral Agent or any of the First Lien Claimholders, the First Lien Obligations
or any of the First Lien Documents;
(3) sell,
exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the First Lien Collateral
or any liability of any Obligor to the First Lien Claimholders or any First Lien Collateral Agent, or any liability incurred directly
or indirectly in respect thereof;
(4) settle
or compromise any First Lien Obligation or any other liability of any Obligor or any security therefor or any liability incurred directly
or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability (including the First Lien
Obligations) in any manner or order;
(5) exercise
or delay in or refrain from exercising any right or remedy against any Obligor or any security or any other Person or with respect to
any security, elect any remedy and otherwise deal freely with any Obligor or any First Lien Collateral and any security and any guarantor
or any liability of any Obligor to the First Lien Claimholders or any liability incurred directly or indirectly in respect thereof; and
(6) release
or discharge any First Lien Obligation or any guaranty thereof or any agreement or obligation of any Obligor or any other Person or entity
with respect thereto.
(c) Until the Discharge of
First Lien Obligations, each Second Lien Collateral Agent, on behalf of itself and the related Second Lien Claimholders, agrees not to
assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise
claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law
with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law.
7.4 Waiver
of Liability; Indemnity.
(a) Each
Second Lien Collateral Agent, on behalf of itself and the related Second Lien Claimholders, also agrees that the First Lien Claimholders
and the First Lien Collateral Agents shall have no liability to any Second Lien Collateral Agent or any other Second Lien Claimholders,
and each Second Lien Collateral Agent, on behalf of itself and the related Second Lien Claimholders, hereby waives any claim against any
First Lien Claimholder or any First Lien Collateral Agent, arising out of any and all actions which the First Lien Claimholders or any
First Lien Collateral Agent may take or permit or omit to take with respect to: (i) the First Lien Documents (including, without limitation,
any failure to perfect or obtain perfected security interests in the First Lien Collateral), (ii) the collection of the First Lien Obligations
or (iii) the foreclosure upon, or sale, liquidation or other disposition of, any First Lien Collateral. Each Second Lien Collateral Agent,
on behalf of itself and the related Second Lien Claimholders, agrees that the First Lien Claimholders and the First Lien Collateral Agents
have no duty, express or implied, fiduciary or otherwise, to them in respect of the maintenance or preservation of the First Lien Collateral,
the First Lien Obligations or otherwise. Neither the First Lien Collateral Agents nor any other First Lien Claimholder nor any of their
respective directors, officers, employees or agents will be liable for failure to demand, collect or realize upon any of the Collateral
or for any delay in doing so, or will be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Obligor
or upon the request of any Second Lien Collateral Agent, any other holder of Second Lien Obligations or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof. Without limiting the foregoing, each Second Lien Claimholder
by accepting the benefits of the Second Lien Collateral Documents agrees that neither any First Lien Collateral Agent nor any other First
Lien Claimholder (in directing any First Lien Collateral Agent to take any action with respect to the Collateral) shall have any duty
or obligation to realize first upon any type of Collateral or to sell, dispose of or otherwise liquidate all or any portion of the Collateral
in any manner, including as a result of the application of the principles of marshaling or otherwise, that would maximize the return to
any class of creditors holding Obligations of any type (whether First Lien Obligations or Second Lien Obligations), notwithstanding that
the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by
such class of creditors from such realization, sale, disposition or liquidation.
(b) With
respect to its share of the Obligations, JPMCB and Credit Suisse shall have and may exercise the same rights and powers hereunder as,
and shall be subject to the same obligations and liabilities as and to the extent set forth herein for, any other creditor, all as if
JPMCB and Credit Suisse were not the First Lien Credit Agreement Collateral Agent and the Second Lien Credit Agreement Collateral Agent,
respectively. The term “creditors” or any similar term shall, unless the context clearly otherwise indicates, include JPMCB
or Credit Suisse, as applicable, in its individual capacity as a Claimholder. JPMCB, Credit Suisse and their respective Affiliates may
lend money to, and generally engage in any kind of business with, the Obligors or any of their Affiliates as if JPMCB and Credit Suisse
were not acting as the First Lien Credit Agreement Collateral Agent and Second Lien Credit Agreement Collateral Agent, respectively, and
without any duty to account therefor to any other creditor.
7.5 Obligations Unconditional.
All rights, interests, agreements and obligations of the First Lien Collateral Agents and the First Lien Claimholders and the Second Lien
Collateral Agents and the Second Lien Claimholders, respectively, hereunder (including the Lien priorities established hereby) shall remain
in full force and effect irrespective of:
(a) any
lack of validity or enforceability of any First Lien Documents or any Second Lien Financing Documents;
(b) any
change in the time, manner or place of payment of, or in any other terms of, all or any of the First Lien Obligations or Second Lien Obligations,
or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise,
of the terms of any First Lien Document or any Second Lien Financing Document;
(c) any
exchange of any security interest in any Collateral or any other collateral, or any amendment, waiver or other modification, whether in
writing or by course of conduct or otherwise, of all or any of the First Lien Obligations or Second Lien Obligations or any guaranty thereof;
(d) the commencement of any
Insolvency or Liquidation Proceeding in respect of any Obligor; or
(e) any
other circumstances which otherwise might constitute a defense available to, or a discharge of, any Obligor in respect of any First Lien
Collateral Agent, the First Lien Obligations, any First Lien Claimholder, any Second Lien Collateral Agent, the Second Lien Obligations
or any Second Lien Claimholder in respect of this Agreement.
SECTION 8. Miscellaneous.
8.1 Conflicts. In the
event of any conflict between the provisions of this Agreement and the provisions of the First Lien Documents or the Second Lien Financing
Documents, the provisions of this Agreement shall govern and control.
8.2 Effectiveness; Continuing
Nature of this Agreement; Severability. This Agreement shall become effective when executed and delivered by the parties hereto. This
is a continuing agreement of Lien subordination and the First Lien Claimholders may continue, at any time and without notice to any Second
Lien Collateral Agent or any other Second Lien Claimholder, to extend credit and other financial accommodations and lend monies to or
for the benefit of any Obligor constituting First Lien Obligations in reliance hereon. Each Second Lien Collateral Agent, on behalf of
itself and the related Second Lien Claimholders, hereby waives any right it may have under applicable law to revoke this Agreement or
any of the provisions of this Agreement. The terms of this Agreement shall survive, and shall continue in full force and effect, in any
Insolvency or Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall not
invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. All references to any Obligor shall include such Obligor as debtor and debtor-in-possession
and any receiver, trustee or similar Person for any Obligor (as the case may be) in any Insolvency or Liquidation Proceeding. This Agreement
shall terminate and be of no further force and effect:
(a) with
respect to any First Lien Collateral Agent, the First Lien Claimholders and the First Lien Obligations, upon the Discharge of First Lien
Obligations, subject to Section 5.6 and the rights of the First Lien Claimholders under Section 6.5; and
(b) with
respect to any Second Lien Collateral Agent, the Second Lien Claimholders and the Second Lien Obligations, upon the Discharge of Second
Lien Obligations.
Notwithstanding the foregoing, such termination shall
not relieve any party of its obligations incurred hereunder prior to such date of termination.
8.3 Amendments; Waivers.
No amendment, modification or waiver of any of the provisions of this Agreement by any Second Lien Collateral Agent or any First Lien
Collateral Agent shall be deemed to be made unless the same shall be in writing signed on behalf of each such party hereto or its authorized
agent, acting (a) in the case of the Directing First Lien Collateral Agent, with the approval or instructions of the Required First Lien
Claimholders to the extent required under the First Lien Credit Agreement or any Additional First Lien Obligations Agreement and (b) in
the case of the Directing Second Lien Collateral Agent, with the approval or instructions of the requisite Second Lien Claimholders to
the extent required under the Second Lien Credit Agreement or any Additional Second Lien Obligations Agreement; provided that (i) any
such amendment, modification or waiver shall require the express written consent of the Borrower (notwithstanding that the Borrower is
not a signatory hereto) and shall not be effective prior to receipt by the Collateral Agents of such express written consent, (ii) the
Directing First Lien Collateral Agent and the Directing Second Lien Collateral Agent may, at the expense of the Obligors and without the
written consent of any other First Lien Claimholders or any Second Lien Claimholders agree to any amendment to or other modifications
of this Agreement for the purpose of giving effect to Section 8.21 or any Refinancing of any First Lien Obligations or Second Lien Obligations
and (iii) additional Obligors may be added as parties hereto upon the execution and delivery of a counterpart of the Intercreditor Joinder
Agreement in the form of Exhibit A hereto in accordance with the provisions of Section 8.18 of this Agreement. Each of the Directing First
Lien Collateral Agent and the Directing Second Lien Collateral Agent shall execute and deliver a supplemental agreement at the other’s
request to permit new creditors to become a party hereto as set forth in the proviso to the immediately preceding sentence. Notwithstanding
the provisions of any other First Lien Document or Second Lien Financing Document, the Directing First Lien Collateral Agent and the Directing
Second Lien Collateral Agent may, with the consent of the Borrower, make any amendments, restatements, amendment and restatements, supplements
or other modifications to this Agreement to correct any ambiguity, defect or inconsistency contained herein without the consent of any
other Person. Each waiver of the terms of this Agreement, if any, shall be a waiver only with respect to the specific instance involved
and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties owed to such party in
any other respect or at any other time.
8.4 Information
Concerning Financial Condition of the Obligors and its Subsidiaries.
Each First Lien Collateral
Agent and the First Lien Claimholders, on the one hand, and the Second Lien Claimholders and each Second Lien Collateral Agent, on the
other hand, shall each be responsible for keeping themselves informed of (a) the financial condition of the Obligors and their subsidiaries
and all endorsers and/or guarantors of the First Lien Obligations or the Second Lien Obligations and (b) all other circumstances bearing
upon the risk of nonpayment of the First Lien Obligations or the Second Lien Obligations. The First Lien Collateral Agents and the First
Lien Claimholders shall have no duty to advise any Second Lien Collateral Agent or any Second Lien Claimholder of information known to
it or them regarding such condition or any such circumstances or otherwise. In the event any First Lien Collateral Agent or any of the
First Lien Claimholders, in its or their sole discretion, undertakes at any time or from time to time to provide any such information
to any Second Lien Collateral Agent or any Second Lien Claimholder, it or they shall be under no obligation:
(i) to
make, and such First Lien Collateral Agent and the related First Lien Claimholders shall not make, any express or implied representation
or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided;
(ii) to
provide any additional information or to provide any such information on any subsequent occasion;
(iii) to undertake any investigation; or
(iv) to
disclose any information which, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential
or is otherwise required to maintain confidential.
8.5 Subrogation. With
respect to the value of any payments or distributions in cash, property or other assets that any of the Second Lien Claimholders or any
Second Lien Collateral Agent pays over to the Directing First Lien Collateral Agent or the First Lien Claimholders under the terms of
this Agreement, the Second Lien Claimholders and each Second Lien Collateral Agent shall be subrogated to the rights of each First Lien
Collateral Agent and the First Lien Claimholders; provided that each Second Lien Collateral Agent, on behalf of itself and the
related Second Lien Claimholders, hereby agrees not to assert or enforce all such rights of subrogation it may acquire as a result of
any payment hereunder until the Discharge of First Lien Obligations has occurred. Each Obligor acknowledges and agrees that the value
of any payments or distributions in cash, property or other assets received by any Second Lien Collateral Agent or the Second Lien Claimholders
and paid over to the Directing First Lien Collateral Agent or the First Lien Claimholders pursuant to, and applied in accordance with,
this Agreement, shall not relieve or reduce any of the Second Lien Obligations under the Second Lien Financing Documents.
8.6 Application of Payments.
All payments received by any First Lien Collateral Agent or the First Lien Claimholders may be applied, reversed and reapplied, in whole
or in part, to such part of the First Lien Obligations as the First Lien Claimholders, in their sole discretion, deem appropriate. Each
Second Lien Collateral Agent, on behalf of itself and the related Second Lien Claimholders, assents to any extension or postponement of
the time of payment of the First Lien Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution,
exchange or release of any security which may at any time secure any part of the First Lien Obligations and to the addition or release
of any other Person primarily or secondarily liable therefor.
8.7 SUBMISSION
TO JURISDICTION; WAIVERS.
(a) EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL
OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENTS BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE
OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED
BY LAW.
(b) TO
THE EXTENT PERMITTED BY LAW, EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND
AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL) DIRECTED TO IT AT ITS
ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 8.8 OF THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ANY OBJECTION
TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER
THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
8.8 Notices. All notices
to the First Lien Claimholders and the Second Lien Claimholders permitted or required under this Agreement shall also be sent to the related
First Lien Collateral Agent and the related Second Lien Collateral Agent, respectively (and, for this purpose, the First Lien Credit Agreement
Collateral Agent shall be deemed to be agent for the Hedging Obligations and the Banking Services Obligations). Unless otherwise specifically
provided herein, any notice hereunder shall be in writing and may be personally served, sent by facsimile or sent by other electronic
transmission or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service
and signed for against receipt thereof, upon receipt of facsimile or other electronic transmission, or three (3) Business Days after depositing
it in the United States mail with postage prepaid and properly addressed. For the purposes hereof, the addresses of the parties hereto
shall be as set forth below each party’s name on the signature pages hereto, or, as to each party, at such other address as may
be designated by such party in a written notice to all of the other parties.
8.9 Further Assurances.
Each First Lien Collateral Agent, on behalf of itself and the First Lien Claimholders under the First Lien Documents, and each Second
Lien Collateral Agent, on behalf of itself and the related Second Lien Claimholders under the Second Lien Financing Documents, and each
Obligor, agrees that each of them shall take such further action and shall execute and deliver such additional documents and instruments
(in recordable form, if requested) as the Directing First Lien Collateral Agent or the Directing Second Lien Collateral Agent may reasonably
request to effectuate the terms of and the Lien priorities contemplated by this Agreement. Each First Lien Claimholder, by its acceptance
of the benefits of the First Lien Documents, agrees to be bound by the agreements herein made by it and the First Lien Collateral Agent
representing it, on its behalf. Each Second Lien Claimholder, by its acceptance of the benefits of the Second Lien Financing Documents,
agrees to be bound by the agreements herein made by it and the Second Lien Collateral Agent representing it, on its behalf.
8.10 CHOICE OF LAW. THIS
AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY)
OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8.11 Binding on Successors
and Assigns. This Agreement shall be binding upon each First Lien Collateral Agent, the First Lien Claimholders, each Second Lien
Collateral Agent, the Second Lien Claimholders and their respective successors and permitted assigns. If any First Lien Collateral Agent
or any Second Lien Collateral Agent resigns or is replaced pursuant to the First Lien Documents or the Second Lien Financing Documents,
as applicable, its successor shall be deemed to be a party to this Agreement and shall have all the rights of, and be subject to all the
obligations of, this Agreement.
8.12 Headings. Section
headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
8.13 Counterparts. This
Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute
an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature
page of this Agreement or any document or instrument delivered in connection herewith by facsimile or other electronic transmission (including
“.pdf” or “.tif” format) shall be effective as delivery of a manually executed counterpart of this Agreement or
such other document or instrument, as applicable.
8.14 Authorization; Binding
Effect on Claimholders. By its signature, each Person executing this Agreement on behalf of a party hereto represents and warrants
to the other parties hereto that it is duly authorized to execute this Agreement. Each First Lien Claimholder and each Second Lien Claimholder,
by its acceptance of the benefits of the First Lien Documents and Second Lien Financing Documents, as the case may be, agrees to be bound
by the agreements made herein, including, for the avoidance of doubt, agreements made by any Collateral Agent on its behalf.
8.15 Exclusive
Means of Exercising Rights under this Agreement.
(a) The First Lien
Claimholders shall be deemed to have irrevocably appointed the Directing First Lien Collateral Agent as their exclusive agent
hereunder. Consistent with such appointment, the First Lien Claimholders further shall be deemed to have agreed that only the
Directing First Lien Collateral Agent (and not any individual claimholder or group of claimholders) as agent for the First Lien
Claimholders, or any of the Directing First Lien Collateral Agent’s agents, shall have the right on their behalf to exercise
any rights, powers, and/or remedies under or in connection with this Agreement (including bringing any action to interpret or
otherwise enforce the provisions of this Agreement); provided that (i) holders of the Hedging Obligations and the Banking
Services Obligations may exercise customary netting and set off rights under the First Lien Hedging Agreements and Banking Services
Agreements to which they are, respectively, a party, (ii) cash collateral may be held pursuant to the terms of the First Lien
Documents (including any relating to Hedge Agreements) and any such individual First Lien Claimholder may act against such cash
collateral in accordance with the terms of the relevant First Lien Document or applicable law and (iii) First Lien Claimholders may
exercise customary rights of setoff against depository or other accounts maintained with them in accordance with the terms of the
relevant First Lien Document or applicable law. Specifically, but without limiting the generality of the foregoing, each First Lien
Claimholder, other than the Directing First Lien Collateral Agent acting at the direction of, or pursuant to a grant of authority
by, the Required First Lien Claimholders, or group of First Lien Claimholders shall not be entitled to take or file, but instead
shall be precluded from taking or filing (whether in any Insolvency or Liquidation Proceeding or otherwise), any action, judicial or
otherwise, to enforce any right or power or pursue any remedy under this Agreement (including any declaratory judgment or other
action to interpret or otherwise enforce the provisions of this Agreement), except solely as provided in the proviso in the
immediately preceding sentence.
(b) The
Second Lien Claimholders shall be deemed to have irrevocably appointed the Directing Second Lien Collateral Agent as their exclusive agent
hereunder. Consistent with such appointment, the Second Lien Claimholders further shall be deemed to have agreed that only the Directing
Second Lien Collateral Agent (and not any individual claimholder or group of claimholders) as agent for the Second Lien Claimholders,
or any of the Directing Second Lien Collateral Agent’s agents, shall have the right on their behalf to exercise any rights, powers,
and/or remedies under or in connection with this Agreement (including bringing any action to interpret or otherwise enforce the provisions
of this Agreement); provided that Second Lien Claimholders may exercise customary rights of setoff against depository or other
accounts maintained with them in accordance with the terms of the relevant Second Lien Financing Document or applicable law. Specifically,
but without limiting the generality of the foregoing, each Second Lien Claimholder, other than the Directing Second Lien Collateral Agent
acting at the direction of the requisite holders of the Second Lien Obligations, or group of Second Lien Claimholders shall not be entitled
to take or file, but instead shall be precluded from taking or filing (whether in any Insolvency or Liquidation Proceeding or otherwise),
any action, judicial or otherwise, to enforce any right or power or pursue any remedy under this Agreement (including any declaratory
judgment or other action to interpret or otherwise enforce the provisions of this Agreement), except solely as provided in the proviso
in the immediately preceding sentence.
8.16 No Third Party Beneficiaries;
Provisions Solely to Define Relative Rights. This Agreement and the rights and benefits hereof shall inure to the benefit of each
of the parties hereto and its respective successors and assigns and shall inure to the benefit of each of the First Lien Claimholders
and the Second Lien Claimholders. The provisions of this Agreement are and are intended solely for the purpose of defining the relative
rights of each First Lien Collateral Agent and the First Lien Claimholders, on the one hand, and each Second Lien Collateral Agent and
the Second Lien Claimholders, on the other hand. Except as otherwise expressly set forth herein, none of the Obligors, nor any creditor
thereof, shall have any rights hereunder and no Obligor or any creditor thereof (other than the First Lien Collateral Agent, the First
Lien Claimholders, the Second Lien Collateral Agent and the Second Lien Claimholders) may rely on the terms hereof, other than the Obligors
under Section 8.3 and under any provision hereof purporting to preserve any right of, or directly affecting, any Obligor under
this Agreement, any First Lien Document or any Second Lien Financing Document, including, but not limited to, Sections 3.1 (as to the
definition of “Standstill Period”), 4.1, 5.1, 5.2, 5.3, 5.4, 5.6, 5.7, 5.8 ,6.1, 6.2, 8.1, 8.2, 8.3, 8.6, 8.7, 8.8, 8.9, 8.10,
8.11, 8.13, 8.14, 8.15, this Section 8.16, Sections 8.17, 8.18 and 8.21. Nothing in this Agreement is intended to or shall impair the
obligations of the Obligors, which are absolute and unconditional, to pay the First Lien Obligations and the Second Lien Obligations as
and when the same shall become due and payable in accordance with their terms.
8.17 No Indirect Actions.
Unless otherwise expressly stated, if a party may not take an action under this Agreement, then it may not take that action indirectly,
or support any other Person in taking that action directly or indirectly. “Taking an action indirectly” means taking an action
that is not expressly prohibited for the party but is intended to have substantially the same effects as the prohibited action.
8.18 Obligors;
Additional Obligors. It is understood and agreed that Holdings, the Borrower and each other Obligor on the date of this
Agreement shall constitute the original Obligors party hereto. The original Obligors hereby covenant and agree to cause each
subsidiary of Holdings which becomes a “Subsidiary Guarantor” (as defined in the First Lien Credit Agreement and/or any
Additional First Lien Obligations Agreement or the Second Lien Credit Agreement and/or any Additional Second Lien Obligations
Agreement, as applicable) after the date hereof to become a party hereto (as an Obligor) by duly executing and delivering a
counterpart of the Intercreditor Joinder Agreement in the form of Exhibit A hereto to the Directing First Lien Collateral
Agent in accordance with the relevant provisions of the First Lien Credit Agreement. The parties hereto further agree that,
notwithstanding any failure to take the actions required by the immediately preceding sentence, each Person which becomes a
“Subsidiary Guarantor” (as defined under the First Lien Credit Agreement and/or any Additional First Lien Obligations
Agreement or the Second Lien Credit Agreement and/or any Additional Second Lien Obligations Agreement, as applicable) at any time
(and any security granted by any such Person pursuant to the terms of the First Lien Credit Agreement and Second Lien Credit
Agreement) shall be subject to the provisions hereof as fully as if same constituted an Obligor party hereto and had complied with
the requirements of the immediately preceding sentence.
8.19 Right of First Lien
Collateral Agent to Continue. Any Person serving as a First Lien Collateral Agent shall be entitled to continue, including to continue
to perform his, her or its rights, obligations and duties, as a First Lien Collateral Agent, notwithstanding whether any such Person has
served or is serving as a Second Lien Collateral Agent. Without limiting the generality of the preceding sentence of this Section 8.19,
any Person serving as a First Lien Collateral Agent shall be entitled to continue to so serve in such capacity (including to continue
to perform any of such First Lien Collateral Agent’s rights, obligations, and/or duties) even if any such Person has resigned as
a Second Lien Collateral Agent, but such resignation has not become effective for any reason, including because a successor Second Lien
Collateral Agent has not been appointed or has accepted such appointment, without any liability to any of the Second Lien Claimholders
by virtue of any such resignation and any of the circumstances relating in any manner whatsoever to such resignation.
8.20 Second Lien Claimholders.
Notwithstanding anything to the contrary in this Agreement, it is understood and agreed that this Agreement only applies to the Second
Lien Claimholders in their capacities as holders of the Second Lien Obligations. Without limiting the foregoing, this Agreement does not
restrict or apply to the Second Lien Claimholders in their capacities as holders of any Indebtedness or other obligations of the Obligors
other than the Second Lien Obligations, or in their capacities as holders of equity interests of the Obligors.
8.21 Additional Lien Obligations.
The Obligors will be permitted from time to time to designate as an additional holder of First Lien Obligations and/or Second Lien Obligations
hereunder each Person who is, or who becomes or who is to become, the holder of any Additional Lien Obligations (or the Additional Lien
Obligations Agent in respect of such Additional Lien Obligations). Upon the issuance or incurrence of any such Additional Lien Obligations:
(a) the
Borrower shall deliver to the Directing First Lien Collateral Agent and the Directing Second Lien Collateral Agent an officer’s
certificate stating that the applicable Obligors intend to enter or have entered into an Additional Lien Obligations Agreement and certifying
that the issuance or incurrence of such Additional Lien Obligations and the Liens securing such Additional Lien Obligations are permitted
by the then extant First Lien Credit Agreement, the Second Lien Credit Agreement and each then extant Additional First Lien Obligations
Agreement and Additional Second Lien Obligations Agreement, as applicable. Any Additional Lien Obligations Agent, First Lien Collateral
Agent and Second Lien Collateral Agent shall be entitled to rely conclusively on the determination of the Borrower that such issuance
and/or incurrence does not violate the provisions of the First Lien Documents or the Second Lien Financing Documents if such determination
is set forth in such officer’s certificate delivered to the Directing First Lien Collateral Agent and the Directing Second Lien
Collateral Agent; provided, however, that such determination will not affect whether or not the Obligors have complied with
their undertakings in the First Lien Documents or the Second Lien Financing Documents;
(b) the
Additional Liens Obligations Agent for such Additional Lien Obligations shall execute and deliver to the Directing First Lien Collateral
Agent and the Directing Second Lien Collateral Agent a joinder agreement in form and substance reasonably satisfactory to the Directing
First Lien Collateral Agent and the Directing Second Lien Collateral Agent acknowledging that such holders shall be bound by the terms
hereof to the extent applicable to First Lien Claimholders or Second Lien Claimholders, as applicable; and
(c) each
existing First Lien Collateral Agent and Second Lien Collateral Agent shall promptly enter into such documents and agreements (including
amendments, restatements, amendments and restatements, supplements or other modifications to this Agreement) as the Borrower, any existing
First Lien Collateral Agent or existing Second Lien Collateral Agent (but no other First Lien Claimholder or Second Lien Claimholder)
or the Additional Lien Obligations Agent may reasonably request in order to provide to it the rights, remedies and powers and authorities
contemplated hereby, in each case consistent in all respects with the terms of this Agreement; provided that, for the avoidance
of doubt and notwithstanding anything in this Agreement to the contrary, it is understood and agreed that any such amendment, restatement,
amendment and restatement, supplement or other modification to this Agreement requested pursuant to this clause (c) may be entered
into by the existing First Lien Collateral Agents and Second Lien Collateral Agents without the consent of any other First Lien Claimholder
or Second Lien Claimholder to effect the provisions of this Section 8.21 and may contain additional intercreditor terms applicable
solely to the holders of such Additional Lien Obligations vis-à-vis the holders of the relevant obligations hereunder or
the holders of such Additional Lien Obligations vis-à-vis the Directing First Lien Collateral Agent and the First Lien Claimholders
or the Directing Second Lien Collateral Agent and the Second Lien Claimholders, as applicable.
8.22 Additional Intercreditor
Agreements. (a) Each party hereto agrees that the First Lien Claimholders (as among themselves) and the Second Lien Claimholders (as
among themselves) may each enter into intercreditor agreements (or similar arrangements) with the applicable First Lien Collateral Agents
or Second Lien Collateral Agents, as the case may be, governing the rights, benefits and privileges as among the First Lien Claimholders
in respect of any or all of the First Lien Collateral, this Agreement and the First Lien Collateral Documents or as among the Second Lien
Claimholders in respect of any or all of the Second Lien Collateral, this Agreement or the Second Lien Collateral Documents, as the case
may be, including as to the application of proceeds of any Collateral, voting rights, control of any Collateral and waivers with respect
to any Collateral, in each case so long as the terms thereof do not violate or conflict with the terms of this Agreement or the First
Lien Documents or the Second Lien Financing Documents, as applicable. In any event, if a respective intercreditor agreement (or similar
arrangement) exists, the provisions thereof shall not be (or be construed to be) an amendment, modification or other change to this Agreement
or any other First Lien Document or Second Lien Financing Document, and the provisions of this Agreement and the other First Lien Documents
and Second Lien Financing Documents shall remain in full force and effect in accordance with the terms hereof and thereof (as such provisions
may be amended, modified or otherwise supplemented from time to time in accordance with the terms thereof, including to give effect to
any intercreditor agreement (or similar arrangement)).
(b) In the event that the
Borrower or any of its subsidiaries incurs any obligations in respect of Indebtedness that is permitted by the then extant First Lien
Documents and the Second Lien Financing Documents to be secured by a Lien on any Collateral that is junior to the Liens thereon securing
any First Lien Obligations and such obligations are not designated by the Borrower as Second Lien Obligations, then the First Lien Collateral
Agents and/or the Second Lien Collateral Agents shall upon the request of the Borrower enter into an “Acceptable Intercreditor
Agreement” (as defined in the First Lien Credit Agreement and the Second Lien Credit Agreement on the date hereof) with the holders
of such other obligations (or their agent, trustee or other representative) to reflect the relative Lien priorities of such parties with
respect to the Collateral (or the relevant portion thereof) and governing the relative rights, benefits and privileges as among such
parties in respect of such Collateral, including as to application of the proceeds of such Collateral, voting rights, control of such
Collateral and waivers with respect to such Collateral, in each case, so long as such secured obligations are not prohibited by, and
the terms of such Acceptable Intercreditor Agreement do not violate or conflict with, the provisions of this Agreement or any of the
First Lien Documents or Second Lien Financing Documents, as the case may be. If any such Acceptable Intercreditor Agreement (or similar
arrangement) is entered into, the provisions thereof shall not be (or be construed to be) an amendment, modification or other change
to this Agreement or any First Lien Documents or Second Lien Financing Documents, and the provisions of this Agreement, the First Lien
Documents and the Second Lien Financing Documents shall remain in full force and effect in accordance with the terms hereof and thereof
(as such provisions may be amended, modified or otherwise supplemented from time to time in accordance with the respective terms thereof,
including to give effect to any Acceptable Intercreditor Agreement (or similar arrangement)) and in the event of any conflict between
the terms of this Agreement and the terms of such Acceptable Intercreditor Agreement as it relates to the First Lien Claimholders on
the one hand and the Second Lien Claimholders on the other hand, the provisions of this Agreement shall govern and control.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first written above.
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Collateral Agent
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JPMorgan Chase Bank, N.A.,
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as First Lien Credit Agreement Collateral Agent
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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Address for Notices:
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JPMorgan Chase Bank, N.A.
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[383 Madison Avenue
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New York, NY 10179
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Attention:
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Telephone: +1 212 [ - ]
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Email:[ ]]
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[Signature Page to Bowlmor Intercreditor Agreement]
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Collateral Agent
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Credit Suisse AG, Cayman Islands Branch
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as Second Lien Credit Agreement Collateral Agent
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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Address for Notices:
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Credit Suisse AG
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[Eleven Madison Avenue
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New York, NY 10010
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Attention:
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Telephone: +1 212 [ - ]
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Email:[ ]]
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[Signature Page to Bowlmor Intercreditor Agreement]
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Acknowledged and Agreed to by:
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KINGPIN INTERMEDIATE HOLDINGS LLC,
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as Obligor
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By:
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Name:
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Title:
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Address for Notices:
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[
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]
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with copy to (which shall not constitute notice to any Obligor):
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Atairos Group, Inc.
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620 Fifth Avenue, Sixth Floor
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New York, New York 10020
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Telephone: +1 646 690-5210
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Attention: Alexander D. Evans
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Email:
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BOWLMOR AMF CORP.,
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as Obligor
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By:
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Name:
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Title:
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[Signature Page to Bowlmor Intercreditor Agreement]
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[ ]
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as Obligor
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By:
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Name:
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Title:
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Address for Notices:
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[
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Telephone:
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Attention:
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Email: ]
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[ ],
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as Obligor
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By:
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Name:
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Title:
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[ ],
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as Obligor
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By:
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Name:
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Title:
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[ ],
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as Obligor
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By:
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Name:
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Title:
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]
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[Signature Page to Bowlmor Intercreditor Agreement]
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By:
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[ ], as sole member
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Name:
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Title:
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[Signature Page to Bowlmor Intercreditor Agreement]
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By:
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[ ], as sole member
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Name:
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Title:
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[Signature Page to Bowlmor Intercreditor Agreement]
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By:
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[ ], as sole member
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Name:
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Title:
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[Signature Page to Bowlmor Intercreditor Agreement]
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By:
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[ ], as sole member
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By:
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Name:
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[Signature Page to Bowlmor Intercreditor Agreement]
FORM OF INTERCREDITOR JOINDER AGREEMENT
Reference is made
to the Intercreditor Agreement, dated as of July 3, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “Intercreditor Agreement”), among inter alios JPMorgan Chase Bank, N.A., in its capacity
as collateral agent for the holders of the First Lien Obligations, Credit Suisse AG, in its capacity as collateral agent for the holders
of the Second Lien Obligations and Kingpin Intermediate Holdings LLC, a Delaware limited liability company and certain other Persons party
or that may become party thereto from time to time. Capitalized terms used but not defined herein shall have the meanings assigned to
such terms in the Intercreditor Agreement.
This Intercreditor
Joinder Agreement, dated as of [●] [●], 201[●] (this “Joinder Agreement”), is being delivered pursuant
to requirements of the Intercreditor Agreement.
1. Joinder. The undersigned,
[●], a [●], hereby agrees to become party to the Intercreditor Agreement as an Obligor thereunder for all purposes
thereof on the terms set forth therein, and to be bound by the terms, conditions and provisions of the Intercreditor Agreement as
fully as if the undersigned had executed and delivered the Intercreditor Agreement as of the date thereof.
2. Agreements.
The undersigned Obligor hereby agrees, for the enforceable benefit of all existing and future First Lien Claimholders and all existing
and future Second Lien Claimholders that the undersigned is bound by the terms, conditions and provisions of the Intercreditor Agreement
to the extent set forth therein.
3. Notice
Information. The address of the undersigned Obligor for purposes of all notices and other communications hereunder and under the Intercreditor
Agreement is [●], Attention of [●] (Facsimile No. [●], electronic mail address: [●]).
4. Counterparts.
This Joinder Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken
together shall constitute one contract. Delivery of an executed signature page to this Joinder by facsimile transmission or by email as
a “.pdf” or “.tif” attachment shall be as effective as delivery of a manually signed counterpart of this Joinder.
5. Governing Law. THIS JOINDER AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
6. Loan
Document. This Joinder shall constitute a “Loan Document”, under and as defined in, each of the First Lien Credit Agreement
and Second Lien Credit Agreement.
7. Miscellaneous.
The provisions of Section 8 of the Intercreditor Agreement shall apply with like effect to this Joinder Agreement.
[Signature Pages Follow]
IN WITNESS WHEREOF, the undersigned
has caused this Joinder Agreement to be duly executed by its authorized representative, and each of the First Lien Collateral Agent and
the Second Lien Collateral Agent has caused the same to be accepted by its authorized representative, as of the day and year first above
written.
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[NAME OF OBLIGOR],
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as an Obligor
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By:
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Name:
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Title:
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Acknowledged and Agreed to by:
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JPMORGAN CHASE BANK, N.A.,
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as Directing First Lien Collateral Agent,
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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CREDIT SUISSE AG,
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as Directing Second Lien Collateral Agent,
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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Exhibit
10.11
EXECUTION
VERSION
FIRST
INCREMENTAL AMENDMENT (this “Amendment”), dated as of March 28, 2018, to the First Lien Credit Agreement dated
as of July 3, 2017 (as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the
“Credit Agreement”) among Kingpin Intermediate Holdings LLC, as Borrower (as the successor to the initial borrower
A-B Merger Sub II LLC), Bowlero Corp. (f/k/a Bowlmor AMF Corp.), as Holdings (as the successor to initial Holdings A-B Merger Sub I Inc.),
the financial institutions party thereto as Lenders, JPMorgan Chase Bank, N.A. (“JPM”), as Administrative Agent and
the other parties thereto.
WHEREAS,
pursuant to Section 2.22 of the Credit Agreement, the Borrower has requested Incremental Term Loans in an aggregate principal amount
not exceeding $113,000,000 (the “New Term Facility” and the loans thereunder, “New Term Loans”),
the proceeds of which shall be used to (i) repay in full all outstanding amounts under the Second Lien Credit Agreement and (ii) pay
fees and expenses in connection with the foregoing and otherwise for general corporate purposes.
WHEREAS,
the Persons holding New Term Commitments (as defined below) are severally willing to make New Term Loans (the “New Term Lenders”)
on the First Amendment Effective Date (as defined below) in an aggregate amount equal to their respective New Term Commitments, subject
to the terms and conditions set forth in this Amendment.
WHEREAS,
immediately following the making of the New Term Loans, the Lenders party hereto, which constitute the “Required Lenders”,
are willing to amend the Credit Agreement as set forth in Section 3 hereof.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Defined Terms. Capitalized terms used and not otherwise defined herein have the meanings assigned to them in the Credit Agreement
as amended hereby.
SECTION
2. New Term Loans.
(a)
Subject to the terms and conditions set forth herein, each New Term Lender severally agrees to make New Term Loans to the Borrower on
the First Amendment Effective Date in an aggregate principal amount equal to its New Term Commitment, which shall be made available to
the Administrative Agent in immediately available funds in accordance with the Credit Agreement. The “New Term Commitment”
of any New Term Lender will be the amount set forth opposite such New Term Lender’s name on Schedule 1 hereto.
(b)
The New Term Loans shall comprise a single Class with the Initial Term Loans, and accordingly, shall have identical terms as the Initial
Term Loans after giving effect to this Amendment (including, without limitation, with respect to the Applicable Rate, Maturity Date,
scheduled amortization and terms of prepayment), and shall otherwise be subject to the provisions of the Credit Agreement and the other
Loan Documents. The Borrower shall use the proceeds of the New Term Loans as set forth in Section 5.11 of the Credit Agreement
(as amended hereby).
(c)
The parties hereto agree that for purposes of the calculation of the Effective Yield on the New Term Loans pursuant to Section
2.22(a)(v) of the Credit Agreement, the New Term Loans shall be deemed to have an identical Effective Yield equal to the
Effective Yield applicable to the Initial Term Loans funded on the Closing Date, notwithstanding any difference in the amount of any
original issue discount or upfront fees between the New Term Loans and such Initial Term Loans.
(d)
On the First Amendment Effective Date, each New Term Lender party hereto irrevocably consents to this Amendment and all modifications
to the Credit Agreement contemplated hereby.
(e)
Upon the occurrence of the First Amendment Effective Date, each New Term Lender shall have the rights and obligations of a Lender under
the Credit Agreement and under any other applicable Loan Documents.
(f)
Each of Holdings, the Borrower and each other Loan Party acknowledges and agrees that (i) the New Term Loans shall constitute Obligations
and have all the benefits thereof and the Borrower shall be liable for all Obligations with respect to all New Term Loans made to the
Borrower pursuant to this Amendment and (ii) all such Obligations shall constitute Guaranteed Obligations and shall be secured by the
Liens granted to the Administrative Agent for the benefit of the Secured Parites and entitled to the benefits of the Collateral Documents
and the Guarantee.
SECTION
3. Amendments. In accordance with Sections 2.22 and 9.02 of the Credit Agreement and effective as of the First Amendment Effective
Date, the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example:
stricken text) and to add the double-underlined text (indicated textually in the same
manner as the following example: double-underlined text) as
set forth in the conformed copy of the Credit Agreement attached as Annex A hereto.
SECTION
4. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, Holdings, the Borrower and each
other Loan Party each represents and warrants to the other parties hereto on the First Amendment Effective Date that:
(a)
(i) the execution, delivery and performance by such Loan Party of this Amendment (and the Credit Agreement, as amended hereby) is within
such Loan Party’s corporate or other organizational power and has been duly authorized by all necessary corporate or other organizational
action of each such Loan Party; and (ii) this Amendment has been duly executed and delivered by such Loan Party and is a legal, valid
and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to the Legal Reservations; and
(b)
the execution and delivery of this Amendment (and the Credit Agreement, as amended hereby) by each Loan Party and the performance by
such Loan Party thereof (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental
Authority, except (A) such as have been obtained or made and are in full force and effect, (B) in connection with the Perfection Requirements
or (C) such consents, approvals, registrations, filings, or other actions the failure to obtain or make which would not be reasonably
expected to have a Material Adverse Effect, (ii) will not violate any (A) of such Loan Party’s Organizational Documents or (B)
Requirements of Law applicable to such Loan Party which, in the case of this clause (ii), would reasonably be expected to have a Material
Adverse Effect, and (iii) will not violate or result in a default under (A) the Credit Agreement or (B) any other material Contractual
Obligation in respect of Indebtedness having an aggregate principal amount exceeding the Threshold Amount to which such Loan Party is
a party which, in the case of this clause (B), would reasonably be expected to result in a Material Adverse Effect.
SECTION
5. First Amendment Effective Date. This Amendment shall become effective as of the first date (the “First Amendment Effective
Date”) on which each of the following conditions shall have been satisfied (or waived by the Administrative Agent):
(a)
the Administrative Agent shall have received a counterpart signature page of this Amendment duly executed by Holdings, the Borrower and
each Loan Party, the Administrative Agent, each New Term Lender and certain other Lenders, who shall, collectively with the New Term
Lenders, represent (immediately after giving effect to this Amendment) the Required Lenders;
(b)
the Administrative Agent (or its counsel) shall have received a certificate signed by a Responsible Officer of each Loan Party referred
to in clause (a), in substantially the form delivered on the Closing Date (i) certifying that the articles of formation (or equivalent
document) of such Loan Party, certified by the appropriate Governmental Authority of the state of formation of such Loan Party, and the
operating agreement (or equivalent document) of such Loan Party, either (A) has not been amended since the Closing Date or (B) is attached
as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate
and certified therein as being the only amendments thereto as of such date) and certified as true and complete as of a recent date by
the appropriate Governmental Authority of the state of formation of such Loan Party, (ii) certifying that attached thereto are the resolutions
of the board of directors or other comparable managing body of such Loan Party approving the Amendment, the transactions contemplated
therein and authorizing execution and delivery thereof, certified by a Responsible Officer of such Loan Party as of the First Amendment
Effective Date to be true and correct and in force and effect as of such date, (iii) certifying as to the incumbency and genuineness
of the signatures of the officers or other authorized signatories of such Loan Party executing this Amendment and (iv) attaching the
good standing certificates described in clause (d) of this Section 5;
(c)
to the extent requested by the Administrative Agent, the Administrative Agent (or its counsel) shall have received, on behalf of itself
and the Lenders and each Issuing Bank on the First Amendment Effective Date, a customary written opinion of (i) Davis Polk & Wardwell
LLP, in its capacity as special New York counsel for Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its
capacity as special Delaware counsel for Holdings, the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity
as special Virginia counsel for Holdings, the Borrower and the Subsidiary Guarantors;
(d)
to the extent requested by the Administrative Agent, the Administrative Agent shall have received a certificate of good standing (to
the extent such concept exists in the relevant jurisdiction) with respect to such Loan Parties referred to in clause (a) (above) certified
as of a recent date by the appropriate Governmental Authority of the state of formation;
(e)
to the extent requested by the Administrative Agent, the Administrative Agent shall have received all documentation and other information,
at least two Business Days prior to the First Amendment Effective Date, required by regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (in each case to the extent so requested
no less than ten Business Days prior to the First Amendment Effective Date);
(f)
all fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent (including pursuant to Section
9.03 of the Credit Agreement and pursuant to Section 7 hereof) or any arranger pursuant to any engagement letter with the
Borrower on or before the First Amendment Effective Date shall have been (or shall substantially contemporaneously be) paid in full in
cash (and in the case of expenses, to the extent invoiced at least three Business Days prior to the First Amendment Effective Date);
(g)
the Administrative Agent shall have received a Borrowing Request in respect of the New Term Loans to be made on the First Amendment Effective
Date in accordance with the requirements of the Credit Agreement; and
(h)
no Event of Default under Sections 7.01(a), (f) or (g) of the Credit Agreement shall exist immediately prior to or after giving effect
to the effectiveness of this Amendment.
For
purposes of determining whether the conditions specified in this Section 5 have been satisfied on the date hereof, by funding
the New Term Loans, the Administrative Agent and each New Term Lender that has executed this Agreement (or an Assignment and Assumption
on the date hereof) shall be deemed to have consented to, waived, approved or accepted, or to be satisfied with, each document or other
matter required hereunder.
SECTION
6. Effect of Amendment.
(a)
Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise
affect the rights and remedies of the Lenders or Agents under the Credit Agreement or any other Loan Document, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any
other provision of the Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower to a consent to, or a waiver, amendment, modification
or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other
Loan Document in similar or different circumstances.
(b)
From and after the First Amendment Effective Date, (i) each reference in the Credit Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein”, or words of like import, and each reference to the “Credit Agreement” in any
other Loan Document shall be deemed a reference to the Credit Agreement as amended hereby and (ii) each reference in any Loan Document
to the “Term Lenders”, “Initial Term Loans”, “Term Loans” or “Term Facility” shall be
deemed a reference to the New Term Lenders, the New Term Loans or the New Term Facility.
(c)
This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents and
shall be deemed to be an “Incremental Facility Amendment”, as defined in the Credit Agreement.
(d)
Each party hereto acknowledges that this Amendment constitutes all notices or requests required under Section 2.22 of the Credit Agreement.
(e)
The Administrative Agent and each Lender party hereto consents to an Interest Period for the New Term Loans beginning on the First Amendment
Effective Date and ending on the last day of the Interest Period then in effect with respect to the Initial Term Loans outstanding immediately
prior to the effectiveness of this Amendment.
(f)
This Amendment shall not constitute a novation of the Credit Agreement or any other Loan Document.
SECTION
7. Expenses. The Borrower agrees to reimburse the Administrative Agent for its reasonable and documented out-of-pocket expenses
incurred by it in connection with this Amendment, including the reasonable and documented fees, charges and disbursements of Cahill Gordon
& Reindel LLP, counsel for the Administrative Agent.
SECTION
8. Amendments; Severability. (a) Once effective, this Amendment may not be amended nor may any provision hereof be waived except
pursuant to Section 9.02 of the Credit Agreement.
(b)
If any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the
remaining provisions of this Amendment shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction
shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION
9. Ratification and Reaffirmation. Each Loan Party hereby ratifies and reaffirms: (a) its Obligations in respect of the Credit Agreement
and each of the other Loan Documents to which it is a party and all of the covenants, duties, indebtedness and liabilities under the
Credit Agreement and the other Loan Documents to which it is a party, (b) its prior grant and the validity of the Liens granted by it
pursuant to the Collateral Documents, with all such Liens continuing in full force and effect after giving effect to this Amendment and
(c) the Liens and security interests created in favor of the Administrative Agent for the benefit of the Secured Parties (including the
New Term Lenders) pursuant to each Collateral Document; which Liens shall continue to secure the Secured Obligations (as increased by
the New Term Loans), in each case, on and subject to the terms and conditions set forth in the Credit Agreement and the other Loan Documents.
SECTION
10. GOVERNING LAW; Waiver of Jury Trial; Jurisdiction. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions of Sections 9.10
and 9.11 of the Credit Agreement, as amended by this Amendment, are incorporated herein by reference, mutatis mutandis.
SECTION
11. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of
this Amendment.
SECTION
12. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. Delivery by facsimile or other electronic imaging means of an executed
counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto
duly authorized as of the date first written above.
|
|
KINGPIN
INTERMEDIATE HOLDINGS LLC, as Borrower
|
|
|
|
|
|
|
|
By:
|
/s/
Brett I. Parker
|
|
|
|
Name:
|
Brett
I. Parker
|
|
|
|
Title:
|
Chief
Financial Officer
|
|
|
|
|
|
|
|
BOWLERO
CORP., as Holdings
|
|
|
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By:
|
/s/
Brett I. Parker
|
|
|
|
Name:
|
Brett
I. Parker
|
|
|
|
Title:
|
Chief
Financial Officer
|
[Signature
Page to First Incremental Amendment]
|
Subsidiary Guarantors:
|
|
|
|
|
|
Kingpin
Intermediate LLC
Strike Holdings LLC
Bowlmor Lanes LLC
Bowlmor Times Square, LLC
Westwood Lanes, LLC
Strike Miami, LLC
Strike Cupertino VFP, LLC
Strike Tustin TDTL, LLC
Strike Consulting, LLC
Strike Long Island, LLC
Bowlero Jupiter Lanes, LLC
Leiserv, LLC
Brunswick Recreation LLC
Brunswick Zone XL Colorado Springs, LLC
Brunswick Zone XL Rockford LLC
Bowlero Scottsdale, LLC
Bowlero Leesburg, LLC
Bowlero Dania, LLC
AMF Worldwide Bowling Centers Holdings Inc.
AMF Bowling Centers Holdings Inc.
AMF Bowling Centers, Inc.
Texas Operations Holding Company, Inc.
AMF Bowling Worldwide, Inc.
Goode Bowling LLC
AMF Beverage Company of Oregon, Inc.
King Louie Lenexa, Inc.
Bush River Corporation
L’aigle D’or, Inc.
Brunswick Riverview Club, Inc.
Perry Hall Lounge, Inc.
|
|
|
By:
|
/s/ Brett
I. Parker
|
|
|
Name:
|
Brett I. Parker
|
|
|
Title:
|
Chief Financial Officer
|
[Signature
Page to First Incremental Amendment]
|
|
300,
Inc.
Texas Operations, LLC
|
|
|
|
|
|
|
By:
|
/s/ William
Dufour
|
|
|
Name:
|
William Dufour
|
|
|
Title:
|
President
|
|
|
The
Columbia Lounge, Inc.
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
Thomas F. Shannon
|
|
|
Title:
|
President
|
[Signature
Page to First Incremental Amendment]
|
|
300,
Inc.
Texas Operations, LLC
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
William Dufour
|
|
|
Title:
|
President
|
|
|
The
Columbia Lounge, Inc.
|
|
|
|
|
|
|
By:
|
/s/ Thomas
F. Shannon
|
|
|
Name:
|
Thomas F. Shannon
|
|
|
Title:
|
President
|
[Signature
Page to First Incremental Amendment]
|
|
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent and New Term Lender
|
|
|
|
|
|
|
By:
|
/s/
Davide Migliardi
|
|
|
|
Name:
|
Davide Migliardi
|
|
|
|
Title:
|
Vice President
|
[Signature
Page to First Incremental Amendment]
[Lender
signature pages on file with the Administrative Agent.]
SCHEDULE
1
|
New Term Lender
|
|
New Term Commitment
|
|
|
JPMorgan Chase Bank, N.A.
|
|
$
|
113,000,000
|
|
ANNEX
A
AMENDMENTS
TO CREDIT AGREEMENT
[Attached]
ANNEX
A
Adjusted
marked version reflecting changes made pursuant to the First Incremental Amendment.
Added
text shown underscored; deleted text shown strikethrough.
FIRST
LIEN CREDIT AGREEMENT
Dated
as of July 3, 2017
among
A-B
MERGER SUB II LLC
(to
be merged with and into KINGPIN INTERMEDIATE HOLDINGS LLC),
as the Borrower,
A-B
MERGER SUB I INC.
(to
be merged with and into BOWLMOR AMF CORP.),
as Holdings,
THE
FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent, Swingline Lender and an Issuing Bank,
and
JPMORGAN
CHASE BANK, N.A.,
CREDIT
SUISSE SECURITIES (USA) LLC and
GOLDMAN
SACHS BANK USA,
as
Joint Lead Arrangers
and
Joint Bookrunners
TABLE
OF CONTENTS
|
|
|
|
PAGE
|
|
ARTICLE 1
|
DEFINITIONS
|
2
|
|
|
Section 1.01.
|
Defined Terms
|
2
|
|
|
Section 1.02.
|
Classification
of Loans and Borrowings
|
76
|
|
|
Section 1.03.
|
Terms Generally
|
76
|
|
|
Section 1.04.
|
Accounting
Terms; GAAP
|
77
|
|
|
Section 1.05.
|
Effectuation
of Transactions
|
81
|
|
|
Section 1.06.
|
Timing of
Payment and Performance
|
81
|
|
|
Section 1.07.
|
Times of Day
|
81
|
|
|
Section 1.08.
|
Currency Equivalents
Generally
|
81
|
|
|
Section 1.09.
|
Cashless Rollovers
|
82
|
|
|
Section 1.10.
|
Alternative
Currencies
|
82
|
|
|
|
|
|
|
ARTICLE 2
|
THE CREDITS
|
83
|
|
|
Section 2.01.
|
Commitments
|
83
|
|
|
Section 2.02.
|
Loans and
Borrowings
|
83
|
|
|
Section 2.03.
|
Requests for
Borrowings
|
84
|
|
|
Section 2.04.
|
Swingline
Loans
|
85
|
|
|
Section 2.05.
|
Letters of
Credit
|
87
|
|
|
Section 2.06.
|
[Reserved]
|
92
|
|
|
Section 2.07.
|
Funding of
Borrowings
|
92
|
|
|
Section 2.08.
|
Type; Interest
Elections
|
93
|
|
|
Section 2.09.
|
Termination
and Reduction of Commitments
|
94
|
|
|
Section 2.10.
|
Repayment
of Loans; Evidence of Debt
|
95
|
|
|
Section 2.11.
|
Prepayment
of Loans
|
96
|
|
|
Section 2.12.
|
Fees
|
103
|
|
|
Section 2.13.
|
Interest
|
105
|
|
|
Section 2.14.
|
Alternate
Rate of Interest
|
106
|
|
|
Section 2.15.
|
Increased
Costs
|
106
|
|
|
Section 2.16.
|
Break Funding
Payments
|
107
|
|
|
Section 2.17.
|
Taxes
|
108
|
|
|
Section 2.18.
|
Payments Generally;
Allocation of Proceeds; Sharing of Payments
|
112
|
|
|
Section 2.19.
|
Mitigation
Obligations; Replacement of Lenders
|
114
|
|
|
Section 2.20.
|
Illegality
|
115
|
|
|
|
|
|
|
|
|
Section 2.21.
|
Defaulting Lenders
|
116
|
|
|
Section 2.22.
|
Incremental Credit Extensions
|
118
|
|
|
Section 2.23.
|
Extensions of Loans and Revolving Credit
Commitments
|
123
|
|
|
|
|
|
|
ARTICLE 3
|
REPRESENTATIONS AND WARRANTIES
|
126
|
|
|
Section 3.01.
|
Organization; Powers
|
126
|
|
|
Section 3.02.
|
Authorization; Enforceability
|
126
|
|
|
Section 3.03.
|
Governmental Approvals; No Conflicts
|
126
|
|
|
Section 3.04.
|
Financial Condition; No Material Adverse
Effect
|
127
|
|
|
Section 3.05.
|
Properties
|
127
|
|
|
Section 3.06.
|
Litigation and Environmental Matters
|
127
|
|
|
Section 3.07.
|
Compliance with Laws
|
128
|
|
|
Section 3.08.
|
Investment Company Status
|
128
|
|
|
Section 3.09.
|
Taxes
|
128
|
|
|
Section 3.10.
|
ERISA
|
128
|
|
|
Section 3.11.
|
Disclosure
|
128
|
|
|
Section 3.12.
|
Solvency
|
129
|
|
|
Section 3.13.
|
Capitalization and Subsidiaries
|
129
|
|
|
Section 3.14.
|
Security Interest in Collateral
|
129
|
|
|
Section 3.15.
|
Labor Disputes
|
130
|
|
|
Section 3.16.
|
Federal Reserve Regulations
|
130
|
|
|
Section 3.17.
|
Sanctions and Anti-Corruption Laws
|
130
|
|
|
|
|
|
|
ARTICLE 4
|
CONDITIONS
|
130
|
|
|
Section 4.01.
|
Closing Date
|
130
|
|
|
Section 4.02.
|
Each Credit Extension
|
134
|
|
|
|
|
|
|
ARTICLE 5
|
AFFIRMATIVE COVENANTS
|
134
|
|
|
Section 5.01.
|
Financial Statements and Other Reports
|
135
|
|
|
Section 5.02.
|
Existence
|
138
|
|
|
Section 5.03.
|
Payment of Taxes
|
138
|
|
|
Section 5.04.
|
Maintenance of Properties
|
138
|
|
|
Section 5.05.
|
Insurance
|
138
|
|
|
Section 5.06.
|
Inspections
|
139
|
|
|
Section 5.07.
|
Maintenance of Book and Records
|
139
|
|
|
Section 5.08.
|
Compliance with Laws
|
139
|
|
|
Section 5.09.
|
Hazardous Materials Activity
|
140
|
|
|
Section 5.10.
|
Designation of Subsidiaries
|
141
|
|
|
|
|
|
|
|
|
Section 5.11.
|
Use of Proceeds
|
141
|
|
|
Section 5.12.
|
Covenant to Guarantee Obligations and
Give Security
|
142
|
|
|
Section 5.13.
|
Maintenance of Ratings
|
143
|
|
|
Section 5.14.
|
Maintenance of Fiscal Year
|
143
|
|
|
Section 5.15.
|
Further Assurances
|
144
|
|
|
Section 5.16.
|
Conduct of Business
|
144
|
|
|
Section 5.17.
|
Annual Lender Call
|
144
|
|
|
Section 5.18.
|
Post-Closing Actions
|
144
|
|
|
|
|
|
|
ARTICLE 6
|
NEGATIVE COVENANTS
|
144
|
|
|
Section 6.01.
|
Indebtedness
|
144
|
|
|
Section 6.02.
|
Liens
|
151
|
|
|
Section 6.03.
|
No Further Negative Pledges
|
157
|
|
|
Section 6.04.
|
Restricted Payments; Certain Payments
of Indebtedness
|
159
|
|
|
Section 6.05.
|
[Reserved]
|
165
|
|
|
Section 6.06.
|
Investments
|
165
|
|
|
Section 6.07.
|
Fundamental Changes; Disposition of
Assets
|
170
|
|
|
Section 6.08.
|
Sale and Lease-Back Transactions
|
175
|
|
|
Section 6.09.
|
Transactions with Affiliates
|
175
|
|
|
Section 6.10.
|
[Reserved]
|
178
|
|
|
Section 6.11.
|
[Reserved]
|
178
|
|
|
Section 6.12.
|
Amendments of or Waivers with Respect
to Restricted Debt
|
178
|
|
|
Section 6.13.
|
[Reserved]
|
178
|
|
|
Section 6.14.
|
Permitted Activities of Holdings
|
178
|
|
|
Section 6.15.
|
Financial Covenant
|
180
|
|
|
|
|
|
|
ARTICLE 7
|
EVENTS OF DEFAULT
|
181
|
|
|
Section 7.01.
|
Events of Default
|
181
|
|
|
|
|
|
|
ARTICLE 8
|
THE ADMINISTRATIVE AGENT
|
184
|
|
|
|
|
|
|
ARTICLE 9
|
MISCELLANEOUS
|
192
|
|
|
Section 9.01.
|
Notices
|
192
|
|
|
Section 9.02.
|
Waivers; Amendments
|
194
|
|
|
Section 9.03.
|
Expenses; Indemnity
|
201
|
|
|
Section 9.04.
|
Waiver of Claim
|
203
|
|
|
Section 9.05.
|
Successors and Assigns
|
203
|
|
|
Section 9.06.
|
Survival
|
213
|
|
|
Section 9.07.
|
Counterparts; Integration; Effectiveness
|
213
|
|
|
|
|
|
|
|
|
Section 9.08.
|
Severability
|
214
|
|
|
Section 9.09.
|
Right of Setoff
|
214
|
|
|
Section 9.10.
|
Governing Law; Jurisdiction; Consent
to Service of Process
|
214
|
|
|
Section 9.11.
|
Waiver of Jury Trial
|
215
|
|
|
Section 9.12.
|
Headings
|
216
|
|
|
Section 9.13.
|
Confidentiality
|
216
|
|
|
Section 9.14.
|
No Fiduciary Duty
|
217
|
|
|
Section 9.15.
|
Several Obligations
|
217
|
|
|
Section 9.16.
|
USA PATRIOT Act
|
217
|
|
|
Section 9.17.
|
Disclosure
|
217
|
|
|
Section 9.18.
|
Appointment for Perfection
|
218
|
|
|
Section 9.19.
|
Interest Rate Limitation
|
218
|
|
|
Section 9.20.
|
Intercreditor Agreement
|
218
|
|
|
Section 9.21.
|
Conflicts
|
218
|
|
|
Section 9.22.
|
Release of Guarantors
|
219
|
|
|
Section 9.23.
|
Acknowledgement and Consent to Bail-In
of EEA Financial Institutions
|
219
|
|
SCHEDULES:
|
|
|
|
|
|
|
|
Schedule 1.01(a)
|
–
|
Commitment Schedule
|
|
Schedule 1.01(b)
|
–
|
Existing Letters of Credit
|
|
Schedule 1.01(c)
|
–
|
[Reserved]
|
|
Schedule 1.01(d)
|
–
|
[Reserved]
|
|
Schedule 1.01(e)
|
–
|
Existing Credit Facilities Excluded Properties
|
|
Schedule 1.01(f)
|
–
|
Excluded Properties
|
|
Schedule 1.01(g)
|
–
|
Liquor License Subsidiaries
|
|
Schedule 3.06
|
–
|
Litigation and Environmental Matters
|
|
Schedule 3.13
|
–
|
Subsidiaries
|
|
Schedule 5.10
|
–
|
Unrestricted Subsidiaries
|
|
Schedule 5.18
|
–
|
Post-Closing Actions
|
|
Schedule 6.01
|
–
|
Existing Indebtedness
|
|
Schedule 6.02
|
–
|
Existing Liens
|
|
Schedule 6.03
|
–
|
Negative Pledges
|
|
Schedule 6.06
|
–
|
Existing Investments
|
|
Schedule 6.07
|
–
|
Certain Dispositions
|
|
Schedule 9.01
|
–
|
Borrower’s Website Address for Electronic Delivery
|
|
|
|
|
|
EXHIBITS:
|
|
|
|
|
|
|
|
Exhibit A-1
|
–
|
Form of Assignment and Assumption
|
|
Exhibit A-2
|
–
|
Form of Affiliated Lender Assignment and Assumption
|
|
Exhibit B
|
–
|
Form of Borrowing Request
|
|
Exhibit C
|
–
|
Form of Compliance Certificate
|
|
Exhibit D
|
–
|
Form of Interest Election Request
|
|
Exhibit E
|
–
|
Form of Perfection Certificate
|
|
Exhibit F
|
–
|
[Reserved]
|
|
Exhibit G
|
–
|
Form of Promissory Note
|
|
Exhibit H-1
|
–
|
Form of Trademark Security Agreement
|
|
Exhibit H-2
|
–
|
Form of Patent Security Agreement
|
|
Exhibit H-3
|
–
|
Form of Copyright Security Agreement
|
|
Exhibit I
|
–
|
Form of Guaranty Agreement
|
|
Exhibit J
|
–
|
Form of Security Agreement
|
|
Exhibit K
|
–
|
Form of Letter of Credit Request
|
|
Exhibit L-1
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are
Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-2
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That
Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-3
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That
Are Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-4
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are
Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit M
|
–
|
Form of Solvency Certificate
|
|
Exhibit N
|
–
|
Form of Intercreditor Agreement
|
FIRST
LIEN CREDIT AGREEMENT
FIRST
LIEN CREDIT AGREEMENT, dated as of July 3, 2017 (this “Agreement”), by and among A-B Merger Sub I Inc., a Delaware
corporation (“Merger Sub 1”), A-B Merger Sub II LLC, a Delaware limited liability company (“Merger Sub 2”),
the Lenders from time to time party hereto, JPMorgan Chase Bank, N.A. (“JPM”), in its capacities as administrative
agent for the Lenders and collateral agent for the Secured Parties (in such capacities, together with its successor and permitted assigns,
the “Administrative Agent”), the Swingline Lender and an Issuing Bank, Credit Suisse AG, Cayman Islands Branch (“Credit
Suisse”), in its capacity as an Issuing Bank, and Goldman Sachs Bank USA (“GS Bank”), in its capacity as
an Issuing Bank, with JPM, Credit Suisse Securities (USA) LLC and Goldman Sachs Bank USA, as joint lead arrangers and joint bookrunners
(in such capacities, collectively, the “Arrangers”).
RECITALS
A.
Pursuant to the terms of the Acquisition Agreement, on the Closing Date, (i) Parent will acquire, by merger of Merger Sub 1 with and
into the Target, a majority of the issued and outstanding equity interests of the Target (with the Target being the surviving entity
of such merger) (the “Merger Sub 1 Merger”) and (ii) Merger Sub 2 will merge with and into Kingpin Intermediate (with
Kingpin Intermediate being the surviving entity of such merger) (the “Merger Sub 2 Merger”).
B.
To consummate the Transactions, certain of the Investors will directly or indirectly (including by way of repayment of existing debt
of the Target and/or payments to existing shareholders of the Target) make cash contributions to Merger Sub 1 and/or the Target (with
all such cash contributions to be in the form of (i) common equity, (ii) the Series A Preferred Stock, (iii) Qualified Capital Stock
or (iv) other preferred Capital Stock or other instruments (in the case of clause (iv), having terms reasonably acceptable to
the Administrative Agent) (any such equity or instruments “Permitted Equity”), which cash contributions shall be in
an aggregate amount that, when taken together with all equity interests (including restricted stock or options) retained, rolled-over
or directly or indirectly invested in Permitted Equity of Holdings and all Permitted Equity of Holdings issued to, or otherwise directly
or indirectly held or acquired by, any shareholders, directors or management of the Target (together, the “Equity Contribution”)
will be not less than 30% (the “Minimum Equity Percentage”) of the sum of (i) the aggregate principal amount of the
Credit Facilities and Second Lien Facility funded on the Closing Date (excluding (A) amounts drawn under the Revolving Facility on the
Closing Date for working capital purposes and/or purchase price adjustments, to fund Transaction Costs or to replace, backstop or cash
collateralize existing letters of credit and (B) any letters of credit outstanding on the Closing Date) and (ii) the Equity Contribution.
C.
To consummate the Transactions, the Borrower has requested that the Lenders extend credit in the form of (a) Initial Term Loans (excluding
the Amendment No. 1 Incremental Term Loans) in an original aggregate principal amount equal to $585,000,000 and (b) a Revolving
Facility with an available amount of $50,000,000, in each case, subject to increase as provided herein.
D.
To consummate the Transactions, the Borrower will also borrow term loans in an original aggregate principal amount equal to $110,000,000
under the Second Lien Credit Agreement.
E.
The Lenders are willing to extend the Initial Term Loans (excluding
the Amendment No. 1 Incremental Term Loans) and to make available the Revolving Facility, in each case on the
terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE
1 DEFINITIONS
Section
1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at
a rate determined by reference to the Alternate Base Rate.
“Acceptable
Intercreditor Agreement” means the Intercreditor Agreement, a Market Intercreditor Agreement, or another intercreditor agreement
that is reasonably satisfactory to the Administrative Agent (which may, if applicable, consist of a payment “waterfall”).
“ACH”
means automated clearing house transfers.
“Acquisition”
means the Mergers and the other transactions contemplated by the Acquisition Agreement.
“Acquisition
Agreement” means that certain Agreement and Plan of Merger, dated as of June 6, 2017, by and among, inter alios,
Parent, Merger Sub 1, Merger Sub 2, the Target and the other Persons party thereto.
“Additional
Agreement” has the meaning assigned to such term in Article 8.
“Additional
Commitment” means any commitment hereunder added pursuant to Sections 2.22, 2.23 or 9.02(c).
“Additional
Credit Facilities” means any credit facilities added pursuant to Sections 2.22, 2.23 or 9.02(c).
“Additional
Lender” has the meaning assigned to such term in Section 2.22(b).
“Additional
Letter of Credit Facility” means any letter of credit facility established by the Borrower and/or any Restricted Subsidiary
outside of this Agreement to obtain letters of credit required by customers, suppliers or landlords or otherwise required in the ordinary
course of business.
“Additional
Loans” means any Additional Revolving Loans and any Additional Term Loans.
“Additional
Revolving Credit Commitments” means any revolving credit commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Revolving Credit Exposure” means, with respect to any Person at any time, the aggregate outstanding principal amount at such
time of all Additional Revolving Loans of such Person, plus the aggregate amount at such time of such Person’s LC Exposure
and Swingline Exposure, in each case, attributable to its Additional Revolving Credit Commitment.
“Additional
Revolving Facility” means any revolving credit facility added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Revolving Lender” means any Lender with an Additional Revolving Credit Commitment or any Additional Revolving Credit
Exposure.
“Additional
Revolving Loans” means any revolving loan added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Term Loan Commitments” means any term loan commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(i).
“Additional
Term Loans” means any term loan added pursuant to Section 2.22, 2.23 or 9.02(c)(i).
“Adjustment
Date” means the date of delivery of financial statements required to be delivered pursuant to Section 5.01(a) or Section
5.01(b), as applicable.
“Administrative
Agent” has the meaning assigned to such term in the preamble to this Agreement.
“Administrative
Questionnaire” has the meaning assigned to such term in Section 2.22(d).
“Adverse
Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation
or arbitration (whether or not purportedly on behalf of Holdings, the Borrower or any of its Restricted Subsidiaries) at law or in equity,
or before or by any Governmental Authority, domestic or foreign, whether pending or, to the knowledge of Holdings, the Borrower or any
of its Restricted Subsidiaries, threatened in writing, against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries
or any property of Holdings, the Borrower or any of its Restricted Subsidiaries.
“Affiliate”
means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that
Person. No Person shall be an “Affiliate” of Holdings or any subsidiary thereof solely because it is an unrelated portfolio
company of the Sponsor and none of the Administrative Agent, the Arrangers, any Lender (other than any Affiliated Lender or any Debt
Fund Affiliate) or any of their respective Affiliates shall be considered an Affiliate of Holdings or any subsidiary thereof. For the
avoidance of doubt, the parties hereto agree that Comcast Corporation, a Pennsylvania corporation, is not an Affiliate of Holdings or
the Borrower as of the Closing Date.
“Affiliated
Lender” means any Non-Debt Fund Affiliate, Holdings, the Borrower and/or any of its Restricted Subsidiaries.
“Affiliated
Lender Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Affiliated Lender (with
the consent of any party whose consent is required by Section 9.05) and accepted by the Administrative Agent in the form of Exhibit
A-2 or any other form approved by the Administrative Agent and the Borrower.
“Affiliated
Lender Cap” has the meaning assigned to such term in Section 9.05(g)(iv).
“Aggregate
Revolving Credit Exposure” means, at any time, the aggregate amount of the Lenders’ Revolving Credit Exposures at
such time.
“Agreement”
has the meaning assigned to such term in the preamble to this First Lien Credit Agreement.
“Alternate
Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on
such day plus 0.50%, (b) to the extent ascertainable, the Published LIBO Rate (which rate shall be calculated based upon an
Interest Period of one month and shall be determined on a daily basis based on the rate determined on such day for such Interest
Period at 11:00 a.m. (London time)) plus 1.00%, (c) the Prime Rate and (d) solely with respect to Initial Term Loans, 2.00%.
Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Published LIBO
Rate, as the case may be, shall be effective from and including the effective date of such change in the Prime Rate, the Federal
Funds Effective Rate or the Published LIBO Rate, as the case may be.
“Amendment
No. 1” means the First Incremental Amendment, dated as of the Amendment No. 1 Effective Date, among the Borrower, the
other Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
“Amendment
No. 1 Effective Date” means March 28, 2018.
“Amendment
No. 1 Incremental Term Lender” means any Person with an Initial Term Loan Commitment to make Amendment No. 1 Incremental
Term Loans.
“Amendment
No. 1 Incremental Term Loans” means the Term Loans funded pursuant to Amendment No. 1 on the Amendment No. 1 Effective Date,
the proceeds of which shall be used to consummate the Amendment No. 1 Transactions, to pay fees and expenses in connection with the foregoing
and for general corporate purposes or other actions or purposes permitted hereunder.
“Amendment
No. 1 Transactions” means the entering into of Amendment No. 1, the incurrence of the Amendment No. 1 Incremental Term Loans,
the repayment in full of all outstanding amounts under the Second Lien Credit Agreement and the payment of all fees, expenses and other
costs incurred in connection with the foregoing.
“Applicable
Charges” has the meaning set forth in Section 9.19.
“Applicable
Percentage” means, (a) with respect to any Term Lender of any Class, a percentage equal to a fraction the numerator of which
is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan Commitments of such Term Lender under
such Class and the denominator of which is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan
Commitments of all Term Lenders under such Class and (b) with respect to any Revolving Lender of any Class, the percentage of the aggregate
amount of the Revolving Credit Commitments of such Class represented by such Lender’s Revolving Credit Commitment of such Class;
provided that for purposes of Section 2.21 and otherwise herein, when there is a Defaulting Lender, such Defaulting Lender’s
Revolving Credit Commitment shall be disregarded for any relevant calculation. In the case of clause (b), in the event that the
Revolving Credit Commitments of any Class have expired or been terminated, the Applicable Percentage of any Revolving Lender of such
Class shall be determined on the basis of the Revolving Credit Exposure of such Revolving Lender with respect to such Class, giving effect
to any assignments and to any Revolving Lender’s status as a Defaulting Lender at the time of determination.
“Applicable
Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Applicable
Rate” means, for any day, (a) for Initial Term Loans, (i) in the case of ABR Loans, 3.25% per annum and (ii) in the case
of LIBO Rate Loans, 4.25% per annum and (b) for Revolving Loans, the rate per annum set forth below under the caption “ABR
Spread” or “LIBO Rate Spread”, as the case may be, based upon the First Lien Leverage Ratio as of the last day of
the most recently ended Test Period; provided that until the first Adjustment Date following the completion of at least one full
Fiscal Quarter ended after the Closing Date, the “Applicable Rate” for any Revolving Loans shall be the applicable rate
per annum set forth below in Category 1.
|
First
Lien Leverage Ratio
|
ABR
Spread for
Revolving Loans
|
LIBO
Rate Spread for
Revolving
Loans
|
|
Category 1
|
|
|
|
Greater than 3.70 to 1.00
|
3.25%
|
4.25%
|
|
|
|
|
|
Category 2
|
|
|
Less
than or equal to 3.70 to 1.00 and
greater than 3.20 to 1.00
|
3.00%
|
4.00%
|
|
|
|
|
|
Category 3
|
|
|
|
Less
than or equal to 3.20 to 1.00
|
2.75%
|
3.75%
|
The
Applicable Rate for Revolving Loans shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the First
Lien Leverage Ratio in accordance with the table above; provided that if financial statements are not delivered when required
pursuant to Section 5.01(a) or (b), as applicable, the “Applicable Rate” for Revolving Loans shall be the
rate per annum set forth above in Category 1 until such financial statements are delivered in compliance with Section
5.01(a) or (b), as applicable.
The
Applicable Rate for any Class of Additional Revolving Loans or Additional Term Loans shall be as set forth in the applicable Refinancing
Amendment, Incremental Facility Amendment or Extension Amendment.
“Approved
Fund” means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding
or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered,
advised or managed by (a) such Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers,
advises or manages such Lender.
“Arrangers”
has the meaning assigned to such term in the preamble to this Agreement.
“Assignment Agreement” means, collectively,
each Assignment and Assumption and each Affiliated Lender Assignment and Assumption.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 9.05), and accepted by the Administrative Agent in the form of Exhibit A-1 or any
other form approved by the Administrative Agent and the Borrower.
“Attributable
Debt” means, at any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear
on a balance sheet of such Person (except in the footnotes thereto) prepared in accordance with GAAP, other than (a) Capital Lease
Obligations arising as a result of a modification of the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents
to the extent such modification is not prohibited hereunder (including the iStar Amendments), (b) Capital Lease Obligations arising
as a result of the classification of the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 or any Excluded Property Sale/Leaseback
Transaction as a Capital Lease and (c) Capital Lease Obligations arising as a result of any Excluded Property Sale/Leaseback
Transaction. For the avoidance of doubt, this definition of “Attributable Debt” shall be subject in all respects to the
provisions of Section 1.04(c).
“Auction”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Agent” means (a) the Administrative Agent or any of its Affiliates or (b) any other financial institution or advisor engaged
by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Auction pursuant
to the definition of “Dutch Auction”.
“Auction
Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction Notice”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction Party” has the meaning
set forth in the definition of “Dutch Auction”.
“Auction
Response Date” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Availability
Period” means the period from and including the Closing Date to but excluding the earliest of (a) the date of termination
of the Initial Revolving Credit Commitments pursuant to Section 2.09, (b) the date of termination of the Initial Revolving Credit
Commitment of each Initial Revolving Lender to make Initial Revolving Loans and the obligation of each Issuing Bank to issue Letters
of Credit pursuant to Section 7.01 and (c) the Initial Revolving Credit Maturity Date.
“Available
Amount” means, at any time, an amount equal to, without duplication:
(a)
the sum of:
(i)
the greater of $20,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; plus
(ii)
the CNI Growth Amount (provided that such amount shall not be available for any Restricted Payment pursuant to Section 6.04(a)(iii)(A)
or Restricted Debt Payment pursuant to Section 6.04(b)(vi)(A), in each case, if any Event of Default exists pursuant to Section 7.01(a)
or, with respect to the Borrower, Sections 7.01(f) or (g) at the time of determination pursuant to Section 1.04(e)); plus
(iii)
the amount of any capital contributions or other proceeds of any issuance of Capital Stock (other than any amounts (x) constituting
a Cure Amount or an Available Excluded Contribution Amount or proceeds of an issuance of Disqualified Capital Stock, (y) received
from the Borrower or any Restricted Subsidiary or (z) consisting of the proceeds of any loan or advance made pursuant to Section
6.06(h)(ii)) received as Cash equity by the Borrower or any of its Restricted Subsidiaries, plus the fair market value,
as determined by the Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Borrower
or any Restricted Subsidiary as a capital contribution or in return for any issuance of Capital Stock (other than any amounts (x)
constituting a Cure Amount or an Available Excluded Contribution Amount or proceeds of any issuance of Disqualified Capital Stock or
(y) received from the Borrower or any Restricted Subsidiary), in each case, during the period from and including the day immediately
following the Closing Date through and including such time; plus
(iv)
the aggregate principal amount of any Indebtedness or Disqualified Capital Stock, in each case, of the Borrower or any Restricted Subsidiary
issued after the Closing Date (other than Indebtedness or such Disqualified Capital Stock issued to the Borrower or any Restricted Subsidiary),
which has been converted into or exchanged for Capital Stock of the Borrower, any Restricted Subsidiary or any Parent Company that does
not constitute Disqualified Capital Stock, together with the fair market value of any Cash or Cash Equivalents (as determined by the
Borrower in good faith) and the fair market value (as determined by the Borrower in good faith) of any property or assets received by
the Borrower or such Restricted Subsidiary upon such exchange or conversion, in each case, during the period from and including the day
immediately following the Closing Date through and including such time; plus
(v)
the net proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately following
the Closing Date through and including such time in connection with the Disposition to any Person (other than the Borrower or any Restricted
Subsidiary) of any Investment made pursuant to Section 6.06(r)(i); plus
(vi)
to the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of
such Investment, the proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately
following the Closing Date through and including such time in connection with cash returns, cash profits, cash distributions and similar
cash amounts, including cash principal repayments of loans and interest payments on loans, in each case received in respect of any Investment
made after the Closing Date pursuant to Section 6.06(r)(i) or, without duplication, otherwise received by the Borrower or any
Restricted Subsidiary from an Unrestricted Subsidiary (including any proceeds received on account of any issuance of Capital Stock by
any Unrestricted Subsidiary (other than solely on account of the issuance of Capital Stock to the Borrower or any Restricted Subsidiary));
plus
(vii)
an amount equal to the sum of (A) the amount of any Investments by the Borrower or any Restricted Subsidiary pursuant to Section 6.06(r)(i)
in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary, (B) the amount of any Investments by the Borrower
or any Restricted Subsidiary pursuant to Section 6.06(r)(i) in any Unrestricted Subsidiary that has been merged, consolidated
or amalgamated with or into, or is liquidated, wound up or dissolved into, the Borrower or any Restricted Subsidiary and (C) the fair
market value (as determined by the Borrower in good faith) of the property or assets of any Unrestricted Subsidiary that have been transferred,
conveyed or otherwise distributed to the Borrower or any Restricted Subsidiary, in each case, during the period from and including the
day immediately following the Closing Date through and including such time; plus
(viii)
the amount of any Declined Proceeds; minus
(b)
an amount equal to the sum of (i) Restricted Payments made pursuant to Section 6.04(a)(iii)(A), plus (ii) Restricted Debt
Payments made pursuant to Section 6.04(b)(vi)(A), plus (iii) Investments made pursuant to Section 6.06(r)(i), in
each case, after the Closing Date and prior to such time, or contemporaneously therewith.
“Available
Excluded Contribution Amount” means the aggregate amount of Cash or Cash Equivalents or the fair market value of other assets
or property (as determined by the Borrower in good faith, but excluding any Cure Amount and any amounts that are used to increase the
Available Amount) received by the Borrower or any of its Restricted Subsidiaries after the Closing Date from:
(1)
contributions in respect of Qualified Capital Stock (other than any amounts or other assets received from the Borrower or any of its
Restricted Subsidiaries), and
(2)
the sale of Qualified Capital Stock of the Borrower or any of its Restricted Subsidiaries (other than (x) to the Borrower or any
Restricted Subsidiary of the Borrower, (y) pursuant to any management equity plan or stock option plan or any other management or
employee benefit plan or (z) with the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)),
in each case,
designated as Available Excluded Contribution Amounts pursuant to a certificate of a Responsible Officer on or promptly after the
date the relevant capital contribution is made or the relevant proceeds are received, as the case may be, and which are excluded
from the calculation of the Available Amount.
“Available
RDP Capacity Amount” means the amount of Restricted Debt Payments that may be made at the time of determination pursuant to
Section 6.04(b)(iv)(A) minus the amount of the Available RDP Capacity Amount utilized by the Borrower or any Restricted Subsidiary
to make Investments pursuant to Section 6.06(q)(ii).
“Available
RP Capacity Amount” means the amount of Restricted Payments that may be made at the time of determination pursuant to Sections
6.04(a)(ii)(D), (a)(vii) and (a)(x) minus the aggregate amount of the Available RP Capacity Amount utilized by the Borrower
or any Restricted Subsidiary to (a) make Investments pursuant to Section 6.06(q)(ii), (b) make Restricted Debt Payments pursuant
to Section 6.04(b)(iv)(B) or (c) incur Indebtedness pursuant to Section 6.01(ll).
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of
any liability of an EEA Financial Institution.
“Bail-In
Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European
Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described
in the EU Bail-In Legislation Schedule.
“Banking
Services” means each and any of the following bank services: commercial credit cards, stored value cards, debit cards, purchasing
cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including
depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee
credit card programs, cash pooling services, foreign exchange and currency management services and any arrangements or services similar
to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts.
“Banking
Services Obligations” means any and all obligations of any Loan Party, whether absolute or contingent and however and whenever
created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) (a)
under any arrangement that is in effect on the Closing Date between any Loan Party and a counterparty that is (or is an Affiliate of)
the Administrative Agent, any Lender or any Arranger as of the Closing Date or (b) under any arrangement that is entered into after the
Closing Date by any Loan Party with any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger
at the time such arrangement is entered into, in each case, in connection with Banking Services, in each case, that has been designated
to the Administrative Agent in writing by the Borrower as being Banking Services Obligations for purposes of the Loan Documents, it being
understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan
Documents and (B) to agree to be bound by the provisions of Article 8, Section 9.03 and Section 9.10 and the Intercreditor
Agreement and each other Acceptable Intercreditor Agreement, in each case as if it were a Lender.
“Bankruptcy
Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
“Board” means the Board of
Governors of the Federal Reserve System of the U.S.
“Bona
Fide Debt Fund” means any debt fund, investment vehicle, regulated bank entity or unregulated lending entity engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business and
which is managed, sponsored or advised by any Person controlling, controlled by or under common control with (a) any competitor of the
Borrower and/or any of its subsidiaries or (b) any Affiliate of such competitor, but, in each case, with respect to which no personnel
involved with any investment in such Person or the management, control or operation of such Person (i) makes, has the right to make or
participates with others in making any investment decisions with respect to such Person or (ii) has access to any information (other
than information that is publicly available) relating to Holdings, the Borrower or its subsidiaries or any entity that forms a part of
any of their respective businesses; it being understood and agreed that the term “Bona Fide Debt Fund” shall not include
any Person that is separately identified to the Arrangers or the Administrative Agent in accordance with clause (a)(i) or (a)(ii) of
the definition of “Disqualified Institution” or any reasonably identifiable Affiliate of any such Person on the basis of
such Affiliate’s name.
“Borrower”
means (a) initially, Merger Sub 2, and after giving effect to the Merger Sub 2 Merger, Kingpin Intermediate (in each case, prior to
the consummation of a transaction described in clause (b) of this definition) and (b) following the consummation of a
transaction permitted hereunder that results in a Successor Borrower, such Successor Borrower.
“Borrowing”
means any Loans of the same Type and Class made, converted or continued on the same date and, in the case of LIBO Rate Loans, as to which
a single Interest Period is in effect.
“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03 and substantially in the form
attached hereto as Exhibit B or such other form that is reasonably acceptable to the Administrative Agent and the Borrower.
“Bowling
Equipment” means all pin setting machines (pinsetters/pinspotters), ball returns, settees, scoring systems (including front
desk systems), lanes, lane cleaning machines, bumpers, approaches, foul lights, gutters and masking units.
“Business
Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized
or required by law to remain closed; provided that when used in connection with a LIBO Rate Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank
market.
“Capital
Expenditures” means, as applied to any Person for any period, the aggregate amount, without duplication, of all expenditures
(whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases)
that in accordance with GAAP, are, or are required to be included as, capital expenditures on the consolidated statement of cash flows
for such Person for such period.
“Capital
Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP (but subject to Section 1.04(c)), is or should be accounted for as a capital lease on the balance
sheet of that Person.
“Capital
Lease Obligations” means, with respect to any Person, the amount of obligations attributable to any Capital Lease capitalized
as a liability on the balance sheet (excluding the footnotes thereto) of such Person in accordance with GAAP.
“Capital
Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership
interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but
excluding for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing.
“Captive
Insurance Subsidiary” means any Restricted Subsidiary of the Borrower that is subject to regulation as an insurance company
(or any Restricted Subsidiary thereof).
“Cash”
or “cash” means money, currency or a credit balance in any Deposit Account, in each case determined in accordance
with GAAP.
“Cash
Equivalents” means, as at any date of determination, (a) readily marketable securities (i) issued or directly and
unconditionally guaranteed or insured as to interest and principal by the U.S., U.K., Canada or a member state of the European Union
or any political subdivision thereof or (ii) issued by any agency or instrumentality of the U.S., U.K., Canada or a member state of
the European Union or any political subdivision thereof, the obligations of which are backed by the full faith and credit of the
U.S., U.K., Canada or a member state of the European Union or any political subdivision thereof, in each case maturing within two
years after such date and, in each case, including repurchase agreements and reverse repurchase agreements relating thereto; (b)
readily marketable direct obligations issued by any state of the U.S. or any political subdivision of any such state or any public
instrumentality thereof or by any foreign government, in each case maturing within two years after such date and having, at the time
of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither
S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized statistical
rating agency) and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (c) commercial paper
maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at
least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized statistical rating agency); (d) deposits, money market
deposits, time deposit accounts, certificates of deposit or bankers’ acceptances (or similar instruments) maturing within one
year after such date and issued or accepted by any Lender or “Lender” in respect of the Second Lien Facility or by any
bank organized under, or authorized to operate as a bank under, the laws of the U.S., any state thereof or the District of Columbia
or any political subdivision thereof or any foreign bank or its branches or agencies and that has capital and surplus of not less
than $75,000,000 and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (e) securities with
maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank
having capital and surplus of not less than $75,000,000; (f) Indebtedness or Preferred Capital Stock issued by Persons with a rating
of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the time, neither is
issuing comparable ratings, then a comparable rating of another nationally recognized statistical rating organization) with
maturities of 12 months or less from the date of acquisition; (g) bills of exchange issued in the U.S., U.K., Canada, a member state
of the European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized
equivalent); (h) solely with respect to any Captive Insurance Subsidiary, any investment that such Captive Insurance Subsidiary is
not prohibited to make in accordance with applicable law; and (i) shares or other interests of any investment company, money market
mutual fund or other money market or enhanced high yield fund that invests 95% or more of its assets in instruments of the types
specified in clauses (a) through (h) above (which investment company or fund may also hold Cash pending investment or
distribution).
The
term “Cash Equivalents” shall also include (x) foreign currencies (in addition to Canadian dollars, Euros, Pound Sterling,
Mexican Pesos, any national currency of any member state of the European Union and any other currency held by the Borrower or any Restricted
Subsidiary in the ordinary course of business); provided that such amounts, if received by the Borrower or any Restricted Subsidiary,
are converted into Dollars, Canadian dollars, Euros, Pound Sterling, Mexican Pesos, any national currency of any member state of the
European Union or any other currency held by the Borrower or any Restricted Subsidiary in the ordinary course of business as promptly
as practicable (and in any event within ten Business Days following receipt thereof), (y) Investments of the type and maturity described
in clauses (a) through (i) above of foreign obligors, which Investments or obligors (or the parent companies thereof) have
the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (z) other short-term Investments
utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in Investments analogous to the Investments
described in clauses (a) through (i) and in this paragraph.
“Change
in Law” means (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender
or any Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or such Issuing Bank or by such
Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after the Closing Date (other than any such request, guideline or directive
to comply with any law, rule or regulation that was in effect on the Closing Date). For purposes of this definition and Section 2.15,
(x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives
thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority)
or U.S. regulatory authorities, in each case pursuant to Basel III, shall in each case described in clauses (a), (b) and (c)
above, be deemed to be a Change in Law, regardless of the date enacted, adopted, issued or implemented.
“Change
of Control” means the earliest to occur of:
(a)
at any time prior to a Qualifying IPO, the Permitted Holders ceasing to beneficially own, either directly or indirectly (within the
meaning of Rule 13d-3 and Rule 13d-5 under the Exchange Act as in effect on the Closing Date), Capital Stock representing more than
50% of the total voting power of all of the outstanding voting Capital Stock of Holdings;
(b)
at any time on or after a Qualifying IPO, the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2)
of the Exchange Act as in effect on the Closing Date), including any group acting for the purpose of acquiring, holding or disposing
of Securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act as in effect on the Closing Date), but excluding (i) any
Employee Benefit Plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) one or more Permitted
Holders and (iii) any underwriter in connection with any Qualifying IPO, of Capital Stock of Holdings representing more than the greater
of (x) 35% of the total voting power of all of the outstanding voting Capital Stock of Holdings and (y) the percentage of the total voting
power of all of the outstanding voting Capital Stock of Holdings collectively owned, directly or indirectly, beneficially by the Permitted
Holders; and
(c)
the Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of Holdings (other than during the pendency of any Holdings Reorganization
Transaction or Permitted Reorganization); it being understood and agreed for the avoidance of doubt that the Mergers shall not trigger
a “Change of Control” for any purpose under this Agreement or any other Loan Document.
Notwithstanding
the preceding or any provision of Section 13d-3 of the Exchange Act as in effect on the Closing Date, (i) a Person or group shall not
be deemed to beneficially own Capital Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant
agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of
the Capital Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more Permitted
Holders, the issued and outstanding Capital Stock of Holdings owned, directly or indirectly, by any Permitted Holders that are part of
such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of determining
whether a Change of Control has occurred so long as one or more Permitted Holders hold in excess of 50% of the issued and outstanding
Capital Stock owned, directly or indirectly, by such group and (iii) a Person or group will not be deemed to beneficially own the Capital
Stock of another Person as a result of its ownership of the Capital Stock or other securities of such other Person’s parent entity
(or related contractual rights) unless (A) it owns 50% or more of the total voting power of the Capital Stock entitled to vote for the
election of directors or board of managers of such parent entity and (B) such directors or managers elected by the Person or group have
a majority of the aggregate votes on the board of directors (or similar body) of such parent entity.
“Charge”
means any fee, loss, charge, expense, cost, accrual or reserve of any kind.
“Class”,
when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial
Term Loans, Additional Term Loans of any series established as a separate “Class” pursuant to Sections 2.22, 2.23
or 9.02(c)(i), Initial Revolving Loans or Additional Revolving Loans of any series established as a separate “Class”
pursuant to Sections 2.22, 2.23 or
9.02(c)(ii) or Swingline Loans, (b) any Commitment, refers to whether such Commitment is an Initial Term Loan Commitment, an Additional
Term Loan Commitment of any series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(i),
an Initial Revolving Credit Commitment or an Additional Revolving Credit Commitment of any series established as a separate “Class”
pursuant to Sections 2.22, 2.23 or 9.02(c)(ii), (c) any Lender, refers to whether such Lender has a Loan or Commitment
of a particular Class and (d) any Revolving Credit Exposure, refers to whether such Revolving Credit Exposure is attributable to a Revolving
Credit Commitment of a particular Class (or Revolving Loans incurred or Letters of Credit issued under a Revolving Credit Commitment
of a particular Class).
“Closing
Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02), which date is July 3, 2017.
“Closing
Date Material Adverse Effect” shall have the meaning assigned to the term “Company Material Adverse Effect” in
the Acquisition Agreement as in effect on the Closing Date (it being understood that capitalized terms used in such definition and defined
in the Acquisition Agreement shall have the meanings ascribed to such terms in the Acquisition Agreement as in effect on the Closing
Date).
“CNI
Growth Amount” means, at any date of determination, an amount (which amount shall not be less than zero) equal to 50% of Consolidated
Net Income for the cumulative period from the first day of the Fiscal Quarter of the Borrower during which the Closing Date occurs to
and including the last day of the most recently ended Fiscal Quarter of the Borrower prior to such date for which consolidated financial
statements of the Borrower are internally available (treated as one accounting period).
“Code”
means the Internal Revenue Code of 1986.
“Collateral”
means any and all property of any Loan Party subject to a Lien under any Collateral Document and any and all other property of any Loan
Party, now existing or hereafter acquired, that is or becomes subject to a Lien pursuant to any Collateral Document to secure the Secured
Obligations. For the avoidance of doubt, in no event shall “Collateral” include any Excluded Asset.
“Collateral
and Guarantee Requirement” means, at any time, subject to (x) the applicable limitations set forth in this Agreement and/or
any other Loan Document (including any Acceptable Intercreditor Agreement) and (y) the time periods (and extensions thereof) set forth
in Section 5.12, the requirement that:
(a)
the Administrative Agent shall have received;
(i)
(A) a joinder to the Loan Guaranty in substantially the form attached as an exhibit thereto, (B) a supplement to the Security Agreement
in substantially the form attached as an exhibit thereto, (C) if the respective Restricted Subsidiary required to comply with the requirements
set forth in this definition pursuant to Section 5.12 owns registrations of or applications for U.S. Patents, U.S. Trademarks
and/or U.S. Copyrights that constitute Collateral, an Intellectual Property Security Agreement in substantially the form attached as
an exhibit hereto, (D) a completed Perfection Certificate, (E) Uniform Commercial Code financing statements in appropriate form for filing
in such jurisdictions as the Administrative Agent may reasonably request and (F) an executed joinder to the Intercreditor Agreement in
substantially the form attached as an exhibit thereto; and
(ii)
each item of Collateral required to be delivered in physical form on or prior to such time pursuant to the Collateral Documents.
(b)
the Administrative Agent shall have received with respect to any Material Real Estate Asset (other than an Excluded Asset) acquired after
the Closing Date, a Mortgage and any necessary UCC fixture filing in respect thereof, in each case together with, to the extent customary
and appropriate (as reasonably determined by the Administrative Agent and the Borrower):
(i)
evidence that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any
corresponding UCC or equivalent fixture filing are in form suitable for filing or recording in all filing or recording offices that
the Administrative Agent may deem reasonably necessary in order to create a valid and subsisting Lien on such Material Real Estate
Asset in favor of the Administrative Agent for the benefit of the Secured Parties, (B) such Mortgage and any corresponding UCC or
equivalent fixture filings have been duly recorded or filed, as applicable and (C) all filing and recording taxes and fees have been
paid or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(ii)
a fully paid policy of lender’s title insurance (a “Mortgage Policy”) in an amount reasonably acceptable to
the Administrative Agent (not to exceed the fair market value of such Material Real Estate Asset (as determined by the Borrower in good
faith)) issued by a nationally recognized title insurance company in the applicable jurisdiction that is reasonably acceptable to the
Administrative Agent, insuring the relevant Mortgage as having created a valid subsisting Lien on the real property described therein
with the ranking or the priority which it is expressed to have in such Mortgage, subject only to Permitted Liens, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request to the extent the same are available in
the applicable jurisdiction;
(iii)
a customary legal opinion of local counsel for the relevant Loan Party in the jurisdiction in which such Material Real Estate Asset is
located and, if applicable, in the jurisdiction of formation of the relevant Loan Party, in each case as the Administrative Agent may
reasonably request; and
(iv)
(A) appraisals (if required under the Financial Institutions Reform Recovery and Enforcement Act of 1989, as amended) and (B) “Life-of-Loan”
flood certifications under Regulation H (together with evidence of federal flood insurance for any such Flood Hazard Property); provided
that the Administrative Agent may in its reasonable discretion accept any existing appraisal so long as such existing appraisal satisfies
any applicable local law requirements and sufficient for the applicable title insurance company to issue the endorsements referenced
in clause (ii) above.
Notwithstanding
any provision of any Loan Document to the contrary, if any mortgage tax or similar tax or charge is owed on the entire amount of the
Obligations evidenced hereby in connection with the delivery of a mortgage or UCC fixture filing pursuant to clause (b) above, then,
to the extent permitted by, and in accordance with, applicable Requirements of Law, the amount of such mortgage tax or similar tax or
charge shall be calculated based on the lesser of (x) the amount of the Obligations allocated to the applicable Material Real Estate
Asset and (y) the fair market value of the applicable Material Real Estate Asset at the time the Mortgage is entered into and determined
in a manner reasonably acceptable to Administrative Agent and the Borrower. Notwithstanding anything herein to the contrary, no Mortgage
will be executed and delivered with respect to any Material Real Estate Asset pursuant to the foregoing until the Administrative Agent
has received written notice of such Mortgage at least 45 days prior to such execution and delivery and has confirmed receipt of satisfactory
flood due diligence and evidence of compliance with the applicable Flood Insurance Laws.
“Collateral
Documents” means, collectively, (i) the Security Agreement, (ii) each Mortgage (if any), (iii) each Intellectual Property Security
Agreement, (iv) each Perfection Certificate, (v) any supplement to any of the foregoing delivered to the Administrative Agent pursuant
to the definition of “Collateral and Guarantee Requirement” and (vi) each of the other instruments and documents pursuant
to which any Loan Party grants a Lien on any assets as security for payment of the Secured Obligations.
“Commercial
Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection
with the purchase of any materials, goods or services by the Borrower or any of its Restricted Subsidiaries in the ordinary course of
business of such Person.
“Commercial
Tort Claim” has the meaning set forth in Article 9 of the UCC.
“Commitment”
means, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Initial Revolving Credit Commitment and Additional
Commitment, as applicable, in effect as of such time.
“Commitment
Fee Rate” means, on any date (a) with respect to the Initial Revolving Credit Commitment, subject to the provisions of the
last paragraph hereof, the applicable rate per annum set forth below based upon the First Lien Leverage Ratio as of the last day of the
most recently ended Test Period and (b) with respect to Additional Revolving Credit Commitments of any Class, the rate or rates per annum
specified in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment.
|
First
Lien Leverage Ratio
|
Commitment
Fee Rate
|
|
Category 1
|
|
|
Greater than 3.70 to 1.00
|
0.50%
|
|
|
|
|
Category 2
|
|
|
Equal to or less than 3.70 to 1.00
but greater than 3.20 to 1.00
|
0.375%
|
|
|
|
|
Category 3
|
|
|
Equal to or less than 3.20 to 1.00
|
0.25%
|
The
Commitment Fee Rate with respect to the Initial Revolving Credit Commitment shall be adjusted quarterly on a prospective basis on each
Adjustment Date based upon the First Lien Leverage Ratio in accordance with the table set forth above; provided that (a) until
the first Adjustment Date following the completion of at least one full Fiscal Quarter after the Closing Date, the Commitment Fee Rate
shall be the applicable rate per annum set forth above in Category 1 and (b) if financial statements are not delivered when required
pursuant to Section 5.01(a) or (b), as applicable, the Commitment Fee Rate shall be the rate per annum set forth above
in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b), as applicable.
“Commitment
Letter” means that certain Amended and Restated Commitment Letter, dated as of June 15, 2017, by and among, inter alios,
Parent and the Arrangers, as amended to date.
“Commitment
Schedule” means the Schedule attached hereto as Schedule 1.01(a).
“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Company
Competitor” means any competitor of the Borrower and/or any of its subsidiaries and/or the Target and/or any of its subsidiaries.
“Compliance
Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
“Confidential
Information” has the meaning assigned to such term in Section 9.13.
“Consolidated
Adjusted EBITDA” means, as to any Person for any period, an amount determined for such Person and its Restricted Subsidiaries
on a consolidated basis equal to the total of (a) Consolidated Net Income for such period plus (b) the sum, without duplication,
of (to the extent deducted in calculating Consolidated Net Income, other than in respect of clauses (x), (xi), (xii), (xiv), (xix), (xx), (xxi)
and (xxii) below) the amounts of:
(i)
Consolidated Interest Expense (including (A) fees and expenses paid to the Administrative Agent in connection with its services hereunder,
(B) other bank, administrative agency (or trustee) and financing fees (including rating agency fees and other fees in respect of any
Second Lien Facility), (C) costs of surety bonds in connection with financing activities (whether amortized or immediately expensed)
and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments, letters of credit, bank guarantees,
bankers’ acceptances or any similar facilities or financing and hedging agreements);
(ii)
(A) Taxes paid and any provision for Taxes, including income, profits, capital, foreign, federal, state, local, franchise and similar
Taxes, property Taxes, foreign withholding Taxes and foreign unreimbursed value added Taxes (including penalties and interest related
to any such Tax or arising from any Tax examination, and including pursuant to any Tax sharing arrangement or as a result of any Tax
distribution) of such Person paid or accrued during the relevant period and (B) any payments to a Parent Company in respect of Taxes
permitted to be made hereunder;
(iii)
(A) depreciation, (B) amortization, (C) any impairment Charge (including any bad debt expense) and (D) any asset write-off and/or
write-down;
(iv)
any non-cash Charge, including the excess of rent expense over actual Cash rent paid, including the benefit of lease incentives (in the
case of a charge) during such period due to the use of straight line rent for GAAP purposes (provided that if any such non-Cash
Charge represents an accrual or reserve for potential Cash items in any future period, such Person may determine not to add back such
non-Cash Charge in the then-current period);
(v) [reserved];
(vi)
Receivables Fees and the amount of loss or discount on the sale of Receivables Facility Assets and related assets to a Receivables Subsidiary
in connection with a Receivables Facility;
(vii)
the amount of management, monitoring, consulting, transaction, advisory, termination and similar fees and related indemnities and
expenses (including reimbursements), paid or accrued and payments made to any Investor (and/or its Affiliates or management
companies) (or prior to the Closing Date, the Existing Sponsor and/or its Affiliates or management companies) for any financial
advisory, consulting, financing, underwriting or placement services or in respect of other investment banking activities and other
transaction fees, and payments to outside directors of the Borrower or a Parent Company actually paid by or on behalf of, or accrued
by, such Person or any of its subsidiaries; provided that such payment is permitted under this Agreement;
(viii) [reserved];
(ix)
the amount of earn-out and other contingent consideration obligations (including to the extent accounted for as bonuses, compensation
or otherwise) incurred in connection with (A) the Transactions, (B) acquisitions and Investments completed prior to the Closing Date
and (C) any acquisition or other Investment permitted by this Agreement, in each case, which is paid or accrued during the applicable
period;
(x)
pro forma “run rate” cost savings, operating expense reductions, operational improvements and cost synergies (collectively,
“Expected Cost Savings”) (net of actual amounts realized) (1) that are reasonably identifiable, factually supportable
and projected by the Borrower in good faith to result from actions that have been taken or with respect to which substantial steps have
been taken or are expected to be taken (in the good faith determination of such Person) or (2) that have been identified to the Administrative
Agent prior to the Closing Date (including by inclusion in the Acquisition Agreement or the Sponsor’s model and quality of earnings
summaries delivered to the Arrangers on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality
of earnings summary) related to (A) the Transactions and (B) any permitted asset sale, acquisition (including the commencement of activities
constituting a business line), combination, Investment, Disposition (including the termination or discontinuance of activities constituting
a business line), operating improvement, restructuring, cost savings initiative, any similar initiative (including the effect of increased
pricing in customer contracts) and/or specified transaction, in each case prior to, on or after the Closing Date (any such operating
improvement, restructuring, cost savings initiative or similar initiative or specified transaction, a “Cost Saving Initiative”)
(in each case, calculated on a Pro Forma Basis as though such Expected Cost Savings and/or Cost Savings Initiative had been realized
in full on the first day of such period); provided, that the results of such Expected Cost Savings and/or Cost Saving Initiatives
are projected by the Borrower in good faith to result from actions that have been taken or with respect to which steps have been taken
or are expected to be taken (in the good faith determination of the Borrower) within 24 months after (i) with respect to the Transactions,
the Closing Date and (ii) with respect to any Cost Savings Initiative, the date of any such operating improvement, restructuring, cost
savings initiative or similar initiative or specified transaction;
(xi)
Charges attributable to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings
initiatives (including Cost Saving Initiatives), cost rationalization programs, operating expense reductions and/or synergies and/or
similar initiatives and/or programs (including in connection with any integration, restructuring or transition, any reconstruction,
decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, any office or facility opening and/or
pre-opening), including the following: any inventory optimization program and/or any curtailment, any business optimization Charge,
any restructuring Charge (including any Charge relating to any tax restructuring), any Charge relating to the closure or
consolidation of any office or facility (including but not limited to rent termination costs, moving costs and legal costs), any
systems implementation Charge, any severance Charge, any one time compensation Charge, any Charge relating to entry into a new
market, any Charge relating to rights fee arrangements (including any early terminations thereof), any Charge relating to any
strategic initiative or contract, any signing Charge, any Charge relating to any entry into new markets and contracts (including,
without limitation, any renewals, extensions or other modifications thereof) or exiting a market or contract, any retention or
completion Charge or bonus, any recruiting Charge, any lease run-off Charge, any expansion and/or relocation Charge, any Charge
associated with any modification or curtailment to any pension and post-retirement employee benefit plan, any software or other
intellectual property development Charge, any Charge associated with new systems design, any implementation Charge, any transition
Charge, any Charge associated with improvements to IT or accounting functions, losses related to temporary decreases in work volume
and expenses related to maintaining underutilized personnel, any transition Charge, any Charge in connection with unused warehouse
space, any Charge relating to a new contract, any consulting Charge and/or any corporate development Charge; provided, that, in the
case of any such Charge, the results of any such action relating to such Charge are projected by the Borrower in good faith to be
achieved within 24 months of the undertaking thereof;
(xii)
any Charge with respect to any liability or casualty event, business interruption or any product recall, (i) so long as such Person has
submitted in good faith, and reasonably expects to receive payment in connection with, a claim for reimbursement of such amounts under
its relevant insurance policy within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so
added back to the extent not so reimbursed within the next four Fiscal Quarters) or (ii) without duplication of amounts included in a
prior period under the preceding clause (i), to the extent such Charge is covered by insurance, indemnification or otherwise reimbursable
by a third party (whether or not then realized so long as the Borrower in good faith expects to receive proceeds arising out of such
indemnification, insurance or reimbursement obligation within the next four Fiscal Quarters) (it being understood that if the amount
received in cash under any such agreement in any period exceeds the amount of expense paid during such period, any excess amount received
may be carried forward and applied against any expense in any future period);
(xiii)
unrealized net losses in the fair market value of any arrangements under Hedge Agreements;
(xiv)
the amount of any Cash actually received by such Person (or the amount of the benefit of any netting arrangement resulting in reduced
Cash expenditures) during such period, and not included in Consolidated Net Income in any period, to the extent that any non-Cash gain
relating to such Cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA pursuant to clause
(c)(i) below for any previous period and not added back;
(xv)
the amount of any “bad debt” expense related to revenue earned prior to the Closing Date;
(xvi)
any net Charges included in the Borrower’s consolidated financial statements due to the application of Accounting Standards Codification
Topic 810 (“ASC 810”);
(xvii)
the amount of any non-controlling interest or minority interest Charge consisting of income attributable to minority equity interests
of third parties in any non- wholly owned Restricted Subsidiary;
(xviii)
the amount of any Charges (including facility operating losses) related to any de novo facility or any facility renovation, including
any construction, pre- opening/re-opening and start-up period prior to opening (or re-opening, as applicable), until such facility has
been open (or renovated) and operating for a period of 18 consecutive months;
(xix)
the amount of any earned or billed amounts or other revenue that is attributable to services performed during such period but is not
included in Consolidated Net Income for such period; it being understood that if such revenue is added back in calculating Consolidated
Adjusted EBITDA for such period, such revenue shall not be included in Consolidated Net Income in the period in which it is actually
recognized;
(xx)
any other adjustments, exclusions and add-backs (x) reflected in the Sponsor’s model and quality of earnings summaries delivered
to the Arrangers on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality of earnings summary)
or (y) that are consistent with Regulation S-X;
(xxi)
for the first 18 months following the opening of a de novo facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to such de novo facility for each month such de novo facility has been in operation
and (y) the 12-month average Consolidated Adjusted EBITDA for all similar facilities that have been in operation for a period of at least
18 months (as determined by the Borrower in good faith); provided that the aggregate amount added-back to Consolidated Adjusted
EBITDA solely pursuant to this clause (xxi) and clause (xxii) below (on an aggregate basis) shall not, for any period, exceed an amount
equal to 15% of Consolidated Adjusted EBITDA for such period, calculated prior to giving effect to such add-backs; and
(xxii)
for the first 18 months following the renovation of a facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to performance gains for such facility for each month such facility has been
in operation post-renovation and (y) the 12-month average Consolidated Adjusted EBITDA attributable to performance gains for all similar
facilities that have been in operation for a period of at least 18 months (as determined by the Borrower in good faith); provided
that the aggregate amount added-back to Consolidated Adjusted EBITDA solely pursuant to clause (xxi) above and this clause (xxii)
(on an aggregate basis) shall not, for any period, exceed an amount equal to 15% of Consolidated Adjusted EBITDA for such period, calculated
prior to giving effect to such add-backs;
minus
(c) to the extent such amounts increase Consolidated Net Income:
(i)
non-Cash gains or income; provided that if any non-Cash gain or income represents an accrual or deferred income in respect of
potential Cash items in any future period, such Person may determine not to deduct such non-Cash gain or income in the current period;
(ii)
unrealized net gains in the fair market value of any arrangements under Hedge Agreements;
(iii) [reserved];
(iv)
the amount added back to Consolidated Adjusted EBITDA pursuant to clause (b)(xii) above (as described in such clause) to the extent
the relevant business interruption insurance proceeds were not received within the time period required by such clause;
(v)
to the extent that such Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause
(b)(iv) above, the cash payment in respect thereof in the relevant future period;
(vi)
the excess of actual Cash rent paid over rent expense during such period due to the use of straight line rent for GAAP purposes;
(vii)
any Consolidated Net Income included in the Borrower’s consolidated financial statements due to the application of ASC 810; and
(viii)
the amount of any non-controlling interest or minority interest gains from income attributable to minority equity interests of third
parties in any non-wholly owned Restricted Subsidiary;
(d)
increased or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards
Codification Topic 460 or any comparable regulation.
Notwithstanding
anything to the contrary herein, it is agreed that for the purpose of calculating the Total Leverage Ratio, the First Lien Leverage
Ratio, the Interest Coverage Ratio and the Secured Leverage Ratio and/or the amount of any basket based on a percentage of
Consolidated Adjusted EBITDA for any period that includes the Fiscal Quarters ended July 3, 2016, October 2, 2016, January 1, 2017
and April 2, 2017, Consolidated Adjusted EBITDA for such Fiscal Quarters shall be deemed to be $15,194,992, $34,765,574, $9,482,738
and $58,534,750 (which amounts are agreed not to include adjustments pursuant to clauses (b)(x), (b)(xx), (b)(xxi) and (b)(xxii)
above), respectively, in each case, as adjusted (i) on a Pro Forma Basis, as applicable and (ii) pursuant to clauses (b)(x),
(b)(xx), (b)(xxi) and (b)(xxii) above, as applicable for each Test Period.
“Consolidated
First Lien Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total
Debt outstanding on such date that is secured by a first priority Lien on any asset or property of such Person or its Restricted Subsidiaries
that constitutes Collateral.
“Consolidated
Interest Expense” means, with respect to any Person for any period, the sum of (a) consolidated total interest expense of
such Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including
(without duplication), amortization of any debt issuance cost and/or original issue discount, any premium paid to obtain payment,
financial assurance or similar bonds, any interest capitalized during construction, any non-cash interest payment, the interest
component of any deferred payment obligation, commissions, discounts, yield and other fees and charges (including any interest
expense) related to any Qualified Receivables Facility, the interest component of any payment under any Capital Lease (regardless of
whether accounted for as interest expense under GAAP), any commission, discount and/or other fee or charge owed with respect to any
letter of credit, bank guarantee and/or bankers’ acceptance or any similar facilities, any fee and/or expense paid to the
Administrative Agent in connection with its services hereunder, any other bank, administrative agency (or trustee) and/or financing
fee and any cost associated with any surety bond in connection with financing activities (whether amortized or immediately
expensed)), plus (b) any cash dividend paid or payable in respect of Disqualified Capital Stock during such period other than
to such Person or any Loan Party, plus (c) any net losses, obligations or payments arising from or under any Hedge Agreement
and/or other derivative financial instrument issued by such Person for the benefit of such Person or its subsidiaries, in each case
determined on a consolidated basis for such period. For purposes of this definition, interest in respect of any Capital Lease shall
be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capital
Lease in accordance with GAAP.
“Consolidated
Net Income” means, as to any Person (the “Subject Person”) for any period, the net income (or loss) of the
Subject Person and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined
in conformity with GAAP; provided that there shall be excluded, without duplication,
(a)
(i) any net income (loss) of any Person if such Person is not the Borrower or a Restricted Subsidiary, except that Consolidated Net Income
will be increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalent (or converted into Cash
or Cash Equivalents) by such Person to the Borrower or any other Restricted Subsidiary (subject, in the case of any such Restricted Subsidiary
that is not a Loan Party, to the limitations contained in clause (ii) below) and (ii) solely for the purpose of determining the amount
available for Restricted Payments under Section 6.04(a)(iii)(A) or the amount of Excess Cash Flow, any net income (loss) of any
Restricted Subsidiary (other than a Loan Party) if such Restricted Subsidiary is subject to restrictions on the payment of dividends
or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Borrower or a Loan Party by operation of
its organizational documents or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable
thereto (other than (x) any restriction that has been waived or otherwise released and (y) any restriction set forth in the Loan Documents,
the documents related to any Incremental Equivalent Debt, the documents relating to any Second Lien Facility and the documents relating
to any Replacement Debt or Refinancing Indebtedness in respect of any of the foregoing), except that Consolidated Net Income will be
increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalents (or converted into Cash or Cash
Equivalents) by the Restricted Subsidiary (subject, in the case of a dividend, distribution or other payment to another Restricted Subsidiary,
to the limitations in this clause (ii));
(b)
any gain or Charge attributable to any asset Disposition (including asset retirement costs or sales or issuances of Capital Stock) or
of returned or surplus assets, in each case, outside the ordinary course of business (as determined in good faith by such Person);
(c)
(i) any gain or Charge from (A) any extraordinary item (as determined in good faith by such Person) and/or (B) any non-recurring or unusual
item (as determined in good faith by such Person) and/or (ii) any Charge associated with and/or payment of any legal settlement, fine,
judgment or order;
(d)
(i) any unrealized or realized net foreign currency translation or transaction gains or Charges impacting net income (including
currency re-measurements of Indebtedness, any net gains or Charges resulting from Hedge Agreements for currency exchange risk
associated with the above or any other currency related risk, any gains or Charges relating to translation of asset and liabilities
denominated in a foreign currency and those resulting from intercompany Indebtedness), (ii) any realized or unrealized gain or
Charge in respect of (x) any obligation under any Hedge Agreement as determined in accordance with GAAP and/or (y) any other
derivative instrument pursuant to, in the case of this clause (y), Financial Accounting Standards Board’s Accounting
Standards Codification No. 815-Derivatives and Hedging and (iii) unrealized gains or losses in respect of any Hedge Agreement and
any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein recognized
in earnings for derivatives that do not qualify as hedge transactions, in respect of Hedge Agreements;
(e)
any net gain or Charge with respect to (i) any disposed, abandoned, divested and/or discontinued asset, property or operation (other
than, at the option of the Borrower, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination
thereof), (ii) any disposal, abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the
option of the Borrower, relating to assets or properties held for sale or pending the divestiture or discontinuation thereof) and/or
(iii) any facility that has been closed during such period;
(f)
any net income or Charge (less all fees and expenses related thereto) attributable to (i) the early extinguishment or cancellation of
Indebtedness or (ii) any Derivative Transaction;
(g)
(i) any Charge incurred as a result of, in connection with or pursuant to (or incurred by a Parent Company to the extent permitted to
be paid by the Borrower hereunder) any management equity plan, profits interest or stock option plan or any other management or employee
benefit plan or agreement, pension plan (including a non-cash deemed finance Charge), any stock subscription or shareholders agreement
or any distributor equity plan or any similar equity plan or agreement (including any deferred compensation arrangement or trust), (ii)
any Charge incurred in connection with the rollover, acceleration or payout of Capital Stock held by management of any Parent Company,
the Borrower and/or any of its subsidiaries, in each case under this clause (ii), to the extent that any such cash Charge is funded
with net Cash proceeds contributed to the Subject Person as a capital contribution or as a result of the sale or issuance of Capital
Stock (other than Disqualified Capital Stock) of the Subject Person and (iii) the amount of payments made to optionholders of such Person
or any Parent Company in connection with, or as a result of, any distribution being made to equityholders of such Person or its Parent
Companies, which payments are being made to compensate such optionholders as though they were equityholders at the time of, and entitled
to share in, such distribution, in each case to the extent permitted hereunder;
(h)
any Charge that is established, adjusted and/or incurred, as applicable, (i) within 12 months after the Closing Date that is
required to be established, adjusted or incurred, as applicable, as a result of the Transactions in accordance with GAAP, (ii)
within 12 months after the closing of any other acquisition that is required to be established, adjusted or incurred, as applicable,
as a result of such acquisition in accordance with GAAP or (iii) as a result of any change in, or the adoption or modification of,
accounting principles or policies;
(i)
any (A) write-off or amortization made in such period of deferred financing costs and premiums paid or other expenses incurred directly
in connection with any early extinguishment of Indebtedness, (B) goodwill or other asset impairment charges, write-offs or write-downs
and (C) amortization of intangible assets (including amortization of goodwill, software, deferred or capitalized financing fees, debt
issuance costs, commissions and expenses and other intangible assets);
(j)
(A) the effects of adjustments (including the effects of such adjustments pushed down to the Subject Person and its subsidiaries) in
component amounts required or permitted by GAAP (including, without limitation, in the inventory, property and equipment, lease,
rights fee arrangements, software, goodwill, intangible asset, in-process research and development, deferred revenue, advanced
billing and debt line items thereof), resulting from the application of recapitalization accounting or acquisition accounting, as
the case may be, in relation to the Transactions or any consummated acquisition or similar Investment or the amortization or write-
off of any amounts thereof (including any write-off of in process research and development) and/or (B) the cumulative effect of any
change in accounting principles or policies (effected by way of either a cumulative effect adjustment or as a retroactive
application, in each case, in accordance with GAAP) (except that, if the Borrower determines in good faith that the cumulative
effects thereof are not material to the interests of the Lenders, the effects of any change in any such principles or policies may
be included in any subsequent period after the Fiscal Quarter in which such change, adoption or modification was made);
(k)
the income or loss of any Person accrued prior to the date on which such Person became a Restricted Subsidiary of such Subject Person
or is merged into or consolidated with such Subject Person or any Restricted Subsidiary of such Subject Person or the date that such
other Person’s assets are acquired by such Subject Person or any Restricted Subsidiary of such Subject Person (except to the extent
required for any calculation of Consolidated Adjusted EBITDA on a Pro Forma Basis in accordance with Section 1.04);
(l)
any deferred Tax expense associated with any tax deduction or net operating loss arising as a result of the Transactions, or the release
of any valuation allowance related to any such item;
(m) [reserved];
(n)
earn-out, non-compete and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments
thereof and purchase price adjustments, including in respect of any acquisition consummated prior to the Closing Date;
(o) [reserved];
(p)
(A) Transaction Costs, (B) any Charges incurred (1) in connection with any transaction (in each case, regardless of whether consummated),
whether or not permitted under this Agreement, including any issuance and/or incurrence of Indebtedness and/or any issuance and/or offering
of Capital Stock (including, in each case, by any Parent Company), any Investment, any acquisition, any Disposition, any recapitalization,
any merger, consolidation or amalgamation, becoming a standalone company, any option buyout or any repayment, redemption, refinancing,
amendment or modification of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums
and prepayment penalties) or any similar transaction, and/or (2) in connection with any Qualifying IPO (whether or not consummated),
(C) the amount of any Charges that are actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement
provisions or similar agreements or insurance (it being understood that if the amount received in cash under any such agreement in any
period exceeds the amount of expense paid during such period, any excess amount received may be carried forward and applied against any
expense in any future period); provided that in respect of any reimbursable Charge that is added back in reliance on clause
(C) above, such relevant Person in good faith expects to receive reimbursement for such Charge within the next four Fiscal Quarters
(with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within the next four Fiscal
Quarters) and/or (D) Public Company Costs;
(q)
non-cash Charges incurred or accrued in connection with any single or one-time event (as determined in good faith by such Person), including
in connection with (A) the Transactions, the Amendment No.
1 Transactions and/or any acquisition consummated after the Closing Date (including legal, accounting and other professional
fees and expenses incurred in connection with acquisitions and other Investments made prior to the Closing Date), (B) the closing, consolidation
or reconfiguration of any facility during such period or (C) one-time consulting costs;
(r)
non-cash compensation Charges and/or any other non-cash Charges arising from the granting of any stock, stock option or similar arrangement
(including any profits interest), the granting of any restricted stock, stock appreciation right and/or similar arrangement (including
any repricing, amendment, modification, substitution or change of any such stock option, restricted stock, stock appreciation right,
profits interest or similar arrangement or the vesting of any warrant); and
(s)
to the extent such amount would otherwise increase Consolidated Net Income, Taxes paid (including pursuant to any Tax sharing arrangement)
in cash (including, to the extent paid in cash, Taxes arising out of any tax examination) and (B) Tax distributions made in cash during
such period.
In
addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, Consolidated
Net Income will include the proceeds of business interruption insurance in an amount representing the earnings for the applicable period
that such proceeds are intended to replace (whether or not received so long as the Borrower in good faith expects to receive such proceeds
within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent not
so received within the next four Fiscal Quarters)).
“Consolidated
Secured Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt
outstanding on such date that is secured by a Lien on any asset or property of such Person or its Restricted Subsidiaries that constitutes
Collateral.
“Consolidated
Total Assets” means, as to any Person, at any date, all amounts that would, in conformity with GAAP, be set forth opposite
the caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person at such date.
“Consolidated
Total Debt” means, as to any Person at any date of determination, the aggregate principal amount of all third party debt for
borrowed money (including LC Disbursements that have not been reimbursed within three Business Days and the outstanding principal balance
of all Indebtedness of such Person represented by notes, bonds and similar instruments), Attributable Debt and purchase money Indebtedness
(but excluding, for the avoidance of doubt, undrawn letters of credit), in each case of such Person; provided that “Consolidated
Total Debt” shall be calculated (i) net of the Unrestricted Cash Amount, (ii) to exclude any obligation, liability or indebtedness
of such Person if, upon or prior to the maturity thereof, such Person has irrevocably deposited with the proper Person in trust or escrow
the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such obligation, liability or indebtedness,
and thereafter such funds and evidences of such obligation, liability or indebtedness or other security so deposited are not included
in the calculation of the Unrestricted Cash Amount, (iii) to exclude obligations under any Derivative Transaction, any Qualified Receivables
Facility, or under any Indebtedness that is non-recourse to the Borrower and its Restricted Subsidiaries and (iv) to exclude any iStar
Exchange or Excluded Property Transaction.
“Consolidated
Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.
“Consolidated
Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end
of such period; provided that there shall be excluded (a) the effect of reclassification during such period between current assets
and long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior period to give
effect to such reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition of any
Person, facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and contingent obligations
under any Hedge Agreement and (d) the application of purchase or recapitalization accounting.
“Contractual
Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties
is bound or to which it or any of its properties is subject.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Copyright”
means the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright whether published or unpublished,
copyright registrations and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past
or future infringements for any of the foregoing; (d) the right to sue for past, present and future infringements of any of the foregoing;
and (e) all rights corresponding to any of the foregoing.
“Cost
Saving Initiative” has the meaning assigned to such term in the definition of “Consolidated Adjusted
EBITDA”.
“Credit
Extension” means each of (i) the making of a Revolving Loan or Swingline Loan or (ii) the issuance, amendment, modification,
renewal or extension of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase
the Stated Amount of the relevant Letter of Credit).
“Credit
Facilities” means the Revolving Facility and the Term Facility.
“Credit
Suisse” has the meaning assigned to such term in the preamble to this Agreement.
“Cure Amount” has the meaning
assigned to such term in Section 6.15(b).
“Cure
Right” has the meaning assigned to such term in Section 6.15(b).
“Current
Assets” means, at any date, all assets of the Borrower and its Restricted Subsidiaries which under GAAP would be classified
as current assets (excluding any (i) cash or Cash Equivalents (including cash and Cash Equivalents held on deposit for third parties
by the Borrower and/or any Restricted Subsidiary), (ii) permitted loans to third parties, (iii) deferred bank fees and derivative financial
instruments related to Indebtedness, (iv) the current portion of current and deferred Taxes and (v) assets held for sale or pension assets).
“Current
Liabilities” means, at any date, all liabilities of the Borrower and its Restricted Subsidiaries which under GAAP would be
classified as current liabilities, other than (i) current maturities of long term debt, (ii) outstanding revolving loans and letter of
credit exposures, (iii) accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is due and unpaid), (iv)
obligations in respect of derivative financial instruments related to Indebtedness, (v) the current portion of current and deferred Taxes,
(vi) liabilities in respect of unpaid earnouts, (vii) accruals relating to restructuring reserves, (viii) liabilities in respect of funds
of third parties on deposit with the Borrower and/or any Restricted Subsidiary, (ix) the current portion of any Capital Lease, (x) any
liabilities recorded in connection with stock based awards, partnership interest based awards, awards of profits interests, deferred
compensation awards and similar initiative based compensation awards or arrangements and (xi) the current portion of any other long term
liability for borrowed money.
“Debt
Fund Affiliate” means any Affiliate (other than a natural person) of the Sponsor that is a bona fide debt fund or investment
vehicle that is engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise
investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business.
“Debtor
Relief Laws” means the Bankruptcy Code of the U.S., and all other liquidation, conservatorship, bankruptcy, general assignment
for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the
U.S. or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declined
Proceeds” has the meaning assigned to such term in Section 2.11(b)(v).
“Default”
means any event or condition which upon notice, lapse of time or both would become an Event of Default.
“Defaulting
Lender” means any Lender that has (a) defaulted in its obligations under this Agreement, including without limitation, to
make a Loan within two Business Days of the date required to be made by it hereunder or to fund its participation in a Letter of
Credit or Swingline Loan required to be funded by it hereunder within two Business Days of the date such obligation arose or such
Loan, Letter of Credit or Swingline Loan was required to be made or funded, (b) notified the Administrative Agent, any Issuing Bank
or the Swingline Lender or any Loan Party in writing that it does not intend to satisfy any such obligation or has made a public
statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in
which it commits to extend credit generally (unless such writing or public statement relates to such Lender’s obligation to
fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to
funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public
statement) cannot be satisfied), (c) failed, within two Business Days after the request of Administrative Agent or the Borrower, to
confirm in writing that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and
participations in then outstanding Letters of Credit and Swingline Loans; provided that such Lender shall cease to be a
Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent, (d)
become (or any parent company thereof has become) insolvent or been determined by any Governmental Authority having regulatory
authority over such Person or its assets, to be insolvent, or the assets or management of which has been taken over by any
Governmental Authority, (e) become (or any parent company thereof has become) the subject of a bankruptcy or insolvency proceeding,
or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in, any such proceeding or appointment, unless in the case of any Lender
subject to this clause (e), the Borrower and the Administrative Agent shall each have determined that such Lender intends,
and has all approvals required to enable it (in form and substance satisfactory to each of the Borrower and the Administrative
Agent), to continue to perform its obligations as a Lender hereunder or (f) become (or any parent company thereof has become) the
subject of a Bail-In Action; provided that no Lender shall be deemed to be a Defaulting Lender solely by virtue of the
ownership or acquisition of any Capital Stock in such Lender or its parent by any Governmental Authority; provided that such
action does not result in or provide such Lender with immunity from the jurisdiction of courts within the U.S. or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject,
repudiate, disavow or disaffirm any contract or agreement to which such Lender is a party.
“Deposit
Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or
like organization, excluding, for the avoidance of doubt, any investment property (within the meaning of the UCC) or any account evidenced
by an instrument or negotiable certificate of deposit (within the meaning of the UCC).
“Derivative
Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement,
interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives rise to similar
credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction, including any cross-currency
interest-rate swap, any forward foreign-exchange contract, any currency option, and any other instrument linked to exchange rates that
gives rise to similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any equity-linked option,
any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d) any commodity
(including precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any forward commodity-linked
contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided, that, no phantom stock
or similar plan providing for payments only on account of services provided by current or former directors, officers, employees, members
of management, managers or consultants of the Borrower or its subsidiaries shall constitute a Derivative Transaction.
“Designated
Non-Cash Consideration” means the fair market value (as determined by the Borrower in good faith) of non-Cash consideration
received by the Borrower or any Restricted Subsidiary in connection with any Disposition pursuant to Section 6.07(h) and/or Section
6.08 that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower,
setting forth the basis of such valuation (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection
with a subsequent sale or conversion of such Designated Non-Cash Consideration to Cash or Cash Equivalents).
“Discount
Range” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Disposition”
or “Dispose” means the sale, lease, sublease, or other disposition of any property of any Person. The fair market
value of any assets or other property Disposed of shall be determined by the Borrower in good faith.
“Disqualified
Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an
optional redemption by the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock),
in whole or in part, prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being
understood that if any such redemption is in part, only such part coming into effect prior to 91 days following the Latest Maturity
Date at the time such Capital Stock is issued shall constitute Disqualified Capital Stock), (b) is or becomes convertible into or
exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Capital Stock that would
constitute Disqualified Capital Stock, in each case at any time on or prior to 91 days following the Latest Maturity Date at the
time such Capital Stock is issued, (c) contains any mandatory repurchase obligation or any other repurchase obligation at the option
of the holder thereof (other than for Qualified Capital Stock), in whole or in part, which may come into effect prior to 91 days
following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such repurchase
obligation is in part, only such part coming into effect prior to 91 days following such Latest Maturity Date at the time such
Capital Stock is issued shall constitute Disqualified Capital Stock) or (d) provides for the scheduled payments of dividends in Cash
on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided that any Capital
Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any
security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer thereof
to redeem such Capital Stock upon the occurrence of any change of control, Qualifying IPO or any Disposition occurring prior to 91
days following the Latest Maturity Date at the time such Capital Stock is issued shall not constitute Disqualified Capital Stock if
such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior to the
Termination Date.
Notwithstanding
the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees, members
of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or
consultants, in each case in the ordinary course of business of Holdings, the Borrower or any Restricted Subsidiary, such Capital Stock
shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to
satisfy applicable statutory or regulatory obligations and (B) no Capital Stock held by any Permitted Payee shall be considered Disqualified
Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock
option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar
agreement that may be in effect from time to time.
Notwithstanding
the foregoing, in all cases both the Series A Preferred Stock and any preferred Capital Stock required by applicable Requirements of
Law to be issued in connection with obtaining liquor licenses shall be deemed not to be Disqualified Capital Stock hereunder.
“Disqualified
Institution” means:
(a)
(i) any Person identified as such in writing to the Arrangers on June 5, 2017 by way of email from the Sponsor (or its attorneys on
such date), (ii) any Person identified as such by the Borrower in writing after June 5, 2017 (and reasonably satisfactory) to the Arrangers
(or if after the Closing Date, to the Administrative Agent in place of the Arrangers), (iii) any Affiliate of any Person described in
clauses (i) or (ii) above that is clearly identifiable as an Affiliate of such Person on the basis of such Affiliate’s
name and (iv) any other Affiliate of any Person described in clauses (i) or (ii) above that is identified by the Borrower
in a written notice to the Arrangers (if prior to the Closing Date) or the Administrative Agent (if after the Closing Date) (other than
Bona Fide Debt Funds other than such Bona Fide Debt Funds excluded pursuant to clause (a)(i) or (a)(ii) of this paragraph) (each such
person described in clauses (i) through (iv) above, a “Disqualified Lending Institution”);
(b)
(i) any Person that is a Company Competitor and/or any Affiliate of any Company Competitor (other than any Affiliate that is a Bona
Fide Debt Fund) and is identified by the Borrower as such in writing to the Arrangers (if prior to the Closing Date) or the
Administrative Agent (if after the Closing Date), (ii) any Affiliate of any Person described in clause (i) above (other than
any Affiliate that is a Bona Fide Debt Fund) that is clearly identifiable as an Affiliate of such person on the basis of such
Affiliate’s name and (iii) any other Affiliate of any Person described in clause (i) above that is identified by the
Borrower in a written notice to the Arrangers (if prior to the Closing Date) or to the Administrative Agent (if after the Closing
Date) (it being understood and agreed that no Bona Fide Debt Fund may be designated as a Disqualified Institution pursuant to this clause
(iii), but such Bona Fide Debt Fund may be designated as a Disqualified Lending Institution pursuant to clause (a)
above); and
(c)
any Affiliate or Representative of any Arranger and/or any Initial Lender that is engaged as a principal primarily in private equity,
mezzanine financing or venture capital;
it
being understood and agreed that no written notice delivered pursuant to clauses (a)(ii), (a)(iv), (b)(i) and/or (b)(iii)
above shall apply retroactively to disqualify any Person that has previously acquired an assignment or participation interest in any
Loans if such Person was not a Disqualified Institution at the time of acquisition of such assignment or participation interest.
“Disqualified
Lending Institution” has the meaning assigned to such term in the definition of “Disqualified
Institution”.
“Disregarded
Domestic Subsidiary” means any Domestic Subsidiary that has no material assets other than the Capital Stock and/or Indebtedness
of one or more Foreign Subsidiaries, IP Rights related to such Foreign Subsidiaries, Cash or Cash Equivalents, and other incidental assets
related thereto or that has no material assets other than Capital Stock and/or Indebtedness of one or more Disregarded Domestic Subsidiaries.
“Dollars”
or “$” refers to lawful money of the U.S.
“Domestic
Subsidiary” means any Restricted Subsidiary incorporated or organized under the laws of the U.S., any state thereof or the
District of Columbia.
“Dutch
Auction” means an auction (an “Auction”) conducted by any Affiliated Lender or any Debt Fund Affiliate (any
such Person, the “Auction Party”) in order to purchase Initial Term Loans (or any Additional Term Loans), in accordance
with the following procedures (as may be modified by such Affiliated Lender or Debt Fund Affiliate (as applicable) and the applicable
“auction agent” in connection with a particular Auction transaction); provided that no Auction Party shall initiate
any Auction unless (I) at least five Business Days have passed since the consummation of the most recent purchase of Term Loans pursuant
to an Auction conducted hereunder; or (II) at least three Business Days have passed since the date of the last Failed Auction (or equivalent)
which was withdrawn:
(a) Notice
Procedures. In connection with any Auction, the Auction Party will provide notification to the Auction Agent (for distribution
to the relevant Lenders) of the Term Loans that will be the subject of the Auction (an “Auction Notice”). Each
Auction Notice shall be in a form reasonably acceptable to the Auction Agent and shall (i) specify the maximum aggregate principal
amount of the Term Loans subject to the Auction, in a minimum amount of $10,000,000 and whole increments of $1,000,000 in excess
thereof (or, in any case, such lesser amount of such Term Loans then outstanding or which is otherwise reasonably acceptable to the
Auction Agent and the Administrative Agent (if different from the Auction Agent)) (the “Auction Amount”), (ii)
specify the discount to par (which may be a range (the “Discount Range”) of percentages of the par principal
amount of the Term Loans subject to such Auction), that represents the range of purchase prices that the Auction Party would be
willing to accept in the Auction, (iii) be extended, at the sole discretion of the Auction Party, to (x) each Lender and/or (y) each
Lender with respect to any Term Loan on an individual Class basis and (iv) remain outstanding through the Auction Response Date. The
Auction Agent will promptly provide each appropriate Lender with a copy of the Auction Notice and a form of the Return Bid to be
submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m. on the date specified in the
Auction Notice (or such later date as the Auction Party may agree with the reasonable consent of the Auction Agent) (the
“Auction Response Date”).
(b)
Reply Procedures. In connection with any Auction, each Lender holding the relevant Term Loans subject to such Auction may, in
its sole discretion, participate in such Auction and may provide the Auction Agent with a notice of participation (the “Return
Bid”) which shall be in a form reasonably acceptable to the Auction Agent, and shall specify (i) a discount to par (that must
be expressed as a price at which it is willing to sell all or any portion of such Term Loans) (the “Reply Price”),
which (when expressed as a percentage of the par principal amount of such Term Loans) must be within the Discount Range and (ii) a principal
amount of such Term Loans, which must be in whole increments of $1,000,000 (or, in any case, such lesser amount of such Term Loans of
such Lender then outstanding or which is otherwise reasonably acceptable to the Auction Agent) (the “Reply Amount”).
Lenders may only submit one Return Bid per Auction, but each Return Bid may contain up to three bids only one of which may result in
a Qualifying Bid. In addition to the Return Bid, the participating Lender must execute and deliver, to be held in escrow by the Auction
Agent, an Assignment and Assumption with the dollar amount of the Term Loans to be assigned to be left in blank, which amount shall be
completed by the Auction Agent in accordance with the final determination of such Lender’s Qualifying Bid pursuant to clause
(c) below. Any Lender whose Return Bid is not received by the Auction Agent by the Auction Response Date shall be deemed to have
declined to participate in the relevant Auction with respect to all of its Term Loans.
(c) Acceptance
Procedures. Based on the Reply Prices and Reply Amounts received by the Auction Agent prior to the applicable Auction Response
Date, the Auction Agent, in consultation with the Auction Party, will determine the applicable price (the “Applicable
Price”) for the Auction, which will be the lowest Reply Price for which the Auction Party can complete the Auction at the
Auction Amount; provided that, in the event that the Reply Amounts are insufficient to allow the Auction Party to complete a
purchase of the entire Auction Amount (any such Auction, a “Failed Auction”), the Auction Party shall either, at
its election, (i) withdraw the Auction or (ii) complete the Auction at an Applicable Price equal to the highest Reply Price. The
Auction Party shall purchase the relevant Term Loans (or the respective portions thereof) from each Lender with a Reply Price that
is equal to or lower than the Applicable Price (“Qualifying Bids”) at the Applicable Price; provided that
if the aggregate proceeds required to purchase all Term Loans subject to Qualifying Bids would exceed the Auction Amount for such
Auction, the Auction Party shall purchase such Term Loans at the Applicable Price ratably based on the principal amounts of such
Qualifying Bids (subject to rounding requirements specified by the Auction Agent in its discretion). If a Lender has submitted a
Return Bid containing multiple bids at different Reply Prices, only the bid with the lowest Reply Price that is equal to or less
than the Applicable Price will be deemed to be the Qualifying Bid of such Lender (e.g., a Reply Price of $100 with a discount to par
of 1%, when compared to an Applicable Price of $100 with a 2% discount to par, will not be deemed to be a Qualifying Bid, while,
however, a Reply Price of $100 with a discount to par of 2.50% would be deemed to be a Qualifying Bid). The Auction Agent shall
promptly, and in any case within five Business Days following the Auction Response Date with respect to an Auction, notify (I) the
Borrower of the respective Lenders’ responses to such solicitation, the effective date of the purchase of Term Loans pursuant
to such Auction, the Applicable Price, and the aggregate principal amount of the Term Loans and the tranches thereof to be purchased
pursuant to such Auction, (II) each participating Lender of the effective date of the purchase of Term Loans pursuant to such
Auction, the Applicable Price, and the aggregate principal amount and the tranches of Term Loans to be purchased at the Applicable
Price on such date, (III) each participating Lender of the aggregate principal amount and the tranches of the Term Loans of such
Lender to be purchased at the Applicable Price on such date and (IV) if applicable, each participating Lender of any rounding and/or
proration pursuant to the second preceding sentence. Each determination by the Auction Agent of the amounts stated in the foregoing
notices to the Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error.
(d) Additional
Procedures.
(i)
Once initiated by an Auction Notice, the Auction Party may not withdraw an Auction other than a Failed Auction. Furthermore, in connection
with any Auction, upon submission by a Lender of a Qualifying Bid, such Lender (each, a “Qualifying Lender”) will
be obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Price.
(ii)
To the extent not expressly provided for herein, each purchase of Term Loans pursuant to an Auction shall be consummated pursuant to
procedures consistent with the provisions in this definition, established by the Auction Agent acting in its reasonable discretion and
as reasonably agreed by the Borrower.
(iii)
In connection with any Auction, the Borrower and the Lenders acknowledge and agree that the Auction Agent may require as a condition
to any Auction, the payment of customary fees and expenses by the Auction Party in connection therewith as agreed between the Auction
Party and the Auction Agent.
(iv)
Notwithstanding anything in any Loan Document to the contrary, for purposes of this definition, each notice or other communication required
to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the Auction Agent’s
(or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice
or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business
on the next Business Day.
(v)
The Borrower and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this definition
by itself or through any Affiliate of the Auction Agent and expressly consent to any such delegation of duties by the Auction Agent to
such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement
shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any purchase of Term Loans provided
for in this definition as well as activities of the Auction Agent.
“EAP
Substitution” has the meaning assigned to such term in the iStar Sale/Leaseback Documents.
“EAP
Substitution Property” means any property that is the subject of an EAP Substitution.
“EEA
Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA
Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA
Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ECF
Prepayment Amount” has the meaning assigned to such term in Section 2.11(b)(i).
“Effective
Yield” means, as to any Indebtedness, the effective yield applicable thereto calculated by the Administrative Agent in
consultation with the Borrower in a manner consistent with generally accepted financial practices, taking into account (a) interest
rate margins, (b) interest rate floors (subject to the proviso set forth below), (c) any amendment to the relevant interest rate
margins and interest rate floors prior to the applicable date of determination and (d) original issue discount and upfront or
similar fees (based on an assumed four-year average life to maturity or lesser remaining average life to maturity), but excluding
(i) any advisory, arrangement, commitment, consent, structuring, success, underwriting, ticking, unused line fees, amendment fees
and/or any similar fees payable in connection therewith (regardless of whether any such fees are paid to or shared in whole or in
part with any lender) and (ii) any other fee that is not paid directly by the Borrower generally to all relevant lenders ratably
(or, if only one lender (or affiliated group of lenders) is providing such Indebtedness, are fees of the type not customarily shared
with lenders generally); provided, that with respect to any Indebtedness that includes a “LIBOR floor” or
“Base Rate floor”, that (A) to the extent that the Published LIBO Rate (for an Interest Period of three months) or
Alternate Base Rate (in each case without giving effect to any floor specified in the definition thereof on the date on which the
Effective Yield is being calculated) is less than such floor, the amount of such difference will be deemed added to the interest
rate margin applicable to such Indebtedness for purposes of calculating the Effective Yield and (B) to the extent that the Published
LIBO Rate (for an Interest Period of three months) or Alternate Base Rate (in each case, without giving effect to any floor
specified in the definitions thereof) is greater than such floor, the floor will be disregarded in calculating the Effective
Yield.
“Eligible
Assignee” means (a) any Lender, (b) any commercial bank, insurance company, finance company, financial institution, any fund
that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), (c) any Affiliate
of any Lender, (d) any Approved Fund of any Lender or (e) to the extent permitted under Section 9.05(g) or with respect to the
Revolving Loans and Revolving Credit Commitments of any Defaulting Lender, any Affiliated Lender or any Debt Fund Affiliate; provided
that in any event, “Eligible Assignee” shall not include (i) any natural person, (ii) any Disqualified Institution or
Defaulting Lender or (iii) except as permitted under Section 9.05(g) or except with respect to the Revolving Loans and Revolving
Credit Commitments of any Defaulting Lender, the Borrower or any of its Affiliates.
“Employee
Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (regardless of whether such
plan is subject to ERISA) which is sponsored, maintained or contributed to by, or required to be contributed to by, Borrower or any of
its Subsidiaries.
“Environmental
Claim” means any written investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order
or other order, decree or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant
to or in connection with any actual or alleged violation of any Environmental Law; or (b) in connection with any actual or alleged Hazardous
Materials Activity.
“Environmental
Laws” means any and all applicable foreign or domestic, federal, state or local (or any subdivision thereof), statutes, ordinances,
orders, decrees, rules, regulations, judgments, Governmental Authorizations, or any other applicable binding requirements of Governmental
Authorities or the common law relating to (a) pollution or the protection of the environment or natural resources, human health and safety
(to the extent relating to the exposure to any hazardous material) or other environmental matters; or (b) any Hazardous Materials Activity
or any exposure of any Person to any hazardous material.
“Environmental
Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any Restricted Subsidiary directly or indirectly resulting from or based upon (a)
any actual or alleged violation of any Environmental Law, (b) any Hazardous Materials Activity, (c) exposure to any Hazardous Materials,
(d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other legally
binding arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity
Contribution” has the meaning assigned to such term in the Recitals to this Agreement.
“ERISA” means the
Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within
the meaning of Section 414(b) of the Code of which that Person is a member; and (b) any trade or business (whether or not incorporated)
which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that
Person is a member.
“ERISA
Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued
thereunder with respect to any Pension Plan (excluding those for which the 30- day notice period has been waived); (b) the failure
to meet the minimum funding standard of Section 412 of the Code with respect to any Pension Plan; (c) the filing of any request for
or receipt of a minimum funding waiver under Section 412 of the Code with respect to any Pension Plan; (d) engaging in a non- exempt
prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Pension Plan; (e)
the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) or Section 302 of ERISA of a notice of intent
to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (f) the withdrawal by the Borrower, any of
its Restricted Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors
or the termination of any such Pension Plan resulting in liability to the Borrower, any of its Restricted Subsidiaries or any of
their respective ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (g) the filing by the PBGC of judicial proceedings to
terminate any Pension Plan; (h) the imposition of liability on the Borrower, any of its Restricted Subsidiaries or any of their
respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of
ERISA; (i) a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) of the Borrower, any of its
Restricted Subsidiaries or any of their respective ERISA Affiliates from any Multiemployer Plan if there is any potential liability
therefor under Title IV of ERISA, or the receipt by the Borrower, any of its Restricted Subsidiaries or any of their respective
ERISA Affiliates of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA; or (j) the incurrence of liability or the imposition of a Lien
pursuant to Section 436 or 430(k) of the Code or pursuant to ERISA with respect to any Pension Plan.
“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any
successor person), as in effect from time to time.
“Event of Default” has the meaning assigned to such term in Article
7.
“Excess
Cash Flow” means, for any Excess Cash Flow Period, an amount (if positive) equal to:
(a) the
sum, without duplication, of the amounts for such period of the following:
(i) Consolidated
Adjusted EBITDA for such period without giving effect to clause (b)(x) of the definition thereof, plus
(ii) the
Consolidated Working Capital Adjustment for such period, plus
(iii)
cash gains of the type described in clauses (b), (c), (d), (e) and (f) of the definition
of “Consolidated Net Income”, to the extent not otherwise included in calculating Consolidated Adjusted EBITDA (except to
the extent such gains consist of proceeds utilized in calculating Net Proceeds falling under paragraph (a) of the definition thereof
or Net Insurance/Condemnation Proceeds subject to Section 2.11(b)(ii)), plus
(iv)
to the extent not otherwise included in the calculation of Consolidated Adjusted EBITDA for such period, cash payments received by the
Borrower or any of its Restricted Subsidiaries with respect to amounts deducted from Excess Cash Flow in a prior period pursuant to clause
(b)(vii) below, minus
(b)
the sum, without duplication, of the amounts for such period (or, in the case of clauses (b)(i), (b)(iii), (b)(iv), (b)(x), (b)(xi),
(b)(xiii) and (b)(xiv), at the option of the Borrower, amounts after such period to the extent paid prior to the date of the applicable
Excess Cash Flow payment) of the following:
(i)
the aggregate principal amount of (i) all optional prepayments of Indebtedness (other than any (A) optional prepayment of
Indebtedness that is deducted in calculating the amount of any Excess Cash Flow payment in accordance with Section 2.11(b)(i) or
(B) revolving Indebtedness except to the extent any related commitment is permanently reduced in connection with such repayment),
(ii) all mandatory prepayments and scheduled repayments of Indebtedness and (iii) the aggregate amount of any premiums, make-whole
or penalty payments actually paid in Cash by the Borrower and/or any Restricted Subsidiary that are or were required to be made in
connection with any prepayment of Indebtedness, in each case, except to the extent financed with long- term funded Indebtedness
(other than revolving Indebtedness), plus
(ii) [reserved],
plus
(iii)
Consolidated Interest Expense to the extent paid or payable in Cash (including (A) fees and expenses paid to the Administrative
Agent in connection with its services hereunder, (B) other bank, administrative agency (or trustee) and financing fees (including
rating agency fees and other fees in respect of any Second Lien Facility), (C) costs of surety bonds in connection with financing
activities (whether amortized or immediately expensed) and (D) commissions, discounts and other fees and charges owed with respect
to revolving commitments, letters of credit, bank guarantees, bankers’ acceptances or any similar facilities or financing and
Hedge Agreements), plus
(iv)
Taxes (including Taxes paid or payable pursuant to any Tax sharing arrangement or arrangements and/or any Tax distribution) paid or payable,
and provisions for Taxes, to the extent payable in Cash with respect to such Excess Cash Flow Period, plus
(v) [reserved],
plus
(vi)
any foreign translation losses paid or payable in Cash (including any currency re-measurement of Indebtedness, any net gain or loss resulting
from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction
or any other currency-related risk) to the extent included in calculating Consolidated Adjusted EBITDA, plus
(vii)
amounts added back under (i) clauses (b)(xii), (b)(xiv), (b)(xix), (b)(xx), (b)(xxi)
or (b)(xxii) of the definition of “Consolidated Adjusted EBITDA” or (ii) the last paragraph of the definition
of Consolidated Net Income with respect to business interruption insurance, in each case to the extent such amounts have not yet been
received by the Borrower or its Restricted Subsidiaries, plus
(viii)
an amount equal to (A) all Charges either (1) excluded in calculating Consolidated Net Income or (2) added back in calculating Consolidated
Adjusted EBITDA, in each case, to the extent paid or payable in cash and (B) without duplication of amounts deducted in clause (c)(i)
of the definition of Consolidated Adjusted EBITDA, any non-cash item of gain or income included in calculating Consolidated Net Income,
plus
(ix) [reserved],
plus
(x)
to the extent not expensed (or exceeding the amount expensed) during such period or not deducted (or exceeding the amount deducted) in
calculating Consolidated Net Income, the aggregate amount of Charges paid or payable in Cash by the Borrower and its Restricted Subsidiaries
during such period, other than to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness), plus
(xi)
Cash payments (other than in respect of Taxes, which are governed by clause (iv) above) made during such period for any liability the
accrual of which in a prior period did not reduce Consolidated Adjusted EBITDA and therefore increased Excess Cash Flow in such prior
period (provided there was no other deduction to Consolidated Adjusted EBITDA or Excess Cash Flow related to such payment), except
to the extent financed with long term funded Indebtedness (other than revolving Indebtedness), plus
(xii) [reserved],
plus
(xiii)
amounts paid in Cash (except to the extent financed with long term funded Indebtedness (other than revolving Indebtedness)) during such
period on account of (A) items that were accounted for as non-Cash reductions of Consolidated Net Income or Consolidated Adjusted EBITDA
in a prior period and (B) reserves or amounts established in purchase accounting to the extent such reserves or amounts are added back
to, or not deducted from, Consolidated Net Income, plus
(xiv)
the amount of any payment of Cash made during such period to be amortized or expensed over a future period and recorded as a long-term
asset, plus
(xv)
the amount of any Tax obligation of the Borrower and/or any Restricted Subsidiary that is estimated in good faith by the Borrower as
due and payable (but is not currently due and payable) by the Borrower and/or any Restricted Subsidiary as a result of the repatriation
of any dividend or similar distribution of net income of any Foreign Subsidiary to the Borrower and/or any Restricted Subsidiary, plus
(xvi)
to the extent included in the calculation of Consolidated Adjusted EBITDA for such period, the amount of any insurance proceeds received
by the Borrower or any Restricted Subsidiary during such period under the Representation and Warranty Insurance Policy, plus
(xvii)
the aggregate amount of any extraordinary, unusual, special or non- recurring cash Charges paid or payable during such period (whether
or not incurred in such Excess Cash Flow Period) that were excluded in calculating Consolidated Adjusted EBITDA (including any component
definition used therein) for such period, plus
(xviii)
to the extent included in calculating Consolidated Adjusted EBITDA, the aggregate amounts received by the Borrower or any Restricted
Subsidiary pursuant to any iStar Exchange or Excluded Property Transaction.
“Excess
Cash Flow Period” means each full Fiscal Year of the Borrower ending after the Closing Date (commencing, for the avoidance
of doubt, with the Fiscal Year ending on or about June 30, 2018).
“Exchange
Act” means the Securities Exchange Act of 1934 and the rules and regulations of the SEC promulgated thereunder.
“Excluded
Assets” means each of the following:
(a)
any asset (including any General Intangibles and any contract, instrument, lease, license, permit, agreement or other document, or any
property or other right subject thereto (including pursuant to a purchase money security interest, capital lease or similar arrangement
or, in the case of after-acquired property, pre-existing secured Indebtedness not incurred in anticipation of the acquisition by the
Loan Party of such property)) the grant or perfection of a security interest in which would (i) constitute a violation of a restriction
in favor of a third party (other than a Loan Party) or result in the abandonment, invalidation or unenforceability of any right or assets
of the relevant Loan Party, (ii) result in a breach, termination (or a right of termination) or default under any such contract, instrument,
lease, license, permit, agreement or other document (including pursuant to any “change of control” or similar provision)
(there being no requirement pursuant to any Loan Document to obtain any consent in respect thereof from any Person that is not also a
Loan Party) or (iii) permit any Person (other than any Loan Party) to amend any rights, benefits and/or obligations of the relevant Loan
Party or Restricted Subsidiary in respect of such relevant asset or permit such Person to require any Loan Party or any subsidiary of
the Borrower to take any action materially adverse to the interests of such subsidiary or Loan Party; provided, however,
that any such asset will only constitute an Excluded Asset under clause (i), clause (ii) or clause (iii)
above to the extent such violation or breach, termination (or right of termination), default or right to amend would not be rendered
ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction
or any other applicable Requirement of Law; provided, further, that any such asset shall cease to constitute an Excluded Asset
at such time as the condition causing such violation, breach, termination (or right of termination) or default or right to amend or require
other actions no longer exists and to the extent severable, the security interest granted under the applicable Collateral Document shall
attach immediately to any portion of such General Intangible or other right that does not result in any of the consequences specified
in clauses (i) through (iii) above,
(b)
the Capital Stock of any (i) Captive Insurance Subsidiary, (ii) Unrestricted Subsidiary, (iii) broker-dealer subsidiary, (iv) not-for-profit
subsidiary and/or (v) special purpose entity used for any securitization facility permitted hereunder or any Receivables Subsidiary,
(c)
any (i) foreign IP Rights and/or (ii) intent-to-use (or similar) Trademark application prior to the filing of a “Statement of Use”,
“Amendment to Allege Use” or similar filing with respect thereto, only to the extent, if any, that, and solely during the
period, in which, if any, the grant of a security interest therein may impair the validity or enforceability, or result in the voiding
of, such intent-to-use Trademark application or any registration issuing therefrom under applicable law,
(d)
any asset or property (including Capital Stock), the grant or perfection of a security interest in which would (A) require any governmental
or regulatory consent, approval, license or authorization (there being no requirement under any Loan Document to obtain the consent,
approval, license or authorization of any Governmental Authority or other Person (other than any Loan Party), including, without limitation,
no requirement to comply with the Federal Assignment of Claims Act or any similar statute), (B) be prohibited or restricted by applicable
Requirements of Law (including enforceable anti-assignment provisions of applicable Requirements of Law), except, in the case of this
clause (B), to the extent such prohibition would be rendered ineffective under applicable anti-assignment provisions of the UCC
of any relevant jurisdiction notwithstanding such prohibition, (C) trigger termination of any contract pursuant to a “change of
control” or similar provision or (D) result in adverse tax or regulatory consequences to any Loan Party or any of its subsidiaries
or Parent Companies as determined by the Borrower in good faith following consultation with the Administrative Agent,
(e)
(i) except to the extent a security interest therein can be perfected by the filing of an “all-assets” UCC-1 financing statement,
any leasehold interest, (ii) any real property or real property interest that is not a Material Real Estate Asset, (iii) any real property
(including improvements) or real property interest (including improvements) that was leased by the Borrower or any of its Subsidiaries
and later deeded or conveyed to the Borrower or any other Loan Party, (iv) any real property (including improvements) or real property
interest (including improvements) owned by a Loan Party immediately prior to the Closing Date and not required to be subject to a mortgage
or security interest pursuant to the terms of the Existing Credit Facilities (including the real property (and improvements thereto)
set forth on Schedule 1.01(e) hereto) or the terms hereunder and (v) any Excluded Property,
(f)
any Capital Stock of any Person that is not a Wholly-Owned Restricted Subsidiary or that is an Immaterial Subsidiary,
(g)
any Margin Stock,
(h)
the voting Capital Stock of any Foreign Subsidiary that is a “controlled foreign corporation” (as defined in Section 957(a)
of the Code) or Disregarded Domestic Subsidiary, other than 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary
or Disregarded Domestic Subsidiary, as applicable,
(i)
any Letter-of-Credit-Right (other than to the extent a security interest in such Letter-of-Credit-Right can be perfected by filing an
“all-assets” UCC financing statement, without need for any other action) and all Commercial Tort Claims,
(j)
any Cash or Cash Equivalents (other than Cash and Cash Equivalents representing identifiable proceeds of other Collateral, a security
interest in which can be perfected through the filing of an “all-assets” UCC financing statement or which is perfected or
arises by law (including without limitation, the UCC), in each case without need for any action by any Loan Party or any Affiliate thereof),
(k)
any Deposit Account or commodity or securities account (including any securities entitlement and any related asset) (except to the extent
a security interest therein can be perfected through the filing of an “all assets” UCC financing statement (without need
for any other action); it being understood that Cash and Cash Equivalents representing identifiable proceeds of other Collateral as referred
to in the preceding clause (j) are not excluded hereby, and shall constitute Collateral (but any other Cash or Cash Equivalents shall
not constitute Collateral), but there shall be no requirement for any control agreement (or similar agreement)),
(l)
any motor vehicle, airplane or other asset subject to a certificate of title (other than to the extent a security interest therein can
be perfected by filing an “all assets” UCC financing statement (without need for any other action) and without the requirement
to list any VIN, serial or similar number),
(m)
any governmental or regulatory license or state or local franchise, charter, consent, permit or authorization to the extent the granting
of a security interest therein is prohibited or restricted thereby or by applicable Requirements of Law; provided, however, that
any such asset will only constitute an Excluded Asset under this clause (m) to the extent such prohibition or restriction would
not be rendered ineffective pursuant to applicable anti-assignment provisions of the UCC of any relevant jurisdiction,
(n)
Receivables Facility Assets and related assets sold or otherwise transferred to a Receivables Subsidiary or otherwise pledged, transferred
or sold in connection with a Receivables Facility, factoring transaction or any similar arrangement permitted hereunder,
(o)
any asset with respect to which the Administrative Agent and the relevant Loan Party have determined in good faith that the cost, burden,
difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its operations and business in the
ordinary course of business) of obtaining or perfecting a security interest therein outweighs the benefit of a security interest to the
relevant Secured Parties afforded thereby, and
(p)
any league deposits to the extent identifiable as such pursuant to the ledgers maintained by the Loan Parties.
“Excluded
Property” means any SLB Property, the properties (and improvements) set forth on Schedule 1.01(f) hereto, any EAP Substitution
Property, any other Real Estate Asset not required to be subject to a Mortgage in favor of the Administrative Agent and any other property
purchased with the proceeds of a Disposition of any of the foregoing.
“Excluded
Property Limited Recourse Financing” means any financing (other than a Sale and Lease-Back Transaction) with respect to an
Excluded Property that constitutes Limited Recourse Financing with respect to the Borrower or any Subsidiary.
“Excluded
Property Limited Recourse Financing Documents” means all definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the date hereof in connection with any Excluded
Property Limited Recourse Financing, in each case as the same may be amended, modified or supplemented from time to time hereafter in
accordance with the provisions thereof, and including all basic financing information and all other agreements, documents and instruments
relating to the Excluded Property Limited Recourse Financing and all exhibits and schedules to any of the foregoing.
“Excluded
Property Sale/Leaseback Transaction” means any Sale and Lease-Back Transaction with respect to one or more Excluded Properties
effected after the date hereof, including any amendment or modification of the iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“Excluded
Property Sale/Leaseback Transaction Documents” means the definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the date hereof in connection with any Excluded
Property Sale/Leaseback Transaction, in each case as the same may be amended, modified or supplemented from time to time hereafter in
accordance with the provisions thereof, and including all basic lease information and all other agreements, documents and instruments
relating to the Excluded Property Sale/Leaseback Transaction and all exhibits and schedules to any of the foregoing.
“Excluded
Property Transaction” means any Excluded Property Sale/Leaseback Transaction and any Excluded Property Limited Recourse Financing.
“Excluded
Property Transaction Documents” means the Excluded Property Sale/Leaseback Transaction Documents and any Excluded Property
Limited Recourse Financing Documents.
“Excluded Subsidiary” means:
(a)
any Restricted Subsidiary that is not a Wholly-Owned Subsidiary,
(b)
any Immaterial Subsidiary,
(c)
any Restricted Subsidiary that is prohibited or restricted by law, rule or regulation or contractual obligation from providing a Loan
Guaranty or that would require a governmental (including regulatory) or third party consent, approval, license or authorization to provide
a Loan Guaranty (including under any financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance
or similar legal principles) unless such consent has been received, it being understood that Holdings and its subsidiaries shall have
no obligation to obtain any such consent, approval, license or authorization,
(d) any
not-for-profit subsidiary,
(e) any
Captive Insurance Subsidiary or subsidiary that is a broker-dealer,
(f)
any special purpose entity (including a special purpose entity used for any permitted securitization or receivables facility or financing,
or established in connection with any iStar Exchange or Excluded Property Transaction) and any Receivables Subsidiary,
(g) any
Foreign Subsidiary,
(h)
(i) any Disregarded Domestic Subsidiary or (ii) any Domestic Subsidiary that is a direct or indirect subsidiary of any Foreign Subsidiary
or any Disregarded Domestic Subsidiary,
(i) any
Unrestricted Subsidiary,
(j)
any subsidiary acquired pursuant to a Permitted Acquisition or other Investment permitted by this Agreement that has assumed secured
Indebtedness not incurred in contemplation of such Permitted Acquisition or other Investment and any Restricted Subsidiary thereof that
guarantees such secured Indebtedness, in each case to the extent the terms of such secured Indebtedness prohibit such subsidiary from
becoming a Guarantor,
(k) [reserved],
(l)
any Restricted Subsidiary if the provision of a Loan Guaranty could reasonably be expected to result in adverse tax or regulatory consequences
to any Loan Party or any of its subsidiaries or Parent Companies as determined by the Borrower in good faith, and
(m)
any other Restricted Subsidiary with respect to which, in the good faith judgment of the Administrative Agent and the Borrower, the burden
or cost of providing a Loan Guaranty outweighs the benefits afforded thereby.
“Excluded
Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of
the Loan Guaranty of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any
Loan Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures
Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any
reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder
(determined after giving effect to Section 3.20 of the Loan Guaranty and any other “keepwell”, support or other agreement
for the benefit of such Loan Party) at the time the Loan Guaranty of such Loan Party or the grant of such security interest becomes effective
with respect to such Swap Obligation. If any Swap Obligation arises under a master agreement governing more than one swap, such exclusion
shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Loan Guaranty or security interest
is or becomes illegal.
“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender or Issuing Bank or any other recipient of any payment
to be made by or on account of any obligation of any Loan Party hereunder, (a) Taxes imposed on (or measured by) its net income or
franchise Taxes (i) by the jurisdiction under the laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes,
(b) any branch profits taxes imposed by the U.S. or any similar tax imposed by any other jurisdiction described in clause
(a), (c) in the case of a Lender, any U.S. withholding tax that is imposed on amounts payable to such Lender at the time such
Lender acquires an interest in a Loan or Commitment (or designates a new lending office), except (i) pursuant to an assignment or
designation of a new lending office under Section 2.19 and (ii) to the extent that such Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from any Loan Party with
respect to such withholding tax pursuant to Section 2.17, (d) any tax imposed as a result of a failure by the Administrative
Agent or any Lender or Issuing Bank to comply with Section 2.17(f) and (e) any withholding tax under FATCA.
“Existing
Credit Facilities” has the meaning assigned to such term in Section 4.01(h).
“Existing
Letter of Credit” means each letter of credit set forth on Schedule 1.01(b).
“Existing
Letter of Credit Issuer” means each Lender or Affiliate of a Lender that issued an Existing Letter of Credit.
“Existing
Sponsor” means Cerberus Capital Management, L.P. and its respective Affiliates.
“Expected Cost Savings”
has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Extended
Revolving Credit Commitment” has the meaning assigned to such term in Section 2.23(a).
“Extended
Revolving Loans” has the meaning assigned to such term in Section 2.23(a).
“Extended
Term Loans” has the meaning assigned to such term in Section 2.23(a)(ii).
“Extension”
has the meaning assigned to such term in Section 2.23(a)(ii).
“Extension
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (to the extent
required by Section 2.23) and the Borrower, executed by each of (a) the Borrower, (b) the Administrative Agent and (c) each Lender
that has accepted the applicable Extension Offer pursuant hereto and in accordance with Section 2.23.
“Extension
Offer” has the meaning assigned to such term in Section 2.23(a).
“Facility”
means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or, except with respect
to Articles 5 and 6, hereof owned, leased, operated or used by the Borrower or any of its Restricted Subsidiaries or any
of their respective predecessors or Affiliates.
“Failed
Auction” has the meaning assigned to such term in the definition of “Dutch Auction”.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or
successor version that is substantively comparable and not materially more onerous to comply with), any current or future
regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, and any law,
regulation, rules, practice or other published administrative guidance adopted pursuant to any intergovernmental agreement entered
into in connection with the implementation of such section of the Code.
“Federal
Assignment of Claims Act” means the Federal Assignment of Claims Act (41 U.S.C. § 15).
“Federal
Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s
federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York sets forth
on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as
the federal funds effective rate; provided that if such rate as determined above is at any time negative, the Federal Funds Effective
Rate at such time shall instead be zero.
“Fee
Letter” means that certain Amended and Restated Fee Letter, dated as of June 15, 2017, by and among, inter alios, Parent
and the Arrangers, as amended to date.
“Financial
Covenant” means the covenant in Section 6.15(a).
“First
Lien Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated First Lien Debt as of such date
to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term
“First Lien Leverage Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries.
“First
Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that,
subject to the Intercreditor Agreement or any other applicable intercreditor agreement, such Lien is senior in priority to any other
Lien to which such Collateral is subject, other than any Permitted Lien.
“Fiscal
Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal
Year” means the fiscal year of the Borrower ending on or about June 30 of each calendar year, as such fiscal year end may be
adjusted in accordance with the terms of this Agreement.
“Fixed
Amounts” has the meaning assigned to such term in Section 1.04(g).
“Flood
Hazard Property” means any Material Real Estate Asset subject to a Mortgage if any building included in such Material Real
Estate Asset is located in an area designated by the Federal Emergency Management Agency as having special flood hazards.
“Flood
Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of
1973, (iii) the National Flood Insurance Reform Act of 1994, (iv) the Flood Insurance Reform Act of 2004 and (v) the Biggert–Waters
Flood Insurance Reform Act of 2012, each as now or hereafter in effect or any successor statute thereto, and in each case, together with
all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing,
as amended or modified from time to time.
“Foreign
Asset Disposition” means a Disposition where the relevant asset is (A) the stock of or assets of a Foreign Subsidiary or (B)
one or more assets of the Borrower or any Restricted Subsidiary which are located outside the United States or any territory thereof.
“Foreign
Lender” means any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the
Code.
“Foreign
Subsidiary” means any Restricted Subsidiary that is not a Domestic Subsidiary.
“Funding
Account” has the meaning assigned to such term in Section 2.03(f).
“GAAP”
means generally accepted accounting principles in the U.S. in effect and applicable to the accounting period in respect of which reference
to GAAP is made.
“General
Intangibles” has the meaning set forth in Article 9 of the UCC.
“Governmental
Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau,
court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the U.S.,
a foreign government or any political subdivision of either thereof.
“Governmental
Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental
Authority.
“Granting
Lender” has the meaning assigned to such term in Section 9.05(e).
“GS
Bank” has the meaning assigned to such term in the preamble to this Agreement.
“Guarantee”
of or by any Person (the “Guarantor”) means any obligation, contingent or otherwise, of the Guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “Primary
Obligor”) in any manner and including any obligation of the Guarantor (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner
of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other
monetary obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness
or monetary obligation, (e) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness
or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole
or in part) or (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of any
other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or any right, contingent or
otherwise, of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business, or customary and reasonable indemnity obligations
in effect on the Closing Date or entered into in connection with any acquisition, Disposition or other transaction permitted under this
Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made
or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith.
“Hazardous
Materials” means any chemical, material, substance or waste, or any constituent thereof, which is prohibited, limited or regulated
by any Environmental Law due to its hazardous, toxic or similar characteristics, including any chemical, material, substance or waste
defined or listed as “hazardous” or “toxic” in any Environmental Law.
“Hazardous
Materials Activity” means the use, manufacture, possession, storage, holding, Release, threatened Release, discharge, placement,
generation, transportation, processing, treatment, abatement, removal, investigation, remediation, disposal, disposition or handling
of any Hazardous Material, and any corrective action or response action with respect to any of the foregoing.
“Hedge
Agreement” means any agreement with respect to any Derivative Transaction between any Loan Party or any Restricted Subsidiary
and any other Person.
“Hedging
Obligations” means, with respect to any Person, the obligations of such Person under any Hedge Agreement.
“Holdings”
means (a) initially, Merger Sub 1, and after giving effect to the Merger Sub 1 Merger, the Target (in each case prior to the
consummation of a transaction described in clause (b) of this definition) and (b) following the consummation of a transaction
permitted hereunder that results in a New Holdings, New Holdings.
“Holdings
Reorganization Transaction” means (a) the contribution by Holdings of 100% of the Capital Stock of the Borrower to a newly
formed domestic “shell” company owned or controlled by the Permitted Holders or (b) the merger or other consolidation of
Holdings with another Person that, after giving effect thereto, shall hold 100% of the Capital Stock of the Borrower, in each case, so
long as, contemporaneously therewith (as applicable) (i) New Holdings delivers to the Administrative Agent any new certificate issued
(if any) to evidence the contributed Capital Stock of the Borrower and grants a security interest in such Capital Stock in favor of the
Administrative Agent pursuant to the Security Agreement or a joinder thereto in a form reasonably satisfactory to the Administrative
Agent and (ii) New Holdings assumes the Loan Guaranty provided by Holdings and all other obligations of Holdings under this Agreement
and each of the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto that is reasonably acceptable
to the Administrative Agent.
“IFRS”
means international accounting standards within the meaning of the IAS Regulation 1606/2002, as in effect from time to time (subject
to the provisions of Section 1.04), to the extent applicable to the relevant financial statements.
“Immaterial
Subsidiary” means, as of any date, any Restricted Subsidiary of the Borrower (a) that does not have assets in excess of
2.5% of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries and (b) that does not contribute Consolidated
Adjusted EBITDA in excess of 2.5% of the Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries, in each case,
as of the last day of the most recently ended Test Period; provided that, the Consolidated Total Assets and Consolidated
Adjusted EBITDA (as so determined) of all Immaterial Subsidiaries shall not exceed 5.0% of Consolidated Total Assets and 5.0% of
Consolidated Adjusted EBITDA, in each case, of the Borrower and its Restricted Subsidiaries as of the last day of the most recently
ended Test Period; provided further that, at all times prior to the first delivery of financial statements pursuant to Section
5.01(a) or (b), this definition shall be applied based on the pro forma consolidated financial statements of the Target
delivered pursuant to Section 4.01.
“Immediate
Family Member” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote
descendant, parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling or
step-siblings (and linear descendants either thereof), mother-in-law, father-in-law, son-in-law and daughter-in-law (including
adoptive relationships), any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any
of the foregoing individuals, any of the foregoing individual’s (including the initial individual) estate (or an executor or
administrator acting on its behalf), heirs or legatees or any private foundation or fund that is controlled by any of the foregoing
individuals or any donor-advised fund of which any such individual is the donor.
“Incremental
Cap” means:
(a) the
Shared Incremental Amount, plus
(b)
in the case of any Incremental Facility or Incremental Equivalent Debt that effectively extends the Maturity Date with respect to any
Class of Loans and/or commitments hereunder, an amount equal to the portion of the relevant Class of Loans or commitments that will be
replaced by such Incremental Facility or Incremental Equivalent Debt, plus
(c)
in the case of any Incremental Facility or Incremental Equivalent Debt that effectively replaces any Revolving Credit Commitment or Additional
Revolving Credit Commitment terminated in accordance with Section 2.19 hereof, an amount equal to the relevant terminated Revolving
Credit Commitment or Additional Revolving Credit Commitment, plus
(d)
(i) the amount of any optional prepayment of any Loan (including any Incremental Loan) in accordance with Section 2.11(a) and/or
the amount of any permanent reduction of any Revolving Credit Commitment, (ii) the amount of any optional prepayment, redemption or repurchase
of Incremental Equivalent Debt incurred pursuant to the Shared Incremental Amount, (iii) the amount of any optional prepayment, redemption
or repurchase of any Replacement Term Loan or Loans under any Replacement Revolving Facility (to the extent accompanied by a permanent
reduction in commitments) or any borrowing or issuance of Replacement Debt previously applied to the permanent prepayment of any Loan
hereunder or of any Incremental Equivalent Debt, (iv) the amount of any optional prepayment, redemption or repurchase of “Incremental
Loans” and/or “Incremental Equivalent Debt” incurred pursuant to the “Shared Incremental Amount” or of
any “Replacement Term Loans” previously applied to the permanent prepayment of any of the foregoing (each as defined in the
Second Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien Facility) and (v) the aggregate
amount of any Indebtedness referred to in clauses (i) through (iv) repaid or retired resulting from any assignment of such Indebtedness
to (and/or assignment and/or purchase of such Indebtedness by) Holdings, the Borrower and/or any Restricted Subsidiary; provided
that for each of clauses (i) through (v), the relevant prepayment, redemption, repurchase or assignment and/or purchase
was not funded with the proceeds of any long-term Indebtedness (other than revolving Indebtedness), plus
(e)
an unlimited amount so long as, in the case of this clause (e), on a Pro Forma Basis after giving effect to the incurrence of
the Incremental Facility or the Incremental Equivalent Debt, as applicable, and the application of the proceeds thereof (but without
netting the cash proceeds thereof, but giving effect to any related Subject Transaction) and to any relevant Subject Transaction
(and, in the case of any Incremental Revolving Facility then being established, assuming a full drawing thereunder), (i) if such
Indebtedness is secured by a first priority Lien on the Collateral, the First Lien Leverage Ratio does not exceed the greater of (x)
4.20:1.00 and (y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the First Lien
Leverage Ratio as of the last day of the most recently ended Test Period, (ii) if such Indebtedness is secured by a Lien on the
Collateral other than on a first priority basis or is secured by a Lien on assets of the Borrower or any Restricted Subsidiary that
are not Collateral, the Secured Leverage Ratio does not exceed the greater of (x) 5.00:1.00 and (y) if such Indebtedness is incurred
to finance an acquisition or other Investment permitted hereunder, the Secured Leverage Ratio as of the last day of the most
recently ended Test Period and (iii) if such Indebtedness is unsecured, at the election of the Borrower, either (A) the Total
Leverage Ratio does not exceed the greater of (x) 5.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition or
other Investment permitted hereunder, the Total Leverage Ratio as of the last day of the most recently ended Test Period or (B) the
Interest Coverage Ratio is not less than the lesser of (x) 2.00:1.00 and (y) if such Indebtedness is incurred to finance an
acquisition or other Investment permitted hereunder, the Interest Coverage Ratio as of the last day of the most recently ended Test
Period;
provided
that:
(1)
any Incremental Facility and/or Incremental Equivalent Debt may be incurred under one or more of clauses (a) through (e) of this definition
as selected by the Borrower in its sole discretion (provided that, in the case of clause (e), an Incremental Facility may be incurred
only under clause (i) thereof),
(2)
if any Incremental Facility or Incremental Equivalent Debt is intended to be incurred under clause (e) of this definition and any other
clause of this definition in a single transaction or series of related transactions, (A) the incurrence of the portion of such Incremental
Facility or Incremental Equivalent Debt to be incurred or implemented under clause (e) of this definition shall be calculated first without
giving effect to any Incremental Facilities or Incremental Equivalent Debt to be incurred under any other clause of this definition,
but giving full pro forma effect to the use of proceeds of the entire amount of such Incremental Facility or Incremental Equivalent Debt
and the related transactions and (B) the incurrence of the portion of such Incremental Facility or Incremental Equivalent Debt to be
incurred or implemented under the other applicable clauses of this definition shall be calculated thereafter, and
(3)
any portion of any Incremental Facility or Incremental Equivalent Debt that is incurred under clauses (a) through (d) of this definition,
unless otherwise elected by the Borrower, shall automatically and without need for action by any Person, be reclassified as having been
incurred under clause (e) of this definition if, at any time after the incurrence thereof, when financial statements required pursuant
to Section 5.01(a) or (b) are delivered or, if earlier, become internally available, such portion of such Incremental Facility
or Incremental Equivalent Debt would, using the figures reflected in such financial statements, be (or have been) permitted under the
First Lien Leverage Ratio, Secured Leverage Ratio, Total Leverage Ratio or Interest Coverage Ratio test, as applicable, set forth in
clause (e) of this definition.
“Incremental
Commitment” means any commitment made by a lender to provide all or any portion of any Incremental Facility or Incremental
Loans.
“Incremental
Equivalent Debt” means any Indebtedness that satisfies the following conditions:
(a)
the aggregate outstanding principal amount thereof does not exceed the Incremental Cap as in effect at the time of determination (after
giving effect to any reclassification on or prior to such date of determination),
(b)
the Weighted Average Life to Maturity of such Indebtedness is no shorter than the remaining Weighted Average Life to Maturity of the
Initial Term Loans and the final maturity date of such Indebtedness is no earlier than the Latest Term Loan Maturity Date applicable
to the Initial Term Loans, in each case as determined on the date of the issuance or incurrence, as applicable, thereof; provided,
that the foregoing limitations shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided, that
any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such
bridge loans shall be subject to the requirements of this clause (b) or (ii) Indebtedness subject to the Permitted Earlier
Maturity Indebtedness Exception,
(c)
subject to clause (b), such Indebtedness may otherwise have an amortization schedule as determined by the Borrower and the lenders providing
such Indebtedness,
(d)
if such Indebtedness is in the form of broadly syndicated Dollar denominated term loans that are pari passu with the Initial Term
Loans in right of payment and with respect to security (other than customary bridge loans with a maturity date of not longer than one
year that are convertible or exchangeable into, or are intended to be refinanced with, any Indebtedness other than term loans that are
pari passu with the Initial Term Loans in right of payment and with respect to security), the MFN Provisions of Section 2.22(a)(v)
shall apply to such Indebtedness as if (but only to the extent, including after giving effect to applicable exclusions and sunset
provisions) such Indebtedness was an Incremental Term Facility of the type subject to the provisions of Section 2.22(a)(v), mutatis
mutandis,
(e)
if such Indebtedness is secured by assets that constitute Collateral, the holders of such Indebtedness (or a representative therefor)
shall be party to an Acceptable Intercreditor Agreement,
(f)
such Indebtedness may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment
of Term Loans made pursuant to Section 2.11(a) and (B) to the extent secured on a pari passu basis with the Initial Term Loans, on a
pro rata basis (but not on a greater than pro rata basis other than in the case of a prepayment with proceeds of Indebtedness refinancing
such Incremental Equivalent Debt) in any mandatory prepayment of Term Loans required pursuant to Section 2.11(b) or less than a pro rata
basis with the then-outstanding Term Facility, and
(g)
if any financial maintenance covenant is added to any such Indebtedness and such financial maintenance covenant is more favorable to
the lenders under such Indebtedness than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable
after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable
financial maintenance covenant (together with, at the election of the Borrower, any applicable “equity cure” provisions with
respect to any such financial maintenance covenant).
“Incremental
Facilities” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Facility Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (solely
for purposes of giving effect to Section 2.22) and the Borrower executed by each of (a) Holdings and the Borrower, (b) the Administrative
Agent and (c) each Lender that agrees to provide all or any portion of the Incremental Facility being incurred pursuant thereto and in
accordance with Section 2.22.
“Incremental
Loans” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Revolving Facility” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Revolving Facility Lender” means, with respect to any Incremental Revolving Facility, each Revolving Lender providing any
portion of such Incremental Revolving Facility.
“Incremental Revolving Loans” has the meaning assigned to such
term in Section 2.22(a).
“Incremental
Term Facility” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Term Loans” has the meaning assigned to such term in Section 2.22(a).
“Incurrence-Based
Amounts” has the meaning assigned to such term in Section 1.04(g).
“Indebtedness”
as applied to any Person means, without duplication, (a) all indebtedness of such Person for borrowed money; (b) the Attributable Debt
of such Person in respect of any Capital Lease of such Person; (c) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments to the extent the same would appear as a liability on a balance sheet (excluding the footnotes thereto) of such
Person prepared in accordance with GAAP; (d) any obligation of such Person owed for all or any part of the deferred purchase price of
property or services (excluding (w) any earn out obligation or purchase price adjustment until such obligation (A) becomes a liability
on the balance sheet of such Person (excluding the footnotes thereto) in accordance with GAAP and (B) has not been paid within 30 days
after becoming due and payable following expiration of any dispute resolution mechanics set forth in the applicable agreement governing
the applicable transaction, (x) any such obligations incurred under ERISA or under any employee consulting agreements, (y) accrued expenses,
trade accounts payable and accruals for payroll, in the ordinary course of business (including on an intercompany basis) and (z) liabilities
associated with customer prepayments and deposits), which purchase price is (i) due more than six months from the date of incurrence
of the obligation in respect thereof or (ii) evidenced by a note or similar written instrument; (e) all Indebtedness of others secured
by any Lien on any property or asset owned or held by such Person regardless of whether the Indebtedness secured thereby has been assumed
by such Person or is non-recourse to the credit of such Person; (f) the face amount of any letter of credit issued for the account of
such Person or as to which such Person is otherwise liable for reimbursement of drawings; (g) the Guarantee by such Person of the Indebtedness
of another; (h) all obligations of such Person in respect of any Disqualified Capital Stock; and (i) all net obligations of such Person
in respect of any Derivative Transaction, including any Hedge Agreement, whether or not entered into for hedging or speculative purposes;
provided that (i) in no event shall obligations under any Derivative Transaction be deemed “Indebtedness” for any
calculation of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio or any
other financial ratio under this Agreement, (ii) in all cases Indebtedness shall exclude any Excluded Property Limited Recourse Financing,
(iii) the amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (A) the
aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the documentation
pursuant to which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as determined by such
Person in good faith and (iv) the amount of any Limited Recourse Debt of any Person shall be deemed to be equal to the lesser of (A)
the aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the documentation
pursuant to which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as determined by such
Person in good faith.
For
all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or any Joint Venture (other
than any Joint Venture that is itself a corporation or limited liability company) in which such Person is a general partner or a
joint venturer, except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent
such Indebtedness would otherwise be included in the calculation of Consolidated Total Debt; provided that notwithstanding
anything herein to the contrary, the term “Indebtedness” shall not include, and shall be calculated without giving
effect to, (x) the effects of Accounting Standards Codification Topic 815 and related interpretations to the extent such effects
would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded
derivatives created by the terms of such Indebtedness (it being understood that any such amounts that would have constituted
Indebtedness hereunder but for the application of this proviso shall not be deemed an incurrence of Indebtedness hereunder), (y) the
effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would
otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded
derivative created by the terms of such Indebtedness (it being understood that any such amounts that would have constituted
Indebtedness hereunder but for the application of this proviso shall not be deemed to be an incurrence of Indebtedness hereunder)
and (z) Indebtedness of any Parent Company appearing on the balance sheet of the Borrower or any of its Subsidiaries solely by
reason of push down accounting under GAAP.
“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation
of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee”
has the meaning assigned to such term in Section 9.03(b).
“Information” has the meaning set forth in Section
3.11(a).
“Information
Memorandum” means the Confidential Information Memorandum finalized on or about June 20, 2017, relating to the Borrower and
its subsidiaries and the Transactions.
“Initial
Lenders” means the Arrangers and the affiliates of the Arrangers who are party to this Agreement as Lenders on the Closing
Date.
“Initial
Revolving Credit Commitment” means, with respect to any Person, the commitment of such Person to make Initial Revolving Loans
(and acquire participations in Letters of Credit and Swingline Loans) hereunder as set forth on the Commitment Schedule, or in the Assignment
Agreement pursuant to which such Lender assumed its Initial Revolving Credit Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 or 2.19, (b) reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 9.05 or (c) increased pursuant to Section 2.22. The aggregate amount of the Initial
Revolving Credit Commitments as of the Closing Date is $50,000,000.
“Initial
Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of
all Initial Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure and Swingline
Exposure, in each case, attributable to its Initial Revolving Credit Commitment.
“Initial
Revolving Credit Maturity Date” means the date that is five years after the Closing Date.
“Initial
Revolving Facility” means the Initial Revolving Credit Commitments and the Initial Revolving Loans and other extensions of
credit thereunder.
“Initial
Revolving Lender” means any Person with an Initial Revolving Credit Commitment or any Initial Revolving Credit Exposure.
“Initial
Revolving Loan” means any revolving loan made by the Initial Revolving Lenders to the Borrower pursuant to Section
2.01(a)(ii).
“Initial
Term Lender” means any Person with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial
Term Loan Commitment” means, with respect to any Person, the commitment of such Person to make Initial Term Loans hereunder
in an aggregate amount not to exceed the amount set forth opposite such Person’s name on the Commitment Schedule, as the same may
be (a) reduced from time to time pursuant to Section 2.09 or Section 2.19 and (b) reduced or increased from time to time
pursuant to (x) assignments by or to such Person pursuant to Section 9.05 or (y) an Additional Term Loan Commitment. The aggregate
amount of the Initial Term Loan Commitments on the Closing Date is $585,000,000.The
aggregate amount of the Initial Term Loan Commitments on the Amendment
No. 1 Effective Date is $113,000,000.
“Initial
Term Loan Maturity Date” means the date that is seven years after the Closing Date.
“Initial
Term Loans” means the term loans (including, without limitation,
any Amendment No. 1 Incremental Term Loans) made
by the Initial Term Lenders to the Borrower pursuant to Section 2.01(a)(i).
“Intellectual
Property Security Agreement” means any agreement executed on or after the Closing Date confirming or effecting the grant of
any Lien on IP Rights owned by any Loan Party to the Administrative Agent, for the benefit of the Secured Parties, in accordance with
this Agreement, including any of the following: (a) a Trademark Security Agreement substantially in the form of Exhibit H-1 hereto,
(b) a Patent Security Agreement substantially in the form of Exhibit H-2 hereto or (c) a Copyright Security Agreement substantially
in the form of Exhibit H-3 hereto.
“Intercreditor
Agreement” means the Intercreditor Agreement substantially in the form of Exhibit N hereto, dated as of the Closing
Date, among, inter alios, the Second Lien Collateral Agent, as agent for the Second Lien Claimholders referred to therein, the
Administrative Agent, as agent for the First Lien Claimholders referred to therein, if applicable, the provider of any Additional Letter
of Credit Facility (or a representative thereof) and the Loan Parties from time to time party thereto.
“Interest
Coverage Ratio” means, as of any date of determination, the ratio for the most recently ended Test Period of (a) Consolidated
Adjusted EBITDA for such Test Period to (b) Ratio Interest Expense for such Test Period; provided that, for purposes of calculating
the Interest Coverage Ratio for any period ending prior to the first anniversary of the Closing Date, Ratio Interest Expense shall be
an amount equal to actual Ratio Interest Expense from the Closing Date through the date of determination multiplied by a fraction the
numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the date of determination.
“Interest
Election Request” means a request by the Borrower in the form of Exhibit D hereto or another form reasonably acceptable
to the Administrative Agent to convert or continue a Borrowing in accordance with Section 2.08.
“Interest
Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December
(commencing with the last Business Day of September 2017) or the maturity date applicable to such Loan and (b) with respect to any
LIBO Rate Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a
LIBO Rate Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing.
“Interest
Period” means with respect to any LIBO Rate Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the calendar month that is one, two, three or six months (or, to the extent available to all
relevant affected Lenders, twelve months or, to the extent acceptable to all applicable Lenders, a shorter period) thereafter, as
the Borrower may elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that
commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
“Investment”
means (a) any purchase or other acquisition by the Borrower or any of its Restricted Subsidiaries of any of the Securities of any other
Person (other than any Loan Party), (b) the acquisition by purchase or otherwise (other than any purchase or other acquisition of inventory,
materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the business, property or
fixed assets of any other Person or any division or line of business or other business unit of any other Person and (c) any loan, advance
(other than any advance to any current or former employee, officer, director, member of management, manager, consultant or independent
contractor of the Borrower, any Restricted Subsidiary or any Parent Company for moving, entertainment and travel expenses, drawing accounts
and similar expenditures or payroll expenses or advances in the ordinary course of business) or capital contribution by the Borrower
or any of its Restricted Subsidiaries to any other Person. Subject to Section 5.10, the amount of any Investment shall be the
original cost of such Investment, plus the cost of any addition thereto that otherwise constitutes an Investment, without any
adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but giving effect to any
repayments of principal in the case of any Investment in the form of a loan and any return of capital or return on Investment in the
case of any equity Investment (whether as a distribution, dividend, redemption or sale).
“Investors”
means (a) the Sponsor, (b) the Management Investors and (c) other investors identified to the Administrative Agent in writing that, directly
or indirectly, beneficially own Capital Stock in Holdings on the Closing Date.
“IP
Rights” has the meaning assigned to such term in Section 3.05(c).
“IPO
Reorganization Transaction” means any transaction taken in connection with and reasonably related to consummating a Qualifying
IPO by the Borrower or any Parent Company thereof so long as, after giving effect thereto, (a) the Loan Parties are in compliance with
the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest of the Secured Parties in the Collateral,
taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral immediately prior
to such IPO Reorganization Transaction no longer constituting Collateral) as a result of such IPO Reorganization Transaction.
“IRS”
means the U.S. Internal Revenue Service.
“Issuing
Bank” means, as the context may require, (a) JPM, (b) solely with respect to any Existing Letter of Credit (and any amendment,
renewal or extension thereof in accordance with the terms of this Agreement), each Existing Letter of Credit Issuer and (c) each other
Revolving Lender party hereto from time to time that is appointed as an Issuing Bank in accordance with Section 2.05(i). Subject
to the reasonable consent of the Borrower (subject to the standards set forth in Section 9.05(b)), any Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by any Affiliate of such Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“iStar
Amendments” means the iStar I Eighth Amendment, the iStar II Eighth Amendment and the iStar 2014 Amendment, individually or
collectively (as the context may require).
“iStar
I Eighth Amendment” means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers I
LP, and solely with respect to the Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and
AMF Bowling Centers, Inc., as tenant.
“iStar
II Eighth Amendment” means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers II
LP, as landlord, and AMF Bowling Centers, Inc., as tenant.
“iStar
2014 Amendment” means that certain lease amendment that is expected to be the “First Lease Amendment” in respect
of the iStar Sale/Leaseback 2014 Documents, which is anticipated to include (among other things) certain changes generally consistent
with the iStar I Eighth Amendment and iStar II Eighth Amendment, to be entered into between BW Bowling Properties LP, and solely with
respect to the Site (as defined in subparagraph 34(n)(v) therein) located in Pennsylvania, BW Bowling Properties LLC, as landlord, and
Leiserv, LLC and Brunswick Centres, Inc., as tenant.
“iStar
Exchange” means those transactions described in Section 11 of each of the iStar I Eighth Amendment and the iStar II Eighth
Amendment.
“iStar
Exchange Documents” means the agreements and other documents governing any iStar Exchange transaction, as more particularly
described in each of the iStar I Eighth Amendment and the iStar II Eighth Amendment.
“iStar
Sale/Leaseback” means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback Documents.
“iStar
Sale/Leaseback 2014” means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback 2014 Documents.
“iStar
Sale/Leaseback 2014 Documents” means (i) the Lease Agreement, dated as of September 18, 2014, by and among BW Bowling
Properties LP, BW Bowling Properties Canada Inc. and BW Bowling Properties LLC (collectively as landlord) and Leiserv, LLC and
Brunswick Centres, Inc. (jointly and severally, as tenant) and (ii) the Guaranty dated as of September 18, 2014 by Holdings in favor
of BW Bowling Properties LP, BW Bowling Properties Canada Inc. and BW Bowling Properties LLC, in each case as the same may be
amended, modified or supplemented through the date hereof and from time to time hereafter in accordance with the provisions thereof,
and including all basic lease information and all other agreements, documents and instruments relating to the iStar Sale/Leaseback
2014 and all exhibits and schedules to any of the foregoing.
“iStar
Sale/Leaseback Documents” means (I) (a) the Lease I Agreement dated as of February 27, 2004 between iStar Bowling Centers
I LP, and solely with respect to the Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and
AMF Bowling Centers, Inc., as tenant, as amended by (i) that certain First Lease Amendment dated as of June 30, 2004, intending to
be effective as of February 27, 2004, (ii) that certain Second Lease Amendment dated as of February 3, 2005, intending to be
effective as of February 27, 2004, (iii) that certain Third Lease Amendment dated as of June 18, 2008, intending to be effective as
of March 30, 2008, (iv) that certain Fourth Lease Amendment dated and intended to be effective as of July 1, 2013, (v) that certain
Fifth Lease Amendment dated and intended to be effective as of September 25, 2013, (vi) that certain Sixth Lease Amendment dated and
intended to be effective as of October 3, 2014, (vii) that certain Amended and Restated Seventh Lease Amendment dated and intended
to be effective as of September 9, 2016, and (viii) the iStar I Eighth Amendment, (b) the Guaranty dated as of July 1, 2013 by
Holdings in favor of iStar Bowling Centers I LP, and (II) (a) the Lease II Agreement dated as of February 27, 2004 between iStar
Bowling Centers II LP, as landlord, and AMF Bowling Centers, Inc., as tenant, as amended by (i) that certain First Lease Amendment
dated as of June 30, 2004, intending to be effective as of February 27, 2004, (ii) that certain Second Lease Amendment dated as of
February 3, 2005, intending to be effective as of February 27, 2004, (iii) that certain Third Lease Amendment dated as of June 18,
2008, intending to be effective as of March 30, 2008, (iv) that certain Fourth Lease Amendment dated and intended to be effective as
of July 1, 2013, (v) that certain Fifth Lease Amendment dated and intended to be effective as of September 25, 2013, (vi) that
certain Sixth Lease Amendment dated and intended to be effective as of October 3, 2014, (vii) that certain Amended and Restated
Seventh Lease Amendment dated and intended to be effective as of February 23, 2017, and (viii) the iStar II Eighth Amendment, and
(b) the Guaranty dated as of July 1, 2013 by Holdings in favor of iStar Bowling Centers II LP, in each case as the same may be
amended, modified or supplemented through the date hereof and from time to time hereafter in accordance with the provisions thereof,
and including all basic lease information and all other agreements, documents and instruments relating to the iStar Sale/Leaseback
and all exhibits and schedules to any of the foregoing.
“Joint
Venture” means the Thousand Oaks Company, a Texas corporation, and any other joint venture, in the form of a corporation, limited
liability company, business trust, joint venture, association, company or partnership, entered into by the Borrower or any of its Subsidiaries
which (i) is engaged in a line of business in accordance with Section 5.16 and (ii) is formed or organized in a manner that limits
the exposure of the Borrower and its Subsidiaries for the liabilities thereof to (A) the Investments of the Borrower and its Subsidiaries
therein permitted under Section 6.06 and (B) any Indebtedness of any Joint Venture or any Guarantee by the Borrower or any of its Subsidiaries
in respect of such Indebtedness, which Indebtedness or Guarantee are permitted at the time under Section 6.01.
“Junior
Indebtedness” means any Indebtedness for borrowed money (other than Indebtedness among Holdings, the Borrower and/or its subsidiaries)
of the Borrower or any of its Restricted Subsidiaries that is a Loan Party that is expressly subordinated in right of payment to the
Obligations.
“Junior
Lien Indebtedness” means any Indebtedness for borrowed money that is secured by a security interest on the Collateral (other
than Indebtedness among Holdings, the Borrower and/or its subsidiaries) that is expressly junior or subordinated to the Lien securing
the Credit Facilities with respect to the Collateral, including any “Term Loans” governed by the Second Lien Credit Agreement.
“Kingpin
Intermediate” means Kingpin Intermediate Holdings LLC, a Delaware limited liability company.
“Latest
Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment
hereunder at such time, including the latest maturity or expiration date of any Initial Term Loan, Additional Term Loan, Revolving Loan,
Additional Revolving Loan, Initial Revolving Credit Commitment or Additional Commitment.
“Latest
Revolving Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to
any revolving loan or revolving credit commitment hereunder at such time, including the latest maturity or expiration date of any Revolving
Loan, any Additional Revolving Loan, the Revolving Credit Commitment or any Additional Revolving Credit Commitment.
“Latest
Term Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any term
loan or term commitment hereunder at such time, including the latest maturity or expiration date of any Additional Term Loan or Additional
Term Loan Commitment hereunder at such time.
“LC
Collateral Account” has the meaning assigned to such term in Section 2.05(j).
“LC
Disbursement” means a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
“LC
Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time
and (b) the aggregate principal amount of all LC Disbursements that have not yet been reimbursed at such time. The LC Exposure of any
Revolving Lender at any time shall equal its Applicable Percentage of the aggregate LC Exposure at such time.
“Legal
Reservations” means the application of relevant Debtor Relief Laws, general principles of equity and/or principles of good
faith and fair dealing.
“Lenders”
means the Term Lenders, the Revolving Lenders, any Additional Lender, any lender with an Additional Commitment or an outstanding Additional
Loan and any other Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to
be a party hereto pursuant to an Assignment Agreement or as a result of the application of Section 9.05(g).
“Letter
of Credit” means any Standby Letter of Credit or Commercial Letter of Credit issued pursuant to this Agreement (and shall be
deemed to include all Existing Letters of Credit).
“Letter-of-Credit
Right” has the meaning set forth in Article 9 of the UCC.
“Letter
of Credit Sublimit” means $25,000,000, as increased from time to time in accordance with Section 2.22 hereof.
“LIBO
Rate” means, the Published LIBO Rate, as adjusted to reflect applicable reserves prescribed by governmental authorities; provided
that, (a) solely with respect to the Initial Term Loans, in no event shall the LIBO Rate be less than 1.00% per annum and (b) solely
with respect to the Initial Revolving Loans, in no event shall the LIBO Rate be less than 0.00% per annum.
“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capital Lease
having substantially the same economic effect as any of the foregoing), in each case, in the nature of security; provided that
in no event shall an operating lease in and of itself be deemed to constitute a Lien.
“Liquor
License Subsidiaries” means (i) as of the Closing Date, each of the Subsidiaries listed on Schedule 1.01(g) hereto and
(ii) thereafter, any other Restricted Subsidiary of the Borrower established solely for the purpose of satisfying applicable requirements
of local Law with respect to the ownership and use of liquor licenses and which has entered into or has a bona fide intent to enter into
(A) a lease pursuant to which such Restricted Subsidiary leases, as lessee, from Holdings or one or more of its Subsidiaries (other than
another Liquor License Subsidiary) snack bar and related space at one or more bowling centers and (B) a management services agreement
with a Loan Party, pursuant to which such Loan Party provides employees, management and related services to such Subsidiary.
“Limited
Condition Transaction” means any acquisition, Investment, Disposition, Restricted Payment or Restricted Debt Payment permitted
by this Agreement, in each case whose consummation is not conditioned on the availability of, or on obtaining, third-party financing.
“Limited
Recourse Financing” means, with respect to any Person, Indebtedness to the extent: (i) such Person, subject to customary exceptions
for nonrecourse Indebtedness financing, shall not have personal liability with respect to the Indebtedness and the lender thereunder
shall only seek recourse for satisfaction of the Indebtedness against the property or collateral secured thereunder; and (ii) no default
with respect thereto would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Loans or Loans
under any Second Lien Facility) of such Person to declare a default on such other Indebtedness or cause the payment thereof to be accelerated
or payable prior to its stated maturity.
“Loan
Documents” means this Agreement, any Promissory Note, each Loan Guaranty, the Collateral Documents, the Intercreditor Agreement,
any Acceptable Intercreditor Agreement and any other document or instrument designated by the Borrower and the Administrative Agent as
a “Loan Document”, including any Incremental Facility Amendment (including Amendment No. 1),
Refinancing Amendment or Extension Amendment or any other amendment hereto or thereto. Any reference in this Agreement or any other Loan
Document to a Loan Document shall include all appendices, exhibits or schedules thereto.
“Loan
Guaranty” means (a) the Guaranty Agreement, substantially in the form of Exhibit I hereto, executed by each Loan Party
party thereto and the Administrative Agent for the benefit of the Secured Parties and (b) each other guaranty agreement executed by any
Person pursuant to Section 5.12 in substantially the form attached as Exhibit I hereto or another form that is otherwise
reasonably satisfactory to the Administrative Agent and the Borrower.
“Loan
Installment Date” has the meaning assigned to such term in Section 2.10(a).
“Loan
Parties” means Holdings, the Borrower and each Subsidiary Guarantor.
“Loans”
means any Initial Term Loan, any Additional Term Loan, any Revolving Loan, any Swingline Loan or any Additional Revolving
Loan.
“Management
Investors” means the officers, directors, managers, employees and members of management of (i) the Borrower, (ii) any Parent
Company and/or (iii) any subsidiary of the Borrower (including, on the Closing Date, those of the Target and its subsidiaries) and the
Immediate Family Members of any of the foregoing.
“Margin
Stock” has the meaning assigned to such term in Regulation U.
“Market
Capitalization” means, at any date of determination pursuant to Section 1.04(e), the amount equal to (a) the total number
of then issued and outstanding shares of common Capital Stock of the Borrower or any Parent Company multiplied by (b) the arithmetic
mean of the closing prices per share of such common Capital Stock on the principal securities exchange on which such common Capital Stock
are traded for the 30 consecutive trading days immediately preceding such date.
“Market
Intercreditor Agreement” means an intercreditor or subordination agreement or arrangement the terms of which are either
(a)(i) consistent with market terms governing intercreditor arrangements for the sharing or subordination of liens or arrangements
relating to the distribution of payments, as applicable, at the time the applicable agreement or arrangement is proposed to be
established in light of the type of Indebtedness subject thereto or (ii) taken as a whole, not materially less favorable to the
Lenders than the terms of any Acceptable Intercreditor Agreement governing similar priorities that is then in effect, in each case
as determined by the Borrower in good faith or (b) in the event a “Market Intercreditor Agreement” has been entered into
after the Closing Date meeting the requirement of the preceding clause (a), the terms of which are, taken as a whole, not materially
less favorable to the Lenders than the terms of such Market Intercreditor Agreement to the extent such agreement governs similar
priorities.
“Material
Adverse Effect” means (a) on the Closing Date, a Closing Date Material Adverse Effect and (b) after the Closing Date, a material
adverse effect on (i) the business, financial condition or results of operations, in each case, of the Borrower and its Restricted Subsidiaries,
taken as a whole or (ii) the material rights and remedies (taken as a whole) of the Administrative Agent under the applicable Loan Documents.
“Material
Debt Instrument” means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged
and delivered to the Administrative Agent (or its bailee) pursuant to the Security Agreement.
“Material
Real Estate Asset” means any “fee-owned” Real Estate Asset acquired by any Loan Party after the Closing Date (other
than as part of the iStar Exchange or EAP Substitution) having a fair market value (as determined by the Borrower in good faith after
taking into account any liabilities with respect thereto that impact such fair market value) in excess of $12,500,000 as of the date
of acquisition thereof (provided that the aggregate fair market value of all properties acquired after the Closing Date and so excluded
on account of such dollar threshold (each determined at the time of such initial exclusion) shall not exceed $50,000,000).
“Maturity
Date” means (a) with respect to the Initial Revolving Facility, the Initial Revolving Credit Maturity Date, (b) with respect
to the Initial Term Loans, the Initial Term Loan Maturity Date, (c) with respect to any Replacement Term Loans or Replacement Revolving
Facility, the final maturity date for such Replacement Term Loans or Replacement Revolving Facility, as the case may be, as set forth
in the applicable Refinancing Amendment, (d) with respect to any Incremental Facility, the final maturity date set forth in the applicable
Incremental Facility Amendment and (e) with respect to any Extended Revolving Credit Commitment or Extended Term Loans, the final maturity
date set forth in the applicable Extension Amendment.
“Maximum
Rate” has the meaning assigned to such term in Section 9.19.
“Merger
Sub 1” has the meaning assigned to such term in the Preamble to this Agreement.
“Merger Sub 1 Merger” has
the meaning assigned to such term in the Recitals to this Agreement.
“Merger
Sub 2” has the meaning assigned to such term in the Preamble to this Agreement.
“Merger Sub 2 Merger” has
the meaning assigned to such term in the Recitals to this Agreement.
“Mergers”
or “Merger” means the Merger Sub 1 Merger and/or the Merger Sub 2 Merger, as the context may require.
“MFN
Provision” has the meaning assigned to such term in Section 2.22(a)(v).
“Minimum
Equity Percentage” has the meaning assigned to such term in the Recitals to this Agreement.
“Minimum
Extension Condition” has the meaning assigned to such term in Section 2.23(b).
“Moody’s” means
Moody’s Investors Service, Inc.
“Mortgage”
means any mortgage, deed of trust, deed to secure debt or other agreement which conveys or evidences a Lien in favor of the Administrative
Agent, for the benefit of the Administrative Agent and the relevant Secured Parties, on any Material Real Estate Asset constituting Collateral.
“Mortgage
Policy” has the meaning assigned to such term in the definition of “Collateral and Guarantee
Requirement”.
“Multiemployer
Plan” means any employee benefit plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA, that
is subject to the provisions of Title IV of ERISA, and in respect of which the Borrower or any of its Restricted Subsidiaries, or any
of their respective ERISA Affiliates, makes or is obligated to make contributions or with respect to which any of them has any ongoing
obligation or liability, contingent or otherwise.
“Narrative
Report” means, with respect to the financial statements with respect to which it is delivered, a management discussion and
narrative report describing the operations of the Borrower and its Restricted Subsidiaries for the applicable Fiscal Quarter or Fiscal
Year and for the period from the beginning of the then-current Fiscal Year to the end of the period to which the relevant financial statements
relate.
“Net
Insurance/Condemnation Proceeds” means an amount equal to: (a) any Cash payments or proceeds (including Cash Equivalents)
received by the Borrower or any of its Restricted Subsidiaries (i) under any casualty insurance policy in respect of a covered loss
thereunder of any assets of the Borrower or any of its Restricted Subsidiaries or (ii) as a result of the taking of any assets of
the Borrower or any of its Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise,
or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (b) in respect of the
Loan Parties or any of their respective subsidiaries, Affiliates or direct or indirect equityholders (i) any actual out-of-pocket
costs and expenses incurred in connection with the adjustment, settlement or collection of any claims in respect thereof, (ii)
payment of the outstanding principal amount of, premium or penalty, if any, and interest and other amounts on any Indebtedness
(other than the Loans, Indebtedness under any Second Lien Facility and any Indebtedness secured by a Lien on the Collateral that is pari
passu with or expressly subordinated to the Lien on the Collateral securing the Secured Obligations) that is secured by a Lien
on the assets in question and that is required to be repaid or otherwise comes due or would be in default under the terms thereof as
a result of such loss, taking or sale, (iii) in the case of a taking, the reasonable out-of-pocket costs of putting any affected
property in a safe and secure position, (iv) any selling costs and out-of-pocket expenses (including reasonable broker’s fees
or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related
search and recording charges, deed or mortgage recording taxes, other expenses and brokerage, consultant and other customary fees
actually incurred in connection therewith and transfer and similar Taxes and the Borrower’s good faith estimate of income
Taxes paid or payable (including pursuant to Tax sharing arrangements or that are or would be imposed on intercompany distributions
with such proceeds)) in connection with any sale or taking of such assets as described in clause (a) of this definition, (v)
any amounts provided as a reserve in accordance with GAAP against any liabilities under any indemnification obligation or purchase
price adjustments associated with any sale or taking of such assets as referred to in clause (a) of this definition
(provided that to the extent and at the time any such amounts are released from such reserve, other than to make a payment
for which such amount was reserved, such amounts shall constitute Net Insurance/Condemnation Proceeds) and (vi) in the case of any
covered loss or taking from any non-Wholly-Owned Subsidiary, the pro rata portion thereof (calculated without regard to this clause
(vi)) attributable to minority interests and not available for distribution to or for the account of the Borrower or a
Wholly-Owned Subsidiary as a result thereof.
“Net
Proceeds” means (a) with respect to any Disposition (including any Prepayment Asset Sale), the Cash proceeds (including Cash
Equivalents and Cash proceeds subsequently received (as and when received) in respect of non-cash consideration initially received),
net of (with respect to any Loan Party or its subsidiaries, Affiliates or direct or indirect equity owners) (i) selling costs and out-of-pocket
expenses (including broker’s fees or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title
insurance premiums, and related search and recording charges, deed or mortgage recording taxes, other customary expenses and brokerage,
consultant and other customary fees actually incurred in connection therewith and transfer and similar Taxes and the Borrower’s
good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or that are or would be imposed on
intercompany distributions with such proceeds) in connection with such Disposition), (ii) amounts provided as a reserve in accordance
with GAAP against any liabilities under any indemnification obligation or purchase price adjustment associated with such Disposition
(provided that to the extent and at the time any such amounts are released from such reserve, other than to make a payment for
which such amount was reserved, such amounts shall constitute Net Proceeds), (iii) the principal amount, premium or penalty, if any,
interest and other amounts on any Indebtedness (other than the Loans, Indebtedness under any Second Lien Facility and any other Indebtedness
secured by a Lien on the Collateral that is pari passu with or expressly subordinated to the Lien on the Collateral securing the Secured
Obligations) which is secured by the asset sold in such Disposition and which is required to be repaid or otherwise comes due or would
be in default and is repaid (other than any such Indebtedness that is assumed by the purchaser of such asset), (iv) Cash escrows (until
released from escrow to the Borrower or any of its Restricted Subsidiaries) from the sale price for such Disposition and (v) in the case
of any Disposition by any non-Wholly-Owned Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to
this clause (v)) attributable to any minority interest and not available for distribution to or for the account of the Borrower
or a Wholly-Owned Subsidiary as a result thereof; and (b) with respect to any issuance or incurrence of Indebtedness or Capital Stock,
the Cash proceeds thereof, net of all Taxes and fees, commissions, costs, underwriting discounts and other fees and expenses incurred
in connection therewith.
“New
Holdings” means the Person that shall, immediately following the consummation of a Holdings Reorganization Transaction in accordance
with the provisions of the definition thereof, hold 100% of the Capital Stock of the Borrower.
“Non-Consenting
Lender” has the meaning assigned to such term in Section 2.19(b).
“Non-Debt
Fund Affiliate” means the Sponsor and any Affiliate of the Sponsor, other than any Debt Fund Affiliate.
“Notice
of Intent to Cure” has the meaning assigned to such term in Section 6.15(b).
“Obligations”
means all unpaid principal of and accrued and unpaid interest (including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, all LC Exposure,
all accrued and unpaid fees and all expenses, reimbursements, indemnities and all other advances to, debts, liabilities and obligations
of the Loan Parties to the Lenders or to any Lender, the Administrative Agent, any Issuing Bank or any indemnified party arising under
the Loan Documents in respect of any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute,
contingent, due or to become due, now existing or hereafter arising.
“Organizational
Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its
by-laws, (b) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with
respect to any general partnership, its partnership agreement, (d) with respect to any limited liability company, its articles of organization
or certificate of formation, and its operating agreement or limited liability company agreement and (e) with respect to any other form
of entity, such other organizational documents required by local Requirements of Law or customary under the jurisdiction in which such
entity is organized to document the formation and governance principles of such type of entity. In the event that any term or condition
of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily
certified by such governmental official.
“Other
Applicable Indebtedness” has the meaning assigned to such term in Section 2.11(b)(i).
“Other Connection
Taxes” means, with respect to any Lender or Administrative Agent, Taxes imposed as a result of a present or former
connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely from such recipient
having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a
security interest under, or engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an
interest in any Loan or Loan Document).
“Other
Taxes” means any and all present or future stamp, court or documentary taxes or any intangible, recording, filing or similar
taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than
an assignment made pursuant to Section 2.19). For the avoidance of doubt, Other Taxes do not include any Excluded Taxes.
“Outstanding
Amount” means (a) with respect to Term Loans, Revolving Loans and Swingline Loans on any date, the amount of the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Loans
and Swingline Loans, as the case may be, occurring on such date, (b) with respect to any Letters of Credit, the aggregate amount available
to be drawn under such Letters of Credit after giving effect to any changes in the aggregate amount available to be drawn under such
Letters of Credit or the issuance or expiry of any Letters of Credit, including as a result of any LC Disbursements and (c) with respect
to any LC Disbursements on any date, the amount of the aggregate outstanding amount of such LC Disbursements on such date after giving
effect to any disbursements with respect to any Letter of Credit occurring on such date and any other changes in the aggregate amount
of the LC Disbursements as of such date, including as a result of any reimbursements by the Borrower of unreimbursed LC Disbursements.
“Parent”
means A-B Parent LLC, a Delaware limited liability company.
“Parent
Company” means (a) Holdings and (b) any other Person or group of Persons that are Affiliates of the Sponsor (but in any event
not any portfolio company of the Sponsor), of which the Borrower is an indirect Wholly-Owned
Subsidiary.
“Participant”
has the meaning assigned to such term in Section 9.05(c).
“Participant Register” has the meaning assigned to
such term in Section 9.05(c).
“Patent”
means the following: (a) any and all patents and patent applications; (b) all inventions described and claimed therein; (c) all reissues,
divisions, continuations, renewals, extensions and continuations in part thereof; (d) all income, royalties, damages, claims and payments
now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future
infringements thereof; (e) all rights to sue for past, present and future infringements thereof; and (f) all rights corresponding to
any of the foregoing.
“PBGC”
means the Pension Benefit Guaranty Corporation.
“Pension
Plan” means any employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that
is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, which the Borrower or any of its
Restricted Subsidiaries, or any of their respective ERISA Affiliates, maintains or contributes to or has an obligation to contribute
to, or otherwise has any liability for, contingent or otherwise.
“Perfection
Certificate” means a certificate substantially in the form of Exhibit E.
“Perfection
Requirements” means (a) the filing of appropriate financing statements with the office of the Secretary of State or other appropriate
office in the state of organization of each Loan Party, (b) the filing of Intellectual Property Security Agreements or other appropriate
assignments or notices with the U.S. Patent and Trademark Office and/or the U.S. Copyright Office, as applicable, (c) the proper recording
or filing, as applicable, of Mortgages and fixture filings with respect to any Material Real Estate Asset constituting Collateral, in
each case in favor of the Administrative Agent for the benefit of the Secured Parties, (d) the delivery to the Administrative Agent of
any stock certificate or promissory note to the extent required to be delivered by the applicable Loan Documents and (e) other filings,
recordings and registrations necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Administrative
Agent or to enforce the rights of the Administrative Agent and the Secured Parties under the Loan Documents.
“Permitted
Acquisition” means any acquisition by the Borrower or any of its Restricted Subsidiaries, whether by purchase, merger, amalgamation
or otherwise, of all or a substantial portion of the assets of, or any business line, unit or division or product line (including research
and development and related assets in respect of any product or facility) of, any Person or of a majority of the outstanding Capital
Stock of any Person (and, in any event, including any Investment in any Restricted Subsidiary which serves to increase the Borrower’s
or any Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary), in each case if (1) such Person is or
becomes a Restricted Subsidiary or (2) such Person, in one transaction or a series of related transactions, is amalgamated, merged or
consolidated with or into, or transfers or conveys all or a substantial portion of its assets (or such division, business line, unit
or product line or facility) to, or is liquidated into, the Borrower and/or any Restricted Subsidiary as a result of such transaction;
provided that (i) the target Person, assets, business or division in respect of such acquisition is a business permitted under
Section 5.16 and (ii) at the applicable time elected by the Borrower in accordance with Section 1.04(e), with respect to
such acquisition, no Event of Default under Section 7.01(a), (f) or (g) shall be continuing.
“Permitted
Earlier Maturity Indebtedness Exception” means, with respect to any Incremental Term Facility and any Incremental
Equivalent Debt permitted to be incurred hereunder, that up to $20,000,000 aggregate principal amount of such Indebtedness
outstanding at any time (the “Specified Debt”) may have a final maturity date that is earlier than, and a
Weighted Average Life to Maturity that is shorter than the remaining Weighted Average Life to maturity of, the Indebtedness with
respect to which the Specified Debt is otherwise required to have a later final maturity date or Weighted Average Life.
“Permitted
Equity” has the meaning assigned to such term in the Recitals to this Agreement.
“Permitted
Holders” means (a) the Investors, (b) the Shannon Holders and (c) any Person with which one or more Investors and/or the
Shannon Holders form a “group” (within the meaning of Section 14(d) of the Exchange Act as in effect on the date hereof)
so long as, in the case of this clause (c), the relevant Investors and /or the Shannon Holders collectively own more than 50%
of the relevant voting stock beneficially owned by the group.
“Permitted
Liens” means Liens permitted pursuant to Section 6.02.
“Permitted
Payee” means any future, current or former director, officer, member of management, manager, employee, independent contractor
or consultant (or any Immediate Family Member or transferee of any of the foregoing) of the Borrower (or any Parent Company or any subsidiary).
“Permitted
Reorganization” means any transaction or undertaking, including Investments, in connection with internal reorganizations and
or restructurings (including in connection with tax planning and corporate reorganizations), so long as, after giving effect thereto,
(a) the Loan Parties shall comply with the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest of the
Secured Parties in the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute
Collateral immediately prior to such Permitted Reorganization no longer constituting Collateral) as a result of such Permitted Reorganization.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or any other entity.
“Preferred
Capital Stock” means any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution or
winding up.
“Prepayment
Asset Sale” means any Disposition by the Borrower or its Restricted Subsidiaries made pursuant to Section 6.07(h).
“Primary
Obligor” has the meaning assigned to such term in the definition of “Guarantee”.
“Prime
Rate” means (a) the rate of interest publicly announced, from time to time, by the Administrative Agent at its principal
office in New York City as its “prime rate,” with the understanding that the “prime rate” is one of the
Administrative Agent’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective
rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its
announcement in such internal publications as the Administrative Agent may designate or (b) if the Administrative Agent has no
“prime rate,” the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the
U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal
Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate
or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent)
or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent).
“Pro
Forma Basis” or “pro forma effect” means, with respect to any determination of the Total Leverage
Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted EBITDA,
Consolidated Net Income or Consolidated Total Assets (including component definitions thereof) that each Subject Transaction shall
be deemed to have occurred as of the first day of the applicable Test Period (or, in the case of Consolidated Total Assets (or with
respect to any determination pertaining to the balance sheet, including the acquisition of Cash and Cash Equivalents in connection
with an acquisition of a Person, business line, unit, division or product line), as of the last day of such Test Period) with
respect to any test or covenant for which such calculation is being made and that:
(a)
(i) in the case of (A) any Disposition of all or substantially all of the Capital Stock of any Restricted Subsidiary or any division
and/or product line of the Borrower or any Restricted Subsidiary or (B) any designation of a Restricted Subsidiary as an Unrestricted
Subsidiary, income statement items (whether positive or negative) attributable to the property or Person subject to such Subject Transaction,
shall be excluded as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination
is being made and (ii) in the case of any Permitted Acquisition, Investment and/or designation of an Unrestricted Subsidiary as a Restricted
Subsidiary described in the definition of the term “Subject Transaction”, income statement items (whether positive or negative)
attributable to the property or Person subject to such Subject Transaction shall be included as of the first day of the applicable Test
Period with respect to any test or covenant for which the relevant determination is being made; provided that any pro forma adjustment
may be applied to any such test or covenant solely to the extent that such adjustment is consistent with, subject to the limitations
set forth in and without duplication with respect to the application of, the definition of “Consolidated Adjusted EBITDA”,
(b)
any Expected Cost Savings as a result of any Cost Savings Initiative shall be calculated on a pro forma basis as though such Expected
Costs Savings had been realized on the first day of the applicable Test Period and as if such Expected Cost Savings were realized in
full during the entirety of such period; provided that any pro forma adjustment may be applied to any such test or covenant solely to
the extent that such adjustment is consistent with, subject to the limitations set forth in and without duplication with respect to the
application of, the definition of “Consolidated Adjusted EBITDA”,
(c)
any retirement or repayment of Indebtedness (other than normal fluctuations in revolving Indebtedness incurred for working capital purposes)
shall be deemed to have occurred as of the first day of the applicable Test Period with respect to any test or covenant for which the
relevant determination is being made,
(d)
any Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in connection therewith shall be deemed to have occurred
as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being
made; provided that (x) if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest
for the applicable Test Period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect
to such Indebtedness at the relevant date of determination (taking into account any interest hedging arrangements applicable to such
Indebtedness), (y) interest on any obligation with respect to any Capital Lease shall be deemed to accrue at an interest rate determined
by a Responsible Officer of the Borrower in good faith to be the rate of interest implicit in such obligation in accordance with GAAP
and (z) interest on any Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar
rate, a Eurocurrency interbank offered rate or other rate shall be determined to have been based upon the rate actually chosen, or if
none, then based upon such optional rate chosen by the Borrower, and
(e)
the acquisition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total Assets, whether pursuant
to any Subject Transaction or any Person becoming a subsidiary or merging, amalgamating or consolidating with or into the Borrower or
any of its subsidiaries, or the Disposition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated
Total Assets described in the definition of “Subject Transaction” shall be deemed to have occurred as of the last day of
the applicable Test Period with respect to any test or covenant for which such calculation is being made.
In
the case of any calculation of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage
Ratio or Consolidated Total Assets for any event described above that occurs prior to the date on which financial statements have been
(or are required to be) delivered pursuant to Section 5.01(b) for the Fiscal Year ended on or about June 30, 2017, any such calculation
required to be made on a “Pro Forma Basis” shall use the consolidated financial statements of Holdings delivered to the Arrangers
for the Fiscal Quarter ended April 2, 2017. Notwithstanding anything to the contrary set forth in the immediately preceding paragraph,
for the avoidance of doubt, when calculating the First Lien Leverage Ratio for purposes of the definitions of “Applicable Rate”
and “Commitment Fee Rate” and for purposes of Section 6.15 (other than for the purpose of determining pro forma compliance
with Section 6.15 as a condition to taking any action under this Agreement), the events described in the immediately preceding
paragraph that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.
“Projections”
means the projections of the Borrower and its Subsidiaries included in the Information Memorandum (or a supplement
thereto).
“Promissory
Note” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of
Exhibit G hereto, evidencing the aggregate outstanding principal amount of Loans of the Borrower to such Lender resulting from
the Loans made by such Lender.
“Public
Company Costs” means Charges associated with, or in anticipation of, or preparation for, compliance with the requirements of
the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and Charges relating to compliance with
the provisions of the Securities Act and the Exchange Act (and in each case, any similar Requirement of Law under any other applicable
jurisdiction), as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange
companies with listed equity or debt securities, directors’, compensation, fees and expense reimbursement, Charges relating to
investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance,
listing fees and all executive, legal and professional fees related to the foregoing.
“Published
LIBO Rate” means, with respect to any Interest Period when used in reference to any Loan or Borrowing, (a) the rate of interest
(rounded upwards, if necessary, to the nearest 1/100th) appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute
page of such service, or any successor to such service as determined by Administrative Agent) as the London interbank offered rate for
deposits in Dollars for a term comparable to such Interest Period, at approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to the commencement of such Interest Period (but if more than one rate is specified on such page, the rate will be
an arithmetic average of all such rates) and (b) if such rate is not available at such time for any reason, then the “Published
LIBO Rate” for such Interest Period shall be the interest rate per annum reasonably determined by the Administrative Agent in good
faith to be the rate per annum at which deposits in Dollars for delivery on the first day of such Interest Period in immediately available
funds in the approximate amount of the LIBO Rate Loan being made, continued or converted by the Administrative Agent and with a term
equivalent to such Interest Period would be offered to the Administrative Agent by major banks in the London or other offshore interbank
market for Dollars at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest
Period; provided that if such rate as determined above is at any time negative, the Published LIBO Rate at such time shall instead
be zero.
“Qualified
Capital Stock” of any Person means any Capital Stock of such Person that is not Disqualified Capital Stock.
“Qualified
Receivables Facility” means any Receivables Facility that meets the following conditions: (a) the Borrower shall have determined
in good faith that such Receivables Facility (including financing terms, covenants, termination events and other provisions) is in the
aggregate economically fair and reasonable to the Borrower and its Restricted Subsidiaries; (b) all sales of Receivables Facility Assets
and related assets by the Borrower or any Restricted Subsidiary to the Receivables Subsidiary or any other Person are made at fair market
value (as determined in good faith by the Borrower); (c) the financing terms, covenants, termination events and other provisions thereof
shall be on market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings; and (d)
the obligations under such Receivables Facility are non-recourse (except for customary representations, warranties, covenants and indemnities
made in connection with such facilities) to the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary).
“Qualifying
Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Qualifying
IPO” means any transaction or series of related transactions that results in any of the common Capital Stock of Holdings,
any Parent Company or the Borrower being publicly traded on any U.S. national securities exchange or any analogous exchange or any
recognized securities exchange in Canada, the United Kingdom or any country in the European Union.
“Qualifying
Lender” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Ratio
Interest Expense” means, with respect to any Person for any period, (a) consolidated total cash interest expense of such
Person and its Restricted Subsidiaries for such period, (i) including the interest component of any payment under any Capital Lease
(regardless of whether accounted for as interest expense under GAAP) and (ii) excluding (A) amortization, accretion or accrual of
deferred financing fees, original issue discount, debt issuance costs, discounted liabilities, commissions, fees and expenses, (B)
any expense arising from any bridge, commitment, structuring and/or other financing fee (including fees and expenses associated with
the Transactions, the Amendment No. 1 Transactions and agency
and trustee fees), (C) any expense resulting from the discounting of Indebtedness in connection with the application of
recapitalization accounting or, if applicable, acquisition accounting, (D) fees and expenses associated with any Dispositions,
acquisitions, Investments, issuances of Capital Stock or Indebtedness (in each case, whether or not consummated), (E) costs
associated with obtaining, or breakage costs in respect of, any Hedge Agreement or any other derivative instrument other than any
interest rate Hedge Agreement or interest rate derivative instrument with respect to Indebtedness, (F) penalties and interest
relating to Taxes, (G) any “additional interest” or “liquidated damages” for failure to timely comply with
registration rights obligations, (H) interest expense with respect to Indebtedness of any Parent Company of such Person appearing on
the balance sheet of such Person solely by reason of push-down accounting under GAAP, (I) any payments with respect to make-whole,
prepayment or repayment premiums or other breakage costs of any Indebtedness, (J) any interest expense attributable to the exercise
of appraisal rights or other rights of dissenting shareholders and the settlement of any claims or actions (whether actual,
contingent or potential) with respect thereto in connection with the Transactions or any acquisition or Investment permitted
hereunder and (K) for the avoidance of doubt, any non-cash interest expense attributable to any movement in the mark to market
valuation of any obligation under any Hedge Agreement or any other derivative instrument and/or any payment obligation arising under
any Hedge Agreement or derivative instrument other than any interest rate Hedge Agreement or interest rate derivative instrument
with respect to Indebtedness minus (b) cash interest income for such period. For purposes of this definition, (x) interest in
respect of any Capital Lease shall be deemed to accrue at an interest rate determined by such Person in good faith to be the rate of
interest implicit in such Capital Lease in accordance with GAAP and (y) for the avoidance of doubt, unless already included in the
calculation of interest expense, interest expense shall be calculated after giving effect to any payments made or received under any
Hedge Agreement or any other derivative instrument with respect to Indebtedness.
“Real
Estate Asset” means, at any time of determination, all right, title and interest of any Loan Party in and to any and all parcels
of or interests in real property owned, leased or subleased by a Loan Party (including, but not limited to, land, improvements and fixtures
thereon) of such Loan Party.
“Receivables
Facility” means any of one or more receivables financing facilities or securitization financing facilities as amended, supplemented,
modified, extended, renewed, restated or refunded from time to time, pursuant to which the Borrower or any of the Restricted Subsidiaries
sells or grants a security interest in its Receivables Facility Assets to either (a) a Person that is not a Restricted Subsidiary or
(b) a Restricted Subsidiary or Receivables Subsidiary that in turn funds such purchase by selling or granting a security interest in
its Receivables Facility Assets to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables
Subsidiary that in turn funds itself by borrowing from such a Person, in each case, that constitutes a Qualified Receivables Facility.
“Receivables
Facility Asset” means (a) any accounts receivable, revenue stream or other right of payment, real estate asset, mortgage receivable
or related asset and (b) contract rights, lockbox accounts and records with respect to such assets customarily transferred therewith,
in each case subject to a Receivables Facility.
“Receivables
Fees” means distributions or payments made directly or by means of discounts with respect to any Receivables Facility Asset
or participation interest therein issued or sold in connection with, and other fees and expenses paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Facility.
“Receivables
Subsidiary” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities,
and in each case engages only in activities reasonably related or incidental thereto or another Person formed for the purposes of engaging
in a Receivables Facility in which the Borrower or any subsidiary makes an Investment and to which the Borrower or any subsidiary transfers
Receivables Facility Assets.
“Refinancing”
has the meaning assigned to such term in Section 4.01(h).
“Refinancing
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent and the Borrower
executed by (a) Holdings and the Borrower, (b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion
of the Replacement Term Loans or the Replacement Revolving Facility, as applicable, being incurred pursuant thereto and in accordance
with Section 9.02(c).
“Refinancing
Indebtedness” has the meaning assigned to such term in Section 6.01(p).
“Refunding Capital Stock”
has the meaning assigned to such term in Section 6.04(a)(viii).
“Register”
has the meaning assigned to such term in Section 9.05(b).
“Regulation
U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or
thereof.
“Regulation
X” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or
thereof.
“Related
Funds” means with respect to any Lender that is an Approved Fund, any other Approved Fund that is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
“Related
Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, managers,
officers, trustees, employees, partners, agents, advisors and other representatives of such Person and such Person’s Affiliates.
“Release”
means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment of any barrels, containers
or other closed receptacles containing any Hazardous Material).
“Replaced
Revolving Facility” has the meaning assigned to such term in Section 9.02(c).
“Replaced
Term Loans” has the meaning assigned to such term in Section 9.02(c).
“Replacement
Debt” means any Refinancing Indebtedness (whether borrowed in the form of secured or unsecured loans, issued in a public offering,
Rule 144A under the Securities Act or other private placement or bridge financing in lieu of the foregoing or otherwise) incurred in
respect of Indebtedness permitted under Section 6.01(a) (and any subsequent refinancing of such Replacement Debt).
“Replacement
Revolving Facility” has the meaning assigned to such term in Section 9.02(c).
“Replacement
Term Loans” has the meaning assigned to such term in Section 9.02(c).
“Reply
Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Reply Price”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Representation
and Warranty Insurance Policy” means the representation and warranty insurance policy obtained by the Sponsor in connection
with the Mergers.
“Representative”
has the meaning assigned to such term in Section 9.13.
“Repricing
Transaction” means each of (a) the optional prepayment (or mandatory prepayment pursuant to Section 2.11(b)(iii)),
repayment, refinancing, substitution or replacement of all or a portion of the Initial Term Loans substantially concurrently with
the incurrence by any Loan Party of any broadly syndicated term loans secured on a pari passu basis with the Initial Term
Loans (including any first-lien secured Replacement Term Loans) having an Effective Yield that is less than the Effective Yield
applicable to the Initial Term Loans so prepaid, repaid, refinanced, substituted or replaced and (b) any amendment, waiver or other
modification to this Agreement that would have the effect of reducing the Effective Yield applicable to the Initial Term Loans; provided
that the primary purpose (as determined by the Borrower in good faith) of such prepayment, repayment, refinancing, substitution,
replacement, amendment, waiver or other modification was to reduce the Effective Yield applicable to the Initial Term Loans; provided,
further, that in no event shall any such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other
modification in connection with a Change of Control, Qualifying IPO or Transformative Acquisition constitute a Repricing
Transaction. Any determination by the Administrative Agent of the Effective Yield for purposes of the definition shall be conclusive
and binding on all Lenders, and the Administrative Agent shall have no liability to any Person with respect to such determination
absent bad faith, gross negligence or willful misconduct.
“Required
Excess Cash Flow Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 3.74.00:1.00,
50%, (b) if the First Lien Leverage Ratio is less than or equal to 3.74.00:1.00
and greater than 3.23.50:1.00,
25% and (c) if the First Lien Leverage Ratio is less than or equal to 3.23.50:1.00,
0%; it being understood and agreed that, for purposes of this definition as it applies to the determination of the amount of Excess Cash
Flow that is required to be applied to prepay Subject Loans under Section 2.11(b)(i) for any Excess Cash Flow Period, the First
Lien Leverage Ratio shall be determined on the scheduled date of prepayment (after giving pro forma effect to such prepayment and to
any other repayment or prepayment at or prior to the time such Excess Cash Flow prepayment is due).
“Required
Lenders” means, at any time, Lenders having Loans or unused Revolving Credit Commitments or Additional Commitments representing
more than 50% of the sum of the total Loans and such unused commitments at such time.
“Required
Net Proceeds Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 3.74.00:1.00,
100%, (b) if the First Lien Leverage Ratio is less than or equal to 3.74.00:1.00
and greater than 3.23.50:1.00,
50% and (c) if the First Lien Leverage Ratio is less than or equal to 3.23.50:1.00,
0%; it being understood and agreed that, for purposes of this definition as it applies to the determination of the amount of Net Proceeds
or Net Insurance/Condemnation Proceeds that are required to be applied to prepay Subject Loans under Section 2.11(b)(ii) for any
payment, the First Lien Leverage Ratio shall be determined on the date on which such proceeds are received by the applicable Borrower
or Restricted Subsidiary (giving pro forma effect to the subject Dispositions and/or casualty events and the application of the relevant
proceeds thereof).
“Required
Revolving Lenders” means, at any time, Lenders having Initial Revolving Loans, Additional Revolving Loans, unused Initial Revolving
Credit Commitments or unused Additional Revolving Credit Commitments representing more than 50% of the sum of the total Initial Revolving
Loans, Additional Revolving Loans and such unused Revolving Credit Commitments at such time.
“Requirements
of Law” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational
or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs,
injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof
by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having
the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its
property is subject.
“Responsible
Officer” of any Person means the chief executive officer, the president, the chief financial officer, the treasurer, any
assistant treasurer, any executive vice president, any senior vice president, any vice president or the chief operating officer of
such Person and any other individual or similar official thereof responsible for the administration of the obligations of such
Person in respect of this Agreement, and, as to any document delivered on the Closing Date, shall include any secretary or assistant
secretary or any other individual or similar official thereof with substantially equivalent responsibilities of a Loan Party and,
solely for purposes of notices given pursuant to Article 2, any other officer of the applicable Loan Party so designated by
any of the foregoing officers in a written notice to the Administrative Agent (including, for the avoidance of doubt, by electronic
means). Any document delivered hereunder that is signed by a Responsible Officer of any Loan Party shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party, and such
Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Responsible
Officer Certification” means, with respect to the financial statements for which such certification is required, the certification
of a Responsible Officer of the Borrower that such financial statements fairly present, in all material respects, in accordance with
GAAP, the consolidated financial condition of the Borrower as at the dates indicated and its consolidated income and cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end adjustments and, in the case of quarterly financial statements,
the absence of footnotes.
“Restricted
Amount” has the meaning set forth in Section 2.11(b)(iv).
“Restricted
Debt” means any Junior Indebtedness and any Junior Lien Indebtedness, in each case to the extent the outstanding principal
amount thereof is equal to or greater than the Threshold Amount.
“Restricted
Debt Payment” has the meaning set forth in Section 6.04(b).
“Restricted
Payment” means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of the Borrower,
except a dividend payable solely in shares of Qualified Capital Stock (or in options, warrants or other rights to purchase such Qualified
Capital Stock) to the holders of such class, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition
for value of any shares of any class of the Capital Stock of the Borrower and (c) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares of any class of the Capital Stock of the Borrower now or hereafter
outstanding. The amount of any Restricted Payment (other than Cash) shall be the fair market value, as determined in good faith by the
Borrower on the applicable date set forth in Section 1.04(e), of the assets or securities proposed to be transferred or issued
by the Borrower pursuant to such Restricted Payment.
“Restricted
Subsidiary” means, as to any Person, any subsidiary of such Person that is not an Unrestricted Subsidiary. Unless otherwise
specified, “Restricted Subsidiary” shall mean any Restricted Subsidiary of the Borrower.
“Return
Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Revolving Credit Commitment”
means any Initial Revolving Credit Commitment and any Additional Revolving Credit Commitment.
“Revolving
Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of such Lender’s
Initial Revolving Credit Exposure and Additional Revolving Credit Exposure.
“Revolving
Facility” means the Initial Revolving Facility and, if applicable, any Incremental Revolving Facility, any facility governing
any Extended Revolving Credit Commitment or Extended Revolving Loans and any Replacement Revolving Facility.
“Revolving
Facility Test Condition” means, as of any date of determination, without duplication, that the aggregate Outstanding
Amount of (a) all Revolving Loans (including Swingline Loans) as of such date, (b) LC Disbursements as of such date that have not
been reimbursed within three Business Days and (c) Letters of Credit (excluding (i) any Letter of Credit to the extent cash
collateralized or back-stopped and (ii) other Letters of Credit (or any portion thereof) in an aggregate face amount up to
$15,000,000 (with only such Letter of Credit amounts in excess of $15,000,000 being applied for purposes hereof)) exceeds an amount
equal to 35% of the Total Revolving Credit Commitment.
“Revolving
Lender” means any Initial Revolving Lender and any Additional Revolving Lender. Unless the context otherwise requires, the
term “Revolving Lenders” shall include the Swingline Lender.
“Revolving
Loans” means any Initial Revolving Loans and any Additional Revolving Loans.
“S&P” means Standard &
Poor’s Financial Services LLC, a subsidiary of the McGraw-Hill Companies, Inc.
“Sale
and Lease-Back Transaction” has the meaning assigned to such term in Section 6.08.
“Sanctioned
Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the
time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office
of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State, (b)
any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons
described in the foregoing clause (a).
“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the Office of Foreign
Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State.
“Scheduled
Consideration” has the meaning assigned to such term in Section 2.11(b)(i).
“SEC”
means the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of its functions.
“Second
Lien Claimholders” has the meaning set forth in the Intercreditor Agreement.
“Second Lien Collateral Agent”
has the meaning set forth in the Intercreditor Agreement.
“Second
Lien Credit Agreement” means the Second Lien Credit Agreement, dated as of the Closing Date, among, inter alios, Holdings,
the Borrower and Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent and the lenders from time to time
party thereto.
“Second
Lien Facility” means the credit facility governed by the Second Lien Credit Agreement and one or more debt facilities or
other financing arrangements (including indentures) providing for loans, notes or other long-term indebtedness that replace or
refinance such facility or other financing arrangement, including any such replacement or refinancing facility or indenture or other
financing arrangement that increases or decreases the amount permitted to be borrowed thereunder or alters the maturity thereof and
whether by the same or any other agent, lender or group of lenders, and any amendments, supplements, modifications, extensions,
renewals, restatements, amendments and restatements or refundings thereof or any such indentures or facilities or other financing
arrangement that replace or refinance such credit facility (or any subsequent replacement thereof), in each case to the extent
permitted or not restricted by this Agreement.
“Secured
Hedging Obligations” means all Hedging Obligations (other than any Excluded Swap Obligations) under each Hedge Agreement that
(a) is in effect on the Closing Date between any Loan Party and a counterparty that is the Administrative Agent, a Lender, an Arranger
or any Affiliate of the Administrative Agent, a Lender or an Arranger as of the Closing Date or (b) is entered into after the Closing
Date between any Loan Party and any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger
at the time such Hedge Agreement is entered into, for which such Loan Party agrees to provide security and in each case that has been
designated to the Administrative Agent in writing by the Borrower as being a Secured Hedging Obligation for purposes of the Loan Documents,
it being understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable
Loan Documents and (B) to agree to be bound by the provisions of Article 8, Sections 9.03 and 9.10 and the Intercreditor
Agreement and each other Acceptable Intercreditor Agreement as if it were a Lender.
“Secured
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Secured Debt as of such date to (b) Consolidated
Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “Secured Leverage
Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries; provided that solely for
purposes of calculating the Secured Leverage Ratio in connection with the incurrence of Incremental Equivalent Debt, clause (a) of this
definition shall also include Consolidated Total Debt as of such date that is secured by a Lien on any non-Collateral assets of the Borrower
or any Restricted Subsidiary.
“Secured
Obligations” means all Obligations, together with (a) all Banking Services Obligations and (b) all Secured Hedging Obligations;
provided that Banking Services Obligations and Secured Hedging Obligations shall cease to constitute Secured Obligations on and
after the Termination Date.
“Secured
Parties” means (i) the Lenders, the Swingline Lender and each Issuing Bank, (ii) the Administrative Agent, (iii) each counterparty
to a Hedge Agreement with a Loan Party the obligations under which constitute Secured Obligations, (iv) each provider of Banking Services
to any Loan Party the obligations under which constitute Secured Obligations, (v) the Arrangers and (vi) the beneficiaries of each indemnification
obligation undertaken by any Loan Party under any Loan Document.
“Securities”
means any stock, shares, units, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase
or acquire, any of the foregoing; provided that the term “Securities” shall not include any earn-out agreement or
obligation or any employee bonus or other incentive compensation plan or agreement.
“Securities
Act” means the Securities Act of 1933 and the rules and regulations of the SEC promulgated thereunder.
“Securitization
Repurchase Obligation” means any obligation of a seller (or any guaranty of such obligation) of assets subject to a Qualified
Receivables Facility to repurchase such assets arising as a result of a breach of a representation, warranty or covenant or otherwise,
including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset
or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to such seller.
“Security
Agreement” means the First Lien Pledge and Security Agreement, substantially in the form of Exhibit J, among the Loan
Parties and the Administrative Agent for the benefit of the Secured Parties.
“Series
A Preferred Stock” means the shares of preferred stock of Holdings, designated as “Series A Preferred Stock”, having
the terms set forth in the certificate of incorporation of the Target, as amended and restated in connection with the Merger Sub I Merger.
“Shannon
Holders” means (i) Thomas Shannon, (ii) Cobalt Recreation LLC, (iii) any Immediate Family Member of Thomas Shannon, (iv) a
trust, family-partnership or estate-planning vehicle or other legal entity substantially all the economic interests of which are held
by or for the benefit of Thomas Shannon and/or any of his Immediate Family Members and (v) any other Affiliate of Thomas Shannon or any
other Shannon Holder, including The Cobalt Group LLC.
“Shared
Incremental Amount” means, as of any date of determination, (a) the greater of (i) $105,000,000 and (ii) 75% of
Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period minus (b) (i) the aggregate principal
amount of all Incremental Facilities and/or Incremental Equivalent Debt originally incurred or issued in reliance on the Shared
Incremental Amount outstanding on such date and (ii) the aggregate principal amount of “Incremental Loans” and
“Incremental Equivalent Debt” (each as defined in the Second Lien Credit Agreement or any equivalent term under any
documentation governing any Second Lien Facility) originally incurred or issued in reliance on the Shared Incremental Amount
outstanding on such date, in each case after giving effect to any reclassification of any such Indebtedness as having been incurred
under clause (e) of the definition of “Incremental Cap” hereunder or clause (e) of the definition of
“Incremental Cap” (as defined in the Second Lien Credit Agreement or any equivalent term under any documentation
governing any Second Lien Facility).
“Similar
Business” means any Person the majority of the revenues of which are derived from a business that would be permitted by Section
5.16 if the references to “Restricted Subsidiaries” in Section 5.16 were read to refer to such Person.
“SLB
Property” means the real property interests (and Bowling Equipment and other tangible personal property located thereon) that
are subject to the iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“SPC”
has the meaning assigned to such term in Section 9.05(e).
“Specified
Acquisition Agreement Representations” means the representations and warranties made by or on behalf of the Target, its subsidiaries
or their respective businesses in the Acquisition Agreement which are material to the interests of the Lenders, but only to the extent
that Merger Sub (or its applicable affiliate) has the right to terminate its obligations under the Acquisition Agreement or to decline
to consummate the Acquisition as a result of a breach of such representations and warranties.
“Specified
Representations” means the representations and warranties set forth in Section 3.01(a)(i) (as it relates to
Holdings and the Borrower), Section 3.02 (as it relates to the due authorization, execution, delivery and performance of the
Loan Documents and the enforceability thereof), Section 3.03(b)(i) (limited to the execution, delivery and
performance of the Loan Documents, incurrence of the Indebtedness thereunder and the granting of Guarantees and Liens in respect
thereof), Section 3.08, Section 3.12, Section 3.14 (as it relates to the creation, validity and perfection of the security
interests in the Collateral, subject to the last sentence of Section 4.01), Section 3.16 and Sections
3.17(a)(ii) and (c).
“Sponsor”
means Atairos Group, Inc. and the funds, partnerships, investment vehicles or other co-investment vehicles or other entities
managed, advised or controlled by Atairos Group, Inc. or its Affiliates (but in any event excluding any portfolio company of any of
the foregoing).
“Standard
Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary of the Borrower which the Borrower has determined in good faith to be customary in a Receivables Facility, including, without
limitation, those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Securitization Repurchase
Obligation shall be deemed to be a Standard Securitization Undertaking.
“Standby
Letter of Credit” means any Letter of Credit other than any Commercial Letter of Credit.
“Stated
Amount” means, with respect to any Letter of Credit, at any time, the maximum amount available to be drawn thereunder, in each
case determined (x) as if any future automatic increases in the maximum available amount provided for in any such Letter of Credit had
in fact occurred at such time and (y) without regard to whether any conditions to drawing could then be met but after giving effect to
all previous drawings made thereunder.
“Subject
Loans” means, as of any date of determination, (a) Initial Term Loans and (b) any Additional Term Loans that are subject to
ratable prepayment requirements in accordance with Section 2.11(b) on such date of repayment.
“Subject
Person” has the meaning assigned to such term in the definition of “Consolidated Net Income”.
“Subject
Proceeds” has the meaning assigned to such term in Section 2.11(b)(ii).
“Subject
Transaction” means, with respect to any Test Period, (a) the Transactions, (b) any Permitted Acquisition or any other
acquisition, whether by purchase, merger, amalgamation or otherwise, of all or substantially all of the assets of, or any business
line, unit or division of, any Person or any facility, or of a majority of the outstanding Capital Stock of any Person (but in any
event including any Investment in any Restricted Subsidiary which serves to increase the Borrower’s or any Restricted
Subsidiary’s respective equity ownership in such Restricted Subsidiary), in each case that is permitted by this Agreement, (c)
any Disposition of all or substantially all of the assets or Capital Stock of a subsidiary (or any business unit, line of business
or division of the Borrower or a Restricted Subsidiary) not prohibited by this Agreement, (d) the designation of a Restricted
Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section
5.10 hereof, (e) any incurrence or repayment of Indebtedness (other than revolving Indebtedness), (f) any Cost Savings
Initiative and/or (g) any other event that by the terms of the Loan Documents requires pro forma compliance with a test or covenant
hereunder or requires such test or covenant to be calculated on a pro forma basis.
“Subsidiary”
or “subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of the total voting power of stock or other ownership interests entitled
(without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or
other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof
is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or
a combination thereof; provided that in determining the percentage of ownership interests of any Person controlled by another
Person, no ownership interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.
Unless otherwise specified, “subsidiary” shall mean any subsidiary of the Borrower.
“Subsidiary
Guarantor” means (x) on the Closing Date, each subsidiary of the Borrower (other than any subsidiary that is an Excluded Subsidiary
on the Closing Date) and (y) thereafter, each subsidiary of the Borrower that becomes a guarantor of the Secured Obligations pursuant
to the terms of this Agreement, in each case, until such time as the relevant subsidiary is released from its obligations under the Loan
Guaranty in accordance with the terms and provisions hereof. Notwithstanding the foregoing, the Borrower may from time to time, upon
notice to the Administrative Agent (or in the case of a Foreign Subsidiary, the prior written consent of the Administrative Agent (not
to be unreasonably withheld or delayed)), elect to cause any subsidiary that would otherwise be an Excluded Subsidiary to become a Subsidiary
Guarantor hereunder (but shall have no obligation to do so), subject to the satisfaction of guarantee and collateral requirements consistent
with the Collateral and Guarantee Requirements or otherwise reasonably acceptable to the Borrower and the Administrative Agent (which
shall include, in the case of a Foreign Subsidiary, guarantee and collateral requirements customary under local law, including customary
local limitations).
“Successor
Borrower” has the meaning assigned to such term in Section 6.07(a).
“Swap
Obligations” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction
that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline
Exposure” means, at any time, the aggregate principal amount of Swingline Loans outstanding at such time. The Swingline Exposure
of any Revolving Lender at any time shall be equal to its Applicable Percentage of the aggregate Swingline Exposure at such time.
“Swingline
Lender” means JPM, in its capacity as lender of Swingline Loans hereunder, or any successor lender of Swingline Loans hereunder.
“Swingline
Loan” means any Loan made pursuant to Section 2.04.
“Target” means Bowlmor AMF Corp., a Delaware
corporation.
“Tax
Group” has the meaning assigned to such term in Section 6.04(a)(xv).
“Taxes”
means any and all present and future taxes (including “business activities” taxes), levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any
interest, additions to tax or penalties applicable thereto.
“Termination
Date” has the meaning assigned to such term in the lead-in to Article 5.
“Term
Facility” means the Term Loans provided to or for the benefit of the Borrower pursuant to the terms of this Agreement.
“Term
Lender” means a Person with an Initial Term Loan Commitment or outstanding Initial Term Loan or an Additional Term Loan
Commitment or an outstanding Additional Term Loan.
“Term Loan” means the Initial Term
Loans and, if applicable, any Additional Term Loans.
“Test
Period” means, as of any date, (a) for purposes of determining actual compliance with Section 6.15(a), the period
of four consecutive Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section
5.01(b), as applicable, have been delivered (or are required to have been delivered) and (b) for any other purpose, the period of
four consecutive Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b),
as applicable, have been delivered (or are required to have been delivered) or, if earlier, are internally available; it being
understood and agreed that prior to the first delivery (or required delivery) of financial statements under Section 5.01(a),
“Test Period” means the period of four consecutive Fiscal Quarters most recently ended for which financial statements of
Holdings and its consolidated subsidiaries are available.
“Threshold
Amount” means $30,000,000.
“Total
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Total Debt outstanding as of such date
to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term
“Total Leverage Ratio” is used in this Agreement in each case for the Borrower and its Restricted Subsidiaries.
“Total
Revolving Credit Commitment” means, at any time, the aggregate amount of the Revolving Credit Commitments as in effect at such
time. The Total Revolving Credit Commitment as of the Closing Date is $50,000,000.
“Trademark”
means the following: (a) all trademarks (including service marks), common law marks, trade names, trade dress, and logos, slogans and
other indicia of origin under the laws of any jurisdiction in the world, and the registrations and applications for registration thereof
and the goodwill of the business symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims and payments for past and
future infringements thereof; (d) all rights to sue for past, present and future infringements of the foregoing, including the right
to settle suits involving claims and demands for royalties owing; and (e) all domestic rights corresponding to any of the foregoing.
“Transaction
Costs” means fees, premiums, expenses and other transaction costs (including original issue discount or upfront fees) payable
or otherwise borne by any Parent Company and/or its subsidiaries in connection with the Transactions,
the Amendment No. 1 Transactions and, in each case,
the transactions contemplated thereby.
“Transactions”
means, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party
and the Borrowing of Loans hereunder, (b) the Acquisition, (c) the Equity Contribution, (d) the Refinancing, (e) the execution,
delivery and performance of, including the incurrence of Indebtedness under, the Second Lien Credit Agreement and (f) the payment of
the Transaction Costs.
“Transformative
Acquisition” means any acquisition or Investment by the Borrower or any Restricted Subsidiary that is either (a) not permitted
by the terms of this Agreement immediately prior to the consummation of such acquisition or Investment or (b) if permitted by the terms
of this Agreement immediately prior to the consummation of such acquisition or Investment, would not provide the Borrower and its Subsidiaries
with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation,
as determined by the Borrower acting in good faith.
“Treasury
Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).
“Treasury
Regulations” means the U.S. federal income tax regulations promulgated under the Code.
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate or the Alternate Base Rate.
“UCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required
to be applied in connection with the creation or perfection of security interests.
“Unrestricted
Cash Amount” means, as to any Person on any date of determination, the amount of (a) unrestricted Cash and Cash Equivalents
of such Person and its Restricted Subsidiaries and (b) Cash and Cash Equivalents of such Person and its Restricted Subsidiaries that
are restricted in favor of the Credit Facilities, any Second Lien Facility and/or other permitted pari passu or junior secured
Indebtedness (which may also include Cash and Cash Equivalents securing other Indebtedness that is secured by a Lien on Collateral along
with the Credit Facilities, any Second Lien Facility and/or any other permitted pari passu or junior secured Indebtedness), in
each case as determined in accordance with GAAP.
“Unrestricted
Subsidiary” means any subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary on the Closing Date
and listed on Schedule 5.10 hereto or after the Closing Date pursuant to Section 5.10.
“Unused
Revolving Credit Commitment” of any Lender, at any time, means the remainder of the Revolving Credit Commitment of such Lender
at such time, if any, less the sum of (a) the aggregate Outstanding Amount of Revolving Loans made by such Lender, (b) such Lender’s
LC Exposure at such time and (c) except for purposes of Section 2.12(a), such Lender’s Applicable Percentage of the aggregate
Outstanding Amount of Swingline Loans.
“U.S.”
or “United States” means the United States of America.
“USA
PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“U.S.
Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f).
“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a)
the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other
required scheduled payments of principal, including payment at final maturity, in respect thereof by (ii) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal
amount of such Indebtedness; provided that the effect of any prepayment made in respect of such Indebtedness shall be disregarded
in making such calculation.
“Wholly-Owned
Subsidiary” of any Person means a subsidiary of such Person 100% of the Capital Stock of which (other than directors’
qualifying shares or shares required by Requirements of Law to be owned by a resident of the relevant jurisdiction) are owned by such
Person or by one or more Wholly-Owned Subsidiaries of such Person.
“Write-Down
and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion
powers are described in the EU Bail-In Legislation Schedule.
Section
1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a “Term Loan”) or by Type (e.g., a “LIBO Rate Loan”) or by Class and Type (e.g.,
a “LIBO Rate Term Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Term Loan Borrowing”)
or by Type (e.g., a “LIBO Rate Borrowing”) or by Class and Type (e.g., a “LIBO Rate Term Loan Borrowing”).
Section
1.03. Terms Generally. (a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The
words “include,” “includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning and effect as the word
“shall.” The words “ordinary course of business” or “ordinary course” shall, with respect to any
Person, be deemed to refer to items or actions that are consistent with industry practice of such Person’s business industry
or such Person’s past practice (it being understood that the sale of accounts receivable (and related assets) pursuant to
supply-chain, factoring or reverse factoring arrangements entered into by the Borrower and its Restricted Subsidiaries shall be
deemed to be in the ordinary course of business so long as such accounts receivable (and related assets) are sold for Cash in an
amount not less than 95% of the face amount thereof). Unless the context requires otherwise (i) any definition of or reference to
any agreement, instrument or other document herein or in any Loan Document (including any Loan Document, the Second Lien Credit
Agreement and any Loan Document referred to therein) shall be construed as referring to such agreement, instrument or other document
as from time to time amended, restated, amended and restated, supplemented or otherwise modified or extended, replaced or refinanced
(subject to any restrictions or qualifications on such amendments, restatements, amendment and restatements, supplements or
modifications or extensions, replacements or refinancings set forth herein), (ii) any reference to any Requirement of Law in any
Loan Document shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing, superseding
or interpreting such Requirement of Law, (iii) any reference herein or in any Loan Document to any Person shall be construed to
include such Person’s successors and permitted assigns, (iv) the words “herein,” “hereof” and
“hereunder,” and words of similar import, when used in any Loan Document, shall be construed to refer to such Loan
Document in its entirety and not to any particular provision hereof, (v) all references herein or in any Loan Document to Articles,
Sections, clauses, paragraphs, Exhibits and Schedules shall be construed to refer to Articles, Sections, clauses and paragraphs of,
and Exhibits and Schedules to, such Loan Document, (vi) in the computation of periods of time in any Loan Document from a specified
date to a later specified date, the word “from” means “from and including”, the words “to” and
“until” mean “to but excluding” and the word “through” means “to and including” and
(vii) the words “asset” and “property”, when used in any Loan Document, shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets and properties, including Cash, securities, accounts
and contract rights.
(b)
For purposes of determining compliance at any time with Sections 6.01, 6.02, 6.04, 6.06 and 6.07, in the event
that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment or Disposition, as applicable, or portion
thereof, at any time meets the criteria of more than one of the categories of transactions or items permitted pursuant to any clause
of such Sections 6.01 (other than Sections 6.01(a) (in the case of Indebtedness incurred on the Closing Date) and (x)), 6.02
(other than Sections 6.02(a) and (t) (with respect to Section 6.01(x)), 6.04, 6.06 and 6.07 (each
of the foregoing, a “Reclassifiable Item”), the Borrower, in its sole discretion, may, from time to time, divide,
classify or reclassify such Reclassifiable Item (or portion thereof) under one or more clauses of each such Section and will only be
required to include such Reclassifiable Item (or portion thereof) in any one category; provided that, upon delivery of any
financial statements pursuant to Section 5.01(a) or (b) following the initial incurrence or making of any such
Reclassifiable Item, if such Reclassifiable Item could, based on such financial statements, have been incurred in reliance on
Section 6.01(z) (in the case of Indebtedness and Liens) or any “ratio-based” basket (in the case of all other
Reclassifiable Items), such Reclassifiable Item shall automatically be reclassified as having been incurred or made under the
applicable provisions of Section 6.01(z) or such “ratio-based” basket, as applicable (in each case, subject to
any other applicable provision of Section 6.01(z) or such “ratio-based” basket, as applicable). It is understood
and agreed that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment and/or Disposition need not be
permitted solely by reference to one category of permitted Indebtedness, Lien, Restricted Payment, Restricted Debt Payment,
Investment and/or Disposition under Sections 6.01, 6.02, 6.04, 6.06 or 6.07, respectively, but may instead be
permitted in part under any combination thereof or under any other available exception.
Section
1.04. Accounting Terms; GAAP.
(a)
(i) All financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time
to time and, except as otherwise expressly provided herein, all terms of an accounting or financial nature that are used in calculating
the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted
EBITDA, Consolidated Net Income or Consolidated Total Assets shall be construed and interpreted in accordance with GAAP, as in effect
from time to time; provided that (A) if any change to GAAP or in the application thereof (including the conversion to IFRS as
described below) is implemented after the date of delivery of the financial statements described in Section 3.04(a) and/or there
is any change in the functional currency reflected in the financial statements or (B) if the Borrower elects or is required to report
under IFRS, the Borrower or the Required Lenders may request to amend the relevant affected provisions hereof (whether or not the request
for such amendment is delivered before or after the relevant change or election) to eliminate the effect of such change or election,
as the case may be, on the operation of such provisions and (x) the Borrower and the Administrative Agent shall negotiate in good faith
to enter into an amendment of the relevant affected provisions (it being understood that no amendment or similar fee shall be payable
to the Administrative Agent or any Lender in connection therewith) to preserve the original intent thereof in light of the applicable
change or election, as the case may be and (y) the relevant affected provisions shall be interpreted on the basis of GAAP and the currency,
in each case, as in effect and applied immediately prior to the applicable change or election, as the case may be, until the request
for amendment has been withdrawn by the Borrower or the Required Lenders, as applicable, or this Agreement has been amended as contemplated
hereby. Any consent required from the Administrative Agent or any Required Lender with respect to the foregoing shall not be unreasonably
withheld, conditioned or delayed.
(ii)
All terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to
herein shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10-25 (previously referred
to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification, International Accounting Standard
or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or
any subsidiary at “fair value,” as defined therein, (ii) any treatment of Indebtedness in respect of convertible debt instruments
under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification, International Accounting Standard or
Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as
described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof and (iii) the application
of Accounting Standards Codification 480, 815, 805 and 718 (to the extent these pronouncements under Accounting Standards Codification
718 result in recording an equity award as a liability on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries
in the circumstance where, but for the application of the pronouncements, such award would have been classified as equity). If the Borrower
notifies the Administrative Agent that the Borrower (or its applicable Parent Company) is required to report under IFRS or has elected
to do so through an early adoption policy, “GAAP” shall mean international financial reporting standards pursuant to IFRS
(provided thereafter, the Borrower cannot elect to report under GAAP).
(b)
Notwithstanding anything to the contrary herein, but subject to Sections 1.04(d), (e) and (g), all financial ratios and
tests (including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio and
the amount of Consolidated Total Assets, Consolidated Net Income and Consolidated Adjusted EBITDA) contained in this Agreement that are
calculated with respect to any Test Period during which any Subject Transaction occurs shall be calculated with respect to such Test
Period and such Subject Transaction on a Pro Forma Basis. Further, if since the beginning of any such Test Period and on or prior to
the date of any required calculation of any financial ratio or test (x) any Subject Transaction has occurred or (y) any Person that subsequently
became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries
since the beginning of such Test Period has consummated any Subject Transaction, then, in each case, any applicable financial ratio or
test shall be calculated on a Pro Forma Basis for such Test Period as if such Subject Transaction had occurred at the beginning of the
applicable Test Period (or, in the case of Consolidated Total Assets (or with respect to any determination pertaining to the balance
sheet, including the acquisition of Cash and Cash Equivalents), as of the last day of such Test Period), it being understood, for the
avoidance of doubt, that solely for purposes of (x) calculating quarterly compliance with Section 6.15 and (y) calculating the
First Lien Leverage Ratio for purposes of the definitions of “Applicable Rate” and “Commitment Fee Rate”, in
each case, the date of the required calculation shall be the last day of the Test Period, and no Subject Transaction occurring thereafter
shall be taken into account.
(c)
Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Attributable Debt”,
“Capital Lease” or “Capital Lease Obligation”, in the event of an accounting change or a change in the application
of GAAP requiring all or certain leases to be capitalized or otherwise accounted for as liabilities on the balance sheet of the applicable
Person, unless the Borrower elects otherwise, only those leases (assuming for purposes hereof that such leases were in existence on the
date hereof) that would constitute Capital Leases (including leases that are classified as “Financing Leases” for purposes
of GAAP) in conformity with GAAP on the date hereof shall be considered Capital Leases, and all calculations and deliverables under this
Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith. Notwithstanding anything contained
in any Loan Document to the contrary, the leases relating to the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 and any Excluded
Property Sale/Leaseback Transaction shall be deemed not to be and shall not otherwise be classified as a Capital Lease (and the obligations
in respect thereof shall not be considered Indebtedness) for purposes of this Agreement and any other Loan Document.
(d)
For purposes of determining the permissibility of any action, change, transaction or event that by the terms of the Loan Documents requires
a calculation of any financial ratio or financial test (including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured
Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated Total
Assets), subject to the succeeding clause (e), such financial ratio or test shall be calculated at the time such action is taken,
such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall
be deemed to have occurred solely as a result of a change in such financial ratio or financial test occurring after the time such action
is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e)
Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma Basis), if the terms
of this Agreement require (i) compliance with any financial ratio or financial test (including, without limitation, Section 6.15(a)
hereof, any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage
Ratio test) and/or any cap expressed as a percentage of Consolidated Total Assets or Consolidated Adjusted EBITDA, (ii) accuracy of any
representation or warranty and/or the absence of a Default or Event of Default (or any type of default or event of default) or (iii)
compliance with any basket, as a condition to (A) the consummation of any transaction (including in connection with any acquisition or
similar Investment or the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of
any Restricted Debt Payment, in each case in connection with a Limited Condition Transaction, the determination of whether the relevant
condition is satisfied may be made, at the election of the Borrower, (1) in the case of any acquisition or similar Investment or any
Disposition and any transaction related thereto, at the time of (or on the basis of the financial statements for the most recently ended
Test Period at the time of) either (x) the execution of the definitive agreement with respect to such acquisition, Investment or Disposition
or (y) the consummation of such acquisition, Investment or Disposition, (2) in the case of any Restricted Payment, at the time of (or
on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted
Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis
of the financial statements for the most recently ended Test Period at the time of) (x) delivery of notice with respect to such Restricted
Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after giving effect to the relevant acquisition, Restricted
Payment and/or Restricted Debt Payment or other transaction on a Pro Forma Basis (including, in each case, giving effect to the relevant
transaction, any relevant Indebtedness (including the intended use of proceeds thereof) and, at the election of the Borrower, giving
pro forma effect to other prospective Limited Condition Transactions that are acquisitions or similar Investments for which definitive
agreements have been executed, and no Default or Event of Default shall be deemed to have occurred solely as a result of an adverse change
in such financial ratio or test occurring after the time such election is made (but any subsequent improvement in the applicable financial
ratio or test may be utilized by the Borrower or any Restricted Subsidiary). For the avoidance of doubt, if the Borrower shall have elected
the option set forth in clause (x) of any of the preceding clauses (1), (2) or (3) in respect of any transaction, then the Borrower shall
be permitted to consummate such transaction even if any applicable test or condition shall cease to be satisfied subsequent to the Borrower’s
election of such option. The provisions of this paragraph (e) shall also apply in respect of the incurrence of any Incremental Facility.
(f) [Reserved].
(g)
Notwithstanding anything to the contrary herein, unless the Borrower otherwise notifies the Administrative Agent, with respect to
any amounts incurred under the Revolving Facility, any Additional Revolving Facility or any other permitted revolving facility or
any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement (including Section
6.01(x) (as it relates to the incurrence of any “fixed” or similar amount incurred under any Second Lien Facility))
that does not require compliance with a financial ratio or financial test (including any First Lien Leverage Ratio test, any Secured
Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed
Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance
on a provision of this Agreement (including Section 6.01(x) (as it relates to the incurrence of any “incurrence
based” or similar amount incurred under any Second Lien Facility)) that requires compliance with a financial ratio or
financial test (including any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or
any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed
that (A) the incurrence of the Incurrence-Based Amount shall be calculated first without giving effect to any Fixed Amount but
giving full pro forma effect to the use of proceeds of such Fixed Amount and the related transactions and (B) the incurrence of the
Fixed Amount shall be calculated thereafter. Unless the Borrower elects otherwise, the Borrower shall be deemed to have used amounts
under an Incurrence-Based Amount then available to the Borrower prior to utilization of any amount under a Fixed Amount then
available to the Borrower. For the avoidance of doubt, all Indebtedness substantially concurrently incurred will be included for
purposes of calculating compliance with Sections 6.04(a)(xiii), 6.04(b)(vii) and 6.06(dd) (in each case,
giving pro forma effect to the intended use of proceeds thereof).
(h)
The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall
be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(i)
The increase in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of
interest or a dividend in the form of additional Indebtedness, amortization of original issue discount and/or any increase in the amount
of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency will not be deemed
to be the granting of a Lien for purposes of Section 6.02.
(j)
For purposes of determining compliance with Section 6.01 or Section 6.02, if any Indebtedness or Lien is incurred in reliance
on a basket measured by reference to a percentage of Consolidated Adjusted EBITDA, and any refinancing or replacement thereof would cause
the percentage of Consolidated Adjusted EBITDA to be exceeded if calculated based on the Consolidated Adjusted EBITDA on the date of
such refinancing or replacement, such percentage of Consolidated Adjusted EBITDA will be deemed not to be exceeded so long as the principal
amount of such refinancing or replacement Indebtedness or other obligation does not exceed an amount sufficient to repay the principal
amount of such Indebtedness or other obligation being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest,
penalties and premiums (including tender, prepayment or repayment premiums) thereon plus underwriting discounts and other customary fees,
commissions and expenses (including upfront fees, original issue discount or initial yield payment) incurred in connection with such
refinancing or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under
Section 6.01.
(k)
Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for
a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the
result up or down to the nearest number (with a rounding-up if there is no nearest number).
Section
1.05. Effectuation of Transactions. Each of the representations and warranties contained in this Agreement (and all corresponding
definitions) is made after giving effect to the Transactions, unless the context otherwise requires.
Section
1.06. Timing of Payment and Performance. When payment of any obligation or the performance of any covenant, duty or obligation
is stated to be due or required on a day which is not a Business Day, the date of such payment (other than as described in the definition
of “Interest Period”) or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such extension.
Section
1.07. Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time
(daylight or standard, as applicable).
Section
1.08. Currency Equivalents Generally.
(a)
Notwithstanding anything to the contrary in clause (b) below, for purposes of any determination under Article 5, Article 6
(other than Section 6.15 and the calculation of compliance with any financial ratio for purposes of taking any action hereunder)
or Article 7 with respect to the amount of any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition,
Sale and Lease-Back Transaction, affiliate transaction or other transaction, event or circumstance, or any determination under any other
provision of this Agreement (any of the foregoing, a “relevant transaction”), in a currency other than Dollars, (i)
the Dollar equivalent amount of a relevant transaction in a currency other than Dollars shall be calculated based on the rate of exchange
quoted by the Bloomberg Foreign Exchange Rates & World Currencies Page (or any successor page thereto, or in the event such rate
does not appear on any Bloomberg Page, by reference to such other publicly available service for displaying exchange rates as may be
agreed upon by the Administrative Agent and the Borrower) for such foreign currency, as in effect at 11:00 a.m. (London time) on the
date of such relevant transaction (which, in the case of any Restricted Payment, Restricted Debt Payment, Investment, Disposition or
incurrence of Indebtedness, shall be determined as set forth in Section 1.04(e)); provided, that if any Indebtedness is
incurred (and, if applicable, associated Lien granted) to refinance or replace other Indebtedness denominated in a currency other than
Dollars, and the relevant refinancing or replacement would cause the applicable Dollar-denominated restriction to be exceeded if calculated
at the relevant currency exchange rate in effect on the date of such refinancing or replacement, such Dollar- denominated restriction
shall be deemed not to have been exceeded so long as the principal amount of such refinancing or replacement Indebtedness (and, if applicable,
associated Lien granted) does not exceed an amount sufficient to repay the principal amount of such Indebtedness being refinanced or
replaced, except by an amount equal to (x) unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus
underwriting discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial
yield payment) incurred in connection with such refinancing or replacement, (y) any existing commitments unutilized thereunder and (z)
additional amounts permitted to be incurred under Section 6.01 and (ii) for the avoidance of doubt, no Default or Event of Default
shall be deemed to have occurred solely as a result of a change in the rate of currency exchange occurring after the time of any relevant
transaction so long as such relevant transaction was permitted at the time incurred, made, acquired, committed, entered or declared as
set forth in clause (i). For purposes of Section 6.15 and the calculation of compliance with any financial ratio for purposes
of taking any action hereunder (including for purposes of calculating compliance with the Incremental Cap) on any relevant date of determination,
amounts denominated in currencies other than Dollars shall be translated into Dollars at the applicable currency exchange rate used in
preparing the financial statements delivered pursuant to Sections 5.01(a) or (b) (or, prior to the first such delivery,
the financial statements referred to in Section 3.04), as applicable, for the relevant Test Period. Notwithstanding the foregoing
or anything to the contrary herein, to the extent that the Borrower would not be in compliance with Section 6.15(a) if any Indebtedness
denominated in a currency other than Dollars were to be translated into Dollars on the basis of the applicable currency exchange rate
used in preparing the financial statements delivered pursuant to Section 5.01(a) or (b), as applicable, for the relevant
Test Period, but would be in compliance with Section 6.15(a) if such Indebtedness that is denominated in a currency other than
in Dollars were instead translated into Dollars on the basis of the average relevant currency exchange rates over such Test Period (taking
into account the currency translation effects, determined in accordance with GAAP, of any Hedge Agreement permitted hereunder in respect
of currency exchange risks with respect to the applicable currency in effect on the date of determination for the Dollar equivalent amount
of such Indebtedness), then, solely for purposes of compliance with Section 6.15(a), the First Lien Leverage Ratio as of the last
day of such Test Period shall be calculated on the basis of such average relevant currency exchange rates.
(b)
Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time
to time specify with the Borrower’s consent to appropriately reflect a change in currency of any country and any relevant market
convention or practice relating to such change in currency.
Section
1.09. Cashless Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document,
to the extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental
Loans, Replacement Term Loans, Loans in connection with any Replacement Revolving Facility, Extended Term Loans, Extended Revolving Loans
or loans incurred under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected
by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply
with any requirement hereunder or any other Loan Document that such payment be made “in Dollars”, “in immediately available
funds”, “in Cash” or any other similar requirement.
Section
1.10. Alternative Currencies.
(a)
The Borrower may from time to time request that LIBO Rate Revolving Loans be made and/or Letters of Credit be issued in a currency other
than Dollars; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely
transferable and convertible into Dollars. In the case of any such request with respect to the making of LIBO Rate Revolving Loans, such
request shall be subject to the approval of the Revolving Lenders of the applicable Class that will provide such Loans, and in the case
of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the applicable
Issuing Banks, in each case as set forth in Section 9.02(b)(ii)(E).
(b)
Any such request shall be made to the Administrative Agent not later than 11:00 a.m., ten Business Days prior to the requested date
of the making of such Revolving Loan or issuance of such Letter of Credit (or such other time or date as may be agreed by the
Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the applicable Issuing Banks, in its or
their sole discretion). In the case of any such request pertaining to LIBO Rate Revolving Loans, the Administrative Agent shall
promptly notify each Revolving Lender thereof; and in the case of any such request pertaining to Letters of Credit, the
Administrative Agent shall promptly notify the applicable Issuings Bank thereof. Each applicable Revolving Lender (in the case of
any such request pertaining to LIBO Rate Revolving Loans) or each applicable Issuing Bank (in the case of a request pertaining to
Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., five Business Days after receipt of such
request whether it consents, in its sole discretion, to the making of LIBO Rate Revolving Loans or the issuance of Letters of
Credit, as the case may be, in such requested currency.
(c)
Any failure by a Revolving Lender or Issuing Bank, as the case may be, to respond to such request within the time period specified in
the preceding paragraph shall be deemed to be a refusal by such Revolving Lender or Issuing Bank, as the case may be, to permit LIBO
Rate Revolving Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the
applicable Revolving Lenders consent to making LIBO Rate Revolving Loans or issuance of Letters of Credit in such requested currency,
the Administrative Agent shall so notify the Borrower and the Borrower and the Revolving Lenders shall amend this Agreement and the other
Loan Documents as necessary to accommodate such Borrowings and/or Letters of Credit (as applicable), in accordance with Section 9.02(b)(ii)(E).
If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.10,
the Administrative Agent shall promptly so notify the Borrower.
ARTICLE
2 THE CREDITS
Section 2.01. Commitments.
(a)
Subject to the terms and conditions set forth herein, (i) (x)
each Initial Term Lender severally, and not jointly, agrees to make Initial Term Loans to the Borrower on the Closing Date in
Dollars in a principal amount not to exceed its Initial Term Loan Commitment as
of the Closing Date and (y) each Amendment No. 1 Incremental Term Lender severally, and not jointly, agrees to make Amendment No. 1
Incremental Term Loans to the Borrower on the Amendment No. 1 Effective Date in a principal amount not to exceed its Initial Term
Loan Commitment as of the Amendment No. 1 Effective Date and (ii) each Revolving Lender severally, and not jointly,
agrees to make Revolving Loans to the Borrower in Dollars at any time and from time to time on and after the Closing Date, and until
the earlier of the Initial Revolving Credit Maturity Date and the termination of the Initial Revolving Credit Commitment of such
Revolving Lender in accordance with the terms hereof; provided that, after giving effect to any Borrowing of Initial
Revolving Loans, the Outstanding Amount of such Revolving Lender’s Initial Revolving Credit Exposure shall not exceed such
Revolving Lender’s Initial Revolving Credit Commitment. Within the foregoing limits and subject to the terms, conditions and
limitations set forth herein, the Borrower may borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in
respect of the Initial Term Loans may not be reborrowed.
(b)
Subject to the terms and conditions of this Agreement and any applicable Refinancing Amendment, Extension Amendment or Incremental Facility
Amendment, each Lender with an Additional Commitment of a given Class, severally and not jointly, agrees to make Additional Loans of
such Class to the Borrower, which Loans shall not exceed for any such Lender at the time of any incurrence thereof the Additional Commitment
of such Class of such Lender as set forth in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment.
Section
2.02. Loans and Borrowings.
(a)
Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the applicable Class. Each Swingline Loan shall be made in accordance
with the procedures set forth in Section 2.04.
(b)
Subject to Section 2.01 and Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or LIBO Rate Loans as
the Borrower may request in accordance herewith; provided that each Swingline Loan shall be an ABR Loan. Each Lender at its option
may make any LIBO Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided
that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms
of this Agreement, (ii) such LIBO Rate Loan shall be deemed to have been made and held by such Lender, and the obligation of the Borrower
to repay such LIBO Rate Loan shall nevertheless be to such Lender for the account of such domestic or foreign branch or Affiliate of
such Lender and (iii) in exercising such option, such Lender shall use reasonable efforts to minimize increased costs to the Borrower
resulting therefrom (which obligation of such Lender shall not require it to take, or refrain from taking, actions that it determines
would result in increased costs for which it will not be compensated hereunder or that it otherwise determines would be disadvantageous
to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section
2.15 shall apply); provided, further, that any such domestic or foreign branch or Affiliate of such Lender shall not be entitled
to any greater indemnification under Section 2.17 with respect to such LIBO Rate Loan than that to which the applicable Lender
was entitled on the date on which such Loan was made (except in connection with any indemnification entitlement arising as a result of
a Change in Law after the date on which such Loan was made).
(c)
At the commencement of each Interest Period for any LIBO Rate Borrowing, such Borrowing shall comprise an aggregate principal amount
that is an integral multiple of $100,000 and not less than $500,000. Each ABR Borrowing when made shall be in a minimum principal
amount of $100,000; provided that an ABR Revolving Loan Borrowing may be made in a lesser aggregate amount that is (x) equal
to the entire aggregate Unused Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e). Borrowings of more than one Type and Class may be outstanding at the same time; provided
that there shall not at any time be more than a total of 10 different Interest Periods in effect for LIBO Rate Borrowings at any
time outstanding (or such greater number of different Interest Periods as the Administrative Agent may agree from time to
time).
(d)
Notwithstanding any other provision of this Agreement, the Borrower shall not, nor shall it be entitled to, request, or to elect to convert
or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date applicable to such
Loans.
Section
2.03. Requests for Borrowings. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of LIBO
Rate Loans shall be made upon irrevocable notice by the Borrower to the Administrative Agent (provided that notices in respect
of any Borrowings (x) to be made on the Closing Date may be conditioned on the closing of the Acquisition and (y) to be made in connection
with any acquisition, Investment or irrevocable repayment, redemption or refinancing of Indebtedness may be conditioned on the closing
of such acquisition, Investment or irrevocable repayment, redemption or refinancing of such Indebtedness). Each such notice must be in
writing or by telephone (and promptly confirmed in writing) and must be received by the Administrative Agent (by hand delivery, fax or
other electronic transmission (including “.pdf” or “.tif”)) not later than 12:00 p.m. (i) three Business Days
prior to the requested day of any Borrowing of, conversion to or continuation of LIBO Rate Loans (or 12:00 p.m. one Business Day in the
case of any Borrowing of LIBO Rate Loans to be made on the Closing Date) and (ii) on the requested date of any Borrowing of or conversion
to ABR Loans (other than Swingline Loans) (or, in each case, such later time as shall be acceptable to the Administrative Agent); provided,
however, that if the Borrower wishes to request LIBO Rate Loans having an Interest Period of other than one, two, three or six months
in duration as provided in the definition of “Interest Period,” (A) the applicable notice from the Borrower must be received
by the Administrative Agent not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion or
continuation (or such later time as is acceptable to the Administrative Agent), whereupon the Administrative Agent shall give prompt
notice to the appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to them and (B) not
later than 10:00 a.m. three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative
Agent shall notify the Borrower whether or not the requested Interest Period has been consented to by all the appropriate Lenders. Each
written notice (or confirmation of telephonic notice) with respect to a Borrowing by the Borrower pursuant to this Section 2.03
shall be delivered to the Administrative Agent in the form of a written Borrowing Request, appropriately completed and signed by a Responsible
Officer of the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with
Section 2.02:
(a) the
Class of such Borrowing;
(b) the
aggregate amount of the requested Borrowing;
(c) the
date of such Borrowing, which shall be a Business Day;
(d)
whether such Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing;
(e) in the case of a LIBO Rate Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest
Period”; and
(f)
the location and number of the Borrower’s account or any other designated account(s) to which funds are to be disbursed (the “Funding
Account”).
If
no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested LIBO Rate Borrowing, then the Borrower shall be deemed to have selected an Interest Period of
one month’s duration. The Administrative Agent shall advise each Lender of the details thereof and of the amount of the Loan to
be made as part of the requested Borrowing (x) in the case of any ABR Borrowing, on the same Business Day of receipt of a Borrowing Request
in accordance with this Section or (y) in the case of any LIBO Rate Borrowing, no later than one Business Day following receipt of a
Borrowing Request in accordance with this Section.
Section
2.04. Swingline Loans.
(a)
Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time
to time during the Availability Period, in an aggregate principal amount at any time outstanding not to exceed $10,000,000; provided that
(x) the Swingline Lender shall not be required to make any Swingline Loan to refinance an outstanding Swingline Loan and (y) after
giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall
not exceed the Total Revolving Credit Commitment. Each Swingline Loan shall be in a minimum principal amount of not less than
$100,000 or such lesser amount as may be agreed by the Swingline Lender; provided that, notwithstanding the foregoing, a
Swingline Loan may be in an aggregate amount that is (x) equal to the entire unused balance of the aggregate Unused Revolving Credit
Commitments or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Within the
foregoing limits and subject to the terms and conditions set forth herein, Swingline Loans may be borrowed, prepaid and reborrowed.
To request a Swingline Loan, the Borrower shall notify the Swingline Lender (with a copy to the Administrative Agent) of such
request by telephone (confirmed by facsimile), not later than 2:00 p.m. on the day of a proposed Swingline Loan. Each such notice
shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline
Loan. The Swingline Lender shall make each Swingline Loan available to the Borrower on the same Business Day by means of a credit to
the Funding Account or otherwise in accordance with the instructions of the Borrower (including, in the case of a Swingline Loan
made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the applicable
Issuing Bank).
(b)
The Swingline Lender may by written notice given to the Administrative Agent not later than 12:00 p.m. on any Business Day require
the Revolving Lenders to acquire participations on the second Business Day following receipt of such notice in all or a portion of
the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Revolving Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each
Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or
Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or any reduction or termination of the Revolving Credit Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with
its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section
2.07 with respect to Revolving Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders pursuant to this Section 2.04(b)), and the Administrative
Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative
Agent shall notify the Borrower of any participation in any Swingline Loan acquired pursuant to this Section 2.04(b), and
thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any
amounts received by the Swingline Lender from the Borrower (or other Person on behalf of the Borrower) in respect of any Swingline
Loan after receipt by the Swingline Lender of the proceeds of any sale of participations therein shall be promptly remitted by the
Swingline Lender to the Administrative Agent and any such amounts received by the Administrative Agent shall be promptly remitted by
the Administrative Agent to the Revolving Lenders that have made their payments pursuant to this Section 2.04(b) and to the
Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline
Lender or the Administrative Agent, as the case may be, and thereafter to the Borrower, if and to the extent such payment is
required to be refunded to the Borrower for any reason. The purchase of participations in any Swingline Loan pursuant to this Section
2.04(b) shall not relieve the Borrower of any default in the payment thereof.
(c)
If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required
to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04 by the time specified in Section
2.04(b), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent),
on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment
is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate from time
to time in effect and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
A certificate of the Swingline Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (c) shall be conclusive absent manifest error.
Section
2.05. Letters of Credit.
(a) General.
(i)
Subject to the terms and conditions set forth herein, (ii) each Issuing Bank agrees, in each case in reliance upon the agreements of
the other Revolving Lenders set forth in this Section 2.05, (A) from time to time on any Business Day during the period from the
Closing Date to the fifth Business Day prior to the Initial Revolving Credit Maturity Date, upon the request of the Borrower, to issue
Letters of Credit issued on sight basis only for the account of the Borrower (or any Restricted Subsidiary; provided that the
Borrower will be the applicant) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.05(b),
and (B) to honor drafts under the Letters of Credit, and (iii) the Revolving Lenders severally agree to participate in the Letters
of Credit issued pursuant to Section 2.05(d). Notwithstanding anything to the contrary contained in this Agreement, no Issuing
Bank shall be required to issue Commercial Letters of Credit without its consent.
(ii)
No Issuing Bank shall have an obligation to issue any Letter of Credit if (x) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, (y) customary “know
your customer” requirements of such Issuing Bank with respect to the beneficiary of such Letter of Credit would be violated or
(z) any law applicable to such Issuing Bank or any directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over such Issuing Bank shall prohibit, or direct that such Issuing Bank refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular.
(b) Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit, the Borrower
shall deliver to the applicable Issuing Bank and the Administrative Agent, at least three Business Days in advance of the requested
date of issuance (or such shorter period as is acceptable to the applicable Issuing Bank or, in the case of any issuance to be made
on the Closing Date, one Business Day prior to the Closing Date), a request to issue a Letter of Credit, which shall specify that it
is being issued under this Agreement, in the form of Exhibit K attached hereto. To request an amendment, extension or renewal
of a Letter of Credit (other than any automatic extension of a Letter of Credit permitted under Section 2.05(c)), the Borrower shall
submit such a request to the applicable Issuing Bank selected by the Borrower (with a copy to the Administrative Agent) at least
three Business Days in advance of the requested date of amendment, extension or renewal (or such shorter period as is acceptable to
the applicable Issuing Bank), identifying the Letter of Credit to be amended, extended or renewed, and specifying the proposed date
(which shall be a Business Day) and other details of the amendment, extension or renewal. Requests for the issuance, amendment,
extension or renewal of any Letter of Credit must be accompanied by such other information as shall be necessary to issue, amend,
extend or renew such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of
credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. In the event of
any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement shall control. No Letter of Credit, letter of credit
application or other document entered into by the Borrower with the applicable Issuing Bank relating to any Letter of Credit shall
contain any representations or warranties, covenants or events of default not set forth in this Agreement (and to the extent
inconsistent herewith shall be rendered null and void or reformed automatically without further action by any Person to conform to
the terms of this Agreement), and all representations and warranties, covenants and events of default set forth therein shall
contain standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with those set forth in this
Agreement (and, to the extent inconsistent herewith, shall be deemed to automatically incorporate the applicable standards,
qualifications, thresholds and exceptions set forth herein without action by any Person). A Letter of Credit may be issued, amended,
extended or renewed only if (and on the issuance, amendment, extension or renewal of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance, amendment, extension or renewal, (A) the sum of (x) the
aggregate outstanding principal amount of all Revolving Loans and Swingline Loans plus (y) the aggregate amount of all LC
Exposures would not exceed the Total Revolving Credit Commitment and (B) the LC Exposure does not exceed the Letter of Credit
Sublimit (unless otherwise increased). In addition, no Issuing Bank shall be required to issue, amend, extend or renew any Letter of
Credit if the terms of such Letter of Credit extend beyond the Maturity Date applicable to the Revolving Credit Commitments of any
Class unless (1) the aggregate amount of the LC Exposure attributable to Letters of Credit expiring after such Maturity Date does
not exceed the aggregate amount of the Revolving Credit Commitments then in effect that are scheduled to remain in effect after such
Maturity Date, (2) all Revolving Lenders and such Issuing Bank shall have consented to such expiry date or (3) 100% of the
then-available face amount thereof is Cash collateralized or backstopped on or before the date that such Letter of Credit is issued,
amended, extended or renewed beyond such date. Promptly after the delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable Issuing Bank will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. Upon receipt of such Letter of
Credit or amendment, the Administrative Agent shall notify the Revolving Lenders, in writing, of such Letter of Credit or amendment,
and if so requested by a Revolving Lender, the Administrative Agent will provide such Revolving Lender with copies of such Letter of
Credit or amendment.
(c) Expiration
Date.
(i)
Except as set forth in Section 2.05(b) (above), no Standby Letter of Credit shall expire later than the earlier of (A) the date
that is one year after the date of the issuance of such Standby Letter of Credit (or such later date to which the relevant Issuing Bank
may agree) and (B) the Latest Revolving Loan Maturity Date; provided that, any Standby Letter of Credit may provide for the automatic
extension thereof for any number of additional periods each of up to one year in duration (none of which, in any event, shall extend
beyond the date referred to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized
or backstopped on or before the date that such Letter of Credit is extended beyond the date referred to in clause (B) above pursuant
to arrangements reasonably satisfactory to the relevant Issuing Bank).
(ii)
Except as set forth in Section 2.05(b) (above), no Commercial Letter of Credit shall expire later than the earlier to occur
of (A) one year after the issuance thereof (or such later date to which the relevant Issuing Bank may agree) and (B) the Latest
Revolving Loan Maturity Date; provided that any Commercial Letter of Credit may provide for the automatic extension thereof
for any number of additional periods each of up to one year in duration (none of which, in any event, shall extend beyond the date
referred to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized or
backstopped on or before the date that such Letter of Credit is extended beyond the date referred to in clause (B) above
pursuant to arrangements reasonably satisfactory to the relevant Issuing Bank).
(d) Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the applicable Issuing Bank or the Revolving Lenders, the applicable Issuing Bank hereby grants to each
Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal
to such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC
Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension
of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or termination of the
Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement.
(i)
If the applicable Issuing Bank makes any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement
by paying to the Administrative Agent (or, in the case of Commercial Letters of Credit, the applicable Issuing Bank) an amount equal
to such LC Disbursement not later than 1:00 p.m. on the second Business Day immediately following the date on which the Borrower receives
notice under paragraph (g) of this Section of such LC Disbursement (or, if such notice is received less than two hours prior to
the deadline for requesting ABR Borrowings pursuant to Section 2.03, on the third Business Day immediately following the date
on which the Borrower receives such notice); provided that the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 or 2.04 that such payment be financed with an ABR Revolving Loan or a Swingline
Loan and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting
Revolving Loan Borrowing or Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify
each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Revolving
Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.07 with
respect to Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations
of the Revolving Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by
it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders
have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as
their interests may appear.
(ii)
If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable Issuing Bank any
amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.05(e) by the time
specified therein, such Issuing Bank shall be entitled to recover from such Revolving Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such
payment is immediately available to such Issuing Bank at a rate per annum equal to the greater of the Federal Funds Effective Rate
from time to time in effect and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation. A certificate of the applicable Issuing Bank submitted to any Revolving Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(f)
Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this
Section shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or
this Agreement, or any term or provision therein or herein, (ii) any draft or other document presented under any Letter of Credit proving
to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment
by the applicable Issuing Bank under any Letter of Credit against presentation of a draft or other document that does not comply with
the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing,
that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Revolving Lenders nor any Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any
Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation
of technical terms or any consequence arising from causes beyond the control of such Issuing Bank; provided that the foregoing
shall not be construed to excuse such Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered
by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence,
bad faith or willful misconduct on the part of applicable Issuing Bank (as finally determined by a court of competent jurisdiction),
such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g)
Disbursement Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by facsimile) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement
thereunder; provided that no failure to give or delay in giving such notice shall relieve the Borrower of its obligation to reimburse
such Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
(h) Interim
Interest. If any Issuing Bank makes any LC Disbursement, then, unless the Borrower reimburses such LC Disbursement in full on
the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such
LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement (or the date on which such LC
Disbursement is reimbursed with the proceeds of Loans, as applicable), at the rate per annum then applicable to Revolving Loans that
are ABR Loans; provided that if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph
(e) of this Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be for the
account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account of such Revolving Lender to
the extent of such payment.
(i) Replacement
of an Issuing Bank or Addition of New Issuing Banks.
Any
Issuing Bank may be replaced with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), the Borrower
and the successor Issuing Bank at any time by written agreement among the Borrower, the Administrative Agent and the successor Issuing
Bank. The Administrative Agent shall notify the Revolving Lenders of any such replacement of an Issuing Bank. At the time any such replacement
becomes effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b)(ii). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank,
or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of any Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under
this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional
Letters of Credit after such replacement. The Borrower may, at any time and from time to time with the consent of the Administrative
Agent (which consent shall not be unreasonably withheld or delayed) and the relevant Revolving Lender, designate one or more additional
Revolving Lenders to act as an issuing bank under the terms of this Agreement. Any Revolving Lender designated as an issuing bank pursuant
to this paragraph (i) shall be deemed to be an “Issuing Bank” (in addition to being a Revolving Lender) in respect
of Letters of Credit issued or to be issued by such Revolving Lender, and, with respect to such Letters of Credit, such term shall thereafter
apply to the other Issuing Bank and such Revolving Lender.
(j) Cash
Collateralization.
(i)
If any Event of Default exists and the Revolving Loans have been declared due and payable in accordance with Article 7 hereof,
then on the Business Day that the Borrower receives notice from the Administrative Agent at the direction of the Required Lenders demanding
the deposit of Cash collateral pursuant to this paragraph (j), upon such demand, the Borrower shall deposit, in an interest-bearing
account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders (the “LC
Collateral Account”), an amount in Cash equal to 100% of the LC Exposure as of such date (minus the amount then on deposit
in the LC Collateral Account); provided that the obligation to deposit such Cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event
of Default with respect to the Borrower described in Section 7.01(f) or (g).
(ii)
Any such deposit under clause (i) above shall be held by the Administrative Agent as collateral for the payment and
performance of the Secured Obligations in accordance with the provisions of this paragraph (j). The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account, and the Borrower hereby
grants the Administrative Agent, for the benefit of the Secured Parties, a First Priority security interest in the LC Collateral
Account. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied
by the Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it has not been reimbursed and,
to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of the Required Revolving
Lenders) be applied to satisfy other Secured Obligations. If the Borrower is required to provide an amount of Cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (together with all interest and other earnings with
respect thereto, to the extent not applied as aforesaid) shall be returned to the Borrower promptly but in no event later than three
Business Days after such Event of Default has been cured or waived.
(k)
Existing Letters of Credit. Existing Letters of Credit shall be deemed Letters of Credit for all purposes under this Agreement,
without need for any further action by the Borrower or any other Person.
Section
2.06. [Reserved].
Section
2.07. Funding of Borrowings.
(a)
Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 1:00 p.m. to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an
amount equal to such Lender’s respective Applicable Percentage; provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to the Funding Account or as otherwise directed by the Borrower; provided that Revolving Loans made to
finance the reimbursement of any LC Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent
to the applicable Issuing Bank.
(b)
Unless the Administrative Agent has received notice from any Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In such event, if any Lender has not in fact made its share of
the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent,
at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable
to the Loans comprising such Borrowing at such time. If such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing and the Borrower’s obligation to repay the Administrative Agent
such corresponding amount pursuant to this Section 2.07(b) shall cease. If the Borrower pays such amount to the Administrative
Agent, the amount so paid shall constitute a repayment of such Borrowing by such amount. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower or any
other Loan Party may have against any Lender as a result of any default by such Lender hereunder.
Section
2.08. Type; Interest Elections.
(a)
Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a LIBO Rate Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert any Borrowing
to a Borrowing of a different Type or to continue such Borrowing and, in the case of a LIBO Rate Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the Lenders based upon their Applicable Percentages and the
Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Loans, which may
not be converted or continued.
(b)
To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election either in writing (by
hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) or by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting
from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)
to the Administrative Agent of a written Interest Election Request signed by a Responsible Officer of the Borrower.
(c)
Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(i)
the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii)
the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii)
whether the resulting Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing; and
(iv)
if the resulting Borrowing is a LIBO Rate Borrowing, the Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term “Interest Period”.
If
any such Interest Election Request requests a LIBO Rate Borrowing but does not specify an Interest Period, then the Borrower shall
be deemed to have selected an Interest Period of one month’s duration.
(d)
Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each applicable Lender of the details
thereof and of such Lender’s portion of each resulting Borrowing.
(e)
If the Borrower fails to deliver a timely Interest Election Request with respect to a LIBO Rate Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing shall be converted at
the end of such Interest Period to a LIBO Rate Borrowing with an Interest Period of one month. Notwithstanding any contrary
provision hereof, if an Event of Default exists and the Administrative Agent, at the request of the Required Lenders, so notifies
the Borrower, then, so long as such Event of Default exists (i) no outstanding Borrowing may be converted to or continued as a LIBO
Rate Borrowing and (ii) unless repaid, each LIBO Rate Borrowing shall be converted to an ABR Borrowing at the end of the
then-current Interest Period applicable thereto.
Section
2.09. Termination and Reduction of Commitments.
(a)
Unless previously terminated, (i) the Initial Term Loan Commitments on the Closing Date shall automatically terminate upon the making
of the Initial Term Loans on the Closing Date, (ii) the Initial Term Loan
Commitments on the Amendment No. 1 Effective Date shall automatically terminate upon the making of the Amendment No. 1 Incremental Term
Loans on the Amendment No. 1 Effective Date, (iii) the Initial Revolving Credit Commitments shall automatically terminate
on the Initial Revolving Credit Maturity Date, (iii) (iv)
the Additional Term Loan Commitments of any Class shall automatically terminate upon the making of the Additional Term Loans
of such Class and, if any such Additional Term Loan Commitment is not drawn on the date that such Additional Term Loan Commitment is
required to be drawn pursuant to the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment, the undrawn
amount thereof shall terminate unless otherwise provided in the applicable Refinancing Amendment, Extension Amendment or Incremental
Facility Amendment and (iv) (v)
the Additional Revolving Credit Commitments of any Class shall automatically terminate on the Maturity Date specified therefor
in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment.
(b)
Upon delivering the notice required by Section 2.09(c), the Borrower may at any time terminate or from time to time reduce the
Revolving Credit Commitments of any Class; provided that (i) each reduction of the Revolving Credit Commitments of any Class shall
be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or
reduce the Revolving Credit Commitments of any Class if, after giving effect to such termination or reduction, as applicable, and any
concurrent prepayment of Revolving Loans and Swingline Loans, the aggregate amount of the Revolving Credit Exposure attributable to the
Revolving Credit Commitments of such Class would exceed the aggregate amount of the Revolving Credit Commitments of such Class; provided
that, after the establishment of any Additional Revolving Credit Commitment, any such termination or reduction of the Revolving Credit
Commitments of any Class shall be subject to the provisions set forth in Section 2.22, 2.23 and/or 9.02, as applicable.
(c)
The Borrower shall notify the Administrative Agent of any election to terminate or reduce any Class or Classes of Revolving Credit Commitments
under paragraph (b) of this Section (as selected by the Borrower) not later than 11:00 a.m. on or prior to the effective date
of such termination or reduction (or at least, not later than 11:00 a.m., three Business Days prior to the effective date of such termination
or reduction in the case of a termination or reduction involving a prepayment of LIBO Rate Borrowings (or such later date to which the
Administrative Agent may agree)), specifying such election and the effective date thereof. Promptly following receipt of any such notice,
the Administrative Agent shall advise the Revolving Lenders of each applicable Class or Classes of the contents thereof. Each notice
delivered by the Borrower pursuant to this Section shall be irrevocable; provided that any such notice may state that such notice
is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of
any Revolving Credit Commitment pursuant to this Section 2.09 shall be permanent. Upon any reduction of any Revolving Credit Commitment,
the Revolving Credit Commitment of each Revolving Lender of the relevant Class shall be reduced by such Revolving Lender’s Applicable
Percentage of such reduction amount.
Section
2.10. Repayment of Loans; Evidence of Debt.
(a)
The Borrower hereby unconditionally promises to repay the outstanding principal amount of the Initial Term Loans to the Administrative
Agent for the account of each applicable Term Lender (i) commencing September 29, 2017, on the last Business Day of each March, June,
September and December prior to the Initial Term Loan Maturity Date (each such date being referred to as a “Loan Installment
Date”), in each case in an amount equal to 0.25% of the original principal
amount of the Initial Term Loans$1,746,419.60
(as such payments may be reduced from time to time as a result of the application of prepayments in accordance with Section
2.11 and purchases or assignments in accordance with Section 9.05(g) or increased as a result of any increase in the amount
of such Initial Term Loans pursuant to Section 2.22(a)) and (ii) on the Initial Term Loan Maturity Date, in an amount equal to
the remainder of the principal amount of the Initial Term Loans outstanding on such date, together in each case with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of such payment. The Borrower shall repay the Additional Term Loans
of any Class in such scheduled amortization installments and on such date or dates as shall be specified therefor in the applicable Refinancing
Amendment, Extension Amendment or Incremental Facility Amendment (as such payments may be reduced from time to time as a result of the
application of prepayments in accordance with Section 2.11 and purchases or assignments in accordance with Section 9.05(g)
or increased as a result of any increase in the amount of such Additional Term Loans pursuant to Section 2.22(a)).
(b)
The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Revolving Lender the then
unpaid principal amount of each Revolving Loan on the Initial Revolving Credit Maturity Date and (ii) to the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the earlier of (x) the 10th Business Day following the incurrence of such Swingline
Loan and (y) the Initial Revolving Credit Maturity Date. On the Initial Revolving Credit Maturity Date, the Borrower shall (A) cancel
and return all outstanding Letters of Credit (or alternatively, with respect to any outstanding Letter of Credit, furnish to the Administrative
Agent a Cash deposit (or if reasonably acceptable to the relevant Issuing Bank, a backup standby letter of credit) equal to 100% of the
LC Exposure (minus the amount then on deposit in the LC Collateral Account) as of such date) and (B) make payment in full in Cash
of all accrued and unpaid fees and all reimbursable expenses and other Obligations with respect to the Revolving Facility then due, together
with accrued and unpaid interest (if any) thereon.
(c)
Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(d)
The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become
due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders or the Issuing Bank and each Lender’s share or the Issuing Bank’s share thereof.
(e)
The entries made in the accounts maintained pursuant to paragraphs (c) or (d) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein (absent manifest error); provided that the failure
of any Lender or the Administrative Agent to maintain such accounts or any manifest error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement; provided, further, that in the
event of any inconsistency between the accounts maintained by the Administrative Agent pursuant to paragraph (d) of this
Section and any Lender’s records, the accounts of the Administrative Agent shall govern.
(f)
Any Lender may request that Loans made by it be evidenced by a Promissory Note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a Promissory Note payable to such Lender and its registered permitted assigns; it being understood and agreed
that such Lender (and/or its applicable permitted assign) shall be required to return such Promissory Note to the Borrower in accordance
with Section 9.05(b)(iii) and upon the occurrence of the Termination Date (or as promptly thereafter as practicable). If any Lender
loses the original copy of its Promissory Note, it shall execute an affidavit of loss containing a customary indemnification provision
that is reasonably satisfactory to the Borrower. The obligation of each Lender to execute an affidavit of loss containing a customary
indemnification provision that is reasonably satisfactory to the Borrower shall survive the Termination Date.
Section
2.11. Prepayment of Loans.
(a) Optional
Prepayments.
(i)
Upon prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from
time to time to prepay any Borrowing of Term Loans of one or more Classes (such Class or Classes to be selected by the Borrower in its
sole discretion) in whole or in part without premium or penalty (but subject to (A) in the case of Initial Term Loans only, Section
2.12(f) and (B) if applicable, Section 2.16). Each such prepayment shall be paid to the Lenders in accordance with their respective
Applicable Percentages of the relevant Class.
(ii)
Upon prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from
time to time to prepay any Borrowing of Revolving Loans of any Class or any Borrowing of Swingline Loans, including any Additional Revolving
Loans, in whole or in part without premium or penalty (but subject to Section 2.16). Prepayments made pursuant to this Section
2.11(a)(ii), first, shall be applied ratably to the Swingline Loans and to outstanding LC Disbursements and second, shall be applied
ratably to the outstanding Revolving Loans, including any Additional Revolving Loans of the relevant Class.
(iii)
The Borrower shall notify the Administrative Agent (and, in the case of a prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed in writing) of any prepayment under this Section 2.11(a) (A) in the case of a prepayment of a LIBO Rate
Borrowing, not later than 1:00 p.m. three Business Days before the date of prepayment, (B) in the case of a prepayment of an ABR
Borrowing, not later than 1:00 p.m. on the date of prepayment or (C) in the case of a prepayment of a Swingline Loan, not later than
1:00 p.m. on the date of prepayment (or, in each case, such later date or time to which the Administrative Agent may reasonably
agree). Each such notice shall be irrevocable (except as set forth in the proviso to this sentence) and shall specify the prepayment
date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that a notice of prepayment
delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other transactions, in which case such
notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Promptly following receipt of any such notice relating to any Borrowing, the Administrative Agent shall
advise the relevant Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of a Borrowing of the same Type and Class as provided in Section 2.02(c) or such lesser amount that is
then outstanding with respect to such Borrowing being repaid. Each prepayment of Term Loans shall be applied to the Class of Term
Loans as determined by the Borrower and specified in the applicable prepayment notice, and each prepayment of Term Loans of such
Class made pursuant to this Section 2.11(a) shall be applied against the remaining scheduled installments of principal due in
respect of the Term Loans of such Class in the manner specified by the Borrower or, if not so specified on or prior to the date of
such optional prepayment, in direct order of maturity.
(b)
Mandatory Prepayments.
(i)
No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the
Borrower are delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on or about June 30, 20182019,
the Borrower shall prepay Subject Loans in accordance with clause (vi) below in an aggregate principal amount (the
“ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the
Borrower and its Restricted Subsidiaries for the Excess Cash Flow Period then most recently ended (this clause (A), the
“Base ECF Prepayment Amount”), minus (B) at the option of the Borrower, to the extent occurring during
such Excess Cash Flow Period (or occurring after such Excess Cash Flow Period and prior to the date of the applicable Excess Cash
Flow payment), and without duplication (including duplication of any amounts deducted in any prior Excess Cash Flow Period), the
following (collectively, the “ECF Deductions”):
(1)
the aggregate principal amount of any Initial Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid
pursuant to Section 2.11(a);
(2)
(x) the aggregate principal amount of any Incremental Equivalent Debt, Replacement Debt and/or any other Indebtedness permitted to be
incurred pursuant to Section 6.01 to the extent secured by Liens on the Collateral that are pari passu with the Liens on
the Collateral securing the Credit Facilities, voluntarily prepaid, repurchased, redeemed or otherwise retired and (y) the aggregate
principal amount of any loans under any Second Lien Facility (including any Incremental Loans and Additional Loans (as defined in the
Second Lien Credit Agreement or any other document governing any Second Lien Facility)) prepaid pursuant to Section 2.11(a) of
the Second Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien Facility) (to the extent
the relevant voluntary prepayments are permitted by the terms of this Agreement) and the aggregate principal amount of Incremental Equivalent
Debt and/or Replacement Debt (as defined in the Second Lien Credit Agreement or any other document governing any Second Lien Facility)
secured on a pari passu basis with the Second Lien Facility voluntarily prepaid, repurchased, redeemed or otherwise retired (or
contractually committed to be prepaid, repurchased, redeemed or otherwise retired);
(3)
(1) the amount of any reduction in the outstanding amount of any Initial Term Loans, Additional Term Loans, Incremental Equivalent
Debt, Replacement Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 6.01 to the extent secured
by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Credit Facilities, resulting
from any purchase or assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any
Dutch Auction) (with respect to Initial Term Loans and/or Additional Term Loans) and any equivalent provisions with respect to any
Incremental Equivalent Debt, Replacement Debt and/or such other Indebtedness and/or (2) to the extent permitted by the terms of this
Agreement, the amount of any reduction in the outstanding amount of any loans under the Second Lien Facility and/or any
“Incremental Equivalent Debt”, “Replacement Debt” and/or other Indebtedness permitted to be incurred
thereunder to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the
Second Lien Facility (including any reduction resulting from any purchase or assignment made in accordance with Section
9.05(g) of the Second Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien
Facility) (including in connection with any Dutch Auction (as defined in the Second Lien Credit Agreement or any other document
governing any Second Lien Facility)) and any equivalent provisions with respect to any such “Incremental Equivalent
Debt”, “Replacement Debt” and/or such other Indebtedness;
(4)
all Cash payments in respect of Capital Expenditures as would be reported in the Borrower’s consolidated statement of cash flows
and all Cash payments made to acquire IP Rights;
(5)
Cash payments by the Borrower and its Restricted Subsidiaries made (or committed) in respect of long-term liabilities (including for
purposes of clarity, the current portion of such long-term liabilities) of the Borrower and its Restricted Subsidiaries other than Indebtedness,
except to the extent such Cash payments were deducted in the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA for
such period;
(6)
Cash payments in respect of any Investment (including acquisitions) permitted by Section 6.06 or otherwise consented to by the
Required Lenders (other than Investments (x) in Cash or Cash Equivalents or (y) in the Borrower or any Loan Party) and/or any Restricted
Payment permitted by Section 6.04(a) or otherwise consented to by the Required Lenders;
(7)
the aggregate consideration (i) required to be paid in Cash by the Borrower or its Restricted Subsidiaries pursuant to binding contracts
entered into prior to or during such period relating to Capital Expenditures, acquisitions or other Investments permitted by Section
6.06 or otherwise consented to by the Required Lenders and/or Restricted Payments described in clause (6) above and/or (ii)
otherwise committed or budgeted to be made in connection with Capital Expenditures, acquisitions or Investments and/or Restricted Payments
described in clause (6) above (clauses (i) and (ii) of this clause (7), the “Scheduled Consideration”) (other
than Investments in (x) Cash and Cash Equivalents or (y) the Borrower or any Loan Party) to be consummated or made during the period
of four consecutive Fiscal Quarters of the Borrower following the end of such period; provided that to the extent the aggregate
amount actually utilized to finance such Capital Expenditures, acquisitions, Investments or Restricted Payments during such subsequent
period of four consecutive Fiscal Quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added
to the calculation of Excess Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters;
(8)
Cash expenditures in respect of any Hedge Agreement during such period to the extent (A) not otherwise deducted in the calculation of
Consolidated Net Income or Consolidated Adjusted EBITDA and (B) not financed with long-term funded Indebtedness (other than revolving
Indebtedness); and
(9)
the aggregate amount of expenditures actually made by the Borrower and/or any Restricted Subsidiary in Cash (including any
expenditure for the payment of fees or other Charges (or any amortization thereof for such period) in connection with any
Disposition, incurrence or repayment of Indebtedness, issuance of Capital Stock, refinancing transaction, amendment or modification
of any debt instrument, including this Agreement, and including, in each case, any such transaction consummated prior to, on or
after the Closing Date, and Charges incurred in connection therewith, whether or not such transaction was successful), in each case
to the extent that such expenditures were (A) not expensed and (B) not financed with long-term funded Indebtedness (other than
revolving Indebtedness);
in
the case of each of clauses (1)-(9), (I) excluding any such payments, prepayments and expenditures made during such
Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year, (II)
in the case of any prepayment of Revolving Loans and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction
in the relevant commitment, (III) to the extent that such payments, prepayments and expenditures were not financed with the proceeds
of other long-term funded Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries and (IV) in
each case under clause (3) above, based upon the actual amount of cash paid in connection with any relevant purchase or assignment; provided
that no prepayment under this Section 2.11(b)(i) shall be required unless the principal amount of Subject Loans required to
be prepaid exceeds $2,500,000 (and, in such case, only such amount in excess of $2,500,000 shall be required to be prepaid); provided,
further, that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is also required
to prepay, repurchase or offer to prepay or repurchase any Indebtedness that is secured on a pari passu basis (without regard
to the control of remedies) with any Secured Obligation pursuant to the terms of the documentation governing such Indebtedness (such
Indebtedness required to be so prepaid or repurchased or offered to be so prepaid or repurchased, “Other Applicable Indebtedness”)
with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis
(determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the relevant Other Applicable Indebtedness
(or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time) to the prepayment of
the Subject Loans and to the prepayment of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Subject Loans
that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; it being understood
that (1) the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the portion of such
ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining
amount, if any, of such ECF Prepayment Amount shall be allocated to the Subject Loans in accordance with the terms hereof and (2) to
the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount
shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in
accordance with the terms hereof.
(ii)
No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net
Insurance/Condemnation Proceeds, in each case, in excess of (x) $10,000,000 in any single transaction or series of related
transactions and (y) $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to the Required Net Proceeds
Percentage of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds
(collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Subject Loans in accordance
with clause (vi) below; provided that (A) if prior to the date any such prepayment is required to be made, the
Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the
business of the Borrower or any of its subsidiaries (including permitted acquisitions or other Investments, but excluding Cash or
Cash Equivalents), then the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect
of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y)
the Borrower or any of its subsidiaries has contractually committed to so reinvest the Subject Proceeds during such 18-month period
and the Subject Proceeds are so reinvested within six months after the expiration of such 18-month period; provided, however,
that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall
promptly prepay the outstanding principal amount of Subject Loans with the Subject Proceeds not so reinvested as set forth above
(without regard to the immediately preceding proviso) and (B) if, at the time that any such prepayment would be required hereunder,
the Borrower or any of its Restricted Subsidiaries is required to repay or repurchase (or offer to repay or repurchase) any Other
Applicable Indebtedness, then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the
Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate
outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable
Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds
allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the
Other Applicable Indebtedness pursuant to the terms thereof (and the remaining amount, if any, of the Subject Proceeds shall be
allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that
would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent
the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall
promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in
accordance with the terms hereof.
(iii)
In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness
by the Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, except
to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of the Initial Term
Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans in accordance with the requirements
of Section 9.02(c)), the Borrower shall, substantially simultaneously with (and in any event not later than two Business Days
thereafter) the receipt of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of
such Net Proceeds to prepay the outstanding principal amount of the relevant Initial Term Loans in accordance with clause (vi)
below.
(iv)
Notwithstanding anything in this Section 2.11(b) to the contrary, (A) the Borrower shall not be required to prepay any amount
that would otherwise be required to be paid pursuant to Sections 2.11(b)(i), (ii) or (iii) above to the extent that
the relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any
Foreign Subsidiary, the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary or the relevant
Indebtedness is incurred by any Foreign Subsidiary (except to the extent the relevant Indebtedness constitutes Refinancing
Indebtedness incurred by any Foreign Subsidiary to refinance all or a portion of the Initial Term Loans or Additional Term Loans
pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in
accordance with the requirements of Section 9.02(c)), as the case may be, for so long as the Borrower determines in good
faith that the repatriation to the Borrower of any such amount would be prohibited or delayed (beyond the time period during which
such prepayment is otherwise required to be made pursuant to Section 2.11(b)(i), (ii) or (iii) above) under any
Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could
reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager,
member of management or consultant of such Foreign Subsidiary (including on account of financial assistance, corporate benefit, thin
capitalization, capital maintenance or similar considerations); it being understood and agreed that (i) solely within 365 days
following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt
of proceeds from the respective incurrence of Indebtedness, the Borrower shall take all commercially reasonable actions required by
applicable Requirements of Law to permit such repatriation and (ii) if the repatriation of the relevant affected Excess Cash Flow,
Subject Proceeds or Indebtedness proceeds, as the case may be, is permitted under the applicable Requirement of Law and, to the
extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to
result in, a material risk of personal or criminal liability for the Persons described above, in either case, within 365 days
following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt
of Net Proceeds in respect of any such Indebtedness, the relevant Foreign Subsidiary will promptly repatriate the relevant Excess
Cash Flow, Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, and the repatriated Excess Cash Flow,
Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, will be promptly (and in any event not later than
two Business Days after such repatriation) applied (net of additional Taxes payable or reserved against such Excess Cash Flow, such
Subject Proceeds or such Net Proceeds in respect of Indebtedness, as a result thereof, in each case by any Loan Party, such Loan
Party’s subsidiaries, and any Affiliates or indirect or direct equity owners of the foregoing) to the repayment of the Initial
Term Loans and Additional Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause
(iv), (B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections
2.11(b)(i) or (ii) to the extent that the relevant Excess Cash Flow is generated by any Joint Venture or the relevant
Subject Proceeds or Net Proceeds in respect of Indebtedness are received by any Joint Venture for so long as the Borrower determines
in good faith that the distribution to the Borrower of such Excess Cash Flow, Subject Proceeds or Net Proceeds in respect of
Indebtedness would be prohibited under the Organizational Documents (or any relevant shareholders’ or similar agreement)
governing such Joint Venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period
following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt
of Net Proceeds in respect of any such Indebtedness, the relevant Joint Venture will promptly distribute the relevant Excess Cash
Flow, the relevant Subject Proceeds or the relevant Net Proceeds in respect of Indebtedness, as the case may be, and the distributed
Excess Cash Flow, Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, will be promptly (and in any
event not later than ten Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a
result thereof) to the repayment of the Term Loans pursuant to this Section 2.11(b) to the extent required herein (without
regard to this clause (iv)) and (C) if the Borrower determines in good faith that the repatriation to the Borrower of any
amounts required to mandatorily prepay the Initial Term Loans and Additional Term Loans pursuant to Sections 2.11(b)(i), (ii) or (iii)
above would result in material and adverse tax consequences, taking into account any foreign tax credit or benefit actually realized
in connection with such repatriation (such amount, a “Restricted Amount”), as determined by the Borrower in good
faith, the amount the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i), (ii) or (iii)
above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation of any
Subject Proceeds, Excess Cash Flow or the Net Proceeds in respect of any such Indebtedness from the relevant Foreign Subsidiary
would no longer have a material and adverse tax consequence within the 365-day period following the event giving rise to the
relevant Subject Proceeds, the receipt of Net Proceeds in respect of any such Indebtedness or the end of the applicable Excess Cash
Flow Period, as the case may be, an amount equal to the Subject Proceeds, Excess Cash Flow or the Net Proceeds in respect of any
such Indebtedness, as applicable, not previously applied pursuant to this clause (C), shall be promptly applied to the
repayment of the Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise required above
(without regard to this clause (iv));
(v)
Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the
Administrative Agent, prior to any prepayment of Initial Term Loans and Additional Term Loans required to be made by the Borrower
pursuant to this Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such
declined amounts, the “Declined Proceeds”), which Declined Proceeds may be retained by the Borrower and used for
any legal purpose permitted (or not prohibited) hereunder, including to increase the Available Amount; provided, further,
that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent
that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Debt) incurred to
refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p), (x) Incremental
Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Loans incurred
to refinance all or a portion of the Term Loans in accordance with the requirements of Section 9.02(c) and/or (z) Incremental
Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section
6.01(z). If any Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of its
Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be
deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of
Initial Term Loans and Additional Term Loans.
(vi)
Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each
prepayment of Initial Term Loans and Additional Term Loans pursuant to this Section 2.11(b) shall be applied ratably to each
Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided
that any prepayment constituting (w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of
the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p), (x) Incremental Loans incurred to refinance all
or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Loans incurred to refinance all or a portion of the
Term Loans in accordance with the requirements of Section 9.02(c) and/or (z) Incremental Equivalent Debt incurred to
refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.01(z) shall, in each case be
applied solely to each applicable Class of refinanced or replaced Term Loans), (B) with respect to each Class of Initial Term Loans
and Additional Term Loans, all accepted prepayments under Section 2.11(b)(i), (ii) or (iii) shall be applied against
the remaining scheduled installments of principal due in respect of the Initial Term Loans and Additional Term Loans as directed by
the Borrower (or, in the absence of direction from the Borrower, to the remaining scheduled amortization payments in respect of the
Initial Term Loans and Additional Term Loans in direct order of maturity), and (C) each such prepayment shall be paid to the Term
Lenders in accordance with their respective Applicable Percentages. The amount of such mandatory prepayments shall be applied on a
pro rata basis to the then outstanding Initial Term Loans and Additional Term Loans being prepaid irrespective of whether such
outstanding Loans are ABR Loans or LIBO Rate Loans; provided that the amount thereof shall be applied first to ABR Loans to
the full extent thereof before application to the LIBO Rate Loans in a manner that minimizes the amount of any payments required to
be made by the Borrower pursuant to Section 2.16. Any prepayment of Initial Term Loans made on or prior to the date that is
twelve months after the Closing Date pursuant to Section 2.11(b)(iii) as part of a Repricing Transaction shall be accompanied
by the fee set forth in Section 2.12(f).
(vii)
In the event that the Aggregate Revolving Credit Exposure exceeds the Total Revolving Credit Commitment then in effect, the Borrower
shall, within five Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Loans or Swingline Loans and/or
reduce LC Exposure in an aggregate amount sufficient to reduce such Aggregate Revolving Credit Exposure as of the date of such payment
to an amount not to exceed the Total Revolving Credit Commitment then in effect by taking any of the following actions as it shall determine
at its sole discretion: (A) prepayment of Revolving Loans or Swingline Loans or (B) with respect to the excess LC Exposure, deposit of
Cash in the LC Collateral Account or “backstopping” or replacement of the relevant Letters of Credit, in each case, in an
amount equal to 100% of such excess LC Exposure (minus the amount then on deposit in the LC Collateral Account).
(viii)
At the time of each prepayment required under Section 2.11(b)(i), (ii) or (iii), the Borrower shall deliver to the
Administrative Agent a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation
of the amount of such prepayment. Each such certificate shall specify the Borrowings being prepaid and the principal amount of each Borrowing
(or portion thereof) to be prepaid. Prepayments shall be accompanied by accrued interest as required by Section 2.13. All prepayments
of Borrowings under this Section 2.11(b) shall be subject to Section 2.16 and, except as set forth in the last sentence
of clause (vi) above, shall otherwise be without premium or penalty.
Section
2.12. Fees.
(a)
The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender of any Class (other than any Defaulting
Lender) a commitment fee, which shall accrue at a rate equal to the Commitment Fee Rate per annum applicable to the Revolving Credit
Commitment of such Class on the average daily amount of the Unused Revolving Credit Commitment of such Class of such Revolving Lender
during the period from and including the Closing Date to the date on which such Lender’s Revolving Credit Commitments of such Class
terminate. Accrued commitment fees shall be payable in arrears on the last Business Day of each March, June, September and December for
the quarterly period then ended (commencing on September 30, 2017, but in the case of the payment made on September 30, 2017, for the
period from the Closing Date to such date) and on the date on which the Revolving Credit Commitments of the applicable Class terminate.
For purposes of calculating the commitment fees only, no portion of the Revolving Credit Commitments shall be deemed utilized as a result
of outstanding Swingline Loans.
(b)
The Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender of any Class (other than any
Defaulting Lender) a participation fee with respect to its participation in each Letter of Credit, which shall accrue at the
Applicable Rate used to determine the interest rate applicable to LIBO Rate Revolving Loans on the daily face amount of such
Lender’s LC Exposure attributable to its Revolving Credit Commitment of such Class in respect of such Letter of Credit
(excluding any portion thereof attributable to unreimbursed LC Disbursements), during the period from and including the Closing Date
to the later of the date on which such Revolving Lender’s Revolving Credit Commitment of such Class terminates and the date on
which such Revolving Lender ceases to have any LC Exposure related to its Revolving Credit Commitment of such Class in respect of
such Letter of Credit (including any such Letter of Credit Exposure that may exist following the termination of such Revolving
Credit Commitments) and (ii) to each Issuing Bank, for its own account, a fronting fee, in respect of each Letter of Credit issued
by such Issuing Bank for the period from the date of issuance of such Letter of Credit to the expiration date of such Letter of
Credit (or if terminated on an earlier date, to the termination date of such Letter of Credit), computed at a rate equal to the rate
agreed by such Issuing Bank and the Borrower (but in any event not to exceed 0.125% per annum) of the daily face amount of such
Letter of Credit, as well as such Issuing Bank’s reasonable and customary fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees accrued to
but excluding the last Business Day of each March, June, September and December shall be payable in arrears for the quarterly period
then ended (or, in the case of the payment made on September 30, 2017, for the period from the Closing Date to such date) on the
last Business Day of such calendar quarter; provided that all such fees shall be payable on the date on which the Revolving
Credit Commitments of the applicable Class terminate, and any such fees accruing after the date on which the Revolving Credit
Commitments of the applicable Class terminate shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to
this paragraph shall be payable within 30 days after receipt of a written demand (accompanied by reasonable back-up documentation)
therefor.
(c) [Reserved].
(d)
The Borrower agrees to pay to the Administrative Agent, for its own account, the fees in the amounts and at the times separately agreed
upon by the Borrower and the Administrative Agent in writing.
(e)
All fees payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Administrative Agent
(or to the applicable Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation
fees, to the Revolving Lenders. Fees paid shall not be refundable under any circumstances except as otherwise provided in the Fee Letter.
Fees payable hereunder shall accrue through and including the last day of the month immediately preceding the applicable fee payment
date.
(f)
In the event that, on or prior to the date that is twelve months after the Closing Date, the Borrower (x) prepays, repays, refinances,
substitutes or replaces any Initial Term Loans in connection with a Repricing Transaction (including, for the avoidance of doubt, any
prepayment made pursuant to Section 2.11(b)(iii) that constitutes a Repricing Transaction) or (y) effects any amendment, modification
or waiver of, or consent under, this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent,
for the ratable account of each of the applicable Initial Term Lenders, (I) in the case of clause (x), a premium of 1.00% of the
aggregate principal amount of the Initial Term Loans so prepaid, repaid, refinanced, substituted or replaced and (II) in the case of
clause (y), a fee equal to 1.00% of the aggregate principal amount of the Initial Term Loans that are the subject of such Repricing
Transaction outstanding immediately prior to such amendment. If, on or prior to the date that is twelve months after the Closing Date,
all or any portion of the Initial Term Loans held by any Term Lender are prepaid, repaid, refinanced, substituted or replaced pursuant
to Section 2.19(b)(iv) as a result of, or in connection with, such Term Lender not agreeing or otherwise consenting to any waiver,
consent, modification or amendment referred to in clause (y) above (or otherwise in connection with a Repricing Transaction),
such prepayment, repayment, refinancing, substitution or replacement will be made at 101% of the principal amount so prepaid, repaid,
refinanced, substituted or replaced. All such amounts shall be due and payable on the date of effectiveness of such Repricing Transaction.
(g)
Unless otherwise indicated herein, all computations of fees shall be made on the basis of a 360-day year and shall be payable for the
actual days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of the amount
of any fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section
2.13. Interest.
(a)
The Term Loans and Revolving Loans comprising each ABR Borrowing (including Swingline Loans) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b)
The Term Loans and Revolving Loans comprising each LIBO Rate Borrowing shall bear interest at the LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Rate.
(c) [Reserved].
(d)
Notwithstanding the foregoing, during the existence and continuance of any Event of Default under Section 7.01(a), if any principal
of or interest on any Initial Term Loan or Revolving Loan, any LC Disbursement or any fee payable by the Borrower hereunder is not, in
each case, paid or reimbursed when due, whether at stated maturity, upon acceleration or otherwise, the relevant overdue amount shall
bear interest, to the fullest extent permitted by applicable Requirements of Law, after as well as before judgment, at a rate per annum
equal to (i) in the case of overdue principal or interest of any Initial Term Loan, Revolving Loan or unreimbursed LC Disbursement, 2.00%
plus the rate otherwise applicable to such Initial Term Loan, Revolving Loan or LC Disbursement as provided in the preceding paragraphs
of this Section or Section 2.05(h) or (ii) in the case of any other amount, 2.00% plus the rate applicable to Revolving
Loans that are ABR Loans as provided in paragraph (a) of this Section; provided that no amount shall be payable pursuant
to this Section 2.13(d) to any Defaulting Lender so long as such Lender is a Defaulting Lender; provided further that no
amounts shall accrue pursuant to this Section 2.13(d) on any overdue amount, reimbursement obligation in respect of any LC Disbursement
or other amount payable to a Defaulting Lender so long as such Lender is a Defaulting Lender.
(e)
Accrued interest on each Initial Term Loan, Revolving Loan or Swingline Loan shall be payable in arrears on each Interest Payment Date
for such Initial Term Loan, Revolving Loan or Swingline Loan and on the Maturity Date applicable to such Loan or upon the termination
of the Revolving Credit Commitments, as applicable; provided that (i) interest accrued pursuant to paragraph (d) of this
Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Initial Term Loan or Revolving Loan (other
than a prepayment of an ABR Revolving Loan prior to the termination of the relevant revolving Commitments), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any
LIBO Rate Loan prior to the end of the current Interest Period therefor, accrued interest on such Initial Term Loan or Revolving Loan
shall be payable on the effective date of such conversion. Accrued interest for any Class of Additional Revolving Loans or Additional
Term Loans shall be payable as set forth in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment.
(f)
All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed for ABR Loans based on
the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable
for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or
LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
Interest shall accrue on each Loan from the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is
made shall bear interest for one day; provided further that, in the case of any ABR Loan, interest shall accrue through and
including the last day of the month preceding the applicable Interest Payment Date.
Section
2.14. Alternate Rate of Interest. If at least two Business Days prior to the commencement of any Interest Period for a
LIBO Rate Borrowing:
(a)
the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the LIBO Rate for such Interest Period; or
(b)
the Administrative Agent is advised by the Required Lenders that the LIBO Rate for such Interest Period will not adequately and fairly
reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;
then
the Administrative Agent shall promptly give notice thereof to the Borrower and the Lenders by telephone or facsimile as promptly as
practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the
conversion of any Borrowing to, or continuation of any Borrowing as, a LIBO Rate Borrowing shall be ineffective and such Borrowing shall
be converted to an ABR Borrowing on the last day of the Interest Period applicable thereto and (ii) if any Borrowing Request requests
a LIBO Rate Borrowing, such Borrowing shall be made as an ABR Borrowing.
Section
2.15. Increased Costs.
(a) If
any Change in Law:
(i)
imposes, modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve requirement reflected in the LIBO Rate) or Issuing Bank; or
(ii)
imposes on any Lender or Issuing Bank or the London interbank market any other condition affecting this Agreement or LIBO Rate Loans
made by any Lender or any Letter of Credit or participation therein;
and
the result of any of the foregoing is to increase the cost to the relevant Lender of making or maintaining any LIBO Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to such Lender or Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank
hereunder (whether of principal, interest or otherwise) in respect of any LIBO Rate Loan or Letter of Credit in an amount deemed by
such Lender or Issuing Bank to be material, then, within 30 days after the Borrower’s receipt of the certificate contemplated
by paragraph (c) of this Section, the Borrower will pay to such Lender or Issuing Bank, as applicable, such additional amount
or amounts as will compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered
(except that this provision shall not apply to any Taxes, which shall be dealt with exclusively pursuant to Section 2.17); provided
that the Borrower shall not be liable for such compensation if (x) the relevant Change in Law occurs on a date prior to the date
such Lender becomes a party hereto, (y) such Lender invokes Section 2.20 or (z) in the case of requests for reimbursement
under clause (ii) above resulting from a market disruption, (A) the relevant circumstances do not generally affect the
banking market or (B) the applicable request has not been made by Lenders constituting Required Lenders.
(b)
If any Lender or Issuing Bank determines that any Change in Law regarding liquidity or capital requirements has or would have the effect
of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing
Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank
or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law other than due to
Taxes, which shall be dealt with exclusively pursuant to Section 2.17 (taking into consideration such Lender’s or Issuing
Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy),
then within 30 days of receipt by the Borrower of the certificate contemplated by paragraph (c) of this Section the Borrower will
pay to such Lender or such Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or such Issuing
Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.
(c)
Any Lender or Issuing Bank requesting compensation under this Section 2.15 shall be required to deliver a certificate to the Borrower
that (i) sets forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as applicable,
as specified in paragraph (a) or (b) of this Section, (ii) sets forth in reasonable detail the manner in which such amount
or amounts were determined and (iii) certifies that such Lender or Issuing Bank is generally charging such amounts to similarly situated
borrowers, which certificate shall be conclusive absent manifest error.
(d)
Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver
of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required
to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender or Issuing Bank notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided, further, that
if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall
be extended to include the period of retroactive effect thereof.
Section
2.16. Break Funding Payments. In the event of (a) the conversion or prepayment of any principal of any LIBO Rate Loan other
than on the last day of an Interest Period applicable thereto (whether voluntary, mandatory, automatic, by reason of acceleration or
otherwise), (b) the failure to borrow, convert, continue or prepay any LIBO Rate Loan on the date or in the amount specified in any
notice delivered pursuant hereto or (c) the assignment of any LIBO Rate Loan of any Lender other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense incurred by such Lender that is attributable to such
event (other than loss of profit). In the case of a LIBO Rate Loan, the loss, cost or expense of any Lender shall be the amount
reasonably determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the LIBO Rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to
borrow, convert or continue, for the period that would have been the Interest Period for such Loan) over (ii) the amount of interest
which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for deposits in the applicable currency of a comparable amount and period from other banks in the
Eurodollar market; it being understood that such loss, cost or expense shall in any case exclude any interest rate floor and all
administrative, processing or similar fees. Any Lender requesting compensation under this Section 2.16 shall be required to
deliver a certificate to the Borrower (i) setting forth any amount or amounts that such Lender is entitled to receive pursuant to
this Section, the basis therefor and, in reasonable detail, the manner in which such amount or amounts were determined and (ii)
certifying that such Lender is generally charging the relevant amounts to similarly situated borrowers, which certificate shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days
after receipt thereof.
Section
2.17. Taxes.
(a)
Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and
without deduction for any Taxes, except as required by applicable Requirements of Law. If any applicable Requirement of Law requires
the deduction or withholding of any Tax from any such payment, then (i) if such Tax is an Indemnified Tax, the amount payable by the
applicable Loan Party shall be increased as necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, each Lender and each Issuing Bank (as applicable) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make such deductions and (iii) such
Loan Party shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements
of Law.
(b)
In addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable
Requirements of Law.
(c)
Each Loan Party shall indemnify the Administrative Agent, each Lender and each Issuing Bank within 30 days after receipt of the certificate
described in the succeeding sentence, for the full amount of any Indemnified Taxes payable or paid by the Administrative Agent, such
Lender or Issuing Bank, as applicable, on or with respect to any payment by or any payment on account of any obligation of any Loan Party
hereunder (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority; provided, however that the Loan Parties shall not be obligated to indemnify the Administrative
Agent or such Lender or such Issuing Bank with respect to any penalties resulting from any action or inaction of the Administrative Agent
or such Lender or Issuing Bank; and provided further, that if such Loan Party reasonably believes that such Taxes were not correctly
or legally asserted, the Administrative Agent or such Lender or Issuing Bank, as applicable, will use reasonable efforts to cooperate
with such Loan Party to obtain a refund of such Taxes (which shall be repaid to such Loan Party in accordance with Section 2.17(g))
so long as such efforts would not, in the sole determination of the Administrative Agent or such Lender or Issuing Bank, result in
any additional out- of-pocket costs or expenses not reimbursed by such Loan Party or be otherwise materially disadvantageous to the Administrative
Agent or such Lender or Issuing Bank, as applicable. In connection with any request for reimbursement under this Section 2.17(c),
the relevant Lender, Issuing Bank or the Administrative Agent, as applicable, shall deliver a certificate to the Borrower (i) setting
forth, in reasonable detail, the basis and calculation of the amount of the relevant payment or liability and (ii) certifying that it
is generally charging the relevant amounts to similarly situated borrowers, which certificate shall be conclusive absent manifest error.
Notwithstanding anything to the contrary contained in this Section 2.17(c), the Borrower shall not be required to indemnify the
Administrative Agent or any Lender pursuant to this Section 2.17(c) for any amount to the extent the Administrative Agent or such
Lender fails to notify the Borrower of the relevant possible indemnification claim within 180 days after the Administrative Agent or
such Lender receives written notice from the applicable taxing authority of the specific tax assessment giving rise to such indemnification
claim.
(d)
Each Lender and each Issuing Bank shall severally indemnify the Administrative Agent, within 30 days after demand therefor, for (i) any
Indemnified Taxes on or with respect to any payment under any Loan Document that is attributable to such Lender or Issuing Bank (but
only to the extent that no Loan Party has already indemnified the Administrative Agent for such Indemnified Taxes and without limiting
the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s or Issuing Bank’s failure to comply
with the provisions of Section 9.05(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable
to such Lender or Issuing Bank, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document
and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender
or Issuing Bank by the Administrative Agent shall be conclusive absent manifest error. Each Lender and Issuing Bank hereby authorizes
the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or Issuing Bank under any Loan Document
or otherwise payable by the Administrative Agent to any Lender or Issuing Bank under any Loan Document or otherwise payable by the Administrative
Agent to any Lender or Issuing Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e)
As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority, such Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment that is reasonably satisfactory to the Administrative Agent.
(f) Status
of Lenders.
(i)
Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document
shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation as the Borrower or the Administrative Agent may reasonably request to permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by
the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or
not such Lender is subject to backup withholding or information reporting requirements. Each Lender hereby authorizes the Administrative
Agent to deliver to the Borrower and to any successor Administrative Agent any documentation provided to the Administrative Agent pursuant
to this Section 2.17(f).
(ii) Without
limiting the generality of the foregoing,
(A)
each Lender that is not a Foreign Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which
such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), two executed original copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding
tax;
(B)
each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in
such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent),
whichever of the following is applicable:
(1)
in the case of any Foreign Lender claiming the benefits of an income tax treaty to which the U.S. is a party (x) with respect to
payments of interest under any Loan Document, executed original copies of IRS Form W- 8BEN or W-8BEN-E establishing an exemption
from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with
respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of
such tax treaty;
(2) executed
original copies of IRS Form W-8ECI;
(3)
in the case of any Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x)
a certificate substantially in the form of Exhibit L-1 to the effect that such Foreign Lender is not a “bank” within
the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section
871(h)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S.
Tax Compliance Certificate”) and (y) executed original copies of IRS Form W-8BEN or W- 8BEN-E; or
(4)
to the extent any Foreign Lender is not the beneficial owner, executed original copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI,
IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3,
IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such Foreign Lender
is a partnership and one or more partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may
provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such partner;
(C)
each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed original
copies of any other form prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Requirements of Law
to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D)
if a payment made to any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law
and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation as is prescribed by applicable
Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested
by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations
under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount
to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made
to FATCA after the date of this Agreement.
Each
Lender agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update
such documentation or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g)
If the Administrative Agent or any Lender or Issuing Bank determines, in its sole discretion exercised in good faith, that it has received
a refund of any Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which such Loan Party has
paid additional amounts pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section
2.17), it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid,
by such Loan Party under this Section 2.17 with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or Issuing Bank (including any Taxes imposed with respect to such refund), and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such
Loan Party, upon the request of the Administrative Agent, such Lender or Issuing Bank, agrees to repay the amount paid over to such Loan
Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent,
such Lender or Issuing Bank in the event the Administrative Agent, such Lender or Issuing Bank is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the Administrative Agent,
any Lender or Issuing Bank be required to pay any amount to any Loan Party pursuant to this paragraph (g) to the extent that the
payment thereof would place the Administrative Agent, Lender or Issuing Bank in a less favorable net after-Tax position than the position
that the Administrative Agent or such Lender or Issuing Bank would have been in if the Tax subject to indemnification had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid.
This Section shall not be construed to require the Administrative Agent, any Lender or any Issuing Bank to make available its Tax returns
(or any other information relating to its Taxes which it deems confidential) to the relevant Loan Party or any other Person.
(h)
The Administrative Agent shall deliver to Borrower, on or before the date on which it becomes the Administrative Agent hereunder,
either (i) a duly executed original IRS Form W-9 (or any applicable successor form) certifying that the Administrative Agent is not
subject to backup withholding, or (ii) (A) a duly completed executed original IRS Form W-8ECI to establish that the Administrative
Agent is not subject to withholding Taxes under the Internal Revenue Code with respect to any amounts payable for the account of the
Administrative Agent under any of the Loan Documents and (B) a duly executed original IRS Form W-8IMY (or applicable successor form)
certifying that it is a U.S. branch that has agreed to be treated as a U.S. person for United States federal withholding Tax
purposes with respect to payments received by it from the Borrower for the account of others under the Loan Documents. The
Administrative Agent shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide the
certification described in the preceding sentence. The Administrative Agent shall also, at the time or times prescribed by law and
at such time or times reasonably requested by the Borrower, provide the Borrower such documentation as prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the
Borrower as may be necessary for the Borrower to comply with its FATCA obligations, to determine whether the Administrative Agent
has or has not complied with its FATCA obligations, and to determine the amount, if any, to deduct and withhold from a payment to
the Administrative Agent.
(i)
Survival. Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative
Agent or any assignment of rights by, or the replacement of, any Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all obligations under any Loan Document.
Section
2.18. Payments Generally; Allocation of Proceeds; Sharing of Payments.
(a)
Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest,
fees or reimbursement of LC Disbursements or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise)
prior to the time expressed hereunder or under such Loan Document (or, if no time is expressly required, by 2:00 p.m.) on the date when
due, in immediately available funds, without set-off (except as otherwise provided in Section 2.17) or counterclaim. Any amounts
received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to
the applicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable
Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16 or
2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. Each Lender
agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion,
round such Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount. Except as set forth in any amendment
entered into pursuant to Section 9.02(b)(ii)(E) with respect to the making of Revolving Loans or Letters of Credit denominated
in a currency other than Dollars, all payments (including accrued interest) hereunder shall be made in Dollars. Any payment required
to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall,
at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures
of the clearing or settlement system used by the Administrative Agent to make such payment.
(b)
Subject in all respects to the provisions of the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement,
all proceeds of Collateral received by the Administrative Agent at any time when an Event of Default exists, shall, upon election by
the Administrative Agent or at the direction of the Required Lenders, be applied, first, to the payment of all costs and
expenses then due incurred by the Administrative Agent in connection with any collection, sale or realization on Collateral or
otherwise in connection with this Agreement, any other Loan Document or any of the Secured Obligations, including all court costs
and the fees and expenses of agents and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or
under any other Loan Document on behalf of any Loan Party and any other costs or expenses incurred in connection with the exercise
of any right or remedy hereunder or under any other Loan Document, second, on a pro rata basis, to pay any fees, indemnities
or expense reimbursements then due to the Administrative Agent (other than those covered in clause first above) or to the Swingline
Lender or any Issuing Bank from the Borrower constituting Secured Obligations, third, on a pro rata basis in accordance with
the amounts of the Secured Obligations (other than contingent indemnification obligations for which no claim has yet been made) owed
to the Secured Parties on the date of any such distribution, to the payment in full of the Secured Obligations (including, with
respect to LC Exposure, an amount to be paid to the Administrative Agent equal to 100% of the LC Exposure (minus the amount
then on deposit in the LC Collateral Account) on such date, to be held in the LC Collateral Account as Cash collateral for such
Obligations); provided that if any Letter of Credit expires undrawn, then any Cash collateral held to secure the related LC
Exposure shall be applied in accordance with this Section 2.18(b), beginning with clause first above, fourth, as
provided for under the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement, and fifth, to the
Borrower or as the Borrower shall direct.
(c)
If any Lender obtains payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) in respect
of any principal of or interest on any of its Loans of any Class or participations in LC Disbursements or Swingline Loans held by it
resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans of such Class and
participations in LC Disbursements or Swingline Loans and accrued interest thereon than the proportion received by any other Lender
with Loans of such Class and participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater
proportion shall purchase (for Cash at face value) participations in the Loans of such Class and sub-participations in LC
Disbursements or Swingline Loans of other Lenders of such Class at such time outstanding to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Loans of such Class and participations in LC Disbursements or Swingline Loans; provided
that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not apply to (x) any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or (y) any payment obtained by any Lender as consideration for the assignment of or sale of a participation
in any of its Loans to any permitted assignee or participant, including any payment made or deemed made in connection with Sections
2.22, 2.23, 9.02(c) and/or Section 9.05. The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if
such Lender were a direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.18(c) and
will, in each case, notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section 2.18(c) shall from and after such purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent
as though the purchasing Lender were the original owner of the Obligations purchased.
(d)
Unless the Administrative Agent has received notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of any Lender or any Issuing Bank hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the applicable Lender or Issuing Bank the amount due. In such event, if the Borrower has not in
fact made such payment, then each Lender or the applicable Issuing Bank severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e)
If any Lender fails to make any payment required to be made by it pursuant to Section 2.07(b) or Section 2.18(d), then
the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received
by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.
Section
2.19. Mitigation Obligations; Replacement of Lenders.
(a)
If any Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO Rate Loans
pursuant to Section 2.20, or the Borrower is required to pay any additional amount to or indemnify any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or its participation in any Letter of Credit affected by such event,
or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17,
as applicable, in the future or mitigate the impact of Section 2.20, as the case may be, and (ii) would not subject such Lender
to any material unreimbursed out-of-pocket cost or expense and would not otherwise be disadvantageous to such Lender in any material
respect. The Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b)
If (i) any Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO
Rate Loans pursuant to Section 2.20, (ii) the Borrower is required to pay any additional amount to or indemnify any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.17, (iii) any Lender is a Defaulting Lender or
(iv) in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender”, “each
Revolving Lender” or “each Lender directly affected thereby” (or any other Class or group of Lenders other than
the Required Lenders) with respect to which Required Lender or Required Revolving Lender consent (or the consent of Lenders holding
loans or commitments of such Class or lesser group representing more than 50% of the sum of the total loans and unused commitments
of such Class or lesser group at such time) has been obtained, as applicable, any Lender is a non-consenting Lender (each such
Lender, a “Non-Consenting Lender”), then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, (x) terminate the applicable Commitments and/or Additional Commitments of such Lender, and
repay all Obligations of the Borrower owing to such Lender relating to the applicable Loans and participations held by such Lender
as of such termination date under one or more Credit Facilities or Additional Credit Facilities as the Borrower may elect or (y)
replace such Lender by requiring such Lender to assign and delegate (and such Lender shall be obligated to assign and delegate),
without recourse (in accordance with and subject to the restrictions contained in Section 9.05), all of its interests, rights
and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be
another Lender, if any Lender accepts such assignment); provided that (A) such Lender shall have received payment of an
amount equal to the outstanding principal amount of its Loans and, if applicable, participations in LC Disbursements and Swingline
Loans, in each case of such Class of Loans, Commitments and/or Additional Commitments, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder with respect to such Class of Loans, Commitments and/or Additional Commitments, (B) in the
case of any assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section
2.17, such assignment will result in a reduction in such compensation or payments and (C) such assignment does not conflict with
applicable law. No Lender (other than a Defaulting Lender) shall be required to make any such assignment and delegation, and the
Borrower may not repay the Obligations of such Lender or terminate its Commitments or Additional Commitments, if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation
cease to apply. Each Lender agrees that if it is replaced pursuant to this Section 2.19, it shall execute and deliver to the
Administrative Agent an Assignment and Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent
any Promissory Note (if the assigning Lender’s Loans are evidenced by one or more Promissory Notes) subject to such Assignment
and Assumption (provided that the failure of any Lender replaced pursuant to this Section 2.19 to execute an
Assignment and Assumption or deliver any such Promissory Note shall not render such sale and purchase (and the corresponding
assignment) invalid), such assignment shall be recorded in the Register and any such Promissory Note shall be deemed cancelled. Each
Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Lender’s
attorney-in-fact, with full authority in the place and stead of such Lender and in the name of such Lender, from time to time in the
Administrative Agent’s discretion, with prior written notice to such Lender, to take any action and to execute any such
Assignment and Assumption or other instrument that the Administrative Agent may deem reasonably necessary to carry out the
provisions of this clause (b). To the extent that any Lender is replaced pursuant to Section 2.19(b)(iv) in connection
with a Repricing Transaction requiring payment of a fee pursuant to Section 2.12(f), the Borrower shall pay to each Lender
being replaced as a result of such Repricing Transaction the fee set forth in Section 2.12(f).
Section
2.20. Illegality. If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental
Authority has asserted after the Closing Date that it is unlawful, for such Lender or its applicable lending office to make,
maintain or fund Loans whose interest is determined by reference to the Published LIBO Rate, or to determine or charge interest
rates based upon the Published LIBO Rate, or any Governmental Authority has imposed material restrictions on the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such
Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue LIBO Rate Loans in
Dollars or to convert ABR Loans to LIBO Rate Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender
making or maintaining ABR Loans the interest rate on which is determined by reference to the Published LIBO Rate component of the
Alternate Base Rate, the interest rate on which ABR Loans of such Lender, shall, if necessary to avoid such illegality, be
determined by the Administrative Agent without reference to the Published LIBO Rate component of the Alternate Base Rate, in each
case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination
no longer exist (which notice such Lender agrees to give promptly). Upon receipt of such notice, (x) the Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or convert all of such Lender’s LIBO Rate Loans to ABR
Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the
Administrative Agent without reference to the Published LIBO Rate component of the Alternate Base Rate) either on the last day of
the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBO Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such LIBO Rate Loans (in which case the Borrower shall not be required to make
payments pursuant to Section 2.16 in connection with such payment) and (y) if such notice asserts the illegality of such
Lender determining or charging interest rates based upon the Published LIBO Rate, the Administrative Agent shall during the period
of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Published LIBO Rate component
thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to
determine or charge interest rates based upon the Published LIBO Rate. Upon any such prepayment or conversion, the Borrower shall
also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different lending office if such
designation will avoid the need for such notice and will not, in the determination of such Lender, otherwise be materially
disadvantageous to such Lender.
Section
2.21. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a)
Fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to Section 2.12(a) and,
subject to clause (d)(iv) below, on the participation of such Defaulting Lender in Letters of Credit pursuant to Section 2.12(b)
and pursuant to any other provisions of this Agreement or other Loan Document.
(b)
The Commitments, Loans and LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, each affected
Lender, the Required Lenders, Required Revolving Lenders or such other number of Lenders as may be required hereby or under any other
Loan Document have taken or may take any action hereunder (including any consent to any waiver, amendment or modification pursuant to
Section 9.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected
Lender which affects such Defaulting Lender disproportionately and adversely relative to other affected Lenders shall require the consent
of such Defaulting Lender.
(c)
Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.11, Section 2.15, Section 2.16, Section 2.17,
Section 2.18, Article 7, Section 9.05 or otherwise, and including any amounts made available to the Administrative Agent
by such Defaulting Lender pursuant to Section 9.09), shall be applied at such time or times as may be determined by the
Administrative Agent and, where relevant, the Borrower as follows: first, to the payment of any amounts owing by such
Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts
owing by such Defaulting Lender to any applicable Issuing Bank and/or Swingline Lender hereunder; third, if so reasonably
determined by the Administrative Agent or reasonably requested by the applicable Issuing Bank, to be held as Cash collateral for
future funding obligations of such Defaulting Lender in respect of any participation in any Letter of Credit; fourth, so long
as no Default or Event of Default exists, as the Borrower may request, to the funding of any Loan in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement; fifth, if so determined by the
Administrative Agent or the Borrower, to be held in a deposit account and released in order to satisfy obligations of such
Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the non-Defaulting
Lenders, Issuing Banks or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any
non-Defaulting Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; seventh, to the payment of any amounts owing to the Borrower
as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result
of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Loan or LC Exposure in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such
Loan or LC Exposure was made or created, as applicable, at a time when the conditions set forth in Section 4.02 were
satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Exposure owed to, all non-Defaulting Lenders
on a pro rata basis prior to being applied to the payment of any Loans of, or LC Exposure owed to, such Defaulting Lender.
Any payments, prepayments or other amounts paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed
by any Defaulting Lender or to post Cash collateral pursuant to this Section 2.21(c) shall be deemed paid to and redirected
by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d)
If any Swingline Loans or LC Exposure exists at the time any Lender becomes a Defaulting Lender then:
(i)
all or any part of such Swingline Loans and LC Exposure shall be reallocated among the non-Defaulting Revolving Lenders in accordance
with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures
does not exceed the total of all non-Defaulting Revolving Lenders’ Revolving Credit Commitments;
(ii)
if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, without prejudice
to any other right or remedy available to it hereunder or under applicable Requirements of Law, within two Business Days following notice
by the Administrative Agent, Cash collateralize 100% of such Defaulting Lender’s LC Exposure and any obligations of such Defaulting
Lender to fund participations in any Swingline Loan (after giving effect to any partial reallocation pursuant to paragraph (i)
above and any Cash collateral provided by such Defaulting Lender or pursuant to Section 2.21(c) above) or make other arrangements
reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank and/or Swingline Lender with respect to such LC
Exposure and/or Swingline Loans and obligations to fund participations. Cash collateral (or the appropriate portion thereof) provided
to reduce LC Exposure or other obligations shall be released promptly following (A) the elimination of the applicable LC Exposure or
other obligations giving rise thereto (including by the termination of the Defaulting Lender status of the applicable Lender (or, as
appropriate, its assignee following compliance with Section 2.19)) or (B) the Administrative Agent’s good faith determination
that there exists excess Cash collateral (including as a result of any subsequent reallocation of Swingline Loans and LC Exposure among
non-Defaulting Lenders described in clause (i) above);
(iii)
(A) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.21(d), then the fees payable to
the Revolving Lenders pursuant to Section 2.12(a) and (b), as the case may be, shall be adjusted to give effect to such
reallocation and (B) if the LC Exposure of any Defaulting Lender is Cash collateralized pursuant to this Section 2.21(d), then,
without prejudice to any rights or remedies of the applicable Issuing Bank, any Lender or any Borrower hereunder, no letter of credit
fees shall be payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure; and
(iv)
if any Defaulting Lender’s LC Exposure is not Cash collateralized, prepaid or reallocated pursuant to this Section 2.21(d),
then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Revolving Lender hereunder, all letter of
credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable
Issuing Bank until such Defaulting Lender’s LC Exposure is Cash collateralized or reallocated.
(e)
So long as any Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan, and no
Issuing Bank shall be required to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably satisfied
that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders, Cash collateral provided
pursuant to Section 2.21(c) and/or Cash collateral provided by the Borrower in accordance with Section 2.21(d), and participating
interests in any such or newly issued, extended or created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting
Revolving Lenders in a manner consistent with Section 2.21(d)(i) (it being understood that Defaulting Lenders shall not participate
therein).
(f)
In the event that the Administrative Agent and the Borrower agree that any Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then the Applicable Percentage of Swingline Loans and LC Exposure of the Revolving Lenders
shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment, and on such date such Revolving Lender
shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) or participations in Revolving
Loans as the Administrative Agent shall determine as are necessary in order for such Revolving Lender to hold such Revolving Loans or
participations in accordance with its Applicable Percentage. Notwithstanding the fact that any Defaulting Lender has adequately remedied
all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender and (y) except to the extent otherwise expressly
agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Section
2.22. Incremental Credit Extensions.
(a)
The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment (i) add one or more new tranches
of term facilities and/or increase the principal amount of the Initial Term Loans or any Additional Term Loans by requesting new term
loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any
loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches
of revolving commitments and/or increase the Total Revolving Credit Commitment or any Additional Revolving Credit Commitment (any such
new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental
Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental
Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding
principal amount not to exceed the Incremental Cap; provided that:
(i)
no Incremental Commitment may be less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii)
except as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental
Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being
agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii)
no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of
any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or
Incremental Loan,
(iv)
any such Incremental Revolving Facility shall either (A) be subject to the same terms and conditions as any then-existing Revolving Facility
(and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental
Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving
Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the
lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders)
or (B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Initial Revolving Credit Maturity
Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment
and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the
Borrower) shall be substantially consistent with the Initial Revolving Loans or shall be reasonably satisfactory to the Administrative
Agent; provided, that if any financial maintenance covenant is added to any such Incremental Revolving Facility and such financial
maintenance covenant is more favorable to the lenders under such Incremental Revolving Facility than the Financial Covenant, either (x)
such financial maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving
Lenders shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the Borrower,
any applicable “equity cure” provisions with respect to any such financial maintenance covenant) (it being understood that
if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility,
no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other
provision is (1) also added for the benefit of any then- existing Revolving Facility or (2) only applicable after the applicable Latest
Revolving Loan Maturity Date),
(v)
the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and the lender
or lenders providing such Incremental Facility; provided that, in the case of any broadly-syndicated Dollar denominated Incremental
Term Facility that is (x) originally incurred in reliance on clause (a) or clause (e) of the definition of “Incremental
Cap” (but not any reclassification pursuant to clause (3) of the proviso therein) and (y) scheduled to mature prior to the
date that is one year after the Initial Term Loan Maturity Date, the Effective Yield applicable thereto may not be more than 0.50% higher
than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the
Alternate Base Rate floor or LIBO Rate floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the
Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility (this proviso,
the “MFN Provision”); provided, further, that any increase in Effective Yield applicable to any Initial Term
Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may, at the
election of the Borrower, be effected through an increase in the Alternate Base Rate floor or LIBO Rate floor applicable to such Initial
Term Loans or an increase in the interest rate margin applicable to such Incremental Loans; provided further that the MFN Provision
shall not apply to Incremental Term Facilities having an aggregate principal amount not exceeding $20,000,000 (as selected by the Borrower),
(vi)
the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date at the
time of the incurrence thereof; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity
date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or
otherwise replace such bridge loans shall be subject to the requirements of this clause (vi) and (ii) the Permitted Earlier Maturity
Indebtedness Exception (to the extent designated by the Borrower),
(vii)
the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to
Maturity of the Initial Term Loans; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with
a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged
for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vii) or (ii) Permitted Earlier
Maturity Indebtedness Exception (to the extent designated by the Borrower),
(viii)
subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined
by the Borrower and the lenders providing such Incremental Term Facility,
(ix)
subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined
by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x)
(A) each Incremental Facility shall rank pari passu with the Initial Term Loans (in the case of any Incremental Term Facility)
and pari passu with the Initial Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment
and security and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets
other than the Collateral,
(xi)
any Incremental Term Facility may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary
prepayment of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis, other
than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment of
Term Loans required pursuant to Section 2.11(b),
(xii)
no Event of Default under Section 7.01(a), (f) or (g) shall exist immediately prior to or after giving effect to the effectiveness of
such Incremental Facility (except in connection with any acquisition or other Investment or irrevocable notice of repayment or redemption
of Indebtedness, where no such Event of Default shall exist at the time as elected by the Borrower pursuant to Section 1.04(e)),
(xiii)
except as otherwise required or permitted in clauses (v) through (xi) above, all other terms of any Incremental Term Facility shall be
as agreed between the Borrower and the lenders providing such Incremental Term Facility,
(i)
the proceeds of any Incremental Facility may be used for working capital, Capital Expenditures and other general corporate purposes of
the Borrower and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments
and any other purpose not prohibited by the terms of the Loan Documents), and
(ii)
on the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans,
and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added
to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type
with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding
Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional
Term Loans, as applicable, of the same type with the same Interest Period of the respective Class.
(b)
Incremental Commitments may be provided by any existing Lender or by any other Eligible Assignee (any such other Eligible Assignee being
called an “Additional Lender”); provided that the Administrative Agent (and, in the case of any Incremental
Revolving Facility, the Swingline Lender and any Issuing Bank) shall have consented (such consent not to be unreasonably withheld, conditioned
or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section
9.05(b) for an assignment of Loans to such Additional Lender; provided; further, that any Additional Lender that is an Affiliated
Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental Commitments
and related Obligations had been obtained by such Lender by way of assignment.
(c)
Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent
and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the
Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each
Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(d)
As a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request,
the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements
and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Lender, an
administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative
Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative
Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental
Loans and (iv) upon its request, the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer
thereof:
(A)
certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental
Facility or Incremental Loans, and
(B)
to the extent applicable, certifying that the condition set forth in clause (a)(xii) above has been satisfied.
(e)
Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i)
if such Incremental Revolving Facility is implemented by increasing the amount of then-existing Total Revolving Credit Commitments
(rather than by establishing a new Class of Revolving Loans), (i) each Revolving Lender immediately prior to such increase will
automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each
relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of
such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving
effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental
Revolving Facility Lender) (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans
shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments (after giving effect to any
increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the
applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders
providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing
the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all
of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of
their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment
pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro
rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause
(i); and
(ii)
if such Incremental Revolving Facility is implemented pursuant to a request to add one or more new tranches of revolving commitments,
(1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on the existing Revolving Facilities
and such Incremental Revolving Facility, (B) repayments required upon the Maturity Date of the then-existing Revolving Facility and such
Incremental Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of commitments (subject
to clause (3) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Facility Commitments
shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving
Facility, (2) all swingline loans and/or letters of credit made or issued, as applicable, under such Incremental Revolving Facility shall
be participated on a pro rata basis by all Revolving Lenders and (3) the permanent repayment of Loans with respect to, and termination
of commitments under, such Incremental Revolving Facility shall be made on a pro rata basis with the then- existing Revolving
Facility and any other then outstanding Incremental Revolving Facility, except that the Borrower shall be permitted to permanently repay
and terminate commitments under such Incremental Revolving Facility on a greater than pro rata basis as compared with any other
revolving facility with a later Maturity Date than such revolving facility.
(f)
Effective on the date of effectiveness of each Incremental Revolving Facility, the maximum amount of LC Exposure and/or Swingline Loans,
as applicable, permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Borrower and the
relevant Issuing Bank and/or the Swingline Lender, as applicable.
(g)
The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any
amendment to any other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches in
respect of Loans or commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be
necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment
of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.22.
(h)
To the extent the provisions of clause (a)(xv) above require that Term Lenders making new Incremental Term Loans add such Incremental
Term Loans to the then outstanding borrowings of LIBO Rate Loans of the respective Class of Initial Term Loans or Additional Term Loans,
as applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the respective Class
and which will end on the last day of such Interest Period).
(i)
Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds
of any Incremental Facility are intended to be applied to finance an acquisition or other Investment and the lenders providing such Incremental
Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality
(including the making and accuracy of Specified Representations as conformed for such acquisition or other Investment).
(j)
This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary.
Section
2.23. Extensions of Loans and Revolving Credit Commitments.
(a)
Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”)
made from time to time by the Borrower to all Lenders holding Loans of any Class or Commitments of any Class, in each case on a pro rata
basis (based on the aggregate outstanding principal amount of the respective Loans or Commitments of such Class) and on the same terms
to each such Lender, the Borrower is hereby permitted from time to time to consummate transactions with any individual Lender who accepts
the terms contained in the relevant Extension Offer to extend the Maturity Date of all or a portion of such Lender’s Loans and/or
Commitments of such Class and otherwise modify the terms of all or a portion of such Loans and/or Commitments pursuant to the terms of
the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Loans and/or Commitments (and
related outstandings) and/or modifying the amortization schedule, if any, in respect of such Loans) (each, an “Extension”);
it being understood that any Extended Term Loans shall constitute a separate Class of Loans from the Class of Loans from which they were
converted and any Extended Revolving Credit Commitments shall constitute a separate Class of Revolving Credit Commitments from the Class
of Revolving Credit Commitments from which they were converted, so long as the following terms are satisfied:
(i)
except as to (x) interest rates, fees and final maturity (which shall, subject to the succeeding clause (iii)(y), be
determined by the Borrower and set forth in the relevant Extension Offer), (y) terms applicable to such Extended Revolving Credit
Commitments or Extended Revolving Loans that are more favorable to the lenders or the agent of such Extended Revolving Credit
Commitments or Extended Revolving Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan
Documents on or prior to the effectiveness of such Extension for the benefit of the Revolving Lenders or, as applicable, the
Administrative Agent pursuant to the applicable Extension Amendment and (z) any terms or other provisions applicable only to periods
after the Latest Revolving Loan Maturity Date (in each case, as of the date of such Extension), the commitment of any Revolving
Lender that agrees to an Extension (an “Extended Revolving Credit Commitment”; and the Loans thereunder,
“Extended Revolving Loans”), and the related outstandings, shall be a revolving commitment (or related
outstandings, as the case may be) with substantially consistent terms (or terms not less favorable to existing Revolving Lenders) as
the original Revolving Credit Commitments (and related outstandings) provided hereunder; provided that to the extent any
non-extended portion of the Revolving Facility or any Additional Revolving Facility then exists, (1) the borrowing and repayment
(except for (A) payments of interest and fees at different rates on such revolving facilities (and related outstandings), (B)
repayments required upon the Maturity Date of such revolving facilities and (C) repayments made in connection with any permanent
repayment and termination of commitments (subject to clause (3) below)) of Extended Revolving Loans after the effective date
of such Extended Revolving Credit Commitments shall be made on a pro rata basis with such portion of the Revolving Facility
or the relevant Additional Revolving Facility, as applicable, (2) all swingline loans and/or letters of credit made or issued, as
applicable, under any Extended Revolving Credit Commitment shall be participated on a pro rata basis by all Revolving
Lenders and (3) the permanent repayment of Loans with respect to, and termination of commitments under, any such Extended Revolving
Credit Commitment after the effective date of such Extended Revolving Credit Commitments shall be made on a pro rata basis
with such portion of the Revolving Facility and/or any Additional Revolving Facility, except that the Borrower shall be permitted to
permanently repay and terminate commitments of any such revolving facility on a greater than pro rata basis (I) as compared
to any other Revolving Facilities with a later Maturity Date than such Revolving Facility and (II) to the extent refinanced or
replaced with a Replacement Revolving Facility or Replacement Debt;
(ii)
except as to (x) interest rates, fees, amortization, final maturity date, premiums, required prepayment dates and participation in prepayments
(which shall, subject to immediately succeeding clauses (iii)(x), (iv) and (v), be determined by the Borrower and set forth
in the relevant Extension Offer), (y) terms applicable to such Extended Term Loans that are more favorable to the lenders or the agent
of such Extended Term Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents on or
prior to the effectiveness of such Extension for the benefit of the Term Lenders or, as applicable, the Administrative Agent pursuant
to the applicable Extension Amendment and (z) any covenants or other provisions applicable only to periods after the Latest Term Loan
Maturity Date (in each case, as of the date of such Extension), the Term Loans of any Lender extended pursuant to any Extension (any
such extended Term Loans, the “Extended Term Loans”) shall have substantially consistent terms as the tranche of Term
Loans subject to the relevant Extension Offer;
(iii)
(x) the final maturity date of any Extended Term Loans shall be no earlier than the then applicable Latest Term Loan Maturity Date at
the time of extension and (y) no Extended Revolving Credit Commitments or Extended Revolving Loans shall have a final maturity date earlier
than (or require commitment reductions prior to) the then applicable Latest Revolving Loan Maturity Date;
(iv)
the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity
of the Term Loans or any other Extended Term Loans extended thereby;
(v)
subject to clauses (iii) and (iv) above, any Extended Term Loans may otherwise have an amortization schedule as determined
by the Borrower and the Lenders providing such Extended Term Loans;
(vi)
any Extended Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary
prepayment of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis
other than in the case of prepayment with proceeds of Indebtedness refinancing such Extended Term Loans) in any mandatory prepayment
of Term Loans required pursuant to Section 2.11(b);
(vii)
if the aggregate principal amount of Loans or commitments, as the case may be, in respect of which Lenders shall have accepted the relevant
Extension Offer exceeds the maximum aggregate principal amount of Loans or commitments, as the case may be, offered to be extended by
the Borrower pursuant to such Extension Offer, then the Loans or commitments, as the case may be, of such Lenders shall be extended ratably
up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) held by Lenders that
have accepted such Extension Offer;
(viii)
unless the Administrative Agent otherwise agrees, each Extension shall be in a minimum amount of $5,000,000;
(ix)
any applicable Minimum Extension Condition shall be satisfied or waived by the Borrower; and
(x) all
documentation in respect of such Extension shall be consistent with the
foregoing.
(b)
With respect to any Extension consummated pursuant to this Section 2.23, (i) no such Extension shall constitute a voluntary or
mandatory prepayment for purposes of Section 2.11, (ii) the scheduled amortization payments (in so far as such schedule affects
payments due to Lenders participating in the relevant Class) set forth in Section 2.10 shall be adjusted to give effect to such
Extension of the relevant Class and (iii) except as set forth in clause (a)(viii) above, no Extension Offer is required to be
in any minimum amount or any minimum increment; provided that the Borrower may, at its election, specify as a condition (a “Minimum
Extension Condition”) to consummating such Extension that a minimum amount (to be determined and specified in the relevant
Extension Offer in the Borrower’s sole discretion and which may be waived by the Borrower in its sole discretion) of Loans or commitments
(as applicable) of any or all applicable Classes be tendered. The Administrative Agent and the Lenders hereby consent to the transactions
contemplated by this Section 2.23 (including, for the avoidance of doubt, any payment of any interest, fees or premium in respect
of any tranche of Extended Term Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant
Extension Offer) and hereby waive the requirements of any provision of this Agreement (including Sections 2.10, 2.11 or 2.18)
or any other Loan Document that may otherwise prohibit any Extension or any other transaction contemplated by this Section.
(c)
No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (A) the consent of each
Lender agreeing to such Extension with respect to one or more of its Loans and/or commitments under any Class (or a portion thereof),
(B) with respect to any Extension of the Revolving Credit Commitments, the consent of each Issuing Bank to the extent the commitment
to provide Letters of Credit is to be extended and (C) with respect to any Extension of the Revolving Credit Commitments, the consent
of the Swingline Lender to the extent the swingline facility is to be extended (in each case which consent shall not be unreasonably
withheld or delayed). All Extended Term Loans and Extended Revolving Credit Commitments and all obligations in respect thereof shall
constitute Secured Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on
a pari passu basis with all other Secured Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably
authorize the Administrative Agent to enter into such amendments to this Agreement and the other Loan Documents with the Borrower as
may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments so extended and such technical
amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with
the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.23.
(d)
In connection with any Extension, the Borrower shall provide the Administrative Agent at least ten Business Days’ (or such shorter
period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including regarding
timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such
Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish
the purposes of this Section 2.23.
ARTICLE
3 REPRESENTATIONS AND WARRANTIES
On
the dates and to the extent required pursuant to Section 4.01 or Section 4.02, as applicable, Holdings (solely with respect to Sections
3.01, 3.02, 3.03, 3.06, 3.07, 3.08, 3.09, 3.12, 3.13, 3.14, 3.16 and 3.17) and the Borrower hereby represent and warrant
to the Lenders that:
Section
3.01. Organization; Powers. Each of Holdings, the Borrower and each of its Restricted Subsidiaries (a) is (i) duly organized and
validly existing and (ii) in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of its jurisdiction
of organization, (b) has all requisite organizational power and authority to own its property and assets and to carry on its business
as now conducted and (c) is qualified to do business in, and is in good standing (to the extent such concept exists in the relevant jurisdiction)
in, every jurisdiction where its ownership, lease or operation of properties or conduct of its business requires such qualification;
except, in each case referred to in this Section 3.01 (other than clause (a)(i) and (b), in each case with respect to the
Borrower) where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
Section
3.02. Authorization; Enforceability. The execution, delivery and performance by each Loan Party of each of the Loan Documents
to which such Loan Party is a party are within such Loan Party’s corporate or other organizational power and have been duly authorized
by all necessary corporate or other organizational action of such Loan Party. Each Loan Document to which any Loan Party is a party has
been duly executed and delivered by such Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance
with its terms, subject to the Legal Reservations.
Section
3.03. Governmental Approvals; No Conflicts. The execution and delivery of the Loan Documents by each Loan Party party thereto
and the performance by such Loan Party thereof (a) do not require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) in connection
with the Perfection Requirements and (iii) such consents, approvals, registrations, filings, or other actions the failure to obtain or
make which would not be reasonably expected to have a Material Adverse Effect, (b) will not violate any (i) of such Loan Party’s
Organizational Documents or (ii) Requirements of Law applicable to such Loan Party which, in the case of this clause (b)(ii),
would reasonably be expected to have a Material Adverse Effect and (c) will not violate or result in a default under (i) the Second Lien
Credit Agreement or (ii) any other material Contractual Obligation in respect of Indebtedness having an aggregate principal amount exceeding
the Threshold Amount to which such Loan Party is a party which, in the case of this clause (c), would reasonably be expected to
result in a Material Adverse Effect.
Section
3.04. Financial Condition; No Material Adverse Effect.
(a)
After the Closing Date, the financial statements most recently provided pursuant to Section 5.01(a) or (b), as applicable,
present fairly, in all material respects, the financial position, results of operations and cash flows of the Borrower on a consolidated
basis as of such dates and for such periods in accordance with GAAP, (w) except as otherwise expressly noted therein, (x) subject, in
the case of financial statements provided pursuant to Section 5.01(a), to the absence of footnotes and normal year-end audit adjustments
and (y) except as may be necessary to reflect any differing entity and/or organizational structure prior to giving effect to the Transactions.
(b)
Since the Closing Date, there have been no events, developments or circumstances that have had, or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
Section
3.05. Properties.
(a) [Reserved.]
(b)
The Borrower and each of its Restricted Subsidiaries have good and valid fee simple title to or rights to purchase, or valid leasehold
interests in, or easements or other limited property interests in, all of their respective Real Estate Assets, free and clear of all
Liens except for Permitted Liens and have good title to their personal property and assets, in each case material to the business, except
(i) for defects in title that do not materially interfere with their ability to conduct their business as currently conducted or to utilize
such properties and assets for their intended purposes or (ii) where the failure to have such title or interest would not reasonably
be expected to have a Material Adverse Effect.
(c)
The Borrower and each of its Restricted Subsidiaries own or otherwise have a license or right to use all Patents, Trademarks, Copyrights
and other rights in works of authorship (including all copyrights embodied in software), domain names, trade secrets and all other intellectual
property rights (“IP Rights”) necessary to the conduct of the businesses of the Borrower and its Restricted Subsidiaries
as presently conducted, and, to the knowledge of the Borrower, such IP Rights do not infringe or misappropriate the IP Rights of any
third party, except to the extent such failure to own or license or have rights to use would not, or where such infringement or misappropriation
would not, reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section
3.06. Litigation and Environmental Matters. Except as set forth on Schedule 3.06:
(a)
there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge
of the Borrower, threatened in writing against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries which would
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect;
(b)
except for any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect,
(i) neither Holdings, the Borrower nor any of its Restricted Subsidiaries has received written notice of any claim with respect to any
Environmental Liability, knows of any basis for any Environmental Liability or, to the knowledge of the Borrower, has become subject
to any Environmental Liability and (ii) neither Holdings, the Borrower nor any of its Restricted Subsidiaries is in violation of any
Environmental Law or has not obtained, maintained, or complied with any permit, license or other approval required under any Environmental
Law; and
(c)
neither Holdings, the Borrower nor any of its Restricted Subsidiaries has treated, stored, transported, Released or disposed of any Hazardous
Material at or from any currently or formerly owned, leased or operated real estate or facility nor, to the knowledge of the Borrower,
has any Hazardous Material been Released from any third-party location relating to the Borrower’s or any of its Restricted Subsidiaries’
businesses, in each case in a manner that would reasonably be expected to have a Material Adverse Effect.
Section
3.07. Compliance with Laws. Each of Holdings, the Borrower and each of its Restricted Subsidiaries is in compliance with all Requirements
of Law applicable to it or its property, except, in each case where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, it being understood and agreed that this Section 3.07 shall not apply
to any law specifically referenced in Section 3.17.
Section
3.08. Investment Company Status. No Loan Party is required to be registered as an “investment company” under the
Investment Company Act of 1940.
Section
3.09. Taxes. Each of Holdings, the Borrower and each of its Restricted Subsidiaries has timely filed or caused to be filed all
Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it that
are due and payable, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which Holdings, the Borrower
or such Restricted Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent
that the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section
3.10. ERISA.
(a)
Each Pension Plan is in compliance in form and operation with its terms and with ERISA and the Code and all other applicable laws and
regulations, except where any failure to comply would not reasonably be expected to result in a Material Adverse Effect.
(b)
No ERISA Event has occurred in the five-year period prior to the date on which this representation is made or deemed made and is continuing
or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected
to occur, would reasonably be expected to result in a Material Adverse Effect.
Section
3.11. Disclosure.
(a)
As of the Closing Date, to the knowledge of the Borrower, all written factual information (other than the Projections, the model
delivered by the Sponsor to the Arrangers on June 4, 2017, other forward-looking or projected information, pro forma information and
information of a general economic or general industry nature (including any reports or memos prepared by third party consultants))
concerning Holdings, the Borrower and its Restricted Subsidiaries and the Transactions and that was included in the Information
Memorandum or otherwise prepared by or on behalf of the foregoing or the Sponsor or their respective representatives and made
available to any Initial Lender or the Administrative Agent in connection with the Transactions on or before the Closing Date (the
“Information”), when taken as a whole, did not, when furnished, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of
the circumstances under which such statements are made (after giving effect to all supplements and updates thereto from time to
time).
(b)
The Projections have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time furnished
(it being recognized that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies
many of which are beyond the Borrower’s control, that no assurance can be given that any particular financial projections (including
the Projections) will be realized, that actual results may differ from projected results and that such differences may be material).
Section
3.12. Solvency. As of the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date and
the incurrence of indebtedness and obligations on the Closing Date in connection with this Agreement and the Transactions, (i) the sum
of the debt (including contingent liabilities) of Holdings and its Subsidiaries, taken as a whole, does not exceed the fair value of
the assets of Holdings and its Subsidiaries, taken as a whole; (ii) the present fair saleable value of the assets of Holdings and its
Subsidiaries, taken as a whole, is not less than the amount that will be required to pay the probable liabilities (including contingent
liabilities) of Holdings and its Subsidiaries, taken as a whole, on their debts as they become absolute and matured; (iii) the capital
of Holdings and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of Holdings and its Subsidiaries,
taken as a whole, contemplated as of the Closing Date; and (iv) Holdings and its Subsidiaries, taken as a whole, do not intend to incur,
or believe that they will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debts
as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall
be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liability meets the criteria
for accrual under Statement of Financial Accounting Standards No. 5).
Section
3.13. Capitalization and Subsidiaries. Schedule 3.13 sets forth, in each case as of the Closing Date, (a) a correct and
complete list of the name of each subsidiary of Holdings and the ownership interest therein held by Holdings or its applicable subsidiary
and (b) the type of entity of Holdings and each of its subsidiaries.
Section
3.14. Security Interest in Collateral. Subject to the terms of the last paragraph of Section 4.01, the Legal Reservations,
the Perfection Requirements, the provisions, limitations and/or exceptions set forth in this Agreement and/or the other relevant Loan
Documents (including the Intercreditor Agreement or any other Acceptable Intercreditor Agreement), the Collateral Documents create legal,
valid and enforceable Liens on all of the Collateral in favor of the Administrative Agent, for the benefit of itself and the other Secured
Parties, and upon the satisfaction of the applicable Perfection Requirements, such Liens constitute perfected Liens (with the priority
such Liens are expressed to have within the relevant Collateral Documents) on the Collateral (to the extent such Liens are required to
be perfected under the terms of the Loan Documents) securing the Secured Obligations, in each case as and to the extent set forth therein.
For the avoidance of doubt, notwithstanding anything herein or in any other Loan Document to the contrary, neither the Borrower nor any
other Loan Party makes any representation or warranty (other than any representation or warranty expressly made in such Loan Document)
as to (A) the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest in any
Capital Stock of any Foreign Subsidiary, or as to the rights and remedies of the Administrative Agent or any Lender with respect thereto,
under foreign Requirements of Law, (B) the enforcement of any security interest, or right or remedy with respect to any Collateral that
may be limited or restricted by, or require any consent, authorization approval or license under, any Requirement of Law, (C) on the
Closing Date and until required pursuant to Section 5.12 or the last paragraph of Section 4.01, as applicable, the pledge or creation
of any security interest, or the effects of perfection or non-perfection, the priority or enforceability of any pledge or security interest
to the extent the same is not required on the Closing Date pursuant to the final paragraph of Section 4.01 or (D) any Excluded Asset.
Section
3.15. Labor Disputes. As of the Closing Date, except as individually or in the aggregate would not reasonably be expected to have
a Material Adverse Effect: (a) there are no strikes, lockouts or slowdowns against the Borrower or any of its Restricted Subsidiaries
pending or, to the knowledge of the Borrower or any of its Restricted Subsidiaries, threatened in writing and (b) the hours worked by
and payments made to employees of the Borrower and its Restricted Subsidiaries have not been in violation of the Fair Labor Standards
Act or any other applicable Federal, state, local or foreign law dealing with such matters.
Section
3.16. Federal Reserve Regulations. No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any purpose that results in a violation of the provisions of
Regulation U and X.
Section
3.17. Sanctions and Anti-Corruption Laws.
(a)
(i) None of Holdings, the Borrower nor any of its Restricted Subsidiaries nor, to the knowledge of the Borrower, any director, officer,
agent, employee or controlled Affiliate of any of the foregoing is a Sanctioned Person; and (ii) the Borrower will not directly or, to
its knowledge, indirectly, use the proceeds of the Loans or otherwise make available such proceeds to any Sanctioned Person, for the
purpose of financing the activities of any Sanctioned Person, or in any Sanctioned Country, or in any other matter, in each case, that
would result in a violation by any Person party to this Agreement of Sanctions.
(b)
Each Loan Party is in compliance with applicable Sanctions in all material respects.
(c)
No part of the proceeds of any Loan or any Letter of Credit will be used, directly or, to the knowledge of the Borrower, indirectly,
for any payments to any governmental official or employee, political party, official of a political party, candidate for political office,
or any other person or entity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the U.S.
Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption law.
ARTICLE
4 CONDITIONS
Section
4.01. Closing Date. The obligations of (i) each Lender to make Loans and (ii) any Issuing Bank to issue Letters of Credit shall
not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a)
Credit Agreement and Loan Documents. The Administrative Agent (or its counsel) shall have received from each Loan Party party
thereto (i) a counterpart signed by each such Loan Party (or written evidence reasonably satisfactory to the Administrative Agent (which
may include a copy transmitted by facsimile or other electronic method) that such party has signed a counterpart) of (A) this Agreement,
(B) the Security Agreement, (C) the Loan Guaranty, (D) the Intercreditor Agreement and (E) any Promissory Note requested by a Lender
at least three Business Days prior to the Closing Date and (ii) a Borrowing Request as required by Section 2.03.
(b)
Legal Opinions. The Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders and each Issuing
Bank on the Closing Date, a customary written opinion of (i) Davis Polk & Wardwell LLP, in its capacity as special New York counsel
for Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings,
the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the Borrower
and the Subsidiary Guarantors.
(c)
Financial Statements and Pro Forma Financial Statements. The Administrative Agent shall have received, (i) (x) audited consolidated
balance sheets of the Target and its consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive
loss, cash flows and stockholders’ equity of the Target and its consolidated subsidiaries for, the three most recently completed
fiscal years ended at least 110 days prior to the Closing Date and (y) an unaudited consolidated balance sheet of the Target and its
consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive loss, cash flows and stockholders’
equity of the Target and its consolidated subsidiaries for, each subsequent fiscal quarter (other than the fourth fiscal quarter of any
fiscal year) of the Target and its consolidated subsidiaries subsequent to the last fiscal year for which financial statements were delivered
pursuant to the preceding clause (x) and ended at least 46 days before the Closing Date (in the case of this clause (y), without footnotes)
and (ii) a unaudited pro forma consolidated balance sheet and related unaudited pro forma consolidated statement of income or operations
of the Target as of, and for the twelve-month period ending on, the last day of the most recently completed four-fiscal quarter period
ended at least 46 days (or 110 days, in case such four-fiscal quarter period is the end of the Target’s fiscal year) prior to the
Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such
balance sheet) or at the beginning of such period (in the case of such statement of income or operations), which need not be prepared
in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting (including
adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, (formerly SFAS 141R))
(it being understood that any purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations
determined by the Borrower). The Administrative Agent hereby acknowledges receipt of the financial statements referred to (i) in clause
(i)(x) above in respect of the fiscal years ended July 29, 2014, June 28, 2015 and July 3, 2016, (ii) in clause (i)(y) above in respect
of the fiscal quarters ended October 2, 2016, January 1, 2017 and April 2, 2017 and (iii) in clause (ii) above in respect of the pro
forma financial statements.
(d)
Closing Certificates; Certified Charters; Good Standing Certificates. The Administrative Agent (or its counsel) shall have received
(i) a certificate of each Loan Party, dated the Closing Date and executed by a secretary, assistant secretary or other senior officer
(as the case may be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written
consents of its shareholders, board of directors, board of managers, members or other governing body authorizing the execution, delivery
and performance of the Loan Documents to which it is a party and, in the case of the Borrower, the borrowings and issuance of Promissory
Notes (if any) hereunder, and that such resolutions or written consents have not been modified, rescinded or amended and are in full
force and effect, (B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories
of such Loan Party authorized to sign the Loan Documents to which it is a party on the Closing Date and (C) certify (x) that attached
thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or
other equivalent thereof) of such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party
and a true and correct copy of its by-laws or operating, management, partnership or similar agreement and (y) that such documents or
agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments
thereto as of such date) and (ii) a good standing (or equivalent) certificate (if applicable) as of a recent date for such Loan Party
from the relevant authority of its jurisdiction of organization.
(e) Representations
and Warranties. (i) The Specified Acquisition Agreement Representations shall be true and correct in all material respects as of
the Closing Date solely to the extent required by the terms of the definition thereof and (ii) the Specified Representations shall
be true and correct in all material respects on and as of the Closing Date; provided that (A) in the case of any Specified
Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all
material respects as of the respective date or for the respective period, as the case may be and (B) if any Specified Representation
is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or
qualification, the definition thereof shall be the definition of “Closing Date Material Adverse Effect” for purposes of
the making or deemed making of such Specified Representation on, or as of, the Closing Date (or any date prior thereto).
(f)
Fees. Prior to or substantially concurrently with the funding of the Initial Term Loans hereunder, the Administrative Agent shall
have received (i) all fees required to be paid by the Borrower on the Closing Date pursuant to the Fee Letter and (ii) all expenses required
to be paid by the Borrower for which invoices have been presented at least three Business Days prior to the Closing Date (including the
reasonable fees and expenses of legal counsel for the Administrative Agent that are payable under the Commitment Letter entered into
between the Arrangers and the Borrower with respect to the Credit Facilities), in each case on or before the Closing Date, which amounts
may be offset against the proceeds of the Loans or may be paid from the proceeds of the Initial Loans.
(g) [Reserved.]
(h)
Refinancing. Prior to or substantially concurrently with the initial funding of the Loans hereunder, including by use of proceeds
thereof, the principal, accrued and unpaid interest, fees, premium, if any, and other amounts (other than (x) obligations not then due
and payable or that by their terms survive the termination of the Existing Credit Facilities and (y) the Existing Letters of Credit,
all of which, on the Closing Date will be deemed to be Letters of Credit issued hereunder) under the First Lien Credit Agreement dated
as of September 19, 2016 and the Second Lien Credit Agreement dated as of September 19, 2016 (in each case, as amended, supplemented
or otherwise modified from time to time prior to the date hereofClosing
Date, the “Existing Credit Facilities”), will be repaid in full and all commitments to extend credit under
the Existing Credit Facilities will be terminated and any security interests and guarantees in connection therewith shall be terminated
and/or released (the “Refinancing”).
(i)
Equity Contribution. Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Equity Contribution
shall have been made substantially in the manner and at least in the amount set forth in the definition of Equity Contribution contained
herein (to the extent not otherwise applied to the Transactions).
(j)
Solvency. The Administrative Agent shall have received a certificate dated as of the Closing Date in substantially the form of
Exhibit M from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Target certifying
as to the matters set forth therein (or, at the option of Holdings, a third party opinion as to the solvency of the Target and its subsidiaries
on a consolidated basis in form and substance reasonably satisfactory to the Lead Arrangers issued by a nationally recognized firm reasonably
acceptable to the Lead Arrangers).
(k)
Perfection Certificate. Subject to the last paragraph of this Section 4.01, the Administrative Agent shall have received
a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of each Loan Party, together with all attachments
contemplated thereby.
(l)
Pledged Stock; Stock Powers; Pledged Notes. Subject to the last paragraph of this Section 4.01, the Administrative Agent
(or its bailee) shall have received (i) the certificates representing the Capital Stock required to be pledged pursuant to the Security
Agreement, together with an undated stock or similar power for each such certificate executed in blank by a duly authorized officer of
the pledgor thereof and (ii) each Material Debt Instrument (if any) required to be pledged pursuant to the Security Agreement endorsed
(without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(m) Filings
Registrations and Recordings. Subject to the last paragraph of this Section 4.01, each document (including any UCC
financing statement) required by any Collateral Document or under law to be filed, registered or recorded in order to create in
favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be
delivered pursuant to such Collateral Document, shall be in proper form for filing, registration or recordation.
(n)
Transactions. Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Acquisition shall be
consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications,
amendments, consents or waivers thereto, other than those modifications, amendments, consents or waivers by Merger Sub 1 or its Affiliates
that are materially adverse to the interests of the Lenders in their capacities as such, unless consented to in writing by the Arrangers
(such consent not to be unreasonably withheld, delayed or conditioned); it being understood and agreed that (a) any changes to, or waivers,
consents or approvals by Merger Sub 1 or its Affiliates in respect of, the definition of Closing Date Material Adverse Effect shall be
deemed materially adverse, (b) any reduction in the purchase price of less than 10% or in accordance with the Acquisition Agreement (including
pursuant to any working capital or purchase price adjustment provision set forth in the Acquisition Agreement) shall be deemed not to
be materially adverse, (c) any other reduction in the purchase price shall be deemed not to be materially adverse so long as such decrease
is allocated first to reduce the Equity Contribution to the Minimum Equity Percentage, with any excess then allocated to reduce the Equity
Contribution, the principal amount of the Term Loans and the second lien term loans under the Second Lien Facility on a pro rata, dollar-for-dollar
basis and (d) any increase in the purchase price shall be deemed not to be materially adverse so long as such increase is funded by an
increase in the Equity Contribution or amounts available to be drawn under the Revolving Facility on the Closing Date or such increase
is pursuant to any working capital or purchase price (or similar) adjustment provision set forth in the Acquisition Agreement.
(o)
Closing Date Material Adverse Effect. Since June 6, 2017, there shall have not been an event, change, effect or circumstance that,
individually or in the aggregate has had, or that would reasonably be expected to result in, a Closing Date Material Adverse Effect.
(p)
USA PATRIOT Act. No later than three Business Days in advance of the Closing Date, the Administrative Agent shall have received
all documentation and other information reasonably requested in writing by the Administrative Agent with respect to any Loan Party at
least ten Business Days in advance of the Closing Date, which documentation or other information is required by U.S. regulatory authorities
under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
For
purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding
the Loans hereunder, the Administrative Agent and each Lender that has executed this Agreement (or an Assignment and Assumption on the
Closing Date) shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required
hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may
be.
Notwithstanding
the foregoing, to the extent any Lien search or Collateral (including the creation or perfection of any security interest) is not or
cannot be provided on the Closing Date (other than, (i) a Lien on Collateral of any Loan Party that may be perfected by the filing
of a financing statement under the UCC (without need for any other action) and (ii) a pledge of the Capital Stock of the Borrower,
the Subsidiary Guarantors and each other wholly-owned Material Domestic Restricted Subsidiary to the extent certificated with
respect to which a Lien may be perfected on the Closing Date by the delivery of a stock or equivalent certificate, together with a
related stock or equivalent power executed in blank) after the Borrower’s use of commercially reasonable efforts to do so
without undue burden or expense (and with respect to the delivery of stock or equivalent certificates of relevant subsidiaries of
the Target whose Capital Stock is required to be pledged pursuant to the Security Agreement, only to the extent received after the
Borrower’s use of commercially reasonable efforts to do so), then the provision of any such Lien search and/or the provision
and/or perfection of such Collateral shall not constitute a condition precedent to the availability and initial funding of the Loans
on the Closing Date but may, if required, instead be delivered and/or perfected 90 days after the Closing Date pursuant to
arrangements to be mutually agreed between the Borrower and the Administrative Agent and subject to extensions as are reasonably
agreed by the Administrative Agent.
Section
4.02. Each Credit Extension. After the Closing Date, the obligation of each Revolving Lender to make a Credit Extension (which,
for the avoidance of doubt (including for purposes of the last paragraph of this Section 4.02), shall not include (A) any Incremental
Loans advanced in connection with any acquisition, other Investment or irrevocable repayment or redemption of Indebtedness and/or (B)
any Credit Extension under any Incremental Facility Amendment, Refinancing Amendment and/or Extension Amendment, in each case to the
extent not otherwise required by the lenders in respect of thereof) is subject to the satisfaction of the following conditions:
(a)
(i) In the case of a Borrowing, the Administrative Agent shall have received a Borrowing Request as required by Section 2.03,
(ii) in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received
a notice requesting the issuance of such Letter of Credit as required by Section 2.05(b) or (iii) in the case of a Borrowing of
Swingline Loans, the Swingline Lender and the Administrative Agent shall have received a request as required by Section 2.04(a).
(b)
The representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct
in all material respects on and as of the date of any such Credit Extension with the same effect as though such representations and warranties
had been made on and as of the date of such Credit Extension; provided that to the extent that any representation and warranty
specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period.
(c)
At the time of and immediately after giving effect to the applicable Credit Extension, no Event of Default or Default shall have
occurred and be continuing.
Each
Credit Extension after the Closing Date shall be deemed to constitute a representation and warranty by the Borrower on the date thereof
as to the matters specified in paragraphs (b) and (c) of this Section.
ARTICLE
5 AFFIRMATIVE COVENANTS
From
the Closing Date until the date that all the Revolving Credit Commitments and all other Commitments have expired or terminated and
the principal of and interest on each Loan and all fees, expenses and other Obligations payable under any Loan Document (other than
contingent indemnification obligations for which no claim or demand has been made) have been paid in full in Cash and all Letters of
Credit have expired or have been terminated (or have been (x) collateralized or back-stopped by a letter of credit or otherwise in a
manner reasonably satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing Banks or (y) deemed reissued
under another agreement in a manner reasonably satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing
Banks) and all LC Disbursements have been reimbursed (such date, the “Termination Date”), Holdings (solely with
respect to Sections 5.02 and 5.03) and the Borrower hereby covenant and agree with the Lenders that:
Section
5.01. Financial Statements and Other Reports. The Borrower will deliver to the Administrative Agent for delivery by the
Administrative Agent to each Lender:
(a)
Quarterly Financial Statements. As soon as available, and in any event within 45 days (or 90 days in the case of the first Fiscal
Quarter ending after the Closing Date and 75 days in the case of the second and third Fiscal Quarters ending after the Closing Date)
after the end of each of the first three Fiscal Quarters of each Fiscal Year, commencing with the Fiscal Quarter ending on or about September
30, 2017, (i) the unaudited consolidated balance sheet of Holdings as at the end of such Fiscal Quarter and the related unaudited consolidated
statements of income and cash flows of Holdings for such Fiscal Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter and setting forth, in reasonable detail, in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year, all in reasonable detail, together with a Responsible Officer Certification (which
may be included in the applicable Compliance Certificate) with respect thereto and (ii) a Narrative Report; provided that such
financial statements shall only be required to reflect Holdings’ good faith estimate of any purchase accounting adjustments relating
to (A) the Acquisition for any Fiscal Quarter prior to on or about June 30, 2018 and (B) any acquisition consummated after the Closing
Date until the Fiscal Quarter ending on or about June 30 of the Fiscal Year following the Fiscal Year in which the relevant acquisition
was consummated;
(b)
Annual Financial Statements. As soon as available, and in any event within 120 days (or, in the case of the Fiscal Year ending
on or about June 30, 2017, 150 days) after the end of each Fiscal Year ending after the Closing Date, (i) the consolidated balance sheet
of Holdings as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash
flows of Holdings for such Fiscal Year and, commencing after the completion of the second full Fiscal Year ended after the Closing Date,
setting forth, in reasonable detail, in comparative form the corresponding figures for the previous Fiscal Year and (ii) with respect
to such consolidated financial statements, (A) a report thereon of an independent certified public accountant of recognized national
standing or another accounting firm reasonably acceptable to the Administrative Agent (which report shall be unqualified as to “going
concern” and scope of audit (except for any such qualification pertaining to, or disclosure of an exception or qualification resulting
from, the maturity (or impending maturity) of any Credit Facility, any Second Lien Facility or any other Indebtedness occurring within
one year of the date of delivery of the relevant audit opinion, any breach or anticipated breach of any financial covenant or the activities,
operations, financial results, assets or liabilities of any Unrestricted Subsidiary), and shall state that such consolidated financial
statements fairly present, in all material respects, the consolidated financial position of Holdings as at the dates indicated and its
income and cash flows for the periods indicated in conformity with GAAP and (B) a Narrative Report;
(c) Compliance
Certificate; Unrestricted Subsidiaries. (i) Within 5 Business Days after the delivery of financial statements of Holdings
pursuant to Section 5.01(a) or 5.01(b) with respect to any Fiscal Quarter or Fiscal Year, as applicable, a duly
executed and completed Compliance Certificate and (ii) within 5 Business Days after the delivery of financial statements of Holdings
pursuant to Section 5.01(b), (A) a summary (which may be in footnote form) of the pro forma adjustments necessary to
eliminate the accounts of Unrestricted Subsidiaries (if any) from such financial statements and (B) a list identifying each
subsidiary of the Borrower as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such financial
statements or confirming that there is no change in such information since the later of the Closing Date and the most recent prior
delivery of such information;
(d) [Reserved];
(e)
Notice of Default or Event of Default. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) any Default
or Event of Default or (ii) the occurrence of any event or change that has caused or evidences or would reasonably be expected to cause
or evidence, either in any case or in the aggregate, a Material Adverse Effect, a reasonably detailed notice specifying the nature and
period of existence of such condition, event or change and what action the Borrower has taken, is taking and proposes to take with respect
thereto;
(f)
Notice of Litigation. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) the institution of any
Adverse Proceeding not previously disclosed in writing by the Borrower to the Administrative Agent or (ii) any material development in
any Adverse Proceeding that, in the case of either clauses (i) or (ii), would reasonably be expected to have a Material Adverse Effect,
written notice thereof by the Borrower together with such other non-privileged information as may be reasonably available to the Loan
Parties to enable the Lenders to evaluate such matters;
(g)
ERISA. Promptly upon any Responsible Officer of the Borrower becoming aware of the occurrence of any ERISA Event that would reasonably
be expected to have a Material Adverse Effect, a written notice specifying the nature thereof;
(h)
Financial Plan. Prior to a Qualifying IPO, together with the delivery of financial statements of the Borrower pursuant to Section
5.01(b) with respect to any Fiscal Year, commencing with the Fiscal Year ending on or about June 30, 2018, an operating budget for
the next Fiscal Year in a form as customarily prepared by management of the Borrower for its internal use or such other form as the Borrower
and Administrative Agent may reasonably agree;
(i)
Information Regarding Collateral. Promptly (and, in any event, within 45 days of the relevant change or such later date as the
Administrative Agent may agree) written notice of any change (i) in any Loan Party’s legal name, (ii) in any Loan Party’s
type of organization, (iii) in any Loan Party’s jurisdiction of organization or (iv) in any Loan Party’s organizational identification
number, in each case to the extent such information is necessary to enable the Administrative Agent to perfect or maintain the perfection
and priority of its security interest in the Collateral of the relevant Loan Party, together with certified copies of the applicable
Organizational Documents reflecting the relevant change;
(j)
Certain Reports. Promptly upon their becoming publicly available and without duplication of any obligations with respect to any
such information that is otherwise required to be delivered under the provisions of any Loan Document, copies of (i) following a Qualifying
IPO, all financial statements, material reports, material notices and proxy statements sent or made available generally by Holdings to
its security holders acting in such capacity and (ii) all material regular and periodic reports and all material registration statements
(other than on Form S-8 or a similar form) and prospectuses, if any, filed by the Borrower or any of its Restricted Subsidiaries with
any securities exchange or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters
relating to securities (other than amendments to any registration statement (to the extent such registration statement, in the form it
became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S-8 or
a similar form); provided that no such delivery shall be required hereunder with respect to any of the foregoing to the extent that such
are publicly available via EDGAR; and
(k) Other
Information. Such other certificates, reports and information (financial or otherwise) as the Administrative Agent may
reasonably request from time to time regarding the financial condition or business of the Borrower and its Restricted Subsidiaries;
provided, however, that none of Holdings, the Borrower or any Restricted Subsidiary shall be required to disclose or provide any
information (i) that constitutes non-financial trade secrets or non-financial proprietary information of Holdings, the Borrower or
any of its subsidiaries or any of their respective customers and/or suppliers, (ii) in respect of which disclosure to the
Administrative Agent or any Lender (or any of their respective representatives) is prohibited by any applicable Requirement of Law,
(iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which
Holdings, the Borrower or any Restricted Subsidiary owes confidentiality obligations to any third party (provided such
confidentiality obligations were not entered into solely in contemplation of the requirements of this Section 5.01(k)); provided,
further, that in the event the Borrower does not provide any certificate, report or information requested pursuant to this clause
(k) in reliance on the preceding proviso, the Borrower shall provide notice to the Administrative Agent that such certificate,
report or information is being withheld and the Borrower shall use commercially reasonable efforts to describe, to the extent both
feasible and permitted under applicable Requirements of Law or confidentiality obligations, or without waiving such privilege, as
applicable, the applicable certificate, report or information.
Documents
required to be delivered pursuant to this Section 5.01 may be delivered electronically and, if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower (or a representative thereof) (x) posts such documents or (y) provides a link
thereto at the website address listed on Schedule 9.01 (as updated from time to time); provided that, other than with respect
to items required to be delivered pursuant to Section 5.01(j) above, the Borrower shall promptly notify (which notice may be by
facsimile or electronic mail) the Administrative Agent of the posting of any such documents on such website and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such documents; (ii) on which such documents are delivered by the
Borrower to the Administrative Agent for posting on behalf of the Borrower on IntraLinks, SyndTrak or another relevant website, if any,
to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); (iii) on which such documents are faxed to the Administrative Agent (or electronically mailed to an address provided
by the Administrative Agent); or (iv) in respect of the items required to be delivered pursuant to Section 5.01(j) above in respect
of information filed by Holdings, the Borrower or any of its Restricted Subsidiaries with any securities exchange or with the SEC or
any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (other than Form 10-Q
Reports and Form 10-K Reports), on which such items have been made available on the SEC website or the website of the relevant analogous
governmental or private regulatory authority or securities exchange.
Notwithstanding
the foregoing, the obligations in paragraphs (a), (b) and (h) of this Section 5.01 may be satisfied with respect
to any financial statements of Holdings by furnishing (A) the applicable financial statements of the Borrower (or any Parent Company)
or (B) the Borrower’s (or any Parent Company’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC or any
securities exchange, in each case, within the time periods specified in such paragraphs; provided that, with respect to each of
clauses (A) and (B), (i) to the extent such financial statements relate to any Parent Company, such financial statements
shall be accompanied by consolidating information (which consolidating information need not be audited) that summarizes in reasonable
detail the differences between the information relating to such Parent Company, on the one hand, and the information relating to the
Borrower or Holdings on a standalone basis, on the other hand, which consolidating information shall be certified by a Responsible Officer
of Holdings as having been fairly presented in all material respects and (ii) to the extent such statements are in lieu of statements
required to be provided under Section 5.01(b), such statements shall be accompanied by a report and opinion of an independent
registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative
Agent, which report and opinion shall satisfy the applicable requirements set forth in Section 5.01(b) as if the references to
“Holdings” or “the Borrower” (as applicable) therein were references to such Parent Company.
No
financial statement required to be delivered pursuant to Section 5.01(a) or (b) shall be required to include
acquisition accounting adjustments relating to the Transactions or any Permitted Acquisition or other Investment to the extent it is
not practicable to include any such adjustments in such financial statement.
Section
5.02. Existence. Except as otherwise permitted under Section 6.07 or as a result of the consummation of a Permitted Reorganization
or the consummation of a Holdings Reorganization Transaction, Holdings and the Borrower will, and the Borrower will cause each of its
Restricted Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights, franchises, licenses
and permits material to its business except, other than with respect to the preservation of the existence of the Borrower, to the extent
that the failure to do so would not reasonably be expected to result in a Material Adverse Effect; provided that neither Holdings
nor the Borrower nor any of the Borrower’s Restricted Subsidiaries shall be required to preserve any such existence (other than
with respect to the preservation of existence of the Borrower, except as otherwise permitted under Section 6.07 or as a result
of the consummation of a Permitted Reorganization), right, franchise, license or permit if a Responsible Officer of such Person or such
Person’s board of directors (or similar governing body) determines that the preservation thereof is no longer desirable in the
conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to
the Lenders.
Section
5.03. Payment of Taxes. Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, pay
all Taxes imposed upon it or any of its properties or assets or in respect of any of its income or businesses or franchises before any
penalty or fine accrues thereon; provided that no such Tax need be paid if (a) it is being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, so long as (i) adequate reserves or other appropriate provisions, as are required
in conformity with GAAP, have been made therefor and (ii) in the case of a Tax which has or may become a Lien against a material portion
of the Collateral, such contest proceedings conclusively operate to stay the sale of such portion of the Collateral to satisfy such Tax
or (b) failure to pay or discharge the same would not reasonably be expected to result in a Material Adverse Effect.
Section
5.04. Maintenance of Properties. The Borrower will, and will cause each of its Restricted Subsidiaries to, maintain or cause to
be maintained in good repair, working order and condition, ordinary wear and tear and casualty and condemnation excepted, all material
tangible property reasonably necessary to the normal conduct of business of the Borrower and its Restricted Subsidiaries and from time
to time will make or cause to be made all needed and appropriate repairs, renewals and replacements thereof except as expressly permitted
by this Agreement or where the failure to maintain such tangible properties or make such repairs, renewals or replacements would not
reasonably be expected to have a Material Adverse Effect.
Section
5.05. Insurance. Except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, the Borrower
will maintain or cause to be maintained, in each case, as determined by the Borrower in good faith, with financially sound and reputable
insurers, such insurance coverage with respect to liabilities, losses or damage in respect of the assets, properties and businesses of
the Borrower and its Restricted Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to self-insurance), with such deductibles, covering
such risks and otherwise on such terms and conditions as shall be customary for such Persons, including, but only if required by applicable
law or regulation, flood insurance with respect to each Flood Hazard Property, in each case in compliance with applicable Flood Insurance
Laws, in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing
or interpreting any of the foregoing, as amended or modified from time to time. Each such policy of insurance shall (i) name the Administrative
Agent on behalf of the Secured Parties as a loss payee and mortgagee or an additional insured, as applicable, thereunder as its interests
may appear and (ii) to the extent available from the relevant insurance carrier, in the case of each casualty insurance policy (excluding
any business interruption insurance policy), contain a loss payable clause or endorsement that names the Administrative Agent, on behalf
of the Secured Parties, as the loss payee thereunder and, to the extent available, provide for at least 30 days’ prior written
notice to the Administrative Agent of any modification or cancellation of such policy (or 10 days’ prior written notice in the
case of the failure to pay any premiums thereunder); provided that the Borrower shall have 45 days after the Closing Date (or
such later date as agreed by the Administrative Agent) to comply with the requirements of the foregoing clauses (i) and (ii) with respect
to policies in effect on the Closing Date.
Section
5.06. Inspections. The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any authorized representative
designated by the Administrative Agent to visit and inspect any of the properties of the Borrower and any of its Restricted Subsidiaries
at which the principal financial records and executive officers of the applicable Person are located, to inspect, copy and take extracts
from its and their respective financial and accounting records, and to discuss its and their respective affairs, finances and accounts
with its and their Responsible Officers and independent public accountants (subject to such accountants’ customary policies and
procedures) (provided that the Borrower (or any of its subsidiaries) may, if it so chooses, be present at or participate in any
such discussion), all upon reasonable notice and at reasonable times during normal business hours; provided that (x) only the
Administrative Agent on behalf of the Lenders may exercise the rights of the Administrative Agent and the Lenders under this Section
5.06, (y) the Administrative Agent shall not exercise such rights more often than one time during any calendar year and (z) only
one such time per calendar year shall be at the expense of the Borrower; provided, further, that when an Event of Default exists,
the Administrative Agent (or any of its representatives or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and upon reasonable advance notice; provided, further that notwithstanding
anything to the contrary herein, neither the Borrower nor any Restricted Subsidiary shall be required to disclose, permit the inspection,
examination or making of copies of or taking abstracts from, or discuss any document, information or other matter (i) that constitutes
non-financial trade secrets or non-financial proprietary information of the Borrower and its subsidiaries and/or any of its customers
and/or suppliers, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives
or contractors) is prohibited by applicable law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney
work product or (iv) in respect of which Holdings, the Borrower or any Restricted Subsidiary owes confidentiality obligations to any
third party (provided such confidentiality obligations were not entered into solely in contemplation of the requirements of this Section
5.06); provided, further, that in the event any of the circumstances described in the preceding proviso exist, the Borrower
shall provide notice to the Administrative Agent thereof and shall use commercially reasonable efforts to describe, to the extent both
feasible and permitted under applicable Requirements of Law or confidentiality obligations, or without waiving such privilege, as applicable,
the applicable document, information or other matter.
Section
5.07. Maintenance of Book and Records. The Borrower will, and will cause its Restricted Subsidiaries to, maintain proper books
of record and account containing entries of all material financial transactions and matters involving the assets and business of the
Borrower and its Restricted Subsidiaries that are full, true and correct in all material respects and permit the preparation of consolidated
financial statements in accordance with GAAP.
Section
5.08. Compliance with Laws. The Borrower will comply, and will cause each of its Restricted Subsidiaries to comply, with the
requirements of all applicable laws, rules, regulations and orders of any Governmental Authority (including ERISA and all
Environmental Laws, Sanctions and the U.S. Foreign Corrupt Practices Act of 1977), except to the extent the failure of the Borrower
or the relevant Restricted Subsidiary to comply would not reasonably be expected to have a Material Adverse Effect.
Section
5.09. Hazardous Materials Activity.
(a)
The Borrower will deliver to the Administrative Agent:
(i)
reasonably promptly following receipt by Borrower thereof, copies of all written environmental audits, investigations, analyses and reports
of any kind or character, whether prepared by personnel of the Borrower or any of its Restricted Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to any Environmental Liabilities or Hazardous Materials Activity that, in
each case could reasonably be expected to have a Material Adverse Effect;
(ii)
reasonably promptly following Borrower becoming aware of the occurrence thereof, written notice describing in reasonable detail (A) any
Release required to be reported by the Borrower or any of its Restricted Subsidiaries to any federal, state or local governmental or
regulatory agency under any applicable Environmental Law, (B) any remedial action taken by or on behalf of the Borrower or any of its
Restricted Subsidiaries in response to any Hazardous Materials Activity or Environmental Claim, or (C) any pending or threatened Environmental
Claim, that in the case of each of (A), (B) and (C) above, would reasonably be expected to have a Material Adverse Effect; and
(iii)
reasonably promptly following the sending or receipt thereof by the Borrower or any of its Restricted Subsidiaries, a copy of any and
all written communications with respect to any Release required to be reported by the Borrower or any of its Restricted Subsidiaries
to any federal, state or local governmental or regulatory agency or any Release required to be remediated pursuant to any Environmental
Law, that in each case would reasonably be expected to have a Material Adverse Effect.
(b)
The Borrower shall reasonably promptly take, and shall cause each of its Restricted Subsidiaries reasonably promptly to take, any and
all actions reasonably necessary to (i) cure any violation of Environmental Law by the Borrower or any of its Restricted Subsidiaries,
and, to the extent required by Environmental Law, address with appropriate corrective or remedial action any Release or threatened Release
of any Hazardous Material at or from any Facility, that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect and (ii) make an appropriate response to any Environmental Claim against the Borrower or any of its Restricted Subsidiaries
and discharge any obligations it may have to any Person thereunder, where failure to do so could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect; provided that it shall not be deemed to be a violation of this Section 5.09
if the Borrower or its Restricted Subsidiaries are in good faith contesting such violation or Environmental Claim in accordance with
applicable Environmental Law.
Section
5.10. Designation of Subsidiaries. The Borrower may at any time after the Closing Date designate (or re-designate) any
subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) no
subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of the Second
Lien Credit Agreement and (ii) as of the date of the designation thereof, no Unrestricted Subsidiary shall own any Capital Stock in
any Restricted Subsidiary of the Borrower (unless such Restricted Subsidiary is also designated as an Unrestricted Subsidiary
simultaneously with the aforementioned designation in accordance with the terms of this Section 5.10) or hold any
Indebtedness of or any Lien on any property of the Borrower or its Restricted Subsidiaries (unless the Borrower or such Restricted
Subsidiary is permitted hereunder to incur such Indebtedness or grant such Lien in favor of such Unrestricted Subsidiary). The
designation of any subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower therein at the date of
designation in an amount equal to the portion of the fair market value of the net assets of such Restricted Subsidiary attributable
to the Borrower’s equity interest therein as estimated by the Borrower in good faith (and such designation shall only be
permitted to the extent such Investment is permitted under Section 6.06). The designation of any Unrestricted Subsidiary as a
Restricted Subsidiary shall constitute the incurrence or making, as applicable, at the time of designation of any then-existing
Investment, Indebtedness or Lien of such Restricted Subsidiary, as applicable; provided that upon a re-designation of any
Unrestricted Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have an Investment in the resulting
Restricted Subsidiary in an amount (if positive) equal to (a) the Borrower’s “Investment” in such Restricted
Subsidiary at the time of such re-designation less (b) the portion of the fair market value of the net assets of such Restricted
Subsidiary attributable to the Borrower’s equity therein at the time of such re-designation. As of the Closing Date, the
subsidiaries listed on Schedule 5.10 hereto have been designated as Unrestricted Subsidiaries.
Section
5.11. Use of Proceeds. The Borrower shall use the proceeds of the Revolving Loans (a) on the Closing Date, (i) to replace, backstop
or cash collateralize Existing Letters of Credit, guarantees or performance or similar bonds or to issue Letters of Credit and (ii) in
an aggregate principal amount of up to $15,000,000 to pay Transaction Costs and expenses and for purchase price and working capital adjustments,
if any, under the Acquisition Agreement and to provide for ordinary course working capital needs and general corporate purposes and (b)
after the Closing Date, to finance the working capital needs and other general corporate purposes of the Borrower and its subsidiaries
(including for capital expenditures, acquisitions, working capital and/or purchase price adjustments, the payment of transaction fees
and expenses (in each case, including in connection with the Acquisition), other Investments, Restricted Payments, Restricted Debt Payments
and any other purpose not prohibited by the terms of the Loan Documents). The Borrower shall use the proceeds of the Swingline Loans
made after the Closing Date to finance the working capital needs and other general corporate purposes of the Borrower and its subsidiaries
and any other purpose not prohibited by the terms of the Loan Documents. The Borrower shall use the proceeds of the Initial Term Loans
(i) to effect all or a portion of the Refinancing, (ii) to finance all or a portion of the Transactions and
the Amendment No. 1 Transactions (including working capital and/or purchase price adjustments and the payment of Transaction
Costs) and (iii) for general corporate purposes. No part of the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that would entail a violation of Regulation U. The Borrower shall use the proceeds of the Incremental Term Loans for working
capital, capital expenditures and other general corporate purposes of the Borrower and its subsidiaries (and,
in the case of the Amendment No. 1 Incremental Term Loans, to finance all or a portion of the Amendment No. 1 Transactions) (including
for Restricted Payments, Investments, Permitted Acquisitions and any other purpose not prohibited by the terms of the Loan Documents).
Section
5.12. Covenant to Guarantee Obligations and Give Security.
(a)
Upon (i) the formation or acquisition after the Closing Date of any Restricted Subsidiary that is a Domestic Subsidiary (subject to
Section 6.06(hh)), (ii) the designation of any Unrestricted Subsidiary that is a Domestic Subsidiary as a Restricted Subsidiary,
(iii) any Restricted Subsidiary that is a Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted
Subsidiary ceasing to be an Excluded Subsidiary (including by election of the Borrower as set forth herein), (x) if the event giving
rise to the obligation under this Section 5.12(a) occurs during the first three Fiscal Quarters of any Fiscal Year, on or
before the date on which financial statements are required to be delivered pursuant to Section 5.01(a) for the Fiscal Quarter
in which the relevant formation, acquisition, designation or cessation occurred or (y) if the event giving rise to the obligation
under this Section 5.12(a) occurs during the fourth Fiscal Quarter of any Fiscal Year, on or before the date that is 60 days
after the end of such Fiscal Quarter (or, in the cases of clauses (x) and (y), such longer period as the
Administrative Agent may reasonably agree), the Borrower shall (A) cause such Restricted Subsidiary (other than any Excluded
Subsidiary) to comply with the requirements set forth in clause (a) of the definition of “Collateral and Guarantee
Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary (other
than any Excluded Subsidiary) to deliver to the Administrative Agent a signed copy of a customary opinion of counsel for such
Restricted Subsidiary, addressed to the Administrative Agent and the other relevant Secured Parties.
(b)
Within 120 days (or such longer period as the Administrative Agent may reasonably agree) after the acquisition by any Loan Party of any
Material Real Estate Asset, other than any Excluded Asset, the Borrower shall cause such Loan Party to comply with the requirements set
forth in clause (b) of the definition of “Collateral and Guarantee Requirement”; it being understood and agreed that,
with respect to any Material Real Estate Asset (other than any Excluded Asset) owned by any Restricted Subsidiary at the time such Restricted
Subsidiary is required to become a Loan Party under Section 5.12(a) above, such Material Real Estate Asset shall be deemed to
have been acquired by such Restricted Subsidiary on the first day of the time period within which such Restricted Subsidiary is required
to become a Loan Party under Section 5.12(a).
Notwithstanding
anything to the contrary herein or in any other Loan Document, (i) the Administrative Agent may grant extensions of time (including
after the expiration of any relevant period, which apply retroactively) for the creation and perfection of security interests in, or
obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of
any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired,
after the Closing Date), and each Lender hereby consents to any such extension of time, (ii) any Lien required to be granted from
time to time pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and
limitations set forth in the Collateral Documents, (iii) perfection by control shall not be required with respect to assets
requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and
commodities accounts (other than control of pledged Capital Stock and/or Material Debt Instruments, in each case, that constitute
Collateral) and no blocked account agreement, account control agreement or similar agreement shall be required, (iv) no Loan Party
shall be required to seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar
letter or agreement, (v) no Loan Party will be required to (1) take any action outside of the United States or grant or perfect any
security interest in any asset located outside of the U.S. or conduct any foreign lien search, (2) execute any foreign law
guarantee, security agreement, pledge agreement, mortgage, deed or charge or (3) make any foreign intellectual property filing,
conduct any foreign intellectual property search or prepare any foreign intellectual property schedule with respect to any assets of
any Loan Party or enter into any source code escrow arrangement or register any intellectual property, (vi) in no event will the
Collateral include any Excluded Assets, (vii) no action shall be required to perfect any Lien with respect to (x) any vehicle or
other asset subject to a certificate of title, or any retention of title, extended retention of title rights, or similar rights
and/or (y) Letter-of-Credit Rights, in each case to the extent that a security interest therein cannot be perfected by filing a Form
UCC-1 (or similar) “all assets” financing statement without the requirement to list any VIN, serial or other number and
(viii) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those
assets as to which the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party to
conduct its operations and business in the ordinary course of business) of obtaining or perfecting such Lien (including any
mortgage, stamp, intangibles or other tax or expenses relating to such Lien) outweighs the benefit to the Lenders of the security
afforded thereby as reasonably determined by the Borrower and the Administrative Agent; provided that the foregoing shall not apply
and shall not operate to limit the obligation of the Loan Parties to provide security in foreign jurisdictions (subject to
“agreed security principles” to be negotiated in good faith between the Borrower and the Administrative Agent) if a
Foreign Subsidiary becomes a Guarantor.
Additionally,
(i) no action shall be required to create or perfect a Lien in any asset in respect of which the creation or perfection of a security
interest therein would (1) be prohibited by enforceable anti-assignment provisions set forth in any contract that is permitted or otherwise
not prohibited by the terms of this Agreement, (2) violate the terms of any contract relating to such asset that is permitted or otherwise
not prohibited by the terms of this Agreement, in each case, after giving effect to the applicable anti- assignment provisions of the
UCC or other applicable law or (3) trigger termination of any contract relating to such asset that is permitted or otherwise not prohibited
by the terms of this Agreement pursuant to any “change of control” or similar provision, it being understood that the Collateral
shall include any proceeds and/or receivables arising out of any contract described in this clause (other than Excluded Assets) to the
extent the assignment of such proceeds or receivables is expressly deemed effective under the UCC or other applicable Requirements of
Law notwithstanding the relevant prohibition, violation or termination right, (ii) no Loan Party shall be required to create or perfect
a security interest in any asset to the extent the creation or perfection of a security interest in such asset would (A) be prohibited
under any applicable Requirement of Law, after giving effect to any applicable anti-assignment provision of the UCC or other applicable
law and other than proceeds thereof (other than Excluded Assets) to the extent that the assignment of such proceeds is effective under
the UCC or other applicable Requirements of Law notwithstanding such Requirement of Law, (B) require any governmental consent, approval,
license or authorization (unless such consent, approval, license or authorization has been obtained), after giving effect to any applicable
anti-assignment provision of the UCC or other applicable law and other than proceeds thereof (other than Excluded Assets) to the extent
that the assignment of such proceeds is effective under the UCC or other applicable Requirements of Law notwithstanding such consent
or restriction and/or (C) result in adverse tax consequences or adverse regulatory consequences to any Loan Party or any of its subsidiaries
or Parent Companies as determined by the Borrower in good faith following consultation with the Administrative Agent, (iii) any joinder
or supplement to any Loan Guaranty, any Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that
is required to become a Loan Party pursuant to Section 5.12(a) above may, with the consent of the Administrative Agent (not to
be unreasonably withheld or delayed), include such schedules (or updates to schedules) as may be necessary to qualify any representation
or warranty set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is true and correct
to the extent required thereby or by the terms of any other Loan Document; and (iv) (A) no Loan Party will be required to take any action
required under the Federal Assignment of Claims Act or any similar law and (B) no Secured Party will be permitted to exercise any right
of setoff in respect of any account maintained solely for the purpose of receiving and holding government receivables.
Section
5.13. Maintenance of Ratings. The Borrower shall use commercially reasonable efforts to maintain public corporate credit facility
and public corporate family ratings in respect of Holdings from each of S&P and Moody’s; provided that in no event shall
the Borrower be required to maintain any specific rating with any such agency.
Section
5.14. Maintenance of Fiscal Year. The Borrower shall maintain its Fiscal Year-end as in effect on the Closing Date; provided that
the Borrower may, upon written notice to the Administrative Agent, change its Fiscal Year-end to another date, in which case the Borrower
and the Administrative Agent will, and are hereby authorized to (without requiring the consent of any other Person, including any Lender),
make any adjustments to this Agreement that are necessary to reflect such change in Fiscal Year.
Section
5.15. Further Assurances. Promptly upon reasonable request of the Administrative Agent and subject to the limitations
described in Section 5.12:
(a)
The Borrower will, and will cause each other Loan Party to, execute any and all further documents, financing statements, agreements,
instruments, certificates, notices and acknowledgments and take all such further actions (including the filing and recordation of financing
statements, fixture filings, Mortgages and/or amendments thereto and other documents), that may be required under any applicable law
and which the Administrative Agent may reasonably request to ensure the perfection and priority of the Liens created or intended to be
created under the Collateral Documents, all at the expense of the relevant Loan Parties. For the avoidance of doubt, in no event shall
any (x) Excluded Property or (y) property subject to a Sale and Lease-Back Transaction permitted hereunder be required to be made subject
to the Collateral Documents.
(b)
The Borrower will, and will cause each other Loan Party to, (i) correct any material defect or error that may be discovered in the execution,
acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral and (ii)
do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts (including
notices to third parties), deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from
time to time in order to ensure the creation and perfection of the Liens created under the Collateral Documents.
Section
5.16. Conduct of Business. The Borrower and its Restricted Subsidiaries shall engage only in those material lines of business
that consist of (a) the businesses engaged in by the Borrower or any Restricted Subsidiary on the Closing Date, reasonably related, similar,
incidental, complementary, ancillary, corollary, synergistic or related businesses or reasonable extensions, development or expansion
(or proposed to be engaged) of such businesses (including entertainment and amusement media and content business in connection therewith)
and (b) such other lines of business to which the Administrative Agent may consent.
Section
5.17. Annual Lender Call. Upon the request of the Administrative Agent following each delivery of financial statements pursuant
to Section 5.01(b) (commencing with respect to the financial statements delivered for the Fiscal Year ending on or about June
30, 2018), the Borrower shall participate in a conference call with Lenders arranged by the Administrative Agent to provide discussion
and analysis with respect to the financial condition and results of operations of the Borrower and its Restricted Subsidiaries at a time
at which the Borrower and the Administrative Agent mutually agree.
Section
5.18. Post-Closing Actions. Take the actions set forth on Schedule 5.18 within the time periods specified thereon (or by
such later time as the Administrative Agent may reasonably agree).
ARTICLE
6 NEGATIVE COVENANTS
From
the Closing Date and until the Termination Date has occurred, Holdings (solely with respect to Section 6.14) and the Borrower
covenant and agree with the Lenders that:
Section
6.01. Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a)
the Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b)
Indebtedness of the Borrower or any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary (or issued to any
Parent Company which is substantially contemporaneously transferred to the Borrower or any Restricted Subsidiary); provided
that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to a Loan Party, the making of the
corresponding loan or advance shall have been permitted as an Investment pursuant to Section 6.06; provided, further, all
such Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the
Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;
(c)
Indebtedness of any Joint Venture or Indebtedness of the Borrower or any Restricted Subsidiary incurred on behalf of any Joint Venture
or any Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness of any Joint Venture in an aggregate outstanding principal
amount for all such Indebtedness not to exceed at any time the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the
last day of the most recently ended Test Period;
(d)
Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including
contingent earn-out or similar obligations), or payment obligations in respect of any non-compete, consulting or similar arrangements,
in each case incurred in connection with any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder
or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties,
letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or
any such Restricted Subsidiary pursuant to any such agreement;
(e)
Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations (including health, safety
and environmental obligations), bids, leases, governmental contracts, trade contracts, surety, indemnity, stay, customs, judgment, appeal,
performance, completion and/or return of money bonds or guaranties or other similar obligations incurred in the ordinary course of business
and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the
foregoing items;
(f)
Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, debit cards,
purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services
(including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services,
including Indebtedness arising from the financing by a bank or other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business), employee credit card programs, cash pooling services, foreign exchange
and currency management services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with
Cash management and Deposit Accounts, including Banking Services Obligations and incentive, supplier finance or similar programs;
(g)
(i) Guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers, franchisees, licensees, sublicensees
and cross-licensees in the ordinary course of business, (ii) Indebtedness (A) incurred in the ordinary course of business in respect
of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of property or services or progress
payments in connection with such property and services or (B) consisting of obligations under deferred purchase price or other similar
arrangements incurred in connection with Permitted Acquisitions or any other Investment expressly permitted hereunder and (iii) Indebtedness
in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse
receipts or similar facilities entered into in the ordinary course of business;
(h)
Guarantees (including any co-issuance) by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower
and/or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01
or other obligations not prohibited by this Agreement; provided that in the case of any such Guarantee by any Loan Party of the
obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i)
Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing (or anticipated), on the
Closing Date and, with respect to any such item of Indebtedness in an aggregate committed or principal amount in excess of $250,000,
described on Schedule 6.01;
(j)
Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of
such Indebtedness shall not exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period;
(k)
Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar
agreements entered into in the ordinary course of business;
(l)
Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay
obligations contained in supply arrangements in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory
in connection with customer financing arrangements in the ordinary course of business;
(m)
Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness (including
mortgage financing, industrial revenue bond, industrial development bond or similar financings) or to finance the construction, purchase,
repair, replacement or improvement of any fixed or capital asset, in an aggregate outstanding principal amount not to exceed the greater
of $65,000,000 and 49% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (excluding, for the
avoidance of doubt, the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Sale/Leaseback Transaction and iStar
Exchanges);
(n)
Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or other Investment
permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted
Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof and (ii)
either (A) the Borrower is in compliance with the applicable ratio set forth in clause (e) of the definition of Incremental Cap based
on whether such Indebtedness is secured by a pari passu lien on the Collateral or a junior Lien on the Collateral or is unsecured
or secured by Liens on assets not constituting Collateral (and for such purpose, such Indebtedness shall be deemed to have been incurred
to finance an acquisition or other Investment permitted hereunder), calculated on a Pro Forma Basis as of the last day of the most recently
ended Test Period or (B) the aggregate outstanding principal amount of such Indebtedness does not exceed the greater of $15,000,000 and
11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o)
Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company
or any Permitted Payee to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p)
the Borrower and its Restricted Subsidiaries may become and remain liable for any Indebtedness extending, refinancing, refunding or replacing
any Indebtedness permitted under clauses (a), (c), (i), (j), (m), (n), (r), (u), (v), (w), (y), (z), (dd), (gg), (ll) and
(mm) of this Section 6.01 (in any case, including any extending, refinancing, refunding or replacing Indebtedness incurred
in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided
that (i) the principal amount of such Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being extended,
refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender
premiums) thereon plus underwriting discounts and other customary fees, commissions and expenses (including upfront fees, original
issue discount or initial yield payments) incurred in connection with the relevant extension, refinancing, refunding or replacement,
(B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to
this Section 6.01 (provided that (1) any additional Indebtedness referred to in this clause (C) satisfies the other applicable
requirements of this Section 6.01(p) (with additional amounts incurred in reliance on this clause (C) constituting a utilization
of the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is
secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02), (ii) in the case of Refinancing
Indebtedness with respect to clauses (a) and (z) (other than (x) customary bridge loans with a maturity date of not longer
than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such
bridge loans shall be subject to the requirements of this clause (ii) and (y) Refinancing Indebtedness having an aggregate principal
amount outstanding not exceeding $20,000,000 (as selected by the Borrower)), such Refinancing Indebtedness has (A) a final maturity on
or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier
of (x) the Latest Term Loan Maturity Date at the time of the incurrence of such Refinancing Indebtedness and (y) the final maturity of
the Indebtedness being extended, refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, a Weighted
Average Life to Maturity equal to or greater than (x) the Weighted Average Life to Maturity of the Indebtedness being extended, refinanced,
refunded or replaced or (y) the Weighted Average Life to Maturity of the outstanding Term Loans at the time of the incurrence of such
Refinancing Indebtedness, (iii) with respect to any Refinancing Indebtedness with an original principal amount in excess of the Threshold
Amount, the terms thereof (excluding pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable,
subordination terms) and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a)
above, security) are not, taken as a whole (as determined by the Borrower in good faith), more favorable to the lenders providing
such Indebtedness than those applicable to the Indebtedness being extended, refinanced, refunded or replaced (other than any covenants
or any other terms or provisions (X) applicable only to periods after the Latest Maturity Date at the time of the incurrence of such
Refinancing Indebtedness, (Y) that are then-current market terms (as determined by the Borrower in good faith at the time of incurrence
or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (Z) solely in the case
of Refinancing Indebtedness in respect of Indebtedness incurred in reliance on clauses (a) and/or (z) of this Section
6.01, terms or other provisions which are conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable,
the Administrative Agent, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)), (iv) the
incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause of this Section 6.01
pursuant to which the Indebtedness being extended, refinanced, refunded or replaced was incurred (i.e., the incurrence of such Refinancing
Indebtedness shall not create availability under such relevant clause), (v) except in the case of Refinancing Indebtedness incurred in
respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Indebtedness, if secured, is secured
only by Permitted Liens at the time of such extension, refinancing, refunding or replacement (it being understood that secured Indebtedness
may be refinanced with unsecured Indebtedness), (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness
being extended, refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 (it being
understood that Holdings may not be the primary obligor of the applicable Refinancing Indebtedness if Holdings was not the primary obligor
on the relevant refinanced Indebtedness) and (C) if the Indebtedness being extended, refinanced, refunded or replaced was contractually
subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were contractually subordinated to such
Liens on the Collateral securing the Secured Obligations), such Indebtedness is contractually subordinated to the Obligations in right
of payment (or the Liens securing such Indebtedness are subordinated to the Liens on the relevant Collateral securing the Secured Obligations)
either (x) on terms not materially less favorable, taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens,
as applicable) being extended, refinanced, refunded or replaced, taken as a whole or (y) pursuant to an Acceptable Intercreditor Agreement,
(vi) except in the case of Refinancing Indebtedness with respect to clause (a) of this Section 6.01, as of the date of
the incurrence of such Indebtedness and after giving effect thereto, no payment or bankruptcy (with respect to the Borrower) Event of
Default exists and (vii) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a)
of this Section 6.01, (A) such Refinancing Indebtedness is pari passu or junior in right of payment and secured by the
Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided
that any such Refinancing Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Acceptable
Intercreditor Agreement, (B) if such Refinancing Indebtedness is secured, it is not secured by any assets other than the Collateral,
(C) if such Refinancing Indebtedness is Guaranteed, it shall not be Guaranteed by any Person other than a Loan Party and (D) such Refinancing
Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, it being understood and agreed that any such
Refinancing Indebtedness may participate (x) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and
(y) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi);
(q)
endorsement of instruments or other payment items for collection or deposit in the ordinary course of business;
(r)
Indebtedness in respect of any Additional Letter of Credit Facility in an aggregate principal or face amount at any time outstanding
not to exceed the greater of $40,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period;
(s)
Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative
purposes; (t) [reserved];
(u)
Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the greater
of $60,000,000 and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v)
Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 100% of the
amount of any capital contributions or other proceeds received by the Borrower or any Restricted Subsidiary (i) from the issuance or
sale of its Qualified Capital Stock or (ii) in the form of any cash contribution, plus the fair market value, as determined
by the Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Borrower or any
Restricted Subsidiary from the issuance and sale by it or any Parent Company of its or such Parent Company’s Qualified Capital
Stock or a contribution to the Qualified Capital Stock of any Parent Company, Holdings, the Borrower or any Restricted Subsidiary
(including through consolidation, amalgamation or merger), in each case after the Closing Date, and in each case other than (A) any
proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries, (B)
to the extent the relevant proceeds have otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments
hereunder and (C) Cure Amounts and/or any Available Excluded Contribution Amount;
(w)
Indebtedness arising under a Qualified Receivables Facility in an aggregate principal amount not to exceed the greater of $20,000,000
and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(x)
Indebtedness of the Borrower and/or any Restricted Subsidiary incurred in respect of (i) any Second Lien Facility and any “Incremental
Loans” and “Incremental Equivalent Debt” (each as defined in the Second Lien Credit Agreement or any equivalent term
under any Second Lien Facility) in an aggregate outstanding principal amount that does not exceed $137,500,000 plus the aggregate
outstanding principal amount of such “Incremental Loans” or “Incremental Equivalent Debt” so long as the sum
of the aggregate outstanding principal amount of any such “Incremental Loans” or “Incremental Equivalent Debt”
does not exceed the “Incremental Cap” (as applicable, and each as defined in the Second Lien Credit Agreement as in effect
on the Closing Date, including after giving effect to Sections 1.04(d) and 1.04(e) thereof) and (ii) any refinancing, refunding
or replacing of any Second Lien Facility or any such “Incremental Loans” or “Incremental Equivalent Debt” after
the Closing Date so long as (A) the aggregate outstanding principal amount of such Indebtedness does not exceed an amount permitted to
be incurred under the preceding clause (i), plus (1) an amount equal to unpaid accrued interest, penalties and premiums
(including tender premiums) thereon, (2) the amount of any underwriting discounts and other customary fees, commissions and expenses
(including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, (3)
an amount equal to any existing commitments unutilized thereunder and (4) any additional amounts permitted to be incurred pursuant to
this Section 6.01 (with additional amounts incurred in reliance on this clause (4) constituting a utilization of the relevant
basket or exception pursuant to which such additional amount is permitted), (B) such Indebtedness, if secured, is secured only by Liens
permitted under Section 6.02(t), (C) except with respect to revolving Indebtedness, the Weighted Average Life to Maturity of such
Indebtedness is equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced in reliance
on this Section 6.01(x) at the time of such refinancing (without giving effect to any prepayment thereof), (D) the final maturity date
of such Indebtedness is equal to or later than the final maturity date of the Indebtedness being refinanced in reliance on this Section
6.01(x) and (E) no such Indebtedness is (1) guaranteed by any Person which is not a Loan Party or (2) secured by any assets other than
the Collateral;
(y)
Indebtedness of the Borrower and/or any Restricted Subsidiary incurred in connection with Sale and Lease-Back Transactions permitted
pursuant to Section 6.08;
(z)
Incremental Equivalent Debt; provided that the aggregate principal amount of Incremental Equivalent Debt incurred by Restricted
Subsidiaries that are not Loan Parties shall not exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the
last day of the most recently ended Test Period;
(aa)
Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments
with respect to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers’ compensation
claims (or reimbursement type obligations regarding workers’ compensation claims), unemployment insurance (including premiums related
thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits or property,
casualty or liability insurance or self-insurance;
(bb)
Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current and former directors,
officers, employees, members of management, managers and consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary
in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions,
any Permitted Acquisition or any other Investment permitted hereby;
(cc)
Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of any letter of credit or bank guarantee issued in favor of
any issuing bank or swingline lender to support any defaulting lender’s participation in letters of credit issued, or swingline
loans made, hereunder or under any Additional Letter of Credit Facility;
(dd)
Indebtedness of the Borrower or any Restricted Subsidiary supported by any Letter of Credit issued hereunder or under any Additional
Letter of Credit Facility or any other letters of credit or bank guarantees permitted hereunder;
(ee)
unfunded pension fund and other employee benefit plan obligations and liabilities incurred by the Borrower and/or any Restricted Subsidiary
in the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under Section
7.01(i);
(ff)
without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind
interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Borrower
and/or any Restricted Subsidiary hereunder;
(gg)
(i) to the extent constituting Indebtedness, obligations under the Acquisition Agreement and (ii) any Indebtedness permitted to remain
outstanding after the Closing Date pursuant to the Acquisition Agreement (excluding any Indebtedness required to be refinanced pursuant
to the Refinancing);
(hh)
customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in
the ordinary course of business;
(ii)
[reserved];
(jj)
(i) Indebtedness in connection with bankers’ acceptances, discounted bills of exchange or the discounting or factoring of receivables
for credit management purposes, in each case incurred or undertaken in the ordinary course of business on arm’s-length commercial
terms and (ii) the incurrence of Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights or the settlement
of any claims or actions (whether actual, contingent or potential) with respect to the Transactions or any other acquisition (by merger,
consolidation or amalgamation or otherwise) in accordance with the terms hereof;
(kk)
obligations in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any subsidiary
of the Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed
in jurisdictions other than within the United States;
(ll)
Indebtedness in an aggregate principal amount outstanding at any time not to exceed the Available RP Capacity Amount;
(mm)
Indebtedness in respect of any Excluded Property Transaction or any transactions under any iStar Sale/Leaseback Documents;
and
(nn)
Guarantee obligations incurred in the ordinary course of business under repurchase agreements in connection with the financing of
Bowling Equipment sales.
For
the avoidance of doubt, the accrual of interest, the accretion of accreted value, the accretion or amortization of original issue discount,
the payment of interest in the form of additional Indebtedness and increases in the amount of Indebtedness outstanding solely as a result
of fluctuations in the exchange rate of currencies shall be deemed to be permitted Indebtedness for purposes of this Section.
Section
6.02. Liens. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, create, incur, assume or permit
or suffer to exist any Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any
income or profits therefrom, except:
(a)
Liens created pursuant to the Loan Documents securing the Secured Obligations (including Cash collateralization of Letters of Credit
as set forth in Section 2.05);
(b)
Liens for Taxes or other governmental charges which are not overdue for a period of more than 45 days or, if more than 45 days overdue
(i) are being contested in accordance with Section 5.03 or (ii) with respect to which the failure to make payment would not reasonably
be expected to have a Material Adverse Effect;
(c)
statutory or common law Liens (and rights of set-off) of landlords, sub landlords, construction contractors, banks, carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements of Law, in each case incurred in the
ordinary course of business (i) for amounts not yet overdue by more than 45 days, (ii) for amounts that are overdue by more than 45 days
(A) that are being contested in good faith by appropriate proceedings, so long as any reserves or other appropriate provisions required
by GAAP have been made for any such contested amounts or (B) with respect to which no filing or other action has been taken to enforce
such Lien or (iii) with respect to which the failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(d)
Liens incurred (i) in the ordinary course of business in connection with workers’ compensation, unemployment insurance, health,
disability or employee benefits and other types of social security laws and regulations, (ii) in the ordinary course of business to secure
the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade
contracts, indemnitees, performance, completion and return-of-money bonds and other similar obligations (including those to secure health,
safety and environmental obligations) (in each case, exclusive of obligations for the payment of borrowed money), (iii) pursuant to pledges
and deposits of Cash or Cash Equivalents in the ordinary course of business securing (x) any liability for reimbursement, premium or
indemnification obligations of insurance brokers or carriers providing property, casualty, liability or other insurance to Holdings,
the Borrower and its subsidiaries (including deductibles, self-insurance, co- payment, co-insurance and retentions) or (y) leases or
licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in respect of letters of credit, bank guaranties,
surety bonds, performance bonds or similar instruments posted with respect to the items described in clauses (i) through (iii)
above;
(e)
Liens consisting of easements, covenants, conditions, rights-of-way, restrictions, encroachments, servitudes for railways, sewers,
drains, gas and oil and other pipelines, gas and water mains, electric light and power and telecommunication, telephone or telegraph
or cable television conduits, poles, wires and cables and other similar protrusions or encumbrances and other minor defects or
irregularities in title, in each case (x) which do not, in the aggregate, materially interfere with the ordinary conduct of the
business of the Borrower and/or its Restricted Subsidiaries, taken as a whole, or materially interfere with the use of the affected
property for its intended purpose or (y) where the failure to have such title would not reasonably be expected to have a Material
Adverse Effect;
(f)
Liens consisting of any (i) interest or title of a lessor, sub-lessor, licensor or sub- licensor under any lease, license or similar
arrangement of real estate or other property (including intellectual property) permitted hereunder, (ii) landlord lien permitted by the
terms of any lease, sub- lease, license, sub-license or similar arrangement, (iii) restriction or encumbrance to which the interest or
title of such lessor, sub-lessor, licensor or sub-licensor may be subject, (iv) subordination of the interest of the lessee, sub-lessee,
licensee or sub-licensee under such lease, sub-lease, license, sub-license or similar arrangement to any restriction or encumbrance referred
to in the preceding clause (iii) or (v) deposit of cash with the owner or lessor of premises leased and operated by the Borrower
or any Restricted Subsidiary in the ordinary course of business to secure the performance of obligations under the terms of the lease
for such premises;
(g)
Liens (i) solely on any Cash (or Cash Equivalent) earnest money deposits (including as part of any escrow arrangement) made by the Borrower
and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment
permitted hereunder (or to secure letters of credit, bank guarantees or similar instruments posted in respect thereof), (ii) on advances
of Cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Sections
6.06(b), (e), (f), (p), (q), (r), (u), (x), (y) or (dd) to be applied against the purchase price for such Investment or (iii)
consisting of (A) an agreement to Dispose of any property in a Disposition permitted under Section 6.07 and/or (B) the pledge
of Cash or Cash Equivalents as part of an escrow or similar arrangement required in any Disposition permitted under Section 6.07;
(h)
precautionary or purported Liens evidenced by the filing of UCC financing statements or similar financing statements under applicable
Requirements of Law relating solely to (i) operating leases or consignment or bailee arrangements entered into in the ordinary course
of business, (ii) the sale of accounts receivable in the ordinary course of business for which a UCC financing statement or similar financing
statement under applicable Requirements of Law is required and/or (iii) the sale of Receivables Facility Assets and related assets in
connection with any Qualified Receivables Facility;
(i)
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the
importation of goods;
(j)
Liens in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority
to control or regulate the use of any dimensions of real property or any structure thereon, including Liens in connection with any condemnation
or eminent domain proceeding or compulsory purchase order;
(k)
Liens securing Indebtedness permitted pursuant to Section 6.01(p) (solely with respect to the permitted extension,
refinancing, refunding or replacement of Indebtedness permitted pursuant to Sections 6.01(a), (c), (i), (j), (m), (n),
(r), (u), (v), (w), (y), (z) and (gg)); provided that (i) no such Lien extends to any asset not
covered by the Lien securing the Indebtedness that is being refinanced other than (A) after-acquired property that is affixed or
incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.01 and (B) proceeds
and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood that such
extensions, refinancings, refundings or replacements of individual financings of the type permitted under Section 6.01(m)
provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and
(ii) if the Indebtedness being refinanced was subject to intercreditor arrangements in respect of Liens on Collateral, then any
refinancing Indebtedness in respect thereof secured by Liens on Collateral shall be subject to intercreditor arrangements not
materially less favorable to the Secured Parties, taken as a whole, than the intercreditor arrangements governing the Indebtedness
that is refinanced or the intercreditor arrangements governing the relevant refinancing Indebtedness shall be set forth in an
Acceptable Intercreditor Agreement;
(l)
Liens existing on, or contractually committed or contemplated as of, the Closing Date and, with respect to each such Lien securing Indebtedness
in an aggregate committed or principal amount in excess of $250,000, described on Schedule 6.02 and any modification, replacement,
refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired
property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section
6.01 and (B) proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood
that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross- collateralized to
other financings of such type provided by such lender or its affiliates) and (ii) any such modification, replacement, refinancing, renewal
or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 6.01;
(m)
Liens arising out of Sale and Lease-Back Transactions permitted under Section 6.08;
(n)
Liens securing Indebtedness permitted pursuant to Section 6.01(m); provided that any such Lien shall encumber only the asset acquired,
constructed, repaired, replaced or improved with the proceeds of such Indebtedness and proceeds and products thereof, replacements, accessions
or additions thereto and improvements thereon and customary security deposits with respect thereto (it being understood that individual
financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other financings
of such type provided by such lender or its affiliates);
(o)
Liens securing Indebtedness permitted pursuant to Section 6.01(n) on the relevant acquired assets or on the Capital Stock and
assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets
(other than the proceeds or products thereof, replacements, accessions or additions thereto and improvements thereon, it being understood
that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other
financings of such type provided by such lender or its affiliates) or (y) was created in contemplation of the applicable acquisition
of assets or Capital Stock;
(p)
(i) Liens that are contractual rights of set-off or netting relating to (A) the establishment of depositary relations with banks or
other financial institutions not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of
the Borrower and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of the Borrower and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with
customers of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (D) commodity trading or other
brokerage accounts incurred in the ordinary course of business, (ii) Liens encumbering reasonable customary initial deposits and
margin deposits, (iii) bankers Liens and rights and remedies as to Deposit Accounts or similar accounts, (iv) Liens of a collection
bank arising under Section 4-208 or Section 4-210 of the UCC on items in the ordinary course of business, (v) Liens (including
rights of set-off) in favor of banking or other financial institutions arising as a matter of Law or under customary general terms
and conditions encumbering deposits or other funds maintained with a financial institution and that are within the general
parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions
and (vi) Liens on the proceeds of any Indebtedness permitted hereunder incurred in connection with any transaction permitted
hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the
application of such proceeds to finance such transaction or on Cash or Cash Equivalents set aside at the time of the incurrence of
such Indebtedness to the extent such Cash or Cash Equivalents prefund the payment of interest or fees on such Indebtedness and are
held in escrow pending application for such purpose;
(q)
Liens on assets and Capital Stock of Restricted Subsidiaries that are not Loan Parties (including Capital Stock owned by such Persons)
securing Indebtedness or other obligations of Restricted Subsidiaries that are not Loan Parties permitted pursuant to Section 6.01
(or not prohibited under this Agreement);
(r)
Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement
or similar agreements entered into in the ordinary course of business of the Borrower and/or its Restricted Subsidiaries;
(s)
Liens disclosed in any Mortgage Policy delivered pursuant to Section 5.12 with respect to any Material Real Estate Asset, provided
such Liens do not, in the aggregate, materially interfere with the use of such Material Real Estate Asset, and any replacement, extension
or renewal of any such Lien; provided that no such replacement, extension or renewal Lien shall cover any property other than
the property that was subject to such Lien prior to such replacement, extension or renewal (and additions thereto, improvements thereon
and the proceeds thereof);
(t)
Liens securing Indebtedness incurred pursuant to Sections 6.01(x) and (z); provided that, if any such Lien is on Collateral,
the holders of such Indebtedness (or a representative thereof) shall be party to an Acceptable Intercreditor Agreement;
(u)
other Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed
the greater of $60,000,000 and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v)
(i) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating
to litigation being contested in good faith not constituting an Event of Default under Section 7.01(h) and (ii) any cash deposits
securing any settlement of litigation;
(w)
(i) leases, licenses, subleases, sublicenses or cross-licenses granted to others, (ii) assignments of IP Rights granted to a customer
of the Borrower or any Restricted Subsidiary in the ordinary course of business which do not secure any Indebtedness or (iii) the rights
reserved or vested in any Person (including any Governmental Authority) by the terms of any lease, license, franchise, grant or permit
held by the Borrower or any of the Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise,
grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(x)
Liens on Securities or other assets that are the subject of repurchase agreements constituting Investments permitted under Section
6.06 arising out of such repurchase transaction;
(y)
Liens securing obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments
permitted under Sections 6.01(d), (e), (g), (aa) and (cc);
(z)
Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any assets or property
and bailee arrangements in the ordinary course of business and permitted by this Agreement or (ii) by operation of law under Article
2 of the UCC (or any similar Requirement of Law of any jurisdiction);
(aa)
Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan
Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 6.01
or Section 6.09;
(bb)
Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(cc)
Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect
of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or goods;
(dd)
Liens securing (i) obligations under Hedge Agreements in connection with any Derivative Transaction of the type described in Section
6.01(s), (ii) obligations of the type described in Section 6.01(f) and/or (iii) obligations of the type described in Section 6.01(r),
which Liens (A) in each case under this Section 6.02(dd), may be (but are not required to be) secured by all of the Collateral
so long as the Lien on the Collateral is subject to an Acceptable Intercreditor Agreement and (B) in the case of clause (iii)
(to the extent not secured as provided in clause (A)), may consist of pledges of Cash collateral in an amount not to exceed the
greater of $15,000,000 and 11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(ee)
(i) Liens on Capital Stock of Joint Ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such
Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect
to non-Wholly-Owned Subsidiaries;
(ff)
Liens on cash or Cash Equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
(gg)
Liens permitted to remain outstanding following the Closing Date pursuant to the terms of the Acquisition Agreement (including liens
on cash or Cash Equivalents backstopping any letters of credit existing on the Closing Date) and any replacements, refinancings or renewals
thereof, so long as no such replacement, refinancings or renewal thereof increases the amount of such Lien except as otherwise permitted
by this Section 6.02;
(hh)
Liens on assets not constituting Collateral (x) securing obligations in an aggregate outstanding principal amount not to exceed the greater
of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period or (y) so long as the
Obligations in respect of the Credit Facilities are secured on a ratable basis (without regard to the control of remedies) with or prior
to the obligations so secured for so long as such obligations are so secured (which Liens, in the case of this clause (y), shall be subject
to an Acceptable Intercreditor Agreement);
(ii)
Liens on Receivables Facility Assets incurred in connection with a Receivables Facility;
(jj)
undetermined or inchoate Liens, rights of distress and charges incidental to current operations that have not at such time been filed
or exercised, or which relate to obligations not due or payable or if due, the validity of such Liens are being contested in good faith
by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in
accordance with GAAP;
(kk)
with respect to any Foreign Subsidiary, Liens and privileges arising mandatorily by any Requirement of Law; provided such Liens and privileges
extend only to the assets or Capital Stock of such Foreign Subsidiary;
(ll)
ground leases or subleases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries
are located;
(mm)
Liens that are customary in the business of the Borrower and its Restricted Subsidiaries and that do not secure debt for borrowed
money;
(nn)
security given to a public or private utility or any Governmental Authority as required in the ordinary course of business;
(oo)
receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on
the related inventory and proceeds;
(pp)
Liens arising pursuant to Section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act or similar
provision of any applicable law;
(qq)
Liens in the nature of the right of setoff in favor of counterparties to contractual agreements with the Borrower or any Restricted Subsidiary
in the ordinary course of business;
(rr)
Liens granted pursuant to a security agreement between the Borrower or any Restricted Subsidiary and a licensee of IP Rights to secure
the damages, if any, incurred by such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization
or similar proceeding with respect to the Borrower or such Restricted Subsidiary;
(ss)
Liens arising solely in connection with rights of dissenting equity holders pursuant to any Requirement of Law in respect of the Transactions,
any Permitted Acquisition or other similar Investment;
(tt)
Liens arising under the iStar Sale/Leaseback Documents, the iStar Sale/Leaseback 2014 Documents, the iStar Exchange Documents or the
Excluded Property Transaction Documents, including options, whether or not then exercisable, to purchase Bowling Equipment of the Borrower
and/or one or more of its Subsidiaries, and letters of credit to secure the obligations of the Borrower or any applicable Restricted
Subsidiary thereunder;
(uu)
Liens on (x) any Excluded Property or (y) any other real property acquired after the Closing Date and not subject (or required to be
subject) to a Mortgage, provided that the aggregate amount of the obligations secured at any one time by such Liens pursuant to this
clause (y) does not exceed $50,000,000; and
(vv)
Liens deemed to exist in connection with repurchase obligations permitted to be incurred pursuant to Section 6.01(nn).
Section
6.03. No Further Negative Pledges. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries that are Loan
Parties to, enter into any agreement prohibiting in any material respect the creation or assumption of any Lien upon any of its properties
(other than Excluded Assets), whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to the Obligations,
except with respect to:
(a)
restrictions relating to any asset (or all of the assets) of and/or the Capital Stock of the Borrower and/or any Restricted Subsidiary
which are imposed pursuant to an agreement entered into in connection with any Disposition or other transfer, lease or license of such
asset (or assets) and/or all or a portion of the Capital Stock of the relevant Person that is permitted by this Agreement;
(b)
restrictions contained in the Loan Documents, any then extant Second Lien Facility, any Incremental Equivalent Debt, any Receivables
Facility (limited to the assets securing the Indebtedness arising thereunder) or any Additional Letter of Credit Facility (limited to
the assets securing the Indebtedness arising thereunder) (and clause (p) of Section 6.01 to the extent relating to any extension, refinancing,
refunding or replacement of any of the foregoing);
(c)
restrictions contained in any documentation governing any other Indebtedness permitted by Section 6.01 to the extent such restrictions
(1)(x) are, taken as a whole, in the good-faith judgment of the Borrower, not materially more restrictive as concerning the Borrower
or any Restricted Subsidiary than customary market terms for Indebtedness of such type or (y) are not materially more restrictive, taken
as a whole, than the restrictions contained in this Agreement (as determined by the Borrower in good faith) and (2) will not materially
impair the Borrower’s obligation or ability to make any payments required hereunder (as determined by the Borrower in good faith);
(d)
restrictions by reason of customary provisions restricting assignments, subletting or other transfers (including the granting of any
Lien) contained in leases, subleases, licenses, sublicenses, asset sale agreements and other agreements entered into in the ordinary
course of business (provided that such restrictions are limited to the relevant leases, subleases, licenses, sublicenses, asset
sale or other agreements and/or the property or assets secured by such Liens or the property or assets subject to such leases, subleases,
licenses, sublicenses, asset sale or other agreements, as the case may be);
(e)
Permitted Liens and restrictions in the agreements relating thereto that limit the right of the Borrower or any of its Restricted Subsidiaries
to Dispose of or encumber the assets subject to such Liens;
(f)
provisions limiting the Disposition, distribution or encumbrance of assets or property in joint venture agreements, sale and lease-back
agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject
of such agreements (or the Persons the Capital Stock of which is the subject of such agreement (or any “shell company” parent
with respect thereto));
(g)
any encumbrance or restriction assumed in connection with an acquisition of the property or Capital Stock of any Person, so long as such
encumbrance or restriction relates solely to the Person and its subsidiaries (including the Capital Stock of the relevant Person or Persons)
and/or property so acquired (or to the Person or Persons (and its or their subsidiaries) bound thereby) and was not created solely in
connection with or in anticipation of such acquisition;
(h)
restrictions imposed by customary provisions in partnership agreements, limited liability company organizational governance documents,
joint venture agreements and other similar agreements that restrict the transfer of the assets of, or ownership interests in, the relevant
partnership, limited liability company, joint venture or any similar Person (or any “shell company” parent with respect thereto);
(i)
restrictions on Cash or other deposits permitted under Section 6.02 and/or 6.06 and any net worth requirements, including
such restrictions or requirements imposed by Persons under contracts entered into in the ordinary course of business or for whose benefit
such Cash or other deposits or net worth requirements exist;
(j)
restrictions (i) set forth in documents which exist on the Closing Date or (ii) which are contemplated as of the Closing Date and, in
the case of this clause (ii), as set forth on Schedule 6.03;
(k)
restrictions contained in documents governing Indebtedness of any Restricted Subsidiary that is not a Loan Party permitted
hereunder;
(l)
[reserved];
(m)
provisions restricting the granting of a security interest in IP Rights contained in licenses, sublicenses or cross-licenses by the Borrower
and its Restricted Subsidiaries of such IP Rights, which licenses, sublicenses and cross-licenses were entered into in the ordinary course
of business (in which case such restriction shall relate only to such IP Rights);
(n)
restrictions arising under or as a result of applicable Requirements of Law or the terms of any license, authorization, concession or
permit issued or granted by a Governmental Authority;
(o)
restrictions with respect to a Restricted Subsidiary that was previously an Unrestricted Subsidiary, pursuant to or by reason of an agreement
that such Restricted Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary;
provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and
any such restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets
and property of such Subsidiary;
(p)
customary restrictions imposed in connection with any Receivables Facility or similar transaction permitted hereunder;
(q)
restrictions contained in the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents as in effect on the date of this
Agreement, and restrictions contained in any iStar Exchange Documents or Excluded Property Transaction Documents; and
(r)
other restrictions or encumbrances imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing of the contracts, instruments or obligations referred to in clauses (a) through (q) above; provided
that no such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good
faith judgment of the Borrower, more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than those
in effect prior to the relevant amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Section
6.04. Restricted Payments; Certain Payments of Indebtedness.
(a)
The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i)
the Borrower may make Restricted Payments to the extent necessary to permit any Parent Company:
(A)
to pay general operating and compliance costs and expenses (including corporate overhead, legal or similar expenses and customary salary,
bonus and other benefits payable to directors, officers, employees, members of management, managers and/or consultants of any Parent
Company), in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable
and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent
Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance
of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent
Company other than the Borrower and/or its subsidiaries), the Borrower and/or its subsidiaries;
(B)
to pay franchise, excise and similar Taxes, and other fees, Taxes and expenses, required to maintain the organizational existence of
such Parent Company;
(C)
to pay customary salary, bonus, long-term incentive, severance and other benefits (including payment to certain service providers of
the Borrower or its Subsidiaries pursuant to any equity plan (whether in the form of options, cash settled options or otherwise)) payable
to Permitted Payees, as well as applicable employment, social security or similar taxes in connection therewith, to the extent such salary,
bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Borrower and/or its subsidiaries,
in each case, so long as such Parent Company applies the amount of any such Restricted Payment for such purpose;
(D)
to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but
excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary
of any Parent Company other than the Borrower and/or its subsidiaries), the Borrower and its subsidiaries;
(E)
for the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the
portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than
the Borrower and/or its subsidiaries), the Borrower and its subsidiaries;
(F)
to pay (x) fees and expenses related to any debt and/or equity offerings (including refinancings), investments and/or acquisitions
permitted or not restricted by this Agreement (whether or not consummated, and including advisory, refinancing, subsequent
transaction and exit fees of any Parent Company of the Borrower) and expenses and indemnities of any trustee, agent, arranger,
underwriter or similar role and (y) after the consummation of an initial public offering or the issuance of debt securities, Public
Company Costs; and
(G)
to finance any Investment permitted under Section 6.06 as if such Parent Company were subject to Section 6.06 (provided
that (x) any Restricted Payment under this clause (a)(i)(G) shall be made substantially concurrently with the closing or consummation
of such Investment or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection
therewith and (y) the relevant Parent Company shall, promptly following the closing or consummation thereof or at future times as may
be scheduled at the time of such closing or consummation to be made thereafter in connection therewith, cause (I) all property acquired
to be contributed to the Borrower or one or more of its Restricted Subsidiaries or (II) the merger, consolidation or amalgamation of
the Person formed or acquired into the Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment
in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Borrower or the
relevant Restricted Subsidiary);
(ii)
the Borrower may pay (or make Restricted Payments to allow any Parent Company to pay) for the repurchase, redemption, retirement or other
acquisition or retirement for value of Capital Stock of any Parent Company or any subsidiary held by any Permitted Payee:
(A)
in accordance with the terms of promissory notes issued pursuant to Section 6.01(o), so long as the aggregate amount of all Cash
payments made in respect of such promissory notes, together with the aggregate amount of Restricted Payments made pursuant to sub-clause
(D) of this clause (ii) below, (1) does not exceed the greater of $5,500,000 and 4% of Consolidated Adjusted EBITDA as of
the last day of the most recently ended Test Period (which amount shall, following a Qualifying IPO, increase to the greater of $7,500,000
and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period) in any Fiscal Year, which, if not used
in any Fiscal Year, may be carried forward to subsequent Fiscal Years (until so applied)) minus (2) any utilization of the Available
RP Capacity Amount in reliance on unused capacity under clause (D) below; plus
(B)
with the proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock of the Borrower or any
Parent Company (to the extent such proceeds are contributed to the Borrower or any Restricted Subsidiary in respect of Qualified Capital
Stock issued by the Borrower or such Restricted Subsidiary) (other than amounts constituting a Cure Amount or an Available Excluded Contribution
Amount); plus
(C)
with the net proceeds of any key-man life insurance policies; plus
(D)
with Cash and Cash Equivalents in an amount not to exceed, together with the aggregate amount of all cash payments made pursuant to sub-clause
(A) of this clause (ii) in respect of promissory notes issued pursuant to Section 6.01(o), (1) the greater of
$5,500,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (which amount shall,
following a Qualifying IPO, increase to the greater of $7,500,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the
most recently ended Test Period) in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to subsequent
Fiscal Years (until so applied) minus (2) any utilization of the Available RP Capacity Amount in reliance on unused capacity under
the immediately preceding clause (1); plus
(E)
with the amount of any Cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of Capital
Stock of the Borrower or any Parent Company pursuant to any compensation arrangement, including any deferred compensation plan;
(iii)
the Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on
such date that the Borrower elects to apply to this clause (iii)(A) plus (B) the portion, if any, of the Available
Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B) (plus, without
duplication of amounts referred to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property
or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Available Excluded
Contribution Amounts up to the amount of such Available Excluded Contribution Amount, less any application thereof under Sections
6.04(b)(vi) or 6.06(r));
(iv)
the Borrower may make Restricted Payments (i) to any Parent Company to enable such Parent Company to (A) make Cash payments in lieu of
the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable
for Capital Stock of such Parent Company, dividends, share splits, reverse share splits (or any combination thereof) and, mergers, consolidations,
amalgamations or other business combinations, and acquisitions and other Investments permitted hereunder and/or (B) honor any conversion
request by a holder of convertible Indebtedness, make any cash payments in lieu of fractional shares in connection with any conversion
and make payments on convertible Indebtedness in accordance with its terms and (ii) consisting of (A) payments made or expected to be
made in respect of withholding or similar Taxes payable by any Permitted Payee and/or (B) repurchases of Capital Stock in consideration
of the payments described in sub clause (A) above, including demand repurchases in connection with the exercise of stock options
and the issuance of restricted stock units or similar stock based awards;
(v)
the Borrower may repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in connection with), or
make Restricted Payments to any Parent Company to enable it to repurchase, redeem, acquire or retire Capital Stock upon (or make provisions
for withholdings in connection with), the exercise of warrants, options or other securities convertible into or exchangeable for Capital
Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants,
options or other securities convertible into or exchangeable for Capital Stock as part of a “cashless” exercise;
(vi)
the Borrower may make Restricted Payments the proceeds of which are applied (i) on the Closing Date, solely to effect the
consummation of the Transactions and on or about the
Amendment No. 1 Effective Date, solely to effect the consummation of the Amendment No. 1 Transactions, (ii) on and
after the Closing Date, to satisfy any payment obligations owing, or as otherwise required, under the Acquisition Agreement
(including payment of working capital and/or purchase price adjustments) and to pay Transaction Costs, in each case, with respect to
the Transactions, (iii) to satisfy obligations to direct or indirect holders of Capital Stock of the Borrower (immediately prior to
giving effect to the Transactions) in connection with, or as a result of, any working capital and/or purchase price adjustments, in
each case, with respect to the Transactions and (iv) to satisfy any settlement of claims or actions in connection with the
Transactions or to satisfy indemnity or other similar obligations in connection with the Transactions;
(vii)
following the consummation of the first Qualifying IPO, the Borrower may (or may make Restricted Payments to any Parent Company to enable
it to) make Restricted Payments with respect to any Capital Stock in an amount not to exceed (A) the greater of (x) an amount equal to
6.00% per annum of the net Cash proceeds received by or contributed to the Borrower from any Qualifying IPO and (y) an amount equal to
6.00% per annum of the Market Capitalization of the Borrower (or its direct or indirect Parent Company, as applicable) and its subsidiaries
minus (B) any utilization of the Available RP Capacity Amount in reliance on unused capacity under immediately preceding clause
(A);
(viii)
the Borrower may make Restricted Payments to (i) redeem, repurchase, defease, discharge, retire or otherwise acquire any (A) Capital
Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent
Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent
sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower or any Parent Company
to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified
Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of
the proceeds of the substantially concurrent sale or issuance (other than to the Borrower or a Restricted Subsidiary) of any Refunding
Capital Stock;
(ix)
to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other
than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other
than Section 6.09(d));
(x)
the Borrower may make additional Restricted Payments in an aggregate amount not to exceed (A) the greater of $20,000,000 and 15% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (B) any utilization of the Available RP Capacity Amount
in reliance on unused capacity under immediately preceding clause (A);
(xi)
the Borrower may pay any dividend or other distribution or consummate any redemption within 60 days after the date of the declaration
thereof or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration or notice,
the dividend, distribution or redemption contemplated by such declaration or redemption notice would have complied with the provisions
of this Section 6.04(a);
(xii)
the Borrower may make any Restricted Payment constituting the distribution or payment of Receivables Fees;
(xiii)
the Borrower may make additional Restricted Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total
Leverage Ratio would not exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default hereunder or
shall result therefrom;
(xiv)
the Borrower may make additional Restricted Payments in an amount not to exceed the amount of proceeds received by the Borrower and/or
any Restricted Subsidiary under the Representation and Warranty Insurance Policy during the term of this Agreement;
(xv)
(A) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar
income tax group for U.S. federal and/or applicable state or local income tax purposes of which a direct or indirect parent of the
Borrower is the common parent (a “Tax Group”), or for which the Borrower is a disregarded entity for U.S. federal
income tax purposes wholly-owned by a corporate parent (a “Corporate Parent”), the Borrower and each of its Subsidiaries
may make Restricted Payments (including pursuant to any Tax sharing agreement entered into by the Borrower and any of its
Subsidiaries and Comcast Corporation, a Pennsylvania corporation or its Affiliates) the proceeds of which shall be used by such
common parent to pay the portion of any consolidated, combined or similar U.S. federal, state or local income Taxes of such Tax
Group, or by the Corporate Parent to pay the portion of the U.S. federal, state or local income Taxes of such Corporate Parent, or
any franchise taxes imposed in lieu thereof, for such taxable period that are attributable to the income of the Borrower and/or its
Subsidiaries, provided that such amount shall not be greater than the amount of such U.S. federal, state or local income taxes that
would be paid (for such taxable period) by the Borrower and its Subsidiaries if the Borrower and/or such Subsidiaries had been a
stand-alone corporate taxpayer (or stand-alone group of corporate taxpayers filing on a consolidated, combined or similar basis) for
all taxable years ending after the Closing Date (taking into account any net operating loss carryforwards attributable to the
Borrower and its Subsidiaries, as the case may be) and (B) without duplication of Restricted Payments made under Section
6.04(a)(xv)(A), for any taxable period for which the Borrower is treated as a partnership for U.S. federal and/or applicable state
or local income tax purposes, the Borrower may make Restricted Payments to its equity owners at the times and in the amounts
necessary to enable such owners (and their direct or indirect owners) to pay their Tax obligations attributable to their direct or
indirect ownership interests in the Borrower in an aggregate amount equal to the product of (1) 50% (or such higher tax rate as
shall be applicable to a resident of New York City or California that indirectly owns an interest in the Borrower, taking into
account the character of the taxable income in question and the deductibility of state and local income taxes for U.S. federal
income tax purposes) and (2) the taxable income of the Borrower for such taxable year, less any cumulative taxable losses from prior
taxable years to the extent that such losses are of a character (ordinary or capital) that would permit such losses to be deducted
by the direct or indirect owners of the Borrower against the current taxable income of the Borrower allocable to such owners and
have not previously been taken into account in determining tax distributions;
(xvi)
the Borrower may make additional Restricted Payments constituting any part of a Permitted Reorganization or IPO Reorganization Transaction;
(xvii)
the Borrower may make a distribution, by dividend or otherwise, of the Capital Stock of, or debt owed to any Loan Party or any Restricted
Subsidiary by, any Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries, provided that
such Restricted Subsidiary owns no other material assets other than Capital Stock of one or more Unrestricted Subsidiaries); in each
case, other than Unrestricted Subsidiaries, the primary assets of which are Cash and/or Cash Equivalents; provided that any such
Capital Stock or debt that represents an Investment by the Borrower or any Restricted Subsidiary shall be deemed to continue to charge
(as utilization) the respective clause under Section 6.06 pursuant to which such Investment was made;
(xviii)
the Borrower may make payments and distributions to satisfy dissenters’ rights (including in connection with, or as a result of,
the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) in respect thereof),
pursuant to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 6.07;
(xix)
the Borrower may make a Restricted Payment in respect of payments made for the benefit of the Borrower or any Restricted Subsidiary to
the extent such payments could have been made by the Borrower or any Restricted Subsidiary because such payments (A) would not otherwise
be Restricted Payments and (B) would be permitted by Section 6.09; and
(xx)
the Borrower may make a Restricted Payment in respect of required withholding or similar non-U.S. Taxes with respect to any Permitted
Payee and any repurchases of Capital Stock in consideration of such payments, including deemed repurchases in connection with the exercise
of stock options or the issuance of restricted stock units or similar stock based awards.
(b)
The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any prepayment in Cash on or in respect of principal of
or interest on any Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively,
“Restricted Debt Payments”), except:
(i)
any refinancing, purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of any Restricted Debt made
by exchange for, or out of the proceeds of, Refinancing Indebtedness permitted by Section 6.01 and/or any extension, refinancing,
refunding or replacing Indebtedness permitted by Section 6.01(x);
(ii)
payments as part of, or to enable another Person to make, an “applicable high yield discount obligation” catch-up payment;
(iii)
payments of regularly scheduled principal and interest and payments of fees, expenses and indemnification obligations as and when due
(other than payments with respect to Junior Indebtedness that are prohibited by the subordination provisions thereof);
(iv)
additional Restricted Debt Payments in an aggregate amount not to exceed (A)(1) the greater of (x) $25,000,000 and (y) 19% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (2) any utilization of the Available RDP Capacity
Amount in reliance on unused capacity under immediately preceding clause (A)(1) plus (B) the Available RP Capacity Amount;
(v)
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any
Restricted Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Borrower or any Restricted Subsidiary,
(B) Restricted Debt Payments as a result of the conversion of all or any portion of any Restricted Debt into Qualified Capital Stock
of the Borrower and/or any Restricted Subsidiary or Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind
interest with respect to any Restricted Debt that is permitted under Section 6.01;
(vi)
Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the
Borrower elects to apply to this clause (vi)(A) plus (B) the portion, if any, of the Available Excluded Contribution
Amount on such date that the Borrower elects to apply to this clause (vi)(B) (plus, without duplication of amounts
previously referred to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired
after the Closing Date, if the acquisition of such property or assets was financed solely with Available Excluded Contribution
Amounts up to the amount of such Available Excluded Contribution Amount, less any application thereof under Sections
6.04(a)(iii) or 6.06(r));
(vii)
additional Restricted Debt Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total Leverage
Ratio would not exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default under Section
7.01(a) or, with respect to the Borrower, Sections 7.01(f) or (g) or shall result therefrom; and
(viii)
Restricted Debt Payments in respect of Restricted Debt permitted to be assumed pursuant to Section 6.01(n), provided that any
such Restricted Debt Payment shall be deemed an Investment and shall only be permitted to the extent there exists the ability to make
such Investment pursuant to Section 6.06 at such time.;
and
(ix)
Restricted Debt Payments made on or substantially concurrently with the Amendment No. 1 Effective Date to repay amounts outstanding under
the Second Lien Facility (and related fees and expenses).
Section
6.05. [Reserved].
Section
6.06. Investments. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make or own any
Investment in any other Person except:
(a)
Investments in assets that are Cash or Cash Equivalents, or investments that were Cash or Cash Equivalents at the time
made;
(b)
(i) Investments existing on the Closing Date in any subsidiary and any modification, replacement, renewal or extension thereof so long
as no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted
by this Section 6.06 and (ii) Investments made after the Closing Date among Holdings, the Borrower and/or one or more Restricted
Subsidiaries or in any Person that will, upon such Investment, become a Restricted Subsidiary;
(c)
Investments (i) constituting deposits, prepayments and/or other credits to suppliers or other trade counterparties, (ii) made in connection
with obtaining, maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors, suppliers,
licensors and licensees, in each case, in the ordinary course of business or, in the case of clause (iii), to the extent necessary
to maintain the ordinary course of supplies to the Borrower or any Restricted Subsidiary;
(d)
Investments in (i) any Unrestricted Subsidiary (including any Joint Venture that is an Unrestricted Subsidiary) in an aggregate
outstanding amount not to exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period and (ii) any Similar Business (including any Joint Venture engaged in a Similar Business) in an aggregate
outstanding amount not to exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period; provided that if any Investment pursuant to this clause (d)(ii) is made in any Person that is not a
Restricted Subsidiary at the date of making of such Investment and such Person becomes a Restricted Subsidiary after such date, such
Investment shall thereafter be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been made under
this clause (d);
(e)
(i) Permitted Acquisitions and (ii) Investments in Restricted Subsidiaries that are not Loan Parties in amounts required to permit such
Restricted Subsidiaries to consummate Permitted Acquisitions;
(f)
(i) Investments existing on, or contractually committed to or contemplated as of, the Closing Date and, with respect to any such
Investment in excess of $250,000, described on Schedule 6.06 and (ii) any modification, replacement, renewal or extension of
any Investment described in clause (i) above so long as no such modification, renewal or extension thereof increases the
amount of such Investment except by the terms thereof or as otherwise permitted by this Section 6.06;
(g)
Investments received in lieu of Cash in connection with any Disposition permitted by Section 6.07 or any other disposition of
assets not constituting a Disposition;
(h)
loans or advances to Permitted Payees to the extent permitted by Requirements of Law, in connection with such Person’s purchase
of Capital Stock of any Parent Company, either (i) in an aggregate principal amount not to exceed the greater of $3,000,000 and 2% of
Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period at any one time outstanding, (ii) so long as the
proceeds of such loan or advance are substantially contemporaneously contributed to the Borrower for the purchase of such Capital Stock
or (iii) so long as no Cash or Cash Equivalents are advanced in connection with such loan or advance;
(i)
Investments consisting of rebates and extensions of credit in the nature of accounts receivable or notes receivable arising from the
grant of trade credit in the ordinary course of business;
(j)
Investments consisting of (or resulting from) Indebtedness permitted under Section 6.01 (including guarantees thereof) (other
than Indebtedness permitted under Sections 6.01(b) and (h)), Permitted Liens, Restricted Payments permitted under Section
6.04 (other than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers,
consolidations, amalgamations, liquidations, windings up, dissolutions or Dispositions permitted by Section 6.07 (other than Section
6.07(a)(i) (if made in reliance on subclause (ii)(y) of the proviso thereto), Section 6.07(b) (if made in reliance
on clause (ii) of the proviso thereto), Section 6.07(c)(ii) (if made in reliance on clause (B) therein) and Section
6.07(g));
(k)
Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements
with customers, vendors, suppliers, licensors, sublicensors, licensees and sublicensees;
(l)
Investments (including debt obligations and Capital Stock) received (i) in connection with the bankruptcy, work-out, reorganization or
recapitalization of any Person, (ii) in settlement or compromise of delinquent obligations of, or other disputes with or judgments against,
customers, trade-creditors, suppliers, licensees and other account debtors arising in the ordinary course of business, including pursuant
to any plan of reorganization or similar arrangement upon bankruptcy or insolvency of any customer, trade creditor, supplier or licensee,
(iii) in satisfaction of judgments against other Persons, (iv) as a result of foreclosure with respect to any secured Investment or other
transfer of title with respect to any secured Investment and/or (v) in settlement, compromise or resolution of litigation, arbitration
or other disputes;
(m)
loans and advances of payroll payments or other compensation to present or former employees, directors, members of management, officers,
managers or consultants of any Parent Company (to the extent such payments or other compensation relate to services provided to such
Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership or operations
of any subsidiary of any Parent Company other than the Borrower and/or its subsidiaries)), the Borrower and/or any subsidiary in the
ordinary course of business;
(n)
Investments to the extent that payment therefor is made solely with Capital Stock of any Parent Company or Capital Stock (other than
Disqualified Capital Stock) of the Borrower or any Restricted Subsidiary, in each case, to the extent not resulting in a Change of Control;
(o)
(i) Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated
or amalgamated with, the Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise
permitted by this Section 6.06 to the extent that such Investments were not made in contemplation of or in connection with such
acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation
or consolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of
this Section 6.06(o) so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment
except as otherwise permitted by this Section 6.06;
(p)
Investments made in connection with the Transactions and any Investments held by the Target or its Restricted Subsidiaries on the Closing
Date and permitted to remain (or not prohibited from remaining) outstanding after the Closing Date pursuant to the terms of the Acquisition
Agreement;
(q)
Investments made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate amount at any time
outstanding not to exceed:
(i)
the greater of $50,000,000 and 37% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, plus
(ii)
the Available RP Capacity Amount plus the Available RDP Capacity Amount, plus
(iii)
in the event that (A) the Borrower or any of its Restricted Subsidiaries makes any Investment after the Closing Date in any Person that
is not a Restricted Subsidiary and (B) such Person subsequently becomes a Restricted Subsidiary, an amount equal to 100% of the fair
market value of such Investment as of the date on which such Person becomes a Restricted Subsidiary;
(r)
Investments made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount
not to exceed (i) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (r)(i)
plus (ii) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply
to this clause (r)(ii) (plus, without duplication of amounts referred to in this clause (ii), in an amount equal to the
Net Proceeds from a Disposition of property or assets acquired after the Closing Date, if the acquisition of such property or assets
was financed with Available Excluded Contribution Amounts up to the amount of such Available Excluded Contribution Amount, less any application
thereof under Sections 6.04(a)(iii) or 6.04(b)(iv));
(s)
(i) Guarantees of leases or subleases (in each case other than Capital Leases) or of other obligations not constituting Indebtedness,
(ii) Guarantees of the lease obligations of suppliers, customers, franchisees and licensees of the Borrower and/or its Restricted Subsidiaries,
in each case, in the ordinary course of business and (iii) Investments consisting of Guarantees of any supplier’s obligations in
respect of commodity contracts, including Hedge Agreements, solely to the extent such commodities related to the materials or products
to be purchased by the Borrower or any Restricted Subsidiary;
(t)
(i) Investments in any Parent Company in amounts and for purposes for which Restricted Payments to such Parent Company are permitted
under Section 6.04(a); provided that any Investment made as provided above in lieu of any such Restricted Payment shall reduce
availability under the applicable Restricted Payment basket under Section 6.04(a) and (ii) Investments consisting of loans and
advances to any Parent Company in connection with the reimbursement of expenses incurred on behalf of the Borrower or any Restricted
Subsidiary in the ordinary course of business;
(u)
Investments made by any Restricted Subsidiary that is not a Loan Party with the proceeds received by such Restricted Subsidiary from
an Investment made by any Loan Party in such Restricted Subsidiary pursuant to this Section 6.06 (other than Investments made
pursuant to clause (ii) of Section 6.06(e));
(v)
Investments in subsidiaries in connection with reorganizations and/or restructurings, including any Permitted Reorganization and/or any
IPO Reorganization Transaction, and/or activities related to tax planning (including Investments in non-Cash or non-Cash Equivalents);
provided that, after giving effect to any such reorganization, restructuring and/or related activity, the security interest of the Administrative
Agent in the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute
Collateral immediately prior to such reorganization, restructuring or tax planning activities no longer constituting Collateral) as a
result of such reorganization, restructuring or tax planning activities;
(w)
Investments arising under or in connection with any Derivative Transaction of the type permitted under Section 6.01(s);
(x)
Investments made (i) in Joint Ventures, (ii) in connection with the creation, formation and/or acquisition of any Joint Venture or (iii)
in any Restricted Subsidiary to enable such Restricted Subsidiary to create, form and/or acquire any Joint Venture, in an aggregate outstanding
amount under this clause (x) not to exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day
of the most recently ended Test Period; provided that if any Investment pursuant to this clause (x) is made in any Person that is not
a Restricted Subsidiary at the date of making of such Investment and such Person becomes a Restricted Subsidiary after such date, such
Investment shall thereafter be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been made under this
clause (x);
(y)
Investments made in joint ventures as required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth
in joint venture agreements and similar binding arrangements in effect on the Closing Date or entered into after the Closing Date in
the ordinary course of business;
(z)
unfunded pension fund and other employee benefit plan obligations and liabilities to the extent that they are permitted to remain unfunded
under applicable Requirements of Law;
(aa)
Investments in Holdings, the Borrower and/or any subsidiary in connection with intercompany cash management arrangements and related
activities in the ordinary course of business;
(bb)
Investments made in connection with any nonqualified deferred compensation plan or arrangement for any Permitted Payee;
(cc)
any Investment made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted
Subsidiary (but for the avoidance of doubt, after such subsidiary was designated as an Unrestricted Subsidiary) so long as the relevant
Investment was not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary;
(dd)
additional Investments so long as, as measured at the time provided for in Section 1.04(e), on a Pro Forma Basis, the Total
Leverage Ratio does not exceed 4.25:1.00;
(ee)
Investments consisting of the licensing or contribution of IP Rights pursuant to joint marketing, collaborations or other similar arrangements
with other Persons;
(ff)
Investments in or relating to any Receivables Subsidiary that, in the good faith determination of the Borrower, are necessary or advisable
to effect a Receivables Facility or any repurchases in connection therewith (including Investments of funds held in accounts permitted
or required by the arrangements governing such Receivables Facility or any related Indebtedness);
(gg)
the conversion to Qualified Capital Stock of any Indebtedness owed by the Borrower or any Restricted Subsidiary and permitted by Section
6.01;
(hh)
Restricted Subsidiaries of the Borrower may be established or created if the Borrower and such Restricted Subsidiary comply with the
requirements of Section 5.12, if applicable; provided that, in each case, to the extent such new Restricted Subsidiary
is created solely for the purpose of consummating a transaction pursuant to an acquisition or other Investment permitted by this Section
6.06, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any acquisition or Investment consideration
contributed to it contemporaneously with the closing of such transaction, such new Restricted Subsidiary shall not be required to take
the actions set forth in Section 5.12 until the respective acquisition is consummated (at which time the surviving entity of the
respective transaction shall be required to so comply in accordance with the provisions thereof);
(ii)
contributions in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners,
members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the
case of a bankruptcy of the Borrower or any of its Restricted Subsidiaries;
(jj)
Investments by Loan Parties in any Restricted Subsidiary that is not a Loan Party so long as such Investment is part of a series of simultaneous
Investments by the Borrower and the Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the intercompany
Investment being invested in one or more Loan Parties;
(kk)
Investments consisting of earnest money deposits required in connection with purchase agreements or other acquisitions or Investments
otherwise permitted under this Section 6.06 and any other pledges or deposits permitted by Section 6.02;
(ll)
Term Loans repurchased by Holdings, the Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance
with this Agreement and, to the extent permitted (or not prohibited) by Section 6.04(b), loans repurchased by the Borrower or
a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance with the terms of any other Indebtedness;
(mm)
Guarantee obligations of the Borrower or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations
issued, made or incurred for the benefit of any Restricted Subsidiary of the Borrower to the extent required by law or in connection
with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;
(nn)
purchases and acquisitions of inventory, supplies, materials, services, equipment or similar assets in the ordinary course of business;
and
(oo)
Investments pursuant to, in connection with, or made with the proceeds of any Excluded Property Transaction and/or any iStar
Exchange.
Section
6.07. Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries
to, enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves (or suffer any
liquidation or dissolution), or make any Disposition of assets having a fair market value in excess of $5,000,000, in a single transaction
or in a series of related transactions, and in excess of $10,000,000 in the aggregate for all such transactions in any Fiscal Year, except:
(a)
any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary; provided
that (i) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (A) the Borrower shall be the continuing
or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation (including any immediate
and successive mergers, consolidations or amalgamations of entities) is not the Borrower (any such Person after giving effect to such
transaction or transactions, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or
existing under the law of the U.S., any state thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume
the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (3) except as the Administrative
Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed
and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being
understood and agreed that if the foregoing conditions under clauses (1) through (3) are satisfied, the Successor Borrower
will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (ii) in the case of any
such merger, consolidation or amalgamation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing
or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Subsidiary Guarantor
in a manner reasonably satisfactory to the Administrative Agent or (y) the relevant transaction shall be treated as an Investment and
otherwise be made in compliance with Section 6.06;
(b)
Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise);
provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value
(as determined by such Person in good faith) or (ii) treated as an Investment and otherwise be made in compliance with Section 6.06
(other than in reliance on clause (j) thereof);
(c)
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution
is in the best interests of the Borrower, is not materially disadvantageous to the Lenders, and the Borrower or any Restricted Subsidiary
receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation
or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such
distribution shall be treated as an Investment and shall otherwise be made in compliance with Section 6.06 (other than in reliance
on clause (j) thereof); (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect
(A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c))
or (B) any Investment permitted under Section 6.06; and (iii) the Borrower or any Restricted Subsidiary may be converted into
another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral,
taken as a whole;
(d)
(x) Dispositions of inventory or goods held for sale, equipment or other assets in the ordinary course of business (including on an intercompany
basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e)
Dispositions of surplus, obsolete, used or worn out property or other property that, in the good faith judgment of the Borrower, is (A)
no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable
or not commercially reasonable to maintain;
(f)
Dispositions of Cash and/or Cash Equivalents or other assets that were Cash and/or Cash Equivalents when the relevant original Investment
was made;
(g)
Dispositions, mergers, amalgamations, consolidations or conveyances that constitute (or are made in order to effectuate) Investments
permitted pursuant to Section 6.06 (other than Section 6.06(j)), Permitted Liens, Restricted Payments permitted by Section
6.04(a) (other than Section 6.04(a)(ix)) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h)
Dispositions for fair market value; provided that with respect to (1) any single Disposition transaction with respect to
assets having a fair market value in excess of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last day
of the most recently ended Test Period or (2) any other Disposition transactions with respect to assets having a fair market value
in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period, for all such transactions on an aggregate basis in any Fiscal Year, at least 75% of the consideration for such Disposition,
shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (v) the
amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the
Obligations or that are owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on
such Person’s most recent balance sheet (or in the notes thereto), or if the incurrence of such Indebtedness or other
liability took place after the date of such balance sheet, that would have been shown on such balance sheet or in the notes thereto,
as determined in good faith by the Borrower) that are (i) assumed by the transferee of any such assets and for which the Borrower
and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing or (ii) otherwise
cancelled or terminated in connection with such Disposition, (w) the amount of any trade-in value applied to the purchase price of
any replacement assets acquired in connection with such Disposition, (x) any Securities or other obligations or assets received by
the Borrower or any Restricted Subsidiary from such transferee (including earn-outs or similar obligations) that are converted by
such Person into Cash or Cash Equivalents, or by their terms are required to be satisfied for Cash or Cash Equivalents (to the
extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (y) any
Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with
all other Designated Non-Cash Consideration received pursuant to this clause (y) and clause (C)(z) of the proviso to Section
6.08 that is at that time outstanding, not in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of
the last day of the most recently ended Test Period, in each case shall be deemed to be Cash); provided, further, that the
Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section
2.11(b)(ii);
(i)
to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii)
the proceeds of the relevant Disposition are promptly (or within 180 days) applied to the purchase price of such replacement property;
(j)
Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture
or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(k)
Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness
thereof) or in connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(l)
Dispositions and/or terminations of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses (including the provision
of software under any open source license), the Dispositions or terminations of which (i) do not materially interfere with the business
of the Borrower and its Restricted Subsidiaries, (ii) relate to closed facilities or the discontinuation of any product line or (iii)
are made in the ordinary course of business;
(m)
(i) any termination of any lease, sublease, license or sub-license in the ordinary course of business (and any related Disposition of
improvements made to leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal
property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation
claims (including in tort) in the ordinary course of business;
(n)
Dispositions of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain or condemnation proceedings
(including in lieu thereof or any similar proceeding);
(o)
Dispositions or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property) with
respect to facilities that are temporarily not in use, held for sale or closed;
(p)
the Transactions and any Dispositions in connection with the Transactions;
(q)
Dispositions of non-core assets and sales of Real Estate Assets, in each case acquired in any acquisition or other Investment permitted
hereunder, (x) which Disposition or sale is required to obtain the approval of any anti-trust authority or (y) which, within 120 days
of the date of such acquisition or Investment, are designated in writing to the Administrative Agent as being held for sale and not for
the continued operation of the Borrower or any of its Restricted Subsidiaries or any of their respective businesses;
(r)
exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign
jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as determined by the Borrower in
good faith) for like property or assets or property, assets or services of greater value or usefulness to the business of the
Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Borrower; provided that upon the
consummation of any such exchange or swap by any Loan Party, to the extent the property received does not constitute an Excluded
Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the property or assets so exchanged
or swapped;
(s)
Dispositions of assets that do not constitute Collateral having a fair market value of not more than, in any Fiscal Year, the greater
of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(t)
(i) licensing and cross-licensing (including sub-licensing) arrangements involving any technology, intellectual property or IP Rights
of the Borrower or any Restricted Subsidiary in the ordinary course of business, (ii) Dispositions, abandonments, cancellations or lapses
of IP Rights or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the good faith determination
of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical
to maintain in light of its use and (iii) Dispositions of any technology, intellectual property or other IP Rights of the Borrower or
any Restricted Subsidiary involving their customers in the ordinary course of business;
(u)
terminations or unwinds of Derivative Transactions;
(v)
Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w)
Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for
directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted
Subsidiary;
(x)
Dispositions made to comply with any order or other directive of any Governmental Authority or any applicable Requirement of
Law;
(y)
any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary
in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z)
Dispositions constituting any part of a Permitted Reorganization and/or an IPO Reorganization Transaction;
(aa)
any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(bb)
other Dispositions involving assets having a fair market value of not more than, in any Fiscal Year, the greater of $15,000,000 and
11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, which amounts if not used in any
Fiscal Year may be carried forward to the next succeeding Fiscal Year (with such carried over amount deemed first applied in such
succeeding Fiscal Year), in any event not to exceed, in any Fiscal Year, the greater of $30,000,000 and 22% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period;
(cc)
Dispositions contemplated on the Closing Date and described on Schedule 6.07 hereto;
(dd)
Dispositions or discounts of accounts receivable, or participations therein, or other rights to payment and related assets in connection
with any Receivables Facility;
(ee)
the Borrower and the Restricted Subsidiaries may issue, sell or dispose of Capital Stock to directors, officers, managers or employees
for purposes of (i) satisfying requirements with respect to directors’ qualifying shares and shares issued to foreign nationals,
in each case as required by applicable Requirements of Law and (ii) satisfying applicable Requirements of Law with respect to Liquor
License Subsidiaries;
(ff)
the Borrower and the Restricted Subsidiaries may enter into any netting arrangement of accounts receivable between or among the Borrower
and its Restricted Subsidiaries or among Restricted Subsidiaries of the Borrower made in the ordinary course of business;
(gg)
[reserved];
(hh)
any merger, consolidation, liquidation, wind-up or dissolution by one or more Restricted Subsidiaries in order to effectuate an iStar
Exchange, Excluded Property Transaction or any Sale and Lease-Back Transaction permitted hereunder;
(ii)
the sale, lease, transfer or other Disposition of any Excluded Property or consummation of any iStar Exchange by the Borrower or any
Restricted Subsidiaries;
(jj)
Dispositions of Bowling Equipment pursuant to the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback 2014 Documents by the Borrower
or any Restricted Subsidiaries;
(kk)
Dispositions of the Closed Sites and Closed Centers (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback
II Documents);
(ll) one or more Foreign Asset Dispositions;
(mm)
Disposition of Site #288 known as Starlite Lanes and of any EAP (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback
2014 Documents);
(nn)
(i) Dispositions in the ordinary course of business of Bowling Equipment, bowling products and other equipment used in the operation
or maintenance of bowling centers and related accessories to Foreign Subsidiaries of the Borrower for use in bowling centers operated
by such Foreign Subsidiaries and (ii) Dispositions of bowling products to Foreign Subsidiaries for resale by such Foreign Subsidiaries,
in each case at a price at least equal to the cost to the Borrower or selling subsidiary of such Bowling Equipment, bowling products,
equipment used in the operation or maintenance of bowling centers or related accessories; and
(oo)
(i) Disposition, licenses or other transfers of patents and other IP Rights, together with the goodwill associated therewith, related
solely to bowling products and the amusement products business, (ii) the granting of a royalty-free perpetual license to use certain
“AMF” trademarks only in the field of bowling and amusement products, equipment and systems and certain services related
to the foregoing and (iii) the granting of a license concerning the Pinspash trademark.
To
the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party,
such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents (which Liens shall be automatically
released upon the consummation of such Disposition) and the Administrative Agent shall be authorized to take, and shall take, any actions
reasonably requested by the Borrower or otherwise deemed appropriate in order to effect the foregoing.
Section
6.08. Sale and Lease-Back Transactions. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly
or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether
real, personal or mixed), whether now owned or hereafter acquired, which the Borrower or the relevant Restricted Subsidiary (a) has sold
or transferred or is to sell or to transfer to any other Person (other than the Borrower or any of its Restricted Subsidiaries) and (b)
intends to use for substantially the same purpose as the property which has been or is to be sold or transferred by the Borrower or such
Restricted Subsidiary to any Person (other than the Borrower or any of its Restricted Subsidiaries) in connection with such lease (such
a transaction described herein, a “Sale and Lease-Back Transaction”); provided that any Sale and Lease-Back
Transaction shall be permitted so long as either (A) the resulting Indebtedness, if any, is permitted by Section 6.01(m) or Section
6.01(z), (B) such Sale and Leaseback Transaction (i) was in existence on the Closing Date or (ii) is an iStar Sale/Leaseback (including
pursuant to an iStar Exchange), iStar Sale/Leaseback 2014 or Excluded Property Sale/Leaseback Transaction or (C) (1) such Sale and Lease-
Back Transaction is made in exchange for cash consideration (provided that for purposes of the foregoing cash consideration requirement,
(v) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations
or that are owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on such Person’s
most recent balance sheet (or in the notes thereto), or, if the incurrence of such Indebtedness or other liability took place after the
date of such balance sheet, that would have been shown on such balance sheet or in the notes thereto, as determined in good faith by
the Borrower) that are (i) assumed by the transferee of any such assets and for which the Borrower and/or its applicable Restricted Subsidiary
have been validly released by all relevant creditors in writing or (ii) otherwise cancelled or terminated in connection with the relevant
Sale and Lease Back Transaction, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired
in connection with such Disposition, (y) any Securities or other obligations or assets received by the Borrower or any Restricted Subsidiary
from such transferee (including earn-outs or similar obligations) that are converted by such Person into Cash or Cash Equivalents, or
by their terms are required to be satisfied for Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within
180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of the
relevant Sale and Lease Back Transaction having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration
received pursuant to this clause (z) and clause (y) of the proviso to Section 6.07(h) that is at that time outstanding,
not in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period, in each case shall be deemed to be Cash), (2) the Borrower or its applicable Restricted Subsidiary would otherwise be permitted
to enter into, and remain liable under, the applicable underlying lease and (3) the aggregate fair market value of the assets sold subject
to all Sale and Lease-Back Transactions under this clause (C) shall not exceed the greater of $65,000,000 and 49% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period.
Section
6.09. Transactions with Affiliates. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter
into any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) involving
payment in excess of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended
Test Period in any individual transaction with any of their respective Affiliates on terms that are substantially less favorable to
the Borrower or such Restricted Subsidiary, as the case may be (as determined by the Borrower in good faith), than those that might
be obtained at the time in a comparable arm’s-length transaction from a Person who is not an Affiliate; provided that
the foregoing restriction shall not apply to:
(a)
any transaction between or among Holdings, the Borrower and/or one or more Restricted Subsidiaries (or any entity that becomes a Restricted
Subsidiary as a result of such transaction) to the extent permitted or not restricted by this Agreement;
(b)
any issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body)
of any Parent Company or of the Borrower or any Restricted Subsidiary;
(c)
(i) any collective bargaining, employment, indemnification, expense reimbursement or severance agreement or compensatory (including profit
sharing) arrangement entered into by the Borrower or any of its Restricted Subsidiaries with any Permitted Payee, (ii) any subscription
agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with any Permitted
Payee and (iii) payments or other transactions pursuant to any management equity plan, employee compensation, benefit plan, stock option
plan or arrangement, equity holder arrangement, supplemental executive retirement benefit plan, any health, disability or similar insurance
plan, or any employment contract or arrangement which covers any Permitted Payee and payments pursuant thereto;
(d)
(i) transactions permitted by Sections 6.01(d), (o), (bb) and (ee), 6.04 and 6.06(h), (m), (o), (t), (v),
(x), (y), (z), (aa), (bb), (cc), (ff), (gg), (ii), (jj), (kk), (ll) and (mm), (ii) any Permitted Reorganization or
IPO Reorganization Transaction and (iii) issuances of Capital Stock and issuances and incurrences of Indebtedness not restricted by
this Agreement and payments pursuant thereto;
(e)
the existence of, or performance by the Borrower or any Restricted Subsidiary of its obligations under the terms of, any transaction
or agreement in existence on the Closing Date and any amendment, modification or extension thereof to the extent such amendment, modification
or extension, taken as a whole, is not (i) materially adverse to the Lenders or (ii) more disadvantageous to the Lenders than the relevant
transaction in existence on the Closing Date;
(f)
(i) so long as no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) (solely with respect to the Borrower in
the case of Section 7.01(f) and (g)) then exists or would result therefrom, the payment of management, monitoring,
consulting, advisory and similar fees to any Investor in an amount not to exceed in any Fiscal Year the greater of $3,000,000 and 1%
of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, it being understood that (x) during any
such Event of Default, such fees may continue to accrue and become payable upon the waiver, termination or cure of such Event of
Default and (y) any amount not paid in any Fiscal Year may be carried forward and paid in subsequent Fiscal Years without limitation
as to amount, but otherwise subject to the requirements of this clause (f), (ii) customary termination fees payable to the
Investors, (iii) customary compensation to Affiliates in connection with financial advisory, financing, underwriting or placement
services or in respect of other investment banking activities and other transaction fees, which are approved, or made pursuant to
arrangements approved, by the majority of the members of the board of directors (or similar governing body) or a majority of
disinterested members of the board of directors (or similar governing body) of the Borrower in good faith and (iv) the payment of
any indemnification obligations and expenses (and similar amounts) owed to any Investor and any of their respective directors,
officers, members of management, managers, employees and consultants, in each case of clauses (i), (ii), (iii) and (iv) whether
currently due or paid in respect of accruals from prior periods;
(g)
the Transactions, including the payment of Transaction Costs and payments required under the Acquisition Agreement;
(h)
any transaction or transactions approved by a majority of the disinterested members of the board of directors (or similar governing
body) of the Borrower at such time;
(i)
Guarantees permitted by Section 6.01 or Section 6.06;
(j)
loans and other transactions among the Loan Parties and their Subsidiaries, in each case to the extent permitted under this Article
6;
(k)
the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board of directors
(or similar governing body), officers, employees, members of management, managers, consultants and independent contractors of the Borrower
and/or any of its Restricted Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity
on behalf of any Parent Company, to the extent attributable to the operations of the Borrower or its subsidiaries;
(l)
transactions with customers, clients, suppliers, licensees, Joint Ventures, purchasers or sellers of goods or services or providers of
employees or other labor entered into in the ordinary course of business, which are (i) fair to the Borrower and/or its applicable Restricted
Subsidiary in the good faith determination of the board of directors (or similar governing body) of the Borrower or the senior management
thereof or (ii) on terms not substantially less favorable to the Borrower and/or its applicable Restricted Subsidiary as might reasonably
be obtained from a Person other than an Affiliate;
(m)
the payment of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to shareholders
under any shareholder agreement and the existence or performance by the Borrower or any Restricted Subsidiary of its obligations under
any such registration rights or shareholder agreement;
(n)
(i) any purchase by Holdings of the Capital Stock of (or contribution to the equity capital of) the Borrower and (ii) any intercompany
loans made by Holdings to the Borrower or any Restricted Subsidiary;
(o)
any transaction in respect of which the Borrower delivers to the Administrative Agent a letter addressed to the board of directors (or
equivalent governing body) of the Borrower from an accounting, appraisal or investment banking firm of nationally recognized standing
stating that such transaction is on terms that are not substantially less favorable to the Borrower or the applicable Restricted Subsidiary
than might be obtained at the time in a comparable arm’s length transaction from a Person who is not an Affiliate;
(p)
(i) Investments by Affiliates in Securities or other Indebtedness of the Borrower or any Restricted Subsidiary (and payment of reasonable
out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the Investment is being offered by the Borrower
or such Restricted Subsidiary generally to other investors on the same or more favorable terms and (ii) payments to Affiliates in respect
of Securities or other Indebtedness of the Borrower or any Restricted Subsidiary contemplated in the foregoing subclause (i) or that
were acquired from Persons other than the Borrower and the Restricted Subsidiaries, in each case, in accordance with the terms of such
Securities or other Indebtedness;
(q)
[reserved];
(r)
transactions undertaken in the ordinary course of business pursuant to membership in a purchasing consortium; and
(s)
any transaction in connection with the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Transaction and/or
any iStar Exchange.
Section
6.10. [Reserved].
Section 6.11. [Reserved].
Section
6.12. Amendments of or Waivers with Respect to Restricted Debt. The Borrower shall not, nor shall it permit any of its Restricted
Subsidiaries to, amend or otherwise modify the terms of any Restricted Debt (or the documentation governing any Restricted Debt) if the
effect of such amendment or modification, together with all other amendments or modifications made, is materially adverse to the interests
of the Lenders (in their capacities as such); provided that, for purposes of clarity, it is understood and agreed that the foregoing
limitation shall not otherwise prohibit any Refinancing Indebtedness or any other replacement, refinancing, amendment, supplement, modification,
extension, renewal, restatement or refunding of any Restricted Debt, in each case, that is permitted under this Agreement in respect
thereof.
Section
6.13. [Reserved].
Section
6.14. Permitted Activities of Holdings. Holdings shall not:
(a)
incur any Indebtedness for borrowed money other than (i) the Indebtedness permitted to be incurred by Holdings under the Loan Documents
and any Second Lien Facility or otherwise in connection with the Transactions, (ii) Guarantees of Indebtedness or other obligations of
the Borrower and/or any Restricted Subsidiary, which Indebtedness or other obligations are otherwise permitted hereunder, (iii) Indebtedness
owed to the Borrower or any Restricted Subsidiary otherwise permitted hereunder and (iv) any Indebtedness or other obligations arising
in respect of its Guarantee of the iStar Sale/Leaseback, iStar Sale/Leaseback 2014, any Excluded Property Transaction and any iStar Exchange;
(b)
create or suffer to exist any Lien on any property or asset now owned or hereafter acquired by it other than (i) the Liens created
under the Collateral Documents and, subject to the Intercreditor Agreement, the collateral documents relating to any Second Lien
Facility, in each case, to which it is a party, (ii) any other Lien created in connection with the Transactions, (iii) Permitted
Liens on the Collateral that are secured on a pari passu or junior basis with the Secured Obligations, so long as such
Permitted Liens secure Guarantees permitted under clause (a)(ii) above and the underlying Indebtedness subject to such
Guarantee is permitted to be secured on the same basis pursuant to Section 6.02 and (iv) Liens of the type permitted under Section
6.02 (other than in respect of Indebtedness for borrowed money not referred to in clause (a)(i) of this Section
6.13); or
(c)
engage in any material business activity or own any material assets other than (i) holding the Capital Stock of the Borrower and,
indirectly, any other subsidiary of the Borrower (and/or any Joint Venture of any thereof); (ii) performing its obligations under
the Loan Documents and any Second Lien Facility and other Indebtedness, Liens (including the granting of Liens) and Guarantees
permitted hereunder; (iii) issuing its own Capital Stock (including, for the avoidance of doubt, the making of any dividend or
distribution on account of, or any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value
of, any shares of any class of Capital Stock permitted hereunder); (iv) filing Tax reports and paying Taxes, including Tax
distributions made pursuant to Section 6.04(a)(xv) and other customary obligations in the ordinary course (and contesting any
Taxes); (v) preparing reports to Governmental Authorities and to its shareholders; (vi) holding director and shareholder meetings,
preparing organizational records and other organizational activities required to maintain its separate organizational structure or
to comply with applicable Requirements of Law; (vii) effecting any initial public offering of its Capital Stock; (viii) holding (A)
Cash, Cash Equivalents and other assets received in connection with permitted distributions or dividends received from, or permitted
Investments or permitted Dispositions made by, any of its subsidiaries or permitted contributions to the capital of, or proceeds
from the issuance of Capital Stock of, Holdings pending the application thereof and (B) the proceeds of Indebtedness permitted by Section
6.01; (ix) providing indemnification for its officers, directors, members of management, employees and advisors or consultants;
(x) participating in tax, accounting and other administrative matters; (xi) making payments of the type permitted under Section
6.09(f) and the performance of its obligations under any document, agreement and/or Investment contemplated by the
Transactions, the Amendment No. 1 Transactions or otherwise
not prohibited under this Agreement; (xii) complying with applicable Requirements of Law (including with respect to the maintenance
of its existence); (xiii) [reserved]; (xiv) repurchases of Indebtedness through open market purchases and/or Dutch Auctions
permitted hereunder; (xv) activities incidental to Permitted Acquisitions or similar Investments consummated by the Borrower and/or
any Restricted Subsidiaries, including the formation of acquisition vehicle entities and intercompany loans and/or Investments
incidental to such Permitted Acquisitions or similar Investments; (xvi) consummating the Holdings Reorganization Transaction, any
Permitted Reorganization or any IPO Reorganization Transaction; (xvii) the maintenance of its legal existence (including the ability
to incur and pay, as applicable, fees, costs and expenses and taxes related to such maintenance), (xviii) activities incidental or
reasonably related to any of the foregoing and (xvii) any transaction expressly permitted pursuant to clauses (a), (b) and/or (d)
of this Section 6.14; or
(d)
consolidate or amalgamate with, or merge with or into, or convey, sell or otherwise transfer all or substantially all of its assets
to, any Person; provided that, so long as no Event of Default exists or would result therefrom, (A) Holdings may consolidate
or amalgamate with, or merge with or into, any other Person (other than the Borrower and any of its subsidiaries) so long as (i)
Holdings is the continuing or surviving Person or (ii) if the Person formed by or surviving any such consolidation, amalgamation or
merger is not Holdings, (x) the successor Person expressly assumes all obligations of Holdings under this Agreement and the other
Loan Documents to which Holdings is a party pursuant to a supplement hereto and/or thereto in a form reasonably satisfactory to the
Administrative Agent and (y) the Borrower delivers a certificate of a Responsible Officer with respect to the satisfaction of the
conditions set forth in clause (x) of this clause (A)(ii) and (B) Holdings may (1) consummate the Holdings
Reorganization Transaction and/or (2) otherwise convey, sell or otherwise transfer all or substantially all of its assets to any
other Person (other than the Borrower and any of its subsidiaries) so long as (x) no Change of Control results therefrom, (y) the
Person acquiring such assets expressly assumes all of the obligations of Holdings under this Agreement and the other Loan Documents
to which Holdings is a party pursuant to a supplement hereto and/or thereto in a form reasonably satisfactory to the Administrative
Agent and (z) the Borrower delivers a certificate of a Responsible Officer with respect to the satisfaction of the conditions under clause
(x) set forth in this clause (B); provided, further, that (1) if the conditions set forth in the preceding proviso are
satisfied, the successor to Holdings will succeed to, and be substituted for, Holdings under this Agreement, (2) it is understood
and agreed that Holdings may convert into another form of entity so long as such conversion does not adversely affect the value of
the Collateral pledged by Holdings, taken as a whole and (3) notwithstanding anything to the contrary in this Section 6.14,
nothing herein shall preclude Holdings from consummating any Permitted Reorganization or IPO Reorganization Transaction.
Section
6.15. Financial Covenant.
(a)
First Lien Leverage Ratio. On the last day of any Test Period ending on or after the last day of the first full Fiscal Quarter
ending after the Closing Date on which the Revolving Facility Test Condition is then satisfied, the Borrower shall not permit the First
Lien Leverage Ratio to be greater than 6.25:1.00, stepping-down to a First Lien Leverage Ratio of 6.00:1.00 for the Fiscal Quarter ended
on or about September 30, 2020 and thereafter.
(b) Financial
Cure. Notwithstanding anything to the contrary in this Agreement (including Article 7), if the Borrower reasonably
expects to fail (or has failed) to comply with Section 6.15(a) above for any Fiscal Quarter, the Borrower shall have the
right (the “Cure Right”) (at any time during such Fiscal Quarter or thereafter until the date that is 10 Business
Days after the date on which financial statements for such Fiscal Quarter are required to be delivered pursuant to Section
5.01(a) or (b), as applicable) to issue equity (which shall be common equity, Qualified Capital Stock or other equity
(such other equity to be on terms reasonably acceptable to the Administrative Agent)) for Cash or otherwise receive Cash
contributions in respect of Qualified Capital Stock (the “Cure Amount”), and thereupon the Borrower’s
compliance with Section 6.15(a) shall be recalculated giving effect to the following pro forma adjustment: Consolidated
Adjusted EBITDA shall be increased (notwithstanding the absence of a related addback in the definition of “Consolidated
Adjusted EBITDA”), solely for the purpose of determining compliance with Section 6.15(a) as of the end of such Fiscal
Quarter and for applicable subsequent periods that include such Fiscal Quarter, by an amount equal to the Cure Amount. If, after
giving effect to the foregoing recalculation (but not, for the avoidance of doubt, except as expressly set forth below, taking into
account any immediate repayment of Indebtedness in connection therewith), the requirements of Section 6.15(a) would be
satisfied, then the requirements of Section 6.15(a) shall be deemed satisfied as of the end of the relevant Fiscal Quarter
with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section
6.15(a) that had occurred (or would have occurred) shall be deemed cured for the purposes of this Agreement. Notwithstanding
anything herein to the contrary, (i) in each four consecutive Fiscal Quarter period there shall be at least two Fiscal Quarters
(which may, but are not required to be, consecutive) in which the Cure Right is not exercised, (ii) during the term of this
Agreement, the Cure Right shall not be exercised more than five times, (iii) the Cure Amount shall be no greater than the amount
required for the purpose of complying with Section 6.15(a) (or to be in pro forma compliance with any financial covenant with
respect to any other Indebtedness that is being cured), (iv) upon the Administrative Agent’s receipt of a written
notice from the Borrower that the Borrower intends to exercise the Cure Right (a “Notice of Intent to Cure”),
until the 10th Business Day following the date on which financial statements for the Fiscal Quarter to which such Notice of Intent
to Cure relates are required to be delivered pursuant to Section 5.01(a) or (b), as applicable, neither the
Administrative Agent (nor any sub-agent therefor) nor any Lender shall exercise any right to accelerate the Loans or terminate the
Revolving Credit Commitments or any Additional Commitments, and none of the Administrative Agent (nor any sub-agent therefor) nor
any Lender or Secured Party shall exercise any right to foreclose on or take possession of the Collateral or any other right or
remedy under the Loan Documents, in each case solely on the basis of the relevant Event of Default under Section 6.15(a), (v)
during any Test Period in which any Cure Amount is included in the calculation of Consolidated Adjusted EBITDA as a result of any
exercise of the Cure Right, such Cure Amount shall be (A) counted solely as an increase to Consolidated Adjusted EBITDA (and not as
a reduction of Indebtedness (by netting or otherwise), except to the extent that the proceeds of such Cure Amount are actually
applied to repay Indebtedness, such reduction may be credited in any subsequent Fiscal Quarter) for the purpose of determining
compliance with Section 6.15(a) and (B) disregarded for all other purposes, including the purpose of determining
whether any financial ratio-based condition has been satisfied, the Applicable Rate or the Commitment Fee Rate or the availability
of any carve-out set forth in Article 6 of this Agreement and (vi) no Revolving Lender or Issuing Bank shall be required to
make any Revolving Loan or issue any Letter of Credit hereunder if an Event of Default under Section 6.15(a) exists during
the 10 Business Day period during which the Borrower may exercise a Cure Right above unless and until the Cure Amount is actually
received.
ARTICLE
7 EVENTS OF DEFAULT
Section
7.01. Events of Default. If any of the following events (each, an “Event of Default”) shall
occur:
(a)
Failure To Make Payments When Due. Failure by the Borrower to pay (i) any installment of principal of any Loan when due, whether
at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on
any Loan, any fee or other non-principal amount due hereunder within five Business Days after the date due.
(b)
Default in Other Agreements. (i) Failure by the Borrower or any of its Restricted Subsidiaries to pay when due any principal of
or interest on or any other amount payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in clause
(a) above) with an aggregate outstanding principal amount exceeding the Threshold Amount, in each case beyond the applicable notice
period and grace period, if any, provided therefor; or (ii) breach or default by the Borrower or any of its Restricted Subsidiaries with
respect to any other term of (A) one or more items of Indebtedness with an aggregate outstanding principal amount exceeding the Threshold
Amount or (B) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness (other than, for the
avoidance of doubt, with respect to Indebtedness consisting of Hedging Obligations, termination events or equivalent events pursuant
to the terms of the relevant Hedge Agreement which are not the result of any default thereunder by any Loan Party or any Restricted Subsidiary),
in each case beyond the applicable notice period and grace period, if any, provided therefor, if the effect of such breach or default
is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause,
such Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; provided that clause (ii) of this paragraph (b) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness if such sale or
transfer is permitted hereunder; provided, further, that (x) with respect to any breach or default referred to in clause (ii)
above with respect to a financial covenant in any such Indebtedness, such breach or default shall only constitute an Event of Default
hereunder if such breach or default has resulted in the acceleration of such Indebtedness and the termination of commitments thereunder
and (y) any failure described under clauses (i) or (ii) above is unremedied and is not waived by the holders of such Indebtedness
prior to any termination of the Commitments or acceleration of the Loans pursuant to this Article 7; or
(c) Breach
of Certain Covenants. Failure of any Loan Party, as required by the relevant provision, to perform or comply with any term or
condition contained in Section 5.01(e)(i) (provided that subsequent delivery of a notice of Default or Event of
Default shall cure such Event of Default for failure to provide notice, unless a Responsible Officer of Holdings or the Borrower had
actual knowledge that such Default or Event of Default had occurred and was continuing and should have reasonably known in the
course of his or her duties that failure to provide such notice would constitute an Event of Default), Section 5.02 (as it
applies to the preservation of the existence of the Borrower), or Article 6; provided that, notwithstanding this clause
(c), no breach or default by any Loan Party under Section 6.15(a) will constitute an Event of Default with respect to any
Term Loans unless and until the Required Revolving Lenders have accelerated the Revolving Loans and any Additional Revolving Loans,
terminated the commitments under the Revolving Facility and demanded repayment of, or otherwise accelerated, the Indebtedness or
other obligations under the Revolving Facility and have not rescinded such demand or acceleration (the “Financial Covenant
Standstill”); it being understood and agreed that any breach of Section 6.15(a) (or any other financial covenant)
is subject to cure as provided in Section 6.15(b), and no Event of Default shall arise under Section 6.15(a) until the
10th Business Day after the day on which financial statements are required to be delivered for the relevant Fiscal Quarter under Section
5.01(a) or (b), as applicable, and then only to the extent the Cure Amount has not been received on or prior to such
date; or
(d) Breach
of Representations, Etc. Any representation, warranty or certification made or deemed made by any Loan Party in any Loan
Document or in any certificate required to be delivered in connection herewith or therewith (including, for the avoidance of doubt,
any Perfection Certificate) (limited, on the Closing Date, solely to the Specified Representations and representations referred to
in any officer’s certificate delivered on the Closing Date that specifically refers to this Section 7.01(d)), shall be
untrue in any material respect as of the date made or deemed made and such untrue representation, warranty or certification shall
remain untrue for a period of 30 days after notice from the Administrative Agent to the Borrower (which notice shall only be given
at the direction of the Required Lenders); or
(e)
Other Defaults Under Loan Documents. Default by any Loan Party in the performance of or compliance with any term contained herein
or in any of the other Loan Documents, other than any such term referred to in any other Section of this Article 7, which default
has not been remedied or waived within 30 days after receipt by the Borrower of written notice thereof from the Administrative Agent;
or
(f)
Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) The entry by a court of competent jurisdiction of a decree or order
for relief in respect of Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) (any such
Person, a “Specified Person”) in an involuntary case under any Debtor Relief Law now or hereafter in effect, which
decree or order is not stayed; or any other similar relief shall be granted under any applicable federal, state or local law, which relief
is not stayed; or (ii) the commencement of an involuntary case against any Specified Person under any Debtor Relief Law; the entry by
a court having jurisdiction in the premises of a decree or order for the appointment of a receiver, receiver and manager, (preliminary)
insolvency receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over any Specified Person, or
over all or a substantial part of its property; or the involuntary appointment of an interim receiver, trustee or other custodian of
any Specified Person for all or a substantial part of its property, which remains, in any case under this clause (f), undismissed,
unvacated, unbonded or unstayed pending appeal for 60 consecutive days; or
(g)
Voluntary Bankruptcy; Appointment of Receiver, Etc. (i) The entry against any Specified Person of an order for relief, the commencement
by any Specified Person of a voluntary case under any Debtor Relief Law, or the consent by any Specified Person to the entry of an order
for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Law, or the
consent by any Specified Person to the appointment of or taking possession by a receiver, receiver and manager, trustee or other custodian
for all or a substantial part of its property; (ii) the making by any Specified Person of a general assignment for the benefit of creditors;
or (iii) the admission by any Specified Person in writing of their inability to pay their respective debts as such debts become due;
or
(h)
Judgments and Attachments. The entry or filing of one or more final money judgments, writs or warrants of attachment or similar
process against the Borrower or any of its Restricted Subsidiaries or any of their respective assets involving in the aggregate at any
time an amount in excess of the Threshold Amount (in either case to the extent not adequately covered by indemnity from a third party
as to which the indemnifying party has been notified and not denied its indemnification obligations, self- insurance (if applicable)
or insurance as to which the relevant third party insurance company has been notified and not denied coverage), which judgment, writ,
warrant or similar process remains unpaid, undischarged, unvacated, unbonded or unstayed pending appeal for a period of 60 consecutive
days; or
(i)
Employee Benefit Plans. The occurrence of one or more ERISA Events, which individually or in the aggregate result in liability
of the Borrower or any of its Restricted Subsidiaries in an aggregate amount which would reasonably be expected to result in a Material
Adverse Effect; or
(j) Change
of Control. The occurrence of a Change of Control; or
(k)
Guaranties, Collateral Documents and Other Loan Documents. At any time after the execution and delivery thereof (i) any material
Loan Guaranty for any reason ceasing to be in full force and effect (other than in accordance with its terms or as a result of the occurrence
of the Termination Date) or being declared by a court of competent jurisdiction to be null and void or the repudiation in writing by
any Loan Party of its obligations thereunder (other than as a result of the discharge of such Loan Party in accordance with the terms
thereof), (ii) this Agreement or any material Collateral Document or any Lien on a material portion of the Collateral ceasing to be in
full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof, the occurrence
of the Termination Date or any other termination of such Collateral Document in accordance with the terms thereof) or being declared
by a court of competent jurisdiction to be null and void or (iii) other than in any bona fide, good faith dispute as to the scope of
Collateral or whether any Lien has been, or is required to be released, the contesting by any Loan Party of the validity or enforceability
of any material provision of any Loan Document (or any Lien on a material portion of the Collateral purported to be created by the Collateral
Documents) in writing or denial by any Loan Party in writing that it has any further liability (other than by reason of the occurrence
of the Termination Date or any other termination of any other Loan Document in accordance with the terms thereof), including with respect
to future advances by the Lenders, under any Loan Document to which it is a party; it being understood and agreed that the failure of
the Administrative Agent to maintain possession of any Collateral actually delivered to it or file any UCC (or equivalent) continuation
statement shall not result in an Event of Default under this clause (k); or
(l)
Subordination. The Obligations ceasing or the assertion in writing by any Loan Party that the Obligations cease to constitute
senior indebtedness under the subordination provisions of any document or instrument evidencing any permitted Junior Indebtedness in
excess of the Threshold Amount (in each case, to the extent required by such subordination provision) or any such subordination provision
being invalidated by a court of competent jurisdiction or otherwise ceasing, for any reason, to be valid, binding and enforceable obligations
of the parties thereto;
then,
and in every such Event of Default (other than (x) an Event of Default with respect to the Borrower described in clause (f)
or (g) of this Article or (y) any Event of Default arising under Section 6.15(a)), and at any time thereafter during
the continuance of such Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, by notice
to the Borrower, take any of the following actions, at the same or different times: (i) terminate the Revolving Credit Commitments,
and thereupon such Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole
(or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower and (iii) require that the Borrower deposit in the LC
Collateral Account an additional amount in Cash as reasonably requested by the Issuing Banks (not to exceed 100% of the relevant
face amount) of the then outstanding LC Exposure (minus the amount then on deposit in the LC Collateral Account); provided
that (A) upon the occurrence of an Event of Default with respect to the Borrower described in clause (f) or (g) of
this Article, any such Commitments shall automatically terminate and the principal of the Loans then outstanding, together with
accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, and the
obligation of the Borrower to Cash collateralize the outstanding Letters of Credit as aforesaid shall automatically become
effective, in each case without further action of the Administrative Agent or any Lender and (B) during the continuance of any Event
of Default arising under Section 6.15(a), after giving effect to the proviso to Section 7.01(c), (X) solely upon the
request of the Required Revolving Lenders (but not the Required Lenders or any other Lender or group of Lenders), the Administrative
Agent shall, by notice to the Borrower, (1) terminate the Revolving Credit Commitments, and thereupon such Revolving Credit
Commitments shall terminate immediately, (2) declare the Revolving Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Revolving Loans so declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder in respect of the Revolving Loans, shall become due and payable
immediately, without presentment, demand, protest or other notice in respect thereof of any kind, all of which are hereby waived by
the Borrower and (3) require that the Borrower deposit in the LC Collateral Account an additional amount in Cash as reasonably
requested by the Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC Exposure (minus
the amount then on deposit in the LC Collateral Account) and (Y) subject to the Financial Covenant Standstill, the Administrative
Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, declare the Loans then outstanding to be due
and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. Upon the occurrence and during the
continuance of an Event of Default, subject to the Intercreditor Agreement and any other applicable intercreditor agreement, the
Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the
Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC.
ARTICLE
8 THE ADMINISTRATIVE AGENT
Each
of the Lenders and the Issuing Banks, on behalf of itself and its applicable Affiliates and in their respective capacities as such and
as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints
JPM (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions
on its behalf, including execution of the other Loan Documents or any other documents with respect to the rights of the Secured Parties
and the Collateral as contemplated by this Agreement and the Loan Documents, and to exercise such powers as are delegated to the Administrative
Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
Each
of the Secured Parties hereby irrevocably appoints and authorizes the Administrative Agent (as collateral agent) to act as the agent
of (and to hold any security interest created by the Loan Documents for and on behalf of or on trust for) such Secured Party for purposes
of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together
with such powers and discretion as are reasonably incidental thereto. The Lenders agree that any such actions by the Administrative Agent
shall bind such Secured Party.
Any
Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include
each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business
with any Loan Party or any subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding
any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan
Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information
to them.
The
Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the
other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used
merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent
contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any
discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the
Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such
other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section
9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the
opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable
Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its
Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not
taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary,
under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful
misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set
forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any
Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan
Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of
any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the
Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article
4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof, provided, further that, the
foregoing paragraph is solely for the benefit of the Administrative Agent and not any Lender.
Each
Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or
under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have
under applicable law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code
or other similar Dispositions of Collateral. Notwithstanding the foregoing, however, except as otherwise expressly limited herein, a
Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that
would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of a proof of claim in a case
under the Bankruptcy Code.
Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured
Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan
Guaranty; it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative
Agent on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents
may be exercised solely by the Administrative Agent and (ii) in the event of a foreclosure by the Administrative Agent on any of the
Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy
Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply
all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent
at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral
at any such Disposition.
No
holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection
with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement.
Each
of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or
by entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes
and shall be deemed to authorize) the Administrative Agent, on behalf of all Secured Parties, to take any of the following actions upon
the instruction of the Required Lenders:
(a)
consent to the Disposition of all or any portion of the Collateral free and clear of the Liens securing the Secured Obligations in connection
with any Disposition pursuant to the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including
Section 363 thereof;
(b)
credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either
directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral
pursuant to the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including under Section 363
thereof;
(c)
credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either
directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral
pursuant to the applicable provisions of the UCC (or other applicable Debtor Relief Law), including pursuant to Sections 9-610 or
9-620 of the UCC;
(d)
credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly
or through one or more acquisition vehicles), in connection with any foreclosure or other Disposition conducted in accordance with applicable
law following the occurrence of an Event of Default, including by power of sale, judicial action or otherwise; and/or
(e)
estimate the amount of any contingent or unliquidated Secured Obligations of such Lender or other Secured Party;
it
being understood that no Lender shall be required to fund any new amount in connection with any purchase of all or any portion of the
Collateral by the Administrative Agent pursuant to the foregoing clauses (b), (c) or (d) without its prior written consent.
Each
Secured Party agrees that the Administrative Agent is under no obligation to credit bid any part of the Secured Obligations or to purchase
or retain or acquire any portion of the Collateral; provided that, in connection with any credit bid or purchase described under
clauses (b), (c) or (d) of the preceding paragraph, the Secured Obligations owed to all of the Secured Parties (other than
with respect to contingent or unliquidated liabilities as set forth in the next succeeding paragraph) may be, and shall be, credit bid
by the Administrative Agent on a ratable basis. For the avoidance of doubt, nothing in this Article 8 shall limit any rights of Holdings
or its Subsidiaries under Section 363(k) of the Bankruptcy Code (or the corresponding provisions of any other applicable Debtor Relief
Law).
With
respect to each contingent or unliquidated claim that is a Secured Obligation, the Administrative Agent is hereby authorized by the Secured
Parties, but is not required, to estimate the amount thereof for purposes of any credit bid or purchase described in the second preceding
paragraph so long as the estimation of the amount or liquidation of such claim would not unduly delay the ability of the Administrative
Agent to credit bid the Secured Obligations or purchase the Collateral in the relevant Disposition. In the event that the Administrative
Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot
be estimated without unduly delaying the ability of the Administrative Agent to consummate any credit bid or purchase in accordance with
the second preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit
bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid.
Each
Secured Party whose Secured Obligations are credit bid under clauses (b), (c) or (d) of the third preceding paragraph
shall be entitled to receive interests in the Collateral or any other asset acquired in connection with such credit bid (or in the Capital
Stock of the acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in accordance with the
percentage obtained by dividing (x) the amount of the Secured Obligations of such Secured Party that were credit bid in such credit bid
or other Disposition by (y) the aggregate amount of all Secured Obligations that were credit bid in such credit bid or other Disposition.
In
addition, in case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan
Party, each Secured Party agrees that the Administrative Agent (irrespective of whether the principal of any Loan or LC Exposure is then
due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans or LC Exposure
and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and
counsel and all other amounts to the extent due to the Lenders and the Administrative Agent under Sections 2.12 and 9.03) allowed
in such judicial proceeding; and
(ii)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.
Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and each Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative
Agent consents to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and
any other amount due to the Administrative Agent under Sections 2.12 and 9.03.
Nothing
contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or any Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or any Issuing
Bank in any such proceeding.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank,
the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received
notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
The
Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more
sub-agents appointed by it. The Administrative Agent and any such sub- agent may perform any and all of their respective duties and
exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent and shall apply to
their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as
the Administrative Agent.
The
Administrative Agent may resign at any time by giving thirty days’ written notice to the Lenders, the Issuing Banks and the
Borrower. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or
the Borrower may, upon thirty days’ notice, remove the Administrative Agent. Upon receipt of any such notice of resignation or
delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be
unreasonably withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company or
other Person reasonably acceptable to the Borrower with offices in the U.S.; provided that during the existence and
continuation of an Event of Default under Section 7.01(a) or, with respect to the Borrower, Section 7.01(f) or (g),
no consent of the Borrower shall be required. If no successor shall have been appointed as provided above and accepted such
appointment within thirty days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent
receives notice of removal, then (a) in the case of a retirement, the retiring Administrative Agent may (but shall not be obligated
to), on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent meeting the qualifications set forth
above (including, for the avoidance of doubt, consent of the Borrower) or (b) in the case of a removal, the Borrower may, after
consulting with the Required Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided
that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no
qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no
qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective
in accordance with such notice and (i) the retiring or removed Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the
Administrative Agent in its capacity as collateral agent for the Secured Parties for perfection purposes, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is
appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with
the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable,
appoint a successor Administrative Agent, as provided for above in this Article 8. Upon the acceptance of its appointment as
Administrative Agent hereunder as a successor Administrative Agent, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to
indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged
from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between
the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed
Administrative Agent, its sub-agents and their respective Related Parties in respect of any action taken or omitted to be taken by
any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security
following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified
Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent.
Any
resignation or removal of the Administrative Agent hereunder shall also constitute its resignation as Issuing Bank and the Swingline
Lender effective as of the date of effectiveness of its resignation or removal as Administrative Agent as provided above; it being understood
that in the event of any such resignation, any Letter of Credit then outstanding shall remain outstanding (irrespective of whether any
amounts have been drawn at such time). In the event of any such resignation as an Issuing Bank or the Swingline Lender, the Borrower
shall be entitled to appoint any Revolving Lender that is willing to accept such appointment as successor Issuing Bank or Swingline Lender
hereunder. Upon the acceptance of any appointment as Issuing Bank or Swingline Lender hereunder by a successor Issuing Bank or Swingline
Lender, as applicable, such successor Issuing Bank or Swingline Lender, as applicable, shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the resigning Issuing Bank or Swingline Lender, as applicable, and the resigning Issuing
Bank and Swingline Lender, as applicable, shall be discharged from its duties and obligations in such capacity hereunder. In the event
the Swingline Lender resigns, the Borrower shall promptly repay all outstanding Swingline Loans on the effective date of such resignation
(which repayment may be effectuated with the proceeds of a Borrowing).
Each
Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender or any of their respective Related Parties and based on such documents
and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under
or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Except
for notices, reports and other documents expressly required to be furnished to the Lenders and the Issuing Banks by the Administrative
Agent herein, the Administrative Agent shall not have any duty or responsibility to provide any Lender or any Issuing Bank with any credit
or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into the possession of the Administrative Agent or any of its
Related Parties.
Notwithstanding
anything to the contrary herein, the Arrangers shall not have any right, power, obligation, liability, responsibility or duty under this
Agreement, except in their respective capacities, as applicable, as the Administrative Agent, an Issuing Bank or a Lender hereunder.
Each
Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall:
(a)
release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the occurrence of the
Termination Date, (ii) that is sold or to be sold or transferred as part of or in connection with any Disposition permitted under the
Loan Documents to a Person that is not a Loan Party, (iii) that does not constitute (or ceases to constitute) Collateral, (iv) if the
property subject to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Loan Guaranty
otherwise in accordance with the Loan Documents, (v) as required under clause (d) below or (vi) if approved, authorized
or ratified in writing by the Required Lenders (or such other number or percentage of Lenders as shall be necessary under the relevant
circumstances as provided in Section 9.02) in accordance with Section 9.02;
(b)
without limiting Section 9.22, release any Subsidiary Guarantor from its obligations under the Loan Guaranty (i) if such
Person ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of
related transactions or any event or other circumstance permitted hereunder); provided, that the release of any Subsidiary
Guarantor from its obligations under the Loan Guaranty if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type
described in clause (a) of the definition thereof shall only be permitted if at the time such Guarantor becomes an Excluded
Subsidiary of such type, after giving pro forma effect to such release and the consummation of the transaction that causes such
Person to be an Excluded Subsidiary of such type, the Borrower is deemed to have made a new Investment in such Person for purposes
of Section 6.06 (as if such Person were then newly acquired) in an amount equal to the portion of the fair market value of the net
assets of such Person attributable to the Borrower’s equity interest therein as estimated by the Borrower in good faith and
such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f)) at such time and/or (ii) upon the occurrence of
the Termination Date;
(c)
subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any
Lien on such property that is permitted by Sections 6.02(c), 6.02(d), 6.02(e), 6.02(g), 6.02(l), 6.02(m), 6.02(n),
6.02(o), 6.02(q), 6.02(r), 6.02(u), 6.02(v)(ii), 6.02(x), 6.02(y), 6.02(z)(i), 6.02(bb), 6.02(cc), 6.02(dd),
6.02(ee), 6.02(ff), 6.02(gg), 6.02(hh), 6.02(ii), 6.02(ll), 6.02(tt) and 6.02(uu) (and any Refinancing
Indebtedness in respect of any thereof to the extent such Refinancing Indebtedness is permitted to be secured under Section
6.02(k)); and
(d)
enter into subordination, intercreditor, collateral trust and/or similar agreements (and any amendments thereof) with respect to Indebtedness
(including any Acceptable Intercreditor Agreement and any amendment thereto) that is (i) required or permitted to be subordinated hereunder
or pari passu with the Liens securing the Obligations and/or (ii) secured by Liens, and which Indebtedness contemplates an intercreditor,
subordination, collateral trust or similar agreement.
Upon
the request of the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority
to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under
the Loan Guaranty or its Lien on any Collateral pursuant to this Article 8. In each case as specified in this Article 8,
the Administrative Agent will (and each Lender and each Issuing Bank hereby authorizes the Administrative Agent to), at the Borrower’s
expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release
of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest
therein, or to release such Loan Party from its obligations under the Loan Guaranty, in each case in accordance with the terms of the
Loan Documents and this Article 8. The parties hereto acknowledge and agree that the Administrative Agent may rely conclusively
as to any of the matters described in this Section 9.02 and Section 9.22 (including as to its authority hereunder and thereunder)
on a certificate or similar instrument provided to it by any Loan Party without further inquiry or investigation, which certificate shall
be delivered to the Administrative Agent by the Loan Parties upon request.
The
Administrative Agent is authorized to enter into the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any
other intercreditor, subordination, collateral trust or similar agreement contemplated hereby with respect to any (a) Indebtedness
(i) that is (A) required or permitted to be subordinated hereunder or pari passu with the Liens securing the Obligations and/or (B)
secured by Liens and (ii) with respect to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor,
subordination, collateral trust or similar agreement (any such other intercreditor, subordination, collateral trust and/or similar
agreement, an “Additional Agreement”) and/or (b) Secured Hedging Obligations and/or Banking Services Obligations,
whether or not constituting Indebtedness, and each Secured Party acknowledges that the Intercreditor Agreement, any other Acceptable
Intercreditor Agreement and any Additional Agreement is binding upon them. Each Secured Party hereby (a) acknowledges that it has
received a copy of the Intercreditor Agreement and consents to the subordination of the Liens on the Collateral securing the Secured
Obligations on the terms set forth in the Intercreditor Agreement, (b) agrees that it will be bound by, and will not take any action
contrary to, the provisions of the Intercreditor Agreement, any other Acceptable Intercreditor Agreement or any Additional Agreement
and (c) authorizes and instructs the Administrative Agent to enter into the Intercreditor Agreement or any Additional Agreement
(including any Acceptable Intercreditor Agreement) and to subject the Liens on the Collateral securing the Secured Obligations to
the provisions thereof. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to the
Borrower, and the Secured Parties are intended third-party beneficiaries of such provisions and the provisions of the Intercreditor
Agreement, any Acceptable Intercreditor Agreement and/or any other Additional Agreement.
To
the extent that the Administrative Agent (or any Affiliate thereof) is not reimbursed and indemnified by the Borrower in accordance with
the terms of this Agreement, the Lenders will reimburse and indemnify the Administrative Agent (and any Affiliate thereof) in proportion
to their respective Applicable Percentages (determined as if there were no Defaulting Lenders) for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent (or any Affiliate thereof) in performing its duties hereunder
or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided
that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
ARTICLE
9 MISCELLANEOUS
Section 9.01. Notices.
(a)
Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b)
below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by facsimile or email, as follows:
(i)
if to any Loan Party, to such Loan Party in the care of Holdings at:
Bowlmor
AMF Corp.
222
West 44th Street
New
York, New York 10036
Telephone:
+ 1 212 777-2622
Attention:
Brett I. Parker
Email:
with
a copy to (which shall not constitute notice to any Loan Party): Atairos Group, Inc.
620
Fifth Avenue, Sixth Floor
New
York, New York 10020
Telephone:
+1 646 690-5223
Attention:
Rachael A.Wagner
Email:
(ii)
if to the Administrative Agent, at:
JPMorgan
Chase Bank, N.A.
500
Stanton Christiana Rd. NCC5 / 1st Floor
Newark,
Delaware 19713
Attention:
Loan & Agency Services Group-Jonathan Martin
Telephone:
+1 302-634-1964
Fax:
+1 302 634-3301
Email:
with
a copy to:
JPMorgan
Chase Bank, N.A.
500
Stanton Christiana Rd. NCC5 / 1st Floor
Newark,
Delaware 19713
Attention:
Loan & Agency Services Group-William
Telephone:
+1 302 634-1964
Fax:
+1 302 634-3301
Email:
(iii)
if to any Lender, to it at its address, facsimile number or email address set forth in its Administrative Questionnaire.
All
such notices and other communications (A) sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof or three Business
Days after dispatch if sent by certified or registered mail, in each case, delivered, sent or mailed (properly addressed) to the relevant
party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance
with this Section 9.01 or (B) sent by facsimile shall be deemed to have been given when sent and when receipt has been confirmed
by telephone; provided that notices and other communications sent by telecopier shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient, such notices or other communications shall be deemed to have been
given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic
communications to the extent provided in clause (b) below shall be effective as provided in such clause (b).
(b)
Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including e-mail
and Internet or Intranet websites) pursuant to procedures set forth herein or otherwise approved by the Administrative Agent. The Administrative
Agent or the Borrower (on behalf of any Loan Party) may, in its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures set forth herein or otherwise approved by it; provided that approval of such
procedures may be limited to particular notices or communications. All such notices and other communications (i) sent to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return
receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if not given during
the normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business
on the next Business Day for the recipient, and (ii) posted to an Internet or Intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described in the foregoing clause (b)(i) of notification that such
notice or communication is available and identifying the website address therefor.
(c)
Any party hereto may change its address or facsimile number or other notice information hereunder by notice to the other parties hereto;
it being understood and agreed that the Borrower may provide any such notice to the Administrative Agent as recipient on behalf of itself,
the Swingline Lender, each Issuing Bank and each Lender.
Section
9.02. Waivers; Amendments.
(a)
No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under any other
Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision
of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same is permitted
by this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is
given. Without limiting the generality of the foregoing, to the extent permitted by law, the making of a Loan or the issuance of any
Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent,
any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b)
Subject to clauses (A), (B), (C), (D) and (E) of this Section 9.02(b) and Sections 9.02(c) and (d)
below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified,
except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the
Required Lenders (or the Administrative Agent with the consent of the Required Lenders) or (ii) in the case of any other Loan
Document (other than any waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the
terms of such other Loan Document), pursuant to an agreement or agreements in writing entered into by the Administrative Agent and
each Loan Party that is party thereto, with the consent of the Required Lenders; provided that, notwithstanding the
foregoing:
(A)
except with the consent of each Lender directly and adversely affected thereby (but without requiring the consent of the Required
Lenders), no such agreement shall;
(1)
increase the Commitment or Additional Commitment of such Lender (other than with respect to any Incremental Facility pursuant to Section
2.22 in respect of which such Lender has agreed to be an Additional Lender); it being understood that no amendment, modification
or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory
prepayment or mandatory reduction of the Commitments or Additional Commitments shall constitute an increase of any Commitment or Additional
Commitment of such Lender;
(2)
reduce or forgive the principal amount of any Loan owed to such Lender or any amount due to such Lender on any Loan Installment Date
(other than, in each case, any waiver of, or consent to or departure from, any Default or Event of Default or any mandatory
prepayment; it being understood that no change in (i) the definition of “First Lien Leverage Ratio” or any other ratio
used in the calculation of any mandatory prepayment (including any component definition thereof) or (ii) the MFN Provision shall
constitute a reduction or forgiveness of any principal amount due hereunder);
(3)
(x) extend the scheduled final maturity of any Loan or (y) postpone any Loan Installment Date, any Interest Payment Date or the date
of any scheduled payment of any fee, in each case payable to such Lender hereunder (in each case, other than any extension for administrative
reasons agreed by the Administrative Agent) (other than, in each case, any waiver of, or consent or departure from, any Default or Event
of Default or any mandatory prepayment; it being understood that no change in the definition of “First Lien Leverage Ratio”
or any other ratio used in the calculation of any mandatory prepayment (including any component definition thereof) shall constitute
such an extension or postponement);
(4)
reduce the rate of interest (other than to waive any Default or Event of Default or obligation of the Borrower to pay interest at the
default rate of interest under Section 2.13(d), which shall only require the consent of the Required Lenders) or the amount of
any fee owed to such Lender; it being understood that no change in (i) the definition of “First Lien Leverage Ratio” or any
other ratio used in the calculation of the Applicable Rate or the Commitment Fee Rate, or in the calculation of any other interest or
fee due hereunder (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction in any rate of
interest or fee hereunder;
(5)
extend the expiry date of such Lender’s Commitment or Additional Commitment; it being understood that no amendment, modification
or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory
prepayment or mandatory reduction of the Commitments or Additional Commitments shall constitute an extension of any Commitment or Additional
Commitment of any Lender; and
(6)
waive, amend or modify the provisions of Section 2.18(b) of this Agreement in a manner that would by its terms alter the pro rata
sharing of payments required thereby (except in connection with any transaction permitted under Sections 2.22, 2.23, 9.02(c) and/or
9.05(g) or as otherwise provided in this Section 9.02); and
(B)
no such agreement shall:
(1)
change (x) any of the provisions of Section 9.02(a) or Section 9.02(b) or the definition of “Required Lenders”
to reduce any voting percentage required to waive, amend or modify any right thereunder or make any determination or grant any consent
thereunder, without the prior written consent of each Lender or (y) the definition of “Required Revolving Lenders” without
the prior written consent of each Revolving Lender (it being understood that neither the consent of the Required Lenders nor the consent
of any other Lender shall be required in connection with any change to the definition of “Required Revolving Lenders”);
(2)
release all or substantially all of the Collateral from the Lien granted pursuant to the Loan Documents (except as otherwise permitted
herein or in the other Loan Documents, including pursuant to Article 8 or Section 9.22 hereof or pursuant to any Acceptable
Intercreditor Agreement), without the prior written consent of each Lender; or
(3)
release all or substantially all of the value of the Guarantees under the Loan Guaranty (except as otherwise permitted herein or in the
other Loan Documents, including pursuant to Article 8 or Section 9.22 hereof), without the prior written consent of each Lender;
(C)
solely with the consent of the Required Revolving Lenders (but without the consent of the Required Lenders or any other Lender), any
such agreement may (x) waive, amend or modify Section 6.15 (or the definition of “First Lien Leverage Ratio” or any
component definition thereof, in each case, as any such definition is used solely for purposes of Section 6.15) or waive any Default
or Event of Default in respect of Section 6.15 (other than as permitted under clause (y)), (y) waive, amend or modify any condition
precedent set forth in Section 4.02 hereof as it pertains to any Revolving Loan and/or Additional Revolving Loan and/or (z) waive
any Default or Event of Default that results from any representation made or deemed made by any Loan Party in any Loan Document in connection
with any Credit Extension under the Revolving Facility being untrue in any material respect as of the date made or deemed made;
(D)
solely with the consent of the relevant Issuing Bank and, in the case of clause (x), the Administrative Agent, any such agreement
may (x) increase or (y) decrease the Letter of Credit Sublimit; and
(E)
solely with the consent of the Borrower and applicable Class or Classes of Revolving Lenders and/or, if applicable, Issuing Banks, subject
to the provisions of Section 1.10, this Agreement may be amended or otherwise modified to permit the availability of Revolving
Loans and/or Letters of Credit denominated in a currency other than Dollars and to make technical changes to this Agreement and any other
Loan Document to accommodate the inclusion of any such new currency;
provided, further,
that no such agreement shall (x) amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing
Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, such Issuing Bank or the
Swingline Lender, as the case may be and (y) amend or modify the provisions of Section 2.05 (as it applies to any Issuing
Bank) or any letter of credit application or any bilateral agreement between the Borrower and any Issuing Bank regarding the
respective rights and obligations between the Borrower and such Issuing Bank in connection with the issuance (or deemed issuance) of
Letters of Credit hereunder, without the prior written consent of, with respect to Section 2.05, the Administrative Agent,
the Borrower and such Issuing Bank, or otherwise, the Borrower and such Issuing Bank. The Administrative Agent may also amend the
Commitment Schedule to reflect assignments entered into pursuant to Section 9.05, Commitment reductions or terminations
pursuant to Section 2.09, incurrences of Additional Commitments or Additional Loans pursuant to Sections 2.22, 2.23 or 9.02(c)
and reductions or terminations of any such Additional Commitments or Additional Loans. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that
the Commitment and any Additional Commitment of any Defaulting Lender may not be increased without the consent of such Defaulting
Lender (it being understood that any Commitment, Additional Commitment or Loan held or deemed held by any Defaulting Lender shall be
excluded from any vote hereunder that requires the consent of any Lender, except as expressly provided in Section 2.21(b)).
Notwithstanding the foregoing, but without limiting the provisions of Section 2.22(g), this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (i) to add one or
more additional credit facilities to this Agreement and to permit any extension of credit from time to time outstanding thereunder
and the accrued interest and fees in respect thereof to share ratably in the relevant benefits of this Agreement and the other Loan
Documents and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders
on substantially the same basis as the Lenders prior to such inclusion.
(c)
Notwithstanding the foregoing, this Agreement may be amended:
(i)
with the written consent of the Borrower and the Lenders providing the relevant Replacement Term Loans to permit the refinancing or replacement
of all or any portion of the outstanding Initial Term Loans or any then-existing Additional Term Loans under any applicable Class (any
such loans being refinanced or replaced, the “Replaced Term Loans”) with one or more replacement term loans hereunder
(“Replacement Term Loans”) pursuant to a Refinancing Amendment; provided that
(A)
the aggregate principal amount of any Replacement Term Loans shall not exceed the aggregate principal amount of the Replaced Term Loans
(plus (1) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any such additional amounts
are secured, the related Liens are permitted under Section 6.02 and plus (2) the amount of accrued interest, penalties
and premium (including any tender premium) thereon, any committed but undrawn amount and underwriting discounts, fees (including upfront
fees, original issue discount or initial yield payments), commissions and expenses associated therewith),
(B)
any Replacement Term Loans (other than customary bridge loans with a maturity date of not longer than one year; provided that
any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to
the requirements of this clause (B)) must have a final maturity date that is equal to or later than the final maturity date of,
and have a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Replaced Term Loans
at the time of the relevant refinancing, provided, that the foregoing limitation shall not apply to Replacement Term Loans having
an aggregate principal amount outstanding not exceeding $20,000,000 (as selected by the Borrower),
(C)
any Replacement Term Loans may be pari passu or junior in right of payment and pari passu (without regard to the control
of remedies) or junior with respect to the Collateral with the remaining portion of the Initial Term Loans or Additional Term Loans (provided
that if pari passu or junior as to payment or Collateral, such Replacement Term Loans shall be subject to an Acceptable Intercreditor
Agreement and may be, at the option of the Borrower, documented in a separate agreement or agreements), or be unsecured,
(D)
if any Replacement Term Loans are secured, such Replacement Term Loans may not be secured by any assets other than the
Collateral,
(E)
if any Replacement Term Loans are guaranteed, such Replacement Term Loans may not be guaranteed by any Person other than one or more
Loan Parties,
(F)
any Replacement Term Loans that are pari passu with the Initial Term Loans in right of payment and security may participate (A)
in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans
as set forth in Section 2.11(b)(vi),
(G)
any Replacement Term Loans shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F), optional
prepayment and redemption terms and, subject to preceding clause (B), an amortization schedule, as the Borrower and the lenders
providing such Replacement Term Loans may agree,
(H)
[reserved],
(I)
the covenants and events of default of any Replacement Term Loans (excluding pricing, interest, fees, rate floors, premiums, optional
prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be (i) substantially
identical to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders providing such Replacement
Term Loans than those applicable to the Replaced Term Loans (other than covenants or other provisions applicable only to periods after
the latest Maturity Date of such Replaced Term Loans (in each case, as of the date of incurrence of such Replacement Term Loans)), (ii)
then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment
with respect thereto)) for the applicable type of Indebtedness or (iii) reasonably acceptable to the Administrative Agent (it being agreed
that covenants and events of default of any Replacement Term Loans that are more favorable to the lenders or the agent of such Replacement
Term Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents pursuant to the applicable
Refinancing Amendment shall thereafter be deemed satisfactory to the Administrative Agent), and
(ii)
with the written consent of the Borrower and the Lenders providing the relevant Replacement Revolving Facility to permit the refinancing
or replacement of all or any portion of any Revolving Credit Commitment or any Additional Revolving Credit Commitment under the applicable
Class (any such Revolving Credit Commitment or Additional Revolving Credit Commitment being refinanced or replaced, a “Replaced
Revolving Facility”) with a replacement revolving facility hereunder (a “Replacement Revolving Facility”)
pursuant to a Refinancing Amendment; provided that:
(A)
the aggregate principal amount of any Replacement Revolving Facility shall not exceed the aggregate principal amount of the Replaced
Revolving Facility (plus (x) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any
such additional amounts are secured, the related Liens are permitted under Section 6.02 and plus (y) the amount of accrued
interest, penalties and premium thereon, any committed but undrawn amounts and underwriting discounts, fees (including upfront fees and
original issue discount), commissions and expenses associated therewith),
(B)
no Replacement Revolving Facility (other than customary bridge loans with a maturity date of not longer than one year; provided
that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject
to the requirements of this clause (B)) may have a final maturity date (or require commitment reductions) prior to the final maturity
date of the relevant Replaced Revolving Facility at the time of such refinancing,
(C)
any Replacement Revolving Facility may be pari passu or junior in right of payment and pari passu (without regard to the
control of remedies) or junior with respect to the Collateral with the remaining portion of the Revolving Credit Commitments or any Additional
Revolving Credit Commitments (provided that if pari passu or junior as to payment or Collateral, such Replacement Revolving
Facility shall be subject to an Acceptable Intercreditor Agreement and may be, at the option of the Borrower, documented in a separate
agreement or agreements), or be unsecured,
(D)
if any Replacement Revolving Facility is secured, it may not be secured by any assets other than the Collateral,
(E)
if any Replacement Revolving Facility is guaranteed, it may not be guaranteed by any Person other than one or more Loan Parties,
(F)
any Replacement Revolving Facility shall be subject to the “ratability” provisions applicable to Extended Revolving Credit
Commitments and Extended Revolving Loans set forth in the proviso to clause (i) of Section 2.23(a), mutatis mutandis,
to the same extent as if fully set forth in this Section 9.02(c)(ii),
(G)
any Replacement Revolving Facility shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F),
optional prepayment and redemption terms as the Borrower and the lenders providing such Replacement Revolving Facility may agree,
(H)
[reserved],
(I)
the covenants and events of default of any Replacement Revolving Facility (excluding pricing, interest, fees, rate floors, premiums,
optional prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be
(i) substantially identical to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders
providing such Replacement Revolving Facility than those applicable to the Replaced Revolving Facility (other than covenants or
other provisions applicable only to periods after the latest Maturity Date of such Replaced Revolving Facility (in each case, as of
the date of incurrence of the relevant Replacement Revolving Facility), (ii) then-current market terms (as determined by the
Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the
applicable type of Indebtedness or (iii) reasonably acceptable to the Administrative Agent (it being agreed that covenants and
events of default of any Replacement Revolving Facility that are more favorable to the lenders or the agent of such Replacement
Revolving Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents pursuant to
the applicable Refinancing Amendment shall be deemed satisfactory to the Administrative Agent); provided, that if any
financial maintenance covenant is added to any such Replacement Revolving Facility and such financial maintenance covenant is more
favorable to the lenders under such Replacement Revolving Facility than the Financial Covenant, either (x) such financial
maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders
shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the
Borrower, any applicable “equity cure” provisions with respect to any such financial maintenance covenant);
and
(J)
the commitments in respect of the Replaced Revolving Facility shall be terminated, and all loans outstanding thereunder and all fees
thereunder and payable in connection therewith shall be paid in full, in each case on the date such Replacement Revolving Facility is
implemented;
provided,
further, that, in respect of each of clauses (i) and (ii) of this clause (c), (x) any Non-Debt Fund Affiliate
and Debt Fund Affiliate shall be permitted (without Administrative Agent consent) to provide any Replacement Term Loans, it being understood
that in connection with such Replacement Term Loans, the relevant Non-Debt Fund Affiliate or Debt Fund Affiliate, as applicable, shall
be subject to the restrictions applicable to such Persons under Section 9.05 as if such Replacement Term Loans were Term Loans
and (y) any Debt Fund Affiliate (but not any Non-Debt Fund Affiliate) may provide (without Administrative Agent consent) any Replacement
Revolving Facility.
Each
party hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be amended by the Borrower,
the Administrative Agent and the lenders providing the relevant Replacement Term Loans or the Replacement Revolving Facility, as applicable,
to the extent (but only to the extent) necessary to reflect the existence and terms of such Replacement Term Loans or Replacement Revolving
Facility, as applicable, incurred or implemented pursuant thereto (including any amendment necessary to treat the loans and commitments
subject thereto as a separate “tranche” and “Class” of Loans and/or commitments hereunder). It is understood
that any Lender approached to provide all or a portion of any Replacement Term Loans or any Replacement Revolving Facility may elect
or decline, in its sole discretion, to provide such Replacement Term Loans or Replacement Revolving Facility.
(d)
Notwithstanding anything to the contrary contained in this Section 9.02 or any other provision of this Agreement or any
provision of any other Loan Document, (i) the Borrower and the Administrative Agent may, without the input or consent of any Lender,
amend, supplement and/or waive any guaranty, collateral security agreement, pledge agreement and/or related document (if any)
executed in connection with this Agreement to (x) comply with any Requirements of Law or the advice of counsel or (y) cause any such
guaranty, collateral security agreement, pledge agreement or other document to be consistent with this Agreement and/or the relevant
other Loan Documents, (ii) the Borrower and the Administrative Agent may, without the input or consent of any other Lender (other
than the relevant Lenders (including Additional Lenders) providing Loans under such Sections), effect amendments to this Agreement
and the other Loan Documents as may be necessary in the reasonable opinion of the Borrower and the Administrative Agent to (A)
effect the provisions of Sections 2.22, 2.23, 5.12, 5.14, 5.15, 5.16 or 9.02(c), or any other provision
specifying that any waiver, amendment or modification may be made with the consent or approval of the Administrative Agent and/or
(B) add terms (including representations and warranties, conditions, prepayments, covenants or events of default), in connection
with the addition of any Loan or Commitment hereunder or the incurrence of any Incremental Equivalent Debt, any Replacement Term
Loans, any Replacement Revolving Facility, any Replacement Debt and/or any Refinancing Indebtedness incurred in reliance on Section
6.01(p) with respect to Indebtedness originally incurred in reliance on Section 6.01(z), that are favorable to the
then-existing Lenders, as reasonably determined by the Administrative Agent (it being understood that, where applicable, any such
amendment may be effectuated as part of an Incremental Facility Amendment and/or a Refinancing Amendment), (iii) if the
Administrative Agent and the Borrower have jointly identified any ambiguity, mistake, defect, inconsistency, obvious error or any
error or omission of a technical or administrative nature or any necessary or desirable technical change, in each case, in any
provision of any Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision solely to
address such matter as reasonably determined by them acting jointly without the input or consent of any Lender, (iv) the
Administrative Agent and the Borrower may amend, restate, amend and restate or otherwise modify the Intercreditor Agreement or any
Acceptable Intercreditor Agreement as provided therein or to give effect thereto or to carry out the purpose thereof without the
input or consent of any Lender and (v) any amendment, waiver or modification of any term or provision that directly affects Lenders
under one or more Classes and does not directly affect Lenders under one or more other Classes may be effected with the consent of
Lenders owning 50% of the aggregate commitments or Loans of such directly affected Class in lieu of the consent of the Required
Lenders.
(e)
Notwithstanding anything to the contrary contained in this Section 9.02, if the Revolving Lenders are to receive the benefit of any additional
or modified financial maintenance covenant as a result of the application of the provisions set forth in clause (g) of the definition
of “Incremental Equivalent Debt”, Section 2.22(a)(iv) or Section 9.02(c)(ii)(I), then the Administrative Agent
and the Borrower shall be permitted, without the need for consent by any other Person, to effectuate such provisions by promptly entering
into an amendment to this Agreement.
Section
9.03. Expenses; Indemnity.
(a)
Subject to Section 9.05(f), the Borrower shall pay, upon presentation of a summary statement, together with any supporting documentation
reasonably requested by the Borrower, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative
Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket
fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local
counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution
(including via the Internet or through a service such as Intralinks) of the Credit Facilities, the preparation, execution, delivery and
administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver
of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the
preparation of any such amendment, modification or waiver was requested by the Borrower) and (ii) all reasonable and documented out-of-pocket
expenses incurred by the Administrative Agent, the Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates
(but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other
charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material
jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective
rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made
and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph
(a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable
detail, together with backup documentation supporting the relevant reimbursement request.
(b)
The Borrower shall indemnify each Arranger, the Administrative Agent, each Issuing Bank and each Lender, and each Related Party of any
of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable
and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably
necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an
actual or perceived conflict of interest after the affected Person notifies the Borrower of such conflict, (x) one additional counsel
to all similarly situated affected Indemnitees, taken as a whole, and (y) one additional local counsel in any relevant material jurisdiction
to all similarly situated affected Indemnitees, taken as a whole), incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby,
the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other
transactions contemplated hereby or thereby (except for any Taxes, which shall be governed exclusively by Section 2.17), (ii)
the use of the proceeds of the Loans or any Letter of Credit or (iii) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing (including any matters arising under Environmental Law), whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party
or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that any such loss, claim, damage or liability (i) is determined by a final and non-appealable
judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the
gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any
such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s or a Related
Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding
brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought
by or against the Administrative Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative Agent, as an Issuing
Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its subsidiaries. Each Indemnitee
shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee
for any fees, expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof.
All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of
a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses,
after receipt by the Borrower of an invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation
supporting the relevant reimbursement request. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes
that represent losses, claims, damages or liabilities arising from any non-Tax claim.
(c)
The Borrower shall not be liable for any settlement or compromise of, or the consent to the ending of any judgment with respect to,
any proceeding effected without its consent (which consent shall not be unreasonably withheld, delayed or conditioned), but if any
proceeding is so settled, compromised or consented with the Borrower’s written consent, or if there is a final judgment
entered against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the
extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee
(which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened
proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an
unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such
settlement does not include any statement as to any admission of fault or culpability.
Section
9.04. Waiver of Claim. To the extent permitted by applicable law, no party to this Agreement shall assert, and each hereby waives,
any claim against any other party hereto or any Related Party thereof, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or
any agreement or instrument contemplated hereby, the Transactions, any Loan or any Letter of Credit or the use of the proceeds thereof,
except, in the case of any claim by any Indemnitee against the Borrower, to the extent such damages would otherwise be subject to indemnification
pursuant to the terms of Section 9.03.
Section
9.05. Successors and Assigns.
(a)
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and permitted assigns; provided that (i) except as provided under Section 6.07 and/or pursuant to any Permitted Reorganization,
the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted assignment
or transfer not complying with the terms of this Section shall be null and void and, with respect to any attempted assignment or transfer
to any Disqualified Institution, subject to Section 9.05(f)). Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective successors and permitted assigns, Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the
Arrangers, the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement. Any Successor Borrower permitted pursuant to a transaction referred to in clause (i) of the proviso above, shall thereafter
be deemed to be and become the “Borrower” for all purposes hereunder, and such initial Borrower shall be released from its
Obligations in respect of this Agreement and the other Loan Documents.
(b)
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including all or a portion of any Loan or Additional Commitment
added pursuant to Sections 2.22, 2.23 or 9.02(c) at the time owing to it) with the prior written consent (not to be
unreasonably withheld or delayed) of:
(A)
the Borrower; provided that the Borrower shall be deemed to have consented to any assignment of Term Loans (other than any such
assignment to a Disqualified Institution or an affiliate thereof referred to in the last proviso of this clause (i) and identified to
the Administrative Agent as such) if it has not responded to a written request for its consent from the Administrative Agent within 15
Business Days after receiving such written request; provided, further, that no consent of the Borrower shall be required (x) for
any assignment of Initial Term Loans, Additional Term Loans, Initial Term Loan Commitments or Additional Term Loan Commitments to another
Lender, an Affiliate of any Lender or an Approved Fund or (y) during the continuance of an Event of Default under Section 7.01(a)
or Sections 7.01(f) or (g) (solely with respect to the Borrower);
(B)
the Administrative Agent; provided, that no consent of the Administrative Agent shall be required for any assignment to another
Lender, any Affiliate of a Lender or any Approved Fund, or for any assignment to the Borrower and/or its Affiliates, which otherwise
complies with the terms of this Section 9.05; and
(C)
in the case of the Revolving Facility or any Additional Revolving Facility, each Issuing Bank and the Swingline Lender;
provided,
that notwithstanding the foregoing, the Borrower may withhold its consent to any assignment to any Person that is not expressly a Disqualified
Institution but is known by the Borrower to be an Affiliate of a Disqualified Institution without regard as to whether such Person is
identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name.
(ii)
Assignments shall be subject to the following additional conditions:
(A)
except in the case of any assignment to another Lender, any Affiliate of any Lender or any Approved Fund or any assignment of the entire
remaining amount of the relevant assigning Lender’s Loans or commitments of any Class, the principal amount of Loans or commitments
of the assigning Lender subject to the relevant assignment (determined as of the date on which the Assignment Agreement with respect
to such assignment is delivered to the Administrative Agent and determined on an aggregate basis in the event of concurrent assignments
to Related Funds or by Related Funds) shall not be less than (x) $1,000,000, in the case of Initial Term Loans, Additional Term Loans,
Initial Term Loan Commitments and Additional Term Loan Commitments and (y) $5,000,000 in the case of Revolving Loans, Additional Revolving
Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments unless the Borrower and the Administrative Agent otherwise
consent to a lesser amount, and in each case any assigned amount may exceed such minimum amount in an integral multiple of $1,000,000
in excess thereof;
(B)
any partial assignment shall be made as an assignment of a proportionate part of all the relevant assigning Lender’s rights and
obligations under this Agreement;
(C)
the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement via an electronic settlement
system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and shall pay to the
Administrative Agent a processing and recordation fee of $3,500; provided that (x) such fee may be waived or reduced in the sole
discretion of the Administrative Agent, (y) such fee shall not apply for any assignment to an Affiliated Lender or Debt Fund Affiliate
and (z) only one such fee shall be payable in the event of simultaneous assignments to or from two or more Approved Funds;
(D)
the relevant Eligible Assignee, if it is not a Lender, shall deliver on or prior to the effective date of such assignment, to the Administrative
Agent and the Borrower (irrespective of whether an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g)
exists) (1) an Administrative Questionnaire and (2) any form required under Section 2.17; and
(E)
the assigning Lender shall, concurrently with its delivery of the same to the Administrative Agent, provide the Borrower with a copy
of its request for such assignment, which shall include the name of the prospective assignee (irrespective of whether an Event of Default
under Section 7.01(a) or Section 7.01(f) or Section 7.01(g) exists).
(iii)
Except as otherwise provided in Section 9.05(g), subject to the acceptance and recording thereof pursuant to paragraph
(b)(iv) of this Section, from and after the effective date specified in any Assignment Agreement, the Eligible Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned pursuant to such Assignment Agreement, have the
rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment
Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be (A) entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03 with respect
to facts and circumstances occurring on or prior to the effective date of such assignment and (B) subject to its obligations
thereunder and under Section 9.13). If any assignment by any Lender holding any Promissory Note is made after the issuance of
such Promissory Note, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as
practicable, surrender such Promissory Note to the Administrative Agent for cancellation, and, if requested by either the assignee
or the assigning Lender, the Borrower shall issue and deliver a new Promissory Note to such assignee and/or to such assigning
Lender, with appropriate insertions, to reflect the new commitments and/or outstanding Loans of the assignee and/or the assigning
Lender.
(iv)
The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment
Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders and their respective successors
and assigns, and the commitment of, and principal amount of and interest on the Loans and LC Disbursements owing to, each Lender or Issuing
Bank pursuant to the terms hereof from time to time (the “Register”). Failure to make any such recordation, or any
error in such recordation, shall not affect the Borrower’s obligations in respect of such Loans and LC Disbursements. The entries
in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders
shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower, each Issuing Bank and each Lender (but only as to its
own holdings), at any reasonable time and from time to time upon reasonable prior notice.
(v)
Upon its receipt of a duly completed Assignment Agreement executed by an assigning Lender and an Eligible Assignee, the Eligible Assignee’s
completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the assignee is
already a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and
any written consent to the relevant assignment required by paragraph (b) of this Section, the Administrative Agent shall promptly
accept such Assignment Agreement and record the information contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(vi)
By executing and delivering an Assignment Agreement, the assigning Lender and the Eligible Assignee thereunder shall be deemed to confirm
and agree with each other and the other parties hereto as follows: (A) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim and that the amount of its commitments, and the outstanding
balances of its Loans, in each case without giving effect to any assignment thereof which has not become effective, are as set forth
in such Assignment Agreement, (B) except as set forth in clause (A) above, such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement,
or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any Restricted Subsidiary or
the performance or observance by the Borrower or any Restricted Subsidiary of any of its obligations under this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto; (C) such assignee represents and warrants that it is an
Eligible Assignee (and not a Disqualified Institution), legally authorized to enter into such Assignment Agreement; (D) such assignee
confirms that it has received a copy of this Agreement, the Intercreditor Agreement and each other then-applicable Acceptable Intercreditor
Agreement, together with copies of the financial statements referred to in Section 4.01(c) or the most recent financial statements
delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment Agreement; (E) such assignee will independently and without reliance upon the Administrative
Agent, the assigning Lender or any other Lender and based on such documents and information as it deems appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this Agreement; (F) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative
Agent, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as
a Lender.
(c)
(i) Any Lender may, without the consent of the Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender or any
other Lender, sell participations to any bank or other entity (other than to any Disqualified Institution or an Affiliate thereof
referred to in the last proviso of clause (b)(i) of this Section 9.05 and identified to the Administrative Agent as
such, any Defaulting Lender or any natural Person) (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its commitments and the Loans owing to it); provided
that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, the
Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which any Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the relevant Participant, agree to any amendment, modification or waiver described in (x) clause
(A) of the first proviso to Section 9.02(b) that directly and adversely affects the Loans or commitments in which such
Participant has an interest and (y) clauses (B)(1), (2) or (3) of the first proviso to Section 9.02(b). Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections
2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section (it being understood that the documentation required under Section 2.17(f) shall be delivered to the
participating Lender, and if additional amounts are required to be paid pursuant to Section 2.17(a) or Section
2.17(c), to the Borrower). To the extent permitted by applicable Requirements of Law, each Participant also shall be entitled to
the benefits of Section 9.09 as though it were a Lender; provided that such Participant agrees to be subject to Section
2.18(c) as though it were a Lender.
(ii)
No Participant shall be entitled to receive any greater payment under Sections 2.15, 2.16 or 2.17 than the participating
Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written consent (in its sole discretion) expressly acknowledging such Participant
may receive a greater benefit. Any Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 2.17 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(f) as though it were a Lender and to deliver the tax forms required to
claim an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document and then only to the extent
of any amount to which such Lender would be entitled in the absence of any such participation (it being understood that the documentation
required under Section 2.17(f) shall be delivered to the participating Lender, and if additional amounts are required to be paid
pursuant to Section 2.17(a) or Section 2.17(c), to the Borrower).
Each
Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register
on which it enters the name and address of each Participant and their respective successors and assigns, and the principal amounts and
stated interest of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register
(including the identity of any Participant or any information relating to any Participant’s interest in any Commitment, Loan, Letter
of Credit or any other obligation under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish
that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the Treasury Regulations.
The entries in the Participant Register shall be conclusive absent manifest error, and each Lender shall treat each Person whose name
is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice
to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility
for maintaining a Participant Register.
(d)
(i) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (other than
to any Disqualified Institution, Defaulting Lender or any natural person) to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over such Lender,
and this Section 9.05 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release any Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(ii)
No Lender may at any time enter into a total return swap, total rate of return swap, credit default swap or other Derivative
Instrument under which any Loan or other Obligation hereunder is a reference obligation with any counterparty that is a Disqualified
Institution, in each case unless the terms of such Derivative Transaction do not allow for such Lender to provide Confidential
Information regarding Holdings or its subsidiaries to such counterparty and such Lender shall not agree to allow such counterparty
(or its Affiliates) to direct the vote of such Lender with respect to any matter regarding the Facilities (including in any
bankruptcy or other restructuring transaction).
(e)
Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a
special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof
and (iii) in no event may any Lender grant any option to provide to the Borrower all or any part of any Loan that such Granting
Lender would have otherwise been obligated to make to the Borrower pursuant to this Agreement to any Disqualified Institution or
Defaulting Lender. The making of any Loan by an SPC hereunder shall utilize the Commitment or Additional Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that (i) neither
the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change
the obligations of the Borrower under this Agreement (including its obligations under Section 2.15, 2.16 or 2.17)
and no SPC shall be entitled to any greater amount under Section 2.15, 2.16 or 2.17 or any other provision of
this Agreement or any other Loan Document that the Granting Lender would have been entitled to receive, unless the grant to such SPC
is made with the prior written consent of the Borrower (in its sole discretion), expressly acknowledging that such SPC’s
entitlement to benefits under Section 2.15, 2.16 or 2.17 is not limited to what the Granting Lender would have
been entitled to receive absent the grant to the SPC, (ii) no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting Lender) and (iii) the Granting Lender shall for all
purposes including approval of any amendment, waiver or other modification of any provision of the Loan Documents, remain the Lender
of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such
SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the Requirements of Law of the U.S. or
any State thereof; provided that (i) such SPC’s Granting Lender is in compliance in all material respects with its
obligations to the Borrower hereunder and (ii) each Lender designating any SPC hereby agrees to indemnify, save and hold harmless
each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against
such SPC during such period of forbearance. In addition, notwithstanding anything to the contrary contained in this Section
9.05, any SPC may (i) with notice to, but without the prior written consent of, the Borrower or the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its interests in any Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guaranty or credit or liquidity enhancement to such SPC.
(f)
(i) Any assignment or participation by a Lender without the Borrower’s consent (A) to any Disqualified Institution or any
Affiliate thereof or (B) to the extent the Borrower’s consent is required under this Section 9.05, to any other Person,
shall be null and void, and the Borrower shall be entitled to seek specific performance to unwind any such assignment or
participation and/or specifically enforce this Section 9.05(f) in addition to injunctive relief (without posting a bond or
presenting evidence of irreparable harm) or any other remedies available to the Borrower at law or in equity; it being understood
and agreed that Holdings, the Borrower and its subsidiaries will suffer irreparable harm if any Lender breaches any obligation under
this Section 9.05 as it relates to any assignment, participation or pledge of any Loan or Commitment to any Disqualified
Institution or any Affiliate thereof or any other Person to whom the Borrower’s consent is required but not obtained. Nothing
in this Section 9.05(f) shall be deemed to prejudice any right or remedy that Holdings or the Borrower may otherwise have at
law or equity or pursuant to Section 9.05(f)(ii) below;
(ii)
If any assignment or participation under this Section 9.05 is made to any Affiliate of any Disqualified Institution (other
than any Bona Fide Debt Fund that is not itself a Disqualified Institution) without the Borrower’s prior written consent (any
such person, a “Disqualified Person”), then the Borrower may, at its sole expense and effort, upon notice to the
applicable Disqualified Person and the Administrative Agent, (A) terminate any Commitment of such Disqualified Person and repay all
obligations of the Borrower owing to such Disqualified Person, (B) in the case of any outstanding Term Loans held by such
Disqualified Person, purchase such Term Loans by paying the lesser of (x) par and (y) the amount that such Disqualified Person paid
to acquire such Term Loans, plus accrued interest thereon, accrued fees and all other amounts payable to it hereunder and/or
(C) require such Disqualified Person to assign, without recourse (in accordance with and subject to the restrictions contained in
this Section 9.05), all of its interests, rights and obligations under this Agreement to one or more Eligible Assignees and
if such person does not execute and deliver to the Administrative Agent a duly executed Assignment Agreement reflecting such
assignment within five Business Days of the date on which the Eligible Assignee executes and delivers such Assignment Agreement to
such person, then such person shall be deemed to have executed and delivered such Assignment Agreement without any action on its
part; provided that (I) in the case of clauses (A) and (B), the Borrower shall not be liable to the relevant
Disqualified Person under Section 2.16 if any LIBO Rate Loan owing to such Disqualified Person is repaid or purchased other
than on the last day of the Interest Period relating thereto, (II) in the case of clause (C), the relevant assignment shall
otherwise comply with this Section 9.05 (except that (x) no registration and processing fee required under this Section
9.05 shall be required with any assignment pursuant to this paragraph and (y) any Term Loan acquired by any Affiliated Lender
pursuant to this paragraph will not be included in calculating compliance with the Affiliated Lender Cap for a period of 90 days
following such transfer; provided that, to the extent the aggregate principal amount of Term Loans held by Affiliated Lenders
exceeds the Affiliated Lender Cap on the 91st day following such transfer, then such excess amount shall either be (x) contributed
to Holdings, the Borrower or any of its subsidiaries and retired and cancelled immediately upon such contribution or (y)
automatically cancelled)) and (III) in no event shall such Disqualified Person be entitled to receive amounts set forth in Section
2.13(d). Further, any Disqualified Person identified by the Borrower to the Administrative Agent (A) shall not be permitted to
(x) receive information or reporting provided by any Loan Party, the Administrative Agent or any Lender and/or (y) attend and/or
participate in conference calls or meetings attended solely by the Lenders and the Administrative Agent, (B) (x) shall not for
purposes of determining whether the Required Lenders or the majority Lenders under any Class have (i) consented (or not consented)
to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any
departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required
the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan
Document, have a right to consent (or not consent), otherwise act or direct or require the Administrative Agent or any Lender to
take (or refrain from taking) any such action; it being understood that all Loans held by any Disqualified Person shall be deemed to
be not outstanding for all purposes of calculating whether the Required Lenders, majority Lenders under any Class or all Lenders
have taken any action and (y) shall be deemed to vote in the same proportion as Lenders that are not Disqualified Persons in any
proceeding under any Debtor Relief Law commenced by or against the Borrower or any other Loan Party and (C) shall not be entitled to
receive the benefits of Section 9.03. For the sake of clarity, the provisions in this Section 9.05(f) shall not apply
to any Person that is an assignee of any Disqualified Person, if such assignee is not a Disqualified Person;
(iii)
Upon the request of any Lender, the Administrative Agent may and the Borrower will make the list of Disqualified Institutions (other
than any Disqualified Institution that is a reasonably identifiable Affiliate of another Disqualified Institution on the basis of such
Person’s name) at the relevant time and such Lender may provide the list to any potential assignee for the purpose of verifying
whether such Person is a Disqualified Institution, in each case so long as such Lender and such potential assignee agree to keep the
list of Disqualified Institutions confidential in accordance with the terms hereof;
(iv)
The Borrower shall deliver the list of Disqualified Institutions and any updates, supplements or modifications thereto to JPMDQ_Contact@jpmorgan.com
and any such updates, supplements or modifications thereto shall only become effective 3 days after such notice. In the event the list
of Disqualified Institutions is not in accordance with the foregoing, it shall be deemed not received and not effective (except with
respect to any delivery on or prior to the Closing Date); and
(v)
Notwithstanding anything herein to the contrary, the Administrative Agent shall not be responsible or have any liability for, or have
any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions.
(g)
Notwithstanding anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations
under this Agreement in respect of its Initial Term Loans or Additional Term Loans to an Affiliated Lender on a non-pro rata basis
(A) through Dutch Auctions, or similar transactions pursuant to procedures to be established by the applicable “auction agent”
that are consistent with this Section 9.05(g), in each case open to all Lenders holding the relevant Initial Term Loans or such
Additional Term Loans, as applicable, on a pro rata basis or (B) through open market purchases, in each case with respect to clauses
(A) and (B), without the consent of the Administrative Agent; provided that:
(i)
any Initial Term Loans or Additional Term Loans acquired by Holdings, the Borrower or any of its subsidiaries shall, to the extent permitted
by applicable Requirements of Law, be retired and cancelled immediately upon the acquisition thereof; provided that upon any such
retirement and cancellation, the aggregate outstanding principal amount of the Initial Term Loans or Additional Term Loans, as applicable,
shall be deemed reduced by the full par value of the aggregate principal amount of the Initial Term Loans or Additional Term Loans so
retired and cancelled, and each principal repayment installment with respect to the Initial Term Loans pursuant to Section 2.10(a)
shall be reduced on a pro rata basis by the full par value of the aggregate principal amount of Initial Term Loans so cancelled;
(ii)
any Initial Term Loans or Additional Term Loans acquired by any Affiliated Lender may (but shall not be required to) be contributed
to Holdings, the Borrower or any of its subsidiaries or Parent Companies for purposes of cancelling such Indebtedness, and in
exchange thereof such Affiliated Lender may receive debt or equity securities of such entity or a direct or indirect parent entity
or subsidiary thereof that are otherwise permitted to be issued by such entity at such time, it being understood that (x) any such
Initial Term Loans or Additional Term Loans shall, to the extent permitted by applicable Requirements of Law, be retired and
cancelled immediately upon such contribution and (y) any such contribution shall be treated as a capital contribution that builds
the Available Amount pursuant to clause (iii) of the definition thereof by an amount equal to the fair market value (as
determined by the Borrower in good faith) of the Initial Term Loans or Additional Term Loans so contributed; provided that if
the fair market value of such Initial Term Loans or Additional Term Loans cannot be determined by the Borrower, the fair market
value shall be deemed to be the purchase price of such Initial Term Loans or Additional Term Loans paid by such Affiliated Lender); provided
that upon any such cancellation, the aggregate outstanding principal amount of the Initial Term Loans or Additional Term Loans, as
applicable, shall be deemed reduced, as of the date of such contribution, by the full par value of the aggregate principal amount of
the Initial Term Loans or Additional Term Loans so contributed and cancelled, and each principal repayment installment with respect
to the Initial Term Loans pursuant to Section 2.10(a) shall be reduced pro rata by the full par value of the aggregate
principal amount of Initial Term Loans so contributed and cancelled;
(iii)
the relevant Affiliated Lender and assigning Lender shall have executed an Affiliated Lender Assignment and Assumption;
(iv)
after giving effect to such assignment and to all other assignments to all Affiliated Lenders, the aggregate principal amount of all
Initial Term Loans and Additional Term Loans then held by all Affiliated Lenders shall not exceed 25% of the aggregate principal amount
of the Initial Term Loans and Additional Term Loans then outstanding (after giving effect to any substantially simultaneous cancellations
thereof) (the “Affiliated Lender Cap”); provided that each party hereto acknowledges and agrees that the Administrative
Agent shall not be liable for any losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements
of any kind or nature whatsoever incurred or suffered by any Person in connection with any compliance or non-compliance with this clause
(g)(iv) or any purported assignment exceeding the Affiliated Lender Cap (it being understood and agreed that the Affiliated Lender
Cap is intended to apply to any Loans made available to Affiliated Lenders by means other than formal assignment (e.g., as a result of
an acquisition of another Lender (other than any Debt Fund Affiliate) by any Affiliated Lender or the provision of Additional Term Loans
by any Affiliated Lender); provided, further, that to the extent that any assignment to any Affiliated Lender would result in
the aggregate principal amount of all Initial Term Loans and Additional Term Loans held by Affiliated Lenders exceeding the Affiliated
Lender Cap (after giving effect to any substantially simultaneous cancellations thereof), the assignment of the relevant excess amount
shall be null and void;
(v)
in connection with any assignment effected pursuant to a Dutch Auction and/or open market purchase conducted by Holdings, the Borrower
or any of its Restricted Subsidiaries, (A) the relevant Person may not use the proceeds of any Revolving Loans or Additional Revolving
Loans to fund such assignment and (B) no Event of Default exists at the time of acceptance of bids for the Dutch Auction or the confirmation
of such open market purchase, as applicable;
(vi)
by its acquisition of Term Loans, each relevant Affiliated Lender shall be deemed to have acknowledged and agreed that:
(A)
the Term Loans held by such Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any
Required Lender or other Lender vote (and the Term Loans held by such Affiliated Lender shall be deemed to be voted pro rata
along with the other Lenders that are not Affiliated Lenders); provided that (x) such Affiliated Lender shall have the right
to vote (and the Term Loans held by such Affiliated Lender shall not be so disregarded) with respect to any amendment, modification,
waiver, consent or other action that requires the vote of all Lenders or all Lenders directly and adversely affected thereby, as the
case may be, and (y) no amendment, modification, waiver, consent or other action shall (1) disproportionately affect such Affiliated
Lender in its capacity as a Lender as compared to other Lenders of the same Class that are not Affiliated Lenders or (2) deprive any
Affiliated Lender of its share of any payments which the Lenders are entitled to share on a pro rata basis hereunder, in each
case without the consent of such Affiliated Lender; and
(B)
such Affiliated Lender, solely in its capacity as an Affiliated Lender, will not be entitled to (i) attend (including by telephone) or
participate in any meeting or discussion (or portion thereof) among the Administrative Agent or any Lender or among Lenders to which
the Loan Parties or their representatives are not invited or (ii) receive any information or material prepared by the Administrative
Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders, except to the extent such information
or materials have been made available by the Administrative Agent or any Lender to any Loan Party or its representatives (and in any
case, other than the right to receive notices of Borrowings, prepayments and other administrative notices in respect of its Initial Term
Loans or Additional Term Loans required to be delivered to Lenders pursuant to Article 2); and
(vii)
neither the Sponsor nor any Affiliated Lender shall be required to represent or warrant that it is not in possession of material non-public
information with respect to Holdings, the Borrower and/or any subsidiary thereof and/or their respective securities in connection with
any assignment permitted by this Section 9.05(g).
Notwithstanding
anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under
this Agreement in respect of its Initial Term Loans, Additional Term Loans, Revolving Credit Commitments or Additional Revolving
Credit Commitments to any Debt Fund Affiliate, and any Debt Fund Affiliate may, from time to time, purchase Initial Term Loans,
Additional Term Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments (x) on a non-pro rata basis
through Dutch Auctions or similar transactions open to all applicable Lenders or (y) on a non-pro rata basis through open
market purchases without the consent of the Administrative Agent, in each case, notwithstanding the requirements set forth in subclauses
(i) through (vii) of this clause (g); provided that the Initial Term Loans, Additional Term Loans and unused
commitments and other Loans of all Debt Fund Affiliates shall not account for more than 49.9% of the amounts included in determining
whether the Required Lenders or Required Revolving Lenders have (A) consented to any amendment, modification, waiver, consent or
other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom or (B) directed or
required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to any Loan
Document. Any Initial Term Loans or Additional Term Loans acquired by any Debt Fund Affiliate may (but shall not be required to) be
contributed to the Borrower or any of its subsidiaries or parent entities for purposes of cancelling such Indebtedness and in
exchange thereof such Debt Fund Affiliate may receive debt or equity securities of such entity or a direct or indirect parent entity
or subsidiary thereof that are otherwise permitted to be issued by such entity at such time (it being understood that (x) any
Initial Term Loans or Additional Term Loans so contributed shall, to the extent permitted by applicable Requirements of Law, be
retired and cancelled immediately upon contribution thereof and (y) any such contribution shall be treated as a capital contribution
that builds the Available Amount pursuant to clause (iii) of the definition thereof by an amount equal to the fair market
value (as determined by the Borrower in good faith) of the Initial Term Loans or Additional Term Loans so contributed; provided
that if the fair market value of such Initial Term Loans or Additional Term Loans cannot be determined by the Borrower, the fair
market value shall be deemed to be the purchase price of such Initial Term Loans or Additional Term Loans paid by such Debt Fund
Affiliate)); provided that upon any such cancellation, the aggregate outstanding principal amount of the Initial Term Loans
or Additional Term Loans shall be deemed reduced, as of the date of such contribution, by the full par value of the aggregate
principal amount of the Initial Term Loans or Additional Term Loans so contributed and cancelled, and each principal repayment
installment with respect to the Initial Term Loans pursuant to Section 2.10(a) shall be reduced pro rata by the full
par value of the aggregate principal amount of Initial Term Loans so contributed and cancelled.
(h)
Notwithstanding anything to the contrary herein, at the election of the Borrower, Revolving Loans and Revolving Credit Commitments held
by a Defaulting Lender may be assigned to an Affiliated Lender without the need for the consent of any other Person, with the price of
such assignment being the lower of (i) par plus accrued and unpaid interest and commitment fees thereon and (ii) such lower amount as
agreed by the applicable Defaulting Lender and such Affiliated Lender; provided that Revolving Lenders that are not Defaulting
Lenders shall have the right to repurchase such assigned Revolving Loans and Revolving Credit Commitments from such Affiliated Lender,
with the price of such assignment being the lower of (i) par plus accrued and unpaid interest and commitment fees thereon and (ii) such
lower amount as agreed by such Revolving Lender and such Affiliated Lender; provided further that the provisions of clause
(g)(vi) above shall apply with respect to such Revolving Loans or Revolving Credit Commitments acquired and held by an Affiliated
Lender, other than an Affiliated Lender that is a Debt Fund Affiliate, in which case only the limitation set forth in the final paragraph
of Section 9.05(g) shall apply.
Section
9.06. Survival. All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in
the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letter of Credit regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent may have had notice or knowledge of any Default or Event of Default or incorrect representation
or warranty at the time any credit is extended hereunder, and shall continue in full force and effect until the Termination Date. The
provisions of Sections 2.15, 2.16, 2.17, 9.03 and 9.13 and Article 8 shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Revolving Credit Commitment or any Additional Commitment, the occurrence of the Termination
Date or the termination of this Agreement or any provision hereof but in each case, subject to the limitations set forth in this Agreement.
Section
9.07. Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and the Fee Letter constitute the entire agreement among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective when it has been executed by Holdings, the Borrower and the Administrative Agent and when
the Administrative Agent has received counterparts hereof which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted
assigns. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by email as a “.pdf” or
“.tif” attachment shall be effective as delivery of a manually executed counterpart of this Agreement.
Section
9.08. Severability. To the extent permitted by applicable Requirements of Law, any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity
of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section
9.09. Right of Setoff. At any time when an Event of Default exists, upon the written consent of the Administrative Agent and each
Issuing Bank, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Requirements
of Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other
obligations (in any currency) at any time owing by the Administrative Agent, such Issuing Bank or such Lender to or for the credit or
the account of the Borrower or any Loan Party against any of and all the Secured Obligations held by the Administrative Agent, such Issuing
Bank or such Lender, irrespective of whether or not the Administrative Agent, such Issuing Bank or such Lender shall have made any demand
under the Loan Documents and although such obligations may be contingent or unmatured or are owed to a branch or office of such Lender
or Issuing Bank different than the branch or office holding such deposit or obligation on such Indebtedness. Any applicable Lender or
Issuing Bank shall promptly notify the Borrower and the Administrative Agent of such set-off or application; provided that any
failure to give or any delay in giving such notice shall not affect the validity of any such set-off or application under this Section.
The rights of each Lender, each Issuing Bank and the Administrative Agent under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender, such Issuing Bank or the Administrative Agent may have.
Section
9.10. Governing Law; Jurisdiction; Consent to Service of Process.
(a)
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY
OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN
DOCUMENTS), WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED, THAT (I) THE INTERPRETATION OF THE DEFINITION OF “CLOSING DATE MATERIAL
ADVERSE EFFECT” AND THE DETERMINATION OF WHETHER A CLOSING DATE MATERIAL ADVERSE EFFECT HAS OCCURRED, (II) THE DETERMINATION OF
THE ACCURACY OF ANY SPECIFIED ACQUISITION AGREEMENT REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF MERGER SUB 1 OR
ITS APPLICABLE AFFILIATE HAS A RIGHT TO TERMINATE ITS OBLIGATIONS UNDER THE ACQUISITION AGREEMENT OR DECLINE TO CONSUMMATE THE ACQUISITION
AND (III) THE DETERMINATION OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE ACQUISITION AGREEMENT
AND, IN ANY CASE, ANY CLAIM OR DISPUTE ARISING OUT OF ANY SUCH INTERPRETATION OR DETERMINATION OR ANY ASPECT THEREOF, SHALL IN EACH CASE
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN
UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
(b)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY
U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM)
OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT
PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, FEDERAL COURT; PROVIDED THAT WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THE ACQUISITION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY WHICH DOES NOT INVOLVE ANY CLAIMS
AGAINST THE ARRANGERS, THE ISSUING BANKS, THE LENDERS OR ANY INDEMNIFIED PERSON, THIS SENTENCE SHALL NOT OVERRIDE ANY JURISDICTION
PROVISION IN THE ACQUISITION AGREEMENT. EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY
REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE REQUIREMENTS OF LAW. EACH
PARTY HERETO AGREES THAT THE ADMINISTRATIVE AGENT RETAINS THE RIGHT TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY
OTHER JURISDICTION SOLELY IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT.
(c)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
(d)
TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL)
DIRECTED TO IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01. EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR
UNDER ANY LOAN DOCUMENT THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL
AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE REQUIREMENTS OF LAW.
Section
9.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section
9.12. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Section
9.13. Confidentiality. Each of the Administrative Agent, each Lender, each Issuing Bank and each Arranger agrees (and each
Lender agrees to cause its SPC, if any) to maintain the confidentiality of the Confidential Information (as defined below), except
that Confidential Information may be disclosed (a) to its and its Affiliates’ directors, officers, managers, employees,
independent auditors, or other experts and advisors, including accountants, legal counsel and other advisors (collectively, the
“Representatives”) on a confidential, “need to know” basis solely in connection with the transactions
contemplated hereby and who are informed of the confidential nature of the Confidential Information and are or have been advised of
their obligation to keep the Confidential Information of this type confidential; provided that such Person shall be
responsible for its Affiliates’ and their Representatives’ compliance with this paragraph; provided, further,
that unless the Borrower otherwise consents, no such disclosure shall be made by the Administrative Agent, any Issuing Bank, any
Arranger, any Lender or any Affiliate or Representative thereof to any Affiliate or Representative of the Administrative Agent, any
Issuing Bank, any Arranger, or any Lender that is a Disqualified Institution, (b) upon the demand or request of any regulatory or
governmental authority having jurisdiction over such Person or its Affiliates (in which case such Person shall, except with respect
to any audit or examination conducted by bank accountants or any Governmental Authority or regulatory authority exercising
examination or regulatory authority, to the extent permitted by applicable Requirements of Law, (i) inform the Borrower promptly in
advance thereof and (ii) ensure that any information so disclosed is accorded confidential treatment), (c) to the extent compelled
by legal process in, or reasonably necessary to, the defense of such legal, judicial or administrative proceeding, in any legal,
judicial or administrative proceeding or otherwise as required by applicable Requirements of Law (in which case such Person shall
(i) to the extent permitted by law, inform the Borrower promptly in advance thereof, (ii) ensure that any such information so
disclosed is accorded confidential treatment and (iii) allow the Borrower a reasonable opportunity to object to such disclosure in
such proceeding), (d) to any other party to this Agreement, (e) subject to an acknowledgment and agreement by the relevant recipient
that the Confidential Information is being disseminated on a confidential basis (on substantially the terms set forth in this
paragraph or as otherwise reasonably acceptable to the Borrower and the Administrative Agent, including as set forth in the
Information Memorandum) in accordance with the standard syndication process of the Arrangers or market standards for dissemination
of the relevant type of information, which shall in any event require “click through” or other affirmative action on the
part of the recipient to access the Confidential Information and acknowledge its confidentiality obligations in respect thereof, to
(i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or prospective Participant in, any of its
rights or obligations under this Agreement, including any SPC (in each case other than a Disqualified Institution), (ii) any pledgee
referred to in Section 9.05, (iii) any actual or prospective direct or indirect contractual counterparty (or its advisors) to
any Derivative Transaction (including any credit default swap) or similar derivative product under which payments are to be made by
reference to the Borrower and its Obligations, (iv) any actual or prospective direct or indirect contractual counterparty (or its
advisors) to any Derivative Transaction (including any credit default swap) or similar derivative product to which any Loan Party is
a party and (v) subject to the Borrower’s prior approval of the information to be disclosed (not to be unreasonably withheld
or delayed), to Moody’s or S&P on a confidential basis in connection with obtaining or maintaining ratings as required
under Section 5.13, (f) with the prior written consent of the Borrower and (g) to the extent the Confidential Information
becomes publicly available other than as a result of a breach of this Section by such Person, its Affiliates or their respective
Representatives. For purposes of this Section, “Confidential Information” means all information relating to
Holdings, the Borrower and/or any of its subsidiaries and their respective businesses, the Sponsor,
the Transactions or the Amendment No. 1
Transactions (including any information obtained by the Administrative Agent, any Issuing Bank, any Lender or any Arranger, or any
of their respective Affiliates or Representatives, based on a review of the books and records relating to Holdings, the Borrower
and/or any of its subsidiaries and their respective Affiliates from time to time, including prior to the date hereof) other than any
such information that is publicly available to the Administrative Agent or any Arranger, Issuing Bank, or Lender on a
non-confidential basis prior to disclosure by Holdings, the Borrower or any of its subsidiaries. For the avoidance of doubt, in no
event shall any disclosure of any Confidential Information be made to Person that is a Disqualified Institution at the time of
disclosure.
Section
9.14. No Fiduciary Duty. Each of the Administrative Agent, the Arrangers, each Lender, each Issuing Bank and their respective
Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that
conflict with those of the Loan Parties, their stockholders and/or their respective affiliates. Each Loan Party agrees that nothing in
the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied
duty between any Lender, on the one hand, and such Loan Party, its respective stockholders or its respective affiliates, on the other.
Each Loan Party acknowledges and agrees that: (i) the transactions contemplated by the Loan Documents (including the exercise of rights
and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Loan
Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or
fiduciary responsibility in favor of any Loan Party, its respective stockholders or its respective affiliates with respect to the transactions
contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether
any Lender has advised, is currently advising or will advise any Loan Party, its respective stockholders or its respective Affiliates
on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y)
each Lender is acting solely as principal and not as the agent or fiduciary of such Loan Party, its respective management, stockholders,
creditors or any other Person. Each Loan Party acknowledges and agrees that such Loan Party has consulted its own legal, tax and financial
advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such
transactions and the process leading thereto.
Section
9.15. Several Obligations. The respective obligations of the Lenders hereunder are several and not joint and the failure of any
Lender to make any Loan, issue any Letter of Credit or perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder.
Section
9.16. USA PATRIOT Act. Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Loan Parties
that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies each
Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender to identify
such Loan Party in accordance with the USA PATRIOT Act.
Section
9.17. Disclosure. Each Loan Party, each Issuing Bank and each Lender hereby acknowledges and agrees that the Administrative Agent
and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with any of the Loan
Parties and their respective Affiliates.
Section
9.18. Appointment for Perfection. Each Lender hereby appoints each other Lender and each Issuing Bank as its agent for the purpose
of perfecting Liens for the benefit of the Administrative Agent, the Issuing Banks and the Lenders, in assets which, in accordance with
Article 9 of the UCC or any other applicable Requirements of Law can be perfected only by possession. If any Lender or Issuing Bank (other
than the Administrative Agent) obtains possession of any Collateral, such Lender or such Issuing Bank shall notify the Administrative
Agent thereof; and, promptly upon the Administrative Agent’s request therefor shall deliver such Collateral to the Administrative
Agent or otherwise deal with such Collateral in accordance with the Administrative Agent’s instructions.
Section
9.19. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to
any Loan or Letter of Credit, together with all fees, charges and other amounts which are treated as interest on such Loan or Letter
of Credit under applicable law (collectively, the “Applicable Charges”), shall exceed the maximum lawful rate (the
“Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender or Issuing Bank holding
such Loan or Letter of Credit in accordance with applicable Requirements of Law, the rate of interest payable in respect of such Loan
or Letter of Credit hereunder, together with all Applicable Charges payable in respect thereof, shall be limited to the Maximum Rate
and, to the extent lawful, the interest and Applicable Charges that would have been payable in respect of such Loan or Letter of Credit
but were not payable as a result of the operation of this Section shall be cumulated and the interest and Applicable Charges payable
to such Lender or Issuing Bank in respect of other Loans or Letters of Credit or periods shall be increased (but not above the Maximum
Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender or Issuing Bank.
Section
9.20. Intercreditor Agreement. REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT. EACH LENDER AND ISSUING BANK HEREUNDER AGREES
THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND AUTHORIZES AND INSTRUCTS
THE ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS “FIRST LIEN CREDIT AGREEMENT COLLATERAL AGENT” AND
ON BEHALF OF SUCH LENDER OR ISSUING BANK. THE PROVISIONS OF THIS SECTION 9.20 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS
OF THE INTERCREDITOR AGREEMENT, THE FORM OF WHICH IS ATTACHED AS AN EXHIBIT TO THIS AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR
AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER AND ISSUING BANK IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS
AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES
MAKES ANY REPRESENTATION TO ANY LENDER OR ISSUING BANK AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR
AGREEMENT. THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE LENDERS UNDER THE SECOND LIEN CREDIT AGREEMENT TO EXTEND CREDIT
THEREUNDER AND SUCH LENDERS ARE INTENDED THIRD PARTY BENEFICIARIES OF SUCH PROVISIONS AND THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.
Section
9.21. Conflicts. Notwithstanding anything to the contrary contained herein or in any other Loan Document (but excluding the Intercreditor
Agreement), in the event of any conflict or inconsistency between this Agreement and any other Loan Document (excluding the Intercreditor
Agreement), the terms of this Agreement shall govern and control; provided that in the case of any conflict or inconsistency between
the Intercreditor Agreement and any other Loan Document, the terms of the Intercreditor Agreement shall govern and control.
Section
9.22. Release of Guarantors. Notwithstanding anything in Section 9.02(b) to the contrary, (a) any Subsidiary Guarantor
shall automatically be released from its obligations hereunder (and its Loan Guaranty shall be automatically released) (i) upon the
consummation of any permitted transaction or series of related transactions if as a result thereof such Subsidiary Guarantor ceases
to be a Restricted Subsidiary (included by merger or dissolution) or becomes an Excluded Subsidiary as a result of a single
transaction or series of related transactions permitted hereunder; or (ii) upon the occurrence of the Termination Date, (b) any
Subsidiary Guarantor that qualifies as an “Excluded Subsidiary” shall be released from its obligations hereunder (and
its Loan Guaranty shall be automatically released) by the Administrative Agent promptly following the request therefor by the
Borrower and/or (c) the Person constituting Holdings immediately prior to the consummation of a Holdings Reorganization Transaction
whereby the existing “Holdings” is not intended to remain as such shall be automatically released from its obligations
hereunder (and its Loan Guaranty shall be automatically released) upon the consummation of such Holdings Reorganization Transaction; provided,
that the release of any Subsidiary Guarantor from its obligations under the Loan Guaranty if such Subsidiary Guarantor becomes an
Excluded Subsidiary of the type described in clause (a) of the definition thereof shall only be permitted if at the time such
Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect to such release and the consummation of the
transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower is deemed to have made a new Investment
in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an amount equal to the portion of the
fair market value of the net assets of such Person attributable to the Borrower’s equity interest therein as estimated by the
Borrower in good faith and such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f)) at such time. In
connection with any such release, the Administrative Agent shall, subject to receipt of an officer’s certificate from the
Borrower certifying that such transaction and release are permitted hereunder, promptly execute and deliver to the relevant Loan
Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence termination or
release. Any execution and delivery of documents pursuant to the preceding sentence of this Section 9.22 shall be without
recourse to or warranty by the Administrative Agent.
Section
9.23. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan
Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability
of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down
and conversion powers of an EEA Resolution Authority and each party hereto agrees and consents to, and acknowledges and agrees to be
bound by:
(a)
the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any
other Loan Document; or
(iii)
the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution
Authority.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
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A-B MERGER SUB I INC., as Holdings
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By:
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Name:
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Title:
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A-B
MERGER SUB II LLC, as the Borrower
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By:
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Name:
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Title:
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Signature Page to First Lien Credit Agreement
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BOWLMOR
AMF CORP., as Holdings
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By:
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Name:
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Title:
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KINGPIN
INTERMEDIATE HOLDINGS LLC, as the Borrower
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By:
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Name:
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Title:
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Signature Page to First Lien Credit Agreement
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JPMORGAN
CHASE BANK, N.A., as Administrative Agent, Issuing Bank and as a Lender
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By:
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Name:
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Title:
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CREDIT
SUISSE AG, CAYMAN ISLANDS BRANCH
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By:
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Name:
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Title:
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Signature Page to First Lien Credit Agreement
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GOLDMAN
SACHS BANK USA
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By:
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Name:
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Signature Page to First Lien Credit Agreement
Exhibit
10.12
EXECUTION
VERSION
SECOND
AMENDMENT (this “Amendment”), dated as of July 5, 2018, to the First Lien Credit Agreement dated as of July 3,
2017 (as amended pursuant to the First Incremental Amendment dated as of March 28, 2018 and as further amended, restated, supplemented
or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”) among Kingpin Intermediate
Holdings LLC (as the successor to the initial borrower A-B Merger Sub II LLC), as Borrower (the “Borrower”), Bowlero
Corp. (f/k/a Bowlmor AMF Corp.) (as the successor to initial Holdings A-B Merger Sub I Inc.), as Holdings (“Holdings”),
the financial institutions party thereto as Lenders, JPMorgan Chase Bank, N.A. (“JPM”), as Administrative Agent (and
on behalf of the Required Lenders pursuant to the Existing Credit Agreement) and the other parties thereto.
WHEREAS,
in accordance with the provisions of Sections 1.09, 2.22 and 9.02(c) of the Existing Credit Agreement, the Borrower has requested that
(i) each 2018 Refinancing Term Loan Lender (as hereinafter defined) with a 2018 Refinancing Term Loan Commitment (as hereinafter defined)
provide Replacement Term Loans under and as defined in the Existing Credit Agreement in respect of Term Loans outstanding under the Existing
Credit Agreement immediately prior to the effectiveness of this Amendment (the “Existing Term Loans”) in an aggregate
principal amount set forth opposite such 2018 Refinancing Term Loan Lender’s name on Schedule I hereto (the “2018 Refinancing
Term Loan Commitment”) and (ii) certain lenders who are currently lenders under the Existing Credit Agreement with Existing
Term Loans thereunder (each, a “Converting Lender”), convert all or, if otherwise specified by the Administrative
Agent, a portion of their outstanding Existing Term Loans into 2018 Refinancing Term Loans (as hereinafter defined) (each such 2018 Refinancing
Term Loan, a “Converting Term Loan”) in the same aggregate principal amount as such Converting Lender’s Existing
Term Loans (or such lesser amount as specified by the Administrative Agent) simultaneously with the making of other 2018 Refinancing
Term Loans hereunder (such Replacement Term Loans and Converting Term Loans, collectively, the “2018 Refinancing Term Loans”
and each lender under the Amended Credit Agreement (as hereinafter defined) that holds a 2018 Refinancing Term Loan, a “2018
Refinancing Term Loan Lender” and, collectively, the “2018 Refinancing Term Loan Lenders”) in an aggregate
principal amount of $715,000,000;
WHEREAS,
in connection with the foregoing, the Administrative Agent, Holdings, the Borrower and the 2018 Refinancing Term Loan Lenders desire
to memorialize the terms of this Amendment and to make certain other changes set forth herein and in the Amended Credit Agreement by
amending the Existing Credit Agreement in accordance with Sections 2.22 and 9.02(c) thereof, such amendments to become effective on the
Second Amendment Effective Date (as hereinafter defined); and
WHEREAS,
J.P. Morgan Chase Bank, N.A., Goldman Sachs Bank USA and Credit Suisse Loan Funding LLC (collectively, the “Amendment No. 2
Lead Arrangers”) shall act as joint lead arrangers and bookrunners with respect to this Amendment;
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Defined Terms. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the
Amended Credit Agreement.
SECTION
2. Existing Term Loan Refinancing.
(a)
Subject to the terms and conditions set forth herein, each of the 2018 Refinancing Term Loan Lenders severally, but not jointly, agrees
to (x) make 2018 Refinancing Term Loans to the Borrower on the Second Amendment Effective Date in the aggregate principal amount equal
to such 2018 Refinancing Term Loan Lender’s 2018 Refinancing Term Loan Commitment and/or (y) convert all, or if otherwise specified
by the Administrative Agent, a portion of its Existing Term Loans into Converting Term Loans pursuant to Section 6(e), as applicable.
Each such Converting Lender hereby agrees that all of its Existing Term Loans (or a lesser amount allocated to such Converting Lenders
by the Administrative Agent on or prior to the Second Amendment Effective Date) will be automatically exchanged for a like principal
amount of 2018 Refinancing Term Loans on the Second Amendment Effective Date.
(b)
On the Second Amendment Effective Date, each 2018 Refinancing Term Loan Lender party hereto, and JPM on behalf of the Required Lenders
pursuant to the Existing Credit Agreement, irrevocably consents to this Amendment and all modifications to the Existing Credit Agreement
contemplated hereby.
(c)
Upon the occurrence of the Second Amendment Effective Date, each 2018 Refinancing Term Loan Lender shall have the rights and obligations
of a Lender under the Amended Credit Agreement and under any other applicable Loan Documents.
(d)
Each of Holdings, the Borrower and each other Loan Party acknowledges and agrees that (i) the 2018 Refinancing Term Loans shall constitute
Obligations and have all the benefits thereof and the Borrower shall be liable for all Obligations with respect to all 2018 Refinancing
Term Loans made to the Borrower pursuant to this Amendment and (ii) all such Obligations shall constitute Guaranteed Obligations and
shall be secured by the Liens granted to the Administrative Agent for the benefit of the Secured Parties and entitled to the benefits
of the Collateral Documents and the Guarantee.
(e)
On the Second Amendment Effective Date, the Borrower shall (x) prepay in full all Existing Term Loans that are not Converting Term Loans
with the gross proceeds of the 2018 Refinancing Term Loans (other than the Converting Term Loans) and (y) pay to each Term Lender under
the Existing Credit Agreement prior to giving effect to this Amendment (each such Term Lender, an “Existing Term Lender”)
that is not a party hereto as a 2018 Refinancing Term Loan Lender or a party to a Converting Lender Consent, any breakage loss or expenses
due under Section 2.16 of the Existing Credit Agreement. Notwithstanding anything to the contrary contained herein or in the Existing
Credit Agreement or the Amended Credit Agreement, each 2018 Refinancing Term Loan Lender and each party to a Converting Lender Consent
agrees to waive any entitlement to any breakage loss or expenses due under Section 2.16 of the Existing Credit Agreement with respect
to the repayment of its Existing Term Loans or conversion of its Existing Term Loans into Converting Term Loans (as applicable) pursuant
to this Amendment. In furtherance of the foregoing, the Borrower hereby instructs and directs the Administrative Agent to apply the proceeds
of the 2018 Refinancing Term Loans funded on the Second Amendment Effective Date to the prepayment of the Existing Term Loans.
(f)
The 2018 Refinancing Term Loans shall be designated as a new tranche under the Existing Credit Agreement as amended hereby, with terms
and provisions identical to the Existing Term Loans (including as to maturity, Subsidiary Guarantors, Collateral (and ranking), mandatory
prepayments and payment priority), except as set forth herein and in the Amended Credit Agreement. The Administrative Agent and each
2018 Refinancing Term Loan Lender and each party to a Converting Lender Consent hereby agrees to an Interest Period for the 2018 Refinancing
Term Loans beginning on the Second Amendment Effective Date and ending on the last day of the Interest Period then in effect with respect
to the Existing Term Loans outstanding immediately prior to the effectiveness of this Amendment.
(g)
Promptly following the Second Amendment Effective Date, all Promissory Notes, if any, evidencing the Existing Term Loans shall be cancelled
and (to the extent in possession of the relevant Lender) returned to the Borrower, and any 2018 Refinancing Term Loan Lender may request
that its 2018 Refinancing Term Loan be evidenced by a Promissory Note pursuant to Section 2.10(f) of the Amended Credit Agreement.
SECTION
3. Amendments. Each of the parties hereto (including each Converting Lender) agrees that, subject to the satisfaction (or waiver)
of the conditions set forth herein, and immediately upon the making of the 2018 Refinancing Term Loans, the Existing Credit Agreement
shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken
text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the conformed pages of the Existing Credit Agreement attached as Exhibit A hereto (the Existing
Credit Agreement as so amended, the “Amended Credit Agreement”).
SECTION
4. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, Holdings, the Borrower and each
other Loan Party each represents and warrants to the other parties hereto on the Second Amendment Effective Date that:
(a)
(i) the execution, delivery and performance by such Loan Party of this Amendment and the Amended Credit Agreement is within such Loan
Party’s corporate or other organizational power and has been duly authorized by all necessary corporate or other organizational
action of each such Loan Party and (ii) this Amendment has been duly executed and delivered by such Loan Party and is a legal, valid
and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to the Legal Reservations;
(b)
the execution and delivery of this Amendment and the Amended Credit Agreement by each Loan Party party hereto and the performance by
such Loan Party hereof and thereof (i) do not require any consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except (A) such as have been obtained or made and are in full force and effect (except to the extent not
required to be obtained or made pursuant to the Collateral and Guarantee Requirement), (B) in connection with the Perfection Requirements
or (C) such consents, approvals, registrations, filings or other actions the failure to obtain or make which would not be reasonably
expected to have a Material Adverse Effect, (ii) will not violate any (A) of such Loan Party’s Organizational Documents or (B)
Requirements of Law applicable to such Loan Party which, in the case of this clause (ii), would reasonably be expected to have a Material
Adverse Effect and (iii) will not violate or result in a default under any material Contractual Obligation in respect of Indebtedness
having an aggregate principal amount exceeding the Threshold Amount to which such Loan Party is a party which, in the case of this clause
(iii), would reasonably be expected to result in a Material Adverse Effect;
(c)
As of the Second Amendment Effective Date, to the best knowledge of the Borrower, the information included in the Beneficial Ownership
Certification provided on or prior to the Second Amendment Effective Date to any Lender in connection with this Amendment is true and
correct in all respects
SECTION
5. Second Amendment Effective Date. This Amendment shall become effective as of the first date (the “Second Amendment Effective
Date”) on which each of the following conditions shall have been satisfied (or waived by the Administrative Agent):
(a)
the Administrative Agent (or its counsel) shall have received (x) a counterpart signature page of this Amendment duly executed by Holdings,
the Borrower and each Loan Party, the Administrative Agent and each 2018 Refinancing Term Loan Lender and (y) from each Converting Lender,
a Converting Lender Consent substantially in the form of Exhibit B hereto (the “Converting Lender Consent”)
(in each case, including by way of facsimile or other electronic transmission);
(b)
the Administrative Agent (or its counsel) shall have received a certificate signed by a Responsible Officer of each Loan Party referred
to in clause (a), in substantially the form delivered on the Closing Date (i) certifying that the articles of formation (or equivalent
document) of such Loan Party, certified by the appropriate Governmental Authority of the state of formation of such Loan Party, and the
operating agreement (or equivalent document) of such Loan Party, either (A) has not been amended since the Closing Date or (B) is attached
as an exhibit to such certificate and that such documents or agreements have not been amended (except as otherwise attached to such certificate
and certified therein as being the only amendments thereto as of such date) and certified as true and complete as of a recent date by
the appropriate Governmental Authority of the state of formation of such Loan Party, (ii) certifying that attached thereto are the resolutions
of the board of directors or other comparable managing body of such Loan Party approving the Amendment, the transactions contemplated
therein and authorizing execution and delivery thereof, certified by a Responsible Officer of such Loan Party as of the Second Amendment
Effective Date to be true and correct and in force and effect as of such date, (iii) certifying as to the incumbency and genuineness
of the signatures of the officers or other authorized signatories of such Loan Party executing this Amendment and (iv) attaching the
good standing certificates described in clause (d) of this Section 5;
(c)
to the extent requested by the Administrative Agent, the Administrative Agent (or its counsel) shall have received, on behalf of itself
and the Lenders and each Issuing Bank on the Second Amendment Effective Date, a customary written opinion of (i) Davis Polk & Wardwell
LLP, in its capacity as special New York counsel for Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its
capacity as special Delaware counsel for Holdings, the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity
as special Virginia counsel for Holdings, the Borrower and the Subsidiary Guarantors;
(d)
to the extent requested by the Administrative Agent, the Administrative Agent shall have received a certificate of good standing (to
the extent such concept exists in the relevant jurisdiction) with respect to such Loan Parties referred to in clause (a) (above) certified
as of a recent date by the appropriate Governmental Authority of the state of formation;
(e)
to the extent requested by the Administrative Agent, the Administrative Agent shall have received all documentation and other information,
at least two Business Days prior to the Second Amendment Effective Date, required by regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (in each case to the extent so requested
no less than ten Business Days prior to the Second Amendment Effective Date);
(f)
to the extent requested by the Administrative Agent in writing not less than five (5) days prior to the Second Amendment Effective Date,
to the extent the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial
Ownership Regulation”), the Lender shall have received a Beneficial Ownership Certification in relation to the Borrower (a
“Beneficial Ownership Certification”) (provided that, upon the execution and delivery by any Lender of its signature
page to this Amendment, the condition set forth in this clause (f) shall be deemed to be satisfied)
(g)
all fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent (including pursuant to Section
9.03 of the Existing Credit Agreement and pursuant to Section 7 hereof) or any arranger pursuant to any applicable engagement
letter with the Borrower on or before the Second Amendment Effective Date shall have been (or shall substantially contemporaneously be)
paid in full in cash (and in the case of expenses, to the extent invoiced at least three Business Days prior to the Second Amendment
Effective Date);
(h)
the Administrative Agent shall have received (a) a notice of prepayment of the Existing Term Loans and (b) a Borrowing Request in respect
of the 2018 Refinancing Term Loans to be made on the Second Amendment Effective Date; and
(i)
no Event of Default under Sections 7.01(a), (f) or (g) of the Amended Credit Agreement shall exist immediately prior to or after giving
effect to the effectiveness of this Amendment.
For
purposes of determining whether the conditions specified in this Section 5 have been satisfied on the date hereof, by the funding of
or converting to, as applicable, 2018 Refinancing Term Loans, the Administrative Agent and each 2018 Refinancing Term Loan Lender that
has executed this Agreement (or an Assignment and Assumption on the date hereof; or the applicable Converting Lender Consent on or prior
to the date hereof) shall be deemed to have consented to, waived, approved or accepted, or to be satisfied with, each document or other
matter required hereunder.
SECTION
6. Effect of Amendment.
(a)
Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise
affect the rights and remedies of the Lenders or the Agents under the Existing Credit Agreement or any other Loan Document, and shall
not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing
Credit Agreement or any other provision of the Existing Credit Agreement or of any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower to a consent
to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained
in the Existing Credit Agreement or any other Loan Document in similar or different circumstances.
(b)
From and after the Second Amendment Effective Date, (i) each reference in the Amended Credit Agreement to “this Agreement”,
“hereunder”, “hereof”, “herein”, or words of like import, and each reference to the “Credit
Agreement” in any other Loan Document shall be deemed a reference to the Existing Credit Agreement as amended hereby and (ii) each
reference in any Loan Document to the “Term Lenders”, “Initial Term Loans”, “Term Loans”, “Term
Loan Commitments”, “Commitment” or “Term Facility” shall be deemed a reference to the 2018 Refinancing
Term Loan Lenders, 2018 Refinancing Term Loans, 2018 Refinancing Term Loan Commitments, as applicable.
(c)
From and after the Second Amendment Effective Date, this Amendment shall constitute a “Loan Document” for all purposes of
the Amended Credit Agreement and the other Loan Documents and shall be deemed to be a “Refinancing Amendment” and an “Incremental
Facility Amendment” as defined in the Amended Credit Agreement.
(d)
Each party hereto acknowledges that this Amendment constitutes all notices or requests required under Section 2.22 of the Amended Credit
Agreement.
(e)
Each Converting Lender that executes and delivers a Converting Lender Consent electing the “Consent and Cashless Roll Option”
shall be deemed to agree, upon the effectiveness of this Amendment on the Amendment Effective Date that (i) all (or such lesser amount
as the Administrative Agent may allocate to such Converting Lender) of its Existing Term Loans shall constitute 2018 Refinancing Term
Loans under the Amended Credit Agreement (each such 2018 Refinancing Term Loan, to such extent, a “Cashless Converting Loan”)
and (ii) it waives any right to receive its share of the prepayment of Existing Term Loans referred to in Section 2(b), solely to the
extent of such Cashless Converting Loans.
(f)
Each Converting Lender that executes and delivers a Converting Lender Consent electing the “Consent and Assignment Option”
shall be repaid in full (or such lesser amount as the Administrative Agent may allocate to such Converting Lender) on the Second Amendment
Effective Date, including for all accrued and unpaid interest, fees, expenses and other compensation owed to such Converting Lender and
due and payable by the Borrower pursuant to the Existing Credit Agreement (including Section 2.16 thereof) and this Amendment. Each such
Converting Lender agrees that it shall be deemed to have executed an Assignment and Assumption pursuant to Section 9.05 of the Existing
Credit Agreement on the Second Amendment Effective Date and to have purchased a principal amount of 2018 Refinancing Term Loans in an
amount equal to the principal amount of such repayment (or such lesser amount as the Administrative Agent may allocate to such Converting
Lender).
(g)
The Administrative Agent and each Lender party hereto consents to an Interest Period for the 2018 Refinancing Term Loans beginning on
the Second Amendment Effective Date and ending on the last day of the Interest Period then in effect with respect to the Initial Term
Loans outstanding immediately prior to the effectiveness of this Amendment.
(h)
This Amendment shall not constitute a novation of the Existing Credit Agreement or any other Loan Document.
SECTION
7. Expenses. The Borrower agrees to reimburse the Administrative Agent for its reasonable and documented out-of-pocket expenses
incurred by it in connection with this Amendment, including the reasonable and documented fees, charges and disbursements of Cahill Gordon
& Reindel LLP, counsel for the Administrative Agent.
SECTION
8. Amendments; Severability. (a) Once effective, this Amendment may not be amended nor may any provision hereof be waived except
pursuant to Section 9.02 of the Amended Credit Agreement.
(b)
If any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the
remaining provisions of this Amendment shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction
shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION
9. Ratification and Reaffirmation. Each Loan Party hereby ratifies and reaffirms: (a) its Obligations in respect of the Existing
Credit Agreement and each of the other Loan Documents to which it is a party and all of the covenants, duties, indebtedness and liabilities
under the Existing Credit Agreement and the other Loan Documents to which it is a party, (b) its prior grant and the validity of the
Liens granted by it pursuant to the Collateral Documents, with all such Liens continuing in full force and effect after giving effect
to this Amendment and (c) the Liens and security interests created in favor of the Administrative Agent for the benefit of the Secured
Parties (including the 2018 Refinancing Term Loan Lenders) pursuant to each Collateral Document; which Liens shall continue to secure
the Secured Obligations (including the 2018 Refinancing Term Loans), in each case, on and subject to the terms and conditions set forth
in the Amended Credit Agreement and the other Loan Documents.
SECTION
10. GOVERNING LAW; Waiver of Jury Trial; Jurisdiction. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions of Sections 9.10
and 9.11 of the Existing Credit Agreement as amended by this Amendment are incorporated herein by reference, mutatis mutandis.
SECTION
11. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of
this Amendment.
SECTION
12. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. Delivery by facsimile or other electronic imaging means of an executed
counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto
duly authorized as of the date first written above.
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KINGPIN
INTERMEDIATE HOLDINGS LLC, as Borrower
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By:
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/s/
Brett I. Parker
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Name:
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Brett
I. Parker
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Title:
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Chief
Financial Officer
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BOWLERO
CORP., as Holdings
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By:
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/s/
Brett I. Parker
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Name:
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Brett
I. Parker
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Title:
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Chief
Financial Officer
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[Signature
Page to Bowlero Second Amendment]
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Subsidiary Guarantors:
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Kingpin Intermediate LLC
Strike Holdings LLC
Bowlmor Lanes LLC
Bowlmor Times Square, LLC
Westwood Lanes, LLC
Strike Miami, LLC
Strike Cupertino VFP, LLC
Strike Tustin TDTL, LLC
Strike Consulting, LLC
Strike Long Island, LLC
Bowlero Jupiter Lanes, LLC
Leiserv, LLC
Brunswick Recreation LLC
Brunswick Zone XL Colorado Springs, LLC
Brunswick Zone XL Rockford LLC
Bowlero Scottsdale, LLC
Bowlero Leesburg, LLC
Bowlero Dania, LLC
AMF Worldwide Bowling Centers Holdings Inc.
AMF Bowling Centers Holdings Inc.
AMF Bowling Centers, Inc.
Texas Operations Holding Company, Inc.
AMF Bowling Worldwide, Inc.
Goode Bowling LLC
AMF Beverage Company of Oregon, Inc.
King Louie Lenexa, Inc.
Bush River Corporation
L’aigle D’or, Inc.
Brunswick Riverview Club, Inc.
Perry Hall Lounge, Inc.
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By:
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/s/ Brett
I. Parker
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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[Signature
Page to Bowlero Second Amendment]
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300,
Inc.
Texas Operations, LLC
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By:
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/s/ William
DuFour
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Name:
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William DuFour
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Title:
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President
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The
Columbia Lounge, Inc.
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By:
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Name:
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Thomas F. Shannon
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Title:
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President
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[Signature
Page to Bowlero Second Amendment]
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300,
Inc.
Texas Operations, LLC
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By:
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Name:
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William DuFour
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Title:
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President
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The
Columbia Lounge, Inc.
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By:
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/s/ Thomas
F. Shannon
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Name:
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Thomas F. Shannon
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Title:
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President
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[Signature
Page to Bowlero Second Amendment]
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JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent, 2018 Refinancing Term
Loan Lender and Revolving
Lender
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By:
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/s/
Peter Thauer
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Name:
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Peter Thauer
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Title:
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Managing Director
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[Signature
Page to Bowlero Second Amendment]
[Lender
signature pages on file with the Administrative Agent.]
[Signature
Page to Bowlero Second Amendment]
SCHEDULE
I
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2018 Refinancing Term Loan Lender
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2018 Refinancing Term Loan Commitment
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JPMorgan Chase Bank, N.A.
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$
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715,000,000
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Total
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$
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715,000,000
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EXHIBIT
A: Amendments to Credit Agreement
(see
attached)
EXHIBIT
A
Adjusted
marked version reflecting changes made pursuant to the Second Amendment.
Added
text shown underscored; deleted text shown strikethrough.
FIRST
LIEN CREDIT AGREEMENT
Dated
as of July 3, 2017
(as
amended as of March 28, 2018 and July 5, 2018)
among
A-B
MERGER SUB II LLC
(to
be merged with and into KINGPIN INTERMEDIATE HOLDINGS LLC),
as the Borrower,
A-B
MERGER SUB I INC.
(to
be merged with and into BOWLMOR AMF CORP.),
as Holdings,
THE
FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent, Swingline Lender and an Issuing Bank,
and
JPMORGAN
CHASE BANK, N.A.,
CREDIT SUISSE SECURITIES (USA) LLC and
GOLDMAN SACHS BANK USA,
as
Joint Lead Arrangers
and Joint Bookrunners
TABLE
OF CONTENTS
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PAGE
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ARTICLE 1
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DEFINITIONS
|
2
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Section 1.01.
|
Defined Terms
|
2
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Section 1.02.
|
Classification of Loans and Borrowings
|
7577
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|
|
Section 1.03.
|
Terms Generally
|
7577
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|
Section 1.04.
|
Accounting Terms; GAAP
|
7678
|
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Section 1.05.
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Effectuation of Transactions
|
8082
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|
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Section 1.06.
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Timing of Payment and Performance
|
8082
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Section 1.07.
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Times of Day
|
8082
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|
Section 1.08.
|
Currency Equivalents Generally
|
8082
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|
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Section 1.09.
|
Cashless Rollovers
|
8183
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Section 1.10.
|
Alternative Currencies
|
8283
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|
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ARTICLE 2
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THE CREDITS
|
8284
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|
Section 2.01.
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Commitments
|
8284
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|
Section 2.02.
|
Loans and Borrowings
|
8385
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|
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Section 2.03.
|
Requests for Borrowings
|
8486
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|
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Section 2.04.
|
Swingline Loans
|
8586
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Section 2.05.
|
Letters of Credit
|
8688
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|
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Section 2.06.
|
[Reserved]
|
9193
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Section 2.07.
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Funding of Borrowings
|
9193
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Section 2.08.
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Type; Interest Elections
|
9294
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Section 2.09.
|
Termination and Reduction of Commitments
|
9395
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Section 2.10.
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Repayment of Loans; Evidence of Debt
|
9496
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Section 2.11.
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Prepayment of Loans
|
9597
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Section 2.12.
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Fees
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102104
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Section 2.13.
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Interest
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104106
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Section 2.14.
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Alternate Rate of Interest
|
105107
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Section 2.15.
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Increased Costs
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105107
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Section 2.16.
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Break Funding Payments
|
106109
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Section 2.17.
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Taxes
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107109
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Section 2.18.
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Payments Generally; Allocation of Proceeds; Sharing
of Payments
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111113
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Section 2.19.
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Mitigation Obligations; Replacement of Lenders
|
113115
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Section 2.20.
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Illegality
|
114117
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Section 2.21.
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Defaulting Lenders
|
115117
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Section 2.22.
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Incremental Credit Extensions
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117119
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Section 2.23.
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Extensions of Loans and Revolving Credit Commitments
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122124
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ARTICLE 3
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REPRESENTATIONS AND WARRANTIES
|
125127
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Section 3.01.
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Organization; Powers
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125127
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Section 3.02.
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Authorization; Enforceability
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125127
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Section 3.03.
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Governmental Approvals; No Conflicts
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125128
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Section 3.04.
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Financial Condition; No Material Adverse Effect
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125128
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Section 3.05.
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Properties
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126128
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Section 3.06.
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Litigation and Environmental Matters
|
126129
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Section 3.07.
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Compliance with Laws
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127129
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Section 3.08.
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Investment Company Status
|
127129
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Section 3.09.
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Taxes
|
127129
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Section 3.10.
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ERISA
|
127129
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Section 3.11.
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Disclosure
|
127130
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Section 3.12.
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Solvency
|
128130
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Section 3.13.
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Capitalization and Subsidiaries
|
128130
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Section 3.14.
|
Security Interest in Collateral
|
128131
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Section 3.15.
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Labor Disputes
|
128131
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Section 3.16.
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Federal Reserve Regulations
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129131
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Section 3.17.
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Sanctions and Anti-Corruption Laws
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129131
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ARTICLE 4
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CONDITIONS
|
129132
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Section 4.01.
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Closing Date
|
129132
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Section 4.02.
|
Each Credit Extension
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133135
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ARTICLE 5
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AFFIRMATIVE COVENANTS
|
133136
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Section 5.01.
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Financial Statements and Other Reports
|
134136
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Section 5.02.
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Existence
|
137139
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Section 5.03.
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Payment of Taxes
|
137139
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Section 5.04.
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Maintenance of Properties
|
137139
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Section 5.05.
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Insurance
|
137140
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Section 5.06.
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Inspections
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138140
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Section 5.07.
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Maintenance of Book and Records
|
138141
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Section 5.08.
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Compliance with Laws
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138141
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Section 5.09.
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Hazardous Materials Activity
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139141
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Section 5.10.
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Designation of Subsidiaries
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139142
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Section 5.11.
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Use of Proceeds
|
140142
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Section 5.12.
|
Covenant to Guarantee Obligations and Give Security
|
140143
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Section 5.13.
|
Maintenance of Ratings
|
142145
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Section 5.14.
|
Maintenance of Fiscal Year
|
142145
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Section 5.15.
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Further Assurances
|
142145
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Section 5.16.
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Conduct of Business
|
143145
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Section 5.17.
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Annual Lender Call
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143146
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Section 5.18.
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Post-Closing Actions
|
143146
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ARTICLE 6
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NEGATIVE COVENANTS
|
143146
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Section 6.01.
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Indebtedness
|
143146
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Section 6.02.
|
Liens
|
150151
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Section 6.03.
|
No Further Negative Pledges
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156157
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Section 6.04.
|
Restricted Payments; Certain Payments of Indebtedness
|
157159
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Section 6.05.
|
[Reserved]
|
164165
|
|
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Section 6.06.
|
Investments
|
164165
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|
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Section 6.07.
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Fundamental Changes; Disposition of Assets
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169170
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Section 6.08.
|
Sale and Lease-Back Transactions
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173175
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Section 6.09.
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Transactions with Affiliates
|
174176
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|
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Section 6.10.
|
[Reserved]
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176178
|
|
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Section 6.11.
|
[Reserved]
|
176178
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|
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Section 6.12.
|
Amendments of or Waivers with Respect to Restricted
Debt
|
176178
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|
|
Section 6.13.
|
[Reserved]
|
177178
|
|
|
Section 6.14.
|
Permitted Activities of Holdings
|
177178
|
|
|
Section 6.15.
|
Financial Covenant
|
178180
|
|
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|
ARTICLE 7
|
EVENTS OF DEFAULT
|
179181
|
|
|
Section 7.01.
|
Events of Default
|
179181
|
|
|
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|
ARTICLE 8
|
THE ADMINISTRATIVE AGENT
|
183185
|
|
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|
ARTICLE 9
|
MISCELLANEOUS
|
191192
|
|
|
Section 9.01.
|
Notices
|
191192
|
|
|
Section 9.02.
|
Waivers; Amendments
|
192194
|
|
|
Section 9.03.
|
Expenses; Indemnity
|
200201
|
|
|
Section 9.04.
|
Waiver of Claim
|
201203
|
|
|
Section 9.05.
|
Successors and Assigns
|
201203
|
|
|
Section 9.06.
|
Survival
|
211213
|
|
|
Section 9.07.
|
Counterparts; Integration; Effectiveness
|
212214
|
|
|
|
|
|
|
|
|
Section 9.08.
|
Severability
|
212214
|
|
|
Section 9.09.
|
Right of Setoff
|
212214
|
|
|
Section 9.10.
|
Governing Law; Jurisdiction; Consent to Service of Process
|
212214
|
|
|
Section 9.11.
|
Waiver of Jury Trial
|
214215
|
|
|
Section 9.12.
|
Headings
|
214215
|
|
|
Section 9.13.
|
Confidentiality
|
214216
|
|
|
Section 9.14.
|
No Fiduciary Duty
|
215217
|
|
|
Section 9.15.
|
Several Obligations
|
216217
|
|
|
Section 9.16.
|
USA PATRIOT Act
|
216218
|
|
|
Section 9.17.
|
Disclosure
|
216218
|
|
|
Section 9.18.
|
Appointment for Perfection
|
216218
|
|
|
Section 9.19.
|
Interest Rate Limitation
|
216218
|
|
|
Section 9.20.
|
Intercreditor Agreement
|
216218
|
|
|
Section 9.21.
|
Conflicts
|
217219
|
|
|
Section 9.22.
|
Release of Guarantors
|
217219
|
|
|
Section 9.23.
|
Acknowledgement and Consent to Bail-In of EEA Financial
Institutions
|
218219
|
|
SCHEDULES:
|
|
|
|
|
|
|
|
Schedule 1.01(a)
|
–
|
Commitment Schedule
|
|
Schedule 1.01(b)
|
–
|
Existing Letters of Credit
|
|
Schedule 1.01(c)
|
–
|
[Reserved]
|
|
Schedule 1.01(d)
|
–
|
[Reserved]
|
|
Schedule 1.01(e)
|
–
|
Existing Credit Facilities Excluded Properties
|
|
Schedule 1.01(f)
|
–
|
Excluded Properties
|
|
Schedule 1.01(g)
|
–
|
Liquor License Subsidiaries
|
|
Schedule 3.06
|
–
|
Litigation and Environmental Matters
|
|
Schedule 3.13
|
–
|
Subsidiaries
|
|
Schedule 5.10
|
–
|
Unrestricted Subsidiaries
|
|
Schedule 5.18
|
–
|
Post-Closing Actions
|
|
Schedule 6.01
|
–
|
Existing Indebtedness
|
|
Schedule 6.02
|
–
|
Existing Liens
|
|
Schedule 6.03
|
–
|
Negative Pledges
|
|
Schedule 6.06
|
–
|
Existing Investments
|
|
Schedule 6.07
|
–
|
Certain Dispositions
|
|
Schedule 9.01
|
–
|
Borrower’s Website Address for Electronic Delivery
|
|
|
|
|
|
EXHIBITS:
|
|
|
|
|
|
|
|
Exhibit A-1
|
–
|
Form of Assignment and Assumption
|
|
Exhibit A-2
|
–
|
Form of Affiliated Lender Assignment and Assumption
|
|
Exhibit B
|
–
|
Form of Borrowing Request
|
|
Exhibit C
|
–
|
Form of Compliance Certificate
|
|
Exhibit D
|
–
|
Form of Interest Election Request
|
|
Exhibit E
|
–
|
Form of Perfection Certificate
|
|
Exhibit F
|
–
|
[Reserved]
|
|
Exhibit G
|
–
|
Form of Promissory Note
|
|
Exhibit H-1
|
–
|
Form of Trademark Security Agreement
|
|
Exhibit H-2
|
–
|
Form of Patent Security Agreement
|
|
Exhibit H-3
|
–
|
Form of Copyright Security Agreement
|
|
Exhibit I
|
–
|
Form of Guaranty Agreement
|
|
Exhibit J
|
–
|
Form of Security Agreement
|
|
Exhibit K
|
–
|
Form of Letter of Credit Request
|
|
Exhibit L-1
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are
Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-2
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That
Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-3
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That
Are Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-4
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are
Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit M
|
–
|
Form of Solvency Certificate
|
|
Exhibit N
|
–
|
Form of Intercreditor Agreement
|
FIRST
LIEN CREDIT AGREEMENT
FIRST
LIEN CREDIT AGREEMENT, dated as of July 3, 2017 (and
as amended pursuant to Amendment No. 1 and Amendment No. 2 referred to below (as further amended, supplemented or otherwise modified
from time to time in accordance with the terms hereof, this “Agreement”), by and among A-B Merger Sub
I Inc., a Delaware corporation (“Merger Sub 1”), A-B Merger Sub II LLC, a Delaware limited liability company
(“Merger Sub 2”), the Lenders from time to time party hereto, JPMorgan Chase Bank, N.A.
(“JPM”), in its capacities as administrative agent for the Lenders and collateral agent for the Secured Parties
(in such capacities, together with its successor and permitted assigns, the “Administrative Agent”), the
Swingline Lender and an Issuing Bank, Credit Suisse AG, Cayman Islands Branch (“Credit Suisse”), in its capacity
as an Issuing Bank, and Goldman Sachs Bank USA (“GS Bank”), in its capacity as an Issuing Bank, with JPM, Credit
Suisse Securities (USA) LLC and Goldman Sachs Bank USA, as joint lead arrangers and joint bookrunners (in such capacities,
collectively, the “Arrangers”).
RECITALS
A.
Pursuant to the terms of the Acquisition Agreement, on the Closing Date, (i) Parent will acquireacquired,
by merger of Merger Sub 1 with and into the Target, a majority of the issued and outstanding equity interests of the Target (with the
Target being the surviving entity of such merger) (the “Merger Sub 1 Merger”) and (ii) Merger Sub 2 will
mergemerged with and into Kingpin Intermediate
(with Kingpin Intermediate being the surviving entity of such merger) (the “Merger Sub 2 Merger”).
B.
To consummate the Transactions, certain of the Investors will directly or indirectly
(including by way of repayment of existing debt of the Target and/or payments to existing shareholders of the Target) makemade
cash contributions to Merger Sub 1 and/or the Target (with all such cash contributions to be in the form of (i) common equity,
(ii) the Series A Preferred Stock, (iii) Qualified Capital Stock or (iv) other preferred Capital Stock or other instruments (in the case
of clause (iv), having terms reasonably acceptable to the Administrative Agent) (any such equity or instruments “Permitted
Equity”), which cash contributions shall bewere
in an aggregate amount that, when taken together with all equity interests (including restricted stock or options) retained,
rolled-over or directly or indirectly invested in Permitted Equity of Holdings and all Permitted Equity of Holdings issued to, or otherwise
directly or indirectly held or acquired by, any shareholders, directors or management of the Target (together, the “Equity Contribution”)
will bewas not
less than 30% (the “Minimum Equity Percentage”) of the sum of (i) the aggregate principal amount of the Credit Facilities
and Second Lien Facility funded on the Closing Date (excluding (A) amounts drawn under the Revolving Facility on the Closing Date for
working capital purposes and/or purchase price adjustments, to fund Transaction Costs or to replace, backstop or cash collateralize existing
letters of credit and (B) any letters of credit outstanding on the Closing Date) and (ii) the Equity Contribution.
C.
To consummate the Transactions on the Closing Date, the Borrower has
requested that the Lenders under this Agreement as of such
date (such agreement as in effect immediately prior to the Amendment No. 2 Effective Date, the “Existing Credit Agreement”)
extend credit in the form of (a) Initial Term Loans (excluding the Amendment No. 1 Incremental Term Loans) in an original
aggregate principal amount equal to $585,000,000 and (b) a Revolving Facility with an available amount of $50,000,000, in each case,
subject to increase as provided herein.
D.
To consummate the Transactions on the Closing Date, the Borrower will
also borrowborrowed
term loans in an original aggregate principal amount equal to $110,000,000 under the Second Lien Credit Agreement.
E.
The Lenders areunder the
Existing Credit Agreement were willing to extend the Initial Term Loans (excluding the Amendment No. 1 Incremental Term Loans)
and to make available the Revolving Facility, in each case on the terms and subject to the conditions set forth hereintherein.
F.
To consummate the Transactions on the Amendment No. 1 Effective Date, the Borrower borrowed Incremental Term Loans in an original aggregate
principal amount equal to $113,000,000 pursuant to Amendment No. 1.
G.
Holdings, the Borrower, the Administrative Agent and the Lenders party thereto have entered into that certain Second Amendment (“Amendment
No. 2”), dated as of July 5, 2018 (the “Amendment No. 2 Effective Date”), under which the Amendment No.
2 Term Lenders (as hereinafter defined) are extending credit to the Borrower in the form of Amendment No. 2 Term Loans (as hereinafter
defined) in an original aggregate principal amount equal to $715,000,000.
H.
Pursuant to Amendment No. 2, the Administrative Agent, Holdings, the Borrower and the Amendment No. 2 Term Lenders have agreed to amend
the Existing Credit Agreement as provided in this Agreement.
I.
Accordingly, the parties hereto agree as follows:
ARTICLE
1 DEFINITIONS
Section
1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at
a rate determined by reference to the Alternate Base Rate.
“Acceptable
Intercreditor Agreement” means the Intercreditor Agreement, a Market Intercreditor Agreement, or another intercreditor agreement
that is reasonably satisfactory to the Administrative Agent (which may, if applicable, consist of a payment “waterfall”).
“ACH”
means automated clearing house transfers.
“Acquisition”
means the Mergers and the other transactions contemplated by the Acquisition Agreement.
“Acquisition
Agreement” means that certain Agreement and Plan of Merger, dated as of June 6, 2017, by and among, inter alios, Parent,
Merger Sub 1, Merger Sub 2, the Target and the other Persons party thereto.
“Additional
Agreement” has the meaning assigned to such term in Article 8.
“Additional
Commitment” means any commitment hereunder added pursuant to Sections 2.22, 2.23 or 9.02(c) (including, for the avoidance
of doubt, the Amendment No. 2 Term Loan Commitments).
“Additional
Credit Facilities” means any credit facilities added pursuant to Sections 2.22, 2.23 or 9.02(c).
“Additional
Lender” has the meaning assigned to such term in Section 2.22(b).
“Additional
Letter of Credit Facility” means any letter of credit facility established by the Borrower and/or any Restricted Subsidiary
outside of this Agreement to obtain letters of credit required by customers, suppliers or landlords or otherwise required in the ordinary
course of business.
“Additional
Loans” means any Additional Revolving Loans and any Additional Term Loans.
“Additional
Revolving Credit Commitments” means any revolving credit commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Revolving Credit Exposure” means, with respect to any Person at any time, the aggregate outstanding principal amount at such
time of all Additional Revolving Loans of such Person, plus the aggregate amount at such time of such Person’s LC Exposure
and Swingline Exposure, in each case, attributable to its Additional Revolving Credit Commitment.
“Additional
Revolving Facility” means any revolving credit facility added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Revolving Lender” means any Lender with an Additional Revolving Credit Commitment or any Additional Revolving Credit Exposure.
“Additional
Revolving Loans” means any revolving loan added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Term Loan Commitments” means any term loan commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(i)
(including, for the avoidance of doubt, the Amendment No. 2 Term Loan Commitment).
“Additional
Term Loans” means any term loan added pursuant to Section 2.22, 2.23 or 9.02(c)(i) (including,
for the avoidance of doubt, the Amendment No. 2 Term Loans).
“Adjustment
Date” means the date of delivery of financial statements required to be delivered pursuant to Section 5.01(a) or Section
5.01(b), as applicable.
“Administrative
Agent” has the meaning assigned to such term in the preamble to this Agreement.
“Administrative
Questionnaire” has the meaning assigned to such term in Section 2.22(d).
“Adverse
Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation
or arbitration (whether or not purportedly on behalf of Holdings, the Borrower or any of its Restricted Subsidiaries) at law or in equity,
or before or by any Governmental Authority, domestic or foreign, whether pending or, to the knowledge of Holdings, the Borrower or any
of its Restricted Subsidiaries, threatened in writing, against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries
or any property of Holdings, the Borrower or any of its Restricted Subsidiaries.
“Affiliate”
means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that
Person. No Person shall be an “Affiliate” of Holdings or any subsidiary thereof solely because it is an unrelated portfolio
company of the Sponsor and none of the Administrative Agent, the Arrangers, any Lender (other than any Affiliated Lender or any Debt
Fund Affiliate) or any of their respective Affiliates shall be considered an Affiliate of Holdings or any subsidiary thereof. For the
avoidance of doubt, the parties hereto agree that Comcast Corporation, a Pennsylvania corporation, is not an Affiliate of Holdings or
the Borrower as of the Closing Date.
“Affiliated
Lender” means any Non-Debt Fund Affiliate, Holdings, the Borrower and/or any of its Restricted Subsidiaries.
“Affiliated
Lender Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Affiliated Lender (with
the consent of any party whose consent is required by Section 9.05) and accepted by the Administrative Agent in the form of Exhibit
A-2 or any other form approved by the Administrative Agent and the Borrower.
“Affiliated
Lender Cap” has the meaning assigned to such term in Section 9.05(g)(iv).
“Aggregate
Revolving Credit Exposure” means, at any time, the aggregate amount of the Lenders’ Revolving Credit Exposures at such
time.
“Agreement”
has the meaning assigned to such term in the preamble to this First Lien Credit Agreement.
“Alternate
Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such
day plus 0.50%, (b) to the extent ascertainable, the Published LIBO Rate (which rate shall be calculated based upon an Interest
Period of one month and shall be determined on a daily basis based on the rate determined on such day for such Interest Period at 11:00
a.m. (London time)) plus 1.00%, (c) the Prime Rate and (d) solely with respect to Initialthe
Amendment No. 2 Term Loans, 2.00%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds
Effective Rate or the Published LIBO Rate, as the case may be, shall be effective from and including the effective date of such change
in the Prime Rate, the Federal Funds Effective Rate or the Published LIBO Rate, as the case may be.
“Amendment
No. 1” means the First Incremental Amendment, dated as of the Amendment No. 1 Effective Date, among the Borrower, the other
Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
“Amendment
No. 1 Effective Date” means March 28, 2018.
“Amendment
No. 1 Incremental Term Lender” means any Person with an Initial Term Loan Commitment to make Amendment No. 1 Incremental Term
Loans.
“Amendment
No. 1 Incremental Term Loans” means the Term Loans funded pursuant to Amendment No. 1 on the Amendment No. 1 Effective Date,
the proceeds of which shall be used to consummate the Amendment No. 1 Transactions, to pay fees and expenses in connection with the foregoing
and for general corporate purposes or other actions or purposes permitted hereunder.
“Amendment
No. 1 Transactions” means the entering into of Amendment No. 1, the incurrence of the Amendment No. 1 Incremental Term Loans,
the repayment in full of all outstanding amounts under the Second Lien Credit Agreement and the payment of all fees, expenses and other
costs incurred in connection with the foregoing.
“Amendment
No. 2” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 2 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 2 Term Lender” means each “2018 Refinancing Term Loan Lender” as such term is defined in Amendment No. 2.
“Amendment
No. 2 Term Loan Commitment” means the “2018 Refinancing Term Loan Commitment” as such term is defined in Amendment
No. 2.
“Amendment
No. 2 Term Loans” means the “2018 Refinancing Term Loans” as such term is defined in Amendment No. 2.
“Amendment
No. 2 Transactions” means the entering into of Amendment No. 2, the incurrence of the Amendment No. 2 Term Loans and the payment
of all fees, expenses and other costs incurred in connection with the foregoing.
“Applicable
Charges” has the meaning set forth in Section 9.19.
“Applicable
Percentage” means, (a) with respect to any Term Lender of any Class, a percentage equal to a fraction the numerator of which
is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan Commitments of such Term Lender under
such Class and the denominator of which is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan
Commitments of all Term Lenders under such Class and (b) with respect to any Revolving Lender of any Class, the percentage of the aggregate
amount of the Revolving Credit Commitments of such Class represented by such Lender’s Revolving Credit Commitment of such Class;
provided that for purposes of Section 2.21 and otherwise herein, when there is a Defaulting Lender, such Defaulting Lender’s
Revolving Credit Commitment shall be disregarded for any relevant calculation. In the case of clause (b), in the event that the
Revolving Credit Commitments of any Class have expired or been terminated, the Applicable Percentage of any Revolving Lender of such
Class shall be determined on the basis of the Revolving Credit Exposure of such Revolving Lender with respect to such Class, giving effect
to any assignments and to any Revolving Lender’s status as a Defaulting Lender at the time of determination.
“Applicable
Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Applicable
Rate” means, for any day from and after the Amendment No. 2 Effective Date, (a) for
InitialAmendment No. 2
Term Loans, (i) in the case of ABR Loans, 3.252.50%
per annum and (ii) in the case of LIBO Rate Loans, 4.253.50%
per annum and (b) for Revolving Loans, the rate per annum set forth below under the caption “ABR Spread” or “LIBO Rate
Spread”, as the case may be, based upon the First Lien Leverage Ratio as of the last day of the most recently ended Test Period;
provided that until the first Adjustment Date following the completion of at least one full Fiscal Quarter ended after the Closing Date,
the “Applicable Rate” for any Revolving Loans shall behave
been the applicable rate per annum set forth below in Category 1.
|
First Lien Leverage Ratio
|
ABR Spread for Revolving Loans
|
LIBO Rate Spread for Revolving
Loans
|
|
Category 1
|
|
|
|
Greater than 3.70 to 1.00
|
3.25%
|
4.25%
|
|
First Lien Leverage Ratio
|
ABR Spread for Revolving Loans
|
LIBO Rate Spread for Revolving
Loans
|
|
Category 2
|
|
|
|
Less than or equal to 3.70 to 1.00 and greater
than 3.20 to 1.00
|
3.00%
|
4.00%
|
|
|
|
|
|
Category 3
|
|
|
|
Less than or equal to 3.20 to 1.00
|
2.75%
|
3.75%
|
The
Applicable Rate for Revolving Loans shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the First Lien
Leverage Ratio in accordance with the table above; provided that if financial statements are not delivered when required pursuant
to Section 5.01(a) or (b), as applicable, the “Applicable Rate” for Revolving Loans shall be the rate per annum
set forth above in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b),
as applicable.
The
Applicable Rate for any Class of Additional Revolving Loans or Additional Term Loans shall be as set forth in the applicable Refinancing
Amendment, Incremental Facility Amendment or Extension Amendment.
“Approved
Fund” means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding
or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered,
advised or managed by (a) such Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers,
advises or manages such Lender.
“Arrangers”
has the meaning assigned to such term in the preamble to this Agreement and shall include
for purposes of Section 9.03, the “Amendment No. 2 Lead Arrangers” (as defined in Amendment No. 2).
“Assignment
Agreement” means, collectively, each Assignment and Assumption and each Affiliated Lender Assignment and Assumption.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 9.05), and accepted by the Administrative Agent in the form of Exhibit A-1 or any
other form approved by the Administrative Agent and the Borrower.
“Attributable
Debt” means, at any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person (except in the footnotes thereto) prepared in accordance with GAAP, other than (a) Capital Lease Obligations
arising as a result of a modification of the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents to the extent
such modification is not prohibited hereunder (including the iStar Amendments), (b) Capital Lease Obligations arising as a result of
the classification of the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 or any Excluded Property Sale/Leaseback Transaction as
a Capital Lease and (c) Capital Lease Obligations arising as a result of any Excluded Property Sale/Leaseback Transaction. For the avoidance
of doubt, this definition of “Attributable Debt” shall be subject in all respects to the provisions of Section 1.04(c).
“Auction”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Agent” means (a) the Administrative Agent or any of its Affiliates or (b) any other financial institution or advisor engaged
by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Auction pursuant
to the definition of “Dutch Auction”.
“Auction
Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Notice” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Party” has the meaning set forth in the definition of “Dutch Auction”.
“Auction
Response Date” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Availability
Period” means the period from and including the Closing Date to but excluding the earliest of (a) the date of termination of
the Initial Revolving Credit Commitments pursuant to Section 2.09, (b) the date of termination of the Initial Revolving Credit Commitment
of each Initial Revolving Lender to make Initial Revolving Loans and the obligation of each Issuing Bank to issue Letters of Credit pursuant
to Section 7.01 and (c) the Initial Revolving Credit Maturity Date.
“Available
Amount” means, at any time, an amount equal to, without duplication:
(a)
the sum of:
(i)
the greater of $20,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; plus
(ii)
the CNI Growth Amount (provided that such amount shall not be available for any Restricted Payment pursuant to Section 6.04(a)(iii)(A)
or Restricted Debt Payment pursuant to Section 6.04(b)(vi)(A), in each case, if any Event of Default exists pursuant to Section 7.01(a)
or, with respect to the Borrower, Sections 7.01(f) or (g) at the time of determination pursuant to Section 1.04(e)); plus
(iii)
the amount of any capital contributions or other proceeds of any issuance of Capital Stock (other than any amounts (x) constituting
a Cure Amount or an Available Excluded Contribution Amount or proceeds of an issuance of Disqualified Capital Stock, (y) received
from the Borrower or any Restricted Subsidiary or (z) consisting of the proceeds of any loan or advance made pursuant to Section
6.06(h)(ii)) received as Cash equity by the Borrower or any of its Restricted Subsidiaries, plus the fair market value,
as determined by the Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Borrower
or any Restricted Subsidiary as a capital contribution or in return for any issuance of Capital Stock (other than any amounts (x)
constituting a Cure Amount or an Available Excluded Contribution Amount or proceeds of any issuance of Disqualified Capital Stock or
(y) received from the Borrower or any Restricted Subsidiary), in each case, during the period from and including the day immediately
following the Closing Date through and including such time; plus
(iv)
the aggregate principal amount of any Indebtedness or Disqualified Capital Stock, in each case, of the Borrower or any Restricted Subsidiary
issued after the Closing Date (other than Indebtedness or such Disqualified Capital Stock issued to the Borrower or any Restricted Subsidiary),
which has been converted into or exchanged for Capital Stock of the Borrower, any Restricted Subsidiary or any Parent Company that does
not constitute Disqualified Capital Stock, together with the fair market value of any Cash or Cash Equivalents (as determined by the
Borrower in good faith) and the fair market value (as determined by the Borrower in good faith) of any property or assets received by
the Borrower or such Restricted Subsidiary upon such exchange or conversion, in each case, during the period from and including the day
immediately following the Closing Date through and including such time; plus
(v)
the net proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately following
the Closing Date through and including such time in connection with the Disposition to any Person (other than the Borrower or any Restricted
Subsidiary) of any Investment made pursuant to Section 6.06(r)(i); plus
(vi)
to the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of
such Investment, the proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately
following the Closing Date through and including such time in connection with cash returns, cash profits, cash distributions and similar
cash amounts, including cash principal repayments of loans and interest payments on loans, in each case received in respect of any Investment
made after the Closing Date pursuant to Section 6.06(r)(i) or, without duplication, otherwise received by the Borrower or any
Restricted Subsidiary from an Unrestricted Subsidiary (including any proceeds received on account of any issuance of Capital Stock by
any Unrestricted Subsidiary (other than solely on account of the issuance of Capital Stock to the Borrower or any Restricted Subsidiary));
plus
(vii)
an amount equal to the sum of (A) the amount of any Investments by the Borrower or any Restricted Subsidiary pursuant to Section
6.06(r)(i) in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary, (B) the amount of any
Investments by the Borrower or any Restricted Subsidiary pursuant to Section 6.06(r)(i) in any Unrestricted Subsidiary that
has been merged, consolidated or amalgamated with or into, or is liquidated, wound up or dissolved into, the Borrower or any
Restricted Subsidiary and (C) the fair market value (as determined by the Borrower in good faith) of the property or assets of any
Unrestricted Subsidiary that have been transferred, conveyed or otherwise distributed to the Borrower or any Restricted Subsidiary,
in each case, during the period from and including the day immediately following the Closing Date through and including such time; plus
(viii)
the amount of any Declined Proceeds; minus
(b)
an amount equal to the sum of (i) Restricted Payments made pursuant to Section 6.04(a)(iii)(A), plus (ii) Restricted Debt
Payments made pursuant to Section 6.04(b)(vi)(A), plus (iii) Investments made pursuant to Section 6.06(r)(i), in
each case, after the Closing Date and prior to such time, or contemporaneously therewith.
“Available
Excluded Contribution Amount” means the aggregate amount of Cash or Cash Equivalents or the fair market value of other assets
or property (as determined by the Borrower in good faith, but excluding any Cure Amount and any amounts that are used to increase the
Available Amount) received by the Borrower or any of its Restricted Subsidiaries after the Closing Date from:
(1)
contributions in respect of Qualified Capital Stock (other than any amounts or other assets received from the Borrower or any of its
Restricted Subsidiaries), and
(2)
the sale of Qualified Capital Stock of the Borrower or any of its Restricted Subsidiaries (other than (x) to the Borrower or any Restricted
Subsidiary of the Borrower, (y) pursuant to any management equity plan or stock option plan or any other management or employee benefit
plan or (z) with the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)),
in
each case, designated as Available Excluded Contribution Amounts pursuant to a certificate of a Responsible Officer on or promptly after
the date the relevant capital contribution is made or the relevant proceeds are received, as the case may be, and which are excluded
from the calculation of the Available Amount.
“Available
RDP Capacity Amount” means the amount of Restricted Debt Payments that may be made at the time of determination pursuant to
Section 6.04(b)(iv)(A) minus the amount of the Available RDP Capacity Amount utilized by the Borrower or any Restricted Subsidiary
to make Investments pursuant to Section 6.06(q)(ii).
“Available
RP Capacity Amount” means the amount of Restricted Payments that may be made at the time of determination pursuant to Sections
6.04(a)(ii)(D), (a)(vii) and (a)(x) minus the aggregate amount of the Available RP Capacity Amount utilized by the Borrower
or any Restricted Subsidiary to (a) make Investments pursuant to Section 6.06(q)(ii), (b) make Restricted Debt Payments pursuant
to Section 6.04(b)(iv)(B) or (c) incur Indebtedness pursuant to Section 6.01(ll).
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of
any liability of an EEA Financial Institution.
“Bail-In
Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European
Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described
in the EU Bail-In Legislation Schedule.
“Banking
Services” means each and any of the following bank services: commercial credit cards, stored value cards, debit cards, purchasing
cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including
depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee
credit card programs, cash pooling services, foreign exchange and currency management services and any arrangements or services similar
to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts.
“Banking
Services Obligations” means any and all obligations of any Loan Party, whether absolute or contingent and however and whenever
created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) (a)
under any arrangement that is in effect on the Closing Date between any Loan Party and a counterparty that is (or is an Affiliate of)
the Administrative Agent, any Lender or any Arranger as of the Closing Date or (b) under any arrangement that is entered into after the
Closing Date by any Loan Party with any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger
at the time such arrangement is entered into, in each case, in connection with Banking Services, in each case, that has been designated
to the Administrative Agent in writing by the Borrower as being Banking Services Obligations for purposes of the Loan Documents, it being
understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan
Documents and (B) to agree to be bound by the provisions of Article 8, Section 9.03 and Section 9.10 and the Intercreditor
Agreement and each other Acceptable Intercreditor Agreement, in each case as if it were a Lender.
“Bankruptcy
Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
“Board”
means the Board of Governors of the Federal Reserve System of the U.S.
“Bona
Fide Debt Fund” means any debt fund, investment vehicle, regulated bank entity or unregulated lending entity engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business and
which is managed, sponsored or advised by any Person controlling, controlled by or under common control with (a) any competitor of the
Borrower and/or any of its subsidiaries or (b) any Affiliate of such competitor, but, in each case, with respect to which no personnel
involved with any investment in such Person or the management, control or operation of such Person (i) makes, has the right to make or
participates with others in making any investment decisions with respect to such Person or (ii) has access to any information (other
than information that is publicly available) relating to Holdings, the Borrower or its subsidiaries or any entity that forms a part of
any of their respective businesses; it being understood and agreed that the term “Bona Fide Debt Fund” shall not include
any Person that is separately identified to the Arrangers or the Administrative Agent in accordance with clause (a)(i) or (a)(ii) of
the definition of “Disqualified Institution” or any reasonably identifiable Affiliate of any such Person on the basis of
such Affiliate’s name.
“Borrower”
means (a) initially, Merger Sub 2, and after giving effect to the Merger Sub 2 Merger, Kingpin Intermediate (in each case, prior to the
consummation of a transaction described in clause (b) of this definition) and (b) following the consummation of a transaction
permitted hereunder that results in a Successor Borrower, such Successor Borrower.
“Borrowing”
means any Loans of the same Type and Class made, converted or continued on the same date and, in the case of LIBO Rate Loans, as to which
a single Interest Period is in effect.
“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03 and substantially in the form
attached hereto as Exhibit B or such other form that is reasonably acceptable to the Administrative Agent and the Borrower.
“Bowling
Equipment” means all pin setting machines (pinsetters/pinspotters), ball returns, settees, scoring systems (including front
desk systems), lanes, lane cleaning machines, bumpers, approaches, foul lights, gutters and masking units.
“Business
Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or
required by law to remain closed; provided that when used in connection with a LIBO Rate Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
“Capital
Expenditures” means, as applied to any Person for any period, the aggregate amount, without duplication, of all expenditures
(whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases)
that in accordance with GAAP, are, or are required to be included as, capital expenditures on the consolidated statement of cash flows
for such Person for such period.
“Capital
Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP (but subject to Section 1.04(c)), is or should be accounted for as a capital lease on the balance
sheet of that Person.
“Capital
Lease Obligations” means, with respect to any Person, the amount of obligations attributable to any Capital Lease capitalized
as a liability on the balance sheet (excluding the footnotes thereto) of such Person in accordance with GAAP.
“Capital
Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership
interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but
excluding for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing.
“Captive
Insurance Subsidiary” means any Restricted Subsidiary of the Borrower that is subject to regulation as an insurance company
(or any Restricted Subsidiary thereof).
“Cash”
or “cash” means money, currency or a credit balance in any Deposit Account, in each case determined in accordance
with GAAP.
“Cash
Equivalents” means, as at any date of determination, (a) readily marketable securities (i) issued or directly and unconditionally
guaranteed or insured as to interest and principal by the U.S., U.K., Canada or a member state of the European Union or any political
subdivision thereof or (ii) issued by any agency or instrumentality of the U.S., U.K., Canada or a member state of the European Union
or any political subdivision thereof, the obligations of which are backed by the full faith and credit of the U.S., U.K., Canada or a
member state of the European Union or any political subdivision thereof, in each case maturing within two years after such date and,
in each case, including repurchase agreements and reverse repurchase agreements relating thereto; (b) readily marketable direct obligations
issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof or by any foreign
government, in each case maturing within two years after such date and having, at the time of the acquisition thereof, a rating of at
least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized statistical rating agency) and, in each case, repurchase agreements
and reverse repurchase agreements relating thereto; (c) commercial paper maturing no more than one year from the date of creation thereof
and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if
at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized
statistical rating agency); (d) deposits, money market deposits, time deposit accounts, certificates of deposit or bankers’ acceptances
(or similar instruments) maturing within one year after such date and issued or accepted by any Lender or “Lender” in respect
of the Second Lien Facility or by any bank organized under, or authorized to operate as a bank under, the laws of the U.S., any state
thereof or the District of Columbia or any political subdivision thereof or any foreign bank or its branches or agencies and that has
capital and surplus of not less than $75,000,000 and, in each case, repurchase agreements and reverse repurchase agreements relating
thereto; (e) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued
by any commercial bank having capital and surplus of not less than $75,000,000; (f) Indebtedness or Preferred Capital Stock issued by
Persons with a rating of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the
time, neither is issuing comparable ratings, then a comparable rating of another nationally recognized statistical rating organization)
with maturities of 12 months or less from the date of acquisition; (g) bills of exchange issued in the U.S., U.K., Canada, a member state
of the European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);
(h) solely with respect to any Captive Insurance Subsidiary, any investment that such Captive Insurance Subsidiary is not prohibited
to make in accordance with applicable law; and (i) shares or other interests of any investment company, money market mutual fund or other
money market or enhanced high yield fund that invests 95% or more of its assets in instruments of the types specified in clauses (a)
through (h) above (which investment company or fund may also hold Cash pending investment or distribution).
The
term “Cash Equivalents” shall also include (x) foreign currencies (in addition to Canadian dollars, Euros, Pound Sterling,
Mexican Pesos, any national currency of any member state of the European Union and any other currency held by the Borrower or any Restricted
Subsidiary in the ordinary course of business); provided that such amounts, if received by the Borrower or any Restricted Subsidiary,
are converted into Dollars, Canadian dollars, Euros, Pound Sterling, Mexican Pesos, any national currency of any member state of the
European Union or any other currency held by the Borrower or any Restricted Subsidiary in the ordinary course of business as promptly
as practicable (and in any event within ten Business Days following receipt thereof), (y) Investments of the type and maturity described
in clauses (a) through (i) above of foreign obligors, which Investments or obligors (or the parent companies thereof) have
the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (z) other short-term Investments
utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in Investments analogous to the Investments
described in clauses (a) through (i) and in this paragraph.
“Change
in Law” means (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by
any Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or such Issuing
Bank or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date (other than any such
request, guideline or directive to comply with any law, rule or regulation that was in effect on the Closing Date). For purposes of
this definition and Section 2.15, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules,
guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof and (y) all
requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee
on Banking Supervision (or any successor or similar authority) or U.S. regulatory authorities, in each case pursuant to Basel III,
shall in each case described in clauses (a), (b) and (c) above, be deemed to be a Change in Law, regardless of the
date enacted, adopted, issued or implemented.
“Change
of Control” means the earliest to occur of:
(a)
at any time prior to a Qualifying IPO, the Permitted Holders ceasing to beneficially own, either directly or indirectly (within the meaning
of Rule 13d-3 and Rule 13d-5 under the Exchange Act as in effect on the Closing Date), Capital Stock representing more than 50% of the
total voting power of all of the outstanding voting Capital Stock of Holdings;
(b)
at any time on or after a Qualifying IPO, the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2)
of the Exchange Act as in effect on the Closing Date), including any group acting for the purpose of acquiring, holding or disposing
of Securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act as in effect on the Closing Date), but excluding (i) any
Employee Benefit Plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) one or more Permitted
Holders and (iii) any underwriter in connection with any Qualifying IPO, of Capital Stock of Holdings representing more than the greater
of (x) 35% of the total voting power of all of the outstanding voting Capital Stock of Holdings and (y) the percentage of the total voting
power of all of the outstanding voting Capital Stock of Holdings collectively owned, directly or indirectly, beneficially by the Permitted
Holders; and
(c)
the Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of Holdings (other than during the pendency of any Holdings Reorganization
Transaction or Permitted Reorganization); it being understood and agreed for the avoidance of doubt that the Mergers shall not trigger
a “Change of Control” for any purpose under this Agreement or any other Loan Document.
Notwithstanding
the preceding or any provision of Section 13d-3 of the Exchange Act as in effect on the Closing Date, (i) a Person or group shall not
be deemed to beneficially own Capital Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant
agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of
the Capital Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more Permitted
Holders, the issued and outstanding Capital Stock of Holdings owned, directly or indirectly, by any Permitted Holders that are part of
such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of determining
whether a Change of Control has occurred so long as one or more Permitted Holders hold in excess of 50% of the issued and outstanding
Capital Stock owned, directly or indirectly, by such group and (iii) a Person or group will not be deemed to beneficially own the Capital
Stock of another Person as a result of its ownership of the Capital Stock or other securities of such other Person’s parent entity
(or related contractual rights) unless (A) it owns 50% or more of the total voting power of the Capital Stock entitled to vote for the
election of directors or board of managers of such parent entity and (B) such directors or managers elected by the Person or group have
a majority of the aggregate votes on the board of directors (or similar body) of such parent entity.
“Charge”
means any fee, loss, charge, expense, cost, accrual or reserve of any kind.
“Class”,
when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are
Initial Term Loans, Amendment No. 2 Term Loans, other
Additional Term Loans of any series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(i),
Initial Revolving Loans or Additional Revolving Loans of any series established as a separate “Class” pursuant to Sections
2.22, 2.23 or 9.02(c)(ii) or Swingline Loans, (b) any Commitment, refers to whether such Commitment is an Initial
Term Loan Commitment, an Amendment No. 2 Term Loan Commitment,
another Additional Term Loan Commitment of any series established as a separate “Class” pursuant to Sections
2.22, 2.23 or 9.02(c)(i), an Initial Revolving Credit Commitment or an Additional Revolving Credit Commitment of
any series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(ii), (c)
any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class and (d) any Revolving Credit Exposure,
refers to whether such Revolving Credit Exposure is attributable to a Revolving Credit Commitment of a particular Class (or
Revolving Loans incurred or Letters of Credit issued under a Revolving Credit Commitment of a particular Class).
“Closing
Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02), which date is July 3, 2017.
“Closing
Date Material Adverse Effect” shall have the meaning assigned to the term “Company Material Adverse Effect” in
the Acquisition Agreement as in effect on the Closing Date (it being understood that capitalized terms used in such definition and defined
in the Acquisition Agreement shall have the meanings ascribed to such terms in the Acquisition Agreement as in effect on the Closing
Date).
“CNI
Growth Amount” means, at any date of determination, an amount (which amount shall not be less than zero) equal to 50% of Consolidated
Net Income for the cumulative period from the first day of the Fiscal Quarter of the Borrower during which the Closing Date occurs to
and including the last day of the most recently ended Fiscal Quarter of the Borrower prior to such date for which consolidated financial
statements of the Borrower are internally available (treated as one accounting period).
“Code”
means the Internal Revenue Code of 1986.
“Collateral”
means any and all property of any Loan Party subject to a Lien under any Collateral Document and any and all other property of any Loan
Party, now existing or hereafter acquired, that is or becomes subject to a Lien pursuant to any Collateral Document to secure the Secured
Obligations. For the avoidance of doubt, in no event shall “Collateral” include any Excluded Asset.
“Collateral
and Guarantee Requirement” means, at any time, subject to (x) the applicable limitations set forth in this Agreement and/or
any other Loan Document (including any Acceptable Intercreditor Agreement) and (y) the time periods (and extensions thereof) set forth
in Section 5.12, the requirement that:
(a)
the Administrative Agent shall have received;
(i)
(A) a joinder to the Loan Guaranty in substantially the form attached as an exhibit thereto, (B) a supplement to the Security Agreement
in substantially the form attached as an exhibit thereto, (C) if the respective Restricted Subsidiary required to comply with the requirements
set forth in this definition pursuant to Section 5.12 owns registrations of or applications for U.S. Patents, U.S. Trademarks
and/or U.S. Copyrights that constitute Collateral, an Intellectual Property Security Agreement in substantially the form attached as
an exhibit hereto, (D) a completed Perfection Certificate, (E) Uniform Commercial Code financing statements in appropriate form for filing
in such jurisdictions as the Administrative Agent may reasonably request and (F) an executed joinder to the Intercreditor Agreement in
substantially the form attached as an exhibit thereto; and
(ii)
each item of Collateral required to be delivered in physical form on or prior to such time pursuant to the Collateral Documents.
(b)
the Administrative Agent shall have received with respect to any Material Real Estate Asset (other than an Excluded Asset) acquired after
the Closing Date, a Mortgage and any necessary UCC fixture filing in respect thereof, in each case together with, to the extent customary
and appropriate (as reasonably determined by the Administrative Agent and the Borrower):
(i)
evidence that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any corresponding
UCC or equivalent fixture filing are in form suitable for filing or recording in all filing or recording offices that the Administrative
Agent may deem reasonably necessary in order to create a valid and subsisting Lien on such Material Real Estate Asset in favor of the
Administrative Agent for the benefit of the Secured Parties, (B) such Mortgage and any corresponding UCC or equivalent fixture filings
have been duly recorded or filed, as applicable and (C) all filing and recording taxes and fees have been paid or otherwise provided
for in a manner reasonably satisfactory to the Administrative Agent;
(ii)
a fully paid policy of lender’s title insurance (a “Mortgage Policy”) in an amount reasonably acceptable to
the Administrative Agent (not to exceed the fair market value of such Material Real Estate Asset (as determined by the Borrower in good
faith)) issued by a nationally recognized title insurance company in the applicable jurisdiction that is reasonably acceptable to the
Administrative Agent, insuring the relevant Mortgage as having created a valid subsisting Lien on the real property described therein
with the ranking or the priority which it is expressed to have in such Mortgage, subject only to Permitted Liens, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request to the extent the same are available in
the applicable jurisdiction;
(iii)
a customary legal opinion of local counsel for the relevant Loan Party in the jurisdiction in which such Material Real Estate Asset is
located and, if applicable, in the jurisdiction of formation of the relevant Loan Party, in each case as the Administrative Agent may
reasonably request; and
(iv)
(A) appraisals (if required under the Financial Institutions Reform Recovery and Enforcement Act of 1989, as amended) and (B) “Life-of-Loan”
flood certifications under Regulation H (together with evidence of federal flood insurance for any such Flood Hazard Property); provided
that the Administrative Agent may in its reasonable discretion accept any existing appraisal so long as such existing appraisal satisfies
any applicable local law requirements and sufficient for the applicable title insurance company to issue the endorsements referenced
in clause (ii) above.
Notwithstanding
any provision of any Loan Document to the contrary, if any mortgage tax or similar tax or charge is owed on the entire amount of the
Obligations evidenced hereby in connection with the delivery of a mortgage or UCC fixture filing pursuant to clause (b) above, then,
to the extent permitted by, and in accordance with, applicable Requirements of Law, the amount of such mortgage tax or similar tax or
charge shall be calculated based on the lesser of (x) the amount of the Obligations allocated to the applicable Material Real Estate
Asset and (y) the fair market value of the applicable Material Real Estate Asset at the time the Mortgage is entered into and determined
in a manner reasonably acceptable to Administrative Agent and the Borrower. Notwithstanding anything herein to the contrary, no Mortgage
will be executed and delivered with respect to any Material Real Estate Asset pursuant to the foregoing until the Administrative Agent
has received written notice of such Mortgage at least 45 days prior to such execution and delivery and has confirmed receipt of satisfactory
flood due diligence and evidence of compliance with the applicable Flood Insurance Laws.
“Collateral
Documents” means, collectively, (i) the Security Agreement, (ii) each Mortgage (if any), (iii) each Intellectual Property Security
Agreement, (iv) each Perfection Certificate, (v) any supplement to any of the foregoing delivered to the Administrative Agent pursuant
to the definition of “Collateral and Guarantee Requirement” and (vi) each of the other instruments and documents pursuant
to which any Loan Party grants a Lien on any assets as security for payment of the Secured Obligations.
“Commercial
Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection
with the purchase of any materials, goods or services by the Borrower or any of its Restricted Subsidiaries in the ordinary course of
business of such Person.
“Commercial
Tort Claim” has the meaning set forth in Article 9 of the UCC.
“Commitment”
means, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Initial Revolving Credit Commitment and Additional
Commitment (including, for the avoidance of doubt, the Amendment
No. 2 Term Loan Commitment), as applicable, in effect as of such time.
“Commitment
Fee Rate” means, on any date (a) with respect to the Initial Revolving Credit Commitment, subject to the provisions of the
last paragraph hereof, the applicable rate per annum set forth below based upon the First Lien Leverage Ratio as of the last day of the
most recently ended Test Period and (b) with respect to Additional Revolving Credit Commitments of any Class, the rate or rates per annum
specified in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment.
|
First Lien Leverage Ratio
|
Commitment Fee Rate
|
|
Category 1
|
|
|
Greater than 3.70 to 1.00
|
0.50%
|
|
|
|
|
Category 2
|
|
|
Equal to or less than 3.70 to 1.00 but
greater than 3.20 to 1.00
|
0.375%
|
|
|
|
|
Category 3
|
|
|
Equal to or less than 3.20 to 1.00
|
0.25%
|
The
Commitment Fee Rate with respect to the Initial Revolving Credit Commitment shall be adjusted quarterly on a prospective basis on each
Adjustment Date based upon the First Lien Leverage Ratio in accordance with the table set forth above; provided that (a) until
the first Adjustment Date following the completion of at least one full Fiscal Quarter after the Closing Date, the Commitment Fee Rate
shall be the applicable rate per annum set forth above in Category 1 and (b) if financial statements are not delivered when required
pursuant to Section 5.01(a) or (b), as applicable, the Commitment Fee Rate shall be the rate per annum set forth above
in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b), as applicable.
“Commitment
Letter” means that certain Amended and Restated Commitment Letter, dated as of June 15, 2017, by and among, inter alios,
Parent and the Arrangers, as amended to date.
“Commitment
Schedule” means the Schedule attached hereto as Schedule 1.01(a).
“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Company
Competitor” means any competitor of the Borrower and/or any of its subsidiaries and/or the Target and/or any of its subsidiaries.
“Compliance
Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
“Confidential
Information” has the meaning assigned to such term in Section 9.13.
“Consolidated
Adjusted EBITDA” means, as to any Person for any period, an amount determined for such Person and its Restricted Subsidiaries
on a consolidated basis equal to the total of (a) Consolidated Net Income for such period plus (b) the sum, without duplication,
of (to the extent deducted in calculating Consolidated Net Income, other than in respect of clauses (x), (xi), (xii),
(xiv), (xix), (xx), (xxi) and (xxii) below) the amounts of:
(i)
Consolidated Interest Expense (including (A) fees and expenses paid to the Administrative Agent in connection with its services hereunder,
(B) other bank, administrative agency (or trustee) and financing fees (including rating agency fees and other fees in respect of any
Second Lien Facility), (C) costs of surety bonds in connection with financing activities (whether amortized or immediately expensed)
and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments, letters of credit, bank guarantees,
bankers’ acceptances or any similar facilities or financing and hedging agreements);
(ii)
(A) Taxes paid and any provision for Taxes, including income, profits, capital, foreign, federal, state, local, franchise and similar
Taxes, property Taxes, foreign withholding Taxes and foreign unreimbursed value added Taxes (including penalties and interest related
to any such Tax or arising from any Tax examination, and including pursuant to any Tax sharing arrangement or as a result of any Tax
distribution) of such Person paid or accrued during the relevant period and (B) any payments to a Parent Company in respect of Taxes
permitted to be made hereunder;
(iii)
(A) depreciation, (B) amortization, (C) any impairment Charge (including any bad debt expense) and (D) any asset write-off and/or write-down;
(iv)
any non-cash Charge, including the excess of rent expense over actual Cash rent paid, including the benefit of lease incentives (in the
case of a charge) during such period due to the use of straight line rent for GAAP purposes (provided that if any such non-Cash
Charge represents an accrual or reserve for potential Cash items in any future period, such Person may determine not to add back such
non-Cash Charge in the then-current period);
(v)
[reserved];
(vi)
Receivables Fees and the amount of loss or discount on the sale of Receivables Facility Assets and related assets to a Receivables Subsidiary
in connection with a Receivables Facility;
(vii)
the amount of management, monitoring, consulting, transaction, advisory, termination and similar fees and related indemnities and expenses
(including reimbursements), paid or accrued and payments made to any Investor (and/or its Affiliates or management companies) (or prior
to the Closing Date, the Existing Sponsor and/or its Affiliates or management companies) for any financial advisory, consulting, financing,
underwriting or placement services or in respect of other investment banking activities and other transaction fees, and payments to outside
directors of the Borrower or a Parent Company actually paid by or on behalf of, or accrued by, such Person or any of its subsidiaries;
provided that such payment is permitted under this Agreement;
(viii)
[reserved];
(ix)
the amount of earn-out and other contingent consideration obligations (including to the extent accounted for as bonuses, compensation
or otherwise) incurred in connection with (A) the Transactions, (B) acquisitions and Investments completed prior to the Closing Date
and (C) any acquisition or other Investment permitted by this Agreement, in each case, which is paid or accrued during the applicable
period;
(x)
pro forma “run rate” cost savings, operating expense reductions, operational improvements and cost synergies (collectively,
“Expected Cost Savings”) (net of actual amounts realized) (1) that are reasonably identifiable, factually supportable
and projected by the Borrower in good faith to result from actions that have been taken or with respect to which substantial steps have
been taken or are expected to be taken (in the good faith determination of such Person) or (2) that have been identified to the Administrative
Agent prior to the Closing Date (including by inclusion in the Acquisition Agreement or the Sponsor’s model and quality of earnings
summaries delivered to the Arrangers on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality
of earnings summary) related to (A) the Transactions and (B) any permitted asset sale, acquisition (including the commencement of activities
constituting a business line), combination, Investment, Disposition (including the termination or discontinuance of activities constituting
a business line), operating improvement, restructuring, cost savings initiative, any similar initiative (including the effect of increased
pricing in customer contracts) and/or specified transaction, in each case prior to, on or after the Closing Date (any such operating
improvement, restructuring, cost savings initiative or similar initiative or specified transaction, a “Cost Saving Initiative”)
(in each case, calculated on a Pro Forma Basis as though such Expected Cost Savings and/or Cost Savings Initiative had been realized
in full on the first day of such period); provided, that the results of such Expected Cost Savings and/or Cost Saving Initiatives
are projected by the Borrower in good faith to result from actions that have been taken or with respect to which steps have been taken
or are expected to be taken (in the good faith determination of the Borrower) within 24 months after (i) with respect to the Transactions,
the Closing Date and (ii) with respect to any Cost Savings Initiative, the date of any such operating improvement, restructuring, cost
savings initiative or similar initiative or specified transaction;
(xi)
Charges attributable to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings initiatives
(including Cost Saving Initiatives), cost rationalization programs, operating expense reductions and/or synergies and/or similar initiatives
and/or programs (including in connection with any integration, restructuring or transition, any reconstruction, decommissioning, recommissioning
or reconfiguration of fixed assets for alternative uses, any office or facility opening and/or pre-opening), including the following:
any inventory optimization program and/or any curtailment, any business optimization Charge, any restructuring Charge (including any
Charge relating to any tax restructuring), any Charge relating to the closure or consolidation of any office or facility (including but
not limited to rent termination costs, moving costs and legal costs), any systems implementation Charge, any severance Charge, any one
time compensation Charge, any Charge relating to entry into a new market, any Charge relating to rights fee arrangements (including any
early terminations thereof), any Charge relating to any strategic initiative or contract, any signing Charge, any Charge relating to
any entry into new markets and contracts (including, without limitation, any renewals, extensions or other modifications thereof) or
exiting a market or contract, any retention or completion Charge or bonus, any recruiting Charge, any lease run-off Charge, any expansion
and/or relocation Charge, any Charge associated with any modification or curtailment to any pension and post-retirement employee benefit
plan, any software or other intellectual property development Charge, any Charge associated with new systems design, any implementation
Charge, any transition Charge, any Charge associated with improvements to IT or accounting functions, losses related to temporary decreases
in work volume and expenses related to maintaining underutilized personnel, any transition Charge, any Charge in connection with unused
warehouse space, any Charge relating to a new contract, any consulting Charge and/or any corporate development Charge; provided, that,
in the case of any such Charge, the results of any such action relating to such Charge are projected by the Borrower in good faith to
be achieved within 24 months of the undertaking thereof;
(xii)
any Charge with respect to any liability or casualty event, business interruption or any product recall, (i) so long as such Person has
submitted in good faith, and reasonably expects to receive payment in connection with, a claim for reimbursement of such amounts under
its relevant insurance policy within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so
added back to the extent not so reimbursed within the next four Fiscal Quarters) or (ii) without duplication of amounts included in a
prior period under the preceding clause (i), to the extent such Charge is covered by insurance, indemnification or otherwise reimbursable
by a third party (whether or not then realized so long as the Borrower in good faith expects to receive proceeds arising out of such
indemnification, insurance or reimbursement obligation within the next four Fiscal Quarters) (it being understood that if the amount
received in cash under any such agreement in any period exceeds the amount of expense paid during such period, any excess amount received
may be carried forward and applied against any expense in any future period);
(xiii)
unrealized net losses in the fair market value of any arrangements under Hedge Agreements;
(xiv)
the amount of any Cash actually received by such Person (or the amount of the benefit of any netting arrangement resulting in reduced
Cash expenditures) during such period, and not included in Consolidated Net Income in any period, to the extent that any non-Cash gain
relating to such Cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA pursuant to clause
(c)(i) below for any previous period and not added back;
(xv)
the amount of any “bad debt” expense related to revenue earned prior to the Closing Date;
(xvi)
any net Charges included in the Borrower’s consolidated financial statements due to the application of Accounting Standards Codification
Topic 810 (“ASC 810”);
(xvii)
the amount of any non-controlling interest or minority interest Charge consisting of income attributable to minority equity interests
of third parties in any non- wholly owned Restricted Subsidiary;
(xviii)
the amount of any Charges (including facility operating losses) related to any de novo facility or any facility renovation, including
any construction, pre- opening/re-opening and start-up period prior to opening (or re-opening, as applicable), until such facility has
been open (or renovated) and operating for a period of 18 consecutive months;
(xix)
the amount of any earned or billed amounts or other revenue that is attributable to services performed during such period but is not
included in Consolidated Net Income for such period; it being understood that if such revenue is added back in calculating Consolidated
Adjusted EBITDA for such period, such revenue shall not be included in Consolidated Net Income in the period in which it is actually
recognized;
(xx)
any other adjustments, exclusions and add-backs (x) reflected in the Sponsor’s model and quality of earnings summaries delivered
to the Arrangers on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality of earnings summary)
or (y) that are consistent with Regulation S-X;
(xxi)
for the first 18 months following the opening of a de novo facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to such de novo facility for each month such de novo facility has been in operation
and (y) the 12-month average Consolidated Adjusted EBITDA for all similar facilities that have been in operation for a period of at least
18 months (as determined by the Borrower in good faith); provided that the aggregate amount added-back to Consolidated Adjusted
EBITDA solely pursuant to this clause (xxi) and clause (xxii) below (on an aggregate basis) shall not, for any period, exceed an amount
equal to 15% of Consolidated Adjusted EBITDA for such period, calculated prior to giving effect to such add-backs; and
(xxii)
for the first 18 months following the renovation of a facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to performance gains for such facility for each month such facility has been
in operation post-renovation and (y) the 12-month average Consolidated Adjusted EBITDA attributable to performance gains for all similar
facilities that have been in operation for a period of at least 18 months (as determined by the Borrower in good faith); provided
that the aggregate amount added-back to Consolidated Adjusted EBITDA solely pursuant to clause (xxi) above and this clause (xxii)
(on an aggregate basis) shall not, for any period, exceed an amount equal to 15% of Consolidated Adjusted EBITDA for such period, calculated
prior to giving effect to such add-backs;
minus
(c) to the extent such amounts increase Consolidated Net Income:
(i)
non-Cash gains or income; provided that if any non-Cash gain or income represents an accrual or deferred income in respect of
potential Cash items in any future period, such Person may determine not to deduct such non-Cash gain or income in the current period;
(ii)
unrealized net gains in the fair market value of any arrangements under Hedge Agreements;
(iii)
[reserved];
(iv)
the amount added back to Consolidated Adjusted EBITDA pursuant to clause (b)(xii) above (as described in such clause) to the extent
the relevant business interruption insurance proceeds were not received within the time period required by such clause;
(v)
to the extent that such Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause
(b)(iv) above, the cash payment in respect thereof in the relevant future period;
(vi)
the excess of actual Cash rent paid over rent expense during such period due to the use of straight line rent for GAAP purposes;
(vii)
any Consolidated Net Income included in the Borrower’s consolidated financial statements due to the application of ASC 810; and
(viii)
the amount of any non-controlling interest or minority interest gains from income attributable to minority equity interests of third
parties in any non-wholly owned Restricted Subsidiary;
(d)
increased or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards
Codification Topic 460 or any comparable regulation.
Notwithstanding
anything to the contrary herein, it is agreed that for the purpose of calculating the Total Leverage Ratio, the First Lien Leverage Ratio,
the Interest Coverage Ratio and the Secured Leverage Ratio and/or the amount of any basket based on a percentage of Consolidated Adjusted
EBITDA for any period that includes the Fiscal Quarters ended July 3, 2016, October 2, 2016, January 1, 2017 and April 2, 2017, Consolidated
Adjusted EBITDA for such Fiscal Quarters shall be deemed to be $15,194,992, $34,765,574, $9,482,738 and $58,534,750 (which amounts are
agreed not to include adjustments pursuant to clauses (b)(x), (b)(xx), (b)(xxi) and (b)(xxii) above), respectively, in each case, as
adjusted (i) on a Pro Forma Basis, as applicable and (ii) pursuant to clauses (b)(x), (b)(xx), (b)(xxi) and (b)(xxii) above, as applicable
for each Test Period.
“Consolidated
First Lien Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total
Debt outstanding on such date that is secured by a first priority Lien on any asset or property of such Person or its Restricted Subsidiaries
that constitutes Collateral.
“Consolidated
Interest Expense” means, with respect to any Person for any period, the sum of (a) consolidated total interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including (without duplication),
amortization of any debt issuance cost and/or original issue discount, any premium paid to obtain payment, financial assurance or similar
bonds, any interest capitalized during construction, any non-cash interest payment, the interest component of any deferred payment obligation,
commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified Receivables Facility,
the interest component of any payment under any Capital Lease (regardless of whether accounted for as interest expense under GAAP), any
commission, discount and/or other fee or charge owed with respect to any letter of credit, bank guarantee and/or bankers’ acceptance
or any similar facilities, any fee and/or expense paid to the Administrative Agent in connection with its services hereunder, any other
bank, administrative agency (or trustee) and/or financing fee and any cost associated with any surety bond in connection with financing
activities (whether amortized or immediately expensed)), plus (b) any cash dividend paid or payable in respect of Disqualified
Capital Stock during such period other than to such Person or any Loan Party, plus (c) any net losses, obligations or payments
arising from or under any Hedge Agreement and/or other derivative financial instrument issued by such Person for the benefit of such
Person or its subsidiaries, in each case determined on a consolidated basis for such period. For purposes of this definition, interest
in respect of any Capital Lease shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of
interest implicit in such Capital Lease in accordance with GAAP.
“Consolidated
Net Income” means, as to any Person (the “Subject Person”) for any period, the net income (or loss) of the
Subject Person and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined
in conformity with GAAP; provided that there shall be excluded, without duplication,
(a)
(i) any net income (loss) of any Person if such Person is not the Borrower or a Restricted Subsidiary, except that Consolidated Net Income
will be increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalent (or converted into Cash
or Cash Equivalents) by such Person to the Borrower or any other Restricted Subsidiary (subject, in the case of any such Restricted Subsidiary
that is not a Loan Party, to the limitations contained in clause (ii) below) and (ii) solely for the purpose of determining the amount
available for Restricted Payments under Section 6.04(a)(iii)(A) or the amount of Excess Cash Flow, any net income (loss) of any
Restricted Subsidiary (other than a Loan Party) if such Restricted Subsidiary is subject to restrictions on the payment of dividends
or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Borrower or a Loan Party by operation of
its organizational documents or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable
thereto (other than (x) any restriction that has been waived or otherwise released and (y) any restriction set forth in the Loan Documents,
the documents related to any Incremental Equivalent Debt, the documents relating to any Second Lien Facility and the documents relating
to any Replacement Debt or Refinancing Indebtedness in respect of any of the foregoing), except that Consolidated Net Income will be
increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalents (or converted into Cash or Cash
Equivalents) by the Restricted Subsidiary (subject, in the case of a dividend, distribution or other payment to another Restricted Subsidiary,
to the limitations in this clause (ii));
(b)
any gain or Charge attributable to any asset Disposition (including asset retirement costs or sales or issuances of Capital Stock) or
of returned or surplus assets, in each case, outside the ordinary course of business (as determined in good faith by such Person);
(c)
(i) any gain or Charge from (A) any extraordinary item (as determined in good faith by such Person) and/or (B) any non-recurring or unusual
item (as determined in good faith by such Person) and/or (ii) any Charge associated with and/or payment of any legal settlement, fine,
judgment or order;
(d)
(i) any unrealized or realized net foreign currency translation or transaction gains or Charges impacting net income (including currency
re-measurements of Indebtedness, any net gains or Charges resulting from Hedge Agreements for currency exchange risk associated with
the above or any other currency related risk, any gains or Charges relating to translation of asset and liabilities denominated in a
foreign currency and those resulting from intercompany Indebtedness), (ii) any realized or unrealized gain or Charge in respect of (x)
any obligation under any Hedge Agreement as determined in accordance with GAAP and/or (y) any other derivative instrument pursuant to,
in the case of this clause (y), Financial Accounting Standards Board’s Accounting Standards Codification No. 815-Derivatives
and Hedging and (iii) unrealized gains or losses in respect of any Hedge Agreement and any ineffectiveness recognized in earnings related
to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge
transactions, in respect of Hedge Agreements;
(e)
any net gain or Charge with respect to (i) any disposed, abandoned, divested and/or discontinued asset, property or operation (other
than, at the option of the Borrower, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination
thereof), (ii) any disposal, abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the
option of the Borrower, relating to assets or properties held for sale or pending the divestiture or discontinuation thereof) and/or
(iii) any facility that has been closed during such period;
(f)
any net income or Charge (less all fees and expenses related thereto) attributable to (i) the early extinguishment or cancellation of
Indebtedness or (ii) any Derivative Transaction;
(g)
(i) any Charge incurred as a result of, in connection with or pursuant to (or incurred by a Parent Company to the extent permitted to
be paid by the Borrower hereunder) any management equity plan, profits interest or stock option plan or any other management or employee
benefit plan or agreement, pension plan (including a non-cash deemed finance Charge), any stock subscription or shareholders agreement
or any distributor equity plan or any similar equity plan or agreement (including any deferred compensation arrangement or trust), (ii)
any Charge incurred in connection with the rollover, acceleration or payout of Capital Stock held by management of any Parent Company,
the Borrower and/or any of its subsidiaries, in each case under this clause (ii), to the extent that any such cash Charge is funded
with net Cash proceeds contributed to the Subject Person as a capital contribution or as a result of the sale or issuance of Capital
Stock (other than Disqualified Capital Stock) of the Subject Person and (iii) the amount of payments made to optionholders of such Person
or any Parent Company in connection with, or as a result of, any distribution being made to equityholders of such Person or its Parent
Companies, which payments are being made to compensate such optionholders as though they were equityholders at the time of, and entitled
to share in, such distribution, in each case to the extent permitted hereunder;
(h)
any Charge that is established, adjusted and/or incurred, as applicable, (i) within 12 months after the Closing Date that is required
to be established, adjusted or incurred, as applicable, as a result of the Transactions in accordance with GAAP, (ii) within 12 months
after the closing of any other acquisition that is required to be established, adjusted or incurred, as applicable, as a result of such
acquisition in accordance with GAAP or (iii) as a result of any change in, or the adoption or modification of, accounting principles
or policies;
(i)
any (A) write-off or amortization made in such period of deferred financing costs and premiums paid or other expenses incurred directly
in connection with any early extinguishment of Indebtedness, (B) goodwill or other asset impairment charges, write-offs or write-downs
and (C) amortization of intangible assets (including amortization of goodwill, software, deferred or capitalized financing fees, debt
issuance costs, commissions and expenses and other intangible assets);
(j)
(A) the effects of adjustments (including the effects of such adjustments pushed down to the Subject Person and its subsidiaries) in
component amounts required or permitted by GAAP (including, without limitation, in the inventory, property and equipment, lease, rights
fee arrangements, software, goodwill, intangible asset, in-process research and development, deferred revenue, advanced billing and debt
line items thereof), resulting from the application of recapitalization accounting or acquisition accounting, as the case may be, in
relation to the Transactions or any consummated acquisition or similar Investment or the amortization or write- off of any amounts thereof
(including any write-off of in process research and development) and/or (B) the cumulative effect of any change in accounting principles
or policies (effected by way of either a cumulative effect adjustment or as a retroactive application, in each case, in accordance with
GAAP) (except that, if the Borrower determines in good faith that the cumulative effects thereof are not material to the interests of
the Lenders, the effects of any change in any such principles or policies may be included in any subsequent period after the Fiscal Quarter
in which such change, adoption or modification was made);
(k)
the income or loss of any Person accrued prior to the date on which such Person became a Restricted Subsidiary of such Subject Person
or is merged into or consolidated with such Subject Person or any Restricted Subsidiary of such Subject Person or the date that such
other Person’s assets are acquired by such Subject Person or any Restricted Subsidiary of such Subject Person (except to the extent
required for any calculation of Consolidated Adjusted EBITDA on a Pro Forma Basis in accordance with Section 1.04);
(l)
any deferred Tax expense associated with any tax deduction or net operating loss arising as a result of the Transactions, or the release
of any valuation allowance related to any such item;
(m)
[reserved];
(n)
earn-out, non-compete and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments
thereof and purchase price adjustments, including in respect of any acquisition consummated prior to the Closing Date;
(o)
[reserved];
(p)
(A) Transaction Costs, (B) any Charges incurred (1) in connection with any transaction (in each case, regardless of whether consummated),
whether or not permitted under this Agreement, including any issuance and/or incurrence of Indebtedness and/or any issuance and/or offering
of Capital Stock (including, in each case, by any Parent Company), any Investment, any acquisition, any Disposition, any recapitalization,
any merger, consolidation or amalgamation, becoming a standalone company, any option buyout or any repayment, redemption, refinancing,
amendment or modification of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums
and prepayment penalties) or any similar transaction, and/or (2) in connection with any Qualifying IPO (whether or not consummated),
(C) the amount of any Charges that are actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement
provisions or similar agreements or insurance (it being understood that if the amount received in cash under any such agreement in any
period exceeds the amount of expense paid during such period, any excess amount received may be carried forward and applied against any
expense in any future period); provided that in respect of any reimbursable Charge that is added back in reliance on clause
(C) above, such relevant Person in good faith expects to receive reimbursement for such Charge within the next four Fiscal Quarters
(with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within the next four Fiscal
Quarters) and/or (D) Public Company Costs;
(q)
non-cash Charges incurred or accrued in connection with any single or one-time event (as determined in good faith by such Person), including
in connection with (A) the Transactions, the Amendment No. 1 Transactions,
the Amendment No. 2 Transactions and/or any acquisition consummated after the Closing Date (including legal, accounting and
other professional fees and expenses incurred in connection with acquisitions and other Investments made prior to the Closing Date),
(B) the closing, consolidation or reconfiguration of any facility during such period or (C) one-time consulting costs;
(r)
non-cash compensation Charges and/or any other non-cash Charges arising from the granting of any stock, stock option or similar arrangement
(including any profits interest), the granting of any restricted stock, stock appreciation right and/or similar arrangement (including
any repricing, amendment, modification, substitution or change of any such stock option, restricted stock, stock appreciation right,
profits interest or similar arrangement or the vesting of any warrant); and
(s)
to the extent such amount would otherwise increase Consolidated Net Income, Taxes paid (including pursuant to any Tax sharing arrangement)
in cash (including, to the extent paid in cash, Taxes arising out of any tax examination) and (B) Tax distributions made in cash during
such period.
In
addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, Consolidated
Net Income will include the proceeds of business interruption insurance in an amount representing the earnings for the applicable period
that such proceeds are intended to replace (whether or not received so long as the Borrower in good faith expects to receive such proceeds
within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent not
so received within the next four Fiscal Quarters)).
“Consolidated
Secured Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt
outstanding on such date that is secured by a Lien on any asset or property of such Person or its Restricted Subsidiaries that constitutes
Collateral.
“Consolidated
Total Assets” means, as to any Person, at any date, all amounts that would, in conformity with GAAP, be set forth opposite
the caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person at such date.
“Consolidated
Total Debt” means, as to any Person at any date of determination, the aggregate principal amount of all third party debt for
borrowed money (including LC Disbursements that have not been reimbursed within three Business Days and the outstanding principal balance
of all Indebtedness of such Person represented by notes, bonds and similar instruments), Attributable Debt and purchase money Indebtedness
(but excluding, for the avoidance of doubt, undrawn letters of credit), in each case of such Person; provided that “Consolidated
Total Debt” shall be calculated (i) net of the Unrestricted Cash Amount, (ii) to exclude any obligation, liability or indebtedness
of such Person if, upon or prior to the maturity thereof, such Person has irrevocably deposited with the proper Person in trust or escrow
the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such obligation, liability or indebtedness,
and thereafter such funds and evidences of such obligation, liability or indebtedness or other security so deposited are not included
in the calculation of the Unrestricted Cash Amount, (iii) to exclude obligations under any Derivative Transaction, any Qualified Receivables
Facility, or under any Indebtedness that is non-recourse to the Borrower and its Restricted Subsidiaries and (iv) to exclude any iStar
Exchange or Excluded Property Transaction.
“Consolidated
Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.
“Consolidated
Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end
of such period; provided that there shall be excluded (a) the effect of reclassification during such period between current assets
and long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior period to give
effect to such reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition of any
Person, facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and contingent obligations
under any Hedge Agreement and (d) the application of purchase or recapitalization accounting.
“Contractual
Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties
is bound or to which it or any of its properties is subject.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Copyright”
means the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright whether published or unpublished,
copyright registrations and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past
or future infringements for any of the foregoing; (d) the right to sue for past, present and future infringements of any of the foregoing;
and (e) all rights corresponding to any of the foregoing.
“Cost
Saving Initiative” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Credit
Extension” means each of (i) the making of a Revolving Loan or Swingline Loan or (ii) the issuance, amendment, modification,
renewal or extension of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase
the Stated Amount of the relevant Letter of Credit).
“Credit
Facilities” means the Revolving Facility and the Term Facility.
“Credit
Suisse” has the meaning assigned to such term in the preamble to this Agreement.
“Cure
Amount” has the meaning assigned to such term in Section 6.15(b).
“Cure
Right” has the meaning assigned to such term in Section 6.15(b).
“Current
Assets” means, at any date, all assets of the Borrower and its Restricted Subsidiaries which under GAAP would be classified
as current assets (excluding any (i) cash or Cash Equivalents (including cash and Cash Equivalents held on deposit for third parties
by the Borrower and/or any Restricted Subsidiary), (ii) permitted loans to third parties, (iii) deferred bank fees and derivative financial
instruments related to Indebtedness, (iv) the current portion of current and deferred Taxes and (v) assets held for sale or pension assets).
“Current
Liabilities” means, at any date, all liabilities of the Borrower and its Restricted Subsidiaries which under GAAP would be
classified as current liabilities, other than (i) current maturities of long term debt, (ii) outstanding revolving loans and letter of
credit exposures, (iii) accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is due and unpaid), (iv)
obligations in respect of derivative financial instruments related to Indebtedness, (v) the current portion of current and deferred Taxes,
(vi) liabilities in respect of unpaid earnouts, (vii) accruals relating to restructuring reserves, (viii) liabilities in respect of funds
of third parties on deposit with the Borrower and/or any Restricted Subsidiary, (ix) the current portion of any Capital Lease, (x) any
liabilities recorded in connection with stock based awards, partnership interest based awards, awards of profits interests, deferred
compensation awards and similar initiative based compensation awards or arrangements and (xi) the current portion of any other long term
liability for borrowed money.
“Debt
Fund Affiliate” means any Affiliate (other than a natural person) of the Sponsor that is a bona fide debt fund or investment
vehicle that is engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise
investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business.
“Debtor
Relief Laws” means the Bankruptcy Code of the U.S., and all other liquidation, conservatorship, bankruptcy, general assignment
for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the
U.S. or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declined
Proceeds” has the meaning assigned to such term in Section 2.11(b)(v).
“Default”
means any event or condition which upon notice, lapse of time or both would become an Event of Default.
“Defaulting
Lender” means any Lender that has (a) defaulted in its obligations under this Agreement, including without limitation, to make
a Loan within two Business Days of the date required to be made by it hereunder or to fund its participation in a Letter of Credit or
Swingline Loan required to be funded by it hereunder within two Business Days of the date such obligation arose or such Loan, Letter
of Credit or Swingline Loan was required to be made or funded, (b) notified the Administrative Agent, any Issuing Bank or the Swingline
Lender or any Loan Party in writing that it does not intend to satisfy any such obligation or has made a public statement to the effect
that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend
credit generally (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states
that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together
with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) failed,
within two Business Days after the request of Administrative Agent or the Borrower, to confirm in writing that it will comply with the
terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit
and Swingline Loans; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt
of such written confirmation by the Administrative Agent, (d) become (or any parent company thereof has become) insolvent or been determined
by any Governmental Authority having regulatory authority over such Person or its assets, to be insolvent, or the assets or management
of which has been taken over by any Governmental Authority, (e) become (or any parent company thereof has become) the subject of a bankruptcy
or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance
of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment, unless in the case of any Lender
subject to this clause (e), the Borrower and the Administrative Agent shall each have determined that such Lender intends, and
has all approvals required to enable it (in form and substance satisfactory to each of the Borrower and the Administrative Agent), to
continue to perform its obligations as a Lender hereunder or (f) become (or any parent company thereof has become) the subject of a Bail-In
Action; provided that no Lender shall be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of
any Capital Stock in such Lender or its parent by any Governmental Authority; provided that such action does not result in or
provide such Lender with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of attachment
on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contract or agreement
to which such Lender is a party.
“Deposit
Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or
like organization, excluding, for the avoidance of doubt, any investment property (within the meaning of the UCC) or any account evidenced
by an instrument or negotiable certificate of deposit (within the meaning of the UCC).
“Derivative
Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement,
interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives rise to similar
credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction, including any cross-currency
interest-rate swap, any forward foreign-exchange contract, any currency option, and any other instrument linked to exchange rates that
gives rise to similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any equity-linked option,
any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d) any commodity
(including precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any forward commodity-linked
contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided, that, no phantom stock
or similar plan providing for payments only on account of services provided by current or former directors, officers, employees, members
of management, managers or consultants of the Borrower or its subsidiaries shall constitute a Derivative Transaction.
“Designated
Non-Cash Consideration” means the fair market value (as determined by the Borrower in good faith) of non-Cash consideration
received by the Borrower or any Restricted Subsidiary in connection with any Disposition pursuant to Section 6.07(h) and/or Section
6.08 that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower,
setting forth the basis of such valuation (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection
with a subsequent sale or conversion of such Designated Non-Cash Consideration to Cash or Cash Equivalents).
“Discount
Range” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Disposition”
or “Dispose” means the sale, lease, sublease, or other disposition of any property of any Person. The fair market
value of any assets or other property Disposed of shall be determined by the Borrower in good faith.
“Disqualified
Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, prior
to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such redemption
is in part, only such part coming into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued
shall constitute Disqualified Capital Stock), (b) is or becomes convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (i) debt securities or (ii) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time
on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued, (c) contains any mandatory repurchase
obligation or any other repurchase obligation at the option of the holder thereof (other than for Qualified Capital Stock), in whole
or in part, which may come into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it
being understood that if any such repurchase obligation is in part, only such part coming into effect prior to 91 days following such
Latest Maturity Date at the time such Capital Stock is issued shall constitute Disqualified Capital Stock) or (d) provides for the scheduled
payments of dividends in Cash on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided
that any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or
the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the
issuer thereof to redeem such Capital Stock upon the occurrence of any change of control, Qualifying IPO or any Disposition occurring
prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued shall not constitute Disqualified Capital
Stock if such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior
to the Termination Date.
Notwithstanding
the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees, members
of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or
consultants, in each case in the ordinary course of business of Holdings, the Borrower or any Restricted Subsidiary, such Capital Stock
shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to
satisfy applicable statutory or regulatory obligations and (B) no Capital Stock held by any Permitted Payee shall be considered Disqualified
Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock
option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar
agreement that may be in effect from time to time.
Notwithstanding
the foregoing, in all cases both the Series A Preferred Stock and any preferred Capital Stock required by applicable Requirements of
Law to be issued in connection with obtaining liquor licenses shall be deemed not to be Disqualified Capital Stock hereunder.
“Disqualified
Institution” means:
(a)
(i) any Person identified as such in writing to the Arrangers on June 5, 2017 by way of email from the Sponsor (or its attorneys on such
date), (ii) any Person identified as such by the Borrower in writing after June 5, 2017 (and reasonably satisfactory) to the Arrangers
(or if after the Closing Date, to the Administrative Agent in place of the Arrangers), (iii) any Affiliate of any Person described in
clauses (i) or (ii) above that is clearly identifiable as an Affiliate of such Person on the basis of such Affiliate’s
name and (iv) any other Affiliate of any Person described in clauses (i) or (ii) above that is identified by the Borrower
in a written notice to the Arrangers (if prior to the Closing Date) or the Administrative Agent (if after the Closing Date) (other than
Bona Fide Debt Funds other than such Bona Fide Debt Funds excluded pursuant to clause (a)(i) or (a)(ii) of this paragraph) (each such
person described in clauses (i) through (iv) above, a “Disqualified Lending Institution”);
(b)
(i) any Person that is a Company Competitor and/or any Affiliate of any Company Competitor (other than any Affiliate that is a Bona Fide
Debt Fund) and is identified by the Borrower as such in writing to the Arrangers (if prior to the Closing Date) or the Administrative
Agent (if after the Closing Date), (ii) any Affiliate of any Person described in clause (i) above (other than any Affiliate that
is a Bona Fide Debt Fund) that is clearly identifiable as an Affiliate of such person on the basis of such Affiliate’s name and
(iii) any other Affiliate of any Person described in clause (i) above that is identified by the Borrower in a written notice to
the Arrangers (if prior to the Closing Date) or to the Administrative Agent (if after the Closing Date) (it being understood and agreed
that no Bona Fide Debt Fund may be designated as a Disqualified Institution pursuant to this clause (iii), but such Bona Fide
Debt Fund may be designated as a Disqualified Lending Institution pursuant to clause (a) above); and
(c)
any Affiliate or Representative of any Arranger and/or any Initial Lender that is engaged as a principal primarily in private equity,
mezzanine financing or venture capital;
it
being understood and agreed that no written notice delivered pursuant to clauses (a)(ii), (a)(iv), (b)(i)
and/or (b)(iii) above shall apply retroactively to disqualify any Person that has previously acquired an assignment or
participation interest in any Loans if such Person was not a Disqualified Institution at the time of acquisition of such assignment
or participation interest.
“Disqualified
Lending Institution” has the meaning assigned to such term in the definition of “Disqualified Institution”.
“Disregarded
Domestic Subsidiary” means any Domestic Subsidiary that has no material assets other than the Capital Stock and/or Indebtedness
of one or more Foreign Subsidiaries, IP Rights related to such Foreign Subsidiaries, Cash or Cash Equivalents, and other incidental assets
related thereto or that has no material assets other than Capital Stock and/or Indebtedness of one or more Disregarded Domestic Subsidiaries.
“Dollars”
or “$” refers to lawful money of the U.S.
“Domestic
Subsidiary” means any Restricted Subsidiary incorporated or organized under the laws of the U.S., any state thereof or the
District of Columbia.
“Dutch
Auction” means an auction (an “Auction”) conducted by any Affiliated Lender or any Debt Fund Affiliate (any
such Person, the “Auction Party”) in order to purchase Initial Term Loans (or any Additional Term Loans), in accordance
with the following procedures (as may be modified by such Affiliated Lender or Debt Fund Affiliate (as applicable) and the applicable
“auction agent” in connection with a particular Auction transaction); provided that no Auction Party shall initiate
any Auction unless (I) at least five Business Days have passed since the consummation of the most recent purchase of Term Loans pursuant
to an Auction conducted hereunder; or (II) at least three Business Days have passed since the date of the last Failed Auction (or equivalent)
which was withdrawn:
(a)
Notice Procedures. In connection with any Auction, the Auction Party will provide notification to the Auction Agent (for distribution
to the relevant Lenders) of the Term Loans that will be the subject of the Auction (an “Auction Notice”). Each Auction
Notice shall be in a form reasonably acceptable to the Auction Agent and shall (i) specify the maximum aggregate principal amount of
the Term Loans subject to the Auction, in a minimum amount of $10,000,000 and whole increments of $1,000,000 in excess thereof (or, in
any case, such lesser amount of such Term Loans then outstanding or which is otherwise reasonably acceptable to the Auction Agent and
the Administrative Agent (if different from the Auction Agent)) (the “Auction Amount”), (ii) specify the discount
to par (which may be a range (the “Discount Range”) of percentages of the par principal amount of the Term Loans subject
to such Auction), that represents the range of purchase prices that the Auction Party would be willing to accept in the Auction, (iii)
be extended, at the sole discretion of the Auction Party, to (x) each Lender and/or (y) each Lender with respect to any Term Loan on
an individual Class basis and (iv) remain outstanding through the Auction Response Date. The Auction Agent will promptly provide each
appropriate Lender with a copy of the Auction Notice and a form of the Return Bid to be submitted by a responding Lender to the Auction
Agent (or its delegate) by no later than 5:00 p.m. on the date specified in the Auction Notice (or such later date as the Auction Party
may agree with the reasonable consent of the Auction Agent) (the “Auction Response Date”).
(b)
Reply Procedures. In connection with any Auction, each Lender holding the relevant Term Loans subject to such Auction may, in
its sole discretion, participate in such Auction and may provide the Auction Agent with a notice of participation (the “Return
Bid”) which shall be in a form reasonably acceptable to the Auction Agent, and shall specify (i) a discount to par (that must
be expressed as a price at which it is willing to sell all or any portion of such Term Loans) (the “Reply Price”),
which (when expressed as a percentage of the par principal amount of such Term Loans) must be within the Discount Range and (ii) a principal
amount of such Term Loans, which must be in whole increments of $1,000,000 (or, in any case, such lesser amount of such Term Loans of
such Lender then outstanding or which is otherwise reasonably acceptable to the Auction Agent) (the “Reply Amount”).
Lenders may only submit one Return Bid per Auction, but each Return Bid may contain up to three bids only one of which may result in
a Qualifying Bid. In addition to the Return Bid, the participating Lender must execute and deliver, to be held in escrow by the Auction
Agent, an Assignment and Assumption with the dollar amount of the Term Loans to be assigned to be left in blank, which amount shall be
completed by the Auction Agent in accordance with the final determination of such Lender’s Qualifying Bid pursuant to clause
(c) below. Any Lender whose Return Bid is not received by the Auction Agent by the Auction Response Date shall be deemed to have
declined to participate in the relevant Auction with respect to all of its Term Loans.
(c)
Acceptance Procedures. Based on the Reply Prices and Reply Amounts received by the Auction Agent prior to the applicable Auction
Response Date, the Auction Agent, in consultation with the Auction Party, will determine the applicable price (the “Applicable
Price”) for the Auction, which will be the lowest Reply Price for which the Auction Party can complete the Auction at the Auction
Amount; provided that, in the event that the Reply Amounts are insufficient to allow the Auction Party to complete a purchase
of the entire Auction Amount (any such Auction, a “Failed Auction”), the Auction Party shall either, at its election,
(i) withdraw the Auction or (ii) complete the Auction at an Applicable Price equal to the highest Reply Price. The Auction Party shall
purchase the relevant Term Loans (or the respective portions thereof) from each Lender with a Reply Price that is equal to or lower than
the Applicable Price (“Qualifying Bids”) at the Applicable Price; provided that if the aggregate proceeds required
to purchase all Term Loans subject to Qualifying Bids would exceed the Auction Amount for such Auction, the Auction Party shall purchase
such Term Loans at the Applicable Price ratably based on the principal amounts of such Qualifying Bids (subject to rounding requirements
specified by the Auction Agent in its discretion). If a Lender has submitted a Return Bid containing multiple bids at different Reply
Prices, only the bid with the lowest Reply Price that is equal to or less than the Applicable Price will be deemed to be the Qualifying
Bid of such Lender (e.g., a Reply Price of $100 with a discount to par of 1%, when compared to an Applicable Price of $100 with a 2%
discount to par, will not be deemed to be a Qualifying Bid, while, however, a Reply Price of $100 with a discount to par of 2.50% would
be deemed to be a Qualifying Bid). The Auction Agent shall promptly, and in any case within five Business Days following the Auction
Response Date with respect to an Auction, notify (I) the Borrower of the respective Lenders’ responses to such solicitation, the
effective date of the purchase of Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount of the
Term Loans and the tranches thereof to be purchased pursuant to such Auction, (II) each participating Lender of the effective date of
the purchase of Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount and the tranches of Term
Loans to be purchased at the Applicable Price on such date, (III) each participating Lender of the aggregate principal amount and the
tranches of the Term Loans of such Lender to be purchased at the Applicable Price on such date and (IV) if applicable, each participating
Lender of any rounding and/or proration pursuant to the second preceding sentence. Each determination by the Auction Agent of the amounts
stated in the foregoing notices to the Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error.
(d)
Additional Procedures.
(i)
Once initiated by an Auction Notice, the Auction Party may not withdraw an Auction other than a Failed Auction. Furthermore, in connection
with any Auction, upon submission by a Lender of a Qualifying Bid, such Lender (each, a “Qualifying Lender”) will
be obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Price.
(ii)
To the extent not expressly provided for herein, each purchase of Term Loans pursuant to an Auction shall be consummated pursuant to
procedures consistent with the provisions in this definition, established by the Auction Agent acting in its reasonable discretion and
as reasonably agreed by the Borrower.
(iii)
In connection with any Auction, the Borrower and the Lenders acknowledge and agree that the Auction Agent may require as a condition
to any Auction, the payment of customary fees and expenses by the Auction Party in connection therewith as agreed between the Auction
Party and the Auction Agent.
(iv)
Notwithstanding anything in any Loan Document to the contrary, for purposes of this definition, each notice or other communication required
to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the Auction Agent’s
(or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice
or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business
on the next Business Day.
(v)
The Borrower and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this definition
by itself or through any Affiliate of the Auction Agent and expressly consent to any such delegation of duties by the Auction Agent to
such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement
shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any purchase of Term Loans provided
for in this definition as well as activities of the Auction Agent.
“EAP
Substitution” has the meaning assigned to such term in the iStar Sale/Leaseback Documents.
“EAP
Substitution Property” means any property that is the subject of an EAP Substitution.
“EEA
Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA
Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA
Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ECF
Prepayment Amount” has the meaning assigned to such term in Section 2.11(b)(i).
“Effective
Yield” means, as to any Indebtedness, the effective yield applicable thereto calculated by the Administrative Agent in consultation
with the Borrower in a manner consistent with generally accepted financial practices, taking into account (a) interest rate margins,
(b) interest rate floors (subject to the proviso set forth below), (c) any amendment to the relevant interest rate margins and interest
rate floors prior to the applicable date of determination and (d) original issue discount and upfront or similar fees (based on an assumed
four-year average life to maturity or lesser remaining average life to maturity), but excluding (i) any advisory, arrangement, commitment,
consent, structuring, success, underwriting, ticking, unused line fees, amendment fees and/or any similar fees payable in connection
therewith (regardless of whether any such fees are paid to or shared in whole or in part with any lender) and (ii) any other fee that
is not paid directly by the Borrower generally to all relevant lenders ratably (or, if only one lender (or affiliated group of lenders)
is providing such Indebtedness, are fees of the type not customarily shared with lenders generally); provided, that with respect
to any Indebtedness that includes a “LIBOR floor” or “Base Rate floor”, that (A) to the extent that the Published
LIBO Rate (for an Interest Period of three months) or Alternate Base Rate (in each case without giving effect to any floor specified
in the definition thereof on the date on which the Effective Yield is being calculated) is less than such floor, the amount of such difference
will be deemed added to the interest rate margin applicable to such Indebtedness for purposes of calculating the Effective Yield and
(B) to the extent that the Published LIBO Rate (for an Interest Period of three months) or Alternate Base Rate (in each case, without
giving effect to any floor specified in the definitions thereof) is greater than such floor, the floor will be disregarded in calculating
the Effective Yield.
“Eligible
Assignee” means (a) any Lender, (b) any commercial bank, insurance company, finance company, financial institution, any
fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), (c)
any Affiliate of any Lender, (d) any Approved Fund of any Lender or (e) to the extent permitted under Section 9.05(g) or with
respect to the Revolving Loans and Revolving Credit Commitments of any Defaulting Lender, any Affiliated Lender or any Debt Fund
Affiliate; provided that in any event, “Eligible Assignee” shall not include (i) any natural person, (ii) any
Disqualified Institution or Defaulting Lender or (iii) except as permitted under Section 9.05(g) or except with respect to
the Revolving Loans and Revolving Credit Commitments of any Defaulting Lender, the Borrower or any of its Affiliates.
“Employee
Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (regardless of whether such
plan is subject to ERISA) which is sponsored, maintained or contributed to by, or required to be contributed to by, Borrower or any of
its Subsidiaries.
“Environmental
Claim” means any written investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order
or other order, decree or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant
to or in connection with any actual or alleged violation of any Environmental Law; or (b) in connection with any actual or alleged Hazardous
Materials Activity.
“Environmental
Laws” means any and all applicable foreign or domestic, federal, state or local (or any subdivision thereof), statutes, ordinances,
orders, decrees, rules, regulations, judgments, Governmental Authorizations, or any other applicable binding requirements of Governmental
Authorities or the common law relating to (a) pollution or the protection of the environment or natural resources, human health and safety
(to the extent relating to the exposure to any hazardous material) or other environmental matters; or (b) any Hazardous Materials Activity
or any exposure of any Person to any hazardous material.
“Environmental
Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any Restricted Subsidiary directly or indirectly resulting from or based upon (a)
any actual or alleged violation of any Environmental Law, (b) any Hazardous Materials Activity, (c) exposure to any Hazardous Materials,
(d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other legally
binding arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity
Contribution” has the meaning assigned to such term in the Recitals to this Agreement.
“ERISA”
means the Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within
the meaning of Section 414(b) of the Code of which that Person is a member; and (b) any trade or business (whether or not incorporated)
which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that
Person is a member.
“ERISA
Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder
with respect to any Pension Plan (excluding those for which the 30- day notice period has been waived); (b) the failure to meet the minimum
funding standard of Section 412 of the Code with respect to any Pension Plan; (c) the filing of any request for or receipt of a minimum
funding waiver under Section 412 of the Code with respect to any Pension Plan; (d) engaging in a non- exempt prohibited transaction within
the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Pension Plan; (e) the provision by the administrator
of any Pension Plan pursuant to Section 4041(a)(2) or Section 302 of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (f) the withdrawal by the Borrower, any of its Restricted Subsidiaries or any of their
respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan
resulting in liability to the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4063 or 4064 of ERISA; (g) the filing by the PBGC of judicial proceedings to terminate any Pension Plan; (h) the imposition of liability
on the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA; (i) a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) of the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates from any Multiemployer
Plan if there is any potential liability therefor under Title IV of ERISA, or the receipt by the Borrower, any of its Restricted Subsidiaries
or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA,
or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; or (j) the incurrence of liability or the imposition
of a Lien pursuant to Section 436 or 430(k) of the Code or pursuant to ERISA with respect to any Pension Plan.
“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
person), as in effect from time to time.
“Event
of Default” has the meaning assigned to such term in Article 7.
“Excess
Cash Flow” means, for any Excess Cash Flow Period, an amount (if positive) equal to:
(a)
the sum, without duplication, of the amounts for such period of the following:
(i)
Consolidated Adjusted EBITDA for such period without giving effect to clause (b)(x) of the definition thereof, plus
(ii)
the Consolidated Working Capital Adjustment for such period, plus
(iii)
cash gains of the type described in clauses (b), (c), (d), (e) and (f) of the definition of “Consolidated
Net Income”, to the extent not otherwise included in calculating Consolidated Adjusted EBITDA (except to the extent such gains
consist of proceeds utilized in calculating Net Proceeds falling under paragraph (a) of the definition thereof or Net Insurance/Condemnation
Proceeds subject to Section 2.11(b)(ii)), plus
(iv)
to the extent not otherwise included in the calculation of Consolidated Adjusted EBITDA for such period, cash payments received by the
Borrower or any of its Restricted Subsidiaries with respect to amounts deducted from Excess Cash Flow in a prior period pursuant to clause
(b)(vii) below, minus
(b)
the sum, without duplication, of the amounts for such period (or, in the case of clauses (b)(i), (b)(iii), (b)(iv), (b)(x), (b)(xi),
(b)(xiii) and (b)(xiv), at the option of the Borrower, amounts after such period to the extent paid prior to the date of the applicable
Excess Cash Flow payment) of the following:
(i)
the aggregate principal amount of (i) all optional prepayments of Indebtedness (other than any (A) optional prepayment of Indebtedness
that is deducted in calculating the amount of any Excess Cash Flow payment in accordance with Section 2.11(b)(i) or (B) revolving
Indebtedness except to the extent any related commitment is permanently reduced in connection with such repayment), (ii) all mandatory
prepayments and scheduled repayments of Indebtedness and (iii) the aggregate amount of any premiums, make-whole or penalty payments actually
paid in Cash by the Borrower and/or any Restricted Subsidiary that are or were required to be made in connection with any prepayment
of Indebtedness, in each case, except to the extent financed with long- term funded Indebtedness (other than revolving Indebtedness),
plus
(ii)
[reserved], plus
(iii)
Consolidated Interest Expense to the extent paid or payable in Cash (including (A) fees and expenses paid to the Administrative Agent
in connection with its services hereunder, (B) other bank, administrative agency (or trustee) and financing fees (including rating agency
fees and other fees in respect of any Second Lien Facility), (C) costs of surety bonds in connection with financing activities (whether
amortized or immediately expensed) and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments,
letters of credit, bank guarantees, bankers’ acceptances or any similar facilities or financing and Hedge Agreements), plus
(iv)
Taxes (including Taxes paid or payable pursuant to any Tax sharing arrangement or arrangements and/or any Tax distribution) paid or payable,
and provisions for Taxes, to the extent payable in Cash with respect to such Excess Cash Flow Period, plus
(v)
[reserved], plus
(vi)
any foreign translation losses paid or payable in Cash (including any currency re-measurement of Indebtedness, any net gain or loss resulting
from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction
or any other currency-related risk) to the extent included in calculating Consolidated Adjusted EBITDA, plus
(vii)
amounts added back under (i) clauses (b)(xii), (b)(xiv), (b)(xix), (b)(xx), (b)(xxi) or (b)(xxii)
of the definition of “Consolidated Adjusted EBITDA” or (ii) the last paragraph of the definition of Consolidated Net
Income with respect to business interruption insurance, in each case to the extent such amounts have not yet been received by the
Borrower or its Restricted Subsidiaries, plus
(viii)
an amount equal to (A) all Charges either (1) excluded in calculating Consolidated Net Income or (2) added back in calculating Consolidated
Adjusted EBITDA, in each case, to the extent paid or payable in cash and (B) without duplication of amounts deducted in clause (c)(i)
of the definition of Consolidated Adjusted EBITDA, any non-cash item of gain or income included in calculating Consolidated Net Income,
plus
(ix)
[reserved], plus
(x)
to the extent not expensed (or exceeding the amount expensed) during such period or not deducted (or exceeding the amount deducted) in
calculating Consolidated Net Income, the aggregate amount of Charges paid or payable in Cash by the Borrower and its Restricted Subsidiaries
during such period, other than to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness), plus
(xi)
Cash payments (other than in respect of Taxes, which are governed by clause (iv) above) made during such period for any liability the
accrual of which in a prior period did not reduce Consolidated Adjusted EBITDA and therefore increased Excess Cash Flow in such prior
period (provided there was no other deduction to Consolidated Adjusted EBITDA or Excess Cash Flow related to such payment), except
to the extent financed with long term funded Indebtedness (other than revolving Indebtedness), plus
(xii)
[reserved], plus
(xiii)
amounts paid in Cash (except to the extent financed with long term funded Indebtedness (other than revolving Indebtedness)) during such
period on account of (A) items that were accounted for as non-Cash reductions of Consolidated Net Income or Consolidated Adjusted EBITDA
in a prior period and (B) reserves or amounts established in purchase accounting to the extent such reserves or amounts are added back
to, or not deducted from, Consolidated Net Income, plus
(xiv)
the amount of any payment of Cash made during such period to be amortized or expensed over a future period and recorded as a long-term
asset, plus
(xv)
the amount of any Tax obligation of the Borrower and/or any Restricted Subsidiary that is estimated in good faith by the Borrower as
due and payable (but is not currently due and payable) by the Borrower and/or any Restricted Subsidiary as a result of the repatriation
of any dividend or similar distribution of net income of any Foreign Subsidiary to the Borrower and/or any Restricted Subsidiary, plus
(xvi)
to the extent included in the calculation of Consolidated Adjusted EBITDA for such period, the amount of any insurance proceeds received
by the Borrower or any Restricted Subsidiary during such period under the Representation and Warranty Insurance Policy, plus
(xvii)
the aggregate amount of any extraordinary, unusual, special or non- recurring cash Charges paid or payable during such period (whether
or not incurred in such Excess Cash Flow Period) that were excluded in calculating Consolidated Adjusted EBITDA (including any component
definition used therein) for such period, plus
(xviii)
to the extent included in calculating Consolidated Adjusted EBITDA, the aggregate amounts received by the Borrower or any Restricted
Subsidiary pursuant to any iStar Exchange or Excluded Property Transaction.
“Excess
Cash Flow Period” means each full Fiscal Year of the Borrower ending after the Closing Date (commencing, for the avoidance
of doubt, with the Fiscal Year ending on or about June 30, 2018).
“Exchange
Act” means the Securities Exchange Act of 1934 and the rules and regulations of the SEC promulgated thereunder.
“Excluded
Assets” means each of the following:
(a)
any asset (including any General Intangibles and any contract, instrument, lease, license, permit, agreement or other document, or any
property or other right subject thereto (including pursuant to a purchase money security interest, capital lease or similar arrangement
or, in the case of after-acquired property, pre-existing secured Indebtedness not incurred in anticipation of the acquisition by the
Loan Party of such property)) the grant or perfection of a security interest in which would (i) constitute a violation of a restriction
in favor of a third party (other than a Loan Party) or result in the abandonment, invalidation or unenforceability of any right or assets
of the relevant Loan Party, (ii) result in a breach, termination (or a right of termination) or default under any such contract, instrument,
lease, license, permit, agreement or other document (including pursuant to any “change of control” or similar provision)
(there being no requirement pursuant to any Loan Document to obtain any consent in respect thereof from any Person that is not also a
Loan Party) or (iii) permit any Person (other than any Loan Party) to amend any rights, benefits and/or obligations of the relevant Loan
Party or Restricted Subsidiary in respect of such relevant asset or permit such Person to require any Loan Party or any subsidiary of
the Borrower to take any action materially adverse to the interests of such subsidiary or Loan Party; provided, however,
that any such asset will only constitute an Excluded Asset under clause (i), clause (ii) or clause (iii) above to
the extent such violation or breach, termination (or right of termination), default or right to amend would not be rendered ineffective
pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction
or any other applicable Requirement of Law; provided, further, that any such asset shall cease to constitute an Excluded
Asset at such time as the condition causing such violation, breach, termination (or right of termination) or default or right to amend
or require other actions no longer exists and to the extent severable, the security interest granted under the applicable Collateral
Document shall attach immediately to any portion of such General Intangible or other right that does not result in any of the consequences
specified in clauses (i) through (iii) above,
(b)
the Capital Stock of any (i) Captive Insurance Subsidiary, (ii) Unrestricted Subsidiary, (iii) broker-dealer subsidiary, (iv) not-for-profit
subsidiary and/or (v) special purpose entity used for any securitization facility permitted hereunder or any Receivables Subsidiary,
(c)
any (i) foreign IP Rights and/or (ii) intent-to-use (or similar) Trademark application prior to the filing of a “Statement of Use”,
“Amendment to Allege Use” or similar filing with respect thereto, only to the extent, if any, that, and solely during the
period, in which, if any, the grant of a security interest therein may impair the validity or enforceability, or result in the voiding
of, such intent-to-use Trademark application or any registration issuing therefrom under applicable law,
(d)
any asset or property (including Capital Stock), the grant or perfection of a security interest in which would (A) require any governmental
or regulatory consent, approval, license or authorization (there being no requirement under any Loan Document to obtain the consent,
approval, license or authorization of any Governmental Authority or other Person (other than any Loan Party), including, without limitation,
no requirement to comply with the Federal Assignment of Claims Act or any similar statute), (B) be prohibited or restricted by applicable
Requirements of Law (including enforceable anti-assignment provisions of applicable Requirements of Law), except, in the case of this
clause (B), to the extent such prohibition would be rendered ineffective under applicable anti-assignment provisions of the UCC
of any relevant jurisdiction notwithstanding such prohibition, (C) trigger termination of any contract pursuant to a “change of
control” or similar provision or (D) result in adverse tax or regulatory consequences to any Loan Party or any of its subsidiaries
or Parent Companies as determined by the Borrower in good faith following consultation with the Administrative Agent,
(e)
(i) except to the extent a security interest therein can be perfected by the filing of an “all-assets” UCC-1 financing statement,
any leasehold interest, (ii) any real property or real property interest that is not a Material Real Estate Asset, (iii) any real property
(including improvements) or real property interest (including improvements) that was leased by the Borrower or any of its Subsidiaries
and later deeded or conveyed to the Borrower or any other Loan Party, (iv) any real property (including improvements) or real property
interest (including improvements) owned by a Loan Party immediately prior to the Closing Date and not required to be subject to a mortgage
or security interest pursuant to the terms of the Existing Credit Facilities (including the real property (and improvements thereto)
set forth on Schedule 1.01(e) hereto) or the terms hereunder and (v) any Excluded Property,
(f)
any Capital Stock of any Person that is not a Wholly-Owned Restricted Subsidiary or that is an Immaterial Subsidiary,
(g)
any Margin Stock,
(h)
the voting Capital Stock of any Foreign Subsidiary that is a “controlled foreign corporation” (as defined in Section 957(a)
of the Code) or Disregarded Domestic Subsidiary, other than 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary
or Disregarded Domestic Subsidiary, as applicable,
(i)
any Letter-of-Credit-Right (other than to the extent a security interest in such Letter-of-Credit-Right can be perfected by filing an
“all-assets” UCC financing statement, without need for any other action) and all Commercial Tort Claims,
(j)
any Cash or Cash Equivalents (other than Cash and Cash Equivalents representing identifiable proceeds of other Collateral, a security
interest in which can be perfected through the filing of an “all-assets” UCC financing statement or which is perfected or
arises by law (including without limitation, the UCC), in each case without need for any action by any Loan Party or any Affiliate thereof),
(k)
any Deposit Account or commodity or securities account (including any securities entitlement and any related asset) (except to the extent
a security interest therein can be perfected through the filing of an “all assets” UCC financing statement (without need
for any other action); it being understood that Cash and Cash Equivalents representing identifiable proceeds of other Collateral as referred
to in the preceding clause (j) are not excluded hereby, and shall constitute Collateral (but any other Cash or Cash Equivalents shall
not constitute Collateral), but there shall be no requirement for any control agreement (or similar agreement)),
(l)
any motor vehicle, airplane or other asset subject to a certificate of title (other than to the extent a security interest therein can
be perfected by filing an “all assets” UCC financing statement (without need for any other action) and without the requirement
to list any VIN, serial or similar number),
(m)
any governmental or regulatory license or state or local franchise, charter, consent, permit or authorization to the extent the granting
of a security interest therein is prohibited or restricted thereby or by applicable Requirements of Law; provided, however, that
any such asset will only constitute an Excluded Asset under this clause (m) to the extent such prohibition or restriction would
not be rendered ineffective pursuant to applicable anti-assignment provisions of the UCC of any relevant jurisdiction,
(n)
Receivables Facility Assets and related assets sold or otherwise transferred to a Receivables Subsidiary or otherwise pledged, transferred
or sold in connection with a Receivables Facility, factoring transaction or any similar arrangement permitted hereunder,
(o)
any asset with respect to which the Administrative Agent and the relevant Loan Party have determined in good faith that the cost, burden,
difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its operations and business in the
ordinary course of business) of obtaining or perfecting a security interest therein outweighs the benefit of a security interest to the
relevant Secured Parties afforded thereby, and
(p)
any league deposits to the extent identifiable as such pursuant to the ledgers maintained by the Loan Parties.
“Excluded
Property” means any SLB Property, the properties (and improvements) set forth on Schedule 1.01(f) hereto, any EAP Substitution
Property, any other Real Estate Asset not required to be subject to a Mortgage in favor of the Administrative Agent and any other property
purchased with the proceeds of a Disposition of any of the foregoing.
“Excluded
Property Limited Recourse Financing” means any financing (other than a Sale and Lease-Back Transaction) with respect to an
Excluded Property that constitutes Limited Recourse Financing with respect to the Borrower or any Subsidiary.
“Excluded
Property Limited Recourse Financing Documents” means all definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the date hereof in connection with any Excluded
Property Limited Recourse Financing, in each case as the same may be amended, modified or supplemented from time to time hereafter in
accordance with the provisions thereof, and including all basic financing information and all other agreements, documents and instruments
relating to the Excluded Property Limited Recourse Financing and all exhibits and schedules to any of the foregoing.
“Excluded
Property Sale/Leaseback Transaction” means any Sale and Lease-Back Transaction with respect to one or more Excluded Properties
effected after the date hereof, including any amendment or modification of the iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“Excluded
Property Sale/Leaseback Transaction Documents” means the definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the date hereof in connection with any Excluded
Property Sale/Leaseback Transaction, in each case as the same may be amended, modified or supplemented from time to time hereafter in
accordance with the provisions thereof, and including all basic lease information and all other agreements, documents and instruments
relating to the Excluded Property Sale/Leaseback Transaction and all exhibits and schedules to any of the foregoing.
“Excluded
Property Transaction” means any Excluded Property Sale/Leaseback Transaction and any Excluded Property Limited Recourse Financing.
“Excluded
Property Transaction Documents” means the Excluded Property Sale/Leaseback Transaction Documents and any Excluded Property
Limited Recourse Financing Documents.
“Excluded
Subsidiary” means:
(a)
any Restricted Subsidiary that is not a Wholly-Owned Subsidiary,
(b) any Immaterial Subsidiary,
(c)
any Restricted Subsidiary that is prohibited or restricted by law, rule or regulation or contractual obligation from providing a Loan
Guaranty or that would require a governmental (including regulatory) or third party consent, approval, license or authorization to provide
a Loan Guaranty (including under any financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance
or similar legal principles) unless such consent has been received, it being understood that Holdings and its subsidiaries shall have
no obligation to obtain any such consent, approval, license or authorization,
(d)
any not-for-profit subsidiary,
(e)
any Captive Insurance Subsidiary or subsidiary that is a broker-dealer,
(f)
any special purpose entity (including a special purpose entity used for any permitted securitization or receivables facility or financing,
or established in connection with any iStar Exchange or Excluded Property Transaction) and any Receivables Subsidiary,
(g)
any Foreign Subsidiary,
(h)
(i) any Disregarded Domestic Subsidiary or (ii) any Domestic Subsidiary that is a direct or indirect subsidiary of any Foreign Subsidiary
or any Disregarded Domestic Subsidiary,
(i)
any Unrestricted Subsidiary,
(j)
any subsidiary acquired pursuant to a Permitted Acquisition or other Investment permitted by this Agreement that has assumed secured
Indebtedness not incurred in contemplation of such Permitted Acquisition or other Investment and any Restricted Subsidiary thereof that
guarantees such secured Indebtedness, in each case to the extent the terms of such secured Indebtedness prohibit such subsidiary from
becoming a Guarantor,
(k)
[reserved],
(l)
any Restricted Subsidiary if the provision of a Loan Guaranty could reasonably be expected to result in adverse tax or regulatory consequences
to any Loan Party or any of its subsidiaries or Parent Companies as determined by the Borrower in good faith, and
(m)
any other Restricted Subsidiary with respect to which, in the good faith judgment of the Administrative Agent and the Borrower, the burden
or cost of providing a Loan Guaranty outweighs the benefits afforded thereby.
“Excluded
Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of
the Loan Guaranty of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any
Loan Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures
Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any
reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder
(determined after giving effect to Section 3.20 of the Loan Guaranty and any other “keepwell”, support or other agreement
for the benefit of such Loan Party) at the time the Loan Guaranty of such Loan Party or the grant of such security interest becomes effective
with respect to such Swap Obligation. If any Swap Obligation arises under a master agreement governing more than one swap, such exclusion
shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Loan Guaranty or security interest
is or becomes illegal.
“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender or Issuing Bank or any other recipient of any payment to
be made by or on account of any obligation of any Loan Party hereunder, (a) Taxes imposed on (or measured by) its net income or franchise
Taxes (i) by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) any branch profits
taxes imposed by the U.S. or any similar tax imposed by any other jurisdiction described in clause (a), (c) in the case of a Lender,
any U.S. withholding tax that is imposed on amounts payable to such Lender at the time such Lender acquires an interest in a Loan or
Commitment (or designates a new lending office), except (i) pursuant to an assignment or designation of a new lending office under Section
2.19 and (ii) to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from any Loan Party with respect to such withholding tax pursuant to Section
2.17, (d) any tax imposed as a result of a failure by the Administrative Agent or any Lender or Issuing Bank to comply with Section
2.17(f) and (e) any withholding tax under FATCA.
“Existing
Credit Facilities” has the meaning assigned to such term in Section 4.01(h).
“Existing
Letter of Credit” means each letter of credit set forth on Schedule 1.01(b).
“Existing
Letter of Credit Issuer” means each Lender or Affiliate of a Lender that issued an Existing Letter of Credit.
“Existing
Sponsor” means Cerberus Capital Management, L.P. and its respective Affiliates.
“Expected
Cost Savings” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Extended
Revolving Credit Commitment” has the meaning assigned to such term in Section 2.23(a).
“Extended
Revolving Loans” has the meaning assigned to such term in Section 2.23(a).
“Extended
Term Loans” has the meaning assigned to such term in Section 2.23(a)(ii).
“Extension”
has the meaning assigned to such term in Section 2.23(a)(ii).
“Extension
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (to the extent
required by Section 2.23) and the Borrower, executed by each of (a) the Borrower, (b) the Administrative Agent and (c) each Lender
that has accepted the applicable Extension Offer pursuant hereto and in accordance with Section 2.23.
“Extension
Offer” has the meaning assigned to such term in Section 2.23(a).
“Facility”
means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or, except with respect
to Articles 5 and 6, hereof owned, leased, operated or used by the Borrower or any of its Restricted Subsidiaries or any
of their respective predecessors or Affiliates.
“Failed
Auction” has the meaning assigned to such term in the definition of “Dutch Auction”.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreement entered into pursuant to Section 1471(b)(1) of the Code, and any law, regulation, rules, practice or other published administrative
guidance adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such section of the
Code.
“Federal
Assignment of Claims Act” means the Federal Assignment of Claims Act (41 U.S.C. § 15).
“Federal
Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s
federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York sets forth
on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as
the federal funds effective rate; provided that if such rate as determined above is at any time negative, the Federal Funds Effective
Rate at such time shall instead be zero.
“Fee
Letter” means that certain Amended and Restated Fee Letter, dated as of June 15, 2017, by and among, inter alios, Parent
and the Arrangers, as amended to date.
“Financial
Covenant” means the covenant in Section 6.15(a).
“First
Lien Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated First Lien Debt as of such date
to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term
“First Lien Leverage Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries.
“First
Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that,
subject to the Intercreditor Agreement or any other applicable intercreditor agreement, such Lien is senior in priority to any other
Lien to which such Collateral is subject, other than any Permitted Lien.
“Fiscal
Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal
Year” means the fiscal year of the Borrower ending on or about June 30 of each calendar year, as such fiscal year end may be
adjusted in accordance with the terms of this Agreement.
“Fixed
Amounts” has the meaning assigned to such term in Section 1.04(g).
“Flood
Hazard Property” means any Material Real Estate Asset subject to a Mortgage if any building included in such Material Real
Estate Asset is located in an area designated by the Federal Emergency Management Agency as having special flood hazards.
“Flood
Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of
1973, (iii) the National Flood Insurance Reform Act of 1994, (iv) the Flood Insurance Reform Act of 2004 and (v) the Biggert–Waters
Flood Insurance Reform Act of 2012, each as now or hereafter in effect or any successor statute thereto, and in each case, together with
all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing,
as amended or modified from time to time.
“Foreign
Asset Disposition” means a Disposition where the relevant asset is (A) the stock of or assets of a Foreign Subsidiary or (B)
one or more assets of the Borrower or any Restricted Subsidiary which are located outside the United States or any territory thereof.
“Foreign
Lender” means any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the
Code.
“Foreign
Subsidiary” means any Restricted Subsidiary that is not a Domestic Subsidiary.
“Funding
Account” has the meaning assigned to such term in Section 2.03(f).
“GAAP”
means generally accepted accounting principles in the U.S. in effect and applicable to the accounting period in respect of which reference
to GAAP is made.
“General
Intangibles” has the meaning set forth in Article 9 of the UCC.
“Governmental
Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau,
court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the U.S.,
a foreign government or any political subdivision of either thereof.
“Governmental
Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental
Authority.
“Granting
Lender” has the meaning assigned to such term in Section 9.05(e).
“GS
Bank” has the meaning assigned to such term in the preamble to this Agreement.
“Guarantee”
of or by any Person (the “Guarantor”) means any obligation, contingent or otherwise, of the Guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “Primary
Obligor”) in any manner and including any obligation of the Guarantor (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner
of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other
monetary obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness
or monetary obligation, (e) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness
or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole
or in part) or (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of any
other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or any right, contingent or
otherwise, of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business, or customary and reasonable indemnity obligations
in effect on the Closing Date or entered into in connection with any acquisition, Disposition or other transaction permitted under this
Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made
or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith.
“Hazardous
Materials” means any chemical, material, substance or waste, or any constituent thereof, which is prohibited, limited or regulated
by any Environmental Law due to its hazardous, toxic or similar characteristics, including any chemical, material, substance or waste
defined or listed as “hazardous” or “toxic” in any Environmental Law.
“Hazardous
Materials Activity” means the use, manufacture, possession, storage, holding, Release, threatened Release, discharge, placement,
generation, transportation, processing, treatment, abatement, removal, investigation, remediation, disposal, disposition or handling
of any Hazardous Material, and any corrective action or response action with respect to any of the foregoing.
“Hedge
Agreement” means any agreement with respect to any Derivative Transaction between any Loan Party or any Restricted Subsidiary
and any other Person.
“Hedging
Obligations” means, with respect to any Person, the obligations of such Person under any Hedge Agreement.
“Holdings”
means (a) initially, Merger Sub 1, and after giving effect to the Merger Sub 1 Merger, the Target (in each case prior to the consummation
of a transaction described in clause (b) of this definition) and (b) following the consummation of a transaction permitted hereunder
that results in a New Holdings, New Holdings.
“Holdings
Reorganization Transaction” means (a) the contribution by Holdings of 100% of the Capital Stock of the Borrower to a newly
formed domestic “shell” company owned or controlled by the Permitted Holders or (b) the merger or other consolidation of
Holdings with another Person that, after giving effect thereto, shall hold 100% of the Capital Stock of the Borrower, in each case, so
long as, contemporaneously therewith (as applicable) (i) New Holdings delivers to the Administrative Agent any new certificate issued
(if any) to evidence the contributed Capital Stock of the Borrower and grants a security interest in such Capital Stock in favor of the
Administrative Agent pursuant to the Security Agreement or a joinder thereto in a form reasonably satisfactory to the Administrative
Agent and (ii) New Holdings assumes the Loan Guaranty provided by Holdings and all other obligations of Holdings under this Agreement
and each of the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto that is reasonably acceptable
to the Administrative Agent.
“IFRS”
means international accounting standards within the meaning of the IAS Regulation 1606/2002, as in effect from time to time (subject
to the provisions of Section 1.04), to the extent applicable to the relevant financial statements.
“Immaterial
Subsidiary” means, as of any date, any Restricted Subsidiary of the Borrower (a) that does not have assets in excess of
2.5% of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries and (b) that does not contribute Consolidated
Adjusted EBITDA in excess of 2.5% of the Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries, in each case,
as of the last day of the most recently ended Test Period; provided that, the Consolidated Total Assets and Consolidated
Adjusted EBITDA (as so determined) of all Immaterial Subsidiaries shall not exceed 5.0% of Consolidated Total Assets and 5.0% of
Consolidated Adjusted EBITDA, in each case, of the Borrower and its Restricted Subsidiaries as of the last day of the most recently
ended Test Period; provided further that, at all times prior to the first delivery of financial statements pursuant
to Section 5.01(a) or (b), this definition shall be applied based on the pro forma consolidated financial statements
of the Target delivered pursuant to Section 4.01.
“Immediate
Family Member” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant,
parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling or step-siblings (and linear
descendants either thereof), mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships), any trust,
partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals, any of the
foregoing individual’s (including the initial individual) estate (or an executor or administrator acting on its behalf), heirs
or legatees or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which
any such individual is the donor.
“Incremental
Cap” means:
(a)
the Shared Incremental Amount, plus
(b)
in the case of any Incremental Facility or Incremental Equivalent Debt that effectively extends the Maturity Date with respect to any
Class of Loans and/or commitments hereunder, an amount equal to the portion of the relevant Class of Loans or commitments that will be
replaced by such Incremental Facility or Incremental Equivalent Debt, plus
(c)
in the case of any Incremental Facility or Incremental Equivalent Debt that effectively replaces any Revolving Credit Commitment or Additional
Revolving Credit Commitment terminated in accordance with Section 2.19 hereof, an amount equal to the relevant terminated Revolving
Credit Commitment or Additional Revolving Credit Commitment, plus
(d)
(i) the amount of any optional prepayment of any Loan (including any Incremental Loan) in accordance with Section 2.11(a) and/or
the amount of any permanent reduction of any Revolving Credit Commitment, (ii) the amount of any optional prepayment, redemption or repurchase
of Incremental Equivalent Debt incurred pursuant to the Shared Incremental Amount, (iii) the amount of any optional prepayment, redemption
or repurchase of any Replacement Term Loan or Loans under any Replacement Revolving Facility (to the extent accompanied by a permanent
reduction in commitments) or any borrowing or issuance of Replacement Debt previously applied to the permanent prepayment of any Loan
hereunder or of any Incremental Equivalent Debt, (iv) the amount of any optional prepayment, redemption or repurchase of “Incremental
Loans” and/or “Incremental Equivalent Debt” incurred pursuant to the “Shared Incremental Amount” or of
any “Replacement Term Loans” previously applied to the permanent prepayment of any of the foregoing (each as defined in the
Second Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien Facility) and (v) the aggregate
amount of any Indebtedness referred to in clauses (i) through (iv) repaid or retired resulting from any assignment of such Indebtedness
to (and/or assignment and/or purchase of such Indebtedness by) Holdings, the Borrower and/or any Restricted Subsidiary; provided
that for each of clauses (i) through (v), the relevant prepayment, redemption, repurchase or assignment and/or purchase
was not funded with the proceeds of any long-term Indebtedness (other than revolving Indebtedness), plus
(e)
an unlimited amount so long as, in the case of this clause (e), on a Pro Forma Basis after giving effect to the incurrence of
the Incremental Facility or the Incremental Equivalent Debt, as applicable, and the application of the proceeds thereof (but without
netting the cash proceeds thereof, but giving effect to any related Subject Transaction) and to any relevant Subject Transaction (and,
in the case of any Incremental Revolving Facility then being established, assuming a full drawing thereunder), (i) if such Indebtedness
is secured by a first priority Lien on the Collateral, the First Lien Leverage Ratio does not exceed the greater of (x) 4.20:1.00 and
(y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the First Lien Leverage Ratio
as of the last day of the most recently ended Test Period, (ii) if such Indebtedness is secured by a Lien on the Collateral other than
on a first priority basis or is secured by a Lien on assets of the Borrower or any Restricted Subsidiary that are not Collateral, the
Secured Leverage Ratio does not exceed the greater of (x) 5.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition
or other Investment permitted hereunder, the Secured Leverage Ratio as of the last day of the most recently ended Test Period and (iii)
if such Indebtedness is unsecured, at the election of the Borrower, either (A) the Total Leverage Ratio does not exceed the greater of
(x) 5.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the Total Leverage
Ratio as of the last day of the most recently ended Test Period or (B) the Interest Coverage Ratio is not less than the lesser of (x)
2.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the Interest Coverage
Ratio as of the last day of the most recently ended Test Period;
provided
that:
(1)
any Incremental Facility and/or Incremental Equivalent Debt may be incurred under one or more of clauses (a) through (e) of this definition
as selected by the Borrower in its sole discretion (provided that, in the case of clause (e), an Incremental Facility may be incurred
only under clause (i) thereof),
(2)
if any Incremental Facility or Incremental Equivalent Debt is intended to be incurred under clause (e) of this definition and any other
clause of this definition in a single transaction or series of related transactions, (A) the incurrence of the portion of such Incremental
Facility or Incremental Equivalent Debt to be incurred or implemented under clause (e) of this definition shall be calculated first without
giving effect to any Incremental Facilities or Incremental Equivalent Debt to be incurred under any other clause of this definition,
but giving full pro forma effect to the use of proceeds of the entire amount of such Incremental Facility or Incremental Equivalent Debt
and the related transactions and (B) the incurrence of the portion of such Incremental Facility or Incremental Equivalent Debt to be
incurred or implemented under the other applicable clauses of this definition shall be calculated thereafter, and
(3)
any portion of any Incremental Facility or Incremental Equivalent Debt that is incurred under clauses (a) through (d) of this definition,
unless otherwise elected by the Borrower, shall automatically and without need for action by any Person, be reclassified as having been
incurred under clause (e) of this definition if, at any time after the incurrence thereof, when financial statements required pursuant
to Section 5.01(a) or (b) are delivered or, if earlier, become internally available, such portion of such Incremental Facility
or Incremental Equivalent Debt would, using the figures reflected in such financial statements, be (or have been) permitted under the
First Lien Leverage Ratio, Secured Leverage Ratio, Total Leverage Ratio or Interest Coverage Ratio test, as applicable, set forth in
clause (e) of this definition.
“Incremental
Commitment” means any commitment made by a lender to provide all or any portion of any Incremental Facility or Incremental
Loans.
“Incremental
Equivalent Debt” means any Indebtedness that satisfies the following conditions:
(a)
the aggregate outstanding principal amount thereof does not exceed the Incremental Cap as in effect at the time of determination (after
giving effect to any reclassification on or prior to such date of determination),
(b)
the Weighted Average Life to Maturity of such Indebtedness is no shorter than the remaining Weighted Average Life to Maturity of the
InitialAmendment No. 2
Term Loans and the final maturity date of such Indebtedness is no earlier than the Latest Term Loan Maturity Date applicable to the InitialAmendment
No. 2 Term Loans, in each case as determined on the date of the issuance or incurrence, as applicable, thereof; provided,
that the foregoing limitations shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided,
that any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such
bridge loans shall be subject to the requirements of this clause (b) or (ii) Indebtedness subject to the Permitted Earlier Maturity
Indebtedness Exception,
(c)
subject to clause (b), such Indebtedness may otherwise have an amortization schedule as determined by the Borrower and the lenders providing
such Indebtedness,
(d)
if such Indebtedness is in the form of broadly syndicated Dollar denominated term loans that are pari passu with the InitialAmendment
No. 2 Term Loans in right of payment and with respect to security (other than customary bridge loans with a maturity date
of not longer than one year that are convertible or exchangeable into, or are intended to be refinanced with, any Indebtedness other
than term loans that are pari passu with the InitialAmendment
No. 2 Term Loans in right of payment and with respect to security), the MFN Provisions of Section 2.22(a)(v) shall
apply to such Indebtedness as if (but only to the extent, including after giving effect to applicable exclusions and sunset provisions)
such Indebtedness was an Incremental Term Facility of the type subject to the provisions of Section 2.22(a)(v), mutatis mutandis,
(e)
if such Indebtedness is secured by assets that constitute Collateral, the holders of such Indebtedness (or a representative therefor)
shall be party to an Acceptable Intercreditor Agreement,
(f)
such Indebtedness may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment
of Term Loans made pursuant to Section 2.11(a) and (B) to the extent secured on a pari passu basis with the InitialAmendment
No. 2 Term Loans, on a pro rata basis (but not on a greater than pro rata basis other than in the case of a prepayment with
proceeds of Indebtedness refinancing such Incremental Equivalent Debt) in any mandatory prepayment of Term Loans required pursuant to
Section 2.11(b) or less than a pro rata basis with the then-outstanding Term Facility, and
(g)
if any financial maintenance covenant is added to any such Indebtedness and such financial maintenance covenant is more favorable to
the lenders under such Indebtedness than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable
after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable
financial maintenance covenant (together with, at the election of the Borrower, any applicable “equity cure” provisions with
respect to any such financial maintenance covenant).
“Incremental
Facilities” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Facility Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (solely
for purposes of giving effect to Section 2.22) and the Borrower executed by each of (a) Holdings and the Borrower, (b) the Administrative
Agent and (c) each Lender that agrees to provide all or any portion of the Incremental Facility being incurred pursuant thereto and in
accordance with Section 2.22.
“Incremental
Loans” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Revolving Facility” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Revolving Facility Lender” means, with respect to any Incremental Revolving Facility, each Revolving Lender providing any portion
of such Incremental Revolving Facility.
“Incremental
Revolving Loans” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Term Facility” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Term Loans” has the meaning assigned to such term in Section 2.22(a).
“Incurrence-Based
Amounts” has the meaning assigned to such term in Section 1.04(g).
“Indebtedness”
as applied to any Person means, without duplication, (a) all indebtedness of such Person for borrowed money; (b) the Attributable Debt
of such Person in respect of any Capital Lease of such Person; (c) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments to the extent the same would appear as a liability on a balance sheet (excluding the footnotes thereto) of such
Person prepared in accordance with GAAP; (d) any obligation of such Person owed for all or any part of the deferred purchase price of
property or services (excluding (w) any earn out obligation or purchase price adjustment until such obligation (A) becomes a liability
on the balance sheet of such Person (excluding the footnotes thereto) in accordance with GAAP and (B) has not been paid within 30 days
after becoming due and payable following expiration of any dispute resolution mechanics set forth in the applicable agreement governing
the applicable transaction, (x) any such obligations incurred under ERISA or under any employee consulting agreements, (y) accrued expenses,
trade accounts payable and accruals for payroll, in the ordinary course of business (including on an intercompany basis) and (z) liabilities
associated with customer prepayments and deposits), which purchase price is (i) due more than six months from the date of incurrence
of the obligation in respect thereof or (ii) evidenced by a note or similar written instrument; (e) all Indebtedness of others secured
by any Lien on any property or asset owned or held by such Person regardless of whether the Indebtedness secured thereby has been assumed
by such Person or is non-recourse to the credit of such Person; (f) the face amount of any letter of credit issued for the account of
such Person or as to which such Person is otherwise liable for reimbursement of drawings; (g) the Guarantee by such Person of the Indebtedness
of another; (h) all obligations of such Person in respect of any Disqualified Capital Stock; and (i) all net obligations of such Person
in respect of any Derivative Transaction, including any Hedge Agreement, whether or not entered into for hedging or speculative purposes;
provided that (i) in no event shall obligations under any Derivative Transaction be deemed “Indebtedness” for any
calculation of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio or any
other financial ratio under this Agreement, (ii) in all cases Indebtedness shall exclude any Excluded Property Limited Recourse Financing,
(iii) the amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (A) the
aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the documentation
pursuant to which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as determined by such
Person in good faith and (iv) the amount of any Limited Recourse Debt of any Person shall be deemed to be equal to the lesser of (A)
the aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the documentation
pursuant to which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as determined by such
Person in good faith.
For
all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or any Joint Venture (other than
any Joint Venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer,
except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness
would otherwise be included in the calculation of Consolidated Total Debt; provided that notwithstanding anything herein to the
contrary, the term “Indebtedness” shall not include, and shall be calculated without giving effect to, (x) the effects of
Accounting Standards Codification Topic 815 and related interpretations to the extent such effects would otherwise increase or decrease
an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivatives created by the terms of such
Indebtedness (it being understood that any such amounts that would have constituted Indebtedness hereunder but for the application of
this proviso shall not be deemed an incurrence of Indebtedness hereunder), (y) the effects of Statement of Financial Accounting Standards
No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any
purpose hereunder as a result of accounting for any embedded derivative created by the terms of such Indebtedness (it being understood
that any such amounts that would have constituted Indebtedness hereunder but for the application of this proviso shall not be deemed
to be an incurrence of Indebtedness hereunder) and (z) Indebtedness of any Parent Company appearing on the balance sheet of the Borrower
or any of its Subsidiaries solely by reason of push down accounting under GAAP.
“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation
of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee”
has the meaning assigned to such term in Section 9.03(b).
“Information”
has the meaning set forth in Section 3.11(a).
“Information
Memorandum” means the Confidential Information Memorandum finalized on or about June 20, 2017, relating to the Borrower and
its subsidiaries and the Transactions.
“Initial
Lenders” means the Arrangers and the affiliates of the Arrangers who are party to this Agreement as Lenders on the Closing
Date.
“Initial
Revolving Credit Commitment” means, with respect to any Person, the commitment of such Person to make Initial Revolving Loans
(and acquire participations in Letters of Credit and Swingline Loans) hereunder as set forth on the Commitment Schedule, or in the Assignment
Agreement pursuant to which such Lender assumed its Initial Revolving Credit Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 or 2.19, (b) reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 9.05 or (c) increased pursuant to Section 2.22. The aggregate amount of the Initial
Revolving Credit Commitments as of the Closing Date is $50,000,000.
“Initial
Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of
all Initial Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure and Swingline
Exposure, in each case, attributable to its Initial Revolving Credit Commitment.
“Initial
Revolving Credit Maturity Date” means the date that is five years after the Closing Date.
“Initial
Revolving Facility” means the Initial Revolving Credit Commitments and the Initial Revolving Loans and other extensions of
credit thereunder.
“Initial
Revolving Lender” means any Person with an Initial Revolving Credit Commitment or any Initial Revolving Credit Exposure.
“Initial
Revolving Loan” means any revolving loan made by the Initial Revolving Lenders to the Borrower pursuant to Section 2.01(a)(ii).
“Initial
Term Lender” means any Person with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial
Term Loan Commitment” means, with respect to any Person, the commitment of such Person to make Initial Term Loans hereunder
in an aggregate amount not to exceed the amount set forth opposite such Person’s name on the Commitment Schedule, as the same may
be (a) reduced from time to time pursuant to Section 2.09 or Section 2.19 and (b) reduced or increased from time to time
pursuant to (x) assignments by or to such Person pursuant to Section 9.05 or (y) an Additional Term Loan Commitment. The aggregate
amount of the Initial Term Loan Commitments on the Closing Date is $585,000,000. The aggregate amount of the Initial Term Loan Commitments
on the Amendment No. 1 Effective Date is $113,000,000.
“Initial
Term Loan Maturity Date” means the date that is seven years after the Closing Date.
“Initial
Term Loans” means the term loans (including, without limitation, any Amendment No. 1 Incremental Term Loans) made by the Initial
Term Lenders to the Borrower pursuant to Section 2.01(a)(i).
“Intellectual
Property Security Agreement” means any agreement executed on or after the Closing Date confirming or effecting the grant of
any Lien on IP Rights owned by any Loan Party to the Administrative Agent, for the benefit of the Secured Parties, in accordance with
this Agreement, including any of the following: (a) a Trademark Security Agreement substantially in the form of Exhibit H-1 hereto,
(b) a Patent Security Agreement substantially in the form of Exhibit H-2 hereto or (c) a Copyright Security Agreement substantially
in the form of Exhibit H-3 hereto.
“Intercreditor
Agreement” means the Intercreditor Agreement substantially in the form of Exhibit N hereto, dated as of the Closing
Date, among, inter alios, the Second Lien Collateral Agent, as agent for the Second Lien Claimholders referred to therein, the
Administrative Agent, as agent for the First Lien Claimholders referred to therein, if applicable, the provider of any Additional Letter
of Credit Facility (or a representative thereof) and the Loan Parties from time to time party thereto.
“Interest
Coverage Ratio” means, as of any date of determination, the ratio for the most recently ended Test Period of (a) Consolidated
Adjusted EBITDA for such Test Period to (b) Ratio Interest Expense for such Test Period; provided that, for purposes of calculating
the Interest Coverage Ratio for any period ending prior to the first anniversary of the Closing Date, Ratio Interest Expense shall be
an amount equal to actual Ratio Interest Expense from the Closing Date through the date of determination multiplied by a fraction the
numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the date of determination.
“Interest
Election Request” means a request by the Borrower in the form of Exhibit D hereto or another form reasonably acceptable
to the Administrative Agent to convert or continue a Borrowing in accordance with Section 2.08.
“Interest
Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December (commencing
with the last Business Day of September 2017) or the maturity date applicable to such Loan and (b) with respect to any LIBO Rate Loan,
the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a LIBO Rate Borrowing
with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing.
“Interest
Period” means with respect to any LIBO Rate Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or six months (or, to the extent available to all relevant
affected Lenders, twelve months or, to the extent acceptable to all applicable Lenders, a shorter period) thereafter, as the Borrower
may elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business
Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
“Investment”
means (a) any purchase or other acquisition by the Borrower or any of its Restricted Subsidiaries of any of the Securities of any other
Person (other than any Loan Party), (b) the acquisition by purchase or otherwise (other than any purchase or other acquisition of inventory,
materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the business, property or
fixed assets of any other Person or any division or line of business or other business unit of any other Person and (c) any loan, advance
(other than any advance to any current or former employee, officer, director, member of management, manager, consultant or independent
contractor of the Borrower, any Restricted Subsidiary or any Parent Company for moving, entertainment and travel expenses, drawing accounts
and similar expenditures or payroll expenses or advances in the ordinary course of business) or capital contribution by the Borrower
or any of its Restricted Subsidiaries to any other Person. Subject to Section 5.10, the amount of any Investment shall be the
original cost of such Investment, plus the cost of any addition thereto that otherwise constitutes an Investment, without any
adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but giving effect to any
repayments of principal in the case of any Investment in the form of a loan and any return of capital or return on Investment in the
case of any equity Investment (whether as a distribution, dividend, redemption or sale).
“Investors”
means (a) the Sponsor, (b) the Management Investors and (c) other investors identified to the Administrative Agent in writing that, directly
or indirectly, beneficially own Capital Stock in Holdings on the Closing Date.
“IP
Rights” has the meaning assigned to such term in Section 3.05(c).
“IPO
Reorganization Transaction” means any transaction taken in connection with and reasonably related to consummating a Qualifying
IPO by the Borrower or any Parent Company thereof so long as, after giving effect thereto, (a) the Loan Parties are in compliance with
the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest of the Secured Parties in the Collateral,
taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral immediately prior
to such IPO Reorganization Transaction no longer constituting Collateral) as a result of such IPO Reorganization Transaction.
“IRS”
means the U.S. Internal Revenue Service.
“Issuing
Bank” means, as the context may require, (a) JPM, (b) solely with respect to any Existing Letter of Credit (and any amendment,
renewal or extension thereof in accordance with the terms of this Agreement), each Existing Letter of Credit Issuer and (c) each other
Revolving Lender party hereto from time to time that is appointed as an Issuing Bank in accordance with Section 2.05(i). Subject
to the reasonable consent of the Borrower (subject to the standards set forth in Section 9.05(b)), any Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by any Affiliate of such Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“iStar
Amendments” means the iStar I Eighth Amendment, the iStar II Eighth Amendment and the iStar 2014 Amendment, individually or
collectively (as the context may require).
“iStar
I Eighth Amendment” means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers I LP,
and solely with respect to the Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and AMF Bowling
Centers, Inc., as tenant.
“iStar
II Eighth Amendment” means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers II LP,
as landlord, and AMF Bowling Centers, Inc., as tenant.
“iStar
2014 Amendment” means that certain lease amendment that is expected to be the “First Lease Amendment” in respect
of the iStar Sale/Leaseback 2014 Documents, which is anticipated to include (among other things) certain changes generally consistent
with the iStar I Eighth Amendment and iStar II Eighth Amendment, to be entered into between BW Bowling Properties LP, and solely with
respect to the Site (as defined in subparagraph 34(n)(v) therein) located in Pennsylvania, BW Bowling Properties LLC, as landlord, and
Leiserv, LLC and Brunswick Centres, Inc., as tenant.
“iStar
Exchange” means those transactions described in Section 11 of each of the iStar I Eighth Amendment and the iStar II Eighth
Amendment.
“iStar
Exchange Documents” means the agreements and other documents governing any iStar Exchange transaction, as more particularly
described in each of the iStar I Eighth Amendment and the iStar II Eighth Amendment.
“iStar
Sale/Leaseback” means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback Documents.
“iStar
Sale/Leaseback 2014” means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback 2014 Documents.
“iStar
Sale/Leaseback 2014 Documents” means (i) the Lease Agreement, dated as of September 18, 2014, by and among BW Bowling Properties
LP, BW Bowling Properties Canada Inc. and BW Bowling Properties LLC (collectively as landlord) and Leiserv, LLC and Brunswick Centres,
Inc. (jointly and severally, as tenant) and (ii) the Guaranty dated as of September 18, 2014 by Holdings in favor of BW Bowling Properties
LP, BW Bowling Properties Canada Inc. and BW Bowling Properties LLC, in each case as the same may be amended, modified or supplemented
through the date hereof and from time to time hereafter in accordance with the provisions thereof, and including all basic lease information
and all other agreements, documents and instruments relating to the iStar Sale/Leaseback 2014 and all exhibits and schedules to any of
the foregoing.
“iStar
Sale/Leaseback Documents” means (I) (a) the Lease I Agreement dated as of February 27, 2004 between iStar Bowling Centers I
LP, and solely with respect to the Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and AMF
Bowling Centers, Inc., as tenant, as amended by (i) that certain First Lease Amendment dated as of June 30, 2004, intending to be effective
as of February 27, 2004, (ii) that certain Second Lease Amendment dated as of February 3, 2005, intending to be effective as of February
27, 2004, (iii) that certain Third Lease Amendment dated as of June 18, 2008, intending to be effective as of March 30, 2008, (iv) that
certain Fourth Lease Amendment dated and intended to be effective as of July 1, 2013, (v) that certain Fifth Lease Amendment dated and
intended to be effective as of September 25, 2013, (vi) that certain Sixth Lease Amendment dated and intended to be effective as of October
3, 2014, (vii) that certain Amended and Restated Seventh Lease Amendment dated and intended to be effective as of September 9, 2016,
and (viii) the iStar I Eighth Amendment, (b) the Guaranty dated as of July 1, 2013 by Holdings in favor of iStar Bowling Centers I LP,
and (II) (a) the Lease II Agreement dated as of February 27, 2004 between iStar Bowling Centers II LP, as landlord, and AMF Bowling Centers,
Inc., as tenant, as amended by (i) that certain First Lease Amendment dated as of June 30, 2004, intending to be effective as of February
27, 2004, (ii) that certain Second Lease Amendment dated as of February 3, 2005, intending to be effective as of February 27, 2004, (iii)
that certain Third Lease Amendment dated as of June 18, 2008, intending to be effective as of March 30, 2008, (iv) that certain Fourth
Lease Amendment dated and intended to be effective as of July 1, 2013, (v) that certain Fifth Lease Amendment dated and intended to be
effective as of September 25, 2013, (vi) that certain Sixth Lease Amendment dated and intended to be effective as of October 3, 2014,
(vii) that certain Amended and Restated Seventh Lease Amendment dated and intended to be effective as of February 23, 2017, and (viii)
the iStar II Eighth Amendment, and (b) the Guaranty dated as of July 1, 2013 by Holdings in favor of iStar Bowling Centers II LP, in
each case as the same may be amended, modified or supplemented through the date hereof and from time to time hereafter in accordance
with the provisions thereof, and including all basic lease information and all other agreements, documents and instruments relating to
the iStar Sale/Leaseback and all exhibits and schedules to any of the foregoing.
“Joint
Venture” means the Thousand Oaks Company, a Texas corporation, and any other joint venture, in the form of a corporation, limited
liability company, business trust, joint venture, association, company or partnership, entered into by the Borrower or any of its Subsidiaries
which (i) is engaged in a line of business in accordance with Section 5.16 and (ii) is formed or organized in a manner that limits
the exposure of the Borrower and its Subsidiaries for the liabilities thereof to (A) the Investments of the Borrower and its Subsidiaries
therein permitted under Section 6.06 and (B) any Indebtedness of any Joint Venture or any Guarantee by the Borrower or any of its Subsidiaries
in respect of such Indebtedness, which Indebtedness or Guarantee are permitted at the time under Section 6.01.
“Junior
Indebtedness” means any Indebtedness for borrowed money (other than Indebtedness among Holdings, the Borrower and/or its subsidiaries)
of the Borrower or any of its Restricted Subsidiaries that is a Loan Party that is expressly subordinated in right of payment to the
Obligations.
“Junior
Lien Indebtedness” means any Indebtedness for borrowed money that is secured by a security interest on the Collateral (other
than Indebtedness among Holdings, the Borrower and/or its subsidiaries) that is expressly junior or subordinated to the Lien securing
the Credit Facilities with respect to the Collateral, including any “Term Loans” governed by the Second Lien Credit Agreement.
“Kingpin
Intermediate” means Kingpin Intermediate Holdings LLC, a Delaware limited liability company.
“Latest
Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment
hereunder at such time, including the latest maturity or expiration date of any Initial Term Loan, Additional Term Loan, Revolving Loan,
Additional Revolving Loan, Initial Revolving Credit Commitment or Additional Commitment.
“Latest
Revolving Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to
any revolving loan or revolving credit commitment hereunder at such time, including the latest maturity or expiration date of any Revolving
Loan, any Additional Revolving Loan, the Revolving Credit Commitment or any Additional Revolving Credit Commitment.
“Latest
Term Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any term
loan or term commitment hereunder at such time, including the latest maturity or expiration date of any Additional Term Loan or Additional
Term Loan Commitment hereunder at such time.
“LC
Collateral Account” has the meaning assigned to such term in Section 2.05(j).
“LC
Disbursement” means a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
“LC
Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time
and (b) the aggregate principal amount of all LC Disbursements that have not yet been reimbursed at such time. The LC Exposure of any
Revolving Lender at any time shall equal its Applicable Percentage of the aggregate LC Exposure at such time.
“Legal
Reservations” means the application of relevant Debtor Relief Laws, general principles of equity and/or principles of good
faith and fair dealing.
“Lenders”
means the Term Lenders, the Revolving Lenders, any Additional Lender, any lender with an Additional Commitment or an outstanding Additional
Loan and any other Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to
be a party hereto pursuant to an Assignment Agreement or as a result of the application of Section 9.05(g).
“Letter
of Credit” means any Standby Letter of Credit or Commercial Letter of Credit issued pursuant to this Agreement (and shall be
deemed to include all Existing Letters of Credit).
“Letter-of-Credit
Right” has the meaning set forth in Article 9 of the UCC.
“Letter
of Credit Sublimit” means $25,000,000, as increased from time to time in accordance with Section 2.22 hereof.
“LIBO
Rate” means, the Published LIBO Rate, as adjusted to reflect applicable reserves prescribed by governmental authorities; provided
that, (a) solely with respect to the InitialAmendment
No. 2 Term Loans, in no event shall the LIBO Rate be less than 1.00% per annum and (b) solely with respect to the Initial
Revolving Loans, in no event shall the LIBO Rate be less than 0.00% per annum.
“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capital Lease
having substantially the same economic effect as any of the foregoing), in each case, in the nature of security; provided that
in no event shall an operating lease in and of itself be deemed to constitute a Lien.
“Liquor
License Subsidiaries” means (i) as of the Closing Date, each of the Subsidiaries listed on Schedule 1.01(g) hereto and
(ii) thereafter, any other Restricted Subsidiary of the Borrower established solely for the purpose of satisfying applicable requirements
of local Law with respect to the ownership and use of liquor licenses and which has entered into or has a bona fide intent to enter into
(A) a lease pursuant to which such Restricted Subsidiary leases, as lessee, from Holdings or one or more of its Subsidiaries (other than
another Liquor License Subsidiary) snack bar and related space at one or more bowling centers and (B) a management services agreement
with a Loan Party, pursuant to which such Loan Party provides employees, management and related services to such Subsidiary.
“Limited
Condition Transaction” means any acquisition, Investment, Disposition, Restricted Payment or Restricted Debt Payment permitted
by this Agreement, in each case whose consummation is not conditioned on the availability of, or on obtaining, third-party financing.
“Limited
Recourse Financing” means, with respect to any Person, Indebtedness to the extent: (i) such Person, subject to customary exceptions
for nonrecourse Indebtedness financing, shall not have personal liability with respect to the Indebtedness and the lender thereunder
shall only seek recourse for satisfaction of the Indebtedness against the property or collateral secured thereunder; and (ii) no default
with respect thereto would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Loans or Loans
under any Second Lien Facility) of such Person to declare a default on such other Indebtedness or cause the payment thereof to be accelerated
or payable prior to its stated maturity.
“Loan
Documents” means this Agreement, any Promissory Note, each Loan Guaranty, the Collateral Documents, the Intercreditor Agreement,
any Acceptable Intercreditor Agreement and any other document or instrument designated by the Borrower and the Administrative Agent as
a “Loan Document”, including any Incremental Facility Amendment (including Amendment No. 1), Refinancing Amendment or Extension
Amendment or any other amendment hereto or thereto (including Amendment No.
2). Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits
or schedules thereto.
“Loan
Guaranty” means (a) the Guaranty Agreement, substantially in the form of Exhibit I hereto, executed by each Loan Party
party thereto and the Administrative Agent for the benefit of the Secured Parties and (b) each other guaranty agreement executed by any
Person pursuant to Section 5.12 in substantially the form attached as Exhibit I hereto or another form that is otherwise
reasonably satisfactory to the Administrative Agent and the Borrower.
“Loan
Installment Date” has the meaning assigned to such term in Section 2.10(a).
“Loan
Parties” means Holdings, the Borrower and each Subsidiary Guarantor.
“Loans”
means any Initial Term Loan, any Additional Term Loan (including the Amendment No.
2 Term Loans), any Revolving Loan, any Swingline Loan or any Additional Revolving Loan.
“Management
Investors” means the officers, directors, managers, employees and members of management of (i) the Borrower, (ii) any Parent
Company and/or (iii) any subsidiary of the Borrower (including, on the Closing Date, those of the Target and its subsidiaries) and the
Immediate Family Members of any of the foregoing.
“Margin
Stock” has the meaning assigned to such term in Regulation U.
“Market
Capitalization” means, at any date of determination pursuant to Section 1.04(e), the amount equal to (a) the total number
of then issued and outstanding shares of common Capital Stock of the Borrower or any Parent Company multiplied by (b) the arithmetic
mean of the closing prices per share of such common Capital Stock on the principal securities exchange on which such common Capital Stock
are traded for the 30 consecutive trading days immediately preceding such date.
“Market
Intercreditor Agreement” means an intercreditor or subordination agreement or arrangement the terms of which are either (a)(i)
consistent with market terms governing intercreditor arrangements for the sharing or subordination of liens or arrangements relating
to the distribution of payments, as applicable, at the time the applicable agreement or arrangement is proposed to be established in
light of the type of Indebtedness subject thereto or (ii) taken as a whole, not materially less favorable to the Lenders than the terms
of any Acceptable Intercreditor Agreement governing similar priorities that is then in effect, in each case as determined by the Borrower
in good faith or (b) in the event a “Market Intercreditor Agreement” has been entered into after the Closing Date meeting
the requirement of the preceding clause (a), the terms of which are, taken as a whole, not materially less favorable to the Lenders than
the terms of such Market Intercreditor Agreement to the extent such agreement governs similar priorities.
“Material
Adverse Effect” means (a) on the Closing Date, a Closing Date Material Adverse Effect and (b) after the Closing Date, a material
adverse effect on (i) the business, financial condition or results of operations, in each case, of the Borrower and its Restricted Subsidiaries,
taken as a whole or (ii) the material rights and remedies (taken as a whole) of the Administrative Agent under the applicable Loan Documents.
“Material
Debt Instrument” means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged
and delivered to the Administrative Agent (or its bailee) pursuant to the Security Agreement.
“Material
Real Estate Asset” means any “fee-owned” Real Estate Asset acquired by any Loan Party after the Closing Date (other
than as part of the iStar Exchange or EAP Substitution) having a fair market value (as determined by the Borrower in good faith after
taking into account any liabilities with respect thereto that impact such fair market value) in excess of $12,500,000 as of the date
of acquisition thereof (provided that the aggregate fair market value of all properties acquired after the Closing Date and so excluded
on account of such dollar threshold (each determined at the time of such initial exclusion) shall not exceed $50,000,000).
“Maturity
Date” means (a) with respect to the Initial Revolving Facility, the Initial Revolving Credit Maturity Date, (b) with respect
to the InitialAmendment No.
2 Term Loans, the Initial Term Loan Maturity Date, (c) with respect to any other
Replacement Term Loans or any Replacement Revolving
Facility, the final maturity date for such Replacement Term Loans or Replacement Revolving Facility, as the case may be, as set forth
in the applicable Refinancing Amendment, (d) with respect to any Incremental Facility, the final maturity date set forth in the applicable
Incremental Facility Amendment and (e) with respect to any Extended Revolving Credit Commitment or Extended Term Loans, the final maturity
date set forth in the applicable Extension Amendment.
“Maximum
Rate” has the meaning assigned to such term in Section 9.19.
“Merger
Sub 1” has the meaning assigned to such term in the Preamble to this Agreement.
“Merger
Sub 1 Merger” has the meaning assigned to such term in the Recitals to this Agreement.
“Merger
Sub 2” has the meaning assigned to such term in the Preamble to this Agreement.
“Merger
Sub 2 Merger” has the meaning assigned to such term in the Recitals to this Agreement.
“Mergers”
or “Merger” means the Merger Sub 1 Merger and/or the Merger Sub 2 Merger, as the context may require.
“MFN
Provision” has the meaning assigned to such term in Section 2.22(a)(v).
“Minimum
Equity Percentage” has the meaning assigned to such term in the Recitals to this Agreement.
“Minimum
Extension Condition” has the meaning assigned to such term in Section 2.23(b).
“Moody’s”
means Moody’s Investors Service, Inc.
“Mortgage”
means any mortgage, deed of trust, deed to secure debt or other agreement which conveys or evidences a Lien in favor of the Administrative
Agent, for the benefit of the Administrative Agent and the relevant Secured Parties, on any Material Real Estate Asset constituting Collateral.
“Mortgage
Policy” has the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement”.
“Multiemployer
Plan” means any employee benefit plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA, that
is subject to the provisions of Title IV of ERISA, and in respect of which the Borrower or any of its Restricted Subsidiaries, or any
of their respective ERISA Affiliates, makes or is obligated to make contributions or with respect to which any of them has any ongoing
obligation or liability, contingent or otherwise.
“Narrative
Report” means, with respect to the financial statements with respect to which it is delivered, a management discussion and
narrative report describing the operations of the Borrower and its Restricted Subsidiaries for the applicable Fiscal Quarter or Fiscal
Year and for the period from the beginning of the then-current Fiscal Year to the end of the period to which the relevant financial statements
relate.
“Net
Insurance/Condemnation Proceeds” means an amount equal to: (a) any Cash payments or proceeds (including Cash Equivalents) received
by the Borrower or any of its Restricted Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder
of any assets of the Borrower or any of its Restricted Subsidiaries or (ii) as a result of the taking of any assets of the Borrower or
any of its Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a
sale of any such assets to a purchaser with such power under threat of such a taking, minus (b) in respect of the Loan Parties or any
of their respective subsidiaries, Affiliates or direct or indirect equityholders (i) any actual out-of-pocket costs and expenses incurred
in connection with the adjustment, settlement or collection of any claims in respect thereof, (ii) payment of the outstanding principal
amount of, premium or penalty, if any, and interest and other amounts on any Indebtedness (other than the Loans, Indebtedness under any
Second Lien Facility and any Indebtedness secured by a Lien on the Collateral that is pari passu with or expressly subordinated
to the Lien on the Collateral securing the Secured Obligations) that is secured by a Lien on the assets in question and that is required
to be repaid or otherwise comes due or would be in default under the terms thereof as a result of such loss, taking or sale, (iii) in
the case of a taking, the reasonable out-of-pocket costs of putting any affected property in a safe and secure position, (iv) any selling
costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, accountants’ fees, investment
banking fees, survey costs, title insurance premiums, and related search and recording charges, deed or mortgage recording taxes, other
expenses and brokerage, consultant and other customary fees actually incurred in connection therewith and transfer and similar Taxes
and the Borrower’s good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or that
are or would be imposed on intercompany distributions with such proceeds)) in connection with any sale or taking of such assets as described
in clause (a) of this definition, (v) any amounts provided as a reserve in accordance with GAAP against any liabilities under
any indemnification obligation or purchase price adjustments associated with any sale or taking of such assets as referred to in clause
(a) of this definition (provided that to the extent and at the time any such amounts are released from such reserve, other
than to make a payment for which such amount was reserved, such amounts shall constitute Net Insurance/Condemnation Proceeds) and (vi)
in the case of any covered loss or taking from any non-Wholly-Owned Subsidiary, the pro rata portion thereof (calculated without regard
to this clause (vi)) attributable to minority interests and not available for distribution to or for the account of the Borrower
or a Wholly-Owned Subsidiary as a result thereof.
“Net
Proceeds” means (a) with respect to any Disposition (including any Prepayment Asset Sale), the Cash proceeds (including Cash
Equivalents and Cash proceeds subsequently received (as and when received) in respect of non-cash consideration initially received),
net of (with respect to any Loan Party or its subsidiaries, Affiliates or direct or indirect equity owners) (i) selling costs and out-of-pocket
expenses (including broker’s fees or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title
insurance premiums, and related search and recording charges, deed or mortgage recording taxes, other customary expenses and brokerage,
consultant and other customary fees actually incurred in connection therewith and transfer and similar Taxes and the Borrower’s
good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or that are or would be imposed on
intercompany distributions with such proceeds) in connection with such Disposition), (ii) amounts provided as a reserve in accordance
with GAAP against any liabilities under any indemnification obligation or purchase price adjustment associated with such Disposition
(provided that to the extent and at the time any such amounts are released from such reserve, other than to make a payment for
which such amount was reserved, such amounts shall constitute Net Proceeds), (iii) the principal amount, premium or penalty, if any,
interest and other amounts on any Indebtedness (other than the Loans, Indebtedness under any Second Lien Facility and any other Indebtedness
secured by a Lien on the Collateral that is pari passu with or expressly subordinated to the Lien on the Collateral securing the Secured
Obligations) which is secured by the asset sold in such Disposition and which is required to be repaid or otherwise comes due or would
be in default and is repaid (other than any such Indebtedness that is assumed by the purchaser of such asset), (iv) Cash escrows (until
released from escrow to the Borrower or any of its Restricted Subsidiaries) from the sale price for such Disposition and (v) in the case
of any Disposition by any non-Wholly-Owned Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to
this clause (v)) attributable to any minority interest and not available for distribution to or for the account of the Borrower
or a Wholly-Owned Subsidiary as a result thereof; and (b) with respect to any issuance or incurrence of Indebtedness or Capital Stock,
the Cash proceeds thereof, net of all Taxes and fees, commissions, costs, underwriting discounts and other fees and expenses incurred
in connection therewith.
“New
Holdings” means the Person that shall, immediately following the consummation of a Holdings Reorganization Transaction in accordance
with the provisions of the definition thereof, hold 100% of the Capital Stock of the Borrower.
“Non-Consenting
Lender” has the meaning assigned to such term in Section 2.19(b).
“Non-Debt
Fund Affiliate” means the Sponsor and any Affiliate of the Sponsor, other than any Debt Fund Affiliate.
“Notice
of Intent to Cure” has the meaning assigned to such term in Section 6.15(b).
“Obligations”
means all unpaid principal of and accrued and unpaid interest (including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, all LC Exposure,
all accrued and unpaid fees and all expenses, reimbursements, indemnities and all other advances to, debts, liabilities and obligations
of the Loan Parties to the Lenders or to any Lender, the Administrative Agent, any Issuing Bank or any indemnified party arising under
the Loan Documents in respect of any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute,
contingent, due or to become due, now existing or hereafter arising.
“Organizational
Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its
by-laws, (b) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with
respect to any general partnership, its partnership agreement, (d) with respect to any limited liability company, its articles of organization
or certificate of formation, and its operating agreement or limited liability company agreement and (e) with respect to any other form
of entity, such other organizational documents required by local Requirements of Law or customary under the jurisdiction in which such
entity is organized to document the formation and governance principles of such type of entity. In the event that any term or condition
of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily
certified by such governmental official.
“Other
Applicable Indebtedness” has the meaning assigned to such term in Section 2.11(b)(i).
“Other
Connection Taxes” means, with respect to any Lender or Administrative Agent, Taxes imposed as a result of a present or former
connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely from such recipient having
executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest
under, or engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or
Loan Document).
“Other
Taxes” means any and all present or future stamp, court or documentary taxes or any intangible, recording, filing or similar
taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than
an assignment made pursuant to Section 2.19). For the avoidance of doubt, Other Taxes do not include any Excluded Taxes.
“Outstanding
Amount” means (a) with respect to Term Loans, Revolving Loans and Swingline Loans on any date, the amount of the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Loans
and Swingline Loans, as the case may be, occurring on such date, (b) with respect to any Letters of Credit, the aggregate amount available
to be drawn under such Letters of Credit after giving effect to any changes in the aggregate amount available to be drawn under such
Letters of Credit or the issuance or expiry of any Letters of Credit, including as a result of any LC Disbursements and (c) with respect
to any LC Disbursements on any date, the amount of the aggregate outstanding amount of such LC Disbursements on such date after giving
effect to any disbursements with respect to any Letter of Credit occurring on such date and any other changes in the aggregate amount
of the LC Disbursements as of such date, including as a result of any reimbursements by the Borrower of unreimbursed LC Disbursements.
“Parent”
means A-B Parent LLC, a Delaware limited liability company.
“Parent
Company” means (a) Holdings and (b) any other Person or group of Persons that are Affiliates of the Sponsor (but in any event
not any portfolio company of the Sponsor), of which the Borrower is an indirect Subsidiary.
“Participant”
has the meaning assigned to such term in Section 9.05(c).
“Participant
Register” has the meaning assigned to such term in Section 9.05(c).
“Patent”
means the following: (a) any and all patents and patent applications; (b) all inventions described and claimed therein; (c) all reissues,
divisions, continuations, renewals, extensions and continuations in part thereof; (d) all income, royalties, damages, claims and payments
now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future
infringements thereof; (e) all rights to sue for past, present and future infringements thereof; and (f) all rights corresponding to
any of the foregoing.
“PBGC”
means the Pension Benefit Guaranty Corporation.
“Pension
Plan” means any employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that
is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, which the Borrower or any of its
Restricted Subsidiaries, or any of their respective ERISA Affiliates, maintains or contributes to or has an obligation to contribute
to, or otherwise has any liability for, contingent or otherwise.
“Perfection
Certificate” means a certificate substantially in the form of Exhibit E.
“Perfection
Requirements” means (a) the filing of appropriate financing statements with the office of the Secretary of State or other appropriate
office in the state of organization of each Loan Party, (b) the filing of Intellectual Property Security Agreements or other appropriate
assignments or notices with the U.S. Patent and Trademark Office and/or the U.S. Copyright Office, as applicable, (c) the proper recording
or filing, as applicable, of Mortgages and fixture filings with respect to any Material Real Estate Asset constituting Collateral, in
each case in favor of the Administrative Agent for the benefit of the Secured Parties, (d) the delivery to the Administrative Agent of
any stock certificate or promissory note to the extent required to be delivered by the applicable Loan Documents and (e) other filings,
recordings and registrations necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Administrative
Agent or to enforce the rights of the Administrative Agent and the Secured Parties under the Loan Documents.
“Permitted
Acquisition” means any acquisition by the Borrower or any of its Restricted Subsidiaries, whether by purchase, merger, amalgamation
or otherwise, of all or a substantial portion of the assets of, or any business line, unit or division or product line (including research
and development and related assets in respect of any product or facility) of, any Person or of a majority of the outstanding Capital
Stock of any Person (and, in any event, including any Investment in any Restricted Subsidiary which serves to increase the Borrower’s
or any Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary), in each case if (1) such Person is or
becomes a Restricted Subsidiary or (2) such Person, in one transaction or a series of related transactions, is amalgamated, merged or
consolidated with or into, or transfers or conveys all or a substantial portion of its assets (or such division, business line, unit
or product line or facility) to, or is liquidated into, the Borrower and/or any Restricted Subsidiary as a result of such transaction;
provided that (i) the target Person, assets, business or division in respect of such acquisition is a business permitted under
Section 5.16 and (ii) at the applicable time elected by the Borrower in accordance with Section 1.04(e), with respect to
such acquisition, no Event of Default under Section 7.01(a), (f) or (g) shall be continuing.
“Permitted
Earlier Maturity Indebtedness Exception” means, with respect to any Incremental Term Facility and any Incremental Equivalent
Debt permitted to be incurred hereunder, that up to $20,000,000 aggregate principal amount of such Indebtedness outstanding at any time
(the “Specified Debt”) may have a final maturity date that is earlier than, and a Weighted Average Life to Maturity
that is shorter than the remaining Weighted Average Life to maturity of, the Indebtedness with respect to which the Specified Debt is
otherwise required to have a later final maturity date or Weighted Average Life.
“Permitted
Equity” has the meaning assigned to such term in the Recitals to this Agreement.
“Permitted
Holders” means (a) the Investors, (b) the Shannon Holders and (c) any Person with which one or more Investors and/or the Shannon
Holders form a “group” (within the meaning of Section 14(d) of the Exchange Act as in effect on the date hereof) so long
as, in the case of this clause (c), the relevant Investors and /or the Shannon Holders collectively own more than 50% of the relevant
voting stock beneficially owned by the group.
“Permitted
Liens” means Liens permitted pursuant to Section 6.02.
“Permitted
Payee” means any future, current or former director, officer, member of management, manager, employee, independent contractor
or consultant (or any Immediate Family Member or transferee of any of the foregoing) of the Borrower (or any Parent Company or any subsidiary).
“Permitted
Reorganization” means any transaction or undertaking, including Investments, in connection with internal reorganizations and
or restructurings (including in connection with tax planning and corporate reorganizations), so long as, after giving effect thereto,
(a) the Loan Parties shall comply with the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest of the
Secured Parties in the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute
Collateral immediately prior to such Permitted Reorganization no longer constituting Collateral) as a result of such Permitted Reorganization.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or any other entity.
“Preferred
Capital Stock” means any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution or
winding up.
“Prepayment
Asset Sale” means any Disposition by the Borrower or its Restricted Subsidiaries made pursuant to Section 6.07(h).
“Primary
Obligor” has the meaning assigned to such term in the definition of “Guarantee”.
“Prime
Rate” means (a) the rate of interest publicly announced, from time to time, by the Administrative Agent at its principal office
in New York City as its “prime rate,” with the understanding that the “prime rate” is one of the Administrative
Agent’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are
calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal
publications as the Administrative Agent may designate or (b) if the Administrative Agent has no “prime rate,” the rate of
interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal
ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical
Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein,
any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve
Board (as reasonably determined by the Administrative Agent).
“Pro
Forma Basis” or “pro forma effect” means, with respect to any determination of the Total Leverage Ratio,
the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted EBITDA, Consolidated Net
Income or Consolidated Total Assets (including component definitions thereof) that each Subject Transaction shall be deemed to have occurred
as of the first day of the applicable Test Period (or, in the case of Consolidated Total Assets (or with respect to any determination
pertaining to the balance sheet, including the acquisition of Cash and Cash Equivalents in connection with an acquisition of a Person,
business line, unit, division or product line), as of the last day of such Test Period) with respect to any test or covenant for which
such calculation is being made and that:
(a)
(i) in the case of (A) any Disposition of all or substantially all of the Capital Stock of any Restricted Subsidiary or any division
and/or product line of the Borrower or any Restricted Subsidiary or (B) any designation of a Restricted Subsidiary as an Unrestricted
Subsidiary, income statement items (whether positive or negative) attributable to the property or Person subject to such Subject Transaction,
shall be excluded as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination
is being made and (ii) in the case of any Permitted Acquisition, Investment and/or designation of an Unrestricted Subsidiary as a Restricted
Subsidiary described in the definition of the term “Subject Transaction”, income statement items (whether positive or negative)
attributable to the property or Person subject to such Subject Transaction shall be included as of the first day of the applicable Test
Period with respect to any test or covenant for which the relevant determination is being made; provided that any pro forma adjustment
may be applied to any such test or covenant solely to the extent that such adjustment is consistent with, subject to the limitations
set forth in and without duplication with respect to the application of, the definition of “Consolidated Adjusted EBITDA”,
(b)
any Expected Cost Savings as a result of any Cost Savings Initiative shall be calculated on a pro forma basis as though such Expected
Costs Savings had been realized on the first day of the applicable Test Period and as if such Expected Cost Savings were realized in
full during the entirety of such period; provided that any pro forma adjustment may be applied to any such test or covenant solely to
the extent that such adjustment is consistent with, subject to the limitations set forth in and without duplication with respect to the
application of, the definition of “Consolidated Adjusted EBITDA”,
(c)
any retirement or repayment of Indebtedness (other than normal fluctuations in revolving Indebtedness incurred for working capital purposes)
shall be deemed to have occurred as of the first day of the applicable Test Period with respect to any test or covenant for which the
relevant determination is being made,
(d)
any Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in connection therewith shall be deemed to have occurred
as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being
made; provided that (x) if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest
for the applicable Test Period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect
to such Indebtedness at the relevant date of determination (taking into account any interest hedging arrangements applicable to such
Indebtedness), (y) interest on any obligation with respect to any Capital Lease shall be deemed to accrue at an interest rate determined
by a Responsible Officer of the Borrower in good faith to be the rate of interest implicit in such obligation in accordance with GAAP
and (z) interest on any Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar
rate, a Eurocurrency interbank offered rate or other rate shall be determined to have been based upon the rate actually chosen, or if
none, then based upon such optional rate chosen by the Borrower, and
(e)
the acquisition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total Assets, whether pursuant
to any Subject Transaction or any Person becoming a subsidiary or merging, amalgamating or consolidating with or into the Borrower or
any of its subsidiaries, or the Disposition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated
Total Assets described in the definition of “Subject Transaction” shall be deemed to have occurred as of the last day of
the applicable Test Period with respect to any test or covenant for which such calculation is being made.
In
the case of any calculation of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage
Ratio or Consolidated Total Assets for any event described above that occurs prior to the date on which financial statements have been
(or are required to be) delivered pursuant to Section 5.01(b) for the Fiscal Year ended on or about June 30, 2017, any such calculation
required to be made on a “Pro Forma Basis” shall use the consolidated financial statements of Holdings delivered to the Arrangers
for the Fiscal Quarter ended April 2, 2017. Notwithstanding anything to the contrary set forth in the immediately preceding paragraph,
for the avoidance of doubt, when calculating the First Lien Leverage Ratio for purposes of the definitions of “Applicable Rate”
and “Commitment Fee Rate” and for purposes of Section 6.15 (other than for the purpose of determining pro forma compliance
with Section 6.15 as a condition to taking any action under this Agreement), the events described in the immediately preceding
paragraph that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.
“Projections”
means the projections of the Borrower and its Subsidiaries included in the Information Memorandum (or a supplement thereto).
“Promissory
Note” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of
Exhibit G hereto, evidencing the aggregate outstanding principal amount of Loans of the Borrower to such Lender resulting from
the Loans made by such Lender.
“Public
Company Costs” means Charges associated with, or in anticipation of, or preparation for, compliance with the requirements of
the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and Charges relating to compliance with
the provisions of the Securities Act and the Exchange Act (and in each case, any similar Requirement of Law under any other applicable
jurisdiction), as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange
companies with listed equity or debt securities, directors’, compensation, fees and expense reimbursement, Charges relating to
investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance,
listing fees and all executive, legal and professional fees related to the foregoing.
“Published
LIBO Rate” means, with respect to any Interest Period when used in reference to any Loan or Borrowing, (a) the rate of interest
(rounded upwards, if necessary, to the nearest 1/100th) appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute
page of such service, or any successor to such service as determined by Administrative Agent) as the London interbank offered rate for
deposits in Dollars for a term comparable to such Interest Period, at approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to the commencement of such Interest Period (but if more than one rate is specified on such page, the rate will be
an arithmetic average of all such rates) and (b) if such rate is not available at such time for any reason, then the “Published
LIBO Rate” for such Interest Period shall be the interest rate per annum reasonably determined by the Administrative Agent in good
faith to be the rate per annum at which deposits in Dollars for delivery on the first day of such Interest Period in immediately available
funds in the approximate amount of the LIBO Rate Loan being made, continued or converted by the Administrative Agent and with a term
equivalent to such Interest Period would be offered to the Administrative Agent by major banks in the London or other offshore interbank
market for Dollars at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest
Period; provided that if such rate as determined above is at any time negative, the Published LIBO Rate at such time shall instead
be zero.
“Qualified
Capital Stock” of any Person means any Capital Stock of such Person that is not Disqualified Capital Stock.
“Qualified
Receivables Facility” means any Receivables Facility that meets the following conditions: (a) the Borrower shall have determined
in good faith that such Receivables Facility (including financing terms, covenants, termination events and other provisions) is in the
aggregate economically fair and reasonable to the Borrower and its Restricted Subsidiaries; (b) all sales of Receivables Facility Assets
and related assets by the Borrower or any Restricted Subsidiary to the Receivables Subsidiary or any other Person are made at fair market
value (as determined in good faith by the Borrower); (c) the financing terms, covenants, termination events and other provisions thereof
shall be on market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings; and (d)
the obligations under such Receivables Facility are non-recourse (except for customary representations, warranties, covenants and indemnities
made in connection with such facilities) to the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary).
“Qualifying
Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Qualifying
IPO” means any transaction or series of related transactions that results in any of the common Capital Stock of Holdings, any
Parent Company or the Borrower being publicly traded on any U.S. national securities exchange or any analogous exchange or any recognized
securities exchange in Canada, the United Kingdom or any country in the European Union.
“Qualifying
Lender” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Ratio
Interest Expense” means, with respect to any Person for any period, (a) consolidated total cash interest expense of such Person
and its Restricted Subsidiaries for such period, (i) including the interest component of any payment under any Capital Lease (regardless
of whether accounted for as interest expense under GAAP) and (ii) excluding (A) amortization, accretion or accrual of deferred financing
fees, original issue discount, debt issuance costs, discounted liabilities, commissions, fees and expenses, (B) any expense arising from
any bridge, commitment, structuring and/or other financing fee (including fees and expenses associated with the Transactions, the Amendment
No. 1 Transactions and agency and trustee fees), (C) any expense resulting from the discounting of Indebtedness in connection with the
application of recapitalization accounting or, if applicable, acquisition accounting, (D) fees and expenses associated with any Dispositions,
acquisitions, Investments, issuances of Capital Stock or Indebtedness (in each case, whether or not consummated), (E) costs associated
with obtaining, or breakage costs in respect of, any Hedge Agreement or any other derivative instrument other than any interest rate
Hedge Agreement or interest rate derivative instrument with respect to Indebtedness, (F) penalties and interest relating to Taxes, (G)
any “additional interest” or “liquidated damages” for failure to timely comply with registration rights obligations,
(H) interest expense with respect to Indebtedness of any Parent Company of such Person appearing on the balance sheet of such Person
solely by reason of push-down accounting under GAAP, (I) any payments with respect to make-whole, prepayment or repayment premiums or
other breakage costs of any Indebtedness, (J) any interest expense attributable to the exercise of appraisal rights or other rights of
dissenting shareholders and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto in
connection with the Transactions or any acquisition or Investment permitted hereunder and (K) for the avoidance of doubt, any non-cash
interest expense attributable to any movement in the mark to market valuation of any obligation under any Hedge Agreement or any other
derivative instrument and/or any payment obligation arising under any Hedge Agreement or derivative instrument other than any interest
rate Hedge Agreement or interest rate derivative instrument with respect to Indebtedness minus (b) cash interest income for such
period. For purposes of this definition, (x) interest in respect of any Capital Lease shall be deemed to accrue at an interest rate determined
by such Person in good faith to be the rate of interest implicit in such Capital Lease in accordance with GAAP and (y) for the avoidance
of doubt, unless already included in the calculation of interest expense, interest expense shall be calculated after giving effect to
any payments made or received under any Hedge Agreement or any other derivative instrument with respect to Indebtedness.
“Real
Estate Asset” means, at any time of determination, all right, title and interest of any Loan Party in and to any and all parcels
of or interests in real property owned, leased or subleased by a Loan Party (including, but not limited to, land, improvements and fixtures
thereon) of such Loan Party.
“Receivables
Facility” means any of one or more receivables financing facilities or securitization financing facilities as amended, supplemented,
modified, extended, renewed, restated or refunded from time to time, pursuant to which the Borrower or any of the Restricted Subsidiaries
sells or grants a security interest in its Receivables Facility Assets to either (a) a Person that is not a Restricted Subsidiary or
(b) a Restricted Subsidiary or Receivables Subsidiary that in turn funds such purchase by selling or granting a security interest in
its Receivables Facility Assets to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables
Subsidiary that in turn funds itself by borrowing from such a Person, in each case, that constitutes a Qualified Receivables Facility.
“Receivables
Facility Asset” means (a) any accounts receivable, revenue stream or other right of payment, real estate asset, mortgage receivable
or related asset and (b) contract rights, lockbox accounts and records with respect to such assets customarily transferred therewith,
in each case subject to a Receivables Facility.
“Receivables
Fees” means distributions or payments made directly or by means of discounts with respect to any Receivables Facility Asset
or participation interest therein issued or sold in connection with, and other fees and expenses paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Facility.
“Receivables
Subsidiary” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities,
and in each case engages only in activities reasonably related or incidental thereto or another Person formed for the purposes of engaging
in a Receivables Facility in which the Borrower or any subsidiary makes an Investment and to which the Borrower or any subsidiary transfers
Receivables Facility Assets.
“Refinancing”
has the meaning assigned to such term in Section 4.01(h).
“Refinancing
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent and the Borrower
executed by (a) Holdings and the Borrower, (b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion
of the Replacement Term Loans or the Replacement Revolving Facility, as applicable, being incurred pursuant thereto and in accordance
with Section 9.02(c).
“Refinancing
Indebtedness” has the meaning assigned to such term in Section 6.01(p).
“Refunding
Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).
“Register”
has the meaning assigned to such term in Section 9.05(b).
“Regulation
U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or
thereof.
“Regulation
X” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or
thereof.
“Related
Funds” means with respect to any Lender that is an Approved Fund, any other Approved Fund that is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
“Related
Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, managers,
officers, trustees, employees, partners, agents, advisors and other representatives of such Person and such Person’s Affiliates.
“Release”
means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment of any barrels, containers
or other closed receptacles containing any Hazardous Material).
“Replaced
Revolving Facility” has the meaning assigned to such term in Section 9.02(c).
“Replaced
Term Loans” has the meaning assigned to such term in Section 9.02(c).
“Replacement
Debt” means any Refinancing Indebtedness (whether borrowed in the form of secured or unsecured loans, issued in a public offering,
Rule 144A under the Securities Act or other private placement or bridge financing in lieu of the foregoing or otherwise) incurred in
respect of Indebtedness permitted under Section 6.01(a) (and any subsequent refinancing of such Replacement Debt).
“Replacement
Revolving Facility” has the meaning assigned to such term in Section 9.02(c).
“Replacement
Term Loans” has the meaning assigned to such term in Section 9.02(c).
“Reply
Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Reply
Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Representation
and Warranty Insurance Policy” means the representation and warranty insurance policy obtained by the Sponsor in connection
with the Mergers.
“Representative”
has the meaning assigned to such term in Section 9.13.
“Repricing
Transaction” means each of (a) the optional prepayment (or mandatory prepayment pursuant to Section 2.11(b)(iii)), repayment,
refinancing, substitution or replacement of all or a portion of the InitialAmendment
No. 2 Term Loans substantially concurrently with the incurrence by any Loan Party of any broadly syndicated term loans secured
on a pari passu basis with the InitialAmendment
No. 2 Term Loans (including any first-lien secured Replacement Term Loans) having an Effective Yield that is less than the
Effective Yield applicable to the InitialAmendment
No. 2 Term Loans so prepaid, repaid, refinanced, substituted or replaced and (b) any amendment, waiver or other modification
to this Agreement that would have the effect of reducing the Effective Yield applicable to the InitialAmendment
No. 2 Term Loans; provided that the primary purpose (as determined by the Borrower in good faith) of such prepayment,
repayment, refinancing, substitution, replacement, amendment, waiver or other modification was to reduce the Effective Yield applicable
to the InitialAmendment No.
2 Term Loans; provided, further, that in no event shall any such prepayment, repayment, refinancing, substitution,
replacement, amendment, waiver or other modification in connection with a Change of Control, Qualifying IPO or Transformative Acquisition
constitute a Repricing Transaction. Any determination by the Administrative Agent of the Effective Yield for purposes of the definition
shall be conclusive and binding on all Lenders, and the Administrative Agent shall have no liability to any Person with respect to such
determination absent bad faith, gross negligence or willful misconduct.
“Required
Excess Cash Flow Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than
4.00:1.00, 50%, (b) if the First Lien Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.50:1.00, 25% and (c) if
the First Lien Leverage Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that, for purposes of this
definition as it applies to the determination of the amount of Excess Cash Flow that is required to be applied to prepay Subject
Loans under Section 2.11(b)(i) for any Excess Cash Flow Period, the First Lien Leverage Ratio shall be determined on the
scheduled date of prepayment (after giving pro forma effect to such prepayment and to any other repayment or prepayment at or prior
to the time such Excess Cash Flow prepayment is due).
“Required
Lenders” means, at any time, Lenders having Loans or unused Revolving Credit Commitments or Additional Commitments representing
more than 50% of the sum of the total Loans and such unused commitments at such time.
“Required
Net Proceeds Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 4.00:1.00,
100%, (b) if the First Lien Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.50:1.00, 50% and (c) if the First Lien
Leverage Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies
to the determination of the amount of Net Proceeds or Net Insurance/Condemnation Proceeds that are required to be applied to prepay Subject
Loans under Section 2.11(b)(ii) for any payment, the First Lien Leverage Ratio shall be determined on the date on which such proceeds
are received by the applicable Borrower or Restricted Subsidiary (giving pro forma effect to the subject Dispositions and/or casualty
events and the application of the relevant proceeds thereof).
“Required
Revolving Lenders” means, at any time, Lenders having Initial Revolving Loans, Additional Revolving Loans, unused Initial Revolving
Credit Commitments or unused Additional Revolving Credit Commitments representing more than 50% of the sum of the total Initial Revolving
Loans, Additional Revolving Loans and such unused Revolving Credit Commitments at such time.
“Requirements
of Law” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational
or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs,
injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof
by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having
the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its
property is subject.
“Responsible
Officer” of any Person means the chief executive officer, the president, the chief financial officer, the treasurer, any assistant
treasurer, any executive vice president, any senior vice president, any vice president or the chief operating officer of such Person
and any other individual or similar official thereof responsible for the administration of the obligations of such Person in respect
of this Agreement, and, as to any document delivered on the Closing Date, shall include any secretary or assistant secretary or any other
individual or similar official thereof with substantially equivalent responsibilities of a Loan Party and, solely for purposes of notices
given pursuant to Article 2, any other officer of the applicable Loan Party so designated by any of the foregoing officers in
a written notice to the Administrative Agent (including, for the avoidance of doubt, by electronic means). Any document delivered hereunder
that is signed by a Responsible Officer of any Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party, and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
“Responsible
Officer Certification” means, with respect to the financial statements for which such certification is required, the certification
of a Responsible Officer of the Borrower that such financial statements fairly present, in all material respects, in accordance with
GAAP, the consolidated financial condition of the Borrower as at the dates indicated and its consolidated income and cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end adjustments and, in the case of quarterly financial statements,
the absence of footnotes.
“Restricted
Amount” has the meaning set forth in Section 2.11(b)(iv).
“Restricted
Debt” means any Junior Indebtedness and any Junior Lien Indebtedness, in each case to the extent the outstanding principal
amount thereof is equal to or greater than the Threshold Amount.
“Restricted
Debt Payment” has the meaning set forth in Section 6.04(b).
“Restricted
Payment” means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of the Borrower,
except a dividend payable solely in shares of Qualified Capital Stock (or in options, warrants or other rights to purchase such Qualified
Capital Stock) to the holders of such class, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition
for value of any shares of any class of the Capital Stock of the Borrower and (c) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares of any class of the Capital Stock of the Borrower now or hereafter
outstanding. The amount of any Restricted Payment (other than Cash) shall be the fair market value, as determined in good faith by the
Borrower on the applicable date set forth in Section 1.04(e), of the assets or securities proposed to be transferred or issued
by the Borrower pursuant to such Restricted Payment.
“Restricted
Subsidiary” means, as to any Person, any subsidiary of such Person that is not an Unrestricted Subsidiary. Unless otherwise
specified, “Restricted Subsidiary” shall mean any Restricted Subsidiary of the Borrower.
“Return
Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Revolving
Credit Commitment” means any Initial Revolving Credit Commitment and any Additional Revolving Credit Commitment.
“Revolving
Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of such Lender’s
Initial Revolving Credit Exposure and Additional Revolving Credit Exposure.
“Revolving
Facility” means the Initial Revolving Facility and, if applicable, any Incremental Revolving Facility, any facility governing
any Extended Revolving Credit Commitment or Extended Revolving Loans and any Replacement Revolving Facility.
“Revolving
Facility Test Condition” means, as of any date of determination, without duplication, that the aggregate Outstanding Amount
of (a) all Revolving Loans (including Swingline Loans) as of such date, (b) LC Disbursements as of such date that have not been reimbursed
within three Business Days and (c) Letters of Credit (excluding (i) any Letter of Credit to the extent cash collateralized or back-stopped
and (ii) other Letters of Credit (or any portion thereof) in an aggregate face amount up to $15,000,000 (with only such Letter of Credit
amounts in excess of $15,000,000 being applied for purposes hereof)) exceeds an amount equal to 35% of the Total Revolving Credit Commitment.
“Revolving
Lender” means any Initial Revolving Lender and any Additional Revolving Lender. Unless the context otherwise requires, the
term “Revolving Lenders” shall include the Swingline Lender.
“Revolving
Loans” means any Initial Revolving Loans and any Additional Revolving Loans.
“S&P”
means Standard & Poor’s Financial Services LLC, a subsidiary of the McGraw-Hill Companies, Inc.
“Sale
and Lease-Back Transaction” has the meaning assigned to such term in Section 6.08.
“Sanctioned
Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the
time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office
of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State, (b)
any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons
described in the foregoing clause (a).
“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the Office of Foreign
Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State.
“Scheduled
Consideration” has the meaning assigned to such term in Section 2.11(b)(i).
“SEC”
means the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of its functions.
“Second
Lien Claimholders” has the meaning set forth in the Intercreditor Agreement.
“Second
Lien Collateral Agent” has the meaning set forth in the Intercreditor Agreement.
“Second
Lien Credit Agreement” means the Second Lien Credit Agreement, dated as of the Closing Date, among, inter alios, Holdings,
the Borrower and Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent and the lenders from time to time
party thereto.
“Second
Lien Facility” means the credit facility governed by the Second Lien Credit Agreement and one or more debt facilities or other
financing arrangements (including indentures) providing for loans, notes or other long-term indebtedness that replace or refinance such
facility or other financing arrangement, including any such replacement or refinancing facility or indenture or other financing arrangement
that increases or decreases the amount permitted to be borrowed thereunder or alters the maturity thereof and whether by the same or
any other agent, lender or group of lenders, and any amendments, supplements, modifications, extensions, renewals, restatements, amendments
and restatements or refundings thereof or any such indentures or facilities or other financing arrangement that replace or refinance
such credit facility (or any subsequent replacement thereof), in each case to the extent permitted or not restricted by this Agreement.
“Secured
Hedging Obligations” means all Hedging Obligations (other than any Excluded Swap Obligations) under each Hedge Agreement that
(a) is in effect on the Closing Date between any Loan Party and a counterparty that is the Administrative Agent, a Lender, an Arranger
or any Affiliate of the Administrative Agent, a Lender or an Arranger as of the Closing Date or (b) is entered into after the Closing
Date between any Loan Party and any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger
at the time such Hedge Agreement is entered into, for which such Loan Party agrees to provide security and in each case that has been
designated to the Administrative Agent in writing by the Borrower as being a Secured Hedging Obligation for purposes of the Loan Documents,
it being understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable
Loan Documents and (B) to agree to be bound by the provisions of Article 8, Sections 9.03 and 9.10 and the Intercreditor
Agreement and each other Acceptable Intercreditor Agreement as if it were a Lender.
“Secured
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Secured Debt as of such date to (b) Consolidated
Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “Secured Leverage
Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries; provided that solely for
purposes of calculating the Secured Leverage Ratio in connection with the incurrence of Incremental Equivalent Debt, clause (a) of this
definition shall also include Consolidated Total Debt as of such date that is secured by a Lien on any non-Collateral assets of the Borrower
or any Restricted Subsidiary.
“Secured
Obligations” means all Obligations, together with (a) all Banking Services Obligations and (b) all Secured Hedging Obligations;
provided that Banking Services Obligations and Secured Hedging Obligations shall cease to constitute Secured Obligations on and
after the Termination Date.
“Secured
Parties” means (i) the Lenders, the Swingline Lender and each Issuing Bank, (ii) the Administrative Agent, (iii) each counterparty
to a Hedge Agreement with a Loan Party the obligations under which constitute Secured Obligations, (iv) each provider of Banking Services
to any Loan Party the obligations under which constitute Secured Obligations, (v) the Arrangers and (vi) the beneficiaries of each indemnification
obligation undertaken by any Loan Party under any Loan Document.
“Securities”
means any stock, shares, units, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase
or acquire, any of the foregoing; provided that the term “Securities” shall not include any earn-out agreement or
obligation or any employee bonus or other incentive compensation plan or agreement.
“Securities
Act” means the Securities Act of 1933 and the rules and regulations of the SEC promulgated thereunder.
“Securitization
Repurchase Obligation” means any obligation of a seller (or any guaranty of such obligation) of assets subject to a Qualified
Receivables Facility to repurchase such assets arising as a result of a breach of a representation, warranty or covenant or otherwise,
including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset
or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to such seller.
“Security
Agreement” means the First Lien Pledge and Security Agreement, substantially in the form of Exhibit J, among the Loan
Parties and the Administrative Agent for the benefit of the Secured Parties.
“Series
A Preferred Stock” means the shares of preferred stock of Holdings, designated as “Series A Preferred Stock”, having
the terms set forth in the certificate of incorporation of the Target, as amended and restated in connection with the Merger Sub I Merger.
“Shannon
Holders” means (i) Thomas Shannon, (ii) Cobalt Recreation LLC, (iii) any Immediate Family Member of Thomas Shannon, (iv) a
trust, family-partnership or estate-planning vehicle or other legal entity substantially all the economic interests of which are held
by or for the benefit of Thomas Shannon and/or any of his Immediate Family Members and (v) any other Affiliate of Thomas Shannon or any
other Shannon Holder, including The Cobalt Group LLC.
“Shared
Incremental Amount” means, as of any date of determination, (a) the greater of (i) $105,000,000 and (ii) 75% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (b) (i) the aggregate principal amount of all
Incremental Facilities and/or Incremental Equivalent Debt originally incurred or issued in reliance on the Shared Incremental Amount
outstanding on such date and (ii) the aggregate principal amount of “Incremental Loans” and “Incremental Equivalent
Debt” (each as defined in the Second Lien Credit Agreement or any equivalent term under any documentation governing any Second
Lien Facility) originally incurred or issued in reliance on the Shared Incremental Amount outstanding on such date, in each case after
giving effect to any reclassification of any such Indebtedness as having been incurred under clause (e) of the definition of “Incremental
Cap” hereunder or clause (e) of the definition of “Incremental Cap” (as defined in the Second Lien Credit Agreement
or any equivalent term under any documentation governing any Second Lien Facility).
“Similar
Business” means any Person the majority of the revenues of which are derived from a business that would be permitted by Section
5.16 if the references to “Restricted Subsidiaries” in Section 5.16 were read to refer to such Person.
“SLB
Property” means the real property interests (and Bowling Equipment and other tangible personal property located thereon) that
are subject to the iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“SPC”
has the meaning assigned to such term in Section 9.05(e).
“Specified
Acquisition Agreement Representations” means the representations and warranties made by or on behalf of the Target, its subsidiaries
or their respective businesses in the Acquisition Agreement which are material to the interests of the Lenders, but only to the extent
that Merger Sub (or its applicable affiliate) has the right to terminate its obligations under the Acquisition Agreement or to decline
to consummate the Acquisition as a result of a breach of such representations and warranties.
“Specified
Representations” means the representations and warranties set forth in Section 3.01(a)(i) (as it relates to Holdings
and the Borrower), Section 3.02 (as it relates to the due authorization, execution, delivery and performance of the Loan Documents
and the enforceability thereof), Section 3.03(b)(i) (limited to the execution, delivery and performance of the Loan Documents,
incurrence of the Indebtedness thereunder and the granting of Guarantees and Liens in respect thereof), Section 3.08, Section
3.12, Section 3.14 (as it relates to the creation, validity and perfection of the security interests in the Collateral, subject
to the last sentence of Section 4.01), Section 3.16 and Sections 3.17(a)(ii) and (c).
“Sponsor”
means Atairos Group, Inc. and the funds, partnerships, investment vehicles or other co-investment vehicles or other entities managed,
advised or controlled by Atairos Group, Inc. or its Affiliates (but in any event excluding any portfolio company of any of the foregoing).
“Standard
Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary of the Borrower which the Borrower has determined in good faith to be customary in a Receivables Facility, including, without
limitation, those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Securitization Repurchase
Obligation shall be deemed to be a Standard Securitization Undertaking.
“Standby
Letter of Credit” means any Letter of Credit other than any Commercial Letter of Credit.
“Stated
Amount” means, with respect to any Letter of Credit, at any time, the maximum amount available to be drawn thereunder, in each
case determined (x) as if any future automatic increases in the maximum available amount provided for in any such Letter of Credit had
in fact occurred at such time and (y) without regard to whether any conditions to drawing could then be met but after giving effect to
all previous drawings made thereunder.
“Subject
Loans” means, as of any date of determination, (a) Initial Term Loans and (b) any Additional Term Loans that are subject to
ratable prepayment requirements in accordance with Section 2.11(b) on such date of repayment.
“Subject
Person” has the meaning assigned to such term in the definition of “Consolidated Net Income”.
“Subject
Proceeds” has the meaning assigned to such term in Section 2.11(b)(ii).
“Subject
Transaction” means, with respect to any Test Period, (a) the Transactions, (b) any Permitted Acquisition or any other acquisition,
whether by purchase, merger, amalgamation or otherwise, of all or substantially all of the assets of, or any business line, unit or division
of, any Person or any facility, or of a majority of the outstanding Capital Stock of any Person (but in any event including any Investment
in any Restricted Subsidiary which serves to increase the Borrower’s or any Restricted Subsidiary’s respective equity ownership
in such Restricted Subsidiary), in each case that is permitted by this Agreement, (c) any Disposition of all or substantially all of
the assets or Capital Stock of a subsidiary (or any business unit, line of business or division of the Borrower or a Restricted Subsidiary)
not prohibited by this Agreement, (d) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary
as a Restricted Subsidiary in accordance with Section 5.10 hereof, (e) any incurrence or repayment of Indebtedness (other than
revolving Indebtedness), (f) any Cost Savings Initiative and/or (g) any other event that by the terms of the Loan Documents requires
pro forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a pro forma basis.
“Subsidiary”
or “subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of the total voting power of stock or other ownership interests entitled
(without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or
other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof
is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or
a combination thereof; provided that in determining the percentage of ownership interests of any Person controlled by another
Person, no ownership interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.
Unless otherwise specified, “subsidiary” shall mean any subsidiary of the Borrower.
“Subsidiary
Guarantor” means (x) on the Closing Date, each subsidiary of the Borrower (other than any subsidiary that is an Excluded Subsidiary
on the Closing Date) and (y) thereafter, each subsidiary of the Borrower that becomes a guarantor of the Secured Obligations pursuant
to the terms of this Agreement, in each case, until such time as the relevant subsidiary is released from its obligations under the Loan
Guaranty in accordance with the terms and provisions hereof. Notwithstanding the foregoing, the Borrower may from time to time, upon
notice to the Administrative Agent (or in the case of a Foreign Subsidiary, the prior written consent of the Administrative Agent (not
to be unreasonably withheld or delayed)), elect to cause any subsidiary that would otherwise be an Excluded Subsidiary to become a Subsidiary
Guarantor hereunder (but shall have no obligation to do so), subject to the satisfaction of guarantee and collateral requirements consistent
with the Collateral and Guarantee Requirements or otherwise reasonably acceptable to the Borrower and the Administrative Agent (which
shall include, in the case of a Foreign Subsidiary, guarantee and collateral requirements customary under local law, including customary
local limitations).
“Successor
Borrower” has the meaning assigned to such term in Section 6.07(a).
“Swap
Obligations” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction
that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline
Exposure” means, at any time, the aggregate principal amount of Swingline Loans outstanding at such time. The Swingline Exposure
of any Revolving Lender at any time shall be equal to its Applicable Percentage of the aggregate Swingline Exposure at such time.
“Swingline
Lender” means JPM, in its capacity as lender of Swingline Loans hereunder, or any successor lender of Swingline Loans hereunder.
“Swingline
Loan” means any Loan made pursuant to Section 2.04.
“Target”
means Bowlmor AMF Corp., a Delaware corporation.
“Tax
Group” has the meaning assigned to such term in Section 6.04(a)(xv).
“Taxes”
means any and all present and future taxes (including “business activities” taxes), levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any
interest, additions to tax or penalties applicable thereto.
“Termination
Date” has the meaning assigned to such term in the lead-in to Article 5.
“Term
Facility” means the Term Loans provided to or for the benefit of the Borrower pursuant to the terms of this Agreement.
“Term
Lender” means a Person with an Initial Term Loan Commitment or outstanding Initial Term Loan or an Additional Term Loan Commitment
(including the Amendment No. 2 Term Loan Commitments) or an outstanding
Additional Term Loan (including the Amendment No. 2 Term Loans).
“Term
Loan” means the Initial Term Loans and, if applicable, any Additional Term Loans (including
the Amendment No. 2 Term Loans).
“Test
Period” means, as of any date, (a) for purposes of determining actual compliance with Section 6.15(a), the period of
four consecutive Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as
applicable, have been delivered (or are required to have been delivered) and (b) for any other purpose, the period of four consecutive
Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable,
have been delivered (or are required to have been delivered) or, if earlier, are internally available; it being understood and agreed
that prior to the first delivery (or required delivery) of financial statements under Section 5.01(a), “Test Period”
means the period of four consecutive Fiscal Quarters most recently ended for which financial statements of Holdings and its consolidated
subsidiaries are available.
“Threshold
Amount” means $30,000,000.
“Total
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Total Debt outstanding as of such date
to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term
“Total Leverage Ratio” is used in this Agreement in each case for the Borrower and its Restricted Subsidiaries.
“Total
Revolving Credit Commitment” means, at any time, the aggregate amount of the Revolving Credit Commitments as in effect at such
time. The Total Revolving Credit Commitment as of the Closing Date is $50,000,000.
“Trademark”
means the following: (a) all trademarks (including service marks), common law marks, trade names, trade dress, and logos, slogans and
other indicia of origin under the laws of any jurisdiction in the world, and the registrations and applications for registration thereof
and the goodwill of the business symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims and payments for past and
future infringements thereof; (d) all rights to sue for past, present and future infringements of the foregoing, including the right
to settle suits involving claims and demands for royalties owing; and (e) all domestic rights corresponding to any of the foregoing.
“Transaction
Costs” means fees, premiums, expenses and other transaction costs (including original issue discount or upfront fees) payable
or otherwise borne by any Parent Company and/or its subsidiaries in connection with the Transactions, the Amendment No. 1 Transactions,
the Amendment No. 2 Transactions and, in each case, the transactions contemplated thereby.
“Transactions”
means, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party
and the Borrowing of Loans hereunder, (b) the Acquisition, (c) the Equity Contribution, (d) the Refinancing, (e) the execution, delivery
and performance of, including the incurrence of Indebtedness under, the Second Lien Credit Agreement and (f) the payment of the Transaction
Costs.
“Transformative
Acquisition” means any acquisition or Investment by the Borrower or any Restricted Subsidiary that is either (a) not permitted
by the terms of this Agreement immediately prior to the consummation of such acquisition or Investment or (b) if permitted by the terms
of this Agreement immediately prior to the consummation of such acquisition or Investment, would not provide the Borrower and its Subsidiaries
with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation,
as determined by the Borrower acting in good faith.
“Treasury
Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).
“Treasury
Regulations” means the U.S. federal income tax regulations promulgated under the Code.
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate or the Alternate Base Rate.
“UCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required
to be applied in connection with the creation or perfection of security interests.
“Unrestricted
Cash Amount” means, as to any Person on any date of determination, the amount of (a) unrestricted Cash and Cash Equivalents
of such Person and its Restricted Subsidiaries and (b) Cash and Cash Equivalents of such Person and its Restricted Subsidiaries that
are restricted in favor of the Credit Facilities, any Second Lien Facility and/or other permitted pari passu or junior secured
Indebtedness (which may also include Cash and Cash Equivalents securing other Indebtedness that is secured by a Lien on Collateral along
with the Credit Facilities, any Second Lien Facility and/or any other permitted pari passu or junior secured Indebtedness), in
each case as determined in accordance with GAAP.
“Unrestricted
Subsidiary” means any subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary on the Closing Date
and listed on Schedule 5.10 hereto or after the Closing Date pursuant to Section 5.10.
“Unused
Revolving Credit Commitment” of any Lender, at any time, means the remainder of the Revolving Credit Commitment of such Lender
at such time, if any, less the sum of (a) the aggregate Outstanding Amount of Revolving Loans made by such Lender, (b) such Lender’s
LC Exposure at such time and (c) except for purposes of Section 2.12(a), such Lender’s Applicable Percentage of the aggregate
Outstanding Amount of Swingline Loans.
“U.S.”
or “United States” means the United States of America.
“USA
PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“U.S.
Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f).
“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a)
the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other
required scheduled payments of principal, including payment at final maturity, in respect thereof by (ii) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal
amount of such Indebtedness; provided that the effect of any prepayment made in respect of such Indebtedness shall be disregarded
in making such calculation.
“Wholly-Owned
Subsidiary” of any Person means a subsidiary of such Person 100% of the Capital Stock of which (other than directors’
qualifying shares or shares required by Requirements of Law to be owned by a resident of the relevant jurisdiction) are owned by such
Person or by one or more Wholly-Owned Subsidiaries of such Person.
“Write-Down
and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion
powers are described in the EU Bail-In Legislation Schedule.
Section
1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a “Term Loan”) or by Type (e.g., a “LIBO Rate Loan”) or by Class and Type (e.g.,
a “LIBO Rate Term Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Term Loan Borrowing”)
or by Type (e.g., a “LIBO Rate Borrowing”) or by Class and Type (e.g., a “LIBO Rate Term Loan Borrowing”).
Section
1.03. Terms Generally. (a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” The words “ordinary
course of business” or “ordinary course” shall, with respect to any Person, be deemed to refer to items or actions
that are consistent with industry practice of such Person’s business industry or such Person’s past practice (it being understood
that the sale of accounts receivable (and related assets) pursuant to supply-chain, factoring or reverse factoring arrangements entered
into by the Borrower and its Restricted Subsidiaries shall be deemed to be in the ordinary course of business so long as such accounts
receivable (and related assets) are sold for Cash in an amount not less than 95% of the face amount thereof). Unless the context requires
otherwise (i) any definition of or reference to any agreement, instrument or other document herein or in any Loan Document (including
any Loan Document, the Second Lien Credit Agreement and any Loan Document referred to therein) shall be construed as referring to such
agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified
or extended, replaced or refinanced (subject to any restrictions or qualifications on such amendments, restatements, amendment and restatements,
supplements or modifications or extensions, replacements or refinancings set forth herein), (ii) any reference to any Requirement of
Law in any Loan Document shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing, superseding
or interpreting such Requirement of Law, (iii) any reference herein or in any Loan Document to any Person shall be construed to include
such Person’s successors and permitted assigns, (iv) the words “herein,” “hereof” and “hereunder,”
and words of similar import, when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not
to any particular provision hereof, (v) all references herein or in any Loan Document to Articles, Sections, clauses, paragraphs, Exhibits
and Schedules shall be construed to refer to Articles, Sections, clauses and paragraphs of, and Exhibits and Schedules to, such Loan
Document, (vi) in the computation of periods of time in any Loan Document from a specified date to a later specified date, the word “from”
means “from and including”, the words “to” and “until” mean “to but excluding” and the
word “through” means “to and including” and (vii) the words “asset” and “property”, when
used in any Loan Document, shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including Cash, securities, accounts and contract rights.
(b)
For purposes of determining compliance at any time with Sections 6.01, 6.02, 6.04, 6.06 and 6.07,
in the event that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment or Disposition, as applicable, or portion
thereof, at any time meets the criteria of more than one of the categories of transactions or items permitted pursuant to any clause
of such Sections 6.01 (other than Sections 6.01(a) (in the case of Indebtedness incurred on the Closing Date) and (x)),
6.02 (other than Sections 6.02(a) and (t) (with respect to Section 6.01(x)), 6.04, 6.06 and
6.07 (each of the foregoing, a “Reclassifiable Item”), the Borrower, in its sole discretion, may, from time
to time, divide, classify or reclassify such Reclassifiable Item (or portion thereof) under one or more clauses of each such Section
and will only be required to include such Reclassifiable Item (or portion thereof) in any one category; provided that, upon delivery
of any financial statements pursuant to Section 5.01(a) or (b) following the initial incurrence or making of any such Reclassifiable
Item, if such Reclassifiable Item could, based on such financial statements, have been incurred in reliance on Section 6.01(z)
(in the case of Indebtedness and Liens) or any “ratio-based” basket (in the case of all other Reclassifiable Items), such
Reclassifiable Item shall automatically be reclassified as having been incurred or made under the applicable provisions of Section 6.01(z)
or such “ratio-based” basket, as applicable (in each case, subject to any other applicable provision of Section 6.01(z)
or such “ratio-based” basket, as applicable). It is understood and agreed that any Indebtedness, Lien, Restricted Payment,
Restricted Debt Payment, Investment and/or Disposition need not be permitted solely by reference to one category of permitted Indebtedness,
Lien, Restricted Payment, Restricted Debt Payment, Investment and/or Disposition under Sections 6.01, 6.02, 6.04,
6.06 or 6.07, respectively, but may instead be permitted in part under any combination thereof or under any other available
exception.
Section
1.04. Accounting Terms; GAAP.
(a)
(i) All financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time
to time and, except as otherwise expressly provided herein, all terms of an accounting or financial nature that are used in calculating
the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted
EBITDA, Consolidated Net Income or Consolidated Total Assets shall be construed and interpreted in accordance with GAAP, as in effect
from time to time; provided that (A) if any change to GAAP or in the application thereof (including the conversion to IFRS as
described below) is implemented after the date of delivery of the financial statements described in Section 3.04(a) and/or there
is any change in the functional currency reflected in the financial statements or (B) if the Borrower elects or is required to report
under IFRS, the Borrower or the Required Lenders may request to amend the relevant affected provisions hereof (whether or not the request
for such amendment is delivered before or after the relevant change or election) to eliminate the effect of such change or election,
as the case may be, on the operation of such provisions and (x) the Borrower and the Administrative Agent shall negotiate in good faith
to enter into an amendment of the relevant affected provisions (it being understood that no amendment or similar fee shall be payable
to the Administrative Agent or any Lender in connection therewith) to preserve the original intent thereof in light of the applicable
change or election, as the case may be and (y) the relevant affected provisions shall be interpreted on the basis of GAAP and the currency,
in each case, as in effect and applied immediately prior to the applicable change or election, as the case may be, until the request
for amendment has been withdrawn by the Borrower or the Required Lenders, as applicable, or this Agreement has been amended as contemplated
hereby. Any consent required from the Administrative Agent or any Required Lender with respect to the foregoing shall not be unreasonably
withheld, conditioned or delayed.
(ii)
All terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to
herein shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10-25 (previously referred
to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification, International Accounting Standard
or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or
any subsidiary at “fair value,” as defined therein, (ii) any treatment of Indebtedness in respect of convertible debt instruments
under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification, International Accounting Standard or
Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as
described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof and (iii) the application
of Accounting Standards Codification 480, 815, 805 and 718 (to the extent these pronouncements under Accounting Standards Codification
718 result in recording an equity award as a liability on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries
in the circumstance where, but for the application of the pronouncements, such award would have been classified as equity). If the Borrower
notifies the Administrative Agent that the Borrower (or its applicable Parent Company) is required to report under IFRS or has elected
to do so through an early adoption policy, “GAAP” shall mean international financial reporting standards pursuant to IFRS
(provided thereafter, the Borrower cannot elect to report under GAAP).
(b)
Notwithstanding anything to the contrary herein, but subject to Sections 1.04(d), (e) and (g), all financial
ratios and tests (including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest
Coverage Ratio and the amount of Consolidated Total Assets, Consolidated Net Income and Consolidated Adjusted EBITDA) contained in
this Agreement that are calculated with respect to any Test Period during which any Subject Transaction occurs shall be calculated
with respect to such Test Period and such Subject Transaction on a Pro Forma Basis. Further, if since the beginning of any such Test
Period and on or prior to the date of any required calculation of any financial ratio or test (x) any Subject Transaction has
occurred or (y) any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into
the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period has consummated any Subject Transaction,
then, in each case, any applicable financial ratio or test shall be calculated on a Pro Forma Basis for such Test Period as if such
Subject Transaction had occurred at the beginning of the applicable Test Period (or, in the case of Consolidated Total Assets (or
with respect to any determination pertaining to the balance sheet, including the acquisition of Cash and Cash Equivalents), as of
the last day of such Test Period), it being understood, for the avoidance of doubt, that solely for purposes of (x) calculating
quarterly compliance with Section 6.15 and (y) calculating the First Lien Leverage Ratio for purposes of the definitions of
“Applicable Rate” and “Commitment Fee Rate”, in each case, the date of the required calculation shall be the
last day of the Test Period, and no Subject Transaction occurring thereafter shall be taken into account.
(c)
Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Attributable Debt”,
“Capital Lease” or “Capital Lease Obligation”, in the event of an accounting change or a change in the application
of GAAP requiring all or certain leases to be capitalized or otherwise accounted for as liabilities on the balance sheet of the applicable
Person, unless the Borrower elects otherwise, only those leases (assuming for purposes hereof that such leases were in existence on the
date hereof) that would constitute Capital Leases (including leases that are classified as “Financing Leases” for purposes
of GAAP) in conformity with GAAP on the date hereof shall be considered Capital Leases, and all calculations and deliverables under this
Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith. Notwithstanding anything contained
in any Loan Document to the contrary, the leases relating to the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 and any Excluded
Property Sale/Leaseback Transaction shall be deemed not to be and shall not otherwise be classified as a Capital Lease (and the obligations
in respect thereof shall not be considered Indebtedness) for purposes of this Agreement and any other Loan Document.
(d)
For purposes of determining the permissibility of any action, change, transaction or event that by the terms of the Loan Documents requires
a calculation of any financial ratio or financial test (including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured
Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated Total
Assets), subject to the succeeding clause (e), such financial ratio or test shall be calculated at the time such action is taken,
such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall
be deemed to have occurred solely as a result of a change in such financial ratio or financial test occurring after the time such action
is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e)
Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma Basis), if the terms
of this Agreement require (i) compliance with any financial ratio or financial test (including, without limitation, Section 6.15(a)
hereof, any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage
Ratio test) and/or any cap expressed as a percentage of Consolidated Total Assets or Consolidated Adjusted EBITDA, (ii) accuracy of any
representation or warranty and/or the absence of a Default or Event of Default (or any type of default or event of default) or (iii)
compliance with any basket, as a condition to (A) the consummation of any transaction (including in connection with any acquisition or
similar Investment or the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of
any Restricted Debt Payment, in each case in connection with a Limited Condition Transaction, the determination of whether the relevant
condition is satisfied may be made, at the election of the Borrower, (1) in the case of any acquisition or similar Investment or any
Disposition and any transaction related thereto, at the time of (or on the basis of the financial statements for the most recently ended
Test Period at the time of) either (x) the execution of the definitive agreement with respect to such acquisition, Investment or Disposition
or (y) the consummation of such acquisition, Investment or Disposition, (2) in the case of any Restricted Payment, at the time of (or
on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted
Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis
of the financial statements for the most recently ended Test Period at the time of) (x) delivery of notice with respect to such Restricted
Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after giving effect to the relevant acquisition, Restricted
Payment and/or Restricted Debt Payment or other transaction on a Pro Forma Basis (including, in each case, giving effect to the relevant
transaction, any relevant Indebtedness (including the intended use of proceeds thereof) and, at the election of the Borrower, giving
pro forma effect to other prospective Limited Condition Transactions that are acquisitions or similar Investments for which definitive
agreements have been executed, and no Default or Event of Default shall be deemed to have occurred solely as a result of an adverse change
in such financial ratio or test occurring after the time such election is made (but any subsequent improvement in the applicable financial
ratio or test may be utilized by the Borrower or any Restricted Subsidiary). For the avoidance of doubt, if the Borrower shall have elected
the option set forth in clause (x) of any of the preceding clauses (1), (2) or (3) in respect of any transaction, then the Borrower shall
be permitted to consummate such transaction even if any applicable test or condition shall cease to be satisfied subsequent to the Borrower’s
election of such option. The provisions of this paragraph (e) shall also apply in respect of the incurrence of any Incremental Facility.
(f)
[Reserved].
(g)
Notwithstanding anything to the contrary herein, unless the Borrower otherwise notifies the Administrative Agent, with respect to
any amounts incurred under the Revolving Facility, any Additional Revolving Facility or any other permitted revolving facility or
any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement (including Section
6.01(x) (as it relates to the incurrence of any “fixed” or similar amount incurred under any Second Lien Facility))
that does not require compliance with a financial ratio or financial test (including any First Lien Leverage Ratio test, any Secured
Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed
Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance
on a provision of this Agreement (including Section 6.01(x) (as it relates to the incurrence of any “incurrence
based” or similar amount incurred under any Second Lien Facility)) that requires compliance with a financial ratio or
financial test (including any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or
any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed
that (A) the incurrence of the Incurrence-Based Amount shall be calculated first without giving effect to any Fixed Amount but
giving full pro forma effect to the use of proceeds of such Fixed Amount and the related transactions and (B) the incurrence of the
Fixed Amount shall be calculated thereafter. Unless the Borrower elects otherwise, the Borrower shall be deemed to have used amounts
under an Incurrence-Based Amount then available to the Borrower prior to utilization of any amount under a Fixed Amount then
available to the Borrower. For the avoidance of doubt, all Indebtedness substantially concurrently incurred will be included for
purposes of calculating compliance with Sections 6.04(a)(xiii), 6.04(b)(vii) and 6.06(dd) (in each case, giving
pro forma effect to the intended use of proceeds thereof).
(h)
The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall
be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(i)
The increase in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of
interest or a dividend in the form of additional Indebtedness, amortization of original issue discount and/or any increase in the amount
of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency will not be deemed
to be the granting of a Lien for purposes of Section 6.02.
(j)
For purposes of determining compliance with Section 6.01 or Section 6.02, if any Indebtedness or Lien is incurred in reliance
on a basket measured by reference to a percentage of Consolidated Adjusted EBITDA, and any refinancing or replacement thereof would cause
the percentage of Consolidated Adjusted EBITDA to be exceeded if calculated based on the Consolidated Adjusted EBITDA on the date of
such refinancing or replacement, such percentage of Consolidated Adjusted EBITDA will be deemed not to be exceeded so long as the principal
amount of such refinancing or replacement Indebtedness or other obligation does not exceed an amount sufficient to repay the principal
amount of such Indebtedness or other obligation being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest,
penalties and premiums (including tender, prepayment or repayment premiums) thereon plus underwriting discounts and other customary fees,
commissions and expenses (including upfront fees, original issue discount or initial yield payment) incurred in connection with such
refinancing or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under
Section 6.01.
(k)
Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a
specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).
Section
1.05. Effectuation of Transactions. Each of the representations and warranties contained in this Agreement (and all corresponding
definitions) is made after giving effect to the Transactions, unless the context otherwise requires.
Section
1.06. Timing of Payment and Performance. When payment of any obligation or the performance of any covenant, duty or obligation
is stated to be due or required on a day which is not a Business Day, the date of such payment (other than as described in the definition
of “Interest Period”) or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such extension.
Section
1.07. Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time
(daylight or standard, as applicable).
Section
1.08. Currency Equivalents Generally.
(a)
Notwithstanding anything to the contrary in clause (b) below, for purposes of any determination under Article 5, Article
6 (other than Section 6.15 and the calculation of compliance with any financial ratio for purposes of taking any action
hereunder) or Article 7 with respect to the amount of any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment,
Investment, Disposition, Sale and Lease-Back Transaction, affiliate transaction or other transaction, event or circumstance, or any
determination under any other provision of this Agreement (any of the foregoing, a “relevant transaction”), in a
currency other than Dollars, (i) the Dollar equivalent amount of a relevant transaction in a currency other than Dollars shall be
calculated based on the rate of exchange quoted by the Bloomberg Foreign Exchange Rates & World Currencies Page (or any
successor page thereto, or in the event such rate does not appear on any Bloomberg Page, by reference to such other publicly
available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower) for such foreign
currency, as in effect at 11:00 a.m. (London time) on the date of such relevant transaction (which, in the case of any Restricted
Payment, Restricted Debt Payment, Investment, Disposition or incurrence of Indebtedness, shall be determined as set forth in Section
1.04(e)); provided, that if any Indebtedness is incurred (and, if applicable, associated Lien granted) to refinance or
replace other Indebtedness denominated in a currency other than Dollars, and the relevant refinancing or replacement would cause the
applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date
of such refinancing or replacement, such Dollar- denominated restriction shall be deemed not to have been exceeded so long as the
principal amount of such refinancing or replacement Indebtedness (and, if applicable, associated Lien granted) does not exceed an
amount sufficient to repay the principal amount of such Indebtedness being refinanced or replaced, except by an amount equal to (x)
unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts and other
customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payment) incurred in
connection with such refinancing or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts
permitted to be incurred under Section 6.01 and (ii) for the avoidance of doubt, no Default or Event of Default shall be
deemed to have occurred solely as a result of a change in the rate of currency exchange occurring after the time of any relevant
transaction so long as such relevant transaction was permitted at the time incurred, made, acquired, committed, entered or declared
as set forth in clause (i). For purposes of Section 6.15 and the calculation of compliance with any financial ratio
for purposes of taking any action hereunder (including for purposes of calculating compliance with the Incremental Cap) on any
relevant date of determination, amounts denominated in currencies other than Dollars shall be translated into Dollars at the
applicable currency exchange rate used in preparing the financial statements delivered pursuant to Sections 5.01(a) or (b)
(or, prior to the first such delivery, the financial statements referred to in Section 3.04), as applicable, for the relevant
Test Period. Notwithstanding the foregoing or anything to the contrary herein, to the extent that the Borrower would not be in
compliance with Section 6.15(a) if any Indebtedness denominated in a currency other than Dollars were to be translated into
Dollars on the basis of the applicable currency exchange rate used in preparing the financial statements delivered pursuant to Section
5.01(a) or (b), as applicable, for the relevant Test Period, but would be in compliance with Section 6.15(a) if
such Indebtedness that is denominated in a currency other than in Dollars were instead translated into Dollars on the basis of the
average relevant currency exchange rates over such Test Period (taking into account the currency translation effects, determined in
accordance with GAAP, of any Hedge Agreement permitted hereunder in respect of currency exchange risks with respect to the
applicable currency in effect on the date of determination for the Dollar equivalent amount of such Indebtedness), then, solely for
purposes of compliance with Section 6.15(a), the First Lien Leverage Ratio as of the last day of such Test Period shall be
calculated on the basis of such average relevant currency exchange rates.
(b)
Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time
to time specify with the Borrower’s consent to appropriately reflect a change in currency of any country and any relevant market
convention or practice relating to such change in currency.
Section
1.09. Cashless Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document,
to the extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental
Loans, Replacement Term Loans, Loans in connection with any Replacement Revolving Facility, Extended Term Loans, Extended Revolving Loans
or loans incurred under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected
by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply
with any requirement hereunder or any other Loan Document that such payment be made “in Dollars”, “in immediately available
funds”, “in Cash” or any other similar requirement.
Section
1.10. Alternative Currencies.
(a)
The Borrower may from time to time request that LIBO Rate Revolving Loans be made and/or Letters of Credit be issued in a currency other
than Dollars; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely
transferable and convertible into Dollars. In the case of any such request with respect to the making of LIBO Rate Revolving Loans, such
request shall be subject to the approval of the Revolving Lenders of the applicable Class that will provide such Loans, and in the case
of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the applicable
Issuing Banks, in each case as set forth in Section 9.02(b)(ii)(E).
(b)
Any such request shall be made to the Administrative Agent not later than 11:00 a.m., ten Business Days prior to the requested date of
the making of such Revolving Loan or issuance of such Letter of Credit (or such other time or date as may be agreed by the Administrative
Agent and, in the case of any such request pertaining to Letters of Credit, the applicable Issuing Banks, in its or their sole discretion).
In the case of any such request pertaining to LIBO Rate Revolving Loans, the Administrative Agent shall promptly notify each Revolving
Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the
applicable Issuings Bank thereof. Each applicable Revolving Lender (in the case of any such request pertaining to LIBO Rate Revolving
Loans) or each applicable Issuing Bank (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent,
not later than 11:00 a.m., five Business Days after receipt of such request whether it consents, in its sole discretion, to the making
of LIBO Rate Revolving Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(c)
Any failure by a Revolving Lender or Issuing Bank, as the case may be, to respond to such request within the time period specified in
the preceding paragraph shall be deemed to be a refusal by such Revolving Lender or Issuing Bank, as the case may be, to permit LIBO
Rate Revolving Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the
applicable Revolving Lenders consent to making LIBO Rate Revolving Loans or issuance of Letters of Credit in such requested currency,
the Administrative Agent shall so notify the Borrower and the Borrower and the Revolving Lenders shall amend this Agreement and the other
Loan Documents as necessary to accommodate such Borrowings and/or Letters of Credit (as applicable), in accordance with Section 9.02(b)(ii)(E).
If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.10, the
Administrative Agent shall promptly so notify the Borrower.
ARTICLE
2 THE CREDITS
Section
2.01. Commitments.
(a)
Subject to the terms and conditions set forth herein, (i) (x) each Initial Term Lender severally, and not jointly, agrees to make
Initial Term Loans to the Borrower on the Closing Date in Dollars in a principal amount not to exceed its Initial Term Loan
Commitment as of the Closing Date and (y) each Amendment No. 1 Incremental Term Lender severally, and not jointly, agrees to make
Amendment No. 1 Incremental Term Loans to the Borrower on the Amendment No. 1 Effective Date in a principal amount not to exceed its
Initial Term Loan Commitment as of the Amendment No. 1 Effective Date and (ii) each Revolving Lender severally, and not jointly,
agrees to make Revolving Loans to the Borrower in Dollars at any time and from time to time on and after the Closing Date, and until
the earlier of the Initial Revolving Credit Maturity Date and the termination of the Initial Revolving Credit Commitment of such
Revolving Lender in accordance with the terms hereof; provided that, after giving effect to any Borrowing of Initial
Revolving Loans, the Outstanding Amount of such Revolving Lender’s Initial Revolving Credit Exposure shall not exceed such
Revolving Lender’s Initial Revolving Credit Commitment. Subject to
the terms and conditions set forth in Amendment No. 2 (x) each Converting Lender (as defined in Amendment No. 2) severally, and not
jointly, agrees to exchange its Existing Term Loans (as defined in Amendment No. 2) for a like principal amount of Amendment No. 2
Term Loans on the Amendment No. 2 Effective Date (or such lesser amount allocated to such Lender by the Administrative Agent) and
(y) each Amendment No. 2 Term Lender severally, and not jointly, agrees to make Amendment No. 2 Term Loans to the Borrower on the
Amendment No. 2 Effective Date in a principal amount not to exceed its Amendment No. 2 Term Loan Commitment as of the Amendment No.
2 Effective Date. Within the foregoing limits and subject to the terms, conditions and limitations set forth herein, the
Borrower may borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in respect of the Initial Term Loans or
Amendment No. 2 Term Loans may not be reborrowed.
(b)
Subject to the terms and conditions of this Agreement and any applicable Refinancing Amendment, Extension Amendment or Incremental Facility
Amendment, each Lender with an Additional Commitment of a given Class, severally and not jointly, agrees to make Additional Loans of
such Class to the Borrower, which Loans shall not exceed for any such Lender at the time of any incurrence thereof the Additional Commitment
of such Class of such Lender as set forth in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment.
Section
2.02. Loans and Borrowings.
(a)
Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the applicable Class. Each Swingline Loan shall be made in accordance
with the procedures set forth in Section 2.04.
(b)
Subject to Section 2.01 and Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or LIBO Rate Loans as
the Borrower may request in accordance herewith; provided that each Swingline Loan shall be an ABR Loan. Each Lender at its option
may make any LIBO Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided
that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms
of this Agreement, (ii) such LIBO Rate Loan shall be deemed to have been made and held by such Lender, and the obligation of the Borrower
to repay such LIBO Rate Loan shall nevertheless be to such Lender for the account of such domestic or foreign branch or Affiliate of
such Lender and (iii) in exercising such option, such Lender shall use reasonable efforts to minimize increased costs to the Borrower
resulting therefrom (which obligation of such Lender shall not require it to take, or refrain from taking, actions that it determines
would result in increased costs for which it will not be compensated hereunder or that it otherwise determines would be disadvantageous
to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section
2.15 shall apply); provided, further, that any such domestic or foreign branch or Affiliate of such Lender shall not
be entitled to any greater indemnification under Section 2.17 with respect to such LIBO Rate Loan than that to which the applicable
Lender was entitled on the date on which such Loan was made (except in connection with any indemnification entitlement arising as a result
of a Change in Law after the date on which such Loan was made).
(c)
At the commencement of each Interest Period for any LIBO Rate Borrowing, such Borrowing shall comprise an aggregate principal amount
that is an integral multiple of $100,000 and not less than $500,000. Each ABR Borrowing when made shall be in a minimum principal amount
of $100,000; provided that an ABR Revolving Loan Borrowing may be made in a lesser aggregate amount that is (x) equal to the entire
aggregate Unused Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at
any time be more than a total of 10 different Interest Periods in effect for LIBO Rate Borrowings at any time outstanding (or such greater
number of different Interest Periods as the Administrative Agent may agree from time to time).
(d)
Notwithstanding any other provision of this Agreement, the Borrower shall not, nor shall it be entitled to, request, or to elect to convert
or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date applicable to such
Loans.
Section
2.03. Requests for Borrowings. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of LIBO
Rate Loans shall be made upon irrevocable notice by the Borrower to the Administrative Agent (provided that notices in respect
of any Borrowings (x) to be made on the Closing Date may be conditioned on the closing of the Acquisition and (y) to be made in connection
with any acquisition, Investment or irrevocable repayment, redemption or refinancing of Indebtedness may be conditioned on the closing
of such acquisition, Investment or irrevocable repayment, redemption or refinancing of such Indebtedness). Each such notice must be in
writing or by telephone (and promptly confirmed in writing) and must be received by the Administrative Agent (by hand delivery, fax or
other electronic transmission (including “.pdf” or “.tif”)) not later than 12:00 p.m. (i) three Business Days
prior to the requested day of any Borrowing of, conversion to or continuation of LIBO Rate Loans (or 12:00 p.m. one Business Day in the
case of any Borrowing of LIBO Rate Loans to be made on the Closing Date) and (ii) on the requested date of any Borrowing of or conversion
to ABR Loans (other than Swingline Loans) (or, in each case, such later time as shall be acceptable to the Administrative Agent); provided,
however, that if the Borrower wishes to request LIBO Rate Loans having an Interest Period of other than one, two, three or six
months in duration as provided in the definition of “Interest Period,” (A) the applicable notice from the Borrower must be
received by the Administrative Agent not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion
or continuation (or such later time as is acceptable to the Administrative Agent), whereupon the Administrative Agent shall give prompt
notice to the appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to them and (B) not
later than 10:00 a.m. three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative
Agent shall notify the Borrower whether or not the requested Interest Period has been consented to by all the appropriate Lenders. Each
written notice (or confirmation of telephonic notice) with respect to a Borrowing by the Borrower pursuant to this Section 2.03
shall be delivered to the Administrative Agent in the form of a written Borrowing Request, appropriately completed and signed by a Responsible
Officer of the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with
Section 2.02:
(a)
the Class of such Borrowing;
(b)
the aggregate amount of the requested Borrowing;
(c)
the date of such Borrowing, which shall be a Business Day;
(d)
whether such Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing;
(e)
in the case of a LIBO Rate Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the
definition of the term “Interest Period”; and
(f)
the location and number of the Borrower’s account or any other designated account(s) to which funds are to be disbursed (the “Funding
Account”).
If
no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested LIBO Rate Borrowing, then the Borrower shall be deemed to have selected an Interest Period of
one month’s duration. The Administrative Agent shall advise each Lender of the details thereof and of the amount of the Loan to
be made as part of the requested Borrowing (x) in the case of any ABR Borrowing, on the same Business Day of receipt of a Borrowing Request
in accordance with this Section or (y) in the case of any LIBO Rate Borrowing, no later than one Business Day following receipt of a
Borrowing Request in accordance with this Section.
Section
2.04. Swingline Loans.
(a)
Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to
time during the Availability Period, in an aggregate principal amount at any time outstanding not to exceed $10,000,000; provided
that (x) the Swingline Lender shall not be required to make any Swingline Loan to refinance an outstanding Swingline Loan and (y)
after giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall
not exceed the Total Revolving Credit Commitment. Each Swingline Loan shall be in a minimum principal amount of not less than $100,000
or such lesser amount as may be agreed by the Swingline Lender; provided that, notwithstanding the foregoing, a Swingline Loan
may be in an aggregate amount that is (x) equal to the entire unused balance of the aggregate Unused Revolving Credit Commitments or
(y) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Within the foregoing limits
and subject to the terms and conditions set forth herein, Swingline Loans may be borrowed, prepaid and reborrowed. To request a Swingline
Loan, the Borrower shall notify the Swingline Lender (with a copy to the Administrative Agent) of such request by telephone (confirmed
by facsimile), not later than 2:00 p.m. on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify
the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Swingline Lender shall make each Swingline
Loan available to the Borrower on the same Business Day by means of a credit to the Funding Account or otherwise in accordance with the
instructions of the Borrower (including, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided
in Section 2.05(e), by remittance to the applicable Issuing Bank).
(b)
The Swingline Lender may by written notice given to the Administrative Agent not later than 12:00 p.m. on any Business Day require the
Revolving Lenders to acquire participations on the second Business Day following receipt of such notice in all or a portion of the Swingline
Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly
upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such
Revolving Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of
the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.07 with respect to Revolving Loans made by such Revolving Lender (and Section 2.07 shall
apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this Section 2.04(b)), and the
Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative
Agent shall notify the Borrower of any participation in any Swingline Loan acquired pursuant to this Section 2.04(b), and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received
by the Swingline Lender from the Borrower (or other Person on behalf of the Borrower) in respect of any Swingline Loan after receipt
by the Swingline Lender of the proceeds of any sale of participations therein shall be promptly remitted by the Swingline Lender to the
Administrative Agent and any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent
to the Revolving Lenders that have made their payments pursuant to this Section 2.04(b) and to the Swingline Lender, as their
interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative
Agent, as the case may be, and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower
for any reason. The purchase of participations in any Swingline Loan pursuant to this Section 2.04(b) shall not relieve the Borrower
of any default in the payment thereof.
(c)
If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required
to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04 by the time specified in Section
2.04(b), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent),
on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment
is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate from time
to time in effect and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
A certificate of the Swingline Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (c) shall be conclusive absent manifest error.
Section
2.05. Letters of Credit.
(a)
General.
(i)
Subject to the terms and conditions set forth herein, (ii) each Issuing Bank agrees, in each case in reliance upon the agreements of
the other Revolving Lenders set forth in this Section 2.05, (A) from time to time on any Business Day during the period from the
Closing Date to the fifth Business Day prior to the Initial Revolving Credit Maturity Date, upon the request of the Borrower, to issue
Letters of Credit issued on sight basis only for the account of the Borrower (or any Restricted Subsidiary; provided that the
Borrower will be the applicant) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.05(b),
and (B) to honor drafts under the Letters of Credit, and (iii) the Revolving Lenders severally agree to participate in the Letters
of Credit issued pursuant to Section 2.05(d). Notwithstanding anything to the contrary contained in this Agreement, no Issuing
Bank shall be required to issue Commercial Letters of Credit without its consent.
(ii)
No Issuing Bank shall have an obligation to issue any Letter of Credit if (x) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, (y) customary “know
your customer” requirements of such Issuing Bank with respect to the beneficiary of such Letter of Credit would be violated or
(z) any law applicable to such Issuing Bank or any directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over such Issuing Bank shall prohibit, or direct that such Issuing Bank refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular.
(b)
Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit, the Borrower
shall deliver to the applicable Issuing Bank and the Administrative Agent, at least three Business Days in advance of the requested date
of issuance (or such shorter period as is acceptable to the applicable Issuing Bank or, in the case of any issuance to be made on the
Closing Date, one Business Day prior to the Closing Date), a request to issue a Letter of Credit, which shall specify that it is being
issued under this Agreement, in the form of Exhibit K attached hereto. To request an amendment, extension or renewal of a Letter
of Credit (other than any automatic extension of a Letter of Credit permitted under Section 2.05(c)), the Borrower shall submit such
a request to the applicable Issuing Bank selected by the Borrower (with a copy to the Administrative Agent) at least three Business Days
in advance of the requested date of amendment, extension or renewal (or such shorter period as is acceptable to the applicable Issuing
Bank), identifying the Letter of Credit to be amended, extended or renewed, and specifying the proposed date (which shall be a Business
Day) and other details of the amendment, extension or renewal. Requests for the issuance, amendment, extension or renewal of any Letter
of Credit must be accompanied by such other information as shall be necessary to issue, amend, extend or renew such Letter of Credit.
If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s
standard form in connection with any request for a Letter of Credit. In the event of any inconsistency between the terms and conditions
of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower
to, or entered into by the Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control. No Letter of Credit, letter of credit application or other document entered into by the Borrower with the applicable
Issuing Bank relating to any Letter of Credit shall contain any representations or warranties, covenants or events of default not set
forth in this Agreement (and to the extent inconsistent herewith shall be rendered null and void or reformed automatically without further
action by any Person to conform to the terms of this Agreement), and all representations and warranties, covenants and events of default
set forth therein shall contain standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with those
set forth in this Agreement (and, to the extent inconsistent herewith, shall be deemed to automatically incorporate the applicable standards,
qualifications, thresholds and exceptions set forth herein without action by any Person). A Letter of Credit may be issued, amended,
extended or renewed only if (and on the issuance, amendment, extension or renewal of each Letter of Credit the Borrower shall be deemed
to represent and warrant that), after giving effect to such issuance, amendment, extension or renewal, (A) the sum of (x) the aggregate
outstanding principal amount of all Revolving Loans and Swingline Loans plus (y) the aggregate amount of all LC Exposures would
not exceed the Total Revolving Credit Commitment and (B) the LC Exposure does not exceed the Letter of Credit Sublimit (unless otherwise
increased). In addition, no Issuing Bank shall be required to issue, amend, extend or renew any Letter of Credit if the terms of such
Letter of Credit extend beyond the Maturity Date applicable to the Revolving Credit Commitments of any Class unless (1) the aggregate
amount of the LC Exposure attributable to Letters of Credit expiring after such Maturity Date does not exceed the aggregate amount of
the Revolving Credit Commitments then in effect that are scheduled to remain in effect after such Maturity Date, (2) all Revolving Lenders
and such Issuing Bank shall have consented to such expiry date or (3) 100% of the then-available face amount thereof is Cash collateralized
or backstopped on or before the date that such Letter of Credit is issued, amended, extended or renewed beyond such date. Promptly after
the delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary
thereof, the applicable Issuing Bank will also deliver to the Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment. Upon receipt of such Letter of Credit or amendment, the Administrative Agent shall notify the Revolving
Lenders, in writing, of such Letter of Credit or amendment, and if so requested by a Revolving Lender, the Administrative Agent will
provide such Revolving Lender with copies of such Letter of Credit or amendment.
(c)
Expiration Date.
(i)
Except as set forth in Section 2.05(b) (above), no Standby Letter of Credit shall expire later than the earlier of (A) the date
that is one year after the date of the issuance of such Standby Letter of Credit (or such later date to which the relevant Issuing Bank
may agree) and (B) the Latest Revolving Loan Maturity Date; provided that, any Standby Letter of Credit may provide for the automatic
extension thereof for any number of additional periods each of up to one year in duration (none of which, in any event, shall extend
beyond the date referred to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized
or backstopped on or before the date that such Letter of Credit is extended beyond the date referred to in clause (B) above pursuant
to arrangements reasonably satisfactory to the relevant Issuing Bank).
(ii)
Except as set forth in Section 2.05(b) (above), no Commercial Letter of Credit shall expire later than the earlier to occur
of (A) one year after the issuance thereof (or such later date to which the relevant Issuing Bank may agree) and (B) the Latest
Revolving Loan Maturity Date; provided that any Commercial Letter of Credit may provide for the automatic extension thereof
for any number of additional periods each of up to one year in duration (none of which, in any event, shall extend beyond the date
referred to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized or
backstopped on or before the date that such Letter of Credit is extended beyond the date referred to in clause (B) above
pursuant to arrangements reasonably satisfactory to the relevant Issuing Bank).
(d)
Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the applicable Issuing Bank or the Revolving Lenders, the applicable Issuing Bank hereby grants
to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit
equal to such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.
In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement
made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or
of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence
and continuance of a Default or Event of Default or reduction or termination of the Revolving Credit Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(e)
Reimbursement.
(i)
If the applicable Issuing Bank makes any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement
by paying to the Administrative Agent (or, in the case of Commercial Letters of Credit, the applicable Issuing Bank) an amount equal
to such LC Disbursement not later than 1:00 p.m. on the second Business Day immediately following the date on which the Borrower receives
notice under paragraph (g) of this Section of such LC Disbursement (or, if such notice is received less than two hours prior to
the deadline for requesting ABR Borrowings pursuant to Section 2.03, on the third Business Day immediately following the date
on which the Borrower receives such notice); provided that the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 or 2.04 that such payment be financed with an ABR Revolving Loan or a Swingline
Loan and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting
Revolving Loan Borrowing or Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify
each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Revolving
Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.07 with
respect to Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations
of the Revolving Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by
it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders
have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as
their interests may appear.
(ii)
If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable Issuing Bank any amount
required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.05(e) by the time specified
therein, such Issuing Bank shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately
available to such Issuing Bank at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect
and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A certificate
of the applicable Issuing Bank submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (ii) shall be conclusive absent manifest error.
(f)
Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this
Section shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or
this Agreement, or any term or provision therein or herein, (ii) any draft or other document presented under any Letter of Credit proving
to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment
by the applicable Issuing Bank under any Letter of Credit against presentation of a draft or other document that does not comply with
the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing,
that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Revolving Lenders nor any Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any
Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation
of technical terms or any consequence arising from causes beyond the control of such Issuing Bank; provided that the foregoing
shall not be construed to excuse such Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered
by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence,
bad faith or willful misconduct on the part of applicable Issuing Bank (as finally determined by a court of competent jurisdiction),
such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g)
Disbursement Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by facsimile) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement
thereunder; provided that no failure to give or delay in giving such notice shall relieve the Borrower of its obligation to reimburse
such Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
(h)
Interim Interest. If any Issuing Bank makes any LC Disbursement, then, unless the Borrower reimburses such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement (or the date on which such LC
Disbursement is reimbursed with the proceeds of Loans, as applicable), at the rate per annum then applicable to Revolving Loans that
are ABR Loans; provided that if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e)
of this Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the
applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph
(e) of this Section to reimburse such Issuing Bank shall be for the account of such Revolving Lender to the extent of such payment.
(i)
Replacement of an Issuing Bank or Addition of New Issuing Banks.
Any
Issuing Bank may be replaced with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), the Borrower
and the successor Issuing Bank at any time by written agreement among the Borrower, the Administrative Agent and the successor Issuing
Bank. The Administrative Agent shall notify the Revolving Lenders of any such replacement of an Issuing Bank. At the time any such replacement
becomes effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b)(ii). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank,
or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of any Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under
this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional
Letters of Credit after such replacement. The Borrower may, at any time and from time to time with the consent of the Administrative
Agent (which consent shall not be unreasonably withheld or delayed) and the relevant Revolving Lender, designate one or more additional
Revolving Lenders to act as an issuing bank under the terms of this Agreement. Any Revolving Lender designated as an issuing bank pursuant
to this paragraph (i) shall be deemed to be an “Issuing Bank” (in addition to being a Revolving Lender) in respect
of Letters of Credit issued or to be issued by such Revolving Lender, and, with respect to such Letters of Credit, such term shall thereafter
apply to the other Issuing Bank and such Revolving Lender.
(j)
Cash Collateralization.
(i)
If any Event of Default exists and the Revolving Loans have been declared due and payable in accordance with Article 7 hereof,
then on the Business Day that the Borrower receives notice from the Administrative Agent at the direction of the Required Lenders demanding
the deposit of Cash collateral pursuant to this paragraph (j), upon such demand, the Borrower shall deposit, in an interest-bearing
account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders (the “LC
Collateral Account”), an amount in Cash equal to 100% of the LC Exposure as of such date (minus the amount then on deposit
in the LC Collateral Account); provided that the obligation to deposit such Cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event
of Default with respect to the Borrower described in Section 7.01(f) or (g).
(ii)
Any such deposit under clause (i) above shall be held by the Administrative Agent as collateral for the payment and performance
of the Secured Obligations in accordance with the provisions of this paragraph (j). The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account, and the Borrower hereby grants the Administrative
Agent, for the benefit of the Secured Parties, a First Priority security interest in the LC Collateral Account. Interest or profits,
if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the applicable Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of the Required Revolving Lenders) be applied to satisfy other Secured Obligations.
If the Borrower is required to provide an amount of Cash collateral hereunder as a result of the occurrence of an Event of Default, such
amount (together with all interest and other earnings with respect thereto, to the extent not applied as aforesaid) shall be returned
to the Borrower promptly but in no event later than three Business Days after such Event of Default has been cured or waived.
(k)
Existing Letters of Credit. Existing Letters of Credit shall be deemed Letters of Credit for all purposes under this Agreement,
without need for any further action by the Borrower or any other Person.
Section
2.06. [Reserved].
Section
2.07. Funding of Borrowings.
(a)
Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 1:00 p.m. to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an
amount equal to such Lender’s respective Applicable Percentage; provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to the Funding Account or as otherwise directed by the Borrower; provided that Revolving Loans made to
finance the reimbursement of any LC Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent
to the applicable Issuing Bank.
(b)
Unless the Administrative Agent has received notice from any Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In such event, if any Lender has not in fact made its share of
the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent,
at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable
to the Loans comprising such Borrowing at such time. If such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing and the Borrower’s obligation to repay the Administrative Agent
such corresponding amount pursuant to this Section 2.07(b) shall cease. If the Borrower pays such amount to the Administrative
Agent, the amount so paid shall constitute a repayment of such Borrowing by such amount. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower or any
other Loan Party may have against any Lender as a result of any default by such Lender hereunder.
Section
2.08. Type; Interest Elections.
(a)
Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a LIBO Rate Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert any Borrowing
to a Borrowing of a different Type or to continue such Borrowing and, in the case of a LIBO Rate Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the Lenders based upon their Applicable Percentages and the
Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Loans, which may
not be converted or continued.
(b)
To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election either in writing (by
hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) or by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting
from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)
to the Administrative Agent of a written Interest Election Request signed by a Responsible Officer of the Borrower.
(c)
Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(i)
the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii)
the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii)
whether the resulting Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing; and
(iv)
if the resulting Borrowing is a LIBO Rate Borrowing, the Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term “Interest Period”.
If
any such Interest Election Request requests a LIBO Rate Borrowing but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of one month’s duration.
(d)
Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each applicable Lender of the details
thereof and of such Lender’s portion of each resulting Borrowing.
(e)
If the Borrower fails to deliver a timely Interest Election Request with respect to a LIBO Rate Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing shall be converted at the end of
such Interest Period to a LIBO Rate Borrowing with an Interest Period of one month. Notwithstanding any contrary provision hereof, if
an Event of Default exists and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long
as such Event of Default exists (i) no outstanding Borrowing may be converted to or continued as a LIBO Rate Borrowing and (ii) unless
repaid, each LIBO Rate Borrowing shall be converted to an ABR Borrowing at the end of the then-current Interest Period applicable thereto.
Section
2.09. Termination and Reduction of Commitments.
(a)
Unless previously terminated, (i) the Initial Term Loan Commitments on the Closing Date shall automatically terminate upon the making
of the Initial Term Loans on the Closing Date, (ii) the Initial Term Loan Commitments on the Amendment No. 1 Effective Date shall automatically
terminate upon the making of the Amendment No. 1 Incremental Term Loans on the Amendment No. 1 Effective Date, (iii) the Amendment
No. 2 Term Loan Commitments on the Amendment No. 2 Effective Date shall automatically terminate upon the making of the Amendment No.
2 Term Loans on the Amendment No. 2 Effective Date, (iv) the Initial Revolving Credit Commitments shall automatically terminate
on the Initial Revolving Credit Maturity Date, (ivv)
the Additional Term Loan Commitments of any Class shall automatically terminate upon the making of the Additional Term Loans of such
Class and, if any such Additional Term Loan Commitment is not drawn on the date that such Additional Term Loan Commitment is required
to be drawn pursuant to the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment, the undrawn amount
thereof shall terminate unless otherwise provided in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility
Amendment and (vvi)
the Additional Revolving Credit Commitments of any Class shall automatically terminate on the Maturity Date specified therefor in the
applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment.
(b)
Upon delivering the notice required by Section 2.09(c), the Borrower may at any time terminate or from time to time reduce the
Revolving Credit Commitments of any Class; provided that (i) each reduction of the Revolving Credit Commitments of any Class shall
be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or
reduce the Revolving Credit Commitments of any Class if, after giving effect to such termination or reduction, as applicable, and any
concurrent prepayment of Revolving Loans and Swingline Loans, the aggregate amount of the Revolving Credit Exposure attributable to the
Revolving Credit Commitments of such Class would exceed the aggregate amount of the Revolving Credit Commitments of such Class; provided
that, after the establishment of any Additional Revolving Credit Commitment, any such termination or reduction of the Revolving Credit
Commitments of any Class shall be subject to the provisions set forth in Section 2.22, 2.23 and/or 9.02, as applicable.
(c)
The Borrower shall notify the Administrative Agent of any election to terminate or reduce any Class or Classes of Revolving Credit Commitments
under paragraph (b) of this Section (as selected by the Borrower) not later than 11:00 a.m. on or prior to the effective date
of such termination or reduction (or at least, not later than 11:00 a.m., three Business Days prior to the effective date of such termination
or reduction in the case of a termination or reduction involving a prepayment of LIBO Rate Borrowings (or such later date to which the
Administrative Agent may agree)), specifying such election and the effective date thereof. Promptly following receipt of any such notice,
the Administrative Agent shall advise the Revolving Lenders of each applicable Class or Classes of the contents thereof. Each notice
delivered by the Borrower pursuant to this Section shall be irrevocable; provided that any such notice may state that such notice
is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of
any Revolving Credit Commitment pursuant to this Section 2.09 shall be permanent. Upon any reduction of any Revolving Credit Commitment,
the Revolving Credit Commitment of each Revolving Lender of the relevant Class shall be reduced by such Revolving Lender’s Applicable
Percentage of such reduction amount.
Section
2.10. Repayment of Loans; Evidence of Debt.
(a)
The Borrower hereby unconditionally promises to repay the outstanding principal amount of the InitialAmendment
No. 2 Term Loans to the Administrative Agent for the account of each applicable Term Lender (i) commencing September
29, 2017December 31, 2018, on the last Business
Day of each March, June, September and December prior to the Initial Term Loan Maturity Date (each such date being referred to as a “Loan
Installment Date”), in each case in an amount equal to $1,746,419.600.25%
of the original principal amount of the Amendment No. 2 Term Loans (as such payments may be reduced from time to time as a
result of the application of prepayments in accordance with Section 2.11 and purchases or assignments in accordance with Section
9.05(g) or increased as a result of any increase in the amount of such InitialAmendment
No. 2 Term Loans pursuant to Section 2.22(a)) and (ii) on the Initial Term Loan Maturity Date, in an amount equal to
the remainder of the principal amount of the InitialAmendment
No. 2 Term Loans outstanding on such date, together in each case with accrued and unpaid interest on the principal amount
to be paid to but excluding the date of such payment. The Borrower shall repay the Additional Term Loans of any Class in such scheduled
amortization installments and on such date or dates as shall be specified therefor in the applicable Refinancing Amendment, Extension
Amendment or Incremental Facility Amendment (as such payments may be reduced from time to time as a result of the application of prepayments
in accordance with Section 2.11 and purchases or assignments in accordance with Section 9.05(g) or increased as a result
of any increase in the amount of such Additional Term Loans pursuant to Section 2.22(a)).
(b)
The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Revolving Lender the then
unpaid principal amount of each Revolving Loan on the Initial Revolving Credit Maturity Date and (ii) to the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the earlier of (x) the 10th Business Day following the incurrence of such Swingline
Loan and (y) the Initial Revolving Credit Maturity Date. On the Initial Revolving Credit Maturity Date, the Borrower shall (A) cancel
and return all outstanding Letters of Credit (or alternatively, with respect to any outstanding Letter of Credit, furnish to the Administrative
Agent a Cash deposit (or if reasonably acceptable to the relevant Issuing Bank, a backup standby letter of credit) equal to 100% of the
LC Exposure (minus the amount then on deposit in the LC Collateral Account) as of such date) and (B) make payment in full in Cash
of all accrued and unpaid fees and all reimbursable expenses and other Obligations with respect to the Revolving Facility then due, together
with accrued and unpaid interest (if any) thereon.
(c)
Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(d)
The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become
due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders or the Issuing Bank and each Lender’s share or the Issuing Bank’s share thereof.
(e)
The entries made in the accounts maintained pursuant to paragraphs (c) or (d) of this Section shall be prima facie evidence
of the existence and amounts of the obligations recorded therein (absent manifest error); provided that the failure of any Lender
or the Administrative Agent to maintain such accounts or any manifest error therein shall not in any manner affect the obligation of
the Borrower to repay the Loans in accordance with the terms of this Agreement; provided, further, that in the event of any inconsistency
between the accounts maintained by the Administrative Agent pursuant to paragraph (d) of this Section and any Lender’s records,
the accounts of the Administrative Agent shall govern.
(f)
Any Lender may request that Loans made by it be evidenced by a Promissory Note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a Promissory Note payable to such Lender and its registered permitted assigns; it being understood and agreed
that such Lender (and/or its applicable permitted assign) shall be required to return such Promissory Note to the Borrower in accordance
with Section 9.05(b)(iii) and upon the occurrence of the Termination Date (or as promptly thereafter as practicable). If any Lender
loses the original copy of its Promissory Note, it shall execute an affidavit of loss containing a customary indemnification provision
that is reasonably satisfactory to the Borrower. The obligation of each Lender to execute an affidavit of loss containing a customary
indemnification provision that is reasonably satisfactory to the Borrower shall survive the Termination Date.
Section
2.11. Prepayment of Loans.
(a)
Optional Prepayments.
(i)
Upon prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from
time to time to prepay any Borrowing of Term Loans of one or more Classes (such Class or Classes to be selected by the Borrower in its
sole discretion) in whole or in part without premium or penalty (but subject to (A) in the case of InitialAmendment
No. 2 Term Loans only, Section 2.12(f) and (B) if applicable, Section 2.16). Each such prepayment shall be paid
to the Lenders in accordance with their respective Applicable Percentages of the relevant Class.
(ii)
Upon prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from
time to time to prepay any Borrowing of Revolving Loans of any Class or any Borrowing of Swingline Loans, including any Additional Revolving
Loans, in whole or in part without premium or penalty (but subject to Section 2.16). Prepayments made pursuant to this Section
2.11(a)(ii), first, shall be applied ratably to the Swingline Loans and to outstanding LC Disbursements and second, shall be applied
ratably to the outstanding Revolving Loans, including any Additional Revolving Loans of the relevant Class.
(iii)
The Borrower shall notify the Administrative Agent (and, in the case of a prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed in writing) of any prepayment under this Section 2.11(a) (A) in the case of a prepayment of a LIBO Rate Borrowing,
not later than 1:00 p.m. three Business Days before the date of prepayment, (B) in the case of a prepayment of an ABR Borrowing, not
later than 1:00 p.m. on the date of prepayment or (C) in the case of a prepayment of a Swingline Loan, not later than 1:00 p.m. on the
date of prepayment (or, in each case, such later date or time to which the Administrative Agent may reasonably agree). Each such notice
shall be irrevocable (except as set forth in the proviso to this sentence) and shall specify the prepayment date and the principal amount
of each Borrowing or portion thereof to be prepaid; provided that a notice of prepayment delivered by the Borrower may state that
such notice is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Promptly following
receipt of any such notice relating to any Borrowing, the Administrative Agent shall advise the relevant Lenders of the contents thereof.
Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type and
Class as provided in Section 2.02(c) or such lesser amount that is then outstanding with respect to such Borrowing being repaid.
Each prepayment of Term Loans shall be applied to the Class of Term Loans as determined by the Borrower and specified in the applicable
prepayment notice, and each prepayment of Term Loans of such Class made pursuant to this Section 2.11(a) shall be applied against
the remaining scheduled installments of principal due in respect of the Term Loans of such Class in the manner specified by the Borrower
or, if not so specified on or prior to the date of such optional prepayment, in direct order of maturity.
(b)
Mandatory Prepayments.
(i)
No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower
are delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on or about June 30, 2019, the Borrower shall
prepay Subject Loans in accordance with clause (vi) below in an aggregate principal amount (the “ECF Prepayment Amount”)
equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess
Cash Flow Period then most recently ended (this clause (A), the “Base ECF Prepayment Amount”), minus (B) at
the option of the Borrower, to the extent occurring during such Excess Cash Flow Period (or occurring after such Excess Cash Flow Period
and prior to the date of the applicable Excess Cash Flow payment), and without duplication (including duplication of any amounts deducted
in any prior Excess Cash Flow Period), the following (collectively, the “ECF Deductions”):
(1)
the aggregate principal amount of any Initial Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid
pursuant to Section 2.11(a);
(2)
(x) the aggregate principal amount of any Incremental Equivalent Debt, Replacement Debt and/or any other Indebtedness permitted to be
incurred pursuant to Section 6.01 to the extent secured by Liens on the Collateral that are pari passu with the Liens on
the Collateral securing the Credit Facilities, voluntarily prepaid, repurchased, redeemed or otherwise retired and (y) the aggregate
principal amount of any loans under any Second Lien Facility (including any Incremental Loans and Additional Loans (as defined in the
Second Lien Credit Agreement or any other document governing any Second Lien Facility)) prepaid pursuant to Section 2.11(a) of
the Second Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien Facility) (to the extent
the relevant voluntary prepayments are permitted by the terms of this Agreement) and the aggregate principal amount of Incremental Equivalent
Debt and/or Replacement Debt (as defined in the Second Lien Credit Agreement or any other document governing any Second Lien Facility)
secured on a pari passu basis with the Second Lien Facility voluntarily prepaid, repurchased, redeemed or otherwise retired (or
contractually committed to be prepaid, repurchased, redeemed or otherwise retired);
(3)
(1) the amount of any reduction in the outstanding amount of any Initial Term Loans, Additional Term Loans, Incremental Equivalent Debt,
Replacement Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 6.01 to the extent secured by Liens
on the Collateral that are pari passu with the Liens on the Collateral securing the Credit Facilities, resulting from any purchase
or assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) (with
respect to Initial Term Loans and/or Additional Term Loans) and any equivalent provisions with respect to any Incremental Equivalent
Debt, Replacement Debt and/or such other Indebtedness and/or (2) to the extent permitted by the terms of this Agreement, the amount of
any reduction in the outstanding amount of any loans under the Second Lien Facility and/or any “Incremental Equivalent Debt”,
“Replacement Debt” and/or other Indebtedness permitted to be incurred thereunder to the extent secured by Liens on the Collateral
that are pari passu with the Liens on the Collateral securing the Second Lien Facility (including any reduction resulting from
any purchase or assignment made in accordance with Section 9.05(g) of the Second Lien Credit Agreement (or equivalent provision
under any other document governing any Second Lien Facility) (including in connection with any Dutch Auction (as defined in the Second
Lien Credit Agreement or any other document governing any Second Lien Facility)) and any equivalent provisions with respect to any such
“Incremental Equivalent Debt”, “Replacement Debt” and/or such other Indebtedness;
(4)
all Cash payments in respect of Capital Expenditures as would be reported in the Borrower’s consolidated statement of cash flows
and all Cash payments made to acquire IP Rights;
(5)
Cash payments by the Borrower and its Restricted Subsidiaries made (or committed) in respect of long-term liabilities (including for
purposes of clarity, the current portion of such long-term liabilities) of the Borrower and its Restricted Subsidiaries other than Indebtedness,
except to the extent such Cash payments were deducted in the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA for
such period;
(6)
Cash payments in respect of any Investment (including acquisitions) permitted by Section 6.06 or otherwise consented to by the
Required Lenders (other than Investments (x) in Cash or Cash Equivalents or (y) in the Borrower or any Loan Party) and/or any Restricted
Payment permitted by Section 6.04(a) or otherwise consented to by the Required Lenders;
(7)
the aggregate consideration (i) required to be paid in Cash by the Borrower or its Restricted Subsidiaries pursuant to binding contracts
entered into prior to or during such period relating to Capital Expenditures, acquisitions or other Investments permitted by Section
6.06 or otherwise consented to by the Required Lenders and/or Restricted Payments described in clause (6) above and/or (ii)
otherwise committed or budgeted to be made in connection with Capital Expenditures, acquisitions or Investments and/or Restricted Payments
described in clause (6) above (clauses (i) and (ii) of this clause (7), the “Scheduled Consideration”) (other
than Investments in (x) Cash and Cash Equivalents or (y) the Borrower or any Loan Party) to be consummated or made during the period
of four consecutive Fiscal Quarters of the Borrower following the end of such period; provided that to the extent the aggregate
amount actually utilized to finance such Capital Expenditures, acquisitions, Investments or Restricted Payments during such subsequent
period of four consecutive Fiscal Quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added
to the calculation of Excess Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters;
(8)
Cash expenditures in respect of any Hedge Agreement during such period to the extent (A) not otherwise deducted in the calculation of
Consolidated Net Income or Consolidated Adjusted EBITDA and (B) not financed with long-term funded Indebtedness (other than revolving
Indebtedness); and
(9)
the aggregate amount of expenditures actually made by the Borrower and/or any Restricted Subsidiary in Cash (including any expenditure
for the payment of fees or other Charges (or any amortization thereof for such period) in connection with any Disposition, incurrence
or repayment of Indebtedness, issuance of Capital Stock, refinancing transaction, amendment or modification of any debt instrument, including
this Agreement, and including, in each case, any such transaction consummated prior to, on or after the Closing Date, and Charges incurred
in connection therewith, whether or not such transaction was successful), in each case to the extent that such expenditures were (A)
not expensed and (B) not financed with long-term funded Indebtedness (other than revolving Indebtedness);
in
the case of each of clauses (1)-(9), (I) excluding any such payments, prepayments and expenditures made during such Fiscal
Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year, (II) in the
case of any prepayment of Revolving Loans and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction in
the relevant commitment, (III) to the extent that such payments, prepayments and expenditures were not financed with the proceeds of
other long-term funded Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries and (IV) in
each case under clause (3) above, based upon the actual amount of cash paid in connection with any relevant purchase or assignment; provided
that no prepayment under this Section 2.11(b)(i) shall be required unless the principal amount of Subject Loans required to
be prepaid exceeds $2,500,000 (and, in such case, only such amount in excess of $2,500,000 shall be required to be prepaid); provided, further, that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is also
required to prepay, repurchase or offer to prepay or repurchase any Indebtedness that is secured on a pari passu basis
(without regard to the control of remedies) with any Secured Obligation pursuant to the terms of the documentation governing such
Indebtedness (such Indebtedness required to be so prepaid or repurchased or offered to be so prepaid or repurchased, “Other
Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the
ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Subject
Loans and the relevant Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with
original issue discount) at such time) to the prepayment of the Subject Loans and to the prepayment of the relevant Other Applicable
Indebtedness, and the amount of prepayment of the Subject Loans that would have otherwise been required pursuant to this Section
2.11(b)(i) shall be reduced accordingly; it being understood that (1) the portion of such ECF Prepayment Amount allocated to the
Other Applicable Indebtedness shall not exceed the portion of such ECF Prepayment Amount required to be allocated to the Other
Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be
allocated to the Subject Loans in accordance with the terms hereof and (2) to the extent the holders of the Other Applicable
Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within
ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms
hereof.
(ii)
No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net
Insurance/Condemnation Proceeds, in each case, in excess of (x) $10,000,000 in any single transaction or series of related
transactions and (y) $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to the Required Net Proceeds
Percentage of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds
(collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Subject Loans in accordance
with clause (vi) below; provided that (A) if prior to the date any such prepayment is required to be made, the
Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the
business of the Borrower or any of its subsidiaries (including permitted acquisitions or other Investments, but excluding Cash or
Cash Equivalents), then the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect
of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y)
the Borrower or any of its subsidiaries has contractually committed to so reinvest the Subject Proceeds during such 18-month period
and the Subject Proceeds are so reinvested within six months after the expiration of such 18-month period; provided, however,
that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall
promptly prepay the outstanding principal amount of Subject Loans with the Subject Proceeds not so reinvested as set forth above
(without regard to the immediately preceding proviso) and (B) if, at the time that any such prepayment would be required hereunder,
the Borrower or any of its Restricted Subsidiaries is required to repay or repurchase (or offer to repay or repurchase) any Other
Applicable Indebtedness, then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the
Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate
outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable
Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds
allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the
Other Applicable Indebtedness pursuant to the terms thereof (and the remaining amount, if any, of the Subject Proceeds shall be
allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that
would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent
the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall
promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in
accordance with the terms hereof.
(iii)
In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness
by the Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, except
to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of the InitialAmendment
No. 2 Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance InitialAmendment
No. 2 Term Loans in accordance with the requirements of Section 9.02(c)), the Borrower shall, substantially simultaneously
with (and in any event not later than two Business Days thereafter) the receipt of such Net Proceeds by the Borrower or its applicable
Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant
InitialAmendment No. 2
Term Loans in accordance with clause (vi) below.
(iv)
Notwithstanding anything in this Section 2.11(b) to the contrary, (A) the Borrower shall not be required to prepay any amount
that would otherwise be required to be paid pursuant to Sections 2.11(b)(i), (ii) or (iii) above to the extent that
the relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any
Foreign Subsidiary, the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary or the relevant
Indebtedness is incurred by any Foreign Subsidiary (except to the extent the relevant Indebtedness constitutes Refinancing
Indebtedness incurred by any Foreign Subsidiary to refinance all or a portion of the Initial Term Loans or Additional Term Loans
pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in
accordance with the requirements of Section 9.02(c)), as the case may be, for so long as the Borrower determines in good
faith that the repatriation to the Borrower of any such amount would be prohibited or delayed (beyond the time period during which
such prepayment is otherwise required to be made pursuant to Section 2.11(b)(i), (ii) or (iii) above) under any
Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could
reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager,
member of management or consultant of such Foreign Subsidiary (including on account of financial assistance, corporate benefit, thin
capitalization, capital maintenance or similar considerations); it being understood and agreed that (i) solely within 365 days
following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt
of proceeds from the respective incurrence of Indebtedness, the Borrower shall take all commercially reasonable actions required by
applicable Requirements of Law to permit such repatriation and (ii) if the repatriation of the relevant affected Excess Cash Flow,
Subject Proceeds or Indebtedness proceeds, as the case may be, is permitted under the applicable Requirement of Law and, to the
extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to
result in, a material risk of personal or criminal liability for the Persons described above, in either case, within 365 days
following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt
of Net Proceeds in respect of any such Indebtedness, the relevant Foreign Subsidiary will promptly repatriate the relevant Excess
Cash Flow, Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, and the repatriated Excess Cash Flow,
Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, will be promptly (and in any event not later than
two Business Days after such repatriation) applied (net of additional Taxes payable or reserved against such Excess Cash Flow, such
Subject Proceeds or such Net Proceeds in respect of Indebtedness, as a result thereof, in each case by any Loan Party, such Loan
Party’s subsidiaries, and any Affiliates or indirect or direct equity owners of the foregoing) to the repayment of the Initial
Term Loans and Additional Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause
(iv), (B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections
2.11(b)(i) or (ii) to the extent that the relevant Excess Cash Flow is generated by any Joint Venture or the relevant
Subject Proceeds or Net Proceeds in respect of Indebtedness are received by any Joint Venture for so long as the Borrower determines
in good faith that the distribution to the Borrower of such Excess Cash Flow, Subject Proceeds or Net Proceeds in respect of
Indebtedness would be prohibited under the Organizational Documents (or any relevant shareholders’ or similar agreement)
governing such Joint Venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period
following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt
of Net Proceeds in respect of any such Indebtedness, the relevant Joint Venture will promptly distribute the relevant Excess Cash
Flow, the relevant Subject Proceeds or the relevant Net Proceeds in respect of Indebtedness, as the case may be, and the distributed
Excess Cash Flow, Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, will be promptly (and in any
event not later than ten Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a
result thereof) to the repayment of the Term Loans pursuant to this Section 2.11(b) to the extent required herein (without
regard to this clause (iv)) and (C) if the Borrower determines in good faith that the repatriation to the Borrower of any
amounts required to mandatorily prepay the Initial Term Loans and Additional Term Loans pursuant to Sections 2.11(b)(i), (ii) or (iii)
above would result in material and adverse tax consequences, taking into account any foreign tax credit or benefit actually realized
in connection with such repatriation (such amount, a “Restricted Amount”), as determined by the Borrower in good
faith, the amount the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i), (ii) or (iii)
above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation of any
Subject Proceeds, Excess Cash Flow or the Net Proceeds in respect of any such Indebtedness from the relevant Foreign Subsidiary
would no longer have a material and adverse tax consequence within the 365-day period following the event giving rise to the
relevant Subject Proceeds, the receipt of Net Proceeds in respect of any such Indebtedness or the end of the applicable Excess Cash
Flow Period, as the case may be, an amount equal to the Subject Proceeds, Excess Cash Flow or the Net Proceeds in respect of any
such Indebtedness, as applicable, not previously applied pursuant to this clause (C), shall be promptly applied to the
repayment of the Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise required above
(without regard to this clause (iv));
(v)
Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative
Agent, prior to any prepayment of Initial Term Loans and Additional Term Loans required to be made by the Borrower pursuant to this Section
2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined
Proceeds”), which Declined Proceeds may be retained by the Borrower and used for any legal purpose permitted (or not prohibited)
hereunder, including to increase the Available Amount; provided, further, that, for the avoidance of doubt, no Lender may reject
any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing
Indebtedness (including Replacement Debt) incurred to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant
to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section
2.22, (y) Replacement Loans incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section
9.02(c) and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements
of Section 6.01(z). If any Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of
its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will
be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of
Initial Term Loans and Additional Term Loans.
(vi)
Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment
of Initial Term Loans and Additional Term Loans pursuant to this Section 2.11(b) shall be applied ratably to each Class of Term
Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment
constituting (w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of the Initial Term Loans
or Additional Term Loans pursuant to Section 6.01(p), (x) Incremental Loans incurred to refinance all or a portion of the Term
Loans pursuant to Section 2.22, (y) Replacement Loans incurred to refinance all or a portion of the Term Loans in accordance with
the requirements of Section 9.02(c) and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term
Loans in accordance with the requirements of Section 6.01(z) shall, in each case be applied solely to each applicable Class of
refinanced or replaced Term Loans), (B) with respect to each Class of Initial Term Loans and Additional Term Loans, all accepted prepayments
under Section 2.11(b)(i), (ii) or (iii) shall be applied against the remaining scheduled installments of principal
due in respect of the Initial Term Loans and Additional Term Loans as directed by the Borrower (or, in the absence of direction from
the Borrower, to the remaining scheduled amortization payments in respect of the Initial Term Loans and Additional Term Loans in direct
order of maturity), and (C) each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentages.
The amount of such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Initial Term Loans and Additional
Term Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans or LIBO Rate Loans; provided that the amount
thereof shall be applied first to ABR Loans to the full extent thereof before application to the LIBO Rate Loans in a manner that minimizes
the amount of any payments required to be made by the Borrower pursuant to Section 2.16. Any prepayment of InitialAmendment
No. 2 Term Loans made on or prior to the date that is twelvesix
months after the ClosingAmendment
No. 2 Effective Date pursuant to Section 2.11(b)(iii) as part of a Repricing Transaction shall be accompanied by the
fee set forth in Section 2.12(f).
(vii)
In the event that the Aggregate Revolving Credit Exposure exceeds the Total Revolving Credit Commitment then in effect, the Borrower
shall, within five Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Loans or Swingline Loans and/or
reduce LC Exposure in an aggregate amount sufficient to reduce such Aggregate Revolving Credit Exposure as of the date of such payment
to an amount not to exceed the Total Revolving Credit Commitment then in effect by taking any of the following actions as it shall determine
at its sole discretion: (A) prepayment of Revolving Loans or Swingline Loans or (B) with respect to the excess LC Exposure, deposit of
Cash in the LC Collateral Account or “backstopping” or replacement of the relevant Letters of Credit, in each case, in an
amount equal to 100% of such excess LC Exposure (minus the amount then on deposit in the LC Collateral Account).
(viii)
At the time of each prepayment required under Section 2.11(b)(i), (ii) or (iii), the Borrower shall deliver to the
Administrative Agent a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation
of the amount of such prepayment. Each such certificate shall specify the Borrowings being prepaid and the principal amount of each Borrowing
(or portion thereof) to be prepaid. Prepayments shall be accompanied by accrued interest as required by Section 2.13. All prepayments
of Borrowings under this Section 2.11(b) shall be subject to Section 2.16 and, except as set forth in the last sentence
of clause (vi) above, shall otherwise be without premium or penalty.
Section
2.12. Fees.
(a)
The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender of any Class (other than any Defaulting
Lender) a commitment fee, which shall accrue at a rate equal to the Commitment Fee Rate per annum applicable to the Revolving Credit
Commitment of such Class on the average daily amount of the Unused Revolving Credit Commitment of such Class of such Revolving Lender
during the period from and including the Closing Date to the date on which such Lender’s Revolving Credit Commitments of such Class
terminate. Accrued commitment fees shall be payable in arrears on the last Business Day of each March, June, September and December for
the quarterly period then ended (commencing on September 30, 2017, but in the case of the payment made on September 30, 2017, for the
period from the Closing Date to such date) and on the date on which the Revolving Credit Commitments of the applicable Class terminate.
For purposes of calculating the commitment fees only, no portion of the Revolving Credit Commitments shall be deemed utilized as a result
of outstanding Swingline Loans.
(b)
The Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender of any Class (other than any Defaulting
Lender) a participation fee with respect to its participation in each Letter of Credit, which shall accrue at the Applicable Rate used
to determine the interest rate applicable to LIBO Rate Revolving Loans on the daily face amount of such Lender’s LC Exposure attributable
to its Revolving Credit Commitment of such Class in respect of such Letter of Credit (excluding any portion thereof attributable to unreimbursed
LC Disbursements), during the period from and including the Closing Date to the later of the date on which such Revolving Lender’s
Revolving Credit Commitment of such Class terminates and the date on which such Revolving Lender ceases to have any LC Exposure related
to its Revolving Credit Commitment of such Class in respect of such Letter of Credit (including any such Letter of Credit Exposure that
may exist following the termination of such Revolving Credit Commitments) and (ii) to each Issuing Bank, for its own account, a fronting
fee, in respect of each Letter of Credit issued by such Issuing Bank for the period from the date of issuance of such Letter of Credit
to the expiration date of such Letter of Credit (or if terminated on an earlier date, to the termination date of such Letter of Credit),
computed at a rate equal to the rate agreed by such Issuing Bank and the Borrower (but in any event not to exceed 0.125% per annum) of
the daily face amount of such Letter of Credit, as well as such Issuing Bank’s reasonable and customary fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting
fees accrued to but excluding the last Business Day of each March, June, September and December shall be payable in arrears for the quarterly
period then ended (or, in the case of the payment made on September 30, 2017, for the period from the Closing Date to such date) on the
last Business Day of such calendar quarter; provided that all such fees shall be payable on the date on which the Revolving Credit
Commitments of the applicable Class terminate, and any such fees accruing after the date on which the Revolving Credit Commitments of
the applicable Class terminate shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to this paragraph shall
be payable within 30 days after receipt of a written demand (accompanied by reasonable back-up documentation) therefor.
(c)
[Reserved].
(d)
The Borrower agrees to pay to the Administrative Agent, for its own account, the fees in the amounts and at the times separately agreed
upon by the Borrower and the Administrative Agent in writing.
(e)
All fees payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Administrative Agent
(or to the applicable Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation
fees, to the Revolving Lenders. Fees paid shall not be refundable under any circumstances except as otherwise provided in the Fee Letter.
Fees payable hereunder shall accrue through and including the last day of the month immediately preceding the applicable fee payment
date.
(f)
In the event that, on or prior to the date that is twelvesix
months after the ClosingAmendment
No. 2 Effective Date, the Borrower (x) prepays, repays, refinances, substitutes or replaces any InitialAmendment
No. 2 Term Loans in connection with a Repricing Transaction (including, for the avoidance of doubt, any prepayment made pursuant
to Section 2.11(b)(iii) that constitutes a Repricing Transaction) or (y) effects any amendment, modification or waiver of, or
consent under, this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable
account of each of the applicable InitialAmendment
No. 2 Term Lenders, (I) in the case of clause (x), a premium of 1.00% of the aggregate principal amount of the InitialAmendment
No. 2 Term Loans so prepaid, repaid, refinanced, substituted or replaced and (II) in the case of clause (y), a fee
equal to 1.00% of the aggregate principal amount of the InitialAmendment
No. 2 Term Loans that are the subject of such Repricing Transaction outstanding immediately prior to such amendment. If, on
or prior to the date that is twelvesix
months after the ClosingAmendment
No. 2 Effective Date, all or any portion of the InitialAmendment
No. 2 Term Loans held by any Term Lender are prepaid, repaid, refinanced, substituted or replaced pursuant to Section 2.19(b)(iv)
as a result of, or in connection with, such Term Lender not agreeing or otherwise consenting to any waiver, consent, modification
or amendment referred to in clause (y) above (or otherwise in connection with a Repricing Transaction), such prepayment, repayment,
refinancing, substitution or replacement will be made at 101% of the principal amount so prepaid, repaid, refinanced, substituted or
replaced. All such amounts shall be due and payable on the date of effectiveness of such Repricing Transaction.
(g)
Unless otherwise indicated herein, all computations of fees shall be made on the basis of a 360-day year and shall be payable for the
actual days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of the amount
of any fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section
2.13. Interest.
(a)
The Term Loans and Revolving Loans comprising each ABR Borrowing (including Swingline Loans) shall bear interest at the Alternate Base
Rate plus the Applicable Rate.
(b)
The Term Loans and Revolving Loans comprising each LIBO Rate Borrowing shall bear interest at the LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Rate.
(c)
[Reserved].
(d)
Notwithstanding the foregoing, during the existence and continuance of any Event of Default under Section 7.01(a), if any principal
of or interest on any InitialAmendment
No. 2 Term Loan or Revolving Loan, any LC Disbursement or any fee payable by the Borrower hereunder is not, in each case,
paid or reimbursed when due, whether at stated maturity, upon acceleration or otherwise, the relevant overdue amount shall bear interest,
to the fullest extent permitted by applicable Requirements of Law, after as well as before judgment, at a rate per annum equal to (i)
in the case of overdue principal or interest of any InitialAmendment
No. 2 Term Loan, Revolving Loan or unreimbursed LC Disbursement, 2.00% plus the rate otherwise applicable to such InitialAmendment
No. 2 Term Loan, Revolving Loan or LC Disbursement as provided in the preceding paragraphs of this Section or Section 2.05(h)
or (ii) in the case of any other amount, 2.00% plus the rate applicable to Revolving Loans that are ABR Loans as provided
in paragraph (a) of this Section; provided that no amount shall be payable pursuant to this Section 2.13(d) to any
Defaulting Lender so long as such Lender is a Defaulting Lender; provided further that no amounts shall accrue pursuant to this
Section 2.13(d) on any overdue amount, reimbursement obligation in respect of any LC Disbursement or other amount payable to a
Defaulting Lender so long as such Lender is a Defaulting Lender.
(e)
Accrued interest on each InitialAmendment
No. 2 Term Loan, Revolving Loan or Swingline Loan shall be payable in arrears on each Interest Payment Date for such InitialAmendment
No. 2 Term Loan, Revolving Loan or Swingline Loan and on the Maturity Date applicable to such Loan or upon the termination
of the Revolving Credit Commitments, as applicable; provided that (i) interest accrued pursuant to paragraph (d) of this
Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any InitialAmendment
No. 2 Term Loan or Revolving Loan (other than a prepayment of an ABR Revolving Loan prior to the termination of the relevant
revolving Commitments), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any LIBO Rate Loan prior to the end of the current Interest Period therefor, accrued
interest on such InitialAmendment
No. 2 Term Loan or Revolving Loan shall be payable on the effective date of such conversion. Accrued interest for any Class
of Additional Revolving Loans or Additional Term Loans shall be payable as set forth in the applicable Refinancing Amendment, Incremental
Facility Amendment or Extension Amendment.
(f)
All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed for ABR Loans based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or LIBO Rate shall
be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error. Interest shall accrue on
each Loan from the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan
or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall bear interest for one
day; provided further that, in the case of any ABR Loan, interest shall accrue through and including the last day of the month
preceding the applicable Interest Payment Date.
Section
2.14. Alternate Rate of Interest. If at least two Business Days prior to the commencement of any Interest Period for a LIBO Rate
Borrowing:
(a)
the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the LIBO Rate for such Interest Period; or
(b)
the Administrative Agent is advised by the Required Lenders that the LIBO Rate for such Interest Period will not adequately and fairly
reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;
then
the Administrative Agent shall promptly give notice thereof to the Borrower and the Lenders by telephone or facsimile as promptly as
practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the
conversion of any Borrowing to, or continuation of any Borrowing as, a LIBO Rate Borrowing shall be ineffective and such Borrowing shall
be converted to an ABR Borrowing on the last day of the Interest Period applicable thereto and (ii) if any Borrowing Request requests
a LIBO Rate Borrowing, such Borrowing shall be made as an ABR Borrowing.
Section
2.15. Increased Costs.
(a)
If any Change in Law:
(i)
imposes, modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve requirement reflected in the LIBO Rate) or Issuing Bank; or
(ii)
imposes on any Lender or Issuing Bank or the London interbank market any other condition affecting this Agreement or LIBO Rate Loans
made by any Lender or any Letter of Credit or participation therein;
and
the result of any of the foregoing is to increase the cost to the relevant Lender of making or maintaining any LIBO Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing
or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder
(whether of principal, interest or otherwise) in respect of any LIBO Rate Loan or Letter of Credit in an amount deemed by such Lender
or Issuing Bank to be material, then, within 30 days after the Borrower’s receipt of the certificate contemplated by paragraph
(c) of this Section, the Borrower will pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will
compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered (except that this provision
shall not apply to any Taxes, which shall be dealt with exclusively pursuant to Section 2.17); provided that the Borrower
shall not be liable for such compensation if (x) the relevant Change in Law occurs on a date prior to the date such Lender becomes a
party hereto, (y) such Lender invokes Section 2.20 or (z) in the case of requests for reimbursement under clause (ii) above
resulting from a market disruption, (A) the relevant circumstances do not generally affect the banking market or (B) the applicable request
has not been made by Lenders constituting Required Lenders.
(b)
If any Lender or Issuing Bank determines that any Change in Law regarding liquidity or capital requirements has or would have the effect
of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing
Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank
or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law other than due to
Taxes, which shall be dealt with exclusively pursuant to Section 2.17 (taking into consideration such Lender’s or Issuing
Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy),
then within 30 days of receipt by the Borrower of the certificate contemplated by paragraph (c) of this Section the Borrower will
pay to such Lender or such Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or such Issuing
Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.
(c)
Any Lender or Issuing Bank requesting compensation under this Section 2.15 shall be required to deliver a certificate to the Borrower
that (i) sets forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as applicable,
as specified in paragraph (a) or (b) of this Section, (ii) sets forth in reasonable detail the manner in which such amount
or amounts were determined and (iii) certifies that such Lender or Issuing Bank is generally charging such amounts to similarly situated
borrowers, which certificate shall be conclusive absent manifest error.
(d)
Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver
of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required
to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender or Issuing Bank notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided, further,
that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above
shall be extended to include the period of retroactive effect thereof.
Section
2.16. Break Funding Payments. In the event of (a) the conversion or prepayment of any principal of any LIBO Rate Loan other than
on the last day of an Interest Period applicable thereto (whether voluntary, mandatory, automatic, by reason of acceleration or otherwise),
(b) the failure to borrow, convert, continue or prepay any LIBO Rate Loan on the date or in the amount specified in any notice delivered
pursuant hereto or (c) the assignment of any LIBO Rate Loan of any Lender other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall compensate
each Lender for the loss, cost and expense incurred by such Lender that is attributable to such event (other than loss of profit). In
the case of a LIBO Rate Loan, the loss, cost or expense of any Lender shall be the amount reasonably determined by such Lender to be
the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred,
at the LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan) over (ii) the amount of interest which would accrue on such principal amount for such period at the interest
rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in the applicable currency of a comparable
amount and period from other banks in the Eurodollar market; it being understood that such loss, cost or expense shall in any case exclude
any interest rate floor and all administrative, processing or similar fees. Any Lender requesting compensation under this Section
2.16 shall be required to deliver a certificate to the Borrower (i) setting forth any amount or amounts that such Lender is entitled
to receive pursuant to this Section, the basis therefor and, in reasonable detail, the manner in which such amount or amounts were determined
and (ii) certifying that such Lender is generally charging the relevant amounts to similarly situated borrowers, which certificate shall
be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days
after receipt thereof.
Section
2.17. Taxes.
(a)
Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and
without deduction for any Taxes, except as required by applicable Requirements of Law. If any applicable Requirement of Law requires
the deduction or withholding of any Tax from any such payment, then (i) if such Tax is an Indemnified Tax, the amount payable by the
applicable Loan Party shall be increased as necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, each Lender and each Issuing Bank (as applicable) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make such deductions and (iii) such
Loan Party shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements
of Law.
(b)
In addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements
of Law.
(c)
Each Loan Party shall indemnify the Administrative Agent, each Lender and each Issuing Bank within 30 days after receipt of the certificate
described in the succeeding sentence, for the full amount of any Indemnified Taxes payable or paid by the Administrative Agent, such
Lender or Issuing Bank, as applicable, on or with respect to any payment by or any payment on account of any obligation of any Loan Party
hereunder (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority; provided, however that the Loan Parties shall not be obligated to indemnify the Administrative
Agent or such Lender or such Issuing Bank with respect to any penalties resulting from any action or inaction of the Administrative Agent
or such Lender or Issuing Bank; and provided further, that if such Loan Party reasonably believes that such Taxes were not correctly
or legally asserted, the Administrative Agent or such Lender or Issuing Bank, as applicable, will use reasonable efforts to cooperate
with such Loan Party to obtain a refund of such Taxes (which shall be repaid to such Loan Party in accordance with Section 2.17(g))
so long as such efforts would not, in the sole determination of the Administrative Agent or such Lender or Issuing Bank, result in
any additional out- of-pocket costs or expenses not reimbursed by such Loan Party or be otherwise materially disadvantageous to the Administrative
Agent or such Lender or Issuing Bank, as applicable. In connection with any request for reimbursement under this Section 2.17(c),
the relevant Lender, Issuing Bank or the Administrative Agent, as applicable, shall deliver a certificate to the Borrower (i) setting
forth, in reasonable detail, the basis and calculation of the amount of the relevant payment or liability and (ii) certifying that it
is generally charging the relevant amounts to similarly situated borrowers, which certificate shall be conclusive absent manifest error.
Notwithstanding anything to the contrary contained in this Section 2.17(c), the Borrower shall not be required to indemnify the
Administrative Agent or any Lender pursuant to this Section 2.17(c) for any amount to the extent the Administrative Agent or such
Lender fails to notify the Borrower of the relevant possible indemnification claim within 180 days after the Administrative Agent or
such Lender receives written notice from the applicable taxing authority of the specific tax assessment giving rise to such indemnification
claim.
(d)
Each Lender and each Issuing Bank shall severally indemnify the Administrative Agent, within 30 days after demand therefor, for (i) any
Indemnified Taxes on or with respect to any payment under any Loan Document that is attributable to such Lender or Issuing Bank (but
only to the extent that no Loan Party has already indemnified the Administrative Agent for such Indemnified Taxes and without limiting
the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s or Issuing Bank’s failure to comply
with the provisions of Section 9.05(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable
to such Lender or Issuing Bank, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document
and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender
or Issuing Bank by the Administrative Agent shall be conclusive absent manifest error. Each Lender and Issuing Bank hereby authorizes
the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or Issuing Bank under any Loan Document
or otherwise payable by the Administrative Agent to any Lender or Issuing Bank under any Loan Document or otherwise payable by the Administrative
Agent to any Lender or Issuing Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e)
As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority, such Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment that is reasonably satisfactory to the Administrative Agent.
(f)
Status of Lenders.
(i)
Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document
shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation as the Borrower or the Administrative Agent may reasonably request to permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by
the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or
not such Lender is subject to backup withholding or information reporting requirements. Each Lender hereby authorizes the Administrative
Agent to deliver to the Borrower and to any successor Administrative Agent any documentation provided to the Administrative Agent pursuant
to this Section 2.17(f).
(ii)
Without limiting the generality of the foregoing,
(A)
each Lender that is not a Foreign Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which
such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), two executed original copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding
tax;
(B)
each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever
of the following is applicable:
(1)
in the case of any Foreign Lender claiming the benefits of an income tax treaty to which the U.S. is a party (x) with respect to payments
of interest under any Loan Document, executed original copies of IRS Form W- 8BEN or W-8BEN-E establishing an exemption from, or reduction
of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other
applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal
withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2)
executed original copies of IRS Form W-8ECI;
(3)
in the case of any Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x)
a certificate substantially in the form of Exhibit L-1 to the effect that such Foreign Lender is not a “bank” within
the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section
871(h)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S.
Tax Compliance Certificate”) and (y) executed original copies of IRS Form W-8BEN or W- 8BEN-E; or
(4)
to the extent any Foreign Lender is not the beneficial owner, executed original copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI,
IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3,
IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such Foreign Lender
is a partnership and one or more partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may
provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such partner;
(C)
each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed original
copies of any other form prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Requirements of Law
to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D)
if a payment made to any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law
and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation as is prescribed by applicable
Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested
by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations
under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount
to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made
to FATCA after the date of this Agreement.
Each
Lender agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update
such documentation or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g)
If the Administrative Agent or any Lender or Issuing Bank determines, in its sole discretion exercised in good faith, that it has received
a refund of any Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which such Loan Party has
paid additional amounts pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section
2.17), it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid,
by such Loan Party under this Section 2.17 with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or Issuing Bank (including any Taxes imposed with respect to such refund), and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such
Loan Party, upon the request of the Administrative Agent, such Lender or Issuing Bank, agrees to repay the amount paid over to such Loan
Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent,
such Lender or Issuing Bank in the event the Administrative Agent, such Lender or Issuing Bank is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the Administrative Agent,
any Lender or Issuing Bank be required to pay any amount to any Loan Party pursuant to this paragraph (g) to the extent that the
payment thereof would place the Administrative Agent, Lender or Issuing Bank in a less favorable net after-Tax position than the position
that the Administrative Agent or such Lender or Issuing Bank would have been in if the Tax subject to indemnification had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid.
This Section shall not be construed to require the Administrative Agent, any Lender or any Issuing Bank to make available its Tax returns
(or any other information relating to its Taxes which it deems confidential) to the relevant Loan Party or any other Person.
(h)
The Administrative Agent shall deliver to Borrower, on or before the date on which it becomes the Administrative Agent hereunder, either
(i) a duly executed original IRS Form W-9 (or any applicable successor form) certifying that the Administrative Agent is not subject
to backup withholding, or (ii) (A) a duly completed executed original IRS Form W-8ECI to establish that the Administrative Agent is not
subject to withholding Taxes under the Internal Revenue Code with respect to any amounts payable for the account of the Administrative
Agent under any of the Loan Documents and (B) a duly executed original IRS Form W-8IMY (or applicable successor form) certifying that
it is a U.S. branch that has agreed to be treated as a U.S. person for United States federal withholding Tax purposes with respect to
payments received by it from the Borrower for the account of others under the Loan Documents. The Administrative Agent shall promptly
notify the Borrower at any time it determines that it is no longer in a position to provide the certification described in the preceding
sentence. The Administrative Agent shall also, at the time or times prescribed by law and at such time or times reasonably requested
by the Borrower, provide the Borrower such documentation as prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i)
of the Code) and such additional documentation reasonably requested by the Borrower as may be necessary for the Borrower to comply with
its FATCA obligations, to determine whether the Administrative Agent has or has not complied with its FATCA obligations, and to determine
the amount, if any, to deduct and withhold from a payment to the Administrative Agent.
(i)
Survival. Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative
Agent or any assignment of rights by, or the replacement of, any Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all obligations under any Loan Document.
Section
2.18. Payments Generally; Allocation of Proceeds; Sharing of Payments.
(a)
Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest,
fees or reimbursement of LC Disbursements or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise)
prior to the time expressed hereunder or under such Loan Document (or, if no time is expressly required, by 2:00 p.m.) on the date when
due, in immediately available funds, without set-off (except as otherwise provided in Section 2.17) or counterclaim. Any amounts
received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to
the applicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable
Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16
or 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. Each
Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round such Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount. Except as set forth
in any amendment entered into pursuant to Section 9.02(b)(ii)(E) with respect to the making of Revolving Loans or Letters of Credit
denominated in a currency other than Dollars, all payments (including accrued interest) hereunder shall be made in Dollars. Any payment
required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative
Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
(b)
Subject in all respects to the provisions of the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement,
all proceeds of Collateral received by the Administrative Agent at any time when an Event of Default exists, shall, upon election by
the Administrative Agent or at the direction of the Required Lenders, be applied, first, to the payment of all costs and expenses
then due incurred by the Administrative Agent in connection with any collection, sale or realization on Collateral or otherwise in connection
with this Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of
agents and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or under any other Loan Document on
behalf of any Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or
under any other Loan Document, second, on a pro rata basis, to pay any fees, indemnities or expense reimbursements then due to
the Administrative Agent (other than those covered in clause first above) or to the Swingline Lender or any Issuing Bank from the Borrower
constituting Secured Obligations, third, on a pro rata basis in accordance with the amounts of the Secured Obligations (other
than contingent indemnification obligations for which no claim has yet been made) owed to the Secured Parties on the date of any such
distribution, to the payment in full of the Secured Obligations (including, with respect to LC Exposure, an amount to be paid to the
Administrative Agent equal to 100% of the LC Exposure (minus the amount then on deposit in the LC Collateral Account) on such
date, to be held in the LC Collateral Account as Cash collateral for such Obligations); provided that if any Letter of Credit
expires undrawn, then any Cash collateral held to secure the related LC Exposure shall be applied in accordance with this Section
2.18(b), beginning with clause first above, fourth, as provided for under the Intercreditor Agreement or any other applicable
Acceptable Intercreditor Agreement, and fifth, to the Borrower or as the Borrower shall direct.
(c)
If any Lender obtains payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) in respect
of any principal of or interest on any of its Loans of any Class or participations in LC Disbursements or Swingline Loans held by it
resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans of such Class and
participations in LC Disbursements or Swingline Loans and accrued interest thereon than the proportion received by any other Lender
with Loans of such Class and participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater
proportion shall purchase (for Cash at face value) participations in the Loans of such Class and sub-participations in LC
Disbursements or Swingline Loans of other Lenders of such Class at such time outstanding to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Loans of such Class and participations in LC Disbursements or Swingline Loans; provided
that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not apply to (x) any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or (y) any payment obtained by any Lender as consideration for the assignment of or sale of a participation
in any of its Loans to any permitted assignee or participant, including any payment made or deemed made in connection with Sections
2.22, 2.23, 9.02(c) and/or Section 9.05. The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if
such Lender were a direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section
2.18(c) and will, in each case, notify the Lenders following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section 2.18(c) shall from and after such purchase have the right to give all notices,
requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased
to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.
(d)
Unless the Administrative Agent has received notice from the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of any Lender or any Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute
to the applicable Lender or Issuing Bank the amount due. In such event, if the Borrower has not in fact made such payment, then each
Lender or the applicable Issuing Bank severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e)
If any Lender fails to make any payment required to be made by it pursuant to Section 2.07(b) or Section 2.18(d), then
the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received
by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.
Section
2.19. Mitigation Obligations; Replacement of Lenders.
(a)
If any Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO Rate Loans
pursuant to Section 2.20, or the Borrower is required to pay any additional amount to or indemnify any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or its participation in any Letter of Credit affected by such event,
or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17,
as applicable, in the future or mitigate the impact of Section 2.20, as the case may be, and (ii) would not subject such Lender
to any material unreimbursed out-of-pocket cost or expense and would not otherwise be disadvantageous to such Lender in any material
respect. The Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b)
If (i) any Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO Rate
Loans pursuant to Section 2.20, (ii) the Borrower is required to pay any additional amount to or indemnify any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, (iii) any Lender is a Defaulting Lender or (iv) in connection
with any proposed amendment, waiver or consent requiring the consent of “each Lender”, “each Revolving Lender”
or “each Lender directly affected thereby” (or any other Class or group of Lenders other than the Required Lenders) with
respect to which Required Lender or Required Revolving Lender consent (or the consent of Lenders holding loans or commitments of such
Class or lesser group representing more than 50% of the sum of the total loans and unused commitments of such Class or lesser group at
such time) has been obtained, as applicable, any Lender is a non-consenting Lender (each such Lender, a “Non-Consenting Lender”),
then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, (x) terminate the applicable
Commitments and/or Additional Commitments of such Lender, and repay all Obligations of the Borrower owing to such Lender relating to
the applicable Loans and participations held by such Lender as of such termination date under one or more Credit Facilities or Additional
Credit Facilities as the Borrower may elect or (y) replace such Lender by requiring such Lender to assign and delegate (and such Lender
shall be obligated to assign and delegate), without recourse (in accordance with and subject to the restrictions contained in Section
9.05), all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations
(which Eligible Assignee may be another Lender, if any Lender accepts such assignment); provided that (A) such Lender shall have
received payment of an amount equal to the outstanding principal amount of its Loans and, if applicable, participations in LC Disbursements
and Swingline Loans, in each case of such Class of Loans, Commitments and/or Additional Commitments, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder with respect to such Class of Loans, Commitments and/or Additional Commitments, (B)
in the case of any assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant
to Section 2.17, such assignment will result in a reduction in such compensation or payments and (C) such assignment does not
conflict with applicable law. No Lender (other than a Defaulting Lender) shall be required to make any such assignment and delegation,
and the Borrower may not repay the Obligations of such Lender or terminate its Commitments or Additional Commitments, if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation
cease to apply. Each Lender agrees that if it is replaced pursuant to this Section 2.19, it shall execute and deliver to the Administrative
Agent an Assignment and Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent any Promissory Note
(if the assigning Lender’s Loans are evidenced by one or more Promissory Notes) subject to such Assignment and Assumption (provided
that the failure of any Lender replaced pursuant to this Section 2.19 to execute an Assignment and Assumption or deliver any
such Promissory Note shall not render such sale and purchase (and the corresponding assignment) invalid), such assignment shall be recorded
in the Register and any such Promissory Note shall be deemed cancelled. Each Lender hereby irrevocably appoints the Administrative Agent
(such appointment being coupled with an interest) as such Lender’s attorney-in-fact, with full authority in the place and stead
of such Lender and in the name of such Lender, from time to time in the Administrative Agent’s discretion, with prior written notice
to such Lender, to take any action and to execute any such Assignment and Assumption or other instrument that the Administrative Agent
may deem reasonably necessary to carry out the provisions of this clause (b). To the extent that any Lender is replaced pursuant
to Section 2.19(b)(iv) in connection with a Repricing Transaction requiring payment of a fee pursuant to Section 2.12(f),
the Borrower shall pay to each Lender being replaced as a result of such Repricing Transaction the fee set forth in Section 2.12(f).
Section
2.20. Illegality. If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental Authority
has asserted after the Closing Date that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans
whose interest is determined by reference to the Published LIBO Rate, or to determine or charge interest rates based upon the Published
LIBO Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to
take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative
Agent, (i) any obligation of such Lender to make or continue LIBO Rate Loans in Dollars or to convert ABR Loans to LIBO Rate Loans shall
be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining ABR Loans the interest rate on which
is determined by reference to the Published LIBO Rate component of the Alternate Base Rate, the interest rate on which ABR Loans of such
Lender, shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Published LIBO
Rate component of the Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist (which notice such Lender agrees to give promptly). Upon receipt of such
notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or convert all of such
Lender’s LIBO Rate Loans to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality,
be determined by the Administrative Agent without reference to the Published LIBO Rate component of the Alternate Base Rate) either on
the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBO Rate Loans to such day, or immediately,
if such Lender may not lawfully continue to maintain such LIBO Rate Loans (in which case the Borrower shall not be required to make payments
pursuant to Section 2.16 in connection with such payment) and (y) if such notice asserts the illegality of such Lender determining
or charging interest rates based upon the Published LIBO Rate, the Administrative Agent shall during the period of such suspension compute
the Alternate Base Rate applicable to such Lender without reference to the Published LIBO Rate component thereof until the Administrative
Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon
the Published LIBO Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid
or converted. Each Lender agrees to designate a different lending office if such designation will avoid the need for such notice and
will not, in the determination of such Lender, otherwise be materially disadvantageous to such Lender.
Section
2.21. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a)
Fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to Section 2.12(a) and,
subject to clause (d)(iv) below, on the participation of such Defaulting Lender in Letters of Credit pursuant to Section 2.12(b)
and pursuant to any other provisions of this Agreement or other Loan Document.
(b)
The Commitments, Loans and LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, each affected
Lender, the Required Lenders, Required Revolving Lenders or such other number of Lenders as may be required hereby or under any other
Loan Document have taken or may take any action hereunder (including any consent to any waiver, amendment or modification pursuant to
Section 9.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected
Lender which affects such Defaulting Lender disproportionately and adversely relative to other affected Lenders shall require the consent
of such Defaulting Lender.
(c)
Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Section 2.11, Section 2.15, Section 2.16, Section 2.17,
Section 2.18, Article 7, Section 9.05 or otherwise, and including any amounts made available to the Administrative
Agent by such Defaulting Lender pursuant to Section 9.09), shall be applied at such time or times as may be determined by the
Administrative Agent and, where relevant, the Borrower as follows: first, to the payment of any amounts owing by such Defaulting
Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting
Lender to any applicable Issuing Bank and/or Swingline Lender hereunder; third, if so reasonably determined by the Administrative
Agent or reasonably requested by the applicable Issuing Bank, to be held as Cash collateral for future funding obligations of such Defaulting
Lender in respect of any participation in any Letter of Credit; fourth, so long as no Default or Event of Default exists, as the
Borrower may request, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as
required by this Agreement; fifth, if so determined by the Administrative Agent or the Borrower, to be held in a deposit account
and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; sixth, to the payment
of any amounts owing to the non-Defaulting Lenders, Issuing Banks or Swingline Lenders as a result of any judgment of a court of competent
jurisdiction obtained by any non-Defaulting Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result
of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, to the payment of any amounts owing
to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender
as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender
or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Loan or LC Exposure in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such
Loan or LC Exposure was made or created, as applicable, at a time when the conditions set forth in Section 4.02 were satisfied
or waived, such payment shall be applied solely to pay the Loans of, and LC Exposure owed to, all non-Defaulting Lenders on a pro
rata basis prior to being applied to the payment of any Loans of, or LC Exposure owed to, such Defaulting Lender. Any payments, prepayments
or other amounts paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed by any Defaulting Lender or
to post Cash collateral pursuant to this Section 2.21(c) shall be deemed paid to and redirected by such Defaulting Lender, and
each Lender irrevocably consents hereto.
(d)
If any Swingline Loans or LC Exposure exists at the time any Lender becomes a Defaulting Lender then:
(i)
all or any part of such Swingline Loans and LC Exposure shall be reallocated among the non-Defaulting Revolving Lenders in accordance
with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures
does not exceed the total of all non-Defaulting Revolving Lenders’ Revolving Credit Commitments;
(ii)
if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, without prejudice
to any other right or remedy available to it hereunder or under applicable Requirements of Law, within two Business Days following notice
by the Administrative Agent, Cash collateralize 100% of such Defaulting Lender’s LC Exposure and any obligations of such Defaulting
Lender to fund participations in any Swingline Loan (after giving effect to any partial reallocation pursuant to paragraph (i)
above and any Cash collateral provided by such Defaulting Lender or pursuant to Section 2.21(c) above) or make other arrangements
reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank and/or Swingline Lender with respect to such LC
Exposure and/or Swingline Loans and obligations to fund participations. Cash collateral (or the appropriate portion thereof) provided
to reduce LC Exposure or other obligations shall be released promptly following (A) the elimination of the applicable LC Exposure or
other obligations giving rise thereto (including by the termination of the Defaulting Lender status of the applicable Lender (or, as
appropriate, its assignee following compliance with Section 2.19)) or (B) the Administrative Agent’s good faith determination
that there exists excess Cash collateral (including as a result of any subsequent reallocation of Swingline Loans and LC Exposure among
non-Defaulting Lenders described in clause (i) above);
(iii)
(A) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.21(d), then the fees payable to
the Revolving Lenders pursuant to Section 2.12(a) and (b), as the case may be, shall be adjusted to give effect to such
reallocation and (B) if the LC Exposure of any Defaulting Lender is Cash collateralized pursuant to this Section 2.21(d), then,
without prejudice to any rights or remedies of the applicable Issuing Bank, any Lender or any Borrower hereunder, no letter of credit
fees shall be payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure; and
(iv)
if any Defaulting Lender’s LC Exposure is not Cash collateralized, prepaid or reallocated pursuant to this Section 2.21(d),
then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Revolving Lender hereunder, all letter of
credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable
Issuing Bank until such Defaulting Lender’s LC Exposure is Cash collateralized or reallocated.
(e)
So long as any Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan, and no
Issuing Bank shall be required to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably satisfied
that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders, Cash collateral provided
pursuant to Section 2.21(c) and/or Cash collateral provided by the Borrower in accordance with Section 2.21(d), and participating
interests in any such or newly issued, extended or created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting
Revolving Lenders in a manner consistent with Section 2.21(d)(i) (it being understood that Defaulting Lenders shall not participate
therein).
(f)
In the event that the Administrative Agent and the Borrower agree that any Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then the Applicable Percentage of Swingline Loans and LC Exposure of the Revolving Lenders
shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment, and on such date such Revolving Lender
shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) or participations in Revolving
Loans as the Administrative Agent shall determine as are necessary in order for such Revolving Lender to hold such Revolving Loans or
participations in accordance with its Applicable Percentage. Notwithstanding the fact that any Defaulting Lender has adequately remedied
all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender and (y) except to the extent otherwise expressly
agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Section
2.22. Incremental Credit Extensions.
(a)
The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment (i) add one or more new tranches
of term facilities and/or increase the principal amount of the Initial Term Loans or any Additional Term Loans by requesting new term
loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any
loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches
of revolving commitments and/or increase the Total Revolving Credit Commitment or any Additional Revolving Credit Commitment (any such
new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental
Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental
Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding
principal amount not to exceed the Incremental Cap; provided that:
(i)
no Incremental Commitment may be less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii)
except as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental
Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being
agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii)
no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any
existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(iv)
any such Incremental Revolving Facility shall either (A) be subject to the same terms and conditions as any then-existing Revolving Facility
(and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental
Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving
Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the
lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders)
or (B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Initial Revolving Credit Maturity
Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment
and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the
Borrower) shall be substantially consistent with the Initial Revolving Loans or shall be reasonably satisfactory to the Administrative
Agent; provided, that if any financial maintenance covenant is added to any such Incremental Revolving Facility and such financial
maintenance covenant is more favorable to the lenders under such Incremental Revolving Facility than the Financial Covenant, either (x)
such financial maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving
Lenders shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the Borrower,
any applicable “equity cure” provisions with respect to any such financial maintenance covenant) (it being understood that
if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility,
no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other
provision is (1) also added for the benefit of any then- existing Revolving Facility or (2) only applicable after the applicable Latest
Revolving Loan Maturity Date),
(v)
the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and the lender
or lenders providing such Incremental Facility; provided that, in the case of any broadly-syndicated Dollar denominated Incremental
Term Facility that is (x) originally incurred in reliance on clause (a) or clause (e) of the definition of “Incremental
Cap” (but not any reclassification pursuant to clause (3) of the proviso therein) and (y) scheduled to mature prior to the
date that is one year after the Initial Term Loan Maturity Date, the Effective Yield applicable thereto may not be more than 0.50% higher
than the Effective Yield applicable to the InitialAmendment
No. 2 Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO
Rate floor) with respect to the InitialAmendment
No. 2 Term Loans is adjusted such that the Effective Yield on the InitialAmendment
No. 2 Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility
(this proviso, the “MFN Provision”); provided, further, that any increase in Effective Yield applicable to
any InitialAmendment No.
2 Term Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term
Loan may, at the election of the Borrower, be effected through an increase in the Alternate Base Rate floor or LIBO Rate floor applicable
to such InitialAmendment
No. 2 Term Loans or an increase in the interest rate margin applicable to such Incremental Loans; provided further
that the MFN Provision shall not apply to Incremental Term Facilities having an aggregate principal amount not exceeding $20,000,000
(as selected by the Borrower),
(vi)
the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date at the
time of the incurrence thereof; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity
date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or
otherwise replace such bridge loans shall be subject to the requirements of this clause (vi) and (ii) the Permitted Earlier Maturity
Indebtedness Exception (to the extent designated by the Borrower),
(vii)
the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to
Maturity of the InitialAmendment
No. 2 Term Loans; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity
date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or
otherwise replace such bridge loans shall be subject to the requirements of this clause (vii) or (ii) Permitted Earlier Maturity
Indebtedness Exception (to the extent designated by the Borrower),
(viii)
subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined
by the Borrower and the lenders providing such Incremental Term Facility,
(ix)
subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined
by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x)
(A) each Incremental Facility shall rank pari passu with the InitialAmendment
No. 2 Term Loans (in the case of any Incremental Term Facility) and pari passu with the Initial Revolving Loans (in
the case of Incremental Revolving Loans), in each case in right of payment and security and (B) no Incremental Facility may be (x) guaranteed
by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(xi)
any Incremental Term Facility may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary
prepayment of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis, other
than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment of
Term Loans required pursuant to Section 2.11(b),
(xii)
no Event of Default under Section 7.01(a), (f) or (g) shall exist immediately prior to or after giving effect to the effectiveness of
such Incremental Facility (except in connection with any acquisition or other Investment or irrevocable notice of repayment or redemption
of Indebtedness, where no such Event of Default shall exist at the time as elected by the Borrower pursuant to Section 1.04(e)),
(xiii)
except as otherwise required or permitted in clauses (v) through (xi) above, all other terms of any Incremental Term Facility shall be
as agreed between the Borrower and the lenders providing such Incremental Term Facility,
(i)
the proceeds of any Incremental Facility may be used for working capital, Capital Expenditures and other general corporate purposes of
the Borrower and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments
and any other purpose not prohibited by the terms of the Loan Documents), and
(ii)
on the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans,
and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added
to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type
with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding
Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional
Term Loans, as applicable, of the same type with the same Interest Period of the respective Class.
(b)
Incremental Commitments may be provided by any existing Lender or by any other Eligible Assignee (any such other Eligible Assignee being
called an “Additional Lender”); provided that the Administrative Agent (and, in the case of any Incremental
Revolving Facility, the Swingline Lender and any Issuing Bank) shall have consented (such consent not to be unreasonably withheld, conditioned
or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section
9.05(b) for an assignment of Loans to such Additional Lender; provided; further, that any Additional Lender that is an Affiliated
Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental Commitments
and related Obligations had been obtained by such Lender by way of assignment.
(c)
Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent
and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the
Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each
Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(d)
As a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request,
the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements
and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Lender, an
administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative
Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative
Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental
Loans and (iv) upon its request, the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer
thereof:
(A)
certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental
Facility or Incremental Loans, and
(B)
to the extent applicable, certifying that the condition set forth in clause (a)(xii) above has been satisfied.
(e)
Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i)
if such Incremental Revolving Facility is implemented by increasing the amount of then-existing Total Revolving Credit Commitments (rather
than by establishing a new Class of Revolving Loans), (i) each Revolving Lender immediately prior to such increase will automatically
and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental
Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s
participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each deemed assignment
and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations
hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans shall be held on a pro rata basis on the basis
of their respective Revolving Credit Commitments (after giving effect to any increase in the Revolving Credit Commitment pursuant to
Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving
Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving
Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans,
in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of
Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any
increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing,
pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions
effected pursuant to this clause (i); and
(ii)
if such Incremental Revolving Facility is implemented pursuant to a request to add one or more new tranches of revolving commitments,
(1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on the existing Revolving Facilities
and such Incremental Revolving Facility, (B) repayments required upon the Maturity Date of the then-existing Revolving Facility and such
Incremental Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of commitments (subject
to clause (3) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Facility Commitments
shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving
Facility, (2) all swingline loans and/or letters of credit made or issued, as applicable, under such Incremental Revolving Facility shall
be participated on a pro rata basis by all Revolving Lenders and (3) the permanent repayment of Loans with respect to, and termination
of commitments under, such Incremental Revolving Facility shall be made on a pro rata basis with the then- existing Revolving
Facility and any other then outstanding Incremental Revolving Facility, except that the Borrower shall be permitted to permanently repay
and terminate commitments under such Incremental Revolving Facility on a greater than pro rata basis as compared with any other
revolving facility with a later Maturity Date than such revolving facility.
(f)
Effective on the date of effectiveness of each Incremental Revolving Facility, the maximum amount of LC Exposure and/or Swingline Loans,
as applicable, permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Borrower and the
relevant Issuing Bank and/or the Swingline Lender, as applicable.
(g)
The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment
to any other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Loans
or commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate
in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches,
in each case on terms consistent with this Section 2.22.
(h)
To the extent the provisions of clause (a)(xv) above require that Term Lenders making new Incremental Term Loans add such Incremental
Term Loans to the then outstanding borrowings of LIBO Rate Loans of the respective Class of Initial Term Loans or Additional Term Loans,
as applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the respective Class
and which will end on the last day of such Interest Period).
(i)
Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds
of any Incremental Facility are intended to be applied to finance an acquisition or other Investment and the lenders providing such Incremental
Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality
(including the making and accuracy of Specified Representations as conformed for such acquisition or other Investment).
(j)
This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary.
Section
2.23. Extensions of Loans and Revolving Credit Commitments.
(a)
Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”)
made from time to time by the Borrower to all Lenders holding Loans of any Class or Commitments of any Class, in each case on a pro rata
basis (based on the aggregate outstanding principal amount of the respective Loans or Commitments of such Class) and on the same terms
to each such Lender, the Borrower is hereby permitted from time to time to consummate transactions with any individual Lender who accepts
the terms contained in the relevant Extension Offer to extend the Maturity Date of all or a portion of such Lender’s Loans and/or
Commitments of such Class and otherwise modify the terms of all or a portion of such Loans and/or Commitments pursuant to the terms of
the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Loans and/or Commitments (and
related outstandings) and/or modifying the amortization schedule, if any, in respect of such Loans) (each, an “Extension”);
it being understood that any Extended Term Loans shall constitute a separate Class of Loans from the Class of Loans from which they were
converted and any Extended Revolving Credit Commitments shall constitute a separate Class of Revolving Credit Commitments from the Class
of Revolving Credit Commitments from which they were converted, so long as the following terms are satisfied:
(i)
except as to (x) interest rates, fees and final maturity (which shall, subject to the succeeding clause (iii)(y), be determined
by the Borrower and set forth in the relevant Extension Offer), (y) terms applicable to such Extended Revolving Credit Commitments or
Extended Revolving Loans that are more favorable to the lenders or the agent of such Extended Revolving Credit Commitments or Extended
Revolving Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents on or prior to the
effectiveness of such Extension for the benefit of the Revolving Lenders or, as applicable, the Administrative Agent pursuant to the
applicable Extension Amendment and (z) any terms or other provisions applicable only to periods after the Latest Revolving Loan Maturity
Date (in each case, as of the date of such Extension), the commitment of any Revolving Lender that agrees to an Extension (an “Extended
Revolving Credit Commitment”; and the Loans thereunder, “Extended Revolving Loans”), and the related outstandings,
shall be a revolving commitment (or related outstandings, as the case may be) with substantially consistent terms (or terms not less
favorable to existing Revolving Lenders) as the original Revolving Credit Commitments (and related outstandings) provided hereunder;
provided that to the extent any non-extended portion of the Revolving Facility or any Additional Revolving Facility then exists,
(1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on such revolving facilities (and related
outstandings), (B) repayments required upon the Maturity Date of such revolving facilities and (C) repayments made in connection with
any permanent repayment and termination of commitments (subject to clause (3) below)) of Extended Revolving Loans after the effective
date of such Extended Revolving Credit Commitments shall be made on a pro rata basis with such portion of the Revolving Facility
or the relevant Additional Revolving Facility, as applicable, (2) all swingline loans and/or letters of credit made or issued, as applicable,
under any Extended Revolving Credit Commitment shall be participated on a pro rata basis by all Revolving Lenders and (3) the
permanent repayment of Loans with respect to, and termination of commitments under, any such Extended Revolving Credit Commitment after
the effective date of such Extended Revolving Credit Commitments shall be made on a pro rata basis with such portion of the Revolving
Facility and/or any Additional Revolving Facility, except that the Borrower shall be permitted to permanently repay and terminate commitments
of any such revolving facility on a greater than pro rata basis (I) as compared to any other Revolving Facilities with a later
Maturity Date than such Revolving Facility and (II) to the extent refinanced or replaced with a Replacement Revolving Facility or Replacement
Debt;
(ii)
except as to (x) interest rates, fees, amortization, final maturity date, premiums, required prepayment dates and participation in prepayments
(which shall, subject to immediately succeeding clauses (iii)(x), (iv) and (v), be determined by the Borrower and set forth
in the relevant Extension Offer), (y) terms applicable to such Extended Term Loans that are more favorable to the lenders or the agent
of such Extended Term Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents on or
prior to the effectiveness of such Extension for the benefit of the Term Lenders or, as applicable, the Administrative Agent pursuant
to the applicable Extension Amendment and (z) any covenants or other provisions applicable only to periods after the Latest Term Loan
Maturity Date (in each case, as of the date of such Extension), the Term Loans of any Lender extended pursuant to any Extension (any
such extended Term Loans, the “Extended Term Loans”) shall have substantially consistent terms as the tranche of Term
Loans subject to the relevant Extension Offer;
(iii)
(x) the final maturity date of any Extended Term Loans shall be no earlier than the then applicable Latest Term Loan Maturity Date at
the time of extension and (y) no Extended Revolving Credit Commitments or Extended Revolving Loans shall have a final maturity date earlier
than (or require commitment reductions prior to) the then applicable Latest Revolving Loan Maturity Date;
(iv)
the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity
of the Term Loans or any other Extended Term Loans extended thereby;
(v)
subject to clauses (iii) and (iv) above, any Extended Term Loans may otherwise have an amortization schedule as determined
by the Borrower and the Lenders providing such Extended Term Loans;
(vi)
any Extended Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment
of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis other than in the
case of prepayment with proceeds of Indebtedness refinancing such Extended Term Loans) in any mandatory prepayment of Term Loans required
pursuant to Section 2.11(b);
(vii)
if the aggregate principal amount of Loans or commitments, as the case may be, in respect of which Lenders shall have accepted the relevant
Extension Offer exceeds the maximum aggregate principal amount of Loans or commitments, as the case may be, offered to be extended by
the Borrower pursuant to such Extension Offer, then the Loans or commitments, as the case may be, of such Lenders shall be extended ratably
up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) held by Lenders that
have accepted such Extension Offer;
(viii)
unless the Administrative Agent otherwise agrees, each Extension shall be in a minimum amount of $5,000,000;
(ix)
any applicable Minimum Extension Condition shall be satisfied or waived by the Borrower; and
(x)
all documentation in respect of such Extension shall be consistent with the foregoing.
(b)
With respect to any Extension consummated pursuant to this Section 2.23, (i) no such Extension shall constitute a voluntary or
mandatory prepayment for purposes of Section 2.11, (ii) the scheduled amortization payments (in so far as such schedule affects
payments due to Lenders participating in the relevant Class) set forth in Section 2.10 shall be adjusted to give effect to such
Extension of the relevant Class and (iii) except as set forth in clause (a)(viii) above, no Extension Offer is required to be
in any minimum amount or any minimum increment; provided that the Borrower may, at its election, specify as a condition (a “Minimum
Extension Condition”) to consummating such Extension that a minimum amount (to be determined and specified in the relevant
Extension Offer in the Borrower’s sole discretion and which may be waived by the Borrower in its sole discretion) of Loans or commitments
(as applicable) of any or all applicable Classes be tendered. The Administrative Agent and the Lenders hereby consent to the transactions
contemplated by this Section 2.23 (including, for the avoidance of doubt, any payment of any interest, fees or premium in respect
of any tranche of Extended Term Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant
Extension Offer) and hereby waive the requirements of any provision of this Agreement (including Sections 2.10, 2.11 or 2.18)
or any other Loan Document that may otherwise prohibit any Extension or any other transaction contemplated by this Section.
(c)
No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (A) the consent of each
Lender agreeing to such Extension with respect to one or more of its Loans and/or commitments under any Class (or a portion thereof),
(B) with respect to any Extension of the Revolving Credit Commitments, the consent of each Issuing Bank to the extent the commitment
to provide Letters of Credit is to be extended and (C) with respect to any Extension of the Revolving Credit Commitments, the consent
of the Swingline Lender to the extent the swingline facility is to be extended (in each case which consent shall not be unreasonably
withheld or delayed). All Extended Term Loans and Extended Revolving Credit Commitments and all obligations in respect thereof shall
constitute Secured Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on
a pari passu basis with all other Secured Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably
authorize the Administrative Agent to enter into such amendments to this Agreement and the other Loan Documents with the Borrower as
may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments so extended and such technical
amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with
the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.23.
(d)
In connection with any Extension, the Borrower shall provide the Administrative Agent at least ten Business Days’ (or such shorter
period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including regarding
timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such
Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish
the purposes of this Section 2.23.
ARTICLE
3 REPRESENTATIONS AND WARRANTIES
On
the dates and to the extent required pursuant to Section 4.01 or Section 4.02, as applicable, Holdings (solely with respect to Sections
3.01, 3.02, 3.03, 3.06, 3.07, 3.08, 3.09, 3.12, 3.13, 3.14, 3.16
and 3.17) and the Borrower hereby represent and warrant to the Lenders that:
Section
3.01. Organization; Powers. Each of Holdings, the Borrower and each of its Restricted Subsidiaries (a) is (i) duly organized and
validly existing and (ii) in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of its jurisdiction
of organization, (b) has all requisite organizational power and authority to own its property and assets and to carry on its business
as now conducted and (c) is qualified to do business in, and is in good standing (to the extent such concept exists in the relevant jurisdiction)
in, every jurisdiction where its ownership, lease or operation of properties or conduct of its business requires such qualification;
except, in each case referred to in this Section 3.01 (other than clause (a)(i) and (b), in each case with respect to the
Borrower) where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
Section
3.02. Authorization; Enforceability. The execution, delivery and performance by each Loan Party of each of the Loan Documents
to which such Loan Party is a party are within such Loan Party’s corporate or other organizational power and have been duly authorized
by all necessary corporate or other organizational action of such Loan Party. Each Loan Document to which any Loan Party is a party has
been duly executed and delivered by such Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance
with its terms, subject to the Legal Reservations.
Section
3.03. Governmental Approvals; No Conflicts. The execution and delivery of the Loan Documents by each Loan Party party thereto
and the performance by such Loan Party thereof (a) do not require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) in connection
with the Perfection Requirements and (iii) such consents, approvals, registrations, filings, or other actions the failure to obtain or
make which would not be reasonably expected to have a Material Adverse Effect, (b) will not violate any (i) of such Loan Party’s
Organizational Documents or (ii) Requirements of Law applicable to such Loan Party which, in the case of this clause (b)(ii),
would reasonably be expected to have a Material Adverse Effect and (c) will not violate or result in a default under (i) the Second Lien
Credit Agreement or (ii) any other material Contractual Obligation in respect of Indebtedness having an aggregate principal amount exceeding
the Threshold Amount to which such Loan Party is a party which, in the case of this clause (c), would reasonably be expected to
result in a Material Adverse Effect.
Section
3.04. Financial Condition; No Material Adverse Effect.
(a)
After the Closing Date, the financial statements most recently provided pursuant to Section 5.01(a) or (b), as applicable,
present fairly, in all material respects, the financial position, results of operations and cash flows of the Borrower on a consolidated
basis as of such dates and for such periods in accordance with GAAP, (w) except as otherwise expressly noted therein, (x) subject, in
the case of financial statements provided pursuant to Section 5.01(a), to the absence of footnotes and normal year-end audit adjustments
and (y) except as may be necessary to reflect any differing entity and/or organizational structure prior to giving effect to the Transactions.
(b)
Since the Closing Date, there have been no events, developments or circumstances that have had, or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
Section
3.05. Properties.
(a) [Reserved.]
(b)
The Borrower and each of its Restricted Subsidiaries have good and valid fee simple title to or rights to purchase, or valid leasehold
interests in, or easements or other limited property interests in, all of their respective Real Estate Assets, free and clear of all
Liens except for Permitted Liens and have good title to their personal property and assets, in each case material to the business, except
(i) for defects in title that do not materially interfere with their ability to conduct their business as currently conducted or to utilize
such properties and assets for their intended purposes or (ii) where the failure to have such title or interest would not reasonably
be expected to have a Material Adverse Effect.
(c)
The Borrower and each of its Restricted Subsidiaries own or otherwise have a license or right to use all Patents, Trademarks, Copyrights
and other rights in works of authorship (including all copyrights embodied in software), domain names, trade secrets and all other intellectual
property rights (“IP Rights”) necessary to the conduct of the businesses of the Borrower and its Restricted Subsidiaries
as presently conducted, and, to the knowledge of the Borrower, such IP Rights do not infringe or misappropriate the IP Rights of any
third party, except to the extent such failure to own or license or have rights to use would not, or where such infringement or misappropriation
would not, reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section
3.06. Litigation and Environmental Matters. Except as set forth on Schedule 3.06:
(a)
there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge
of the Borrower, threatened in writing against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries which would
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect;
(b)
except for any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect,
(i) neither Holdings, the Borrower nor any of its Restricted Subsidiaries has received written notice of any claim with respect to any
Environmental Liability, knows of any basis for any Environmental Liability or, to the knowledge of the Borrower, has become subject
to any Environmental Liability and (ii) neither Holdings, the Borrower nor any of its Restricted Subsidiaries is in violation of any
Environmental Law or has not obtained, maintained, or complied with any permit, license or other approval required under any Environmental
Law; and
(c)
neither Holdings, the Borrower nor any of its Restricted Subsidiaries has treated, stored, transported, Released or disposed of any Hazardous
Material at or from any currently or formerly owned, leased or operated real estate or facility nor, to the knowledge of the Borrower,
has any Hazardous Material been Released from any third-party location relating to the Borrower’s or any of its Restricted Subsidiaries’
businesses, in each case in a manner that would reasonably be expected to have a Material Adverse Effect.
Section
3.07. Compliance with Laws. Each of Holdings, the Borrower and each of its Restricted Subsidiaries is in compliance with all Requirements
of Law applicable to it or its property, except, in each case where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, it being understood and agreed that this Section 3.07 shall not apply
to any law specifically referenced in Section 3.17.
Section
3.08. Investment Company Status. No Loan Party is required to be registered as an “investment company” under the Investment
Company Act of 1940.
Section
3.09. Taxes. Each of Holdings, the Borrower and each of its Restricted Subsidiaries has timely filed or caused to be filed all
Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it that
are due and payable, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which Holdings, the Borrower
or such Restricted Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent
that the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section
3.10. ERISA.
(a)
Each Pension Plan is in compliance in form and operation with its terms and with ERISA and the Code and all other applicable laws and
regulations, except where any failure to comply would not reasonably be expected to result in a Material Adverse Effect.
(b)
No ERISA Event has occurred in the five-year period prior to the date on which this representation is made or deemed made and is continuing
or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected
to occur, would reasonably be expected to result in a Material Adverse Effect.
Section
3.11. Disclosure.
(a)
As of the Closing Date, to the knowledge of the Borrower, all written factual information (other than the Projections, the model delivered
by the Sponsor to the Arrangers on June 4, 2017, other forward-looking or projected information, pro forma information and information
of a general economic or general industry nature (including any reports or memos prepared by third party consultants)) concerning Holdings,
the Borrower and its Restricted Subsidiaries and the Transactions and that was included in the Information Memorandum or otherwise prepared
by or on behalf of the foregoing or the Sponsor or their respective representatives and made available to any Initial Lender or the Administrative
Agent in connection with the Transactions on or before the Closing Date (the “Information”), when taken as a whole,
did not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after
giving effect to all supplements and updates thereto from time to time).
(b)
The Projections have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time furnished
(it being recognized that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies
many of which are beyond the Borrower’s control, that no assurance can be given that any particular financial projections (including
the Projections) will be realized, that actual results may differ from projected results and that such differences may be material).
Section
3.12. Solvency. As of the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date and
the incurrence of indebtedness and obligations on the Closing Date in connection with this Agreement and the Transactions, (i) the sum
of the debt (including contingent liabilities) of Holdings and its Subsidiaries, taken as a whole, does not exceed the fair value of
the assets of Holdings and its Subsidiaries, taken as a whole; (ii) the present fair saleable value of the assets of Holdings and its
Subsidiaries, taken as a whole, is not less than the amount that will be required to pay the probable liabilities (including contingent
liabilities) of Holdings and its Subsidiaries, taken as a whole, on their debts as they become absolute and matured; (iii) the capital
of Holdings and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of Holdings and its Subsidiaries,
taken as a whole, contemplated as of the Closing Date; and (iv) Holdings and its Subsidiaries, taken as a whole, do not intend to incur,
or believe that they will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debts
as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall
be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liability meets the criteria
for accrual under Statement of Financial Accounting Standards No. 5).
Section
3.13. Capitalization and Subsidiaries. Schedule 3.13 sets forth, in each case as of the Closing Date, (a) a correct and
complete list of the name of each subsidiary of Holdings and the ownership interest therein held by Holdings or its applicable subsidiary
and (b) the type of entity of Holdings and each of its subsidiaries.
Section
3.14. Security Interest in Collateral. Subject to the terms of the last paragraph of Section 4.01, the Legal Reservations,
the Perfection Requirements, the provisions, limitations and/or exceptions set forth in this Agreement and/or the other relevant Loan
Documents (including the Intercreditor Agreement or any other Acceptable Intercreditor Agreement), the Collateral Documents create legal,
valid and enforceable Liens on all of the Collateral in favor of the Administrative Agent, for the benefit of itself and the other Secured
Parties, and upon the satisfaction of the applicable Perfection Requirements, such Liens constitute perfected Liens (with the priority
such Liens are expressed to have within the relevant Collateral Documents) on the Collateral (to the extent such Liens are required to
be perfected under the terms of the Loan Documents) securing the Secured Obligations, in each case as and to the extent set forth therein.
For the avoidance of doubt, notwithstanding anything herein or in any other Loan Document to the contrary, neither the Borrower nor any
other Loan Party makes any representation or warranty (other than any representation or warranty expressly made in such Loan Document)
as to (A) the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest in any
Capital Stock of any Foreign Subsidiary, or as to the rights and remedies of the Administrative Agent or any Lender with respect thereto,
under foreign Requirements of Law, (B) the enforcement of any security interest, or right or remedy with respect to any Collateral that
may be limited or restricted by, or require any consent, authorization approval or license under, any Requirement of Law, (C) on the
Closing Date and until required pursuant to Section 5.12 or the last paragraph of Section 4.01, as applicable, the pledge or creation
of any security interest, or the effects of perfection or non-perfection, the priority or enforceability of any pledge or security interest
to the extent the same is not required on the Closing Date pursuant to the final paragraph of Section 4.01 or (D) any Excluded Asset.
Section
3.15. Labor Disputes. As of the Closing Date, except as individually or in the aggregate would not reasonably be expected to have
a Material Adverse Effect: (a) there are no strikes, lockouts or slowdowns against the Borrower or any of its Restricted Subsidiaries
pending or, to the knowledge of the Borrower or any of its Restricted Subsidiaries, threatened in writing and (b) the hours worked by
and payments made to employees of the Borrower and its Restricted Subsidiaries have not been in violation of the Fair Labor Standards
Act or any other applicable Federal, state, local or foreign law dealing with such matters.
Section
3.16. Federal Reserve Regulations. No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any purpose that results in a violation of the provisions of
Regulation U and X.
Section
3.17. Sanctions and Anti-Corruption Laws.
(a)
(i) None of Holdings, the Borrower nor any of its Restricted Subsidiaries nor, to the knowledge of the Borrower, any director, officer,
agent, employee or controlled Affiliate of any of the foregoing is a Sanctioned Person; and (ii) the Borrower will not directly or, to
its knowledge, indirectly, use the proceeds of the Loans or otherwise make available such proceeds to any Sanctioned Person, for the
purpose of financing the activities of any Sanctioned Person, or in any Sanctioned Country, or in any other matter, in each case, that
would result in a violation by any Person party to this Agreement of Sanctions.
(b)
Each Loan Party is in compliance with applicable Sanctions in all material respects.
(c)
No part of the proceeds of any Loan or any Letter of Credit will be used, directly or, to the knowledge of the Borrower, indirectly,
for any payments to any governmental official or employee, political party, official of a political party, candidate for political office,
or any other person or entity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the U.S.
Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption law.
ARTICLE
4 CONDITIONS
Section
4.01. Closing Date. The obligations of (i) each Lender to make Loans and (ii) any Issuing Bank to issue Letters of Credit shall
not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a)
Credit Agreement and Loan Documents. The Administrative Agent (or its counsel) shall have received from each Loan Party party
thereto (i) a counterpart signed by each such Loan Party (or written evidence reasonably satisfactory to the Administrative Agent (which
may include a copy transmitted by facsimile or other electronic method) that such party has signed a counterpart) of (A) this Agreement,
(B) the Security Agreement, (C) the Loan Guaranty, (D) the Intercreditor Agreement and (E) any Promissory Note requested by a Lender
at least three Business Days prior to the Closing Date and (ii) a Borrowing Request as required by Section 2.03.
(b)
Legal Opinions. The Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders and each Issuing
Bank on the Closing Date, a customary written opinion of (i) Davis Polk & Wardwell LLP, in its capacity as special New York counsel
for Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings,
the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the Borrower
and the Subsidiary Guarantors.
(c)
Financial Statements and Pro Forma Financial Statements. The Administrative Agent shall have received, (i) (x) audited consolidated
balance sheets of the Target and its consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive
loss, cash flows and stockholders’ equity of the Target and its consolidated subsidiaries for, the three most recently completed
fiscal years ended at least 110 days prior to the Closing Date and (y) an unaudited consolidated balance sheet of the Target and its
consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive loss, cash flows and stockholders’
equity of the Target and its consolidated subsidiaries for, each subsequent fiscal quarter (other than the fourth fiscal quarter of any
fiscal year) of the Target and its consolidated subsidiaries subsequent to the last fiscal year for which financial statements were delivered
pursuant to the preceding clause (x) and ended at least 46 days before the Closing Date (in the case of this clause (y), without footnotes)
and (ii) a unaudited pro forma consolidated balance sheet and related unaudited pro forma consolidated statement of income or operations
of the Target as of, and for the twelve-month period ending on, the last day of the most recently completed four-fiscal quarter period
ended at least 46 days (or 110 days, in case such four-fiscal quarter period is the end of the Target’s fiscal year) prior to the
Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such
balance sheet) or at the beginning of such period (in the case of such statement of income or operations), which need not be prepared
in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting (including
adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, (formerly SFAS 141R))
(it being understood that any purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations
determined by the Borrower). The Administrative Agent hereby acknowledges receipt of the financial statements referred to (i) in clause
(i)(x) above in respect of the fiscal years ended July 29, 2014, June 28, 2015 and July 3, 2016, (ii) in clause (i)(y) above in respect
of the fiscal quarters ended October 2, 2016, January 1, 2017 and April 2, 2017 and (iii) in clause (ii) above in respect of the pro
forma financial statements.
(d)
Closing Certificates; Certified Charters; Good Standing Certificates. The Administrative Agent (or its counsel) shall have received
(i) a certificate of each Loan Party, dated the Closing Date and executed by a secretary, assistant secretary or other senior officer
(as the case may be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written
consents of its shareholders, board of directors, board of managers, members or other governing body authorizing the execution, delivery
and performance of the Loan Documents to which it is a party and, in the case of the Borrower, the borrowings and issuance of Promissory
Notes (if any) hereunder, and that such resolutions or written consents have not been modified, rescinded or amended and are in full
force and effect, (B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories
of such Loan Party authorized to sign the Loan Documents to which it is a party on the Closing Date and (C) certify (x) that attached
thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or
other equivalent thereof) of such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party
and a true and correct copy of its by-laws or operating, management, partnership or similar agreement and (y) that such documents or
agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments
thereto as of such date) and (ii) a good standing (or equivalent) certificate (if applicable) as of a recent date for such Loan Party
from the relevant authority of its jurisdiction of organization.
(e)
Representations and Warranties. (i) The Specified Acquisition Agreement Representations shall be true and correct in all material
respects as of the Closing Date solely to the extent required by the terms of the definition thereof and (ii) the Specified Representations
shall be true and correct in all material respects on and as of the Closing Date; provided that (A) in the case of any Specified
Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material
respects as of the respective date or for the respective period, as the case may be and (B) if any Specified Representation is qualified
by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the
definition thereof shall be the definition of “Closing Date Material Adverse Effect” for purposes of the making or deemed
making of such Specified Representation on, or as of, the Closing Date (or any date prior thereto).
(f)
Fees. Prior to or substantially concurrently with the funding of the Initial Term Loans hereunder, the Administrative Agent shall
have received (i) all fees required to be paid by the Borrower on the Closing Date pursuant to the Fee Letter and (ii) all expenses required
to be paid by the Borrower for which invoices have been presented at least three Business Days prior to the Closing Date (including the
reasonable fees and expenses of legal counsel for the Administrative Agent that are payable under the Commitment Letter entered into
between the Arrangers and the Borrower with respect to the Credit Facilities), in each case on or before the Closing Date, which amounts
may be offset against the proceeds of the Loans or may be paid from the proceeds of the Initial Loans.
(g)
[Reserved.]
(h)
Refinancing. Prior to or substantially concurrently with the initial funding of the Loans hereunder, including by use of proceeds
thereof, the principal, accrued and unpaid interest, fees, premium, if any, and other amounts (other than (x) obligations not then due
and payable or that by their terms survive the termination of the Existing Credit Facilities and (y) the Existing Letters of Credit,
all of which, on the Closing Date will be deemed to be Letters of Credit issued hereunder) under the First Lien Credit Agreement dated
as of September 19, 2016 and the Second Lien Credit Agreement dated as of September 19, 2016 (in each case, as amended, supplemented
or otherwise modified from time to time prior to the Closing Date, the “Existing Credit Facilities”), will be repaid
in full and all commitments to extend credit under the Existing Credit Facilities will be terminated and any security interests and guarantees
in connection therewith shall be terminated and/or released (the “Refinancing”).
(i)
Equity Contribution. Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Equity Contribution
shall have been made substantially in the manner and at least in the amount set forth in the definition of Equity Contribution contained
herein (to the extent not otherwise applied to the Transactions).
(j)
Solvency. The Administrative Agent shall have received a certificate dated as of the Closing Date in substantially the form of
Exhibit M from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Target certifying
as to the matters set forth therein (or, at the option of Holdings, a third party opinion as to the solvency of the Target and its subsidiaries
on a consolidated basis in form and substance reasonably satisfactory to the Lead Arrangers issued by a nationally recognized firm reasonably
acceptable to the Lead Arrangers).
(k)
Perfection Certificate. Subject to the last paragraph of this Section 4.01, the Administrative Agent shall have received
a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of each Loan Party, together with all attachments
contemplated thereby.
(l)
Pledged Stock; Stock Powers; Pledged Notes. Subject to the last paragraph of this Section 4.01, the Administrative Agent
(or its bailee) shall have received (i) the certificates representing the Capital Stock required to be pledged pursuant to the Security
Agreement, together with an undated stock or similar power for each such certificate executed in blank by a duly authorized officer of
the pledgor thereof and (ii) each Material Debt Instrument (if any) required to be pledged pursuant to the Security Agreement endorsed
(without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(m) Filings
Registrations and Recordings. Subject to the last paragraph of this Section 4.01, each document (including any UCC
financing statement) required by any Collateral Document or under law to be filed, registered or recorded in order to create in
favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be
delivered pursuant to such Collateral Document, shall be in proper form for filing, registration or recordation.
(n)
Transactions. Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Acquisition shall be
consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications,
amendments, consents or waivers thereto, other than those modifications, amendments, consents or waivers by Merger Sub 1 or its Affiliates
that are materially adverse to the interests of the Lenders in their capacities as such, unless consented to in writing by the Arrangers
(such consent not to be unreasonably withheld, delayed or conditioned); it being understood and agreed that (a) any changes to, or waivers,
consents or approvals by Merger Sub 1 or its Affiliates in respect of, the definition of Closing Date Material Adverse Effect shall be
deemed materially adverse, (b) any reduction in the purchase price of less than 10% or in accordance with the Acquisition Agreement (including
pursuant to any working capital or purchase price adjustment provision set forth in the Acquisition Agreement) shall be deemed not to
be materially adverse, (c) any other reduction in the purchase price shall be deemed not to be materially adverse so long as such decrease
is allocated first to reduce the Equity Contribution to the Minimum Equity Percentage, with any excess then allocated to reduce the Equity
Contribution, the principal amount of the Term Loans and the second lien term loans under the Second Lien Facility on a pro rata, dollar-for-dollar
basis and (d) any increase in the purchase price shall be deemed not to be materially adverse so long as such increase is funded by an
increase in the Equity Contribution or amounts available to be drawn under the Revolving Facility on the Closing Date or such increase
is pursuant to any working capital or purchase price (or similar) adjustment provision set forth in the Acquisition Agreement.
(o)
Closing Date Material Adverse Effect. Since June 6, 2017, there shall have not been an event, change, effect or circumstance that,
individually or in the aggregate has had, or that would reasonably be expected to result in, a Closing Date Material Adverse Effect.
(p)
USA PATRIOT Act. No later than three Business Days in advance of the Closing Date, the Administrative Agent shall have received
all documentation and other information reasonably requested in writing by the Administrative Agent with respect to any Loan Party at
least ten Business Days in advance of the Closing Date, which documentation or other information is required by U.S. regulatory authorities
under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
For
purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding
the Loans hereunder, the Administrative Agent and each Lender that has executed this Agreement (or an Assignment and Assumption on the
Closing Date) shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required
hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may
be.
Notwithstanding
the foregoing, to the extent any Lien search or Collateral (including the creation or perfection of any security interest) is not or
cannot be provided on the Closing Date (other than, (i) a Lien on Collateral of any Loan Party that may be perfected by the filing of
a financing statement under the UCC (without need for any other action) and (ii) a pledge of the Capital Stock of the Borrower, the Subsidiary
Guarantors and each other wholly-owned Material Domestic Restricted Subsidiary to the extent certificated with respect to which a Lien
may be perfected on the Closing Date by the delivery of a stock or equivalent certificate, together with a related stock or equivalent
power executed in blank) after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense (and
with respect to the delivery of stock or equivalent certificates of relevant subsidiaries of the Target whose Capital Stock is required
to be pledged pursuant to the Security Agreement, only to the extent received after the Borrower’s use of commercially reasonable
efforts to do so), then the provision of any such Lien search and/or the provision and/or perfection of such Collateral shall not constitute
a condition precedent to the availability and initial funding of the Loans on the Closing Date but may, if required, instead be delivered
and/or perfected 90 days after the Closing Date pursuant to arrangements to be mutually agreed between the Borrower and the Administrative
Agent and subject to extensions as are reasonably agreed by the Administrative Agent.
Section
4.02. Each Credit Extension. After the Closing Date, the obligation of each Revolving Lender to make a Credit Extension (which,
for the avoidance of doubt (including for purposes of the last paragraph of this Section 4.02), shall not include (A) any Incremental
Loans advanced in connection with any acquisition, other Investment or irrevocable repayment or redemption of Indebtedness and/or (B)
any Credit Extension under any Incremental Facility Amendment, Refinancing Amendment and/or Extension Amendment, in each case to the
extent not otherwise required by the lenders in respect of thereof) is subject to the satisfaction of the following conditions:
(a)
(i) In the case of a Borrowing, the Administrative Agent shall have received a Borrowing Request as required by Section 2.03,
(ii) in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received
a notice requesting the issuance of such Letter of Credit as required by Section 2.05(b) or (iii) in the case of a Borrowing of
Swingline Loans, the Swingline Lender and the Administrative Agent shall have received a request as required by Section 2.04(a).
(b)
The representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct
in all material respects on and as of the date of any such Credit Extension with the same effect as though such representations and warranties
had been made on and as of the date of such Credit Extension; provided that to the extent that any representation and warranty
specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period.
(c)
At the time of and immediately after giving effect to the applicable Credit Extension, no Event of Default or Default shall have occurred
and be continuing.
Each
Credit Extension after the Closing Date shall be deemed to constitute a representation and warranty by the Borrower on the date thereof
as to the matters specified in paragraphs (b) and (c) of this Section.
ARTICLE
5 AFFIRMATIVE COVENANTS
From
the Closing Date until the date that all the Revolving Credit Commitments and all other Commitments have expired or terminated and the
principal of and interest on each Loan and all fees, expenses and other Obligations payable under any Loan Document (other than contingent
indemnification obligations for which no claim or demand has been made) have been paid in full in Cash and all Letters of Credit have
expired or have been terminated (or have been (x) collateralized or back-stopped by a letter of credit or otherwise in a manner reasonably
satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing Banks or (y) deemed reissued under another agreement
in a manner reasonably satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing Banks) and all LC Disbursements
have been reimbursed (such date, the “Termination Date”), Holdings (solely with respect to Sections 5.02 and
5.03) and the Borrower hereby covenant and agree with the Lenders that:
Section
5.01. Financial Statements and Other Reports. The Borrower will deliver to the Administrative Agent for delivery by the Administrative
Agent to each Lender:
(a)
Quarterly Financial Statements. As soon as available, and in any event within 45 days (or 90 days in the case of the first Fiscal
Quarter ending after the Closing Date and 75 days in the case of the second and third Fiscal Quarters ending after the Closing Date)
after the end of each of the first three Fiscal Quarters of each Fiscal Year, commencing with the Fiscal Quarter ending on or about September
30, 2017, (i) the unaudited consolidated balance sheet of Holdings as at the end of such Fiscal Quarter and the related unaudited consolidated
statements of income and cash flows of Holdings for such Fiscal Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter and setting forth, in reasonable detail, in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year, all in reasonable detail, together with a Responsible Officer Certification (which
may be included in the applicable Compliance Certificate) with respect thereto and (ii) a Narrative Report; provided that such
financial statements shall only be required to reflect Holdings’ good faith estimate of any purchase accounting adjustments relating
to (A) the Acquisition for any Fiscal Quarter prior to on or about June 30, 2018 and (B) any acquisition consummated after the Closing
Date until the Fiscal Quarter ending on or about June 30 of the Fiscal Year following the Fiscal Year in which the relevant acquisition
was consummated;
(b)
Annual Financial Statements. As soon as available, and in any event within 120 days (or, in the case of the Fiscal Year ending
on or about June 30, 2017, 150 days) after the end of each Fiscal Year ending after the Closing Date, (i) the consolidated balance sheet
of Holdings as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash
flows of Holdings for such Fiscal Year and, commencing after the completion of the second full Fiscal Year ended after the Closing Date,
setting forth, in reasonable detail, in comparative form the corresponding figures for the previous Fiscal Year and (ii) with respect
to such consolidated financial statements, (A) a report thereon of an independent certified public accountant of recognized national
standing or another accounting firm reasonably acceptable to the Administrative Agent (which report shall be unqualified as to “going
concern” and scope of audit (except for any such qualification pertaining to, or disclosure of an exception or qualification resulting
from, the maturity (or impending maturity) of any Credit Facility, any Second Lien Facility or any other Indebtedness occurring within
one year of the date of delivery of the relevant audit opinion, any breach or anticipated breach of any financial covenant or the activities,
operations, financial results, assets or liabilities of any Unrestricted Subsidiary), and shall state that such consolidated financial
statements fairly present, in all material respects, the consolidated financial position of Holdings as at the dates indicated and its
income and cash flows for the periods indicated in conformity with GAAP and (B) a Narrative Report;
(c)
Compliance Certificate; Unrestricted Subsidiaries. (i) Within 5 Business Days after the delivery of financial statements of Holdings
pursuant to Section 5.01(a) or 5.01(b) with respect to any Fiscal Quarter or Fiscal Year, as applicable, a duly executed
and completed Compliance Certificate and (ii) within 5 Business Days after the delivery of financial statements of Holdings pursuant
to Section 5.01(b), (A) a summary (which may be in footnote form) of the pro forma adjustments necessary to eliminate the accounts
of Unrestricted Subsidiaries (if any) from such financial statements and (B) a list identifying each subsidiary of the Borrower as a
Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such financial statements or confirming that there
is no change in such information since the later of the Closing Date and the most recent prior delivery of such information;
(d)
[Reserved];
(e)
Notice of Default or Event of Default. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) any Default
or Event of Default or (ii) the occurrence of any event or change that has caused or evidences or would reasonably be expected to cause
or evidence, either in any case or in the aggregate, a Material Adverse Effect, a reasonably detailed notice specifying the nature and
period of existence of such condition, event or change and what action the Borrower has taken, is taking and proposes to take with respect
thereto;
(f)
Notice of Litigation. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) the institution of any
Adverse Proceeding not previously disclosed in writing by the Borrower to the Administrative Agent or (ii) any material development in
any Adverse Proceeding that, in the case of either clauses (i) or (ii), would reasonably be expected to have a Material Adverse Effect,
written notice thereof by the Borrower together with such other non-privileged information as may be reasonably available to the Loan
Parties to enable the Lenders to evaluate such matters;
(g)
ERISA. Promptly upon any Responsible Officer of the Borrower becoming aware of the occurrence of any ERISA Event that would reasonably
be expected to have a Material Adverse Effect, a written notice specifying the nature thereof;
(h)
Financial Plan. Prior to a Qualifying IPO, together with the delivery of financial statements of the Borrower pursuant to Section
5.01(b) with respect to any Fiscal Year, commencing with the Fiscal Year ending on or about June 30, 2018, an operating budget for
the next Fiscal Year in a form as customarily prepared by management of the Borrower for its internal use or such other form as the Borrower
and Administrative Agent may reasonably agree;
(i)
Information Regarding Collateral. Promptly (and, in any event, within 45 days of the relevant change or such later date as the
Administrative Agent may agree) written notice of any change (i) in any Loan Party’s legal name, (ii) in any Loan Party’s
type of organization, (iii) in any Loan Party’s jurisdiction of organization or (iv) in any Loan Party’s organizational identification
number, in each case to the extent such information is necessary to enable the Administrative Agent to perfect or maintain the perfection
and priority of its security interest in the Collateral of the relevant Loan Party, together with certified copies of the applicable
Organizational Documents reflecting the relevant change;
(j)
Certain Reports. Promptly upon their becoming publicly available and without duplication of any obligations with respect to any
such information that is otherwise required to be delivered under the provisions of any Loan Document, copies of (i) following a Qualifying
IPO, all financial statements, material reports, material notices and proxy statements sent or made available generally by Holdings to
its security holders acting in such capacity and (ii) all material regular and periodic reports and all material registration statements
(other than on Form S-8 or a similar form) and prospectuses, if any, filed by the Borrower or any of its Restricted Subsidiaries with
any securities exchange or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters
relating to securities (other than amendments to any registration statement (to the extent such registration statement, in the form it
became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S-8 or
a similar form); provided that no such delivery shall be required hereunder with respect to any of the foregoing to the extent that such
are publicly available via EDGAR; and
(k)
Other Information. Such other certificates, reports and information (financial or otherwise) as the Administrative Agent may reasonably
request from time to time regarding the financial condition or business of the Borrower and its Restricted Subsidiaries; provided, however,
that none of Holdings, the Borrower or any Restricted Subsidiary shall be required to disclose or provide any information (i) that constitutes
non-financial trade secrets or non-financial proprietary information of Holdings, the Borrower or any of its subsidiaries or any of their
respective customers and/or suppliers, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or any of their
respective representatives) is prohibited by any applicable Requirement of Law, (iii) that is subject to attorney-client or similar privilege
or constitutes attorney work product or (iv) in respect of which Holdings, the Borrower or any Restricted Subsidiary owes confidentiality
obligations to any third party (provided such confidentiality obligations were not entered into solely in contemplation of the requirements
of this Section 5.01(k)); provided, further, that in the event the Borrower does not provide any certificate, report or
information requested pursuant to this clause (k) in reliance on the preceding proviso, the Borrower shall provide notice to the
Administrative Agent that such certificate, report or information is being withheld and the Borrower shall use commercially reasonable
efforts to describe, to the extent both feasible and permitted under applicable Requirements of Law or confidentiality obligations, or
without waiving such privilege, as applicable, the applicable certificate, report or information.
Documents
required to be delivered pursuant to this Section 5.01 may be delivered electronically and, if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower (or a representative thereof) (x) posts such documents or (y) provides a link
thereto at the website address listed on Schedule 9.01 (as updated from time to time); provided that, other than with respect
to items required to be delivered pursuant to Section 5.01(j) above, the Borrower shall promptly notify (which notice may be by
facsimile or electronic mail) the Administrative Agent of the posting of any such documents on such website and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such documents; (ii) on which such documents are delivered by the
Borrower to the Administrative Agent for posting on behalf of the Borrower on IntraLinks, SyndTrak or another relevant website, if any,
to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); (iii) on which such documents are faxed to the Administrative Agent (or electronically mailed to an address provided
by the Administrative Agent); or (iv) in respect of the items required to be delivered pursuant to Section 5.01(j) above in respect
of information filed by Holdings, the Borrower or any of its Restricted Subsidiaries with any securities exchange or with the SEC or
any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (other than Form 10-Q
Reports and Form 10-K Reports), on which such items have been made available on the SEC website or the website of the relevant analogous
governmental or private regulatory authority or securities exchange.
Notwithstanding
the foregoing, the obligations in paragraphs (a), (b) and (h) of this Section 5.01 may be satisfied with respect
to any financial statements of Holdings by furnishing (A) the applicable financial statements of the Borrower (or any Parent Company)
or (B) the Borrower’s (or any Parent Company’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC or any
securities exchange, in each case, within the time periods specified in such paragraphs; provided that, with respect to each of
clauses (A) and (B), (i) to the extent such financial statements relate to any Parent Company, such financial statements
shall be accompanied by consolidating information (which consolidating information need not be audited) that summarizes in reasonable
detail the differences between the information relating to such Parent Company, on the one hand, and the information relating to the
Borrower or Holdings on a standalone basis, on the other hand, which consolidating information shall be certified by a Responsible Officer
of Holdings as having been fairly presented in all material respects and (ii) to the extent such statements are in lieu of statements
required to be provided under Section 5.01(b), such statements shall be accompanied by a report and opinion of an independent
registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative
Agent, which report and opinion shall satisfy the applicable requirements set forth in Section 5.01(b) as if the references to
“Holdings” or “the Borrower” (as applicable) therein were references to such Parent Company.
No
financial statement required to be delivered pursuant to Section 5.01(a) or (b) shall be required to include acquisition
accounting adjustments relating to the Transactions or any Permitted Acquisition or other Investment to the extent it is not practicable
to include any such adjustments in such financial statement.
Section
5.02. Existence. Except as otherwise permitted under Section 6.07 or as a result of the consummation of a Permitted Reorganization
or the consummation of a Holdings Reorganization Transaction, Holdings and the Borrower will, and the Borrower will cause each of its
Restricted Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights, franchises, licenses
and permits material to its business except, other than with respect to the preservation of the existence of the Borrower, to the extent
that the failure to do so would not reasonably be expected to result in a Material Adverse Effect; provided that neither Holdings
nor the Borrower nor any of the Borrower’s Restricted Subsidiaries shall be required to preserve any such existence (other than
with respect to the preservation of existence of the Borrower, except as otherwise permitted under Section 6.07 or as a result
of the consummation of a Permitted Reorganization), right, franchise, license or permit if a Responsible Officer of such Person or such
Person’s board of directors (or similar governing body) determines that the preservation thereof is no longer desirable in the
conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to
the Lenders.
Section
5.03. Payment of Taxes. Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, pay
all Taxes imposed upon it or any of its properties or assets or in respect of any of its income or businesses or franchises before any
penalty or fine accrues thereon; provided that no such Tax need be paid if (a) it is being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, so long as (i) adequate reserves or other appropriate provisions, as are required
in conformity with GAAP, have been made therefor and (ii) in the case of a Tax which has or may become a Lien against a material portion
of the Collateral, such contest proceedings conclusively operate to stay the sale of such portion of the Collateral to satisfy such Tax
or (b) failure to pay or discharge the same would not reasonably be expected to result in a Material Adverse Effect.
Section
5.04. Maintenance of Properties. The Borrower will, and will cause each of its Restricted Subsidiaries to, maintain or cause to
be maintained in good repair, working order and condition, ordinary wear and tear and casualty and condemnation excepted, all material
tangible property reasonably necessary to the normal conduct of business of the Borrower and its Restricted Subsidiaries and from time
to time will make or cause to be made all needed and appropriate repairs, renewals and replacements thereof except as expressly permitted
by this Agreement or where the failure to maintain such tangible properties or make such repairs, renewals or replacements would not
reasonably be expected to have a Material Adverse Effect.
Section
5.05. Insurance. Except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, the Borrower
will maintain or cause to be maintained, in each case, as determined by the Borrower in good faith, with financially sound and reputable
insurers, such insurance coverage with respect to liabilities, losses or damage in respect of the assets, properties and businesses of
the Borrower and its Restricted Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to self-insurance), with such deductibles, covering
such risks and otherwise on such terms and conditions as shall be customary for such Persons, including, but only if required by applicable
law or regulation, flood insurance with respect to each Flood Hazard Property, in each case in compliance with applicable Flood Insurance
Laws, in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing
or interpreting any of the foregoing, as amended or modified from time to time. Each such policy of insurance shall (i) name the Administrative
Agent on behalf of the Secured Parties as a loss payee and mortgagee or an additional insured, as applicable, thereunder as its interests
may appear and (ii) to the extent available from the relevant insurance carrier, in the case of each casualty insurance policy (excluding
any business interruption insurance policy), contain a loss payable clause or endorsement that names the Administrative Agent, on behalf
of the Secured Parties, as the loss payee thereunder and, to the extent available, provide for at least 30 days’ prior written
notice to the Administrative Agent of any modification or cancellation of such policy (or 10 days’ prior written notice in the
case of the failure to pay any premiums thereunder); provided that the Borrower shall have 45 days after the Closing Date (or
such later date as agreed by the Administrative Agent) to comply with the requirements of the foregoing clauses (i) and (ii) with respect
to policies in effect on the Closing Date.
Section
5.06. Inspections. The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any authorized representative
designated by the Administrative Agent to visit and inspect any of the properties of the Borrower and any of its Restricted Subsidiaries
at which the principal financial records and executive officers of the applicable Person are located, to inspect, copy and take extracts
from its and their respective financial and accounting records, and to discuss its and their respective affairs, finances and accounts
with its and their Responsible Officers and independent public accountants (subject to such accountants’ customary policies and
procedures) (provided that the Borrower (or any of its subsidiaries) may, if it so chooses, be present at or participate in any
such discussion), all upon reasonable notice and at reasonable times during normal business hours; provided that (x) only the
Administrative Agent on behalf of the Lenders may exercise the rights of the Administrative Agent and the Lenders under this Section
5.06, (y) the Administrative Agent shall not exercise such rights more often than one time during any calendar year and (z) only
one such time per calendar year shall be at the expense of the Borrower; provided, further, that when an Event of Default exists,
the Administrative Agent (or any of its representatives or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and upon reasonable advance notice; provided, further that notwithstanding
anything to the contrary herein, neither the Borrower nor any Restricted Subsidiary shall be required to disclose, permit the inspection,
examination or making of copies of or taking abstracts from, or discuss any document, information or other matter (i) that constitutes
non-financial trade secrets or non-financial proprietary information of the Borrower and its subsidiaries and/or any of its customers
and/or suppliers, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives
or contractors) is prohibited by applicable law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney
work product or (iv) in respect of which Holdings, the Borrower or any Restricted Subsidiary owes confidentiality obligations to any
third party (provided such confidentiality obligations were not entered into solely in contemplation of the requirements of this Section
5.06); provided, further, that in the event any of the circumstances described in the preceding proviso exist, the Borrower
shall provide notice to the Administrative Agent thereof and shall use commercially reasonable efforts to describe, to the extent both
feasible and permitted under applicable Requirements of Law or confidentiality obligations, or without waiving such privilege, as applicable,
the applicable document, information or other matter.
Section
5.07. Maintenance of Book and Records. The Borrower will, and will cause its Restricted Subsidiaries to, maintain proper books
of record and account containing entries of all material financial transactions and matters involving the assets and business of the
Borrower and its Restricted Subsidiaries that are full, true and correct in all material respects and permit the preparation of consolidated
financial statements in accordance with GAAP.
Section
5.08. Compliance with Laws. The Borrower will comply, and will cause each of its Restricted Subsidiaries to comply, with the requirements
of all applicable laws, rules, regulations and orders of any Governmental Authority (including ERISA and all Environmental Laws, Sanctions
and the U.S. Foreign Corrupt Practices Act of 1977), except to the extent the failure of the Borrower or the relevant Restricted Subsidiary
to comply would not reasonably be expected to have a Material Adverse Effect.
Section
5.09. Hazardous Materials Activity.
(a)
The Borrower will deliver to the Administrative Agent:
(i)
reasonably promptly following receipt by Borrower thereof, copies of all written environmental audits, investigations, analyses and reports
of any kind or character, whether prepared by personnel of the Borrower or any of its Restricted Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to any Environmental Liabilities or Hazardous Materials Activity that, in
each case could reasonably be expected to have a Material Adverse Effect;
(ii)
reasonably promptly following Borrower becoming aware of the occurrence thereof, written notice describing in reasonable detail (A) any
Release required to be reported by the Borrower or any of its Restricted Subsidiaries to any federal, state or local governmental or
regulatory agency under any applicable Environmental Law, (B) any remedial action taken by or on behalf of the Borrower or any of its
Restricted Subsidiaries in response to any Hazardous Materials Activity or Environmental Claim, or (C) any pending or threatened Environmental
Claim, that in the case of each of (A), (B) and (C) above, would reasonably be expected to have a Material Adverse Effect; and
(iii)
reasonably promptly following the sending or receipt thereof by the Borrower or any of its Restricted Subsidiaries, a copy of any and
all written communications with respect to any Release required to be reported by the Borrower or any of its Restricted Subsidiaries
to any federal, state or local governmental or regulatory agency or any Release required to be remediated pursuant to any Environmental
Law, that in each case would reasonably be expected to have a Material Adverse Effect.
(b)
The Borrower shall reasonably promptly take, and shall cause each of its Restricted Subsidiaries reasonably promptly to take, any
and all actions reasonably necessary to (i) cure any violation of Environmental Law by the Borrower or any of its Restricted
Subsidiaries, and, to the extent required by Environmental Law, address with appropriate corrective or remedial action any Release
or threatened Release of any Hazardous Material at or from any Facility, that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect and (ii) make an appropriate response to any Environmental Claim against the Borrower or
any of its Restricted Subsidiaries and discharge any obligations it may have to any Person thereunder, where failure to do so could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; provided that it shall not be
deemed to be a violation of this Section 5.09 if the Borrower or its Restricted Subsidiaries are in good faith contesting
such violation or Environmental Claim in accordance with applicable Environmental Law.
Section
5.10. Designation of Subsidiaries. The Borrower may at any time after the Closing Date designate (or re-designate) any subsidiary
as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) no subsidiary may be
designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of the Second Lien Credit Agreement
and (ii) as of the date of the designation thereof, no Unrestricted Subsidiary shall own any Capital Stock in any Restricted Subsidiary
of the Borrower (unless such Restricted Subsidiary is also designated as an Unrestricted Subsidiary simultaneously with the aforementioned
designation in accordance with the terms of this Section 5.10) or hold any Indebtedness of or any Lien on any property of the
Borrower or its Restricted Subsidiaries (unless the Borrower or such Restricted Subsidiary is permitted hereunder to incur such Indebtedness
or grant such Lien in favor of such Unrestricted Subsidiary). The designation of any subsidiary as an Unrestricted Subsidiary shall constitute
an Investment by the Borrower therein at the date of designation in an amount equal to the portion of the fair market value of the net
assets of such Restricted Subsidiary attributable to the Borrower’s equity interest therein as estimated by the Borrower in good
faith (and such designation shall only be permitted to the extent such Investment is permitted under Section 6.06). The designation
of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence or making, as applicable, at the time of designation
of any then-existing Investment, Indebtedness or Lien of such Restricted Subsidiary, as applicable; provided that upon a re-designation
of any Unrestricted Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have an Investment in the resulting
Restricted Subsidiary in an amount (if positive) equal to (a) the Borrower’s “Investment” in such Restricted Subsidiary
at the time of such re-designation less (b) the portion of the fair market value of the net assets of such Restricted Subsidiary attributable
to the Borrower’s equity therein at the time of such re-designation. As of the Closing Date, the subsidiaries listed on Schedule
5.10 hereto have been designated as Unrestricted Subsidiaries.
Section
5.11. Use of Proceeds. The Borrower shall use the proceeds of the Revolving Loans (a) on the Closing Date, (i) to replace,
backstop or cash collateralize Existing Letters of Credit, guarantees or performance or similar bonds or to issue Letters of Credit
and (ii) in an aggregate principal amount of up to $15,000,000 to pay Transaction Costs and expenses and for purchase price and
working capital adjustments, if any, under the Acquisition Agreement and to provide for ordinary course working capital needs and
general corporate purposes and (b) after the Closing Date, to finance the working capital needs and other general corporate purposes
of the Borrower and its subsidiaries (including for capital expenditures, acquisitions, working capital and/or purchase price
adjustments, the payment of transaction fees and expenses (in each case, including in connection with the Acquisition), other
Investments, Restricted Payments, Restricted Debt Payments and any other purpose not prohibited by the terms of the Loan Documents).
The Borrower shall use the proceeds of the Swingline Loans made after the Closing Date to finance the working capital needs and
other general corporate purposes of the Borrower and its subsidiaries and any other purpose not prohibited by the terms of the Loan
Documents. The Borrower shall use the proceeds of the Initial Term Loans (i) to effect all or a portion of the Refinancing, (ii) to
finance all or a portion of the Transactions and,
the Amendment No. 1 Transactions (including working capital and/or purchase price adjustments and the payment of Transaction Costs)
and (iii) for general corporate purposes. The Borrower shall use the
proceeds of the Amendment No. 2 Term Loans (x) to repay the Existing Term Loans (as defined in Amendment No. 2) and for the payment
of fees and expenses in connection therewith, together with the accrued and unpaid interest thereon, (y) to finance all or a portion
of the Amendment No. 2 Transactions (including the payment of Transaction Costs) and (z) for general corporate purposes.
No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that would entail a violation of
Regulation U. The Borrower shall use the proceeds of the Incremental Term Loans for working capital, capital expenditures and other
general corporate purposes of the Borrower and its subsidiaries (and, in the case of the Amendment No. 1 Incremental Term Loans and
the Amendment No. 2 Term Loans, to finance all or a portion of the Amendment No. 1 Transactions and
the Amendment No. 2 Transactions, as applicable) (including for Restricted Payments, Investments, Permitted Acquisitions
and any other purpose not prohibited by the terms of the Loan Documents).
Section
5.12. Covenant to Guarantee Obligations and Give Security.
(a)
Upon (i) the formation or acquisition after the Closing Date of any Restricted Subsidiary that is a Domestic Subsidiary (subject to Section
6.06(hh)), (ii) the designation of any Unrestricted Subsidiary that is a Domestic Subsidiary as a Restricted Subsidiary, (iii) any Restricted
Subsidiary that is a Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary ceasing to be an Excluded
Subsidiary (including by election of the Borrower as set forth herein), (x) if the event giving rise to the obligation under this Section
5.12(a) occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the date on which financial statements are
required to be delivered pursuant to Section 5.01(a) for the Fiscal Quarter in which the relevant formation, acquisition, designation
or cessation occurred or (y) if the event giving rise to the obligation under this Section 5.12(a) occurs during the fourth Fiscal
Quarter of any Fiscal Year, on or before the date that is 60 days after the end of such Fiscal Quarter (or, in the cases of clauses
(x) and (y), such longer period as the Administrative Agent may reasonably agree), the Borrower shall (A) cause such Restricted
Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in clause (a) of the definition of “Collateral
and Guarantee Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary
(other than any Excluded Subsidiary) to deliver to the Administrative Agent a signed copy of a customary opinion of counsel for such
Restricted Subsidiary, addressed to the Administrative Agent and the other relevant Secured Parties.
(b)
Within 120 days (or such longer period as the Administrative Agent may reasonably agree) after the acquisition by any Loan Party of any
Material Real Estate Asset, other than any Excluded Asset, the Borrower shall cause such Loan Party to comply with the requirements set
forth in clause (b) of the definition of “Collateral and Guarantee Requirement”; it being understood and agreed that,
with respect to any Material Real Estate Asset (other than any Excluded Asset) owned by any Restricted Subsidiary at the time such Restricted
Subsidiary is required to become a Loan Party under Section 5.12(a) above, such Material Real Estate Asset shall be deemed to
have been acquired by such Restricted Subsidiary on the first day of the time period within which such Restricted Subsidiary is required
to become a Loan Party under Section 5.12(a).
Notwithstanding
anything to the contrary herein or in any other Loan Document, (i) the Administrative Agent may grant extensions of time (including after
the expiration of any relevant period, which apply retroactively) for the creation and perfection of security interests in, or obtaining
of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guaranty
by any Restricted Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date),
and each Lender hereby consents to any such extension of time, (ii) any Lien required to be granted from time to time pursuant to the
definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations set forth in the
Collateral Documents, (iii) perfection by control shall not be required with respect to assets requiring perfection through control agreements
or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than control of pledged
Capital Stock and/or Material Debt Instruments, in each case, that constitute Collateral) and no blocked account agreement, account control
agreement or similar agreement shall be required, (iv) no Loan Party shall be required to seek any landlord waiver, bailee letter, estoppel,
warehouseman waiver or other collateral access or similar letter or agreement, (v) no Loan Party will be required to (1) take any action
outside of the United States or grant or perfect any security interest in any asset located outside of the U.S. or conduct any foreign
lien search, (2) execute any foreign law guarantee, security agreement, pledge agreement, mortgage, deed or charge or (3) make any foreign
intellectual property filing, conduct any foreign intellectual property search or prepare any foreign intellectual property schedule
with respect to any assets of any Loan Party or enter into any source code escrow arrangement or register any intellectual property,
(vi) in no event will the Collateral include any Excluded Assets, (vii) no action shall be required to perfect any Lien with respect
to (x) any vehicle or other asset subject to a certificate of title, or any retention of title, extended retention of title rights, or
similar rights and/or (y) Letter-of-Credit Rights, in each case to the extent that a security interest therein cannot be perfected by
filing a Form UCC-1 (or similar) “all assets” financing statement without the requirement to list any VIN, serial or other
number and (viii) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in,
those assets as to which the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party
to conduct its operations and business in the ordinary course of business) of obtaining or perfecting such Lien (including any mortgage,
stamp, intangibles or other tax or expenses relating to such Lien) outweighs the benefit to the Lenders of the security afforded thereby
as reasonably determined by the Borrower and the Administrative Agent; provided that the foregoing shall not apply and shall not operate
to limit the obligation of the Loan Parties to provide security in foreign jurisdictions (subject to “agreed security principles”
to be negotiated in good faith between the Borrower and the Administrative Agent) if a Foreign Subsidiary becomes a Guarantor.
Additionally,
(i) no action shall be required to create or perfect a Lien in any asset in respect of which the creation or perfection of a security
interest therein would (1) be prohibited by enforceable anti-assignment provisions set forth in any contract that is permitted or otherwise
not prohibited by the terms of this Agreement, (2) violate the terms of any contract relating to such asset that is permitted or otherwise
not prohibited by the terms of this Agreement, in each case, after giving effect to the applicable anti- assignment provisions of the
UCC or other applicable law or (3) trigger termination of any contract relating to such asset that is permitted or otherwise not prohibited
by the terms of this Agreement pursuant to any “change of control” or similar provision, it being understood that the Collateral
shall include any proceeds and/or receivables arising out of any contract described in this clause (other than Excluded Assets) to the
extent the assignment of such proceeds or receivables is expressly deemed effective under the UCC or other applicable Requirements of
Law notwithstanding the relevant prohibition, violation or termination right, (ii) no Loan Party shall be required to create or perfect
a security interest in any asset to the extent the creation or perfection of a security interest in such asset would (A) be prohibited
under any applicable Requirement of Law, after giving effect to any applicable anti-assignment provision of the UCC or other applicable
law and other than proceeds thereof (other than Excluded Assets) to the extent that the assignment of such proceeds is effective under
the UCC or other applicable Requirements of Law notwithstanding such Requirement of Law, (B) require any governmental consent, approval,
license or authorization (unless such consent, approval, license or authorization has been obtained), after giving effect to any applicable
anti-assignment provision of the UCC or other applicable law and other than proceeds thereof (other than Excluded Assets) to the extent
that the assignment of such proceeds is effective under the UCC or other applicable Requirements of Law notwithstanding such consent
or restriction and/or (C) result in adverse tax consequences or adverse regulatory consequences to any Loan Party or any of its subsidiaries
or Parent Companies as determined by the Borrower in good faith following consultation with the Administrative Agent, (iii) any joinder
or supplement to any Loan Guaranty, any Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that
is required to become a Loan Party pursuant to Section 5.12(a) above may, with the consent of the Administrative Agent (not to
be unreasonably withheld or delayed), include such schedules (or updates to schedules) as may be necessary to qualify any representation
or warranty set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is true and correct
to the extent required thereby or by the terms of any other Loan Document; and (iv) (A) no Loan Party will be required to take any action
required under the Federal Assignment of Claims Act or any similar law and (B) no Secured Party will be permitted to exercise any right
of setoff in respect of any account maintained solely for the purpose of receiving and holding government receivables.
Section
5.13. Maintenance of Ratings. The Borrower shall use commercially reasonable efforts to maintain public corporate credit facility
and public corporate family ratings in respect of Holdings from each of S&P and Moody’s; provided that in no event shall
the Borrower be required to maintain any specific rating with any such agency.
Section
5.14. Maintenance of Fiscal Year. The Borrower shall maintain its Fiscal Year-end as in effect on the Closing Date; provided that
the Borrower may, upon written notice to the Administrative Agent, change its Fiscal Year-end to another date, in which case the Borrower
and the Administrative Agent will, and are hereby authorized to (without requiring the consent of any other Person, including any Lender),
make any adjustments to this Agreement that are necessary to reflect such change in Fiscal Year.
Section
5.15. Further Assurances. Promptly upon reasonable request of the Administrative Agent and subject to the limitations described
in Section 5.12:
(a)
The Borrower will, and will cause each other Loan Party to, execute any and all further documents, financing statements, agreements,
instruments, certificates, notices and acknowledgments and take all such further actions (including the filing and recordation of financing
statements, fixture filings, Mortgages and/or amendments thereto and other documents), that may be required under any applicable law
and which the Administrative Agent may reasonably request to ensure the perfection and priority of the Liens created or intended to be
created under the Collateral Documents, all at the expense of the relevant Loan Parties. For the avoidance of doubt, in no event shall
any (x) Excluded Property or (y) property subject to a Sale and Lease-Back Transaction permitted hereunder be required to be made subject
to the Collateral Documents.
(b)
The Borrower will, and will cause each other Loan Party to, (i) correct any material defect or error that may be discovered in the execution,
acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral and (ii)
do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts (including
notices to third parties), deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from
time to time in order to ensure the creation and perfection of the Liens created under the Collateral Documents.
Section
5.16. Conduct of Business. The Borrower and its Restricted Subsidiaries shall engage only in those material lines of business
that consist of (a) the businesses engaged in by the Borrower or any Restricted Subsidiary on the Closing Date, reasonably related, similar,
incidental, complementary, ancillary, corollary, synergistic or related businesses or reasonable extensions, development or expansion
(or proposed to be engaged) of such businesses (including entertainment and amusement media and content business in connection therewith)
and (b) such other lines of business to which the Administrative Agent may consent.
Section
5.17. Annual Lender Call. Upon the request of the Administrative Agent following each delivery of financial statements pursuant
to Section 5.01(b) (commencing with respect to the financial statements delivered for the Fiscal Year ending on or about June
30, 2018), the Borrower shall participate in a conference call with Lenders arranged by the Administrative Agent to provide discussion
and analysis with respect to the financial condition and results of operations of the Borrower and its Restricted Subsidiaries at a time
at which the Borrower and the Administrative Agent mutually agree.
Section
5.18. Post-Closing Actions. Take the actions set forth on Schedule 5.18 within the time periods specified thereon (or by
such later time as the Administrative Agent may reasonably agree).
ARTICLE
6 NEGATIVE COVENANTS
From
the Closing Date and until the Termination Date has occurred, Holdings (solely with respect to Section 6.14) and the Borrower
covenant and agree with the Lenders that:
Section
6.01. Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a)
the Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b)
Indebtedness of the Borrower or any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary (or issued to any Parent
Company which is substantially contemporaneously transferred to the Borrower or any Restricted Subsidiary); provided that in the
case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to a Loan Party, the making of the corresponding
loan or advance shall have been permitted as an Investment pursuant to Section 6.06; provided, further, all such
Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations
of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;
(c)
Indebtedness of any Joint Venture or Indebtedness of the Borrower or any Restricted Subsidiary incurred on behalf of any Joint Venture
or any Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness of any Joint Venture in an aggregate outstanding principal
amount for all such Indebtedness not to exceed at any time the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the
last day of the most recently ended Test Period;
(d)
Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including
contingent earn-out or similar obligations), or payment obligations in respect of any non-compete, consulting or similar arrangements,
in each case incurred in connection with any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder
or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties,
letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or
any such Restricted Subsidiary pursuant to any such agreement;
(e)
Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations (including health, safety
and environmental obligations), bids, leases, governmental contracts, trade contracts, surety, indemnity, stay, customs, judgment, appeal,
performance, completion and/or return of money bonds or guaranties or other similar obligations incurred in the ordinary course of business
and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the
foregoing items;
(f)
Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, debit cards,
purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services
(including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services,
including Indebtedness arising from the financing by a bank or other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business), employee credit card programs, cash pooling services, foreign exchange
and currency management services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with
Cash management and Deposit Accounts, including Banking Services Obligations and incentive, supplier finance or similar programs;
(g)
(i) Guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers, franchisees, licensees, sublicensees
and cross-licensees in the ordinary course of business, (ii) Indebtedness (A) incurred in the ordinary course of business in respect
of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of property or services or progress
payments in connection with such property and services or (B) consisting of obligations under deferred purchase price or other similar
arrangements incurred in connection with Permitted Acquisitions or any other Investment expressly permitted hereunder and (iii) Indebtedness
in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse
receipts or similar facilities entered into in the ordinary course of business;
(h)
Guarantees (including any co-issuance) by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower
and/or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01
or other obligations not prohibited by this Agreement; provided that in the case of any such Guarantee by any Loan Party of the
obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i)
Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing (or anticipated), on the
Closing Date and, with respect to any such item of Indebtedness in an aggregate committed or principal amount in excess of $250,000,
described on Schedule 6.01;
(j)
Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of
such Indebtedness shall not exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period;
(k)
Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar
agreements entered into in the ordinary course of business;
(l)
Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay
obligations contained in supply arrangements in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory
in connection with customer financing arrangements in the ordinary course of business;
(m)
Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness (including
mortgage financing, industrial revenue bond, industrial development bond or similar financings) or to finance the construction, purchase,
repair, replacement or improvement of any fixed or capital asset, in an aggregate outstanding principal amount not to exceed the greater
of $65,000,000 and 49% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (excluding, for the
avoidance of doubt, the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Sale/Leaseback Transaction and iStar
Exchanges);
(n)
Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or other Investment
permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted
Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof and (ii)
either (A) the Borrower is in compliance with the applicable ratio set forth in clause (e) of the definition of Incremental Cap based
on whether such Indebtedness is secured by a pari passu lien on the Collateral or a junior Lien on the Collateral or is unsecured
or secured by Liens on assets not constituting Collateral (and for such purpose, such Indebtedness shall be deemed to have been incurred
to finance an acquisition or other Investment permitted hereunder), calculated on a Pro Forma Basis as of the last day of the most recently
ended Test Period or (B) the aggregate outstanding principal amount of such Indebtedness does not exceed the greater of $15,000,000 and
11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o)
Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company
or any Permitted Payee to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p)
the Borrower and its Restricted Subsidiaries may become and remain liable for any Indebtedness extending, refinancing, refunding or
replacing any Indebtedness permitted under clauses (a), (c), (i), (j), (m), (n), (r), (u), (v), (w), (y), (z),
(dd), (gg), (ll) and (mm) of this Section 6.01 (in any case, including any extending,
refinancing, refunding or replacing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any
subsequent Refinancing Indebtedness in respect thereof; provided that (i) the principal amount of such Refinancing
Indebtedness does not exceed the principal amount of the Indebtedness being extended, refinanced, refunded or replaced, except by
(A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting
discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield
payments) incurred in connection with the relevant extension, refinancing, refunding or replacement, (B) an amount equal to any
existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01
(provided that (1) any additional Indebtedness referred to in this clause (C) satisfies the other applicable requirements of
this Section 6.01(p) (with additional amounts incurred in reliance on this clause (C) constituting a utilization of
the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is
secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02), (ii) in the case of
Refinancing Indebtedness with respect to clauses (a) and (z) (other than (x) customary bridge loans with a maturity
date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or
otherwise replace such bridge loans shall be subject to the requirements of this clause (ii) and (y) Refinancing Indebtedness
having an aggregate principal amount outstanding not exceeding $20,000,000 (as selected by the Borrower)), such Refinancing
Indebtedness has (A) a final maturity on or later than (and, in the case of revolving Indebtedness, does not require mandatory
commitment reductions, if any, prior to) the earlier of (x) the Latest Term Loan Maturity Date at the time of the incurrence of such
Refinancing Indebtedness and (y) the final maturity of the Indebtedness being extended, refinanced, refunded or replaced and (B)
other than with respect to revolving Indebtedness, a Weighted Average Life to Maturity equal to or greater than (x) the Weighted
Average Life to Maturity of the Indebtedness being extended, refinanced, refunded or replaced or (y) the Weighted Average Life to
Maturity of the outstanding Term Loans at the time of the incurrence of such Refinancing Indebtedness, (iii) with respect to any
Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount, the terms thereof (excluding pricing,
fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect to
Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security) are not, taken as a
whole (as determined by the Borrower in good faith), more favorable to the lenders providing such Indebtedness than those applicable
to the Indebtedness being extended, refinanced, refunded or replaced (other than any covenants or any other terms or provisions (X)
applicable only to periods after the Latest Maturity Date at the time of the incurrence of such Refinancing Indebtedness, (Y) that
are then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining
of a commitment with respect thereto)) for the applicable type of Indebtedness or (Z) solely in the case of Refinancing Indebtedness
in respect of Indebtedness incurred in reliance on clauses (a) and/or (z) of this Section 6.01, terms or other
provisions which are conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative
Agent, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)), (iv) the incurrence
thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause of this Section 6.01 pursuant
to which the Indebtedness being extended, refinanced, refunded or replaced was incurred (i.e., the incurrence of such Refinancing
Indebtedness shall not create availability under such relevant clause), (v) except in the case of Refinancing Indebtedness incurred
in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Indebtedness, if secured, is
secured only by Permitted Liens at the time of such extension, refinancing, refunding or replacement (it being understood that
secured Indebtedness may be refinanced with unsecured Indebtedness), (B) such Indebtedness is incurred by the obligor or obligors in
respect of the Indebtedness being extended, refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section
6.01 (it being understood that Holdings may not be the primary obligor of the applicable Refinancing Indebtedness if Holdings
was not the primary obligor on the relevant refinanced Indebtedness) and (C) if the Indebtedness being extended, refinanced,
refunded or replaced was contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness
were contractually subordinated to such Liens on the Collateral securing the Secured Obligations), such Indebtedness is
contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness are subordinated to the
Liens on the relevant Collateral securing the Secured Obligations) either (x) on terms not materially less favorable, taken as a
whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being extended, refinanced, refunded or
replaced, taken as a whole or (y) pursuant to an Acceptable Intercreditor Agreement, (vi) except in the case of Refinancing
Indebtedness with respect to clause (a) of this Section 6.01, as of the date of the incurrence of such Indebtedness
and after giving effect thereto, no payment or bankruptcy (with respect to the Borrower) Event of Default exists and (vii) in the
case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01,
(A) such Refinancing Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari
passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such
Refinancing Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Acceptable
Intercreditor Agreement, (B) if such Refinancing Indebtedness is secured, it is not secured by any assets other than the Collateral,
(C) if such Refinancing Indebtedness is Guaranteed, it shall not be Guaranteed by any Person other than a Loan Party and (D) such
Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, it being understood and agreed
that any such Refinancing Indebtedness may participate (x) in any voluntary prepayment of Term Loans as set forth in Section
2.11(a)(i) and (y) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi);
(q)
endorsement of instruments or other payment items for collection or deposit in the ordinary course of business;
(r)
Indebtedness in respect of any Additional Letter of Credit Facility in an aggregate principal or face amount at any time outstanding
not to exceed the greater of $40,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(s)
Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t)
[reserved];
(u)
Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the greater
of $60,000,000 and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v)
Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 100% of the
amount of any capital contributions or other proceeds received by the Borrower or any Restricted Subsidiary (i) from the issuance or
sale of its Qualified Capital Stock or (ii) in the form of any cash contribution, plus the fair market value, as determined by
the Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Borrower or any Restricted Subsidiary
from the issuance and sale by it or any Parent Company of its or such Parent Company’s Qualified Capital Stock or a contribution
to the Qualified Capital Stock of any Parent Company, Holdings, the Borrower or any Restricted Subsidiary (including through consolidation,
amalgamation or merger), in each case after the Closing Date, and in each case other than (A) any proceeds received from the sale of
Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries, (B) to the extent the relevant proceeds
have otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and (C) Cure Amounts and/or
any Available Excluded Contribution Amount;
(w)
Indebtedness arising under a Qualified Receivables Facility in an aggregate principal amount not to exceed the greater of $20,000,000
and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(x)
Indebtedness of the Borrower and/or any Restricted Subsidiary incurred in respect of (i) any Second Lien Facility and any “Incremental
Loans” and “Incremental Equivalent Debt” (each as defined in the Second Lien Credit Agreement or any equivalent term
under any Second Lien Facility) in an aggregate outstanding principal amount that does not exceed $137,500,000 plus the aggregate
outstanding principal amount of such “Incremental Loans” or “Incremental Equivalent Debt” so long as the sum
of the aggregate outstanding principal amount of any such “Incremental Loans” or “Incremental Equivalent Debt”
does not exceed the “Incremental Cap” (as applicable, and each as defined in the Second Lien Credit Agreement as in effect
on the Closing Date, including after giving effect to Sections 1.04(d) and 1.04(e) thereof) and (ii) any refinancing, refunding
or replacing of any Second Lien Facility or any such “Incremental Loans” or “Incremental Equivalent Debt” after
the Closing Date so long as (A) the aggregate outstanding principal amount of such Indebtedness does not exceed an amount permitted to
be incurred under the preceding clause (i), plus (1) an amount equal to unpaid accrued interest, penalties and premiums
(including tender premiums) thereon, (2) the amount of any underwriting discounts and other customary fees, commissions and expenses
(including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, (3)
an amount equal to any existing commitments unutilized thereunder and (4) any additional amounts permitted to be incurred pursuant to
this Section 6.01 (with additional amounts incurred in reliance on this clause (4) constituting a utilization of the relevant
basket or exception pursuant to which such additional amount is permitted), (B) such Indebtedness, if secured, is secured only by Liens
permitted under Section 6.02(t), (C) except with respect to revolving Indebtedness, the Weighted Average Life to Maturity of such
Indebtedness is equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced in reliance
on this Section 6.01(x) at the time of such refinancing (without giving effect to any prepayment thereof), (D) the final maturity date
of such Indebtedness is equal to or later than the final maturity date of the Indebtedness being refinanced in reliance on this Section
6.01(x) and (E) no such Indebtedness is (1) guaranteed by any Person which is not a Loan Party or (2) secured by any assets other than
the Collateral;
(y)
Indebtedness of the Borrower and/or any Restricted Subsidiary incurred in connection with Sale and Lease-Back Transactions permitted
pursuant to Section 6.08;
(z)
Incremental Equivalent Debt; provided that the aggregate principal amount of Incremental Equivalent Debt incurred by Restricted
Subsidiaries that are not Loan Parties shall not exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the
last day of the most recently ended Test Period;
(aa)
Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments
with respect to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers’ compensation
claims (or reimbursement type obligations regarding workers’ compensation claims), unemployment insurance (including premiums related
thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits or property,
casualty or liability insurance or self-insurance;
(bb)
Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current and former directors,
officers, employees, members of management, managers and consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary
in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions,
any Permitted Acquisition or any other Investment permitted hereby;
(cc)
Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of any letter of credit or bank guarantee issued in favor of
any issuing bank or swingline lender to support any defaulting lender’s participation in letters of credit issued, or swingline
loans made, hereunder or under any Additional Letter of Credit Facility;
(dd)
Indebtedness of the Borrower or any Restricted Subsidiary supported by any Letter of Credit issued hereunder or under any Additional
Letter of Credit Facility or any other letters of credit or bank guarantees permitted hereunder;
(ee)
unfunded pension fund and other employee benefit plan obligations and liabilities incurred by the Borrower and/or any Restricted Subsidiary
in the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under Section
7.01(i);
(ff)
without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind
interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Borrower
and/or any Restricted Subsidiary hereunder;
(gg)
(i) to the extent constituting Indebtedness, obligations under the Acquisition Agreement and (ii) any Indebtedness permitted to remain
outstanding after the Closing Date pursuant to the Acquisition Agreement (excluding any Indebtedness required to be refinanced pursuant
to the Refinancing);
(hh)
customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in
the ordinary course of business;
(ii)
[reserved];
(jj)
(i) Indebtedness in connection with bankers’ acceptances, discounted bills of exchange or the discounting or factoring of receivables
for credit management purposes, in each case incurred or undertaken in the ordinary course of business on arm’s-length commercial
terms and (ii) the incurrence of Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights or the settlement
of any claims or actions (whether actual, contingent or potential) with respect to the Transactions or any other acquisition (by merger,
consolidation or amalgamation or otherwise) in accordance with the terms hereof;
(kk)
obligations in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any subsidiary
of the Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed
in jurisdictions other than within the United States;
(ll)
Indebtedness in an aggregate principal amount outstanding at any time not to exceed the Available RP Capacity Amount;
(mm)
Indebtedness in respect of any Excluded Property Transaction or any transactions under any iStar Sale/Leaseback Documents; and
(nn)
Guarantee obligations incurred in the ordinary course of business under repurchase agreements in connection with the financing of Bowling
Equipment sales.
For
the avoidance of doubt, the accrual of interest, the accretion of accreted value, the accretion or amortization of original issue discount,
the payment of interest in the form of additional Indebtedness and increases in the amount of Indebtedness outstanding solely as a result
of fluctuations in the exchange rate of currencies shall be deemed to be permitted Indebtedness for purposes of this Section.
Section
6.02. Liens. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, create, incur, assume or permit
or suffer to exist any Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any
income or profits therefrom, except:
(a)
Liens created pursuant to the Loan Documents securing the Secured Obligations (including Cash collateralization of Letters of Credit
as set forth in Section 2.05);
(b)
Liens for Taxes or other governmental charges which are not overdue for a period of more than 45 days or, if more than 45 days overdue
(i) are being contested in accordance with Section 5.03 or (ii) with respect to which the failure to make payment would not reasonably
be expected to have a Material Adverse Effect;
(c)
statutory or common law Liens (and rights of set-off) of landlords, sub landlords, construction contractors, banks, carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements of Law, in each case incurred in the
ordinary course of business (i) for amounts not yet overdue by more than 45 days, (ii) for amounts that are overdue by more than 45 days
(A) that are being contested in good faith by appropriate proceedings, so long as any reserves or other appropriate provisions required
by GAAP have been made for any such contested amounts or (B) with respect to which no filing or other action has been taken to enforce
such Lien or (iii) with respect to which the failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(d)
Liens incurred (i) in the ordinary course of business in connection with workers’ compensation, unemployment insurance, health,
disability or employee benefits and other types of social security laws and regulations, (ii) in the ordinary course of business to secure
the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade
contracts, indemnitees, performance, completion and return-of-money bonds and other similar obligations (including those to secure health,
safety and environmental obligations) (in each case, exclusive of obligations for the payment of borrowed money), (iii) pursuant to pledges
and deposits of Cash or Cash Equivalents in the ordinary course of business securing (x) any liability for reimbursement, premium or
indemnification obligations of insurance brokers or carriers providing property, casualty, liability or other insurance to Holdings,
the Borrower and its subsidiaries (including deductibles, self-insurance, co- payment, co-insurance and retentions) or (y) leases or
licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in respect of letters of credit, bank guaranties,
surety bonds, performance bonds or similar instruments posted with respect to the items described in clauses (i) through (iii)
above;
(e)
Liens consisting of easements, covenants, conditions, rights-of-way, restrictions, encroachments, servitudes for railways, sewers, drains,
gas and oil and other pipelines, gas and water mains, electric light and power and telecommunication, telephone or telegraph or cable
television conduits, poles, wires and cables and other similar protrusions or encumbrances and other minor defects or irregularities
in title, in each case (x) which do not, in the aggregate, materially interfere with the ordinary conduct of the business of the Borrower
and/or its Restricted Subsidiaries, taken as a whole, or materially interfere with the use of the affected property for its intended
purpose or (y) where the failure to have such title would not reasonably be expected to have a Material Adverse Effect;
(f)
Liens consisting of any (i) interest or title of a lessor, sub-lessor, licensor or sub- licensor under any lease, license or similar
arrangement of real estate or other property (including intellectual property) permitted hereunder, (ii) landlord lien permitted by the
terms of any lease, sub- lease, license, sub-license or similar arrangement, (iii) restriction or encumbrance to which the interest or
title of such lessor, sub-lessor, licensor or sub-licensor may be subject, (iv) subordination of the interest of the lessee, sub-lessee,
licensee or sub-licensee under such lease, sub-lease, license, sub-license or similar arrangement to any restriction or encumbrance referred
to in the preceding clause (iii) or (v) deposit of cash with the owner or lessor of premises leased and operated by the Borrower
or any Restricted Subsidiary in the ordinary course of business to secure the performance of obligations under the terms of the lease
for such premises;
(g)
Liens (i) solely on any Cash (or Cash Equivalent) earnest money deposits (including as part of any escrow arrangement) made by the Borrower
and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment
permitted hereunder (or to secure letters of credit, bank guarantees or similar instruments posted in respect thereof), (ii) on advances
of Cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Sections
6.06(b), (e), (f), (p), (q), (r), (u), (x), (y) or (dd) to be applied
against the purchase price for such Investment or (iii) consisting of (A) an agreement to Dispose of any property in a Disposition permitted
under Section 6.07 and/or (B) the pledge of Cash or Cash Equivalents as part of an escrow or similar arrangement required in any
Disposition permitted under Section 6.07;
(h)
precautionary or purported Liens evidenced by the filing of UCC financing statements or similar financing statements under applicable
Requirements of Law relating solely to (i) operating leases or consignment or bailee arrangements entered into in the ordinary course
of business, (ii) the sale of accounts receivable in the ordinary course of business for which a UCC financing statement or similar financing
statement under applicable Requirements of Law is required and/or (iii) the sale of Receivables Facility Assets and related assets in
connection with any Qualified Receivables Facility;
(i)
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the
importation of goods;
(j)
Liens in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority
to control or regulate the use of any dimensions of real property or any structure thereon, including Liens in connection with any condemnation
or eminent domain proceeding or compulsory purchase order;
(k)
Liens securing Indebtedness permitted pursuant to Section 6.01(p) (solely with respect to the permitted extension, refinancing,
refunding or replacement of Indebtedness permitted pursuant to Sections 6.01(a), (c), (i), (j), (m),
(n), (r), (u), (v), (w), (y), (z) and (gg)); provided that (i) no such Lien extends
to any asset not covered by the Lien securing the Indebtedness that is being refinanced other than (A) after-acquired property that is
affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.01 and (B)
proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood that such
extensions, refinancings, refundings or replacements of individual financings of the type permitted under Section 6.01(m) provided
by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) if the
Indebtedness being refinanced was subject to intercreditor arrangements in respect of Liens on Collateral, then any refinancing Indebtedness
in respect thereof secured by Liens on Collateral shall be subject to intercreditor arrangements not materially less favorable to the
Secured Parties, taken as a whole, than the intercreditor arrangements governing the Indebtedness that is refinanced or the intercreditor
arrangements governing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l)
Liens existing on, or contractually committed or contemplated as of, the Closing Date and, with respect to each such Lien securing Indebtedness
in an aggregate committed or principal amount in excess of $250,000, described on Schedule 6.02 and any modification, replacement,
refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired
property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section
6.01 and (B) proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood
that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross- collateralized to
other financings of such type provided by such lender or its affiliates) and (ii) any such modification, replacement, refinancing, renewal
or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 6.01;
(m)
Liens arising out of Sale and Lease-Back Transactions permitted under Section 6.08;
(n)
Liens securing Indebtedness permitted pursuant to Section 6.01(m); provided that any such Lien shall encumber only the asset
acquired, constructed, repaired, replaced or improved with the proceeds of such Indebtedness and proceeds and products thereof, replacements,
accessions or additions thereto and improvements thereon and customary security deposits with respect thereto (it being understood that
individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other
financings of such type provided by such lender or its affiliates);
(o)
Liens securing Indebtedness permitted pursuant to Section 6.01(n) on the relevant acquired assets or on the Capital Stock and
assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets
(other than the proceeds or products thereof, replacements, accessions or additions thereto and improvements thereon, it being understood
that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other
financings of such type provided by such lender or its affiliates) or (y) was created in contemplation of the applicable acquisition
of assets or Capital Stock;
(p)
(i) Liens that are contractual rights of set-off or netting relating to (A) the establishment of depositary relations with banks or other
financial institutions not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of the Borrower
and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business
of the Borrower and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of the Borrower
and/or any Restricted Subsidiary in the ordinary course of business and (D) commodity trading or other brokerage accounts incurred in
the ordinary course of business, (ii) Liens encumbering reasonable customary initial deposits and margin deposits, (iii) bankers Liens
and rights and remedies as to Deposit Accounts or similar accounts, (iv) Liens of a collection bank arising under Section 4-208 or Section
4-210 of the UCC on items in the ordinary course of business, (v) Liens (including rights of set-off) in favor of banking or other financial
institutions arising as a matter of Law or under customary general terms and conditions encumbering deposits or other funds maintained
with a financial institution and that are within the general parameters customary in the banking industry or arising pursuant to such
banking institution’s general terms and conditions and (vi) Liens on the proceeds of any Indebtedness permitted hereunder incurred
in connection with any transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms
to secure such Indebtedness pending the application of such proceeds to finance such transaction or on Cash or Cash Equivalents set aside
at the time of the incurrence of such Indebtedness to the extent such Cash or Cash Equivalents prefund the payment of interest or fees
on such Indebtedness and are held in escrow pending application for such purpose;
(q)
Liens on assets and Capital Stock of Restricted Subsidiaries that are not Loan Parties (including Capital Stock owned by such Persons)
securing Indebtedness or other obligations of Restricted Subsidiaries that are not Loan Parties permitted pursuant to Section 6.01
(or not prohibited under this Agreement);
(r)
Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement
or similar agreements entered into in the ordinary course of business of the Borrower and/or its Restricted Subsidiaries;
(s)
Liens disclosed in any Mortgage Policy delivered pursuant to Section 5.12 with respect to any Material Real Estate Asset, provided
such Liens do not, in the aggregate, materially interfere with the use of such Material Real Estate Asset, and any replacement, extension
or renewal of any such Lien; provided that no such replacement, extension or renewal Lien shall cover any property other than
the property that was subject to such Lien prior to such replacement, extension or renewal (and additions thereto, improvements thereon
and the proceeds thereof);
(t)
Liens securing Indebtedness incurred pursuant to Sections 6.01(x) and (z); provided that, if any such Lien is on
Collateral, the holders of such Indebtedness (or a representative thereof) shall be party to an Acceptable Intercreditor Agreement;
(u)
other Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed
the greater of $60,000,000 and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v)
(i) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating
to litigation being contested in good faith not constituting an Event of Default under Section 7.01(h) and (ii) any cash deposits
securing any settlement of litigation;
(w)
(i) leases, licenses, subleases, sublicenses or cross-licenses granted to others, (ii) assignments of IP Rights granted to a customer
of the Borrower or any Restricted Subsidiary in the ordinary course of business which do not secure any Indebtedness or (iii) the rights
reserved or vested in any Person (including any Governmental Authority) by the terms of any lease, license, franchise, grant or permit
held by the Borrower or any of the Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise,
grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(x)
Liens on Securities or other assets that are the subject of repurchase agreements constituting Investments permitted under Section
6.06 arising out of such repurchase transaction;
(y)
Liens securing obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted
under Sections 6.01(d), (e), (g), (aa) and (cc);
(z)
Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any assets or property
and bailee arrangements in the ordinary course of business and permitted by this Agreement or (ii) by operation of law under Article
2 of the UCC (or any similar Requirement of Law of any jurisdiction);
(aa)
Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a
Loan Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section
6.01 or Section 6.09;
(bb)
Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(cc)
Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect
of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or goods;
(dd)
Liens securing (i) obligations under Hedge Agreements in connection with any Derivative Transaction of the type described in Section
6.01(s), (ii) obligations of the type described in Section 6.01(f) and/or (iii) obligations of the type described in Section 6.01(r),
which Liens (A) in each case under this Section 6.02(dd), may be (but are not required to be) secured by all of the Collateral
so long as the Lien on the Collateral is subject to an Acceptable Intercreditor Agreement and (B) in the case of clause (iii)
(to the extent not secured as provided in clause (A)), may consist of pledges of Cash collateral in an amount not to exceed the
greater of $15,000,000 and 11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(ee)
(i) Liens on Capital Stock of Joint Ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such
Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect
to non-Wholly-Owned Subsidiaries;
(ff)
Liens on cash or Cash Equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
(gg)
Liens permitted to remain outstanding following the Closing Date pursuant to the terms of the Acquisition Agreement (including liens
on cash or Cash Equivalents backstopping any letters of credit existing on the Closing Date) and any replacements, refinancings or renewals
thereof, so long as no such replacement, refinancings or renewal thereof increases the amount of such Lien except as otherwise permitted
by this Section 6.02;
(hh)
Liens on assets not constituting Collateral (x) securing obligations in an aggregate outstanding principal amount not to exceed the greater
of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period or (y) so long as the
Obligations in respect of the Credit Facilities are secured on a ratable basis (without regard to the control of remedies) with or prior
to the obligations so secured for so long as such obligations are so secured (which Liens, in the case of this clause (y), shall be subject
to an Acceptable Intercreditor Agreement);
(ii)
Liens on Receivables Facility Assets incurred in connection with a Receivables Facility;
(jj)
undetermined or inchoate Liens, rights of distress and charges incidental to current operations that have not at such time been filed
or exercised, or which relate to obligations not due or payable or if due, the validity of such Liens are being contested in good faith
by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in
accordance with GAAP;
(kk)
with respect to any Foreign Subsidiary, Liens and privileges arising mandatorily by any Requirement of Law; provided such Liens and privileges
extend only to the assets or Capital Stock of such Foreign Subsidiary;
(ll)
ground leases or subleases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries
are located;
(mm)
Liens that are customary in the business of the Borrower and its Restricted Subsidiaries and that do not secure debt for borrowed money;
(nn)
security given to a public or private utility or any Governmental Authority as required in the ordinary course of business;
(oo)
receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on
the related inventory and proceeds;
(pp)
Liens arising pursuant to Section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act or similar provision
of any applicable law;
(qq)
Liens in the nature of the right of setoff in favor of counterparties to contractual agreements with the Borrower or any Restricted Subsidiary
in the ordinary course of business;
(rr)
Liens granted pursuant to a security agreement between the Borrower or any Restricted Subsidiary and a licensee of IP Rights to secure
the damages, if any, incurred by such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization
or similar proceeding with respect to the Borrower or such Restricted Subsidiary;
(ss)
Liens arising solely in connection with rights of dissenting equity holders pursuant to any Requirement of Law in respect of the Transactions,
any Permitted Acquisition or other similar Investment;
(tt)
Liens arising under the iStar Sale/Leaseback Documents, the iStar Sale/Leaseback 2014 Documents, the iStar Exchange Documents or the
Excluded Property Transaction Documents, including options, whether or not then exercisable, to purchase Bowling Equipment of the Borrower
and/or one or more of its Subsidiaries, and letters of credit to secure the obligations of the Borrower or any applicable Restricted
Subsidiary thereunder;
(uu)
Liens on (x) any Excluded Property or (y) any other real property acquired after the Closing Date and not subject (or required to be
subject) to a Mortgage, provided that the aggregate amount of the obligations secured at any one time by such Liens pursuant to this
clause (y) does not exceed $50,000,000; and
(vv)
Liens deemed to exist in connection with repurchase obligations permitted to be incurred pursuant to Section 6.01(nn).
Section
6.03. No Further Negative Pledges. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries that are Loan
Parties to, enter into any agreement prohibiting in any material respect the creation or assumption of any Lien upon any of its properties
(other than Excluded Assets), whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to the Obligations,
except with respect to:
(a)
restrictions relating to any asset (or all of the assets) of and/or the Capital Stock of the Borrower and/or any Restricted Subsidiary
which are imposed pursuant to an agreement entered into in connection with any Disposition or other transfer, lease or license of such
asset (or assets) and/or all or a portion of the Capital Stock of the relevant Person that is permitted by this Agreement;
(b)
restrictions contained in the Loan Documents, any then extant Second Lien Facility, any Incremental Equivalent Debt, any Receivables
Facility (limited to the assets securing the Indebtedness arising thereunder) or any Additional Letter of Credit Facility (limited to
the assets securing the Indebtedness arising thereunder) (and clause (p) of Section 6.01 to the extent relating to any extension, refinancing,
refunding or replacement of any of the foregoing);
(c)
restrictions contained in any documentation governing any other Indebtedness permitted by Section 6.01 to the extent such restrictions
(1)(x) are, taken as a whole, in the good-faith judgment of the Borrower, not materially more restrictive as concerning the Borrower
or any Restricted Subsidiary than customary market terms for Indebtedness of such type or (y) are not materially more restrictive, taken
as a whole, than the restrictions contained in this Agreement (as determined by the Borrower in good faith) and (2) will not materially
impair the Borrower’s obligation or ability to make any payments required hereunder (as determined by the Borrower in good faith);
(d)
restrictions by reason of customary provisions restricting assignments, subletting or other transfers (including the granting of any
Lien) contained in leases, subleases, licenses, sublicenses, asset sale agreements and other agreements entered into in the ordinary
course of business (provided that such restrictions are limited to the relevant leases, subleases, licenses, sublicenses, asset
sale or other agreements and/or the property or assets secured by such Liens or the property or assets subject to such leases, subleases,
licenses, sublicenses, asset sale or other agreements, as the case may be);
(e)
Permitted Liens and restrictions in the agreements relating thereto that limit the right of the Borrower or any of its Restricted Subsidiaries
to Dispose of or encumber the assets subject to such Liens;
(f)
provisions limiting the Disposition, distribution or encumbrance of assets or property in joint venture agreements, sale and lease-back
agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject
of such agreements (or the Persons the Capital Stock of which is the subject of such agreement (or any “shell company” parent
with respect thereto));
(g)
any encumbrance or restriction assumed in connection with an acquisition of the property or Capital Stock of any Person, so long as such
encumbrance or restriction relates solely to the Person and its subsidiaries (including the Capital Stock of the relevant Person or Persons)
and/or property so acquired (or to the Person or Persons (and its or their subsidiaries) bound thereby) and was not created solely in
connection with or in anticipation of such acquisition;
(h)
restrictions imposed by customary provisions in partnership agreements, limited liability company organizational governance documents,
joint venture agreements and other similar agreements that restrict the transfer of the assets of, or ownership interests in, the relevant
partnership, limited liability company, joint venture or any similar Person (or any “shell company” parent with respect thereto);
(i)
restrictions on Cash or other deposits permitted under Section 6.02 and/or 6.06 and any net worth requirements, including
such restrictions or requirements imposed by Persons under contracts entered into in the ordinary course of business or for whose benefit
such Cash or other deposits or net worth requirements exist;
(j)
restrictions (i) set forth in documents which exist on the Closing Date or (ii) which are contemplated as of the Closing Date and, in
the case of this clause (ii), as set forth on Schedule 6.03;
(k)
restrictions contained in documents governing Indebtedness of any Restricted Subsidiary that is not a Loan Party permitted hereunder;
(l)
[reserved];
(m)
provisions restricting the granting of a security interest in IP Rights contained in licenses, sublicenses or cross-licenses by the Borrower
and its Restricted Subsidiaries of such IP Rights, which licenses, sublicenses and cross-licenses were entered into in the ordinary course
of business (in which case such restriction shall relate only to such IP Rights);
(n)
restrictions arising under or as a result of applicable Requirements of Law or the terms of any license, authorization, concession or
permit issued or granted by a Governmental Authority;
(o)
restrictions with respect to a Restricted Subsidiary that was previously an Unrestricted Subsidiary, pursuant to or by reason of an agreement
that such Restricted Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary;
provided
that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such
restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property
of such Subsidiary;
(p)
customary restrictions imposed in connection with any Receivables Facility or similar transaction permitted hereunder;
(q)
restrictions contained in the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents as in effect on the date of this
Agreement, and restrictions contained in any iStar Exchange Documents or Excluded Property Transaction Documents; and
(r)
other restrictions or encumbrances imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing of the contracts, instruments or obligations referred to in clauses (a) through (q) above; provided
that no such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good
faith judgment of the Borrower, more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than those
in effect prior to the relevant amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Section
6.04. Restricted Payments; Certain Payments of Indebtedness.
(a)
The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i)
the Borrower may make Restricted Payments to the extent necessary to permit any Parent Company:
(A)
to pay general operating and compliance costs and expenses (including corporate overhead, legal or similar expenses and customary salary,
bonus and other benefits payable to directors, officers, employees, members of management, managers and/or consultants of any Parent
Company), in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable
and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent
Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance
of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent
Company other than the Borrower and/or its subsidiaries), the Borrower and/or its subsidiaries;
(B)
to pay franchise, excise and similar Taxes, and other fees, Taxes and expenses, required to maintain the organizational existence of
such Parent Company;
(C)
to pay customary salary, bonus, long-term incentive, severance and other benefits (including payment to certain service providers of
the Borrower or its Subsidiaries pursuant to any equity plan (whether in the form of options, cash settled options or otherwise)) payable
to Permitted Payees, as well as applicable employment, social security or similar taxes in connection therewith, to the extent such salary,
bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Borrower and/or its subsidiaries,
in each case, so long as such Parent Company applies the amount of any such Restricted Payment for such purpose;
(D)
to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but
excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary
of any Parent Company other than the Borrower and/or its subsidiaries), the Borrower and its subsidiaries;
(E)
for the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the
portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than
the Borrower and/or its subsidiaries), the Borrower and its subsidiaries;
(F)
to pay (x) fees and expenses related to any debt and/or equity offerings (including refinancings), investments and/or acquisitions permitted
or not restricted by this Agreement (whether or not consummated, and including advisory, refinancing, subsequent transaction and exit
fees of any Parent Company of the Borrower) and expenses and indemnities of any trustee, agent, arranger, underwriter or similar role
and (y) after the consummation of an initial public offering or the issuance of debt securities, Public Company Costs; and
(G)
to finance any Investment permitted under Section 6.06 as if such Parent Company were subject to Section 6.06 (provided
that (x) any Restricted Payment under this clause (a)(i)(G) shall be made substantially concurrently with the closing or consummation
of such Investment or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection
therewith and (y) the relevant Parent Company shall, promptly following the closing or consummation thereof or at future times as may
be scheduled at the time of such closing or consummation to be made thereafter in connection therewith, cause (I) all property acquired
to be contributed to the Borrower or one or more of its Restricted Subsidiaries or (II) the merger, consolidation or amalgamation of
the Person formed or acquired into the Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment
in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Borrower or the
relevant Restricted Subsidiary);
(ii)
the Borrower may pay (or make Restricted Payments to allow any Parent Company to pay) for the repurchase, redemption, retirement or other
acquisition or retirement for value of Capital Stock of any Parent Company or any subsidiary held by any Permitted Payee:
(A)
in accordance with the terms of promissory notes issued pursuant to Section 6.01(o), so long as the aggregate amount of all Cash
payments made in respect of such promissory notes, together with the aggregate amount of Restricted Payments made pursuant to sub-clause
(D) of this clause (ii) below, (1) does not exceed the greater of $5,500,000 and 4% of Consolidated Adjusted EBITDA as of
the last day of the most recently ended Test Period (which amount shall, following a Qualifying IPO, increase to the greater of $7,500,000
and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period) in any Fiscal Year, which, if not used
in any Fiscal Year, may be carried forward to subsequent Fiscal Years (until so applied)) minus (2) any utilization of the Available
RP Capacity Amount in reliance on unused capacity under clause (D) below; plus
(B)
with the proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock of the Borrower or any
Parent Company (to the extent such proceeds are contributed to the Borrower or any Restricted Subsidiary in respect of Qualified Capital
Stock issued by the Borrower or such Restricted Subsidiary) (other than amounts constituting a Cure Amount or an Available Excluded Contribution
Amount); plus
(C)
with the net proceeds of any key-man life insurance policies; plus
(D)
with Cash and Cash Equivalents in an amount not to exceed, together with the aggregate amount of all cash payments made pursuant to sub-clause
(A) of this clause (ii) in respect of promissory notes issued pursuant to Section 6.01(o), (1) the greater of $5,500,000
and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (which amount shall, following a Qualifying
IPO, increase to the greater of $7,500,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period) in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to subsequent Fiscal Years (until so applied)
minus (2) any utilization of the Available RP Capacity Amount in reliance on unused capacity under the immediately preceding clause
(1); plus
(E)
with the amount of any Cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of Capital
Stock of the Borrower or any Parent Company pursuant to any compensation arrangement, including any deferred compensation plan;
(iii)
the Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such
date that the Borrower elects to apply to this clause (iii)(A) plus (B) the portion, if any, of the Available Excluded Contribution
Amount on such date that the Borrower elects to apply to this clause (iii)(B) (plus, without duplication of amounts referred
to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing
Date, if the acquisition of such property or assets was financed with Available Excluded Contribution Amounts up to the amount of such
Available Excluded Contribution Amount, less any application thereof under Sections 6.04(b)(vi) or 6.06(r));
(iv)
the Borrower may make Restricted Payments (i) to any Parent Company to enable such Parent Company to (A) make Cash payments in lieu of
the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable
for Capital Stock of such Parent Company, dividends, share splits, reverse share splits (or any combination thereof) and, mergers, consolidations,
amalgamations or other business combinations, and acquisitions and other Investments permitted hereunder and/or (B) honor any conversion
request by a holder of convertible Indebtedness, make any cash payments in lieu of fractional shares in connection with any conversion
and make payments on convertible Indebtedness in accordance with its terms and (ii) consisting of (A) payments made or expected to be
made in respect of withholding or similar Taxes payable by any Permitted Payee and/or (B) repurchases of Capital Stock in consideration
of the payments described in sub clause (A) above, including demand repurchases in connection with the exercise of stock options
and the issuance of restricted stock units or similar stock based awards;
(v)
the Borrower may repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in connection with), or
make Restricted Payments to any Parent Company to enable it to repurchase, redeem, acquire or retire Capital Stock upon (or make provisions
for withholdings in connection with), the exercise of warrants, options or other securities convertible into or exchangeable for Capital
Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants,
options or other securities convertible into or exchangeable for Capital Stock as part of a “cashless” exercise;
(vi)
the Borrower may make Restricted Payments the proceeds of which are applied (i) on the Closing Date, solely to effect the consummation
of the Transactions and on or about the Amendment No. 1 Effective Date, solely to effect the consummation of the Amendment No. 1 Transactions,
(ii) on and after the Closing Date, to satisfy any payment obligations owing, or as otherwise required, under the Acquisition Agreement
(including payment of working capital and/or purchase price adjustments) and to pay Transaction Costs, in each case, with respect to
the Transactions, (iii) to satisfy obligations to direct or indirect holders of Capital Stock of the Borrower (immediately prior to giving
effect to the Transactions) in connection with, or as a result of, any working capital and/or purchase price adjustments, in each case,
with respect to the Transactions and (iv) to satisfy any settlement of claims or actions in connection with the Transactions or to satisfy
indemnity or other similar obligations in connection with the Transactions;
(vii)
following the consummation of the first Qualifying IPO, the Borrower may (or may make Restricted Payments to any Parent Company to enable
it to) make Restricted Payments with respect to any Capital Stock in an amount not to exceed (A) the greater of (x) an amount equal to
6.00% per annum of the net Cash proceeds received by or contributed to the Borrower from any Qualifying IPO and (y) an amount equal to
6.00% per annum of the Market Capitalization of the Borrower (or its direct or indirect Parent Company, as applicable) and its subsidiaries
minus (B) any utilization of the Available RP Capacity Amount in reliance on unused capacity under immediately preceding clause
(A);
(viii)
the Borrower may make Restricted Payments to (i) redeem, repurchase, defease, discharge, retire or otherwise acquire any (A) Capital
Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent
Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent
sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower or any Parent Company
to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified
Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of
the proceeds of the substantially concurrent sale or issuance (other than to the Borrower or a Restricted Subsidiary) of any Refunding
Capital Stock;
(ix)
to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other
than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other
than Section 6.09(d));
(x)
the Borrower may make additional Restricted Payments in an aggregate amount not to exceed (A) the greater of $20,000,000 and 15% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (B) any utilization of the Available RP Capacity Amount
in reliance on unused capacity under immediately preceding clause (A);
(xi)
the Borrower may pay any dividend or other distribution or consummate any redemption within 60 days after the date of the declaration
thereof or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration or notice,
the dividend, distribution or redemption contemplated by such declaration or redemption notice would have complied with the provisions
of this Section 6.04(a);
(xii)
the Borrower may make any Restricted Payment constituting the distribution or payment of Receivables Fees;
(xiii)
the Borrower may make additional Restricted Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total
Leverage Ratio would not exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default hereunder or
shall result therefrom;
(xiv)
the Borrower may make additional Restricted Payments in an amount not to exceed the amount of proceeds received by the Borrower and/or
any Restricted Subsidiary under the Representation and Warranty Insurance Policy during the term of this Agreement;
(xv)
(A) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income
tax group for U.S. federal and/or applicable state or local income tax purposes of which a direct or indirect parent of the Borrower
is the common parent (a “Tax Group”), or for which the Borrower is a disregarded entity for U.S. federal income tax
purposes wholly-owned by a corporate parent (a “Corporate Parent”), the Borrower and each of its Subsidiaries may make Restricted
Payments (including pursuant to any Tax sharing agreement entered into by the Borrower and any of its Subsidiaries and Comcast Corporation,
a Pennsylvania corporation or its Affiliates) the proceeds of which shall be used by such common parent to pay the portion of any consolidated,
combined or similar U.S. federal, state or local income Taxes of such Tax Group, or by the Corporate Parent to pay the portion of the
U.S. federal, state or local income Taxes of such Corporate Parent, or any franchise taxes imposed in lieu thereof, for such taxable
period that are attributable to the income of the Borrower and/or its Subsidiaries, provided that such amount shall not be greater than
the amount of such U.S. federal, state or local income taxes that would be paid (for such taxable period) by the Borrower and its Subsidiaries
if the Borrower and/or such Subsidiaries had been a stand-alone corporate taxpayer (or stand-alone group of corporate taxpayers filing
on a consolidated, combined or similar basis) for all taxable years ending after the Closing Date (taking into account any net operating
loss carryforwards attributable to the Borrower and its Subsidiaries, as the case may be) and (B) without duplication of Restricted Payments
made under Section 6.04(a)(xv)(A), for any taxable period for which the Borrower is treated as a partnership for U.S. federal and/or
applicable state or local income tax purposes, the Borrower may make Restricted Payments to its equity owners at the times and in the
amounts necessary to enable such owners (and their direct or indirect owners) to pay their Tax obligations attributable to their direct
or indirect ownership interests in the Borrower in an aggregate amount equal to the product of (1) 50% (or such higher tax rate as shall
be applicable to a resident of New York City or California that indirectly owns an interest in the Borrower, taking into account the
character of the taxable income in question and the deductibility of state and local income taxes for U.S. federal income tax purposes)
and (2) the taxable income of the Borrower for such taxable year, less any cumulative taxable losses from prior taxable years to the
extent that such losses are of a character (ordinary or capital) that would permit such losses to be deducted by the direct or indirect
owners of the Borrower against the current taxable income of the Borrower allocable to such owners and have not previously been taken
into account in determining tax distributions;
(xvi)
the Borrower may make additional Restricted Payments constituting any part of a Permitted Reorganization or IPO Reorganization Transaction;
(xvii)
the Borrower may make a distribution, by dividend or otherwise, of the Capital Stock of, or debt owed to any Loan Party or any Restricted
Subsidiary by, any Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries, provided that
such Restricted Subsidiary owns no other material assets other than Capital Stock of one or more Unrestricted Subsidiaries); in each
case, other than Unrestricted Subsidiaries, the primary assets of which are Cash and/or Cash Equivalents; provided that any such
Capital Stock or debt that represents an Investment by the Borrower or any Restricted Subsidiary shall be deemed to continue to charge
(as utilization) the respective clause under Section 6.06 pursuant to which such Investment was made;
(xviii)
the Borrower may make payments and distributions to satisfy dissenters’ rights (including in connection with, or as a result of,
the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) in respect thereof),
pursuant to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 6.07;
(xix)
the Borrower may make a Restricted Payment in respect of payments made for the benefit of the Borrower or any Restricted Subsidiary to
the extent such payments could have been made by the Borrower or any Restricted Subsidiary because such payments (A) would not otherwise
be Restricted Payments and (B) would be permitted by Section 6.09; and
(xx)
the Borrower may make a Restricted Payment in respect of required withholding or similar non-U.S. Taxes with respect to any Permitted
Payee and any repurchases of Capital Stock in consideration of such payments, including deemed repurchases in connection with the exercise
of stock options or the issuance of restricted stock units or similar stock based awards.
(b)
The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any prepayment in Cash on or in respect of principal of
or interest on any Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively,
“Restricted Debt Payments”), except:
(i)
any refinancing, purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of any Restricted Debt made
by exchange for, or out of the proceeds of, Refinancing Indebtedness permitted by Section 6.01 and/or any extension, refinancing,
refunding or replacing Indebtedness permitted by Section 6.01(x);
(ii)
payments as part of, or to enable another Person to make, an “applicable high yield discount obligation” catch-up payment;
(iii)
payments of regularly scheduled principal and interest and payments of fees, expenses and indemnification obligations as and when due
(other than payments with respect to Junior Indebtedness that are prohibited by the subordination provisions thereof);
(iv)
additional Restricted Debt Payments in an aggregate amount not to exceed (A)(1) the greater of (x) $25,000,000 and (y) 19% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (2) any utilization of the Available RDP Capacity
Amount in reliance on unused capacity under immediately preceding clause (A)(1) plus (B) the Available RP Capacity Amount;
(v)
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any
Restricted Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Borrower or any Restricted Subsidiary,
(B) Restricted Debt Payments as a result of the conversion of all or any portion of any Restricted Debt into Qualified Capital Stock
of the Borrower and/or any Restricted Subsidiary or Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind
interest with respect to any Restricted Debt that is permitted under Section 6.01;
(vi)
Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the
Borrower elects to apply to this clause (vi)(A) plus (B) the portion, if any, of the Available Excluded Contribution Amount
on such date that the Borrower elects to apply to this clause (vi)(B) (plus, without duplication of amounts previously
referred to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing
Date, if the acquisition of such property or assets was financed solely with Available Excluded Contribution Amounts up to the amount
of such Available Excluded Contribution Amount, less any application thereof under Sections 6.04(a)(iii) or 6.06(r));
(vii)
additional Restricted Debt Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total Leverage
Ratio would not exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default under Section
7.01(a) or, with respect to the Borrower, Sections 7.01(f) or (g) or shall result therefrom;
(viii)
Restricted Debt Payments in respect of Restricted Debt permitted to be assumed pursuant to Section 6.01(n), provided that
any such Restricted Debt Payment shall be deemed an Investment and shall only be permitted to the extent there exists the ability to
make such Investment pursuant to Section 6.06 at such time; and
(ix)
Restricted Debt Payments made on or substantially concurrently with the Amendment No. 1 Effective Date to repay amounts outstanding under
the Second Lien Facility (and related fees and expenses).
Section
6.05. [Reserved].
Section
6.06. Investments. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make or own any Investment
in any other Person except:
(a)
Investments in assets that are Cash or Cash Equivalents, or investments that were Cash or Cash Equivalents at the time made;
(b)
(i) Investments existing on the Closing Date in any subsidiary and any modification, replacement, renewal or extension thereof so long
as no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted
by this Section 6.06 and (ii) Investments made after the Closing Date among Holdings, the Borrower and/or one or more Restricted
Subsidiaries or in any Person that will, upon such Investment, become a Restricted Subsidiary;
(c)
Investments (i) constituting deposits, prepayments and/or other credits to suppliers or other trade counterparties, (ii) made in connection
with obtaining, maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors, suppliers,
licensors and licensees, in each case, in the ordinary course of business or, in the case of clause (iii), to the extent necessary
to maintain the ordinary course of supplies to the Borrower or any Restricted Subsidiary;
(d)
Investments in (i) any Unrestricted Subsidiary (including any Joint Venture that is an Unrestricted Subsidiary) in an aggregate outstanding
amount not to exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended
Test Period and (ii) any Similar Business (including any Joint Venture engaged in a Similar Business) in an aggregate outstanding amount
not to exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
provided that if any Investment pursuant to this clause (d)(ii) is made in any Person that is not a Restricted Subsidiary at the date
of making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed
to have been made pursuant to clause (b)(ii) above and shall cease to have been made under this clause (d);
(e)
(i) Permitted Acquisitions and (ii) Investments in Restricted Subsidiaries that are not Loan Parties in amounts required to permit such
Restricted Subsidiaries to consummate Permitted Acquisitions;
(f)
(i) Investments existing on, or contractually committed to or contemplated as of, the Closing Date and, with respect to any such Investment
in excess of $250,000, described on Schedule 6.06 and (ii) any modification, replacement, renewal or extension of any Investment
described in clause (i) above so long as no such modification, renewal or extension thereof increases the amount of such Investment
except by the terms thereof or as otherwise permitted by this Section 6.06;
(g)
Investments received in lieu of Cash in connection with any Disposition permitted by Section 6.07 or any other disposition of
assets not constituting a Disposition;
(h)
loans or advances to Permitted Payees to the extent permitted by Requirements of Law, in connection with such Person’s purchase
of Capital Stock of any Parent Company, either (i) in an aggregate principal amount not to exceed the greater of $3,000,000 and 2% of
Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period at any one time outstanding, (ii) so long as the
proceeds of such loan or advance are substantially contemporaneously contributed to the Borrower for the purchase of such Capital Stock
or (iii) so long as no Cash or Cash Equivalents are advanced in connection with such loan or advance;
(i)
Investments consisting of rebates and extensions of credit in the nature of accounts receivable or notes receivable arising from the
grant of trade credit in the ordinary course of business;
(j)
Investments consisting of (or resulting from) Indebtedness permitted under Section 6.01 (including guarantees thereof) (other
than Indebtedness permitted under Sections 6.01(b) and (h)), Permitted Liens, Restricted Payments permitted under Section
6.04 (other than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers,
consolidations, amalgamations, liquidations, windings up, dissolutions or Dispositions permitted by Section 6.07 (other than Section
6.07(a)(i) (if made in reliance on subclause (ii)(y) of the proviso thereto), Section 6.07(b) (if made in reliance
on clause (ii) of the proviso thereto), Section 6.07(c)(ii) (if made in reliance on clause (B) therein) and Section
6.07(g));
(k)
Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements
with customers, vendors, suppliers, licensors, sublicensors, licensees and sublicensees;
(l)
Investments (including debt obligations and Capital Stock) received (i) in connection with the bankruptcy, work-out, reorganization or
recapitalization of any Person, (ii) in settlement or compromise of delinquent obligations of, or other disputes with or judgments against,
customers, trade-creditors, suppliers, licensees and other account debtors arising in the ordinary course of business, including pursuant
to any plan of reorganization or similar arrangement upon bankruptcy or insolvency of any customer, trade creditor, supplier or licensee,
(iii) in satisfaction of judgments against other Persons, (iv) as a result of foreclosure with respect to any secured Investment or other
transfer of title with respect to any secured Investment and/or (v) in settlement, compromise or resolution of litigation, arbitration
or other disputes;
(m)
loans and advances of payroll payments or other compensation to present or former employees, directors, members of management, officers,
managers or consultants of any Parent Company (to the extent such payments or other compensation relate to services provided to such
Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership or operations
of any subsidiary of any Parent Company other than the Borrower and/or its subsidiaries)), the Borrower and/or any subsidiary in the
ordinary course of business;
(n)
Investments to the extent that payment therefor is made solely with Capital Stock of any Parent Company or Capital Stock (other than
Disqualified Capital Stock) of the Borrower or any Restricted Subsidiary, in each case, to the extent not resulting in a Change of Control;
(o)
(i) Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated
or amalgamated with, the Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise
permitted by this Section 6.06 to the extent that such Investments were not made in contemplation of or in connection with such
acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation
or consolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of
this Section 6.06(o) so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment
except as otherwise permitted by this Section 6.06;
(p)
Investments made in connection with the Transactions and any Investments held by the Target or its Restricted Subsidiaries on the Closing
Date and permitted to remain (or not prohibited from remaining) outstanding after the Closing Date pursuant to the terms of the Acquisition
Agreement;
(q)
Investments made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate amount at any time
outstanding not to exceed:
(i)
the greater of $50,000,000 and 37% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, plus
(ii)
the Available RP Capacity Amount plus the Available RDP Capacity Amount, plus
(iii)
in the event that (A) the Borrower or any of its Restricted Subsidiaries makes any Investment after the Closing Date in any Person that
is not a Restricted Subsidiary and (B) such Person subsequently becomes a Restricted Subsidiary, an amount equal to 100% of the fair
market value of such Investment as of the date on which such Person becomes a Restricted Subsidiary;
(r)
Investments made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount
not to exceed (i) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause
(r)(i) plus (ii) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects
to apply to this clause (r)(ii) (plus, without duplication of amounts referred to in this clause (ii), in an amount
equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing Date, if the acquisition of such
property or assets was financed with Available Excluded Contribution Amounts up to the amount of such Available Excluded
Contribution Amount, less any application thereof under Sections 6.04(a)(iii) or 6.04(b)(iv));
(s)
(i) Guarantees of leases or subleases (in each case other than Capital Leases) or of other obligations not constituting Indebtedness,
(ii) Guarantees of the lease obligations of suppliers, customers, franchisees and licensees of the Borrower and/or its Restricted Subsidiaries,
in each case, in the ordinary course of business and (iii) Investments consisting of Guarantees of any supplier’s obligations in
respect of commodity contracts, including Hedge Agreements, solely to the extent such commodities related to the materials or products
to be purchased by the Borrower or any Restricted Subsidiary;
(t)
(i) Investments in any Parent Company in amounts and for purposes for which Restricted Payments to such Parent Company are permitted
under Section 6.04(a); provided that any Investment made as provided above in lieu of any such Restricted Payment shall reduce
availability under the applicable Restricted Payment basket under Section 6.04(a) and (ii) Investments consisting of loans and
advances to any Parent Company in connection with the reimbursement of expenses incurred on behalf of the Borrower or any Restricted
Subsidiary in the ordinary course of business;
(u)
Investments made by any Restricted Subsidiary that is not a Loan Party with the proceeds received by such Restricted Subsidiary from
an Investment made by any Loan Party in such Restricted Subsidiary pursuant to this Section 6.06 (other than Investments made
pursuant to clause (ii) of Section 6.06(e));
(v)
Investments in subsidiaries in connection with reorganizations and/or restructurings, including any Permitted Reorganization and/or any
IPO Reorganization Transaction, and/or activities related to tax planning (including Investments in non-Cash or non-Cash Equivalents);
provided that, after giving effect to any such reorganization, restructuring and/or related activity, the security interest of the Administrative
Agent in the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute
Collateral immediately prior to such reorganization, restructuring or tax planning activities no longer constituting Collateral) as a
result of such reorganization, restructuring or tax planning activities;
(w)
Investments arising under or in connection with any Derivative Transaction of the type permitted under Section 6.01(s);
(x)
Investments made (i) in Joint Ventures, (ii) in connection with the creation, formation and/or acquisition of any Joint Venture or (iii)
in any Restricted Subsidiary to enable such Restricted Subsidiary to create, form and/or acquire any Joint Venture, in an aggregate outstanding
amount under this clause (x) not to exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day
of the most recently ended Test Period; provided that if any Investment pursuant to this clause (x) is made in any Person that is not
a Restricted Subsidiary at the date of making of such Investment and such Person becomes a Restricted Subsidiary after such date, such
Investment shall thereafter be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been made under this
clause (x);
(y)
Investments made in joint ventures as required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth
in joint venture agreements and similar binding arrangements in effect on the Closing Date or entered into after the Closing Date in
the ordinary course of business;
(z)
unfunded pension fund and other employee benefit plan obligations and liabilities to the extent that they are permitted to remain unfunded
under applicable Requirements of Law;
(aa)
Investments in Holdings, the Borrower and/or any subsidiary in connection with intercompany cash management arrangements and related
activities in the ordinary course of business;
(bb)
Investments made in connection with any nonqualified deferred compensation plan or arrangement for any Permitted Payee;
(cc)
any Investment made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted
Subsidiary (but for the avoidance of doubt, after such subsidiary was designated as an Unrestricted Subsidiary) so long as the relevant
Investment was not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary;
(dd)
additional Investments so long as, as measured at the time provided for in Section 1.04(e), on a Pro Forma Basis, the Total Leverage
Ratio does not exceed 4.25:1.00;
(ee)
Investments consisting of the licensing or contribution of IP Rights pursuant to joint marketing, collaborations or other similar arrangements
with other Persons;
(ff)
Investments in or relating to any Receivables Subsidiary that, in the good faith determination of the Borrower, are necessary or advisable
to effect a Receivables Facility or any repurchases in connection therewith (including Investments of funds held in accounts permitted
or required by the arrangements governing such Receivables Facility or any related Indebtedness);
(gg)
the conversion to Qualified Capital Stock of any Indebtedness owed by the Borrower or any Restricted Subsidiary and permitted by Section
6.01;
(hh)
Restricted Subsidiaries of the Borrower may be established or created if the Borrower and such Restricted Subsidiary comply with the
requirements of Section 5.12, if applicable; provided that, in each case, to the extent such new Restricted Subsidiary
is created solely for the purpose of consummating a transaction pursuant to an acquisition or other Investment permitted by this Section
6.06, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any acquisition or Investment consideration
contributed to it contemporaneously with the closing of such transaction, such new Restricted Subsidiary shall not be required to take
the actions set forth in Section 5.12 until the respective acquisition is consummated (at which time the surviving entity of the
respective transaction shall be required to so comply in accordance with the provisions thereof);
(ii)
contributions in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners,
members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the
case of a bankruptcy of the Borrower or any of its Restricted Subsidiaries;
(jj)
Investments by Loan Parties in any Restricted Subsidiary that is not a Loan Party so long as such Investment is part of a series of simultaneous
Investments by the Borrower and the Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the intercompany
Investment being invested in one or more Loan Parties;
(kk)
Investments consisting of earnest money deposits required in connection with purchase agreements or other acquisitions or Investments
otherwise permitted under this Section 6.06 and any other pledges or deposits permitted by Section 6.02;
(ll)
Term Loans repurchased by Holdings, the Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance
with this Agreement and, to the extent permitted (or not prohibited) by Section 6.04(b), loans repurchased by the Borrower or
a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance with the terms of any other Indebtedness;
(mm)
Guarantee obligations of the Borrower or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations
issued, made or incurred for the benefit of any Restricted Subsidiary of the Borrower to the extent required by law or in connection
with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;
(nn)
purchases and acquisitions of inventory, supplies, materials, services, equipment or similar assets in the ordinary course of business;
and
(oo)
Investments pursuant to, in connection with, or made with the proceeds of any Excluded Property Transaction and/or any iStar Exchange.
Section
6.07. Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries
to, enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves (or suffer any
liquidation or dissolution), or make any Disposition of assets having a fair market value in excess of $5,000,000, in a single transaction
or in a series of related transactions, and in excess of $10,000,000 in the aggregate for all such transactions in any Fiscal Year, except:
(a)
any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary; provided
that (i) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (A) the Borrower shall be the
continuing or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation (including
any immediate and successive mergers, consolidations or amalgamations of entities) is not the Borrower (any such Person after giving
effect to such transaction or transactions, the “Successor Borrower”), (1) the Successor Borrower shall be an
entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (2) the Successor Borrower
shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (3)
except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation
or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty
and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (1) through (3)
are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan
Documents, and (ii) in the case of any such merger, consolidation or amalgamation with or into any Subsidiary Guarantor, either (x)
such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume
the guarantee obligations of the Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (y) the
relevant transaction shall be treated as an Investment and otherwise be made in compliance with Section 6.06;
(b)
Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or
otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair
market value (as determined by such Person in good faith) or (ii) treated as an Investment and otherwise be made in compliance with Section
6.06 (other than in reliance on clause (j) thereof);
(c)
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution
is in the best interests of the Borrower, is not materially disadvantageous to the Lenders, and the Borrower or any Restricted Subsidiary
receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation
or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such
distribution shall be treated as an Investment and shall otherwise be made in compliance with Section 6.06 (other than in reliance
on clause (j) thereof); (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect
(A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause
(c)) or (B) any Investment permitted under Section 6.06; and (iii) the Borrower or any Restricted Subsidiary may be converted
into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or the
Collateral, taken as a whole;
(d)
(x) Dispositions of inventory or goods held for sale, equipment or other assets in the ordinary course of business (including on an intercompany
basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e)
Dispositions of surplus, obsolete, used or worn out property or other property that, in the good faith judgment of the Borrower, is (A)
no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable
or not commercially reasonable to maintain;
(f)
Dispositions of Cash and/or Cash Equivalents or other assets that were Cash and/or Cash Equivalents when the relevant original Investment
was made;
(g)
Dispositions, mergers, amalgamations, consolidations or conveyances that constitute (or are made in order to effectuate) Investments
permitted pursuant to Section 6.06 (other than Section 6.06(j)), Permitted Liens, Restricted Payments permitted by Section
6.04(a) (other than Section 6.04(a)(ix)) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h)
Dispositions for fair market value; provided that with respect to (1) any single Disposition transaction with respect to assets
having a fair market value in excess of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period or (2) any other Disposition transactions with respect to assets having a fair market value in excess of the
greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, for all such
transactions on an aggregate basis in any Fiscal Year, at least 75% of the consideration for such Disposition, shall consist of Cash
or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (v) the amount of any Indebtedness
or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Borrower
or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet
(or in the notes thereto), or if the incurrence of such Indebtedness or other liability took place after the date of such balance sheet,
that would have been shown on such balance sheet or in the notes thereto, as determined in good faith by the Borrower) that are (i) assumed
by the transferee of any such assets and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released
by all relevant creditors in writing or (ii) otherwise cancelled or terminated in connection with such Disposition, (w) the amount of
any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (x) any Securities
or other obligations or assets received by the Borrower or any Restricted Subsidiary from such transferee (including earn-outs or similar
obligations) that are converted by such Person into Cash or Cash Equivalents, or by their terms are required to be satisfied for Cash
or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable
Disposition and (y) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value,
taken together with all other Designated Non-Cash Consideration received pursuant to this clause (y) and clause (C)(z)
of the proviso to Section 6.08 that is at that time outstanding, not in excess of the greater of $10,000,000 and 7% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case shall be deemed to be Cash); provided, further,
that the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i)
to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii)
the proceeds of the relevant Disposition are promptly (or within 180 days) applied to the purchase price of such replacement property;
(j)
Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture
or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(k)
Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness
thereof) or in connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(l)
Dispositions and/or terminations of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses (including the provision
of software under any open source license), the Dispositions or terminations of which (i) do not materially interfere with the business
of the Borrower and its Restricted Subsidiaries, (ii) relate to closed facilities or the discontinuation of any product line or (iii)
are made in the ordinary course of business;
(m)
(i) any termination of any lease, sublease, license or sub-license in the ordinary course of business (and any related Disposition of
improvements made to leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal
property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation
claims (including in tort) in the ordinary course of business;
(n)
Dispositions of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain or condemnation proceedings
(including in lieu thereof or any similar proceeding);
(o)
Dispositions or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property) with
respect to facilities that are temporarily not in use, held for sale or closed;
(p)
the Transactions and any Dispositions in connection with the Transactions;
(q)
Dispositions of non-core assets and sales of Real Estate Assets, in each case acquired in any acquisition or other Investment permitted
hereunder, (x) which Disposition or sale is required to obtain the approval of any anti-trust authority or (y) which, within 120 days
of the date of such acquisition or Investment, are designated in writing to the Administrative Agent as being held for sale and not for
the continued operation of the Borrower or any of its Restricted Subsidiaries or any of their respective businesses;
(r)
exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction),
of property or assets so long as any such exchange or swap is made for fair value (as determined by the Borrower in good faith) for like
property or assets or property, assets or services of greater value or usefulness to the business of the Borrower and its Restricted
Subsidiaries as a whole, as determined in good faith by the Borrower; provided that upon the consummation of any such exchange
or swap by any Loan Party, to the extent the property received does not constitute an Excluded Asset, the Administrative Agent has a
perfected Lien with the same priority as the Lien held on the property or assets so exchanged or swapped;
(s)
Dispositions of assets that do not constitute Collateral having a fair market value of not more than, in any Fiscal Year, the greater
of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(t)
(i) licensing and cross-licensing (including sub-licensing) arrangements involving any technology, intellectual property or IP Rights
of the Borrower or any Restricted Subsidiary in the ordinary course of business, (ii) Dispositions, abandonments, cancellations or lapses
of IP Rights or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the good faith determination
of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical
to maintain in light of its use and (iii) Dispositions of any technology, intellectual property or other IP Rights of the Borrower or
any Restricted Subsidiary involving their customers in the ordinary course of business;
(u)
terminations or unwinds of Derivative Transactions;
(v)
Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w)
Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for
directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted
Subsidiary;
(x)
Dispositions made to comply with any order or other directive of any Governmental Authority or any applicable Requirement of Law;
(y)
any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary
in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z)
Dispositions constituting any part of a Permitted Reorganization and/or an IPO Reorganization Transaction;
(aa)
any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(bb)
other Dispositions involving assets having a fair market value of not more than, in any Fiscal Year, the greater of $15,000,000 and 11%
of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, which amounts if not used in any Fiscal Year
may be carried forward to the next succeeding Fiscal Year (with such carried over amount deemed first applied in such succeeding Fiscal
Year), in any event not to exceed, in any Fiscal Year, the greater of $30,000,000 and 22% of Consolidated Adjusted EBITDA as of the last
day of the most recently ended Test Period;
(cc)
Dispositions contemplated on the Closing Date and described on Schedule 6.07 hereto;
(dd)
Dispositions or discounts of accounts receivable, or participations therein, or other rights to payment and related assets in connection
with any Receivables Facility;
(ee)
the Borrower and the Restricted Subsidiaries may issue, sell or dispose of Capital Stock to directors, officers, managers or employees
for purposes of (i) satisfying requirements with respect to directors’ qualifying shares and shares issued to foreign nationals,
in each case as required by applicable Requirements of Law and (ii) satisfying applicable Requirements of Law with respect to Liquor
License Subsidiaries;
(ff)
the Borrower and the Restricted Subsidiaries may enter into any netting arrangement of accounts receivable between or among the Borrower
and its Restricted Subsidiaries or among Restricted Subsidiaries of the Borrower made in the ordinary course of business;
(gg)
[reserved];
(hh)
any merger, consolidation, liquidation, wind-up or dissolution by one or more Restricted Subsidiaries in order to effectuate an iStar
Exchange, Excluded Property Transaction or any Sale and Lease-Back Transaction permitted hereunder;
(ii)
the sale, lease, transfer or other Disposition of any Excluded Property or consummation of any iStar Exchange by the Borrower or any
Restricted Subsidiaries;
(jj)
Dispositions of Bowling Equipment pursuant to the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback 2014 Documents by the Borrower
or any Restricted Subsidiaries;
(kk)
Dispositions of the Closed Sites and Closed Centers (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback II
Documents);
(ll) one or more Foreign Asset Dispositions;
(mm)
Disposition of Site #288 known as Starlite Lanes and of any EAP (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback
2014 Documents);
(nn)
(i) Dispositions in the ordinary course of business of Bowling Equipment, bowling products and other equipment used in the operation
or maintenance of bowling centers and related accessories to Foreign Subsidiaries of the Borrower for use in bowling centers operated
by such Foreign Subsidiaries and (ii) Dispositions of bowling products to Foreign Subsidiaries for resale by such Foreign Subsidiaries,
in each case at a price at least equal to the cost to the Borrower or selling subsidiary of such Bowling Equipment, bowling products,
equipment used in the operation or maintenance of bowling centers or related accessories; and
(oo)
(i) Disposition, licenses or other transfers of patents and other IP Rights, together with the goodwill associated therewith, related
solely to bowling products and the amusement products business, (ii) the granting of a royalty-free perpetual license to use certain
“AMF” trademarks only in the field of bowling and amusement products, equipment and systems and certain services related
to the foregoing and (iii) the granting of a license concerning the Pinspash trademark.
To
the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party,
such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents (which Liens shall be automatically
released upon the consummation of such Disposition) and the Administrative Agent shall be authorized to take, and shall take, any actions
reasonably requested by the Borrower or otherwise deemed appropriate in order to effect the foregoing.
Section
6.08. Sale and Lease-Back Transactions. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly
or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether
real, personal or mixed), whether now owned or hereafter acquired, which the Borrower or the relevant Restricted Subsidiary (a) has sold
or transferred or is to sell or to transfer to any other Person (other than the Borrower or any of its Restricted Subsidiaries) and (b)
intends to use for substantially the same purpose as the property which has been or is to be sold or transferred by the Borrower or such
Restricted Subsidiary to any Person (other than the Borrower or any of its Restricted Subsidiaries) in connection with such lease (such
a transaction described herein, a “Sale and Lease-Back Transaction”); provided that any Sale and Lease-Back
Transaction shall be permitted so long as either (A) the resulting Indebtedness, if any, is permitted by Section 6.01(m) or Section
6.01(z), (B) such Sale and Leaseback Transaction (i) was in existence on the Closing Date or (ii) is an iStar Sale/Leaseback (including
pursuant to an iStar Exchange), iStar Sale/Leaseback 2014 or Excluded Property Sale/Leaseback Transaction or (C) (1) such Sale and Lease-
Back Transaction is made in exchange for cash consideration (provided that for purposes of the foregoing cash consideration requirement,
(v) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations
or that are owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on such Person’s
most recent balance sheet (or in the notes thereto), or, if the incurrence of such Indebtedness or other liability took place after the
date of such balance sheet, that would have been shown on such balance sheet or in the notes thereto, as determined in good faith by
the Borrower) that are (i) assumed by the transferee of any such assets and for which the Borrower and/or its applicable Restricted Subsidiary
have been validly released by all relevant creditors in writing or (ii) otherwise cancelled or terminated in connection with the relevant
Sale and Lease Back Transaction, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired
in connection with such Disposition, (y) any Securities or other obligations or assets received by the Borrower or any Restricted Subsidiary
from such transferee (including earn-outs or similar obligations) that are converted by such Person into Cash or Cash Equivalents, or
by their terms are required to be satisfied for Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within
180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of the
relevant Sale and Lease Back Transaction having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration
received pursuant to this clause (z) and clause (y) of the proviso to Section 6.07(h) that is at that time outstanding,
not in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period, in each case shall be deemed to be Cash), (2) the Borrower or its applicable Restricted Subsidiary would otherwise be permitted
to enter into, and remain liable under, the applicable underlying lease and (3) the aggregate fair market value of the assets sold subject
to all Sale and Lease-Back Transactions under this clause (C) shall not exceed the greater of $65,000,000 and 49% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period.
Section
6.09. Transactions with Affiliates. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into
any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) involving payment in
excess of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period
in any individual transaction with any of their respective Affiliates on terms that are substantially less favorable to the Borrower
or such Restricted Subsidiary, as the case may be (as determined by the Borrower in good faith), than those that might be obtained at
the time in a comparable arm’s-length transaction from a Person who is not an Affiliate; provided that the foregoing restriction
shall not apply to:
(a)
any transaction between or among Holdings, the Borrower and/or one or more Restricted Subsidiaries (or any entity that becomes a Restricted
Subsidiary as a result of such transaction) to the extent permitted or not restricted by this Agreement;
(b)
any issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body)
of any Parent Company or of the Borrower or any Restricted Subsidiary;
(c)
(i) any collective bargaining, employment, indemnification, expense reimbursement or severance agreement or compensatory (including profit
sharing) arrangement entered into by the Borrower or any of its Restricted Subsidiaries with any Permitted Payee, (ii) any subscription
agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with any Permitted
Payee and (iii) payments or other transactions pursuant to any management equity plan, employee compensation, benefit plan, stock option
plan or arrangement, equity holder arrangement, supplemental executive retirement benefit plan, any health, disability or similar insurance
plan, or any employment contract or arrangement which covers any Permitted Payee and payments pursuant thereto;
(d)
(i) transactions permitted by Sections 6.01(d), (o), (bb) and (ee), 6.04 and 6.06(h), (m), (o), (t), (v), (x), (y), (z), (aa), (bb), (cc), (ff), (gg), (ii), (jj), (kk), (ll)
and (mm), (ii) any Permitted Reorganization or IPO Reorganization Transaction and (iii) issuances of Capital Stock and
issuances and incurrences of Indebtedness not restricted by this Agreement and payments pursuant thereto;
(e)
the existence of, or performance by the Borrower or any Restricted Subsidiary of its obligations under the terms of, any transaction
or agreement in existence on the Closing Date and any amendment, modification or extension thereof to the extent such amendment, modification
or extension, taken as a whole, is not (i) materially adverse to the Lenders or (ii) more disadvantageous to the Lenders than the relevant
transaction in existence on the Closing Date;
(f)
(i) so long as no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) (solely with respect to the Borrower
in the case of Section 7.01(f) and (g)) then exists or would result therefrom, the payment of management, monitoring, consulting,
advisory and similar fees to any Investor in an amount not to exceed in any Fiscal Year the greater of $3,000,000 and 1% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period, it being understood that (x) during any such Event of Default,
such fees may continue to accrue and become payable upon the waiver, termination or cure of such Event of Default and (y) any amount
not paid in any Fiscal Year may be carried forward and paid in subsequent Fiscal Years without limitation as to amount, but otherwise
subject to the requirements of this clause (f), (ii) customary termination fees payable to the Investors, (iii) customary compensation
to Affiliates in connection with financial advisory, financing, underwriting or placement services or in respect of other investment
banking activities and other transaction fees, which are approved, or made pursuant to arrangements approved, by the majority of the
members of the board of directors (or similar governing body) or a majority of disinterested members of the board of directors (or similar
governing body) of the Borrower in good faith and (iv) the payment of any indemnification obligations and expenses (and similar amounts)
owed to any Investor and any of their respective directors, officers, members of management, managers, employees and consultants, in
each case of clauses (i), (ii), (iii) and (iv) whether currently due or paid in respect of accruals from prior periods;
(g)
the Transactions, including the payment of Transaction Costs and payments required under the Acquisition Agreement;
(h)
any transaction or transactions approved by a majority of the disinterested members of the board of directors (or similar governing body)
of the Borrower at such time;
(i)
Guarantees permitted by Section 6.01 or Section 6.06;
(j)
loans and other transactions among the Loan Parties and their Subsidiaries, in each case to the extent permitted under this Article
6;
(k)
the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board of directors
(or similar governing body), officers, employees, members of management, managers, consultants and independent contractors of the Borrower
and/or any of its Restricted Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity
on behalf of any Parent Company, to the extent attributable to the operations of the Borrower or its subsidiaries;
(l)
transactions with customers, clients, suppliers, licensees, Joint Ventures, purchasers or sellers of goods or services or providers of
employees or other labor entered into in the ordinary course of business, which are (i) fair to the Borrower and/or its applicable Restricted
Subsidiary in the good faith determination of the board of directors (or similar governing body) of the Borrower or the senior management
thereof or (ii) on terms not substantially less favorable to the Borrower and/or its applicable Restricted Subsidiary as might reasonably
be obtained from a Person other than an Affiliate;
(m)
the payment of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to shareholders
under any shareholder agreement and the existence or performance by the Borrower or any Restricted Subsidiary of its obligations under
any such registration rights or shareholder agreement;
(n)
(i) any purchase by Holdings of the Capital Stock of (or contribution to the equity capital of) the Borrower and (ii) any intercompany
loans made by Holdings to the Borrower or any Restricted Subsidiary;
(o)
any transaction in respect of which the Borrower delivers to the Administrative Agent a letter addressed to the board of directors (or
equivalent governing body) of the Borrower from an accounting, appraisal or investment banking firm of nationally recognized standing
stating that such transaction is on terms that are not substantially less favorable to the Borrower or the applicable Restricted Subsidiary
than might be obtained at the time in a comparable arm’s length transaction from a Person who is not an Affiliate;
(p)
(i) Investments by Affiliates in Securities or other Indebtedness of the Borrower or any Restricted Subsidiary (and payment of reasonable
out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the Investment is being offered by the Borrower
or such Restricted Subsidiary generally to other investors on the same or more favorable terms and (ii) payments to Affiliates in respect
of Securities or other Indebtedness of the Borrower or any Restricted Subsidiary contemplated in the foregoing subclause (i) or that
were acquired from Persons other than the Borrower and the Restricted Subsidiaries, in each case, in accordance with the terms of such
Securities or other Indebtedness;
(q)
[reserved];
(r)
transactions undertaken in the ordinary course of business pursuant to membership in a purchasing consortium; and
(s)
any transaction in connection with the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Transaction and/or
any iStar Exchange.
Section
6.10. [Reserved].
Section
6.11. [Reserved].
Section
6.12. Amendments of or Waivers with Respect to Restricted Debt. The Borrower shall not, nor shall it permit any of its Restricted
Subsidiaries to, amend or otherwise modify the terms of any Restricted Debt (or the documentation governing any Restricted Debt) if the
effect of such amendment or modification, together with all other amendments or modifications made, is materially adverse to the interests
of the Lenders (in their capacities as such); provided that, for purposes of clarity, it is understood and agreed that the foregoing
limitation shall not otherwise prohibit any Refinancing Indebtedness or any other replacement, refinancing, amendment, supplement, modification,
extension, renewal, restatement or refunding of any Restricted Debt, in each case, that is permitted under this Agreement in respect
thereof.
Section
6.13. [Reserved].
Section
6.14. Permitted Activities of Holdings. Holdings shall not:
(a)
incur any Indebtedness for borrowed money other than (i) the Indebtedness permitted to be incurred by Holdings under the Loan Documents
and any Second Lien Facility or otherwise in connection with the Transactions, (ii) Guarantees of Indebtedness or other obligations of
the Borrower and/or any Restricted Subsidiary, which Indebtedness or other obligations are otherwise permitted hereunder, (iii) Indebtedness
owed to the Borrower or any Restricted Subsidiary otherwise permitted hereunder and (iv) any Indebtedness or other obligations arising
in respect of its Guarantee of the iStar Sale/Leaseback, iStar Sale/Leaseback 2014, any Excluded Property Transaction and any iStar Exchange;
(b)
create or suffer to exist any Lien on any property or asset now owned or hereafter acquired by it other than (i) the Liens created under
the Collateral Documents and, subject to the Intercreditor Agreement, the collateral documents relating to any Second Lien Facility,
in each case, to which it is a party, (ii) any other Lien created in connection with the Transactions, (iii) Permitted Liens on the Collateral
that are secured on a pari passu or junior basis with the Secured Obligations, so long as such Permitted Liens secure Guarantees
permitted under clause (a)(ii) above and the underlying Indebtedness subject to such Guarantee is permitted to be secured on the
same basis pursuant to Section 6.02 and (iv) Liens of the type permitted under Section 6.02 (other than in respect of Indebtedness
for borrowed money not referred to in clause (a)(i) of this Section 6.13); or
(c)
engage in any material business activity or own any material assets other than (i) holding the Capital Stock of the Borrower and, indirectly,
any other subsidiary of the Borrower (and/or any Joint Venture of any thereof); (ii) performing its obligations under the Loan Documents
and any Second Lien Facility and other Indebtedness, Liens (including the granting of Liens) and Guarantees permitted hereunder; (iii)
issuing its own Capital Stock (including, for the avoidance of doubt, the making of any dividend or distribution on account of, or any
redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value of, any shares of any class of Capital
Stock permitted hereunder); (iv) filing Tax reports and paying Taxes, including Tax distributions made pursuant to Section 6.04(a)(xv)
and other customary obligations in the ordinary course (and contesting any Taxes); (v) preparing reports to Governmental Authorities
and to its shareholders; (vi) holding director and shareholder meetings, preparing organizational records and other organizational activities
required to maintain its separate organizational structure or to comply with applicable Requirements of Law; (vii) effecting any initial
public offering of its Capital Stock; (viii) holding (A) Cash, Cash Equivalents and other assets received in connection with permitted
distributions or dividends received from, or permitted Investments or permitted Dispositions made by, any of its subsidiaries or permitted
contributions to the capital of, or proceeds from the issuance of Capital Stock of, Holdings pending the application thereof and (B)
the proceeds of Indebtedness permitted by Section 6.01; (ix) providing indemnification for its officers, directors, members of
management, employees and advisors or consultants; (x) participating in tax, accounting and other administrative matters; (xi) making
payments of the type permitted under Section 6.09(f) and the performance of its obligations under any document, agreement and/or
Investment contemplated by the Transactions, the Amendment No. 1 Transactions,
the Amendment No. 2 Transactions or otherwise not prohibited under this Agreement; (xii) complying with applicable Requirements
of Law (including with respect to the maintenance of its existence); (xiii) [reserved]; (xiv) repurchases of Indebtedness through open
market purchases and/or Dutch Auctions permitted hereunder; (xv) activities incidental to Permitted Acquisitions or similar Investments
consummated by the Borrower and/or any Restricted Subsidiaries, including the formation of acquisition vehicle entities and intercompany
loans and/or Investments incidental to such Permitted Acquisitions or similar Investments; (xvi) consummating the Holdings Reorganization
Transaction, any Permitted Reorganization or any IPO Reorganization Transaction; (xvii) the maintenance of its legal existence (including
the ability to incur and pay, as applicable, fees, costs and expenses and taxes related to such maintenance), (xviii) activities incidental
or reasonably related to any of the foregoing and (xvii) any transaction expressly permitted pursuant to clauses (a), (b)
and/or (d) of this Section 6.14; or
(d)
consolidate or amalgamate with, or merge with or into, or convey, sell or otherwise transfer all or substantially all of its assets to,
any Person; provided that, so long as no Event of Default exists or would result therefrom, (A) Holdings may consolidate or amalgamate
with, or merge with or into, any other Person (other than the Borrower and any of its subsidiaries) so long as (i) Holdings is the continuing
or surviving Person or (ii) if the Person formed by or surviving any such consolidation, amalgamation or merger is not Holdings, (x)
the successor Person expressly assumes all obligations of Holdings under this Agreement and the other Loan Documents to which Holdings
is a party pursuant to a supplement hereto and/or thereto in a form reasonably satisfactory to the Administrative Agent and (y) the Borrower
delivers a certificate of a Responsible Officer with respect to the satisfaction of the conditions set forth in clause (x) of
this clause (A)(ii) and (B) Holdings may (1) consummate the Holdings Reorganization Transaction and/or (2) otherwise convey,
sell or otherwise transfer all or substantially all of its assets to any other Person (other than the Borrower and any of its subsidiaries)
so long as (x) no Change of Control results therefrom, (y) the Person acquiring such assets expressly assumes all of the obligations
of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto and/or thereto
in a form reasonably satisfactory to the Administrative Agent and (z) the Borrower delivers a certificate of a Responsible Officer with
respect to the satisfaction of the conditions under clause (x) set forth in this clause (B); provided, further, that
(1) if the conditions set forth in the preceding proviso are satisfied, the successor to Holdings will succeed to, and be substituted
for, Holdings under this Agreement, (2) it is understood and agreed that Holdings may convert into another form of entity so long as
such conversion does not adversely affect the value of the Collateral pledged by Holdings, taken as a whole and (3) notwithstanding anything
to the contrary in this Section 6.14, nothing herein shall preclude Holdings from consummating any Permitted Reorganization or
IPO Reorganization Transaction.
Section
6.15. Financial Covenant.
(a)
First Lien Leverage Ratio. On the last day of any Test Period ending on or after the last day of the first full Fiscal Quarter
ending after the Closing Date on which the Revolving Facility Test Condition is then satisfied, the Borrower shall not permit the First
Lien Leverage Ratio to be greater than 6.25:1.00, stepping-down to a First Lien Leverage Ratio of 6.00:1.00 for the Fiscal Quarter ended
on or about September 30, 2020 and thereafter.
(b)
Financial Cure. Notwithstanding anything to the contrary in this Agreement (including Article 7), if the Borrower reasonably
expects to fail (or has failed) to comply with Section 6.15(a) above for any Fiscal Quarter, the Borrower shall have the right
(the “Cure Right”) (at any time during such Fiscal Quarter or thereafter until the date that is 10 Business Days after
the date on which financial statements for such Fiscal Quarter are required to be delivered pursuant to Section 5.01(a) or (b),
as applicable) to issue equity (which shall be common equity, Qualified Capital Stock or other equity (such other equity to be on
terms reasonably acceptable to the Administrative Agent)) for Cash or otherwise receive Cash contributions in respect of Qualified Capital
Stock (the “Cure Amount”), and thereupon the Borrower’s compliance with Section 6.15(a) shall be recalculated
giving effect to the following pro forma adjustment: Consolidated Adjusted EBITDA shall be increased (notwithstanding the absence of
a related addback in the definition of “Consolidated Adjusted EBITDA”), solely for the purpose of determining compliance
with Section 6.15(a) as of the end of such Fiscal Quarter and for applicable subsequent periods that include such Fiscal Quarter,
by an amount equal to the Cure Amount. If, after giving effect to the foregoing recalculation (but not, for the avoidance of doubt, except
as expressly set forth below, taking into account any immediate repayment of Indebtedness in connection therewith), the requirements
of Section 6.15(a) would be satisfied, then the requirements of Section 6.15(a) shall be deemed satisfied as of the end
of the relevant Fiscal Quarter with the same effect as though there had been no failure to comply therewith at such date, and the applicable
breach or default of Section 6.15(a) that had occurred (or would have occurred) shall be deemed cured for the purposes of this
Agreement. Notwithstanding anything herein to the contrary, (i) in each four consecutive Fiscal Quarter period there shall be at least
two Fiscal Quarters (which may, but are not required to be, consecutive) in which the Cure Right is not exercised, (ii) during the term
of this Agreement, the Cure Right shall not be exercised more than five times, (iii) the Cure Amount shall be no greater than the amount
required for the purpose of complying with Section 6.15(a) (or to be in pro forma compliance with any financial covenant with
respect to any other Indebtedness that is being cured), (iv) upon the Administrative Agent’s receipt of a written notice
from the Borrower that the Borrower intends to exercise the Cure Right (a “Notice of Intent to Cure”), until the 10th
Business Day following the date on which financial statements for the Fiscal Quarter to which such Notice of Intent to Cure relates are
required to be delivered pursuant to Section 5.01(a) or (b), as applicable, neither the Administrative Agent (nor any sub-agent
therefor) nor any Lender shall exercise any right to accelerate the Loans or terminate the Revolving Credit Commitments or any Additional
Commitments, and none of the Administrative Agent (nor any sub-agent therefor) nor any Lender or Secured Party shall exercise any right
to foreclose on or take possession of the Collateral or any other right or remedy under the Loan Documents, in each case solely on the
basis of the relevant Event of Default under Section 6.15(a), (v) during any Test Period in which any Cure Amount is included
in the calculation of Consolidated Adjusted EBITDA as a result of any exercise of the Cure Right, such Cure Amount shall be (A) counted
solely as an increase to Consolidated Adjusted EBITDA (and not as a reduction of Indebtedness (by netting or otherwise), except to the
extent that the proceeds of such Cure Amount are actually applied to repay Indebtedness, such reduction may be credited in any subsequent
Fiscal Quarter) for the purpose of determining compliance with Section 6.15(a) and (B) disregarded for all other purposes,
including the purpose of determining whether any financial ratio-based condition has been satisfied, the Applicable Rate or the Commitment
Fee Rate or the availability of any carve-out set forth in Article 6 of this Agreement and (vi) no Revolving Lender or Issuing
Bank shall be required to make any Revolving Loan or issue any Letter of Credit hereunder if an Event of Default under Section 6.15(a)
exists during the 10 Business Day period during which the Borrower may exercise a Cure Right above unless and until the Cure Amount
is actually received.
ARTICLE
7 EVENTS OF DEFAULT
Section
7.01. Events of Default. If any of the following events (each, an “Event of Default”) shall occur:
(a)
Failure To Make Payments When Due. Failure by the Borrower to pay (i) any installment of principal of any Loan when due, whether
at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on
any Loan, any fee or other non-principal amount due hereunder within five Business Days after the date due.
(b)
Default in Other Agreements. (i) Failure by the Borrower or any of its Restricted Subsidiaries to pay when due any principal of
or interest on or any other amount payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in clause
(a) above) with an aggregate outstanding principal amount exceeding the Threshold Amount, in each case beyond the applicable notice
period and grace period, if any, provided therefor; or (ii) breach or default by the Borrower or any of its Restricted Subsidiaries with
respect to any other term of (A) one or more items of Indebtedness with an aggregate outstanding principal amount exceeding the Threshold
Amount or (B) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness (other than, for the
avoidance of doubt, with respect to Indebtedness consisting of Hedging Obligations, termination events or equivalent events pursuant
to the terms of the relevant Hedge Agreement which are not the result of any default thereunder by any Loan Party or any Restricted Subsidiary),
in each case beyond the applicable notice period and grace period, if any, provided therefor, if the effect of such breach or default
is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause,
such Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; provided that clause (ii) of this paragraph (b) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness if such sale or
transfer is permitted hereunder; provided, further, that (x) with respect to any breach or default referred to in clause (ii)
above with respect to a financial covenant in any such Indebtedness, such breach or default shall only constitute an Event of Default
hereunder if such breach or default has resulted in the acceleration of such Indebtedness and the termination of commitments thereunder
and (y) any failure described under clauses (i) or (ii) above is unremedied and is not waived by the holders of such Indebtedness
prior to any termination of the Commitments or acceleration of the Loans pursuant to this Article 7; or
(c)
Breach of Certain Covenants. Failure of any Loan Party, as required by the relevant provision, to perform or comply with any term
or condition contained in Section 5.01(e)(i) (provided that subsequent delivery of a notice of Default or Event of Default
shall cure such Event of Default for failure to provide notice, unless a Responsible Officer of Holdings or the Borrower had actual knowledge
that such Default or Event of Default had occurred and was continuing and should have reasonably known in the course of his or her duties
that failure to provide such notice would constitute an Event of Default), Section 5.02 (as it applies to the preservation of
the existence of the Borrower), or Article 6; provided that, notwithstanding this clause (c), no breach or default
by any Loan Party under Section 6.15(a) will constitute an Event of Default with respect to any Term Loans unless and until the
Required Revolving Lenders have accelerated the Revolving Loans and any Additional Revolving Loans, terminated the commitments under
the Revolving Facility and demanded repayment of, or otherwise accelerated, the Indebtedness or other obligations under the Revolving
Facility and have not rescinded such demand or acceleration (the “Financial Covenant Standstill”); it being understood
and agreed that any breach of Section 6.15(a) (or any other financial covenant) is subject to cure as provided in Section 6.15(b),
and no Event of Default shall arise under Section 6.15(a) until the 10th Business Day after the day on which financial statements
are required to be delivered for the relevant Fiscal Quarter under Section 5.01(a) or (b), as applicable, and then only
to the extent the Cure Amount has not been received on or prior to such date; or
(d)
Breach of Representations, Etc. Any representation, warranty or certification made or deemed made by any Loan Party in any Loan
Document or in any certificate required to be delivered in connection herewith or therewith (including, for the avoidance of doubt, any
Perfection Certificate) (limited, on the Closing Date, solely to the Specified Representations and representations referred to in any
officer’s certificate delivered on the Closing Date that specifically refers to this Section 7.01(d)), shall be untrue in
any material respect as of the date made or deemed made and such untrue representation, warranty or certification shall remain untrue
for a period of 30 days after notice from the Administrative Agent to the Borrower (which notice shall only be given at the direction
of the Required Lenders); or
(e)
Other Defaults Under Loan Documents. Default by any Loan Party in the performance of or compliance with any term contained herein
or in any of the other Loan Documents, other than any such term referred to in any other Section of this Article 7, which default
has not been remedied or waived within 30 days after receipt by the Borrower of written notice thereof from the Administrative Agent;
or
(f)
Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) The entry by a court of competent jurisdiction of a decree or order
for relief in respect of Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) (any such
Person, a “Specified Person”) in an involuntary case under any Debtor Relief Law now or hereafter in effect, which
decree or order is not stayed; or any other similar relief shall be granted under any applicable federal, state or local law, which relief
is not stayed; or (ii) the commencement of an involuntary case against any Specified Person under any Debtor Relief Law; the entry by
a court having jurisdiction in the premises of a decree or order for the appointment of a receiver, receiver and manager, (preliminary)
insolvency receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over any Specified Person, or
over all or a substantial part of its property; or the involuntary appointment of an interim receiver, trustee or other custodian of
any Specified Person for all or a substantial part of its property, which remains, in any case under this clause (f), undismissed,
unvacated, unbonded or unstayed pending appeal for 60 consecutive days; or
(g)
Voluntary Bankruptcy; Appointment of Receiver, Etc. (i) The entry against any Specified Person of an order for relief, the commencement
by any Specified Person of a voluntary case under any Debtor Relief Law, or the consent by any Specified Person to the entry of an order
for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Law, or the
consent by any Specified Person to the appointment of or taking possession by a receiver, receiver and manager, trustee or other custodian
for all or a substantial part of its property; (ii) the making by any Specified Person of a general assignment for the benefit of creditors;
or (iii) the admission by any Specified Person in writing of their inability to pay their respective debts as such debts become due;
or
(h)
Judgments and Attachments. The entry or filing of one or more final money judgments, writs or warrants of attachment or similar
process against the Borrower or any of its Restricted Subsidiaries or any of their respective assets involving in the aggregate at any
time an amount in excess of the Threshold Amount (in either case to the extent not adequately covered by indemnity from a third party
as to which the indemnifying party has been notified and not denied its indemnification obligations, self- insurance (if applicable)
or insurance as to which the relevant third party insurance company has been notified and not denied coverage), which judgment, writ,
warrant or similar process remains unpaid, undischarged, unvacated, unbonded or unstayed pending appeal for a period of 60 consecutive
days; or
(i)
Employee Benefit Plans. The occurrence of one or more ERISA Events, which individually or in the aggregate result in liability
of the Borrower or any of its Restricted Subsidiaries in an aggregate amount which would reasonably be expected to result in a Material
Adverse Effect; or
(j)
Change of Control. The occurrence of a Change of Control; or
(k)
Guaranties, Collateral Documents and Other Loan Documents. At any time after the execution and delivery thereof (i) any material
Loan Guaranty for any reason ceasing to be in full force and effect (other than in accordance with its terms or as a result of the occurrence
of the Termination Date) or being declared by a court of competent jurisdiction to be null and void or the repudiation in writing by
any Loan Party of its obligations thereunder (other than as a result of the discharge of such Loan Party in accordance with the terms
thereof), (ii) this Agreement or any material Collateral Document or any Lien on a material portion of the Collateral ceasing to be in
full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof, the occurrence
of the Termination Date or any other termination of such Collateral Document in accordance with the terms thereof) or being declared
by a court of competent jurisdiction to be null and void or (iii) other than in any bona fide, good faith dispute as to the scope of
Collateral or whether any Lien has been, or is required to be released, the contesting by any Loan Party of the validity or enforceability
of any material provision of any Loan Document (or any Lien on a material portion of the Collateral purported to be created by the Collateral
Documents) in writing or denial by any Loan Party in writing that it has any further liability (other than by reason of the occurrence
of the Termination Date or any other termination of any other Loan Document in accordance with the terms thereof), including with respect
to future advances by the Lenders, under any Loan Document to which it is a party; it being understood and agreed that the failure of
the Administrative Agent to maintain possession of any Collateral actually delivered to it or file any UCC (or equivalent) continuation
statement shall not result in an Event of Default under this clause (k); or
(l)
Subordination. The Obligations ceasing or the assertion in writing by any Loan Party that the Obligations cease to constitute
senior indebtedness under the subordination provisions of any document or instrument evidencing any permitted Junior Indebtedness in
excess of the Threshold Amount (in each case, to the extent required by such subordination provision) or any such subordination provision
being invalidated by a court of competent jurisdiction or otherwise ceasing, for any reason, to be valid, binding and enforceable obligations
of the parties thereto;
then,
and in every such Event of Default (other than (x) an Event of Default with respect to the Borrower described in clause (f) or
(g) of this Article or (y) any Event of Default arising under Section 6.15(a)), and at any time thereafter during the continuance
of such Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower,
take any of the following actions, at the same or different times: (i) terminate the Revolving Credit Commitments, and thereupon such
Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal
of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower and (iii) require that the Borrower deposit in the LC Collateral Account an additional amount
in Cash as reasonably requested by the Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC Exposure
(minus the amount then on deposit in the LC Collateral Account); provided that (A) upon the occurrence of an Event of Default
with respect to the Borrower described in clause (f) or (g) of this Article, any such Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower, and the obligation of the Borrower to Cash collateralize the outstanding Letters of Credit
as aforesaid shall automatically become effective, in each case without further action of the Administrative Agent or any Lender and
(B) during the continuance of any Event of Default arising under Section 6.15(a), after giving effect to the proviso to Section
7.01(c), (X) solely upon the request of the Required Revolving Lenders (but not the Required Lenders or any other Lender or group
of Lenders), the Administrative Agent shall, by notice to the Borrower, (1) terminate the Revolving Credit Commitments, and thereupon
such Revolving Credit Commitments shall terminate immediately, (2) declare the Revolving Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Revolving Loans so declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder in respect of the Revolving Loans, shall become due and payable immediately,
without presentment, demand, protest or other notice in respect thereof of any kind, all of which are hereby waived by the Borrower and
(3) require that the Borrower deposit in the LC Collateral Account an additional amount in Cash as reasonably requested by the Issuing
Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC Exposure (minus the amount then on deposit in
the LC Collateral Account) and (Y) subject to the Financial Covenant Standstill, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of
the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower. Upon the occurrence and during the continuance of an Event of Default, subject
to the Intercreditor Agreement and any other applicable intercreditor agreement, the Administrative Agent may, and at the request of
the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law
or equity, including all remedies provided under the UCC.
ARTICLE
8 THE ADMINISTRATIVE AGENT
Each
of the Lenders and the Issuing Banks, on behalf of itself and its applicable Affiliates and in their respective capacities as such and
as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints
JPM (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions
on its behalf, including execution of the other Loan Documents or any other documents with respect to the rights of the Secured Parties
and the Collateral as contemplated by this Agreement and the Loan Documents, and to exercise such powers as are delegated to the Administrative
Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
Each
of the Secured Parties hereby irrevocably appoints and authorizes the Administrative Agent (as collateral agent) to act as the agent
of (and to hold any security interest created by the Loan Documents for and on behalf of or on trust for) such Secured Party for purposes
of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together
with such powers and discretion as are reasonably incidental thereto. The Lenders agree that any such actions by the Administrative Agent
shall bind such Secured Party.
Any
Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include
each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business
with any Loan Party or any subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding
any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan
Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information
to them.
The
Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting
the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative
Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers
that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed
by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under
the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to
take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary
to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings,
the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for
any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful
misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth
herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document,
(ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the
performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any
Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency
of the Collateral, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any
Loan Party or any Affiliate thereof, provided, further that, the foregoing paragraph is solely for the benefit of the Administrative
Agent and not any Lender.
Each
Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or
under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have
under applicable law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code
or other similar Dispositions of Collateral. Notwithstanding the foregoing, however, except as otherwise expressly limited herein, a
Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that
would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of a proof of claim in a case
under the Bankruptcy Code.
Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured
Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan
Guaranty; it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative
Agent on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents
may be exercised solely by the Administrative Agent and (ii) in the event of a foreclosure by the Administrative Agent on any of the
Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy
Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply
all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent
at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral
at any such Disposition.
No
holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection
with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement.
Each
of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or
by entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes
and shall be deemed to authorize) the Administrative Agent, on behalf of all Secured Parties, to take any of the following actions upon
the instruction of the Required Lenders:
(a)
consent to the Disposition of all or any portion of the Collateral free and clear of the Liens securing the Secured Obligations in connection
with any Disposition pursuant to the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including
Section 363 thereof;
(b)
credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly
or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to
the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including under Section 363 thereof;
(c)
credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly
or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to
the applicable provisions of the UCC (or other applicable Debtor Relief Law), including pursuant to Sections 9-610 or 9-620 of the UCC;
(d)
credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly
or through one or more acquisition vehicles), in connection with any foreclosure or other Disposition conducted in accordance with applicable
law following the occurrence of an Event of Default, including by power of sale, judicial action or otherwise; and/or
(e)
estimate the amount of any contingent or unliquidated Secured Obligations of such Lender or other Secured Party;
it
being understood that no Lender shall be required to fund any new amount in connection with any purchase of all or any portion of the
Collateral by the Administrative Agent pursuant to the foregoing clauses (b), (c) or (d) without its prior written
consent.
Each
Secured Party agrees that the Administrative Agent is under no obligation to credit bid any part of the Secured Obligations or to purchase
or retain or acquire any portion of the Collateral; provided that, in connection with any credit bid or purchase described under
clauses (b), (c) or (d) of the preceding paragraph, the Secured Obligations owed to all of the Secured Parties (other
than with respect to contingent or unliquidated liabilities as set forth in the next succeeding paragraph) may be, and shall be, credit
bid by the Administrative Agent on a ratable basis. For the avoidance of doubt, nothing in this Article 8 shall limit any rights of Holdings
or its Subsidiaries under Section 363(k) of the Bankruptcy Code (or the corresponding provisions of any other applicable Debtor Relief
Law).
With
respect to each contingent or unliquidated claim that is a Secured Obligation, the Administrative Agent is hereby authorized by the Secured
Parties, but is not required, to estimate the amount thereof for purposes of any credit bid or purchase described in the second preceding
paragraph so long as the estimation of the amount or liquidation of such claim would not unduly delay the ability of the Administrative
Agent to credit bid the Secured Obligations or purchase the Collateral in the relevant Disposition. In the event that the Administrative
Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot
be estimated without unduly delaying the ability of the Administrative Agent to consummate any credit bid or purchase in accordance with
the second preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit
bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid.
Each
Secured Party whose Secured Obligations are credit bid under clauses (b), (c) or (d) of the third preceding paragraph
shall be entitled to receive interests in the Collateral or any other asset acquired in connection with such credit bid (or in the Capital
Stock of the acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in accordance with the
percentage obtained by dividing (x) the amount of the Secured Obligations of such Secured Party that were credit bid in such credit bid
or other Disposition by (y) the aggregate amount of all Secured Obligations that were credit bid in such credit bid or other Disposition.
In
addition, in case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan
Party, each Secured Party agrees that the Administrative Agent (irrespective of whether the principal of any Loan or LC Exposure is then
due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans or LC Exposure
and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have
the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and
all other amounts to the extent due to the Lenders and the Administrative Agent under Sections 2.12 and 9.03) allowed in
such judicial proceeding; and
(ii)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.
Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and each Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative
Agent consents to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and
any other amount due to the Administrative Agent under Sections 2.12 and 9.03.
Nothing
contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or any Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or any Issuing
Bank in any such proceeding.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank,
the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received
notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
The
Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents
appointed by it. The Administrative Agent and any such sub- agent may perform any and all of their respective duties and exercise their
respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent and shall apply to their respective activities
in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent.
The
Administrative Agent may resign at any time by giving thirty days’ written notice to the Lenders, the Issuing Banks and the Borrower.
If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower
may, upon thirty days’ notice, remove the Administrative Agent. Upon receipt of any such notice of resignation or delivery of any
such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld
or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company or other Person reasonably
acceptable to the Borrower with offices in the U.S.; provided that during the existence and continuation of an Event of Default
under Section 7.01(a) or, with respect to the Borrower, Section 7.01(f) or (g), no consent of the Borrower shall
be required. If no successor shall have been appointed as provided above and accepted such appointment within thirty days after the retiring
Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of
a retirement, the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks,
appoint a successor Administrative Agent meeting the qualifications set forth above (including, for the avoidance of doubt, consent of
the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required Lenders, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies
the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal,
the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation
or removal shall nonetheless become effective in accordance with such notice and (i) the retiring or removed Administrative Agent shall
be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for perfection purposes, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed)
and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead
be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to
enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor
Administrative Agent, as provided for above in this Article 8. Upon the acceptance of its appointment as Administrative Agent
hereunder as a successor Administrative Agent, such successor Administrative Agent shall succeed to and become vested with all the rights,
powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the
retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations
hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative
Agent. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 9.03
shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related
Parties in respect of any action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative Agent
(including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding
anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative
Agent.
Any
resignation or removal of the Administrative Agent hereunder shall also constitute its resignation as Issuing Bank and the Swingline
Lender effective as of the date of effectiveness of its resignation or removal as Administrative Agent as provided above; it being understood
that in the event of any such resignation, any Letter of Credit then outstanding shall remain outstanding (irrespective of whether any
amounts have been drawn at such time). In the event of any such resignation as an Issuing Bank or the Swingline Lender, the Borrower
shall be entitled to appoint any Revolving Lender that is willing to accept such appointment as successor Issuing Bank or Swingline Lender
hereunder. Upon the acceptance of any appointment as Issuing Bank or Swingline Lender hereunder by a successor Issuing Bank or Swingline
Lender, as applicable, such successor Issuing Bank or Swingline Lender, as applicable, shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the resigning Issuing Bank or Swingline Lender, as applicable, and the resigning Issuing
Bank and Swingline Lender, as applicable, shall be discharged from its duties and obligations in such capacity hereunder. In the event
the Swingline Lender resigns, the Borrower shall promptly repay all outstanding Swingline Loans on the effective date of such resignation
(which repayment may be effectuated with the proceeds of a Borrowing).
Each
Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender or any of their respective Related Parties and based on such documents
and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under
or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Except
for notices, reports and other documents expressly required to be furnished to the Lenders and the Issuing Banks by the Administrative
Agent herein, the Administrative Agent shall not have any duty or responsibility to provide any Lender or any Issuing Bank with any credit
or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into the possession of the Administrative Agent or any of its
Related Parties.
Notwithstanding
anything to the contrary herein, the Arrangers shall not have any right, power, obligation, liability, responsibility or duty under this
Agreement, except in their respective capacities, as applicable, as the Administrative Agent, an Issuing Bank or a Lender hereunder.
Each
Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall:
(a)
release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the occurrence of the
Termination Date, (ii) that is sold or to be sold or transferred as part of or in connection with any Disposition permitted under the
Loan Documents to a Person that is not a Loan Party, (iii) that does not constitute (or ceases to constitute) Collateral, (iv) if the
property subject to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Loan Guaranty
otherwise in accordance with the Loan Documents, (v) as required under clause (d) below or (vi) if approved, authorized
or ratified in writing by the Required Lenders (or such other number or percentage of Lenders as shall be necessary under the relevant
circumstances as provided in Section 9.02) in accordance with Section 9.02;
(b)
without limiting Section 9.22, release any Subsidiary Guarantor from its obligations under the Loan Guaranty (i) if such Person
ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions
or any event or other circumstance permitted hereunder); provided, that the release of any Subsidiary Guarantor from its obligations
under the Loan Guaranty if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition
thereof shall only be permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect
to such release and the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower
is deemed to have made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an
amount equal to the portion of the fair market value of the net assets of such Person attributable to the Borrower’s equity interest
therein as estimated by the Borrower in good faith and such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f))
at such time and/or (ii) upon the occurrence of the Termination Date;
(c)
subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien
on such property that is permitted by Sections 6.02(c), 6.02(d), 6.02(e), 6.02(g), 6.02(l), 6.02(m),
6.02(n), 6.02(o), 6.02(q), 6.02(r), 6.02(u), 6.02(v)(ii), 6.02(x), 6.02(y), 6.02(z)(i),
6.02(bb), 6.02(cc), 6.02(dd), 6.02(ee), 6.02(ff), 6.02(gg), 6.02(hh), 6.02(ii),
6.02(ll), 6.02(tt) and 6.02(uu) (and any Refinancing Indebtedness in respect of any thereof to the extent such Refinancing
Indebtedness is permitted to be secured under Section 6.02(k)); and
(d)
enter into subordination, intercreditor, collateral trust and/or similar agreements (and any amendments thereof) with respect to Indebtedness
(including any Acceptable Intercreditor Agreement and any amendment thereto) that is (i) required or permitted to be subordinated hereunder
or pari passu with the Liens securing the Obligations and/or (ii) secured by Liens, and which Indebtedness contemplates an intercreditor,
subordination, collateral trust or similar agreement.
Upon
the request of the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority
to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under
the Loan Guaranty or its Lien on any Collateral pursuant to this Article 8. In each case as specified in this Article 8,
the Administrative Agent will (and each Lender and each Issuing Bank hereby authorizes the Administrative Agent to), at the Borrower’s
expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release
of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest
therein, or to release such Loan Party from its obligations under the Loan Guaranty, in each case in accordance with the terms of the
Loan Documents and this Article 8. The parties hereto acknowledge and agree that the Administrative Agent may rely conclusively
as to any of the matters described in this Section 9.02 and Section 9.22 (including as to its authority hereunder and thereunder)
on a certificate or similar instrument provided to it by any Loan Party without further inquiry or investigation, which certificate shall
be delivered to the Administrative Agent by the Loan Parties upon request.
The
Administrative Agent is authorized to enter into the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any other
intercreditor, subordination, collateral trust or similar agreement contemplated hereby with respect to any (a) Indebtedness (i) that
is (A) required or permitted to be subordinated hereunder or pari passu with the Liens securing the Obligations and/or (B) secured by
Liens and (ii) with respect to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor, subordination, collateral
trust or similar agreement (any such other intercreditor, subordination, collateral trust and/or similar agreement, an “Additional
Agreement”) and/or (b) Secured Hedging Obligations and/or Banking Services Obligations, whether or not constituting Indebtedness,
and each Secured Party acknowledges that the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any Additional
Agreement is binding upon them. Each Secured Party hereby (a) acknowledges that it has received a copy of the Intercreditor Agreement
and consents to the subordination of the Liens on the Collateral securing the Secured Obligations on the terms set forth in the Intercreditor
Agreement, (b) agrees that it will be bound by, and will not take any action contrary to, the provisions of the Intercreditor Agreement,
any other Acceptable Intercreditor Agreement or any Additional Agreement and (c) authorizes and instructs the Administrative Agent to
enter into the Intercreditor Agreement or any Additional Agreement (including any Acceptable Intercreditor Agreement) and to subject
the Liens on the Collateral securing the Secured Obligations to the provisions thereof. The foregoing provisions are intended as an inducement
to the Secured Parties to extend credit to the Borrower, and the Secured Parties are intended third-party beneficiaries of such provisions
and the provisions of the Intercreditor Agreement, any Acceptable Intercreditor Agreement and/or any other Additional Agreement.
To
the extent that the Administrative Agent (or any Affiliate thereof) is not reimbursed and indemnified by the Borrower in accordance with
the terms of this Agreement, the Lenders will reimburse and indemnify the Administrative Agent (and any Affiliate thereof) in proportion
to their respective Applicable Percentages (determined as if there were no Defaulting Lenders) for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent (or any Affiliate thereof) in performing its duties hereunder
or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided
that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
ARTICLE
9 MISCELLANEOUS
Section
9.01. Notices.
(a)
Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b)
below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by facsimile or email, as follows:
(i)
if to any Loan Party, to such Loan Party in the care of Holdings at:
Bowlmor
AMF Corp.
222
West 44th Street
New
York, New York 10036
Telephone:
+ 1 212 777-2622
Attention:
Brett I. Parker
Email:
with
a copy to (which shall not constitute notice to any Loan Party):
Atairos
Group, Inc.
620
Fifth Avenue, Sixth Floor
New
York, New York 10020
Telephone:
+1 646 690-5223
Attention:
Rachael A.Wagner
Email:
(ii)
if to the Administrative Agent, at:
JPMorgan
Chase Bank, N.A.
500
Stanton Christiana Rd.
NCC5
/ 1st Floor
Newark,
Delaware 19713
Attention:
Loan & Agency Services Group-Jonathan Martin
Telephone:
+1 302-634-1964
Fax:
+1 302 634-3301
Email:
with
a copy to:
JPMorgan
Chase Bank, N.A.
500
Stanton Christiana Rd.
NCC5
/ 1st Floor
Newark,
Delaware 19713
Attention:
Loan & Agency Services Group-William
Telephone:
+1 302 634-1964
Fax:
+1 302 634-3301
Email:
(iii)
if to any Lender, to it at its address, facsimile number or email address set forth in its Administrative Questionnaire.
All
such notices and other communications (A) sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof or three Business
Days after dispatch if sent by certified or registered mail, in each case, delivered, sent or mailed (properly addressed) to the relevant
party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance
with this Section 9.01 or (B) sent by facsimile shall be deemed to have been given when sent and when receipt has been confirmed
by telephone; provided that notices and other communications sent by telecopier shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient, such notices or other communications shall be deemed to have been
given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic
communications to the extent provided in clause (b) below shall be effective as provided in such clause (b).
(b)
Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including e-mail
and Internet or Intranet websites) pursuant to procedures set forth herein or otherwise approved by the Administrative Agent. The Administrative
Agent or the Borrower (on behalf of any Loan Party) may, in its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures set forth herein or otherwise approved by it; provided that approval of such
procedures may be limited to particular notices or communications. All such notices and other communications (i) sent to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return
receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if not given during
the normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business
on the next Business Day for the recipient, and (ii) posted to an Internet or Intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described in the foregoing clause (b)(i) of notification that such
notice or communication is available and identifying the website address therefor.
(c)
Any party hereto may change its address or facsimile number or other notice information hereunder by notice to the other parties hereto;
it being understood and agreed that the Borrower may provide any such notice to the Administrative Agent as recipient on behalf of itself,
the Swingline Lender, each Issuing Bank and each Lender.
Section
9.02. Waivers; Amendments.
(a)
No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under any other
Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision
of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same is permitted
by this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is
given. Without limiting the generality of the foregoing, to the extent permitted by law, the making of a Loan or the issuance of any
Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent,
any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b)
Subject to clauses (A), (B), (C), (D) and (E) of this Section 9.02(b) and Sections 9.02(c) and (d)
below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified,
except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the
Required Lenders (or the Administrative Agent with the consent of the Required Lenders) or (ii) in the case of any other Loan
Document (other than any waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the
terms of such other Loan Document), pursuant to an agreement or agreements in writing entered into by the Administrative Agent and
each Loan Party that is party thereto, with the consent of the Required Lenders; provided that, notwithstanding the
foregoing:
(A)
except with the consent of each Lender directly and adversely affected thereby (but without requiring the consent of the Required Lenders),
no such agreement shall;
(1)
increase the Commitment or Additional Commitment of such Lender (other than with respect to any Incremental Facility pursuant to Section
2.22 in respect of which such Lender has agreed to be an Additional Lender); it being understood that no amendment, modification
or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory
prepayment or mandatory reduction of the Commitments or Additional Commitments shall constitute an increase of any Commitment or Additional
Commitment of such Lender;
(2)
reduce or forgive the principal amount of any Loan owed to such Lender or any amount due to such Lender on any Loan Installment Date
(other than, in each case, any waiver of, or consent to or departure from, any Default or Event of Default or any mandatory prepayment;
it being understood that no change in (i) the definition of “First Lien Leverage Ratio” or any other ratio used in the calculation
of any mandatory prepayment (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction or forgiveness
of any principal amount due hereunder);
(3)
(x) extend the scheduled final maturity of any Loan or (y) postpone any Loan Installment Date, any Interest Payment Date or the date
of any scheduled payment of any fee, in each case payable to such Lender hereunder (in each case, other than any extension for administrative
reasons agreed by the Administrative Agent) (other than, in each case, any waiver of, or consent or departure from, any Default or Event
of Default or any mandatory prepayment; it being understood that no change in the definition of “First Lien Leverage Ratio”
or any other ratio used in the calculation of any mandatory prepayment (including any component definition thereof) shall constitute
such an extension or postponement);
(4)
reduce the rate of interest (other than to waive any Default or Event of Default or obligation of the Borrower to pay interest at the
default rate of interest under Section 2.13(d), which shall only require the consent of the Required Lenders) or the amount of
any fee owed to such Lender; it being understood that no change in (i) the definition of “First Lien Leverage Ratio” or any
other ratio used in the calculation of the Applicable Rate or the Commitment Fee Rate, or in the calculation of any other interest or
fee due hereunder (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction in any rate of
interest or fee hereunder;
(5)
extend the expiry date of such Lender’s Commitment or Additional Commitment; it being understood that no amendment, modification
or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory
prepayment or mandatory reduction of the Commitments or Additional Commitments shall constitute an extension of any Commitment or Additional
Commitment of any Lender; and
(6)
waive, amend or modify the provisions of Section 2.18(b) of this Agreement in a manner that would by its terms alter the pro rata sharing
of payments required thereby (except in connection with any transaction permitted under Sections 2.22, 2.23, 9.02(c) and/or 9.05(g) or
as otherwise provided in this Section 9.02); and
(B)
no such agreement shall:
(1)
change (x) any of the provisions of Section 9.02(a) or Section 9.02(b) or the definition of “Required Lenders”
to reduce any voting percentage required to waive, amend or modify any right thereunder or make any determination or grant any consent
thereunder, without the prior written consent of each Lender or (y) the definition of “Required Revolving Lenders” without
the prior written consent of each Revolving Lender (it being understood that neither the consent of the Required Lenders nor the consent
of any other Lender shall be required in connection with any change to the definition of “Required Revolving Lenders”);
(2)
release all or substantially all of the Collateral from the Lien granted pursuant to the Loan Documents (except as otherwise permitted
herein or in the other Loan Documents, including pursuant to Article 8 or Section 9.22 hereof or pursuant to any Acceptable
Intercreditor Agreement), without the prior written consent of each Lender; or
(3)
release all or substantially all of the value of the Guarantees under the Loan Guaranty (except as otherwise permitted herein or in the
other Loan Documents, including pursuant to Article 8 or Section 9.22 hereof), without the prior written consent of each Lender;
(C)
solely with the consent of the Required Revolving Lenders (but without the consent of the Required Lenders or any other Lender), any
such agreement may (x) waive, amend or modify Section 6.15 (or the definition of “First Lien Leverage Ratio” or any
component definition thereof, in each case, as any such definition is used solely for purposes of Section 6.15) or waive any Default
or Event of Default in respect of Section 6.15 (other than as permitted under clause (y)), (y) waive, amend or modify any condition
precedent set forth in Section 4.02 hereof as it pertains to any Revolving Loan and/or Additional Revolving Loan and/or (z) waive
any Default or Event of Default that results from any representation made or deemed made by any Loan Party in any Loan Document in connection
with any Credit Extension under the Revolving Facility being untrue in any material respect as of the date made or deemed made;
(D)
solely with the consent of the relevant Issuing Bank and, in the case of clause (x), the Administrative Agent, any such agreement
may (x) increase or (y) decrease the Letter of Credit Sublimit; and
(E)
solely with the consent of the Borrower and applicable Class or Classes of Revolving Lenders and/or, if applicable, Issuing Banks, subject
to the provisions of Section 1.10, this Agreement may be amended or otherwise modified to permit the availability of Revolving
Loans and/or Letters of Credit denominated in a currency other than Dollars and to make technical changes to this Agreement and any other
Loan Document to accommodate the inclusion of any such new currency;
provided,
further, that no such agreement shall (x) amend, modify or otherwise affect the rights or duties of the Administrative Agent,
any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, such Issuing Bank or
the Swingline Lender, as the case may be and (y) amend or modify the provisions of Section 2.05 (as it applies to any Issuing
Bank) or any letter of credit application or any bilateral agreement between the Borrower and any Issuing Bank regarding the respective
rights and obligations between the Borrower and such Issuing Bank in connection with the issuance (or deemed issuance) of Letters of
Credit hereunder, without the prior written consent of, with respect to Section 2.05, the Administrative Agent, the Borrower and
such Issuing Bank, or otherwise, the Borrower and such Issuing Bank. The Administrative Agent may also amend the Commitment Schedule
to reflect assignments entered into pursuant to Section 9.05, Commitment reductions or terminations pursuant to Section 2.09,
incurrences of Additional Commitments or Additional Loans pursuant to Sections 2.22, 2.23 or 9.02(c) and reductions
or terminations of any such Additional Commitments or Additional Loans. Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment and any Additional
Commitment of any Defaulting Lender may not be increased without the consent of such Defaulting Lender (it being understood that any
Commitment, Additional Commitment or Loan held or deemed held by any Defaulting Lender shall be excluded from any vote hereunder that
requires the consent of any Lender, except as expressly provided in Section 2.21(b)). Notwithstanding the foregoing, but without
limiting the provisions of Section 2.22(g), this Agreement may be amended (or amended and restated) with the written consent of
the Required Lenders, the Administrative Agent and the Borrower (i) to add one or more additional credit facilities to this Agreement
and to permit any extension of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to
share ratably in the relevant benefits of this Agreement and the other Loan Documents and (ii) to include appropriately the Lenders holding
such credit facilities in any determination of the Required Lenders on substantially the same basis as the Lenders prior to such inclusion.
(c)
Notwithstanding the foregoing, this Agreement may be amended:
(i)
with the written consent of the Borrower and the Lenders providing the relevant Replacement Term Loans to permit the refinancing or replacement
of all or any portion of the outstanding InitialAmendment
No. 2 Term Loans or any then-existing Additional Term Loans under any applicable Class (any such loans being refinanced or
replaced, the “Replaced Term Loans”) with one or more replacement term loans hereunder (“Replacement Term
Loans”) pursuant to a Refinancing Amendment; provided that
(A)
the aggregate principal amount of any Replacement Term Loans shall not exceed the aggregate principal amount of the Replaced Term Loans
(plus (1) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any such additional amounts
are secured, the related Liens are permitted under Section 6.02 and plus (2) the amount of accrued interest, penalties
and premium (including any tender premium) thereon, any committed but undrawn amount and underwriting discounts, fees (including upfront
fees, original issue discount or initial yield payments), commissions and expenses associated therewith),
(B)
any Replacement Term Loans (other than customary bridge loans with a maturity date of not longer than one year; provided that
any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to
the requirements of this clause (B)) must have a final maturity date that is equal to or later than the final maturity date of,
and have a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Replaced Term Loans
at the time of the relevant refinancing, provided, that the foregoing limitation shall not apply to Replacement Term Loans having
an aggregate principal amount outstanding not exceeding $20,000,000 (as selected by the Borrower),
(C)
any Replacement Term Loans may be pari passu or junior in right of payment and pari passu (without regard to the control
of remedies) or junior with respect to the Collateral with the remaining portion of the Initial Term Loans or Additional Term Loans (provided
that if pari passu or junior as to payment or Collateral, such Replacement Term Loans shall be subject to an Acceptable Intercreditor
Agreement and may be, at the option of the Borrower, documented in a separate agreement or agreements), or be unsecured,
(D)
if any Replacement Term Loans are secured, such Replacement Term Loans may not be secured by any assets other than the Collateral,
(E)
if any Replacement Term Loans are guaranteed, such Replacement Term Loans may not be guaranteed by any Person other than one or more
Loan Parties,
(F)
any Replacement Term Loans that are pari passu with the InitialAmendment
No. 2 Term Loans in right of payment and security may participate (A) in any voluntary prepayment of Term Loans as set forth
in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi),
(G)
any Replacement Term Loans shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F), optional
prepayment and redemption terms and, subject to preceding clause (B), an amortization schedule, as the Borrower and the lenders
providing such Replacement Term Loans may agree,
(H)
[reserved],
(I)
the covenants and events of default of any Replacement Term Loans (excluding pricing, interest, fees, rate floors, premiums, optional
prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be (i) substantially
identical to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders providing such Replacement
Term Loans than those applicable to the Replaced Term Loans (other than covenants or other provisions applicable only to periods after
the latest Maturity Date of such Replaced Term Loans (in each case, as of the date of incurrence of such Replacement Term Loans)), (ii)
then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment
with respect thereto)) for the applicable type of Indebtedness or (iii) reasonably acceptable to the Administrative Agent (it being agreed
that covenants and events of default of any Replacement Term Loans that are more favorable to the lenders or the agent of such Replacement
Term Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents pursuant to the applicable
Refinancing Amendment shall thereafter be deemed satisfactory to the Administrative Agent), and
(ii)
with the written consent of the Borrower and the Lenders providing the relevant Replacement Revolving Facility to permit the refinancing
or replacement of all or any portion of any Revolving Credit Commitment or any Additional Revolving Credit Commitment under the applicable
Class (any such Revolving Credit Commitment or Additional Revolving Credit Commitment being refinanced or replaced, a “Replaced
Revolving Facility”) with a replacement revolving facility hereunder (a “Replacement Revolving Facility”)
pursuant to a Refinancing Amendment; provided that:
(A)
the aggregate principal amount of any Replacement Revolving Facility shall not exceed the aggregate principal amount of the Replaced
Revolving Facility (plus (x) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any
such additional amounts are secured, the related Liens are permitted under Section 6.02 and plus (y) the amount of accrued
interest, penalties and premium thereon, any committed but undrawn amounts and underwriting discounts, fees (including upfront fees and
original issue discount), commissions and expenses associated therewith),
(B)
no Replacement Revolving Facility (other than customary bridge loans with a maturity date of not longer than one year; provided
that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject
to the requirements of this clause (B)) may have a final maturity date (or require commitment reductions) prior to the final maturity
date of the relevant Replaced Revolving Facility at the time of such refinancing,
(C)
any Replacement Revolving Facility may be pari passu or junior in right of payment and pari passu (without regard to the
control of remedies) or junior with respect to the Collateral with the remaining portion of the Revolving Credit Commitments or any Additional
Revolving Credit Commitments (provided that if pari passu or junior as to payment or Collateral, such Replacement Revolving
Facility shall be subject to an Acceptable Intercreditor Agreement and may be, at the option of the Borrower, documented in a separate
agreement or agreements), or be unsecured,
(D)
if any Replacement Revolving Facility is secured, it may not be secured by any assets other than the Collateral,
(E)
if any Replacement Revolving Facility is guaranteed, it may not be guaranteed by any Person other than one or more Loan Parties,
(F)
any Replacement Revolving Facility shall be subject to the “ratability” provisions applicable to Extended Revolving Credit
Commitments and Extended Revolving Loans set forth in the proviso to clause (i) of Section 2.23(a), mutatis mutandis,
to the same extent as if fully set forth in this Section 9.02(c)(ii),
(G)
any Replacement Revolving Facility shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F),
optional prepayment and redemption terms as the Borrower and the lenders providing such Replacement Revolving Facility may agree,
(H)
[reserved],
(I)
the covenants and events of default of any Replacement Revolving Facility (excluding pricing, interest, fees, rate floors, premiums,
optional prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be
(i) substantially identical to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders
providing such Replacement Revolving Facility than those applicable to the Replaced Revolving Facility (other than covenants or other
provisions applicable only to periods after the latest Maturity Date of such Replaced Revolving Facility (in each case, as of the date
of incurrence of the relevant Replacement Revolving Facility), (ii) then-current market terms (as determined by the Borrower in good
faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness
or (iii) reasonably acceptable to the Administrative Agent (it being agreed that covenants and events of default of any Replacement Revolving
Facility that are more favorable to the lenders or the agent of such Replacement Revolving Facility than those contained in the Loan
Documents and are then conformed (or added) to the Loan Documents pursuant to the applicable Refinancing Amendment shall be deemed satisfactory
to the Administrative Agent); provided, that if any financial maintenance covenant is added to any such Replacement Revolving
Facility and such financial maintenance covenant is more favorable to the lenders under such Replacement Revolving Facility than the
Financial Covenant, either (x) such financial maintenance covenant shall only be applicable after the applicable Latest Revolving Loan
Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable financial maintenance covenant (together
with, at the election of the Borrower, any applicable “equity cure” provisions with respect to any such financial maintenance
covenant); and
(J)
the commitments in respect of the Replaced Revolving Facility shall be terminated, and all loans outstanding thereunder and all fees
thereunder and payable in connection therewith shall be paid in full, in each case on the date such Replacement Revolving Facility is
implemented;
provided, further, that, in respect of each of clauses (i) and (ii) of this clause (c), (x) any Non-Debt Fund Affiliate
and Debt Fund Affiliate shall be permitted (without Administrative Agent consent) to provide any Replacement Term Loans, it being understood
that in connection with such Replacement Term Loans, the relevant Non-Debt Fund Affiliate or Debt Fund Affiliate, as applicable, shall
be subject to the restrictions applicable to such Persons under Section 9.05 as if such Replacement Term Loans were Term Loans
and (y) any Debt Fund Affiliate (but not any Non-Debt Fund Affiliate) may provide (without Administrative Agent consent) any Replacement
Revolving Facility.
Each
party hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be amended by the Borrower,
the Administrative Agent and the lenders providing the relevant Replacement Term Loans or the Replacement Revolving Facility, as applicable,
to the extent (but only to the extent) necessary to reflect the existence and terms of such Replacement Term Loans or Replacement Revolving
Facility, as applicable, incurred or implemented pursuant thereto (including any amendment necessary to treat the loans and commitments
subject thereto as a separate “tranche” and “Class” of Loans and/or commitments hereunder). It is understood
that any Lender approached to provide all or a portion of any Replacement Term Loans or any Replacement Revolving Facility may elect
or decline, in its sole discretion, to provide such Replacement Term Loans or Replacement Revolving Facility.
(d)
Notwithstanding anything to the contrary contained in this Section 9.02 or any other provision of this Agreement or any
provision of any other Loan Document, (i) the Borrower and the Administrative Agent may, without the input or consent of any Lender,
amend, supplement and/or waive any guaranty, collateral security agreement, pledge agreement and/or related document (if any)
executed in connection with this Agreement to (x) comply with any Requirements of Law or the advice of counsel or (y) cause any such
guaranty, collateral security agreement, pledge agreement or other document to be consistent with this Agreement and/or the relevant
other Loan Documents, (ii) the Borrower and the Administrative Agent may, without the input or consent of any other Lender (other
than the relevant Lenders (including Additional Lenders) providing Loans under such Sections), effect amendments to this Agreement
and the other Loan Documents as may be necessary in the reasonable opinion of the Borrower and the Administrative Agent to (A)
effect the provisions of Sections 2.22, 2.23, 5.12, 5.14, 5.15, 5.16 or 9.02(c), or
any other provision specifying that any waiver, amendment or modification may be made with the consent or approval of the
Administrative Agent and/or (B) add terms (including representations and warranties, conditions, prepayments, covenants or events of
default), in connection with the addition of any Loan or Commitment hereunder or the incurrence of any Incremental Equivalent Debt,
any Replacement Term Loans, any Replacement Revolving Facility, any Replacement Debt and/or any Refinancing Indebtedness incurred in
reliance on Section 6.01(p) with respect to Indebtedness originally incurred in reliance on Section 6.01(z), that are
favorable to the then-existing Lenders, as reasonably determined by the Administrative Agent (it being understood that, where
applicable, any such amendment may be effectuated as part of an Incremental Facility Amendment and/or a Refinancing Amendment),
(iii) if the Administrative Agent and the Borrower have jointly identified any ambiguity, mistake, defect, inconsistency, obvious
error or any error or omission of a technical or administrative nature or any necessary or desirable technical change, in each case,
in any provision of any Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision
solely to address such matter as reasonably determined by them acting jointly without the input or consent of any Lender, (iv) the
Administrative Agent and the Borrower may amend, restate, amend and restate or otherwise modify the Intercreditor Agreement or any
Acceptable Intercreditor Agreement as provided therein or to give effect thereto or to carry out the purpose thereof without the
input or consent of any Lender and (v) any amendment, waiver or modification of any term or provision that directly affects Lenders
under one or more Classes and does not directly affect Lenders under one or more other Classes may be effected with the consent of
Lenders owning 50% of the aggregate commitments or Loans of such directly affected Class in lieu of the consent of the Required
Lenders.
(e)
Notwithstanding anything to the contrary contained in this Section 9.02, if the Revolving Lenders are to receive the benefit of any additional
or modified financial maintenance covenant as a result of the application of the provisions set forth in clause (g) of the definition
of “Incremental Equivalent Debt”, Section 2.22(a)(iv) or Section 9.02(c)(ii)(I), then the Administrative Agent
and the Borrower shall be permitted, without the need for consent by any other Person, to effectuate such provisions by promptly entering
into an amendment to this Agreement.
Section
9.03. Expenses; Indemnity.
(a)
Subject to Section 9.05(f), the Borrower shall pay, upon presentation of a summary statement, together with any supporting documentation
reasonably requested by the Borrower, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative
Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket
fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local
counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution
(including via the Internet or through a service such as Intralinks) of the Credit Facilities, the preparation, execution, delivery and
administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver
of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the
preparation of any such amendment, modification or waiver was requested by the Borrower) and (ii) all reasonable and documented out-of-pocket
expenses incurred by the Administrative Agent, the Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates
(but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other
charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material
jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective
rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made
and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph
(a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable
detail, together with backup documentation supporting the relevant reimbursement request.
(b)
The Borrower shall indemnify each Arranger, the Administrative Agent, each Issuing Bank and each Lender, and each Related Party of any
of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable
and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably
necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an
actual or perceived conflict of interest after the affected Person notifies the Borrower of such conflict, (x) one additional counsel
to all similarly situated affected Indemnitees, taken as a whole, and (y) one additional local counsel in any relevant material jurisdiction
to all similarly situated affected Indemnitees, taken as a whole), incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby,
the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other
transactions contemplated hereby or thereby (except for any Taxes, which shall be governed exclusively by Section 2.17), (ii)
the use of the proceeds of the Loans or any Letter of Credit or (iii) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing (including any matters arising under Environmental Law), whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party
or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that any such loss, claim, damage or liability (i) is determined by a final and non-appealable
judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the
gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any
such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s or a Related
Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding
brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought
by or against the Administrative Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative Agent, as an Issuing
Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its subsidiaries. Each Indemnitee
shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee
for any fees, expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof.
All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of
a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses,
after receipt by the Borrower of an invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation
supporting the relevant reimbursement request. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes
that represent losses, claims, damages or liabilities arising from any non-Tax claim.
(c)
The Borrower shall not be liable for any settlement or compromise of, or the consent to the ending of any judgment with respect to, any
proceeding effected without its consent (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding
is so settled, compromised or consented with the Borrower’s written consent, or if there is a final judgment entered against any
Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner
set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably
withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could
have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all
liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any
admission of fault or culpability.
Section
9.04. Waiver of Claim. To the extent permitted by applicable law, no party to this Agreement shall assert, and each hereby waives,
any claim against any other party hereto or any Related Party thereof, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or
any agreement or instrument contemplated hereby, the Transactions, any Loan or any Letter of Credit or the use of the proceeds thereof,
except, in the case of any claim by any Indemnitee against the Borrower, to the extent such damages would otherwise be subject to indemnification
pursuant to the terms of Section 9.03.
Section
9.05. Successors and Assigns.
(a)
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and permitted assigns; provided that (i) except as provided under Section 6.07 and/or pursuant to any Permitted Reorganization,
the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted assignment
or transfer not complying with the terms of this Section shall be null and void and, with respect to any attempted assignment or transfer
to any Disqualified Institution, subject to Section 9.05(f)). Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective successors and permitted assigns, Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the
Arrangers, the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement. Any Successor Borrower permitted pursuant to a transaction referred to in clause (i) of the proviso above, shall thereafter
be deemed to be and become the “Borrower” for all purposes hereunder, and such initial Borrower shall be released from its
Obligations in respect of this Agreement and the other Loan Documents.
(b)
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including all or a portion of any Loan or Additional Commitment
added pursuant to Sections 2.22, 2.23 or 9.02(c)
at the time owing to it) with the prior written consent (not to be unreasonably withheld or delayed) of:
(A)
the Borrower; provided that the Borrower shall be deemed to have consented to any assignment of Term Loans (other than any such
assignment to a Disqualified Institution or an affiliate thereof referred to in the last proviso of this clause (i) and identified to
the Administrative Agent as such) if it has not responded to a written request for its consent from the Administrative Agent within 15
Business Days after receiving such written request; provided, further, that no consent of the Borrower shall be required (x) for
any assignment of Initial Term Loans, Additional Term Loans, Initial Term Loan Commitments or Additional Term Loan Commitments to another
Lender, an Affiliate of any Lender or an Approved Fund or (y) during the continuance of an Event of Default under Section 7.01(a)
or Sections 7.01(f) or
(g) (solely with respect to the Borrower);
(B)
the Administrative Agent; provided, that no consent of the Administrative Agent shall be required for any assignment to another
Lender, any Affiliate of a Lender or any Approved Fund, or for any assignment to the Borrower and/or its Affiliates, which otherwise
complies with the terms of this Section 9.05; and
(C)
in the case of the Revolving Facility or any Additional Revolving Facility, each Issuing Bank and the Swingline Lender;
provided,
that notwithstanding the foregoing, the Borrower may withhold its consent to any assignment to any Person that is not expressly a Disqualified
Institution but is known by the Borrower to be an Affiliate of a Disqualified Institution without regard as to whether such Person is
identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name.
(ii)
Assignments shall be subject to the following additional conditions:
(A)
except in the case of any assignment to another Lender, any Affiliate of any Lender or any Approved Fund or any assignment of the entire
remaining amount of the relevant assigning Lender’s Loans or commitments of any Class, the principal amount of Loans or commitments
of the assigning Lender subject to the relevant assignment (determined as of the date on which the Assignment Agreement with respect
to such assignment is delivered to the Administrative Agent and determined on an aggregate basis in the event of concurrent assignments
to Related Funds or by Related Funds) shall not be less than (x) $1,000,000, in the case of Initial Term Loans, Additional Term Loans,
Initial Term Loan Commitments and Additional Term Loan Commitments and (y) $5,000,000 in the case of Revolving Loans, Additional Revolving
Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments unless the Borrower and the Administrative Agent otherwise
consent to a lesser amount, and in each case any assigned amount may exceed such minimum amount in an integral multiple of $1,000,000
in excess thereof;
(B)
any partial assignment shall be made as an assignment of a proportionate part of all the relevant assigning Lender’s rights and
obligations under this Agreement;
(C)
the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement via an electronic settlement
system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and shall pay to the
Administrative Agent a processing and recordation fee of $3,500; provided that (x) such fee may be waived or reduced in the sole
discretion of the Administrative Agent, (y) such fee shall not apply for any assignment to an Affiliated Lender or Debt Fund Affiliate
and (z) only one such fee shall be payable in the event of simultaneous assignments to or from two or more Approved Funds;
(D)
the relevant Eligible Assignee, if it is not a Lender, shall deliver on or prior to the effective date of such assignment, to the
Administrative Agent and the Borrower (irrespective of whether an Event of Default under Section 7.01(a) or Sections
7.01(f) or (g) exists) (1) an Administrative Questionnaire and (2) any form required under Section 2.17; and
(E)
the assigning Lender shall, concurrently with its delivery of the same to the Administrative Agent, provide the Borrower with a copy
of its request for such assignment, which shall include the name of the prospective assignee (irrespective of whether an Event of Default
under Section 7.01(a) or Section 7.01(f) or Section 7.01(g) exists).
(iii)
Except as otherwise provided in Section 9.05(g), subject to the acceptance and recording thereof pursuant to paragraph
(b)(iv) of this Section, from and after the effective date specified in any Assignment Agreement, the Eligible Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned pursuant to such Assignment Agreement, have the
rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment
Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be (A) entitled to the benefits of Sections 2.15, 2.16, 2.17
and 9.03 with respect to facts and circumstances occurring on or prior to the effective date of such assignment and (B)
subject to its obligations thereunder and under Section 9.13). If any assignment by any Lender holding any Promissory Note is
made after the issuance of such Promissory Note, the assigning Lender shall, upon the effectiveness of
such assignment or as promptly thereafter as practicable, surrender such Promissory Note to the Administrative Agent for
cancellation, and, if requested by either the assignee or the assigning Lender, the Borrower shall issue and deliver a new
Promissory Note to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new commitments and/or
outstanding Loans of the assignee and/or the assigning Lender.
(iv)
The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment
Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders and their respective successors
and assigns, and the commitment of, and principal amount of and interest on the Loans and LC Disbursements owing to, each Lender or Issuing
Bank pursuant to the terms hereof from time to time (the “Register”). Failure to make any such recordation, or any
error in such recordation, shall not affect the Borrower’s obligations in respect of such Loans and LC Disbursements. The entries
in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders
shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower, each Issuing Bank and each Lender (but only as to its
own holdings), at any reasonable time and from time to time upon reasonable prior notice.
(v)
Upon its receipt of a duly completed Assignment Agreement executed by an assigning Lender and an Eligible Assignee, the Eligible Assignee’s
completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the assignee is
already a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and
any written consent to the relevant assignment required by paragraph (b) of this Section, the Administrative Agent shall promptly
accept such Assignment Agreement and record the information contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(vi)
By executing and delivering an Assignment Agreement, the assigning Lender and the Eligible Assignee thereunder shall be deemed to confirm
and agree with each other and the other parties hereto as follows: (A) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim and that the amount of its commitments, and the outstanding
balances of its Loans, in each case without giving effect to any assignment thereof which has not become effective, are as set forth
in such Assignment Agreement, (B) except as set forth in clause (A) above, such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement,
or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any Restricted Subsidiary or
the performance or observance by the Borrower or any Restricted Subsidiary of any of its obligations under this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto; (C) such assignee represents and warrants that it is an
Eligible Assignee (and not a Disqualified Institution), legally authorized to enter into such Assignment Agreement; (D) such assignee
confirms that it has received a copy of this Agreement, the Intercreditor Agreement and each other then-applicable Acceptable Intercreditor
Agreement, together with copies of the financial statements referred to in Section 4.01(c) or the most recent financial statements
delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment Agreement; (E) such assignee will independently and without reliance upon the Administrative
Agent, the assigning Lender or any other Lender and based on such documents and information as it deems appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this Agreement; (F) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative
Agent, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as
a Lender.
(c)
(i) Any Lender may, without the consent of the Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender or any other
Lender, sell participations to any bank or other entity (other than to any Disqualified Institution or an Affiliate thereof referred
to in the last proviso of clause (b)(i) of this Section 9.05 and identified to the Administrative Agent as such, any Defaulting
Lender or any natural Person) (a “Participant”) in all or a portion of such Lender’s rights and obligations
under this Agreement (including all or a portion of its commitments and the Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (C) the Borrower, the Administrative Agent, the Issuing Banks and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which any Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without the consent of the relevant Participant, agree to
any amendment, modification or waiver described in (x) clause (A) of the first proviso to Section 9.02(b) that directly
and adversely affects the Loans or commitments in which such Participant has an interest and (y) clauses (B)(1), (2) or (3)
of the first proviso to Section 9.02(b). Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of this Section (it being understood that the documentation
required under Section 2.17(f) shall be delivered to the participating Lender, and if additional amounts are required to be paid
pursuant to Section 2.17(a) or Section 2.17(c), to the Borrower). To the extent permitted by applicable Requirements of
Law, each Participant also shall be entitled to the benefits of Section 9.09 as though it were a Lender; provided that
such Participant agrees to be subject to Section 2.18(c) as though it were a Lender.
(ii)
No Participant shall be entitled to receive any greater payment under Sections 2.15, 2.16 or 2.17 than the participating
Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written consent (in its sole discretion) expressly acknowledging such Participant
may receive a greater benefit. Any Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 2.17 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(f) as though it were a Lender and to deliver the tax forms required to
claim an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document and then only to the extent
of any amount to which such Lender would be entitled in the absence of any such participation (it being understood that the documentation
required under Section 2.17(f) shall be delivered to the participating Lender, and if additional amounts are required to be paid
pursuant to Section 2.17(a) or Section 2.17(c), to
the Borrower).
Each
Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register
on which it enters the name and address of each Participant and their respective successors and assigns, and the principal amounts and
stated interest of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register
(including the identity of any Participant or any information relating to any Participant’s interest in any Commitment, Loan, Letter
of Credit or any other obligation under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish
that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the Treasury Regulations.
The entries in the Participant Register shall be conclusive absent manifest error, and each Lender shall treat each Person whose name
is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice
to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility
for maintaining a Participant Register.
(d)
(i) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (other than
to any Disqualified Institution, Defaulting Lender or any natural person) to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over such Lender,
and this Section 9.05 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release any Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(ii)
No Lender may at any time enter into a total return swap, total rate of return swap, credit default swap or other Derivative Instrument
under which any Loan or other Obligation hereunder is a reference obligation with any counterparty that is a Disqualified Institution,
in each case unless the terms of such Derivative Transaction do not allow for such Lender to provide Confidential Information regarding
Holdings or its subsidiaries to such counterparty and such Lender shall not agree to allow such counterparty (or its Affiliates) to direct
the vote of such Lender with respect to any matter regarding the Facilities (including in any bankruptcy or other restructuring transaction).
(e)
Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special
purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part
of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) in no event may any Lender
grant any option to provide to the Borrower all or any part of any Loan that such Granting Lender would have otherwise been obligated
to make to the Borrower pursuant to this Agreement to any Disqualified Institution or Defaulting Lender. The making of any Loan by an
SPC hereunder shall utilize the Commitment or Additional Commitment of the Granting Lender to the same extent, and as if, such Loan were
made by such Granting Lender. Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including
its obligations under Section 2.15, 2.16 or 2.17) and no SPC shall be entitled to any greater amount under Section
2.15, 2.16 or 2.17 or any other provision of this Agreement or any other Loan Document that the Granting Lender would
have been entitled to receive, unless the grant to such SPC is made with the prior written consent of the Borrower (in its sole discretion),
expressly acknowledging that such SPC’s entitlement to benefits under Section 2.15, 2.16
or 2.17 is not limited to what the Granting Lender would have been entitled to receive absent the grant to the SPC, (ii) no
SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the
Granting Lender) and (iii) the Granting Lender shall for all purposes including approval of any amendment, waiver or other modification
of any provision of the Loan Documents, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any
other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under
the Requirements of Law of the U.S. or any State thereof; provided that (i) such SPC’s Granting Lender is in compliance
in all material respects with its obligations to the Borrower hereunder and (ii) each Lender designating any SPC hereby agrees to indemnify,
save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a
proceeding against such SPC during such period of forbearance. In addition, notwithstanding anything to the contrary contained in this
Section 9.05, any SPC may (i) with notice to, but without the prior written consent of, the Borrower or the Administrative Agent
and without paying any processing fee therefor, assign all or a portion of its interests in any Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guaranty or credit or liquidity enhancement to such SPC.
(f)
(i) Any assignment or participation by a Lender without the Borrower’s consent (A) to any Disqualified Institution or any Affiliate
thereof or (B) to the extent the Borrower’s consent is required under this Section 9.05, to any other Person, shall be null
and void, and the Borrower shall be entitled to seek specific performance to unwind any such assignment or participation and/or specifically
enforce this Section 9.05(f) in addition to injunctive relief (without posting a bond or presenting evidence of irreparable harm)
or any other remedies available to the Borrower at law or in equity; it being understood and agreed that Holdings, the Borrower and its
subsidiaries will suffer irreparable harm if any Lender breaches any obligation under this Section 9.05 as it relates to any assignment,
participation or pledge of any Loan or Commitment to any Disqualified Institution or any Affiliate thereof or any other Person to whom
the Borrower’s consent is required but not obtained. Nothing in this Section 9.05(f) shall be deemed to prejudice any right
or remedy that Holdings or the Borrower may otherwise have at law or equity or pursuant to Section 9.05(f)(ii) below;
(ii)
If any assignment or participation under this Section 9.05 is made to any Affiliate of any Disqualified Institution (other than
any Bona Fide Debt Fund that is not itself a Disqualified Institution) without the Borrower’s prior written consent (any such person,
a “Disqualified Person”), then the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified
Person and the Administrative Agent, (A) terminate any Commitment of such Disqualified Person and repay all obligations of the Borrower
owing to such Disqualified Person, (B) in the case of any outstanding Term Loans held by such Disqualified Person, purchase such Term
Loans by paying the lesser of (x) par and (y) the amount that such Disqualified Person paid to acquire such Term Loans, plus accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and/or (C) require such Disqualified Person to assign, without
recourse (in accordance with and subject to the restrictions contained in this Section 9.05), all of its interests, rights and
obligations under this Agreement to one or more Eligible Assignees and if such person does not execute and deliver to the Administrative
Agent a duly executed Assignment Agreement reflecting such assignment within five Business Days of the date on which the Eligible Assignee
executes and delivers such Assignment Agreement to such person, then such person shall be deemed to have executed and delivered such
Assignment Agreement without any action on its part; provided that (I) in the case of clauses (A) and (B), the Borrower
shall not be liable to the relevant Disqualified Person under Section 2.16 if any LIBO Rate Loan owing to such Disqualified Person
is repaid or purchased other than on the last day of the Interest Period relating thereto, (II) in the case of clause (C), the
relevant assignment shall otherwise comply with this Section 9.05 (except that (x) no registration and processing fee required
under this Section 9.05 shall be required with any assignment pursuant to this paragraph and (y) any Term Loan acquired by any
Affiliated Lender pursuant to this paragraph will not be included in calculating compliance with the Affiliated Lender Cap for a period
of 90 days following such transfer; provided that, to the extent the aggregate principal amount of Term Loans held by Affiliated
Lenders exceeds the Affiliated Lender Cap on the 91st day following such transfer, then such excess amount shall either be (x) contributed
to Holdings, the Borrower or any of its subsidiaries and retired and cancelled immediately upon such contribution or (y) automatically
cancelled)) and (III) in no event shall such Disqualified Person be entitled to receive amounts set forth in Section 2.13(d).
Further, any Disqualified Person identified by the Borrower to the Administrative Agent (A) shall not be permitted to (x) receive information
or reporting provided by any Loan Party, the Administrative Agent or any Lender and/or (y) attend and/or participate in conference calls
or meetings attended solely by the Lenders and the Administrative Agent, (B) (x) shall not for purposes of determining whether the Required
Lenders or the majority Lenders under any Class have (i) consented (or not consented) to any amendment, modification, waiver, consent
or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted
on any matter related to any Loan Document or (iii) directed or required the Administrative Agent or any Lender to undertake any action
(or refrain from taking any action) with respect to or under any Loan Document, have a right to consent (or not consent), otherwise act
or direct or require the Administrative Agent or any Lender to take (or refrain from taking) any such action; it being understood that
all Loans held by any Disqualified Person shall be deemed to be not outstanding for all purposes of calculating whether the Required
Lenders, majority Lenders under any Class or all Lenders have taken any action and (y) shall be deemed to vote in the same proportion
as Lenders that are not Disqualified Persons in any proceeding under any Debtor Relief Law commenced by or against the Borrower or any
other Loan Party and (C) shall not be entitled to receive the benefits of Section 9.03. For the sake of clarity, the provisions
in this Section 9.05(f) shall not apply to any Person that is an assignee of any Disqualified Person, if such assignee is not
a Disqualified Person;
(iii)
Upon the request of any Lender, the Administrative Agent may and the Borrower will make the list of Disqualified Institutions (other
than any Disqualified Institution that is a reasonably identifiable Affiliate of another Disqualified Institution on the basis of such
Person’s name) at the relevant time and such Lender may provide the list to any potential assignee for the purpose of verifying
whether such Person is a Disqualified Institution, in each case so long as such Lender and such potential assignee agree to keep the
list of Disqualified Institutions confidential in accordance with the terms hereof;
(iv)
The Borrower shall deliver the list of Disqualified Institutions and any updates, supplements or modifications thereto to JPMDQ_Contact@jpmorgan.com
and any such updates, supplements or modifications thereto shall only become effective 3 days after such notice. In the event the list
of Disqualified Institutions is not in accordance with the foregoing, it shall be deemed not received and not effective (except with
respect to any delivery on or prior to the Closing Date); and
(v)
Notwithstanding anything herein to the contrary, the Administrative Agent shall not be responsible or have any liability for, or have
any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions.
(g)
Notwithstanding anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations
under this Agreement in respect of its Initial Term Loans or Additional Term Loans to an Affiliated Lender on a non-pro rata basis
(A) through Dutch Auctions, or similar transactions pursuant to procedures to be established by the applicable “auction agent”
that are consistent with this Section 9.05(g), in each case open to all Lenders holding the relevant Initial Term Loans or such
Additional Term Loans, as applicable, on a pro rata basis or (B) through open market purchases, in each case with respect to clauses
(A) and (B), without the consent of the Administrative Agent; provided that:
(i)
any Initial Term Loans or Additional Term Loans acquired by Holdings, the Borrower or any of its subsidiaries shall, to the extent permitted
by applicable Requirements of Law, be retired and cancelled immediately upon the acquisition thereof; provided that upon any such
retirement and cancellation, the aggregate outstanding principal amount of the Initial Term Loans or Additional Term Loans, as applicable,
shall be deemed reduced by the full par value of the aggregate principal amount of the Initial Term Loans or Additional Term Loans so
retired and cancelled, and each principal repayment installment with respect to the Initial Term Loans or
Additional Term Loans pursuant to Section 2.10(a) shall be reduced on a pro rata basis by the full par value
of the aggregate principal amount of Initial Term Loans or Additional Term
Loans so cancelled (as applicable);
(ii)
any Initial Term Loans or Additional Term Loans acquired by any Affiliated Lender may (but shall not be required to) be contributed to
Holdings, the Borrower or any of its subsidiaries or Parent Companies for purposes of cancelling such Indebtedness, and in exchange thereof
such Affiliated Lender may receive debt or equity securities of such entity or a direct or indirect parent entity or subsidiary thereof
that are otherwise permitted to be issued by such entity at such time, it being understood that (x) any such Initial Term Loans or Additional
Term Loans shall, to the extent permitted by applicable Requirements of Law, be retired and cancelled immediately upon such contribution
and (y) any such contribution shall be treated as a capital contribution that builds the Available Amount pursuant to clause (iii)
of the definition thereof by an amount equal to the fair market value (as determined by the Borrower in good faith) of the Initial
Term Loans or Additional Term Loans so contributed; provided that if the fair market value of such Initial Term Loans or Additional
Term Loans cannot be determined by the Borrower, the fair market value shall be deemed to be the purchase price of such Initial Term
Loans or Additional Term Loans paid by such Affiliated Lender); provided that upon any such cancellation, the aggregate outstanding
principal amount of the Initial Term Loans or Additional Term Loans, as applicable, shall be deemed reduced, as of the date of such contribution,
by the full par value of the aggregate principal amount of the Initial Term Loans or Additional Term Loans so contributed and cancelled,
and each principal repayment installment with respect to the Initial Term Loans or
Additional Term Loans pursuant to Section 2.10(a) shall be reduced pro rata by the full par value of the aggregate
principal amount of Initial Term Loans or Additional Term Loans
so contributed and cancelled;
(iii)
the relevant Affiliated Lender and assigning Lender shall have executed an Affiliated Lender Assignment and Assumption;
(iv)
after giving effect to such assignment and to all other assignments to all Affiliated Lenders, the aggregate principal amount of all
Initial Term Loans and Additional Term Loans then held by all Affiliated Lenders shall not exceed 25% of the aggregate principal amount
of the Initial Term Loans and Additional Term Loans then outstanding (after giving effect to any substantially simultaneous cancellations
thereof) (the “Affiliated Lender Cap”); provided that each party hereto acknowledges and agrees that the Administrative
Agent shall not be liable for any losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements
of any kind or nature whatsoever incurred or suffered by any Person in connection with any compliance or non-compliance with this clause
(g)(iv) or any purported assignment exceeding the Affiliated Lender Cap (it being understood and agreed that the Affiliated Lender
Cap is intended to apply to any Loans made available to Affiliated Lenders by means other than formal assignment (e.g., as a result of
an acquisition of another Lender (other than any Debt Fund Affiliate) by any Affiliated Lender or the provision of Additional Term Loans
by any Affiliated Lender); provided, further, that to the extent that any assignment to any Affiliated Lender would result in
the aggregate principal amount of all Initial Term Loans and Additional Term Loans held by Affiliated Lenders exceeding the Affiliated
Lender Cap (after giving effect to any substantially simultaneous cancellations thereof), the assignment of the relevant excess amount
shall be null and void;
(v)
in connection with any assignment effected pursuant to a Dutch Auction and/or open market purchase conducted by Holdings, the Borrower
or any of its Restricted Subsidiaries, (A) the relevant Person may not use the proceeds of any Revolving Loans or Additional Revolving
Loans to fund such assignment and (B) no Event of Default exists at the time of acceptance of bids for the Dutch Auction or the confirmation
of such open market purchase, as applicable;
(vi)
by its acquisition of Term Loans, each relevant Affiliated Lender shall be deemed to have acknowledged and agreed that:
(A)
the Term Loans held by such Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any Required
Lender or other Lender vote (and the Term Loans held by such Affiliated Lender shall be deemed to be voted pro rata along with
the other Lenders that are not Affiliated Lenders); provided that (x) such Affiliated Lender shall have the right to vote (and
the Term Loans held by such Affiliated Lender shall not be so disregarded) with respect to any amendment, modification, waiver, consent
or other action that requires the vote of all Lenders or all Lenders directly and adversely affected thereby, as the case may be, and
(y) no amendment, modification, waiver, consent or other action shall (1) disproportionately affect such Affiliated Lender in its capacity
as a Lender as compared to other Lenders of the same Class that are not Affiliated Lenders or (2) deprive any Affiliated Lender of its
share of any payments which the Lenders are entitled to share on a pro rata basis hereunder, in each case without the consent
of such Affiliated Lender; and
(B)
such Affiliated Lender, solely in its capacity as an Affiliated Lender, will not be entitled to (i) attend (including by telephone) or
participate in any meeting or discussion (or portion thereof) among the Administrative Agent or any Lender or among Lenders to which
the Loan Parties or their representatives are not invited or (ii) receive any information or material prepared by the Administrative
Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders, except to the extent such information
or materials have been made available by the Administrative Agent or any Lender to any Loan Party or its representatives (and in any
case, other than the right to receive notices of Borrowings, prepayments and other administrative notices in respect of its Initial Term
Loans or Additional Term Loans required to be delivered to Lenders pursuant to Article 2); and
(vii)
neither the Sponsor nor any Affiliated Lender shall be required to represent or warrant that it is not in possession of material non-public
information with respect to Holdings, the Borrower and/or any subsidiary thereof and/or their respective securities in connection with
any assignment permitted by this Section 9.05(g).
Notwithstanding
anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under this
Agreement in respect of its Initial Term Loans, Additional Term Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments
to any Debt Fund Affiliate, and any Debt Fund Affiliate may, from time to time, purchase Initial Term Loans, Additional Term Loans, Revolving
Credit Commitments or Additional Revolving Credit Commitments (x) on a non-pro rata basis through Dutch Auctions or similar transactions
open to all applicable Lenders or (y) on a non-pro rata basis through open market purchases without the consent of the Administrative
Agent, in each case, notwithstanding the requirements set forth in subclauses (i) through (vii) of this clause (g);
provided that the Initial Term Loans, Additional Term Loans and unused commitments and other Loans of all Debt Fund Affiliates shall
not account for more than 49.9% of the amounts included in determining whether the Required Lenders or Required Revolving Lenders have
(A) consented to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or
any departure by any Loan Party therefrom or (B) directed or required the Administrative Agent or any Lender to undertake any action
(or refrain from taking any action) with respect to any Loan Document. Any Initial Term Loans or Additional Term Loans acquired by any
Debt Fund Affiliate may (but shall not be required to) be contributed to the Borrower or any of its subsidiaries or parent entities for
purposes of cancelling such Indebtedness and in exchange thereof such Debt Fund Affiliate may receive debt or equity securities of such
entity or a direct or indirect parent entity or subsidiary thereof that are otherwise permitted to be issued by such entity at such time
(it being understood that (x) any Initial Term Loans or Additional Term Loans so contributed shall, to the extent permitted by applicable
Requirements of Law, be retired and cancelled immediately upon contribution thereof and (y) any such contribution shall be treated as
a capital contribution that builds the Available Amount pursuant to clause (iii) of the definition thereof by an amount equal
to the fair market value (as determined by the Borrower in good faith) of the Initial Term Loans or Additional Term Loans so contributed;
provided that if the fair market value of such Initial Term Loans or Additional Term Loans cannot be determined by the Borrower,
the fair market value shall be deemed to be the purchase price of such Initial Term Loans or Additional Term Loans paid by such Debt
Fund Affiliate)); provided that upon any such cancellation, the aggregate outstanding principal amount of the Initial Term Loans
or Additional Term Loans shall be deemed reduced, as of the date of such contribution, by the full par value of the aggregate principal
amount of the Initial Term Loans or Additional Term Loans so contributed and cancelled, and each principal repayment installment with
respect to the Initial Term Loans or Additional Term Loans pursuant
to Section 2.10(a) shall be reduced pro rata by the full par value of the aggregate principal amount of Initial Term Loans
or Additional Term Loans so contributed and cancelled.
(h)
Notwithstanding anything to the contrary herein, at the election of the Borrower, Revolving Loans and Revolving Credit Commitments held
by a Defaulting Lender may be assigned to an Affiliated Lender without the need for the consent of any other Person, with the price of
such assignment being the lower of (i) par plus accrued and unpaid interest and commitment fees thereon and (ii) such lower amount as
agreed by the applicable Defaulting Lender and such Affiliated Lender; provided that Revolving Lenders that are not Defaulting
Lenders shall have the right to repurchase such assigned Revolving Loans and Revolving Credit Commitments from such Affiliated Lender,
with the price of such assignment being the lower of (i) par plus accrued and unpaid interest and commitment fees thereon and (ii) such
lower amount as agreed by such Revolving Lender and such Affiliated Lender; provided further that the provisions of clause
(g)(vi) above shall apply with respect to such Revolving Loans or Revolving Credit Commitments acquired and held by an Affiliated
Lender, other than an Affiliated Lender that is a Debt Fund Affiliate, in which case only the limitation set forth in the final paragraph
of Section 9.05(g) shall apply.
Section
9.06. Survival. All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in
the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letter of Credit regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent may have had notice or knowledge of any Default or Event of Default or incorrect representation
or warranty at the time any credit is extended hereunder, and shall continue in full force and effect until the Termination Date. The
provisions of Sections 2.15, 2.16, 2.17, 9.03 and 9.13 and Article 8 shall survive and remain
in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Revolving Credit Commitment or any Additional Commitment, the occurrence of the Termination
Date or the termination of this Agreement or any provision hereof but in each case, subject to the limitations set forth in this Agreement.
Section
9.07. Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and the Fee Letter constitute the entire agreement among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective when it has been executed by Holdings, the Borrower and the Administrative Agent and when
the Administrative Agent has received counterparts hereof which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted
assigns. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by email as a “.pdf” or
“.tif” attachment shall be effective as delivery of a manually executed counterpart of this Agreement.
Section
9.08. Severability. To the extent permitted by applicable Requirements of Law, any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity
of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section
9.09. Right of Setoff. At any time when an Event of Default exists, upon the written consent of the Administrative Agent and each
Issuing Bank, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Requirements
of Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other
obligations (in any currency) at any time owing by the Administrative Agent, such Issuing Bank or such Lender to or for the credit or
the account of the Borrower or any Loan Party against any of and all the Secured Obligations held by the Administrative Agent, such Issuing
Bank or such Lender, irrespective of whether or not the Administrative Agent, such Issuing Bank or such Lender shall have made any demand
under the Loan Documents and although such obligations may be contingent or unmatured or are owed to a branch or office of such Lender
or Issuing Bank different than the branch or office holding such deposit or obligation on such Indebtedness. Any applicable Lender or
Issuing Bank shall promptly notify the Borrower and the Administrative Agent of such set-off or application; provided that any
failure to give or any delay in giving such notice shall not affect the validity of any such set-off or application under this Section.
The rights of each Lender, each Issuing Bank and the Administrative Agent under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender, such Issuing Bank or the Administrative Agent may have.
Section
9.10. Governing Law; Jurisdiction; Consent to Service of Process.
(a)
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY
OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN
DOCUMENTS), WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED, THAT (I) THE INTERPRETATION OF THE DEFINITION OF “CLOSING DATE MATERIAL
ADVERSE EFFECT” AND THE DETERMINATION OF WHETHER A CLOSING DATE MATERIAL ADVERSE EFFECT HAS OCCURRED, (II) THE DETERMINATION OF
THE ACCURACY OF ANY SPECIFIED ACQUISITION AGREEMENT REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF MERGER SUB 1 OR
ITS APPLICABLE AFFILIATE HAS A RIGHT TO TERMINATE ITS OBLIGATIONS UNDER THE ACQUISITION AGREEMENT OR DECLINE TO CONSUMMATE THE ACQUISITION
AND (III) THE DETERMINATION OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE ACQUISITION AGREEMENT
AND, IN ANY CASE, ANY CLAIM OR DISPUTE ARISING OUT OF ANY SUCH INTERPRETATION OR DETERMINATION OR ANY ASPECT THEREOF, SHALL IN EACH CASE
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN
UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
(b)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S.
FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION
OR PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE
REQUIREMENTS OF LAW, FEDERAL COURT; PROVIDED THAT WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THE ACQUISITION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY WHICH DOES NOT INVOLVE ANY CLAIMS AGAINST THE ARRANGERS, THE ISSUING
BANKS, THE LENDERS OR ANY INDEMNIFIED PERSON, THIS SENTENCE SHALL NOT OVERRIDE ANY JURISDICTION PROVISION IN THE ACQUISITION AGREEMENT.
EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE
EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY HERETO AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY APPLICABLE REQUIREMENTS OF LAW. EACH PARTY HERETO AGREES THAT THE ADMINISTRATIVE AGENT RETAINS THE RIGHT TO BRING
PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION SOLELY IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER
ANY COLLATERAL DOCUMENT.
(c)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
(d)
TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL)
DIRECTED TO IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01. EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR
UNDER ANY LOAN DOCUMENT THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL
AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE REQUIREMENTS OF LAW.
Section
9.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS
OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
Section
9.12. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Section
9.13. Confidentiality. Each of the Administrative Agent, each Lender, each Issuing Bank and each Arranger agrees (and each Lender
agrees to cause its SPC, if any) to maintain the confidentiality of the Confidential Information (as defined below), except that Confidential
Information may be disclosed (a) to its and its Affiliates’ directors, officers, managers, employees, independent auditors, or
other experts and advisors, including accountants, legal counsel and other advisors (collectively, the “Representatives”)
on a confidential, “need to know” basis solely in connection with the transactions contemplated hereby and who are informed
of the confidential nature of the Confidential Information and are or have been advised of their obligation to keep the Confidential
Information of this type confidential; provided that such Person shall be responsible for its Affiliates’ and their Representatives’
compliance with this paragraph; provided, further, that unless the Borrower otherwise consents, no such disclosure shall be made
by the Administrative Agent, any Issuing Bank, any Arranger, any Lender or any Affiliate or Representative thereof to any Affiliate or
Representative of the Administrative Agent, any Issuing Bank, any Arranger, or any Lender that is a Disqualified Institution, (b) upon
the demand or request of any regulatory or governmental authority having jurisdiction over such Person or its Affiliates (in which case
such Person shall, except with respect to any audit or examination conducted by bank accountants or any Governmental Authority or regulatory
authority exercising examination or regulatory authority, to the extent permitted by applicable Requirements of Law, (i) inform the Borrower
promptly in advance thereof and (ii) ensure that any information so disclosed is accorded confidential treatment), (c) to the extent
compelled by legal process in, or reasonably necessary to, the defense of such legal, judicial or administrative proceeding, in any legal,
judicial or administrative proceeding or otherwise as required by applicable Requirements of Law (in which case such Person shall (i)
to the extent permitted by law, inform the Borrower promptly in advance thereof, (ii) ensure that any such information so disclosed is
accorded confidential treatment and (iii) allow the Borrower a reasonable opportunity to object to such disclosure in such proceeding),
(d) to any other party to this Agreement, (e) subject to an acknowledgment and agreement by the relevant recipient that the Confidential
Information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as otherwise reasonably
acceptable to the Borrower and the Administrative Agent, including as set forth in the Information Memorandum) in accordance with the
standard syndication process of the Arrangers or market standards for dissemination of the relevant type of information, which shall
in any event require “click through” or other affirmative action on the part of the recipient to access the Confidential
Information and acknowledge its confidentiality obligations in respect thereof, to (i) any Eligible Assignee of or Participant in, or
any prospective Eligible Assignee of or prospective Participant in, any of its rights or obligations under this Agreement, including
any SPC (in each case other than a Disqualified Institution), (ii) any pledgee referred to in Section 9.05, (iii) any actual or
prospective direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction (including any credit default
swap) or similar derivative product under which payments are to be made by reference to the Borrower and its Obligations, (iv) any actual
or prospective direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction (including any credit default
swap) or similar derivative product to which any Loan Party is a party and (v) subject to the Borrower’s prior approval of the
information to be disclosed (not to be unreasonably withheld or delayed), to Moody’s or S&P on a confidential basis in connection
with obtaining or maintaining ratings as required under Section 5.13, (f) with the prior written consent of the Borrower and (g)
to the extent the Confidential Information becomes publicly available other than as a result of a breach of this Section by such Person,
its Affiliates or their respective Representatives. For purposes of this Section, “Confidential Information” means
all information relating to Holdings, the Borrower and/or any of its subsidiaries and their respective businesses, the Sponsor, the Transactions
or the Amendment No. 1 Transactions (including any information obtained by the Administrative Agent, any Issuing Bank, any Lender or
any Arranger, or any of their respective Affiliates or Representatives, based on a review of the books and records relating to Holdings,
the Borrower and/or any of its subsidiaries and their respective Affiliates from time to time, including prior to the date hereof) other
than any such information that is publicly available to the Administrative Agent or any Arranger, Issuing Bank, or Lender on a non-confidential
basis prior to disclosure by Holdings, the Borrower or any of its subsidiaries. For the avoidance of doubt, in no event shall any disclosure
of any Confidential Information be made to Person that is a Disqualified Institution at the time of disclosure.
Section
9.14. No Fiduciary Duty. Each of the Administrative Agent, the Arrangers, each Lender, each Issuing Bank and their respective
Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that
conflict with those of the Loan Parties, their stockholders and/or their respective affiliates. Each Loan Party agrees that nothing in
the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied
duty between any Lender, on the one hand, and such Loan Party, its respective stockholders or its respective affiliates, on the other.
Each Loan Party acknowledges and agrees that: (i) the transactions contemplated by the Loan Documents (including the exercise of rights
and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Loan
Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or
fiduciary responsibility in favor of any Loan Party, its respective stockholders or its respective affiliates with respect to the transactions
contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether
any Lender has advised, is currently advising or will advise any Loan Party, its respective stockholders or its respective Affiliates
on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y)
each Lender is acting solely as principal and not as the agent or fiduciary of such Loan Party, its respective management, stockholders,
creditors or any other Person. Each Loan Party acknowledges and agrees that such Loan Party has consulted its own legal, tax and financial
advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such
transactions and the process leading thereto.
Section
9.15. Several Obligations. The respective obligations of the Lenders hereunder are several and not joint and the failure of any
Lender to make any Loan, issue any Letter of Credit or perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder.
Section
9.16. USA PATRIOT Act. Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Loan Parties
that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies each
Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender to identify
such Loan Party in accordance with the USA PATRIOT Act.
Section
9.17. Disclosure. Each Loan Party, each Issuing Bank and each Lender hereby acknowledges and agrees that the Administrative Agent
and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with any of the Loan
Parties and their respective Affiliates.
Section
9.18. Appointment for Perfection. Each Lender hereby appoints each other Lender and each Issuing Bank as its agent for the purpose
of perfecting Liens for the benefit of the Administrative Agent, the Issuing Banks and the Lenders, in assets which, in accordance with
Article 9 of the UCC or any other applicable Requirements of Law can be perfected only by possession. If any Lender or Issuing Bank (other
than the Administrative Agent) obtains possession of any Collateral, such Lender or such Issuing Bank shall notify the Administrative
Agent thereof; and, promptly upon the Administrative Agent’s request therefor shall deliver such Collateral to the Administrative
Agent or otherwise deal with such Collateral in accordance with the Administrative Agent’s instructions.
Section
9.19. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to
any Loan or Letter of Credit, together with all fees, charges and other amounts which are treated as interest on such Loan or Letter
of Credit under applicable law (collectively, the “Applicable Charges”), shall exceed the maximum lawful rate (the
“Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender or Issuing Bank holding
such Loan or Letter of Credit in accordance with applicable Requirements of Law, the rate of interest payable in respect of such Loan
or Letter of Credit hereunder, together with all Applicable Charges payable in respect thereof, shall be limited to the Maximum Rate
and, to the extent lawful, the interest and Applicable Charges that would have been payable in respect of such Loan or Letter of Credit
but were not payable as a result of the operation of this Section shall be cumulated and the interest and Applicable Charges payable
to such Lender or Issuing Bank in respect of other Loans or Letters of Credit or periods shall be increased (but not above the Maximum
Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender or Issuing Bank.
Section
9.20. Intercreditor Agreement. REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT. EACH LENDER AND ISSUING BANK HEREUNDER AGREES
THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND AUTHORIZES AND INSTRUCTS
THE ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS “FIRST LIEN CREDIT AGREEMENT COLLATERAL AGENT” AND
ON BEHALF OF SUCH LENDER OR ISSUING BANK. THE PROVISIONS OF THIS SECTION 9.20 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS
OF THE INTERCREDITOR AGREEMENT, THE FORM OF WHICH IS ATTACHED AS AN EXHIBIT TO THIS AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR
AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER AND ISSUING BANK IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS
AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES
MAKES ANY REPRESENTATION TO ANY LENDER OR ISSUING BANK AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR
AGREEMENT. THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE LENDERS UNDER THE SECOND LIEN CREDIT AGREEMENT TO EXTEND CREDIT
THEREUNDER AND SUCH LENDERS ARE INTENDED THIRD PARTY BENEFICIARIES OF SUCH PROVISIONS AND THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.
Section
9.21. Conflicts. Notwithstanding anything to the contrary contained herein or in any other Loan Document (but excluding the Intercreditor
Agreement), in the event of any conflict or inconsistency between this Agreement and any other Loan Document (excluding the Intercreditor
Agreement), the terms of this Agreement shall govern and control; provided that in the case of any conflict or inconsistency between
the Intercreditor Agreement and any other Loan Document, the terms of the Intercreditor Agreement shall govern and control.
Section
9.22. Release of Guarantors. Notwithstanding anything in Section 9.02(b) to the contrary, (a) any Subsidiary Guarantor
shall automatically be released from its obligations hereunder (and its Loan Guaranty shall be automatically released) (i) upon the consummation
of any permitted transaction or series of related transactions if as a result thereof such Subsidiary Guarantor ceases to be a Restricted
Subsidiary (included by merger or dissolution) or becomes an Excluded Subsidiary as a result of a single transaction or series of related
transactions permitted hereunder; or (ii) upon the occurrence of the Termination Date, (b) any Subsidiary Guarantor that qualifies as
an “Excluded Subsidiary” shall be released from its obligations hereunder (and its Loan Guaranty shall be automatically released)
by the Administrative Agent promptly following the request therefor by the Borrower and/or (c) the Person constituting Holdings immediately
prior to the consummation of a Holdings Reorganization Transaction whereby the existing “Holdings” is not intended to remain
as such shall be automatically released from its obligations hereunder (and its Loan Guaranty shall be automatically released) upon the
consummation of such Holdings Reorganization Transaction; provided, that the release of any Subsidiary Guarantor from its obligations
under the Loan Guaranty if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition
thereof shall only be permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect
to such release and the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower
is deemed to have made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an
amount equal to the portion of the fair market value of the net assets of such Person attributable to the Borrower’s equity interest
therein as estimated by the Borrower in good faith and such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f))
at such time. In connection with any such release, the Administrative Agent shall, subject to receipt of an officer’s certificate
from the Borrower certifying that such transaction and release are permitted hereunder, promptly execute and deliver to the relevant
Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence termination or
release. Any execution and delivery of documents pursuant to the preceding sentence of this Section 9.22 shall be without recourse
to or warranty by the Administrative Agent.
Section
9.23. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan
Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability
of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down
and conversion powers of an EEA Resolution Authority and each party hereto agrees and consents to, and acknowledges and agrees to be
bound by:
(a)
the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)
the effects of any Bail-in Action on any such liability, including, if applicable:
(i)
a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any
other Loan Document; or
(iii)
the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution
Authority.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
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A-B
MERGER SUB I INC., as Holdings
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By:
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Name:
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Title:
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A-B
MERGER SUB II LLC, as the Borrower
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By:
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Name:
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Title:
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Signature
Page to First Lien Credit Agreement
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BOWLMOR
AMF CORP., as Holdings
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By:
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Name:
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Title:
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KINGPIN
INTERMEDIATE HOLDINGS LLC, as the Borrower
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By:
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Name:
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Title:
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Signature
Page to First Lien Credit Agreement
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JPMORGAN
CHASE BANK, N.A., as Administrative Agent, Issuing Bank and as a Lender
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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CREDIT
SUISSE AG, CAYMAN ISLANDS BRANCH
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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Signature
Page to First Lien Credit Agreement
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GOLDMAN
SACHS BANK USA
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By:
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Name:
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Title:
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By:
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Signature
Page to First Lien Credit Agreement
EXHIBIT
B: Converting Lender Consent
CONVERTING
LENDER CONSENT
CONVERTING
LENDER CONSENT (this “Converting Lender Consent”) to the Second Amendment dated as of July 5, 2018 (the “2018
Refinancing Amendment”) to the First Lien Credit Agreement dated as of July 3, 2017 (as amended pursuant to the First Incremental
Amendment dated as of March 28, 2018 and as further amended, restated, supplemented or otherwise modified from time to time prior to
the date hereof, the “Credit Agreement”) among Kingpin Intermediate Holdings LLC, as Borrower (as the successor to
the initial borrower A-B Merger Sub II LLC), Bowlero Corp. (f/k/a Bowlmor AMF Corp.), as Holdings (as the successor to initial Holdings
A-B Merger Sub I Inc.), the financial institutions party thereto as Lenders, JPMorgan Chase Bank, N.A. (“JPM”), as
Administrative Agent and the other parties thereto.
Capitalized
terms used in this Converting Lender Consent but not defined in this Converting Lender Consent have the meanings assigned to such terms
in the Credit Agreement; capitalized terms used in this Converting Lender Consent but not defined in the Credit Agreement have the meanings
assigned to such terms in the 2018 Refinancing Amendment.
Existing
Term Lenders
The
undersigned Existing Term Lender hereby irrevocably and unconditionally approves the 2018 Refinancing Amendment and consents as follows
(check ONE option):
Consent
and Cashless Roll Option
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☐
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to
convert 100% of the outstanding principal amount of the Existing Term Loans under the Credit
Agreement held by such Lender (or such lesser amount allocated to such Lender by the Administrative
Agent) into 2018 Refinancing Term Loans in a like principal amount. In the event a lesser
amount is allocated, the difference between the current amount and the allocated amount will
be prepaid on the Second Amendment Effective Date.
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Consent
and Assignment Option
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☐
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to
have 100% of the outstanding principal amount of the Existing Term Loans under the Credit
Agreement held by such Lender prepaid on the Second Amendment Effective Date and purchase
by assignment the principal amount of 2018 Refinancing Term Loans committed to separately
by the undersigned (or such lesser amount allocated to such Lender by the Administrative
Agent).
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[Remainder
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IN
WITNESS WHEREOF, the undersigned has caused this Converting Lender Consent to the 2018 Refinancing Amendment to be executed and delivered
by a duly authorized officer as of the date first written above.
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______(type name of the legal entity)______,
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as a Lender
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By:
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Name:
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Title:
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If a second signature is necessary:
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By:
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Name:
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Signature
Page to Converting Lender Consent
Exhibit 10.13
EXECUTION
VERSION
THIRD
INCREMENTAL AMENDMENT (this “Amendment”), dated as of November 20, 2019, to the First Lien Credit Agreement dated
as of July 3, 2017 (as amended as of March 28, 2018 and July 5, 2018, and as further amended, restated, supplemented or otherwise modified
from time to time prior to the date hereof, the “Credit Agreement”) among Kingpin Intermediate Holdings LLC, as Borrower
(as the successor to the initial borrower A-B Merger Sub II LLC), Bowlero Corp. (f/k/a Bowlmor AMF Corp.), as Holdings (as the successor
to initial Holdings A-B Merger Sub I Inc.), the financial institutions party thereto as Lenders, JPMorgan Chase Bank, N.A. (“JPM”),
as Administrative Agent and the other parties thereto.
WHEREAS,
pursuant to Section 2.22 of the Credit Agreement, the Borrower has requested Incremental Term Loans in an aggregate principal amount
not exceeding $105,000,000 (the “New Term Facility” and the loans thereunder, “New Term Loans”),
the proceeds of which shall be used for general corporate purposes or other purposes not prohibited by the Credit Agreement.
WHEREAS,
the Persons holding New Term Commitments (as defined below) are severally willing to make New Term Loans (the “New Term Lenders”)
on the Third Amendment Effective Date (as defined below) in an aggregate amount equal to their respective New Term Commitments, subject
to the terms and conditions set forth in this Amendment.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Defined Terms. Capitalized terms used and not otherwise defined herein have the meanings assigned to them in the Credit Agreement
as amended hereby.
SECTION
2. New Term Loans.
(a)
Subject to the terms and conditions set forth herein, each New Term Lender severally agrees to make New Term Loans to the Borrower on
the Third Amendment Effective Date in an aggregate principal amount equal to its New Term Commitment, which shall be made available to
the Administrative Agent in immediately available funds in accordance with the Credit Agreement. The “New Term Commitment”
of any New Term Lender will be the amount set forth opposite such New Term Lender’s name on Schedule 1 hereto.
(b)
The New Term Loans shall comprise a single Class with the Amendment No. 2 Term Loans, and accordingly, shall have identical terms as
the Amendment No. 2 Term Loans after giving effect to this Amendment (including, without limitation, with respect to the Applicable Rate,
Maturity Date, scheduled amortization and terms of prepayment), and shall otherwise be subject to the provisions of the Credit Agreement
and the other Loan Documents. The Borrower shall use the proceeds of the New Term Loans as set forth in Section 5.11 of the Credit
Agreement (as amended hereby).
(c)
On the Third Amendment Effective Date, each New Term Lender party hereto irrevocably consents to this Amendment and all modifications
to the Credit Agreement contemplated hereby.
(d)
Upon the occurrence of the Third Amendment Effective Date, each New Term Lender shall have the rights and obligations of a Lender under
the Credit Agreement and under any other applicable Loan Documents.
(e)
Each of Holdings, the Borrower and each other Loan Party acknowledges and agrees that (i) the New Term Loans shall constitute Obligations
and have all the benefits thereof and the Borrower shall be liable for all Obligations with respect to all New Term Loans made to the
Borrower pursuant to this Amendment and (ii) all such Obligations shall constitute Guaranteed Obligations and shall be secured by the
Liens granted to the Administrative Agent for the benefit of the Secured Parties and entitled to the benefits of the Collateral Documents
and the Guarantee.
SECTION
3. Amendments. In accordance with Sections 2.22 and 9.02 of the Credit Agreement and effective as of the Third Amendment Effective
Date, the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example:
stricken text) and to add the double-underlined text (indicated textually in the same
manner as the following example: double-underlined text) as
set forth in the conformed copy of the Credit Agreement attached as Annex A hereto.
SECTION
4. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, Holdings, the Borrower and each
other Loan Party each represents and warrants to the other parties hereto on the Third Amendment Effective Date that:
(a)
(i) the execution, delivery and performance by such Loan Party of this Amendment (and the Credit Agreement, as amended hereby) is within
such Loan Party’s corporate or other organizational power and has been duly authorized by all necessary corporate or other organizational
action of each such Loan Party; and (ii) this Amendment has been duly executed and delivered by such Loan Party and is a legal, valid
and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to the Legal Reservations; and
(b)
the execution and delivery of this Amendment (and the Credit Agreement, as amended hereby) by each Loan Party and the performance by
such Loan Party thereof (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental
Authority, except (A) such as have been obtained or made and are in full force and effect, (B) in connection with the Perfection Requirements
or (C) such consents, approvals, registrations, filings, or other actions the failure to obtain or make which would not be reasonably
expected to have a Material Adverse Effect, (ii) will not violate any (A) of such Loan Party’s Organizational Documents or (B)
Requirements of Law applicable to such Loan Party which, in the case of this clause (ii), would reasonably be expected to have a Material
Adverse Effect, and (iii) will not violate or result in a default under (A) the Credit Agreement or (B) any other material Contractual
Obligation in respect of Indebtedness having an aggregate principal amount exceeding the Threshold Amount to which such Loan Party is
a party which, in the case of this clause (B), would reasonably be expected to result in a Material Adverse Effect.
SECTION
5. Third Amendment Effective Date. This Amendment shall become effective as of the first date (the “Third Amendment Effective
Date”) on which each of the following conditions shall have been satisfied (or waived by the Administrative Agent):
(a)
the Administrative Agent shall have received a counterpart signature page of this Amendment duly executed by Holdings, the Borrower and
each Loan Party, the Administrative Agent, each New Term Lender and certain other Lenders, who shall, collectively with the New Term
Lenders, represent (immediately after giving effect to this Amendment) the Required Lenders;
(b)
the Administrative Agent (or its counsel) shall have received a certificate signed by a Responsible Officer of each Loan Party
referred to in clause (a), in substantially the form delivered on the Closing Date (i) certifying that the articles of formation (or
equivalent document) of such Loan Party, certified by the appropriate Governmental Authority of the state of formation of such Loan
Party, and the operating agreement (or equivalent document) of such Loan Party, either (A) has not been amended since the Closing
Date or (B) is attached as an exhibit to such certificate and that such documents or agreements have not been amended (except as
otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and certified as
true and complete as of a recent date by the appropriate Governmental Authority of the state of formation of such Loan Party, (ii)
certifying that attached thereto are the resolutions of the board of directors or other comparable managing body of such Loan Party
approving the Amendment, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a
Responsible Officer of such Loan Party as of the Third Amendment Effective Date to be true and correct and in force and effect as of
such date, (iii) certifying as to the incumbency and genuineness of the signatures of the officers or other authorized signatories
of such Loan Party executing this Amendment and (iv) attaching the good standing certificates described in clause (d) of this
Section 5;
(c)
to the extent requested by the Administrative Agent, the Administrative Agent (or its counsel) shall have received, on behalf of itself
and the Lenders and each Issuing Bank on the Third Amendment Effective Date, a customary written opinion of (i) Davis Polk & Wardwell
LLP, in its capacity as special New York counsel for Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its
capacity as special Delaware counsel for Holdings, the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity
as special Virginia counsel for Holdings, the Borrower and the Subsidiary Guarantors;
(d)
to the extent requested by the Administrative Agent, the Administrative Agent shall have received a certificate of good standing (to
the extent such concept exists in the relevant jurisdiction) with respect to such Loan Parties referred to in clause (a) (above) certified
as of a recent date by the appropriate Governmental Authority of the state of formation;
(e)
to the extent requested by the Administrative Agent, the Administrative Agent shall have received all documentation and other information,
at least two Business Days prior to the Third Amendment Effective Date, required by regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (in each case to the extent so requested
no less than ten Business Days prior to the Third Amendment Effective Date);
(f)
all fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent (including pursuant to Section
9.03 of the Credit Agreement and pursuant to Section 7 hereof) or any arranger pursuant to any engagement letter with the
Borrower on or before the Third Amendment Effective Date shall have been (or shall substantially contemporaneously be) paid in full in
cash (and in the case of expenses, to the extent invoiced at least three Business Days prior to the Third Amendment Effective Date);
(g)
the Administrative Agent shall have received a Borrowing Request in respect of the New Term Loans to be made on the Third Amendment Effective
Date in accordance with the requirements of the Credit Agreement; and
(h)
no Event of Default under Sections 7.01(a), (f) or (g) of the Credit Agreement shall exist immediately prior to or after giving effect
to the effectiveness of this Amendment.
For
purposes of determining whether the conditions specified in this Section 5 have been satisfied on the date hereof, by funding
the New Term Loans, the Administrative Agent and each New Term Lender that has executed this Agreement (or an Assignment and
Assumption on the date hereof) shall be deemed to have consented to, waived, approved or accepted, or to be satisfied with, each
document or other matter required hereunder.
SECTION
6. Effect of Amendment.
(a)
Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise
affect the rights and remedies of the Lenders or Agents under the Credit Agreement or any other Loan Document, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any
other provision of the Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower to a consent to, or a waiver, amendment, modification
or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other
Loan Document in similar or different circumstances.
(b)
From and after the Third Amendment Effective Date, (i) each reference in the Credit Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein”, or words of like import, and each reference to the “Credit Agreement” in any
other Loan Document shall be deemed a reference to the Credit Agreement as amended hereby and (ii) each reference in any Loan Document
to the “Term Lenders”, “Amendment No. 2 Term Loans”, “Term Loans” or “Term Facility”
shall be deemed a reference to the New Term Lenders, the New Term Loans or the New Term Facility.
(c)
This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents and
shall be deemed to be an “Incremental Facility Amendment”, as defined in the Credit Agreement.
(d)
Each party hereto acknowledges that this Amendment constitutes all notices or requests required under Section 2.22 of the Credit Agreement.
(e)
The Administrative Agent and each Lender party hereto consents to an Interest Period for the New Term Loans beginning on the Third Amendment
Effective Date and ending on the last day of the Interest Period then in effect with respect to the Amendment No. 2 Term Loans outstanding
immediately prior to the effectiveness of this Amendment.
(f)
This Amendment shall not constitute a novation of the Credit Agreement or any other Loan Document.
SECTION
7. Expenses. The Borrower agrees to reimburse the Administrative Agent for its reasonable and documented out-of-pocket expenses incurred
by it in connection with this Amendment, including the reasonable and documented fees, charges and disbursements of Cahill Gordon &
Reindel LLP, counsel for the Administrative Agent.
SECTION
8. Amendments; Severability. (a) Once effective, this Amendment may not be amended nor may any provision hereof be waived except
pursuant to Section 9.02 of the Credit Agreement.
(b) If
any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the
remaining provisions of this Amendment shall not be affected or impaired thereby. The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION
9. Ratification and Reaffirmation. Each Loan Party hereby ratifies and reaffirms: (a) its Obligations in respect of the Credit Agreement
and each of the other Loan Documents to which it is a party and all of the covenants, duties, indebtedness and liabilities under the
Credit Agreement and the other Loan Documents to which it is a party, (b) its prior grant and the validity of the Liens granted by it
pursuant to the Collateral Documents, with all such Liens continuing in full force and effect after giving effect to this Amendment and
(c) the Liens and security interests created in favor of the Administrative Agent for the benefit of the Secured Parties (including the
New Term Lenders) pursuant to each Collateral Document; which Liens shall continue to secure the Secured Obligations (as increased by
the New Term Loans), in each case, on and subject to the terms and conditions set forth in the Credit Agreement and the other Loan Documents.
SECTION
10. GOVERNING LAW; Waiver of Jury Trial; Jurisdiction. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The
provisions of Sections 9.10 and 9.11 of the Credit Agreement, as amended by this Amendment, are incorporated herein by reference, mutatis
mutandis.
SECTION
11. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this
Amendment.
SECTION
12. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. Delivery by facsimile or other electronic imaging means of an executed
counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.
[Remainder
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto
duly authorized as of the date first written above.
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KINGPIN INTERMEDIATE HOLDINGS LLC, as Borrower
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By:
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/s/ Brett Parker
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Name:
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Brett Parker
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Title:
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CFO
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BOWLERO CORP., as Holdings
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By:
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/s/ Brett Parker
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Name:
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Brett Parker
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Title:
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CFO
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[Signature Page to Third Incremental Amendment]
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Subsidiary Guarantors:
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Kingpin Intermediate LLC
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Strike Holdings LLC
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Bowlmor Lanes LLC
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Bowlmor Times Square, LLC
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Westwood Lanes, LLC
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Strike Miami, LLC
|
|
|
Strike Cupertino VFP, LLC
|
|
|
Strike Tustin TDTL, LLC
|
|
|
Strike Consulting, LLC
|
|
|
Strike Long Island, LLC
|
|
|
Bowlero Jupiter Lanes, LLC
|
|
|
Leiserv, LLC
|
|
|
Brunswick Recreation LLC
|
|
|
Brunswick Zone XL Colorado Springs, LLC
|
|
|
Brunswick Zone XL Rockford LLC
|
|
|
Bowlero Scottsdale, LLC
|
|
|
Bowlero Leesburg, LLC
|
|
|
Bowlero Dania, LLC
|
|
|
AMF Worldwide Bowling Centers Holdings Inc.
|
|
|
AMF Bowling Centers Holdings Inc.
|
|
|
AMF Bowling Centers, Inc.
|
|
|
Texas Operations Holding Company, Inc.
|
|
|
AMF Bowling Worldwide, Inc.
|
|
|
Goode Bowling LLC
|
|
|
AMF Beverage Company of Oregon, Inc.
|
|
|
King Louie Lenexa, Inc.
|
|
|
Bush River Corporation
L’aigle D’or, Inc.
|
|
|
Brunswick Riverview Club, Inc.
|
|
|
Perry Hall Lounge, Inc.
|
|
|
By:
|
/s/ Brett I. Parker
|
|
|
Name:
|
Brett I. Parker
|
|
|
Title:
|
Chief
Financial Officer
|
[Signature Page to Third Incremental Amendment]
|
|
300, Inc.
|
|
|
Texas Operations, LLC
|
|
|
|
|
|
|
By:
|
/s/ William DuFour
|
|
|
Name:
|
William DuFour
|
|
|
Title:
|
President
|
[Signature Page to Third Incremental Amendment]
|
|
The
Columbia Lounge, Inc.
|
|
|
|
|
|
|
By:
|
/s/ Thomas F. Shannon
|
|
|
Name:
|
Thomas F. Shannon
|
|
|
Title:
|
President
|
[Signature Page to Third Incremental Amendment]
|
|
JPMORGAN CHASE BANK, N.A.,
|
|
|
as Administrative Agent and New Term Lender
|
|
|
|
|
|
|
By:
|
/s/ Daniel Luby
|
|
|
Name:
|
Daniel Luby
|
|
|
Title:
|
Vice President
|
[Signature Page to Third Incremental Amendment]
[Lender
signature pages on file with the Administrative Agent.]
[Signature
Page to Third Incremental Amendment]
SCHEDULE
1
|
New Term Lender
|
|
New Term Commitment
|
|
JPMorgan Chase Bank, N.A.
|
|
$
|
105,000,000
|
|
ANNEX
A
AMENDMENTS
TO CREDIT AGREEMENT
[Attached]
EXHIBITANNEX
A
Adjusted
marked version reflecting changes made pursuant to the Second Amendment.
Added
text shown underscored; deleted text shown strikethrough.
FIRST
LIEN CREDIT AGREEMENT
Dated
as of July 3, 2017
(as
amended as of March 28, 2018 and, July 5, 2018 and
November 20, 2019)
among
A-B
MERGER SUB II LLC
(to
be merged with and into KINGPIN INTERMEDIATE HOLDINGS LLC),
as the Borrower,
A-B
MERGER SUB I INC.
(to
be merged with and into BOWLMOR AMF CORP.),
as Holdings,
THE
FINANCIAL INSTITUTIONS PARTY HERETO,
as
Lenders,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent, Swingline Lender and an Issuing Bank,
and
JPMORGAN
CHASE BANK, N.A.,
CREDIT SUISSE SECURITIES (USA) LLC and
GOLDMAN
SACHS BANK USA,
as
Joint Lead Arrangers
and
Joint Bookrunners
TABLE OF CONTENTS
|
|
|
Page
|
|
ARTICLE
1
|
DEFINITIONS
|
2
|
|
Section
1.01.
|
Defined
Terms
|
2
|
|
Section
1.02.
|
Classification
of Loans and Borrowings
|
7778
|
|
Section
1.03.
|
Terms
Generally
|
7778
|
|
Section
1.04.
|
Accounting
Terms; GAAP
|
7879
|
|
Section
1.05.
|
Effectuation
of Transactions
|
8183
|
|
Section
1.06.
|
Timing
of Payment and Performance
|
8183
|
|
Section
1.07.
|
Times
of Day
|
8283
|
|
Section
1.08.
|
Currency
Equivalents Generally
|
8283
|
|
Section
1.09.
|
Cashless
Rollovers
|
8384
|
|
Section
1.10.
|
Alternative
Currencies
|
8384
|
|
|
|
|
|
ARTICLE
2
|
THE
CREDITS
|
8485
|
|
Section
2.01.
|
Commitments
|
8485
|
|
Section
2.02.
|
Loans
and Borrowings
|
8486
|
|
Section
2.03.
|
Requests
for Borrowings
|
8586
|
|
Section
2.04.
|
Swingline
Loans
|
8687
|
|
Section
2.05.
|
Letters
of Credit
|
8789
|
|
Section
2.06.
|
[Reserved]
|
9394
|
|
Section
2.07.
|
Funding
of Borrowings
|
9394
|
|
Section
2.08.
|
Type;
Interest Elections
|
9395
|
|
Section
2.09.
|
Termination
and Reduction of Commitments
|
9496
|
|
Section
2.10.
|
Repayment
of Loans; Evidence of Debt
|
9597
|
|
Section
2.11.
|
Prepayment
of Loans
|
9798
|
|
Section
2.12.
|
Fees
|
104105
|
|
Section
2.13.
|
Interest
|
105107
|
|
Section
2.14.
|
Alternate
Rate of Interest
|
107108
|
|
Section
2.15.
|
Increased
Costs
|
107108
|
|
Section
2.16.
|
Break
Funding Payments
|
108109
|
|
Section
2.17.
|
Taxes
|
109110
|
|
Section
2.18.
|
Payments
Generally; Allocation of Proceeds; Sharing of Payments
|
113114
|
|
Section
2.19.
|
Mitigation
Obligations; Replacement of Lenders
|
115116
|
|
Section
2.20.
|
Illegality
|
116117
|
|
Section 2.21.
|
Defaulting Lenders
|
117118
|
|
Section 2.22.
|
Incremental Credit Extensions
|
119120
|
|
Section
2.23.
|
Extensions
of Loans and Revolving Credit Commitments
|
124125
|
|
|
|
|
|
ARTICLE
3
|
REPRESENTATIONS
AND WARRANTIES
|
127128
|
|
Section 3.01.
|
Organization; Powers
|
127128
|
|
Section 3.02.
|
Authorization; Enforceability
|
127128
|
|
Section 3.03.
|
Governmental Approvals; No Conflicts
|
127128
|
|
Section 3.04.
|
Financial Condition; No Material Adverse Effect
|
127128
|
|
Section 3.05.
|
Properties
|
128129
|
|
Section 3.06.
|
Litigation and Environmental Matters
|
128129
|
|
Section 3.07.
|
Compliance with Laws
|
128130
|
|
Section 3.08.
|
Investment Company Status
|
128130
|
|
Section 3.09.
|
Taxes
|
129130
|
|
Section 3.10.
|
ERISA
|
129130
|
|
Section 3.11.
|
Disclosure
|
129130
|
|
Section 3.12.
|
Solvency
|
129131
|
|
Section 3.13.
|
Capitalization and Subsidiaries
|
130131
|
|
Section 3.14.
|
Security Interest in Collateral
|
130131
|
|
Section 3.15.
|
Labor Disputes
|
130131
|
|
Section 3.16.
|
Federal Reserve Regulations
|
130132
|
|
Section 3.17.
|
Sanctions and Anti-Corruption Laws
|
130132
|
|
|
|
|
|
ARTICLE
4
|
CONDITIONS
|
131132
|
|
Section 4.01.
|
Closing Date
|
131132
|
|
Section 4.02.
|
Each Credit Extension
|
134136
|
|
|
|
|
|
ARTICLE
5
|
AFFIRMATIVE
COVENANTS
|
135136
|
|
Section 5.01.
|
Financial Statements and Other Reports
|
135137
|
|
Section 5.02.
|
Existence
|
138140
|
|
Section 5.03.
|
Payment of Taxes
|
139140
|
|
Section 5.04.
|
Maintenance of Properties
|
139140
|
|
Section 5.05.
|
Insurance
|
139140
|
|
Section 5.06.
|
Inspections
|
139141
|
|
Section 5.07.
|
Maintenance of Book and Records
|
140141
|
|
Section 5.08.
|
Compliance with Laws
|
140141
|
|
Section 5.09.
|
Hazardous Materials Activity
|
140142
|
|
Section 5.10.
|
Designation of Subsidiaries
|
141142
|
|
Section 5.11.
|
Use of Proceeds
|
142143
|
|
Section 5.12.
|
Covenant to Guarantee Obligations and Give Security
|
142144
|
|
Section 5.13.
|
Maintenance of Ratings
|
144145
|
|
Section 5.14.
|
Maintenance of Fiscal Year
|
144146
|
|
Section 5.15.
|
Further Assurances
|
144146
|
|
Section 5.16.
|
Conduct of Business
|
145146
|
|
Section 5.17.
|
Annual Lender Call
|
145146
|
|
Section 5.18.
|
Post-Closing Actions
|
145146
|
|
|
|
|
|
ARTICLE
6
|
NEGATIVE
COVENANTS
|
145147
|
|
Section 6.01.
|
Indebtedness
|
145147
|
|
Section 6.02.
|
Liens
|
152153
|
|
Section 6.03.
|
No Further Negative Pledges
|
157159
|
|
Section 6.04.
|
Restricted Payments; Certain Payments of Indebtedness
|
159161
|
|
Section 6.05.
|
[Reserved]
|
166167
|
|
Section 6.06.
|
Investments
|
166167
|
|
Section
6.07.
|
Fundamental
Changes; Disposition of Assets
|
171172
|
|
Section 6.08.
|
Sale and Lease-Back Transactions
|
175177
|
|
Section 6.09.
|
Transactions with Affiliates
|
176178
|
|
Section 6.10.
|
[Reserved]
|
178180
|
|
Section 6.11.
|
[Reserved]
|
178180
|
|
Section 6.12.
|
Amendments of or Waivers with Respect to Restricted Debt
|
179180
|
|
Section 6.13.
|
[Reserved]
|
179180
|
|
Section 6.14.
|
Permitted Activities of Holdings
|
179180
|
|
Section 6.15.
|
Financial Covenant
|
180182
|
|
|
|
|
|
ARTICLE
7
|
EVENTS
OF DEFAULT
|
181183
|
|
Section 7.01.
|
Events of Default
|
181183
|
|
|
|
|
|
ARTICLE
8
|
THE
ADMINISTRATIVE AGENT
|
185186
|
|
|
|
|
|
ARTICLE
9
|
MISCELLANEOUS
|
193194
|
|
Section 9.01.
|
Notices
|
193194
|
|
Section 9.02.
|
Waivers; Amendments
|
194196
|
|
Section 9.03.
|
Expenses; Indemnity
|
202203
|
|
Section 9.04.
|
Waiver of Claim
|
203205
|
|
Section 9.05.
|
Successors and Assigns
|
203205
|
|
Section 9.06.
|
Survival
|
214215
|
|
Section 9.07.
|
Counterparts; Integration; Effectiveness
|
214215
|
|
Section 9.08.
|
Severability
|
214215
|
|
Section 9.09.
|
Right of Setoff
|
214216
|
|
Section 9.10.
|
Governing Law; Jurisdiction; Consent to Service of Process
|
215216
|
|
Section 9.11.
|
Waiver of Jury Trial
|
216217
|
|
Section 9.12.
|
Headings
|
216218
|
|
Section 9.13.
|
Confidentiality
|
216218
|
|
Section 9.14.
|
No Fiduciary Duty
|
217219
|
|
Section 9.15.
|
Several Obligations
|
218219
|
|
Section 9.16.
|
USA PATRIOT Act
|
218219
|
|
Section 9.17.
|
Disclosure
|
218219
|
|
Section 9.18.
|
Appointment for Perfection
|
218219
|
|
Section 9.19.
|
Interest Rate Limitation
|
218220
|
|
Section 9.20.
|
Intercreditor Agreement
|
219220
|
|
Section 9.21.
|
Conflicts
|
219220
|
|
Section 9.22.
|
Release of Guarantors
|
219220
|
|
Section 9.23.
|
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
220221
|
|
SCHEDULES:
|
|
|
|
|
|
|
|
|
|
|
|
Schedule 1.01(a)
|
|
–
|
|
Commitment Schedule
|
|
Schedule 1.01(b)
|
|
–
|
|
Existing Letters of Credit
|
|
Schedule 1.01(c)
|
|
–
|
|
[Reserved]
|
|
Schedule 1.01(d)
|
|
–
|
|
[Reserved]
|
|
Schedule 1.01(e)
|
|
–
|
|
Existing Credit Facilities Excluded Properties
|
|
Schedule 1.01(f)
|
|
–
|
|
Excluded Properties
|
|
Schedule 1.01(g)
|
|
|
|
Liquor License Subsidiaries
|
|
Schedule 3.06
|
|
|
|
Litigation and Environmental Matters
|
|
Schedule 3.13
|
|
–
|
|
Subsidiaries
|
|
Schedule 5.10
|
|
–
|
|
Unrestricted Subsidiaries
|
|
Schedule 5.18
|
|
|
|
Post-Closing Actions
|
|
Schedule 6.01
|
|
–
|
|
Existing Indebtedness
|
|
Schedule 6.02
|
|
–
|
|
Existing Liens
|
|
Schedule 6.03
|
|
–
|
|
Negative Pledges
|
|
Schedule 6.06
|
|
–
|
|
Existing Investments
|
|
Schedule 6.07
|
|
–
|
|
Certain Dispositions
|
|
Schedule 9.01
|
|
–
|
|
Borrower’s Website Address for Electronic Delivery
|
|
|
|
|
|
|
|
EXHIBITS:
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit A-1
|
|
–
|
|
Form of Assignment and Assumption
|
|
Exhibit A-2
|
|
–
|
|
Form of Affiliated Lender Assignment and Assumption
|
|
Exhibit B
|
|
–
|
|
Form of Borrowing Request
|
|
Exhibit C
|
|
–
|
|
Form of Compliance Certificate
|
|
Exhibit D
|
|
–
|
|
Form of Interest Election Request
|
|
Exhibit E
|
|
–
|
|
Form of Perfection Certificate
|
|
Exhibit F
|
|
–
|
|
[Reserved]
|
|
Exhibit G
|
|
–
|
|
Form of Promissory Note
|
|
Exhibit H-1
|
|
–
|
|
Form of Trademark Security Agreement
|
|
Exhibit H-2
|
|
–
|
|
Form of Patent Security Agreement
|
|
Exhibit H-3
|
|
–
|
|
Form of Copyright Security Agreement
|
|
Exhibit I
|
|
–
|
|
Form of Guaranty Agreement
|
|
Exhibit J
|
|
–
|
|
Form of Security Agreement
|
|
Exhibit K
|
|
–
|
|
Form of Letter of Credit Request
|
|
Exhibit L-1
|
|
–
|
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-2
|
|
–
|
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-3
|
|
–
|
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-4
|
|
–
|
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit M
|
|
–
|
|
Form of Solvency Certificate
|
|
Exhibit N
|
|
–
|
|
Form of Intercreditor Agreement
|
FIRST
LIEN CREDIT AGREEMENT
FIRST
LIEN CREDIT AGREEMENT, dated as of July 3, 2017 and as amended pursuant to Amendment No. 1 and,
Amendment No. 2 and Amendment No. 3 referred to below (as further amended, supplemented
or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), by and among A-B Merger
Sub I Inc., a Delaware corporation (“Merger Sub 1”), A-B Merger Sub II LLC, a Delaware limited liability company (“Merger
Sub 2”), the Lenders from time to time party hereto, JPMorgan Chase Bank, N.A. (“JPM”), in its capacities
as administrative agent for the Lenders and collateral agent for the Secured Parties (in such capacities, together with its successor
and permitted assigns, the “Administrative Agent”), the Swingline Lender and an Issuing Bank, Credit Suisse AG, Cayman
Islands Branch (“Credit Suisse”), in its capacity as an Issuing Bank, and Goldman Sachs Bank USA (“GS Bank”),
in its capacity as an Issuing Bank, with JPM, Credit Suisse Securities (USA) LLC and Goldman Sachs Bank USA, as joint lead arrangers
and joint bookrunners (in such capacities, collectively, the “Arrangers”).
RECITALS
A.
Pursuant to the terms of the Acquisition Agreement, on the Closing Date, (i) Parent acquired, by merger of Merger Sub 1 with and into
the Target, a majority of the issued and outstanding equity interests of the Target (with the Target being the surviving entity of such
merger) (the “Merger Sub 1 Merger”) and (ii) Merger Sub 2 merged with and into Kingpin Intermediate (with Kingpin
Intermediate being the surviving entity of such merger) (the “Merger Sub 2 Merger”).
B.
To consummate the Transactions, certain of the Investors directly or indirectly (including by way of repayment of existing debt of the
Target and/or payments to existing shareholders of the Target) made cash contributions to Merger Sub 1 and/or the Target (with all such
cash contributions to be in the form of (i) common equity, (ii) the Series A Preferred Stock, (iii) Qualified Capital Stock or (iv) other
preferred Capital Stock or other instruments (in the case of clause (iv), having terms reasonably acceptable to the Administrative
Agent) (any such equity or instruments “Permitted Equity”), which cash contributions were in an aggregate amount that,
when taken together with all equity interests (including restricted stock or options) retained, rolled-over or directly or indirectly
invested in Permitted Equity of Holdings and all Permitted Equity of Holdings issued to, or otherwise directly or indirectly held or
acquired by, any shareholders, directors or management of the Target (together, the “Equity Contribution”) was not
less than 30% (the “Minimum Equity Percentage”) of the sum of (i) the aggregate principal amount of the Credit Facilities
and Second Lien Facility funded on the Closing Date (excluding (A) amounts drawn under the Revolving Facility on the Closing Date for
working capital purposes and/or purchase price adjustments, to fund Transaction Costs or to replace, backstop or cash collateralize existing
letters of credit and (B) any letters of credit outstanding on the Closing Date) and
(ii)
the Equity Contribution.
C.
To consummate the Transactions on the Closing Date, the Borrower requested that the Lenders under this Agreement as of such date (such
agreement as in effect immediately prior to the Amendment No. 23
Effective Date, the “Existing Credit Agreement”) originally
extend credit in the form of (a) Initial Term Loans (excluding the Amendment No. 1 Incremental
Term Loans, and for the avoidance
of doubt, the Amendment No. 2 Term Loans and the Amendment No. 3 Incremental
Term Loans) in an original aggregate principal amount equal to $585,000,000 and (b) a Revolving Facility with an available amount of
$50,000,000, in each case, subject to increase as provided herein.
D. To
consummate the Transactions on the Closing Date, the Borrower also borrowed term loans in an original aggregate principal amount
equal to $110,000,000 under the Second Lien Credit Agreement.
E.
The Lenders under the Existing Credit Agreement were willing to extend the Initial Term Loans (excluding the Amendment No. 1 Incremental
Term Loans, and for the avoidance of doubt, the Amendment
No. 2 Term Loans and the Amendment No. 3 Inccremental Term Loans) and to make available the Revolving Facility, in each case
on the terms and subject to the conditions set forth therein.
F.
To consummate the Transactionscertain
transactions on the Amendment No. 1 Effective Date, the Borrower borrowed Incremental Term Loans in an original aggregate
principal amount equal to $113,000,000 pursuant to Amendment No. 1.
G.
Holdings, the Borrower, the Administrative Agent and the Lenders party thereto have
entered into that certain Second Amendment (“Amendment No. 2”), dated as of July 5, 2018 (the “Amendment
No. 2 Effective Date”), under which the Amendment No. 2 Term Lenders (as hereinafter defined) are
extendingextended credit to the Borrower in the
form of Amendment No. 2 Term Loans (as hereinafter defined) in an original aggregate principal amount equal to $715,000,000.
H.
Pursuant to Amendment No. 2, the Administrative Agent, Holdings, the Borrower and the Amendment No. 2 Term Lenders have
agreed to amend the Existing Credit Agreement as provided in this AgreementAmendment
No. 2.
I. Holdings,
the Borrower, the Administrative Agent and the Lenders party thereto have entered into that certain Third Amendment (“Amendment
No. 3”), dated as of November 20, 2019 (the “Amendment No. 3 Effective Date”), under which the Amendment
No. 3 Incremental Term Lenders (as hereinafter defined) are extending credit to the Borrower in the form of Amendment No. 3 Incremental
Term Loans (as hereinafter defined) in an original aggregate principal amount equal to $105,000,000.
IJ.
Accordingly, the parties hereto agree as follows:
ARTICLE
1 DEFINITIONS
Section
1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at
a rate determined by reference to the Alternate Base Rate.
“Acceptable
Intercreditor Agreement” means the Intercreditor Agreement, a Market Intercreditor Agreement, or another intercreditor agreement
that is reasonably satisfactory to the Administrative Agent (which may, if applicable, consist of a payment “waterfall”).
“ACH”
means automated clearing house transfers.
“Acquisition”
means the Mergers and the other transactions contemplated by the Acquisition Agreement.
“Acquisition Agreement”
means that certain Agreement and Plan of Merger, dated as of June 6, 2017, by and among, inter alios, Parent, Merger Sub 1, Merger
Sub 2, the Target and the other Persons party thereto.
“Additional
Agreement” has the meaning assigned to such term in Article 8.
“Additional
Commitment” means any commitment hereunder added pursuant to Sections 2.22, 2.23 or 9.02(c)
(including, for the avoidance of doubt, the Amendment No. 2 Term Loan Commitments).
“Additional
Credit Facilities” means any credit facilities added pursuant to Sections 2.22, 2.23 or 9.02(c).
“Additional
Lender” has the meaning assigned to such term in Section 2.22(b).
“Additional
Letter of Credit Facility” means any letter of credit facility established by the Borrower and/or any Restricted Subsidiary
outside of this Agreement to obtain letters of credit required by customers, suppliers or landlords or otherwise required in the ordinary
course of business.
“Additional
Loans” means any Additional Revolving Loans and any Additional Term Loans.
“Additional Revolving Credit Commitments”
means any revolving credit commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Revolving Credit Exposure” means, with respect to any Person at any time, the aggregate outstanding principal amount at such
time of all Additional Revolving Loans of such Person, plus the aggregate amount at such time of such Person’s LC Exposure
and Swingline Exposure, in each case, attributable to its Additional Revolving Credit Commitment.
“Additional
Revolving Facility” means any revolving credit facility added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Revolving Lender” means any Lender with an Additional Revolving Credit Commitment or any Additional Revolving Credit Exposure.
“Additional
Revolving Loans” means any revolving loan added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Term Loan Commitments” means any term loan commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(i)
(including, for the avoidance of doubt, the Amendment No. 2 Term Loan Commitment).
“Additional
Term Loans” means any term loan added pursuant to Section 2.22, 2.23 or 9.02(c)(i) (including, for the
avoidance of doubt, the Amendment No. 2 Term Loans and the Amendment No.
3 Incremental Term Loans).
“Adjustment
Date” means the date of delivery of financial statements required to be delivered pursuant to Section 5.01(a) or Section
5.01(b), as applicable.
“Administrative
Agent” has the meaning assigned to such term in the preamble to this Agreement.
“Administrative
Questionnaire” has the meaning assigned to such term in Section 2.22(d).
“Adverse
Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation
or arbitration (whether or not purportedly on behalf of Holdings, the Borrower or any of its Restricted Subsidiaries) at law or in equity,
or before or by any Governmental Authority, domestic or foreign, whether pending or, to the knowledge of Holdings, the Borrower or any
of its Restricted Subsidiaries, threatened in writing, against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries
or any property of Holdings, the Borrower or any of its Restricted Subsidiaries.
“Affiliate”
means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that
Person. No Person shall be an “Affiliate” of Holdings or any subsidiary thereof solely because it is an unrelated portfolio
company of the Sponsor and none of the Administrative Agent, the Arrangers, any Lender (other than any Affiliated Lender or any Debt
Fund Affiliate) or any of their respective Affiliates shall be considered an Affiliate of Holdings or any subsidiary thereof. For the
avoidance of doubt, the parties hereto agree that Comcast Corporation, a Pennsylvania corporation, is not an Affiliate of Holdings or
the Borrower as of the Closing Date.
“Affiliated
Lender” means any Non-Debt Fund Affiliate, Holdings, the Borrower and/or any of its Restricted Subsidiaries.
“Affiliated
Lender Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Affiliated Lender (with
the consent of any party whose consent is required by Section 9.05) and accepted by the Administrative Agent in the form of Exhibit
A-2 or any other form approved by the Administrative Agent and the Borrower.
“Affiliated
Lender Cap” has the meaning assigned to such term in Section 9.05(g)(iv).
“Aggregate Revolving Credit Exposure”
means, at any time, the aggregate amount of the Lenders’ Revolving Credit Exposures at such time.
“Agreement”
has the meaning assigned to such term in the preamble to this First Lien Credit Agreement.
“Alternate
Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such
day plus 0.50%, (b) to the extent ascertainable, the Published LIBO Rate (which rate shall be calculated based upon an Interest
Period of one month and shall be determined on a daily basis based on the rate determined on such day for such Interest Period at 11:00
a.m. (London time)) plus 1.00%, (c) the Prime Rate and (d) solely with respect to the Amendment No. 2 Term Loans, 2.00%. Any change
in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Published LIBO Rate, as the case
may be, shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or
the Published LIBO Rate, as the case may be.
“Amendment
No. 1” means the First Incremental Amendment, dated as of the Amendment No. 1 Effective Date, among the Borrower, the other
Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
“Amendment
No. 1 Effective Date” means March 28, 2018.
“Amendment
No. 1 Incremental Term Lender” means any Person with an Initial Term Loan Commitment to make Amendment No. 1 Incremental Term
Loans.
“Amendment
No. 1 Incremental Term Loans” means the Term Loans funded pursuant to Amendment No. 1 on the Amendment No. 1 Effective Date,
the proceeds of which shall be used to consummate the Amendment No. 1 Transactions, to pay fees and expenses in connection with the foregoing
and for general corporate purposes or other actions or purposes permitted hereunder.
“Amendment
No. 1 Transactions” means the entering into of Amendment No. 1, the incurrence of the Amendment No. 1 Incremental Term Loans,
the repayment in full of all outstanding amounts under the Second Lien Credit Agreement and the payment of all fees, expenses and other
costs incurred in connection with the foregoing.
“Amendment
No. 2” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment No. 2 Effective Date”
has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 2 Term Lender” means each “2018 Refinancing Term Loan Lender” as such term is defined in Amendment No. 2.
“Amendment
No. 2 Term Loan Commitment” means the “2018 Refinancing Term Loan Commitment” as such term is defined in Amendment
No. 2.
“Amendment
No. 2 Term Loans” means the “2018 Refinancing Term Loans” as such term is defined in Amendment No. 2 and
all Amendment No. 3 Incremental Term Loans.
“Amendment
No. 2 Transactions” means the entering into of Amendment No. 2, the incurrence of the Amendment No. 2 Term Loans and the payment
of all fees, expenses and other costs incurred in connection with the foregoing.
“Amendment
No. 3” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 3 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment No. 3
Incremental Term Lender” means each Lender under this Agreement that holds an Amendment No. 3 Incremental Term Loan and/or
a commitment to make an Amendment No. 3 Incremental Term Loan (as applicable).
“Amendment
No. 3 Incremental Term Loan Commitment” means an aggregate principal amount set forth opposite such Amendment No. 3 Incremental
Term Lender’s name contained in Schedule 1 in Amendment No. 3. The aggregate amout of the Amendment No. 3 Incremental Term Loan
Commitments on the Amendment No. 3 Effective Date is $105,000,000.
“Amendment
No. 3 Incremental Term Loans” means the Term Loans funded pursuant to Amendment No. 3 on the Amendment No. 3 Effective
Date, the proceeds of which shall be used to consummate the Amendment No. 3 Transactions, to pay fees and expenses in connection with
the foregoing and for general corporate purposes or other actions or purposes permitted hereunder.
“Amendment
No. 3 Transactions” means the entering into of Amendment No. 3, the incurrence of the Amendment No. 3 Incremental Term Loans
and the payment of all fees, expenses and other costs incurred in connection with the foregoing.
“Applicable
Charges” has the meaning set forth in Section 9.19.
“Applicable
Percentage” means, (a) with respect to any Term Lender of any Class, a percentage equal to a fraction the numerator of which
is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan Commitments of such Term Lender under
such Class and the denominator of which is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan
Commitments of all Term Lenders under such Class and (b) with respect to any Revolving Lender of any Class, the percentage of the aggregate
amount of the Revolving Credit Commitments of such Class represented by such Lender’s Revolving Credit Commitment of such Class;
provided that for purposes of Section 2.21 and otherwise herein, when there is a Defaulting Lender, such Defaulting Lender’s
Revolving Credit Commitment shall be disregarded for any relevant calculation. In the case of clause (b), in the event that the
Revolving Credit Commitments of any Class have expired or been terminated, the Applicable Percentage of any Revolving Lender of such
Class shall be determined on the basis of the Revolving Credit Exposure of such Revolving Lender with respect to such Class, giving effect
to any assignments and to any Revolving Lender’s status as a Defaulting Lender at the time of determination.
“Applicable
Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Applicable
Rate” means, for any day from and after the Amendment No. 2 Effective Date, (a) for Amendment No. 2 Term Loans,
(including, for the avoidance of doubt, all Amendment No. 3 Incremental Term Loans), (i)
in the case of ABR Loans, 2.50% per annum and (ii) in the case of LIBO Rate Loans, 3.50% per annum and (b) for Revolving Loans, the rate
per annum set forth below under the caption “ABR Spread” or “LIBO Rate Spread”, as the case may be, based upon
the First Lien Leverage Ratio as of the last day of the most recently ended Test Period; provided that until the first Adjustment Date
following the completion of at least one full Fiscal Quarter ended after the Closing Date, the “Applicable Rate” for any
Revolving Loans shall have been the applicable rate per annum set forth below in Category 1.
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First Lien Leverage Ratio
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ABR Spread for
Revolving Loans
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LIBO Rate Spread for
Revolving Loans
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Category 1
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Greater than 3.70 to 1.00
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3.25
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%
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4.25
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%
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Category 2
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Less than or equal to 3.70 to 1.00 and greater than 3.20 to 1.00
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3.00
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%
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4.00
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%
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Category 3
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Less than or equal to 3.20 to 1.00
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2.75
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%
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3.75
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%
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The
Applicable Rate for Revolving Loans shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the First
Lien Leverage Ratio in accordance with the table above; provided that if financial statements are not delivered when required
pursuant to Section 5.01(a) or (b), as applicable, the “Applicable Rate” for Revolving Loans shall be the
rate per annum set forth above in Category 1 until such financial statements are delivered in compliance with Section
5.01(a) or (b), as applicable.
The
Applicable Rate for any Class of Additional Revolving Loans or Additional Term Loans shall be as set forth in the applicable Refinancing
Amendment, Incremental Facility Amendment or Extension Amendment.
“Approved
Fund” means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding
or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered,
advised or managed by (a) such Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers,
advises or manages such Lender.
“Arrangers”
has the meaning assigned to such term in the preamble to this Agreement and shall include for purposes of Section 9.03, the “Amendment
No. 2 Lead Arrangers” (as defined in Amendment No. 2).
“Assignment
Agreement” means, collectively, each Assignment and Assumption and each Affiliated Lender Assignment and Assumption.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 9.05), and accepted by the Administrative Agent in the form of Exhibit A-1 or any
other form approved by the Administrative Agent and the Borrower.
“Attributable
Debt” means, at any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person (except in the footnotes thereto) prepared in accordance with GAAP, other than (a) Capital Lease Obligations
arising as a result of a modification of the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents to the extent
such modification is not prohibited hereunder (including the iStar Amendments), (b) Capital Lease Obligations arising as a result of
the classification of the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 or any Excluded Property Sale/Leaseback Transaction as
a Capital Lease and (c) Capital Lease Obligations arising as a result of any Excluded Property Sale/Leaseback Transaction. For the avoidance
of doubt, this definition of “Attributable Debt” shall be subject in all respects to the provisions of Section 1.04(c).
“Auction”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction Agent” means (a)
the Administrative Agent or any of its Affiliates or (b) any other financial institution or advisor engaged by the Borrower (whether
or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Auction pursuant to the definition of
“Dutch Auction”.
“Auction
Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction Notice”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction Party” has the meaning
set forth in the definition of “Dutch Auction”.
“Auction
Response Date” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Availability
Period” means the period from and including the Closing Date to but excluding the earliest of (a) the date of termination of
the Initial Revolving Credit Commitments pursuant to Section 2.09, (b) the date of termination of the Initial Revolving Credit Commitment
of each Initial Revolving Lender to make Initial Revolving Loans and the obligation of each Issuing Bank to issue Letters of Credit pursuant
to Section 7.01 and (c) the Initial Revolving Credit Maturity Date.
“Available
Amount” means, at any time, an amount equal to, without duplication:
(a) the sum of:
(i)
the greater of $20,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; plus
(ii)
the CNI Growth Amount (provided that such amount shall not be available for any Restricted Payment pursuant to Section
6.04(a)(iii)(A) or Restricted Debt Payment pursuant to Section 6.04(b)(vi)(A), in each case, if any Event of Default exists pursuant
to Section 7.01(a) or, with respect to the Borrower, Sections 7.01(f) or (g) at the time of determination pursuant to Section
1.04(e)); plus
(iii)
the amount of any capital contributions or other proceeds of any issuance of Capital Stock (other than any amounts (x) constituting
a Cure Amount or an Available Excluded Contribution Amount or proceeds of an issuance of Disqualified Capital Stock, (y) received
from the Borrower or any Restricted Subsidiary or (z) consisting of the proceeds of any loan or advance made pursuant to Section
6.06(h)(ii)) received as Cash equity by the Borrower or any of its Restricted Subsidiaries, plus the fair market value,
as determined by the Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Borrower
or any Restricted Subsidiary as a capital contribution or in return for any issuance of Capital Stock (other than any amounts (x)
constituting a Cure Amount or an Available Excluded Contribution Amount or proceeds of any issuance of Disqualified Capital Stock or
(y) received from the Borrower or any Restricted Subsidiary), in each case, during the period from and including the day immediately
following the Closing Date through and including such time; plus
(iv)
the aggregate principal amount of any Indebtedness or Disqualified Capital Stock, in each case, of the Borrower or any Restricted Subsidiary
issued after the Closing Date (other than Indebtedness or such Disqualified Capital Stock issued to the Borrower or any Restricted Subsidiary),
which has been converted into or exchanged for Capital Stock of the Borrower, any Restricted Subsidiary or any Parent Company that does
not constitute Disqualified Capital Stock, together with the fair market value of any Cash or Cash Equivalents (as determined by the
Borrower in good faith) and the fair market value (as determined by the Borrower in good faith) of any property or assets received by
the Borrower or such Restricted Subsidiary upon such exchange or conversion, in each case, during the period from and including the day
immediately following the Closing Date through and including such time; plus
(v)
the net proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately
following the Closing Date through and including such time in connection with the Disposition to any Person (other than the Borrower
or any Restricted Subsidiary) of any Investment made pursuant to Section 6.06(r)(i); plus
(vi)
to the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of
such Investment, the proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately
following the Closing Date through and including such time in connection with cash returns, cash profits, cash distributions and similar
cash amounts, including cash principal repayments of loans and interest payments on loans, in each case received in respect of any Investment
made after the Closing Date pursuant to Section 6.06(r)(i) or, without duplication, otherwise received by the Borrower or any
Restricted Subsidiary from an Unrestricted Subsidiary (including any proceeds received on account of any issuance of Capital Stock by
any Unrestricted Subsidiary (other than solely on account of the issuance of Capital Stock to the Borrower or any Restricted Subsidiary));
plus
(vii)
an amount equal to the sum of (A) the amount of any Investments by the Borrower or any Restricted Subsidiary pursuant to Section 6.06(r)(i)
in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary, (B) the amount of any Investments by the Borrower
or any Restricted Subsidiary pursuant to Section 6.06(r)(i) in any Unrestricted Subsidiary that has been merged, consolidated
or amalgamated with or into, or is liquidated, wound up or dissolved into, the Borrower or any Restricted Subsidiary and (C) the fair
market value (as determined by the Borrower in good faith) of the property or assets of any Unrestricted Subsidiary that have been transferred,
conveyed or otherwise distributed to the Borrower or any Restricted Subsidiary, in each case, during the period from and including the
day immediately following the Closing Date through and including such time; plus
(viii) the amount of any Declined Proceeds; minus
(b) an
amount equal to the sum of (i) Restricted Payments made pursuant to Section 6.04(a)(iii)(A), plus (ii) Restricted Debt
Payments made pursuant to Section 6.04(b)(vi)(A), plus (iii) Investments made pursuant to Section
6.06(r)(i), in each case, after the Closing Date and prior to such time, or contemporaneously therewith.
“Available
Excluded Contribution Amount” means the aggregate amount of Cash or Cash Equivalents or the fair market value of other assets
or property (as determined by the Borrower in good faith, but excluding any Cure Amount and any amounts that are used to increase the
Available Amount) received by the Borrower or any of its Restricted Subsidiaries after the Closing Date from:
(1)
contributions in respect of Qualified Capital Stock (other than any amounts or other assets received from the Borrower or any of its
Restricted Subsidiaries), and
(2)
the sale of Qualified Capital Stock of the Borrower or any of its Restricted Subsidiaries (other than (x) to the Borrower or any
Restricted Subsidiary of the Borrower, (y) pursuant to any management equity plan or stock option plan or any other management or
employee benefit plan or (z) with the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)), in each case,
designated as Available Excluded Contribution Amounts pursuant to a certificate of a Responsible Officer on or promptly after the
date the relevant capital contribution is made or the relevant proceeds are received, as the case may be, and which are excluded
from the calculation of the Available Amount.
“Available
RDP Capacity Amount” means the amount of Restricted Debt Payments that may be made at the time of determination pursuant to
Section 6.04(b)(iv)(A) minus the amount of the Available RDP Capacity Amount utilized by the Borrower or any Restricted Subsidiary
to make Investments pursuant to Section 6.06(q)(ii).
“Available
RP Capacity Amount” means the amount of Restricted Payments that may be made at the time of determination pursuant to Sections
6.04(a)(ii)(D), (a)(vii) and (a)(x) minus the aggregate amount of the Available RP Capacity Amount utilized by the
Borrower or any Restricted Subsidiary to (a) make Investments pursuant to Section 6.06(q)(ii), (b) make Restricted Debt
Payments pursuant to Section 6.04(b)(iv)(B) or (c) incur Indebtedness pursuant to Section 6.01(ll).
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of
any liability of an EEA Financial Institution.
“Bail-In
Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European
Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described
in the EU Bail-In Legislation Schedule.
“Banking
Services” means each and any of the following bank services: commercial credit cards, stored value cards, debit cards, purchasing
cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including
depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee
credit card programs, cash pooling services, foreign exchange and currency management services and any arrangements or services similar
to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts.
“Banking
Services Obligations” means any and all obligations of any Loan Party, whether absolute or contingent and however and whenever
created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) (a)
under any arrangement that is in effect on the Closing Date between any Loan Party and a counterparty that is (or is an Affiliate of)
the Administrative Agent, any Lender or any Arranger as of the Closing Date or (b) under any arrangement that is entered into after the
Closing Date by any Loan Party with any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger
at the time such arrangement is entered into, in each case, in connection with Banking Services, in each case, that has been designated
to the Administrative Agent in writing by the Borrower as being Banking Services Obligations for purposes of the Loan Documents, it being
understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan
Documents and (B) to agree to be bound by the provisions of Article 8, Section 9.03 and Section 9.10 and the Intercreditor
Agreement and each other Acceptable Intercreditor Agreement, in each case as if it were a Lender.
“Bankruptcy
Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
“Board” means the Board of
Governors of the Federal Reserve System of the U.S.
“Bona
Fide Debt Fund” means any debt fund, investment vehicle, regulated bank entity or unregulated lending entity engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business and
which is managed, sponsored or advised by any Person controlling, controlled by or under common control with (a) any competitor of the
Borrower and/or any of its subsidiaries or (b) any Affiliate of such competitor, but, in each case, with respect to which no personnel
involved with any investment in such Person or the management, control or operation of such Person (i) makes, has the right to make or
participates with others in making any investment decisions with respect to such Person or (ii) has access to any information (other
than information that is publicly available) relating to Holdings, the Borrower or its subsidiaries or any entity that forms a part of
any of their respective businesses; it being understood and agreed that the term “Bona Fide Debt Fund” shall not include
any Person that is separately identified to the Arrangers or the Administrative Agent in accordance with clause (a)(i) or (a)(ii) of
the definition of “Disqualified Institution” or any reasonably identifiable Affiliate of any such Person on the basis of
such Affiliate’s name.
“Borrower”
means (a) initially, Merger Sub 2, and after giving effect to the Merger Sub 2 Merger, Kingpin Intermediate (in each case, prior to the
consummation of a transaction described in clause (b) of this definition) and (b) following the consummation of a transaction
permitted hereunder that results in a Successor Borrower, such Successor Borrower.
“Borrowing”
means any Loans of the same Type and Class made, converted or continued on the same date and, in the case of LIBO Rate Loans, as to which
a single Interest Period is in effect.
“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03 and substantially in the form
attached hereto as Exhibit B or such other form that is reasonably acceptable to the Administrative Agent and the Borrower.
“Bowling
Equipment” means all pin setting machines (pinsetters/pinspotters), ball returns, settees, scoring systems (including front
desk systems), lanes, lane cleaning machines, bumpers, approaches, foul lights, gutters and masking units.
“Business
Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or
required by law to remain closed; provided that when used in connection with a LIBO Rate Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
“Capital
Expenditures” means, as applied to any Person for any period, the aggregate amount, without duplication, of all expenditures
(whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases)
that in accordance with GAAP, are, or are required to be included as, capital expenditures on the consolidated statement of cash flows
for such Person for such period.
“Capital
Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP (but subject to Section 1.04(c)), is or should be accounted for as a capital lease on the balance
sheet of that Person.
“Capital
Lease Obligations” means, with respect to any Person, the amount of obligations attributable to any Capital Lease capitalized
as a liability on the balance sheet (excluding the footnotes thereto) of such Person in accordance with GAAP.
“Capital
Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership
interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but
excluding for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing.
“Captive
Insurance Subsidiary” means any Restricted Subsidiary of the Borrower that is subject to regulation as an insurance company
(or any Restricted Subsidiary thereof).
“Cash”
or “cash” means money, currency or a credit balance in any Deposit Account, in each case determined in accordance
with GAAP.
“Cash
Equivalents” means, as at any date of determination, (a) readily marketable securities (i) issued or directly and
unconditionally guaranteed or insured as to interest and principal by the U.S., U.K., Canada or a member state of the European Union
or any political subdivision thereof or (ii) issued by any agency or instrumentality of the U.S., U.K., Canada or a member state of
the European Union or any political subdivision thereof, the obligations of which are backed by the full faith and credit of the
U.S., U.K., Canada or a member state of the European Union or any political subdivision thereof, in each case maturing within two
years after such date and, in each case, including repurchase agreements and reverse repurchase agreements relating thereto; (b)
readily marketable direct obligations issued by any state of the U.S. or any political subdivision of any such state or any public
instrumentality thereof or by any foreign government, in each case maturing within two years after such date and having, at the time
of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither
S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized statistical
rating agency) and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (c) commercial paper
maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at
least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized statistical rating agency); (d) deposits, money market
deposits, time deposit accounts, certificates of deposit or bankers’ acceptances (or similar instruments) maturing within one
year after such date and issued or accepted by any Lender or “Lender” in respect of the Second Lien Facility or by any
bank organized under, or authorized to operate as a bank under, the laws of the U.S., any state thereof or the District of Columbia
or any political subdivision thereof or any foreign bank or its branches or agencies and that has capital and surplus of not less
than $75,000,000 and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (e) securities with
maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank
having capital and surplus of not less than $75,000,000; (f) Indebtedness or Preferred Capital Stock issued by Persons with a rating
of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the time, neither is
issuing comparable ratings, then a comparable rating of another nationally recognized statistical rating organization) with
maturities of 12 months or less from the date of acquisition; (g) bills of exchange issued in the U.S., U.K., Canada, a member state
of the European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized
equivalent); (h) solely with respect to any Captive Insurance Subsidiary, any investment that such Captive Insurance Subsidiary is
not prohibited to make in accordance with applicable law; and (i) shares or other interests of any investment company, money market
mutual fund or other money market or enhanced high yield fund that invests 95% or more of its assets in instruments of the types
specified in clauses (a) through (h) above (which investment company or fund may also hold Cash pending investment or
distribution).
The
term “Cash Equivalents” shall also include (x) foreign currencies (in addition to Canadian dollars, Euros, Pound Sterling,
Mexican Pesos, any national currency of any member state of the European Union and any other currency held by the Borrower or any Restricted
Subsidiary in the ordinary course of business); provided that such amounts, if received by the Borrower or any Restricted Subsidiary,
are converted into Dollars, Canadian dollars, Euros, Pound Sterling, Mexican Pesos, any national currency of any member state of the
European Union or any other currency held by the Borrower or any Restricted Subsidiary in the ordinary course of business as promptly
as practicable (and in any event within ten Business Days following receipt thereof), (y) Investments of the type and maturity described
in clauses (a) through (i) above of foreign obligors, which Investments or obligors (or the parent companies thereof) have
the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (z) other short-term Investments
utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in Investments analogous to the Investments
described in clauses (a) through (i) and in this paragraph.
“Change
in Law” means (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law,
rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c)
compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or
such Issuing Bank or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date (other than
any such request, guideline or directive to comply with any law, rule or regulation that was in effect on the Closing Date). For
purposes of this definition and Section 2.15, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof
and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or U.S. regulatory authorities, in each case pursuant to
Basel III, shall in each case described in clauses (a), (b) and (c) above, be deemed to be a Change in Law,
regardless of the date enacted, adopted, issued or implemented.
“Change
of Control” means the earliest to occur of:
(a)
at any time prior to a Qualifying IPO, the Permitted Holders ceasing to beneficially own, either directly or indirectly (within the meaning
of Rule 13d-3 and Rule 13d-5 under the Exchange Act as in effect on the Closing Date), Capital Stock representing more than 50% of the
total voting power of all of the outstanding voting Capital Stock of Holdings;
(b)
at any time on or after a Qualifying IPO, the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2)
of the Exchange Act as in effect on the Closing Date), including any group acting for the purpose of acquiring, holding or disposing
of Securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act as in effect on the Closing Date), but excluding (i) any
Employee Benefit Plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) one or more Permitted
Holders and (iii) any underwriter in connection with any Qualifying IPO, of Capital Stock of Holdings representing more than the greater
of (x) 35% of the total voting power of all of the outstanding voting Capital Stock of Holdings and (y) the percentage of the total voting
power of all of the outstanding voting Capital Stock of Holdings collectively owned, directly or indirectly, beneficially by the Permitted
Holders; and
(c)
the Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of Holdings (other than during the pendency of any Holdings
Reorganization Transaction or Permitted Reorganization); it being understood and agreed for the avoidance of doubt that the Mergers
shall not trigger a “Change of Control” for any purpose under this Agreement or any other Loan Document.
Notwithstanding
the preceding or any provision of Section 13d-3 of the Exchange Act as in effect on the Closing Date, (i) a Person or group shall
not be deemed to beneficially own Capital Stock subject to a stock or asset purchase agreement, merger agreement, option agreement,
warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the
acquisition of the Capital Stock in connection with the transactions contemplated by such agreement, (ii) if any group
includes one or more Permitted Holders, the issued and outstanding Capital Stock of Holdings owned, directly or indirectly, by any
Permitted Holders that are part of such group shall not be treated as being beneficially owned by such group or any other member of
such group for purposes of determining whether a Change of Control has occurred so long as one or more Permitted Holders hold in
excess of 50% of the issued and outstanding Capital Stock owned, directly or indirectly, by such group and (iii) a Person or group
will not be deemed to beneficially own the Capital Stock of another Person as a result of its ownership of the Capital Stock or
other securities of such other Person’s parent entity (or related contractual rights) unless (A) it owns 50% or more of the
total voting power of the Capital Stock entitled to vote for the election of directors or board of managers of such parent entity
and (B) such directors or managers elected by the Person or group have a majority of the aggregate votes on the board of directors
(or similar body) of such parent entity.
“Charge”
means any fee, loss, charge, expense, cost, accrual or reserve of any kind.
“Class”,
when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial
Term Loans, Amendment No. 2 Term Loans, (including,
for the avoidance of doubt, Amendment No. 3 Incremental Term Loans), other Additional Term Loans of any series established
as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(i), Initial Revolving Loans or Additional
Revolving Loans of any series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(ii)
or Swingline Loans, (b) any Commitment, refers to whether such Commitment is an Initial Term Loan Commitment, an Amendment No. 2
Term Loan Commitment (including, for
the avoidance of doubt, Amendment No. 3 Incremental Term Loan Commitments),
another Additional Term Loan Commitment of any series established as a separate “Class” pursuant to Sections 2.22,
2.23 or 9.02(c)(i), an Initial Revolving Credit Commitment or an Additional Revolving Credit Commitment of any series established
as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(ii), (c) any Lender, refers to whether
such Lender has a Loan or Commitment of a particular Class and (d) any Revolving Credit Exposure, refers to whether such Revolving Credit
Exposure is attributable to a Revolving Credit Commitment of a particular Class (or Revolving Loans incurred or Letters of Credit issued
under a Revolving Credit Commitment of a particular Class).
“Closing
Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02), which date is July 3, 2017.
“Closing
Date Material Adverse Effect” shall have the meaning assigned to the term “Company Material Adverse Effect” in
the Acquisition Agreement as in effect on the Closing Date (it being understood that capitalized terms used in such definition and defined
in the Acquisition Agreement shall have the meanings ascribed to such terms in the Acquisition Agreement as in effect on the Closing
Date).
“CNI
Growth Amount” means, at any date of determination, an amount (which amount shall not be less than zero) equal to 50% of
Consolidated Net Income for the cumulative period from the first day of the Fiscal Quarter of the Borrower during which the Closing
Date occurs to and including the last day of the most recently ended Fiscal Quarter of the Borrower prior to such date for which
consolidated financial statements of the Borrower are internally available (treated as one accounting period).
“Code”
means the Internal Revenue Code of 1986.
“Collateral”
means any and all property of any Loan Party subject to a Lien under any Collateral Document and any and all other property of any Loan
Party, now existing or hereafter acquired, that is or becomes subject to a Lien pursuant to any Collateral Document to secure the Secured
Obligations. For the avoidance of doubt, in no event shall “Collateral” include any Excluded Asset.
“Collateral
and Guarantee Requirement” means, at any time, subject to (x) the applicable limitations set forth in this Agreement and/or
any other Loan Document (including any Acceptable Intercreditor Agreement) and (y) the time periods (and extensions thereof) set forth
in Section 5.12, the requirement that:
(a) the Administrative Agent shall have received;
(i)
(A) a joinder to the Loan Guaranty in substantially the form attached as an exhibit thereto, (B) a supplement to the Security Agreement
in substantially the form attached as an exhibit thereto, (C) if the respective Restricted Subsidiary required to comply with the requirements
set forth in this definition pursuant to Section 5.12 owns registrations of or applications for U.S. Patents, U.S. Trademarks
and/or U.S. Copyrights that constitute Collateral, an Intellectual Property Security Agreement in substantially the form attached as
an exhibit hereto, (D) a completed Perfection Certificate, (E) Uniform Commercial Code financing statements in appropriate form for filing
in such jurisdictions as the Administrative Agent may reasonably request and (F) an executed joinder to the Intercreditor Agreement in
substantially the form attached as an exhibit thereto; and
(ii)
each item of Collateral required to be delivered in physical form on or prior to such time pursuant to the Collateral Documents.
(b)
the Administrative Agent shall have received with respect to any Material Real Estate Asset (other than an Excluded Asset) acquired after
the Closing Date, a Mortgage and any necessary UCC fixture filing in respect thereof, in each case together with, to the extent customary
and appropriate (as reasonably determined by the Administrative Agent and the Borrower):
(i)
evidence that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any corresponding
UCC or equivalent fixture filing are in form suitable for filing or recording in all filing or recording offices that the Administrative
Agent may deem reasonably necessary in order to create a valid and subsisting Lien on such Material Real Estate Asset in favor of the
Administrative Agent for the benefit of the Secured Parties, (B) such Mortgage and any corresponding UCC or equivalent fixture filings
have been duly recorded or filed, as applicable and (C) all filing and recording taxes and fees have been paid or otherwise provided
for in a manner reasonably satisfactory to the Administrative Agent;
(ii)
a fully paid policy of lender’s title insurance (a “Mortgage Policy”) in an amount reasonably acceptable to
the Administrative Agent (not to exceed the fair market value of such Material Real Estate Asset (as determined by the Borrower in
good faith)) issued by a nationally recognized title insurance company in the applicable jurisdiction that is reasonably acceptable
to the Administrative Agent, insuring the relevant Mortgage as having created a valid subsisting Lien on the real property described
therein with the ranking or the priority which it is expressed to have in such Mortgage, subject only to Permitted Liens, together
with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request to the extent the same are
available in the applicable jurisdiction;
(iii)
a customary legal opinion of local counsel for the relevant Loan Party in the jurisdiction in which such Material Real Estate Asset is
located and, if applicable, in the jurisdiction of formation of the relevant Loan Party, in each case as the Administrative Agent may
reasonably request; and
(iv)
(A) appraisals (if required under the Financial Institutions Reform Recovery and Enforcement Act of 1989, as amended) and (B) “Life-of-Loan”
flood certifications under Regulation H (together with evidence of federal flood insurance for any such Flood Hazard Property); provided
that the Administrative Agent may in its reasonable discretion accept any existing appraisal so long as such existing appraisal satisfies
any applicable local law requirements and sufficient for the applicable title insurance company to issue the endorsements referenced
in clause (ii) above.
Notwithstanding
any provision of any Loan Document to the contrary, if any mortgage tax or similar tax or charge is owed on the entire amount of the
Obligations evidenced hereby in connection with the delivery of a mortgage or UCC fixture filing pursuant to clause (b) above, then,
to the extent permitted by, and in accordance with, applicable Requirements of Law, the amount of such mortgage tax or similar tax or
charge shall be calculated based on the lesser of (x) the amount of the Obligations allocated to the applicable Material Real Estate
Asset and (y) the fair market value of the applicable Material Real Estate Asset at the time the Mortgage is entered into and determined
in a manner reasonably acceptable to Administrative Agent and the Borrower. Notwithstanding anything herein to the contrary, no Mortgage
will be executed and delivered with respect to any Material Real Estate Asset pursuant to the foregoing until the Administrative Agent
has received written notice of such Mortgage at least 45 days prior to such execution and delivery and has confirmed receipt of satisfactory
flood due diligence and evidence of compliance with the applicable Flood Insurance Laws.
“Collateral
Documents” means, collectively, (i) the Security Agreement, (ii) each Mortgage (if any), (iii) each Intellectual Property Security
Agreement, (iv) each Perfection Certificate, (v) any supplement to any of the foregoing delivered to the Administrative Agent pursuant
to the definition of “Collateral and Guarantee Requirement” and (vi) each of the other instruments and documents pursuant
to which any Loan Party grants a Lien on any assets as security for payment of the Secured Obligations.
“Commercial
Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection
with the purchase of any materials, goods or services by the Borrower or any of its Restricted Subsidiaries in the ordinary course of
business of such Person.
“Commercial
Tort Claim” has the meaning set forth in Article 9 of the UCC.
“Commitment”
means, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Initial Revolving Credit Commitment and Additional
Commitment (including, for the avoidance of doubt, the Amendment No. 2 Term Loan Commitment and Amendment
No. 3 Incremental Term Loan Commitment), as applicable, in effect as of
such time.
“Commitment
Fee Rate” means, on any date (a) with respect to the Initial Revolving Credit Commitment, subject to the provisions of the
last paragraph hereof, the applicable rate per annum set forth below based upon the First Lien Leverage Ratio as of the last day of the
most recently ended Test Period and (b) with respect to Additional Revolving Credit Commitments of any Class, the rate or rates per annum
specified in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment.
|
First Lien Leverage Ratio
|
|
Commitment Fee Rate
|
|
|
|
|
|
|
|
Category 1
|
|
|
|
|
Greater than 3.70 to 1.00
|
|
|
0.50
|
%
|
|
|
|
|
|
|
|
Category 2
|
|
|
|
|
|
Equal to or less than 3.70 to 1.00 but greater than 3.20 to 1.00
|
|
|
0.375
|
%
|
|
|
|
|
|
|
|
Category 3
|
|
|
|
|
|
Equal to or less than 3.20 to 1.00
|
|
|
0.25
|
%
|
The
Commitment Fee Rate with respect to the Initial Revolving Credit Commitment shall be adjusted quarterly on a prospective basis on each
Adjustment Date based upon the First Lien Leverage Ratio in accordance with the table set forth above; provided that (a) until
the first Adjustment Date following the completion of at least one full Fiscal Quarter after the Closing Date, the Commitment Fee Rate
shall be the applicable rate per annum set forth above in Category 1 and (b) if financial statements are not delivered when required
pursuant to Section 5.01(a) or (b), as applicable, the Commitment Fee Rate shall be the rate per annum set forth above
in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b), as applicable.
“Commitment
Letter” means that certain Amended and Restated Commitment Letter, dated as of June 15, 2017, by and among, inter alios,
Parent and the Arrangers, as amended to date.
“Commitment
Schedule” means the Schedule attached hereto as Schedule 1.01(a).
“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Company Competitor” means any
competitor of the Borrower and/or any of its subsidiaries and/or the Target and/or any of its subsidiaries.
“Compliance
Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
“Confidential
Information” has the meaning assigned to such term in Section 9.13.
“Consolidated
Adjusted EBITDA” means, as to any Person for any period, an amount determined for such Person and its Restricted Subsidiaries
on a consolidated basis equal to the total of (a) Consolidated Net Income for such period plus (b) the sum, without duplication,
of (to the extent deducted in calculating Consolidated Net Income, other than in respect of clauses (x), (xi), (xii),
(xiv), (xix), (xx), (xxi) and (xxii) below) the amounts of:
(i)
Consolidated Interest Expense (including (A) fees and expenses paid to the Administrative Agent in connection with its services
hereunder, (B) other bank, administrative agency (or trustee) and financing fees (including rating agency fees and other fees in
respect of any Second Lien Facility), (C) costs of surety bonds in connection with financing activities (whether amortized or
immediately expensed) and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments, letters
of credit, bank guarantees, bankers’ acceptances or any similar facilities or financing and hedging agreements);
(ii)
(A) Taxes paid and any provision for Taxes, including income, profits, capital, foreign, federal, state, local, franchise and similar
Taxes, property Taxes, foreign withholding Taxes and foreign unreimbursed value added Taxes (including penalties and interest related
to any such Tax or arising from any Tax examination, and including pursuant to any Tax sharing arrangement or as a result of any Tax
distribution) of such Person paid or accrued during the relevant period and (B) any payments to a Parent Company in respect of Taxes
permitted to be made hereunder;
(iii)
(A) depreciation, (B) amortization, (C) any impairment Charge (including any bad debt expense) and (D) any asset write-off and/or write-down;
(iv)
any non-cash Charge, including the excess of rent expense over actual Cash rent paid, including the benefit of lease incentives (in the
case of a charge) during such period due to the use of straight line rent for GAAP purposes (provided that if any such non-Cash
Charge represents an accrual or reserve for potential Cash items in any future period, such Person may determine not to add back such
non-Cash Charge in the then-current period);
(v) [reserved];
(vi)
Receivables Fees and the amount of loss or discount on the sale of Receivables Facility Assets and related assets to a Receivables Subsidiary
in connection with a Receivables Facility;
(vii)
the amount of management, monitoring, consulting, transaction, advisory, termination and similar fees and related indemnities and expenses
(including reimbursements), paid or accrued and payments made to any Investor (and/or its Affiliates or management companies) (or prior
to the Closing Date, the Existing Sponsor and/or its Affiliates or management companies) for any financial advisory, consulting, financing,
underwriting or placement services or in respect of other investment banking activities and other transaction fees, and payments to outside
directors of the Borrower or a Parent Company actually paid by or on behalf of, or accrued by, such Person or any of its subsidiaries;
provided that such payment is permitted under this Agreement;
(viii) [reserved];
(ix)
the amount of earn-out and other contingent consideration obligations (including to the extent accounted for as bonuses, compensation
or otherwise) incurred in connection with (A) the Transactions, (B) acquisitions and Investments completed prior to the Closing Date
and (C) any acquisition or other Investment permitted by this Agreement, in each case, which is paid or accrued during the applicable
period;
(x)
pro forma “run rate” cost savings, operating expense reductions, operational improvements and cost synergies (collectively,
“Expected Cost Savings”) (net of actual amounts realized) (1) that are reasonably identifiable, factually supportable
and projected by the Borrower in good faith to result from actions that have been taken or with respect to which substantial steps have
been taken or are expected to be taken (in the good faith determination of such Person) or (2) that have been identified to the Administrative
Agent prior to the Closing Date (including by inclusion in the Acquisition Agreement or the Sponsor’s model and quality of earnings
summaries delivered to the Arrangers on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality
of earnings summary) related to (A) the Transactions and (B) any permitted asset sale, acquisition (including the commencement of activities
constituting a business line), combination, Investment, Disposition (including the termination or discontinuance of activities constituting
a business line), operating improvement, restructuring, cost savings initiative, any similar initiative (including the effect of increased
pricing in customer contracts) and/or specified transaction, in each case prior to, on or after the Closing Date (any such operating
improvement, restructuring, cost savings initiative or similar initiative or specified transaction, a “Cost Saving Initiative”)
(in each case, calculated on a Pro Forma Basis as though such Expected Cost Savings and/or Cost Savings Initiative had been realized
in full on the first day of such period); provided, that the results of such Expected Cost Savings and/or Cost Saving Initiatives
are projected by the Borrower in good faith to result from actions that have been taken or with respect to which steps have been taken
or are expected to be taken (in the good faith determination of the Borrower) within 24 months after (i) with respect to the Transactions,
the Closing Date and (ii) with respect to any Cost Savings Initiative, the date of any such operating improvement, restructuring, cost
savings initiative or similar initiative or specified transaction;
(xi)
Charges attributable to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings
initiatives (including Cost Saving Initiatives), cost rationalization programs, operating expense reductions and/or synergies and/or
similar initiatives and/or programs (including in connection with any integration, restructuring or transition, any reconstruction,
decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, any office or facility opening and/or
pre-opening), including the following: any inventory optimization program and/or any curtailment, any business optimization Charge,
any restructuring Charge (including any Charge relating to any tax restructuring), any Charge relating to the closure or
consolidation of any office or facility (including but not limited to rent termination costs, moving costs and legal costs), any
systems implementation Charge, any severance Charge, any one time compensation Charge, any Charge relating to entry into a new
market, any Charge relating to rights fee arrangements (including any early terminations thereof), any Charge relating to any
strategic initiative or contract, any signing Charge, any Charge relating to any entry into new markets and contracts (including,
without limitation, any renewals, extensions or other modifications thereof) or exiting a market or contract, any retention or
completion Charge or bonus, any recruiting Charge, any lease run-off Charge, any expansion and/or relocation Charge, any Charge
associated with any modification or curtailment to any pension and post- retirement employee benefit plan, any software or other
intellectual property development Charge, any Charge associated with new systems design, any implementation Charge, any transition
Charge, any Charge associated with improvements to IT or accounting functions, losses related to temporary decreases in work volume
and expenses related to maintaining underutilized personnel, any transition Charge, any Charge in connection with unused warehouse
space, any Charge relating to a new contract, any consulting Charge and/or any corporate development Charge; provided, that, in the
case of any such Charge, the results of any such action relating to such Charge are projected by the Borrower in good faith to be
achieved within 24 months of the undertaking thereof;
(xii)
any Charge with respect to any liability or casualty event, business interruption or any product recall, (i) so long as such Person has
submitted in good faith, and reasonably expects to receive payment in connection with, a claim for reimbursement of such amounts under
its relevant insurance policy within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so
added back to the extent not so reimbursed within the next four Fiscal Quarters) or (ii) without duplication of amounts included in a
prior period under the preceding clause (i), to the extent such Charge is covered by insurance, indemnification or otherwise reimbursable
by a third party (whether or not then realized so long as the Borrower in good faith expects to receive proceeds arising out of such
indemnification, insurance or reimbursement obligation within the next four Fiscal Quarters) (it being understood that if the amount
received in cash under any such agreement in any period exceeds the amount of expense paid during such period, any excess amount received
may be carried forward and applied against any expense in any future period);
(xiii)
unrealized net losses in the fair market value of any arrangements under Hedge Agreements;
(xiv)
the amount of any Cash actually received by such Person (or the amount of the benefit of any netting arrangement resulting in reduced
Cash expenditures) during such period, and not included in Consolidated Net Income in any period, to the extent that any non-Cash gain
relating to such Cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA pursuant to clause
(c)(i) below for any previous period and not added back;
(xv)
the amount of any “bad debt” expense related to revenue earned prior to the Closing Date;
(xvi)
any net Charges included in the Borrower’s consolidated financial statements due to the application of Accounting Standards Codification
Topic 810 (“ASC 810”);
(xvii)
the amount of any non-controlling interest or minority interest Charge consisting of income attributable to minority equity interests
of third parties in any non- wholly owned Restricted Subsidiary;
(xviii)
the amount of any Charges (including facility operating losses) related to any de novo facility or any facility renovation, including
any construction, pre- opening/re-opening and start-up period prior to opening (or re-opening, as applicable), until such facility has
been open (or renovated) and operating for a period of 18 consecutive months;
(xix)
the amount of any earned or billed amounts or other revenue that is attributable to services performed during such period but is not
included in Consolidated Net Income for such period; it being understood that if such revenue is added back in calculating
Consolidated Adjusted EBITDA for such period, such revenue shall not be included in Consolidated Net Income in the period in which
it is actually recognized;
(xx)
any other adjustments, exclusions and add-backs (x) reflected in the Sponsor’s model and quality of earnings summaries delivered
to the Arrangers on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality of earnings summary)
or (y) that are consistent with Regulation S-X;
(xxi)
for the first 18 months following the opening of a de novo facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to such de novo facility for each month such de novo facility has been in operation
and (y) the 12-month average Consolidated Adjusted EBITDA for all similar facilities that have been in operation for a period of at least
18 months (as determined by the Borrower in good faith); provided that the aggregate amount added-back to Consolidated Adjusted
EBITDA solely pursuant to this clause (xxi) and clause (xxii) below (on an aggregate basis) shall not, for any period, exceed an amount
equal to 15% of Consolidated Adjusted EBITDA for such period, calculated prior to giving effect to such add-backs; and
(xxii)
for the first 18 months following the renovation of a facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to performance gains for such facility for each month such facility has been
in operation post-renovation and (y) the 12-month average Consolidated Adjusted EBITDA attributable to performance gains for all
similar facilities that have been in operation for a period of at least 18 months (as determined by the Borrower in good faith); provided that
the aggregate amount added-back to Consolidated Adjusted EBITDA solely pursuant to clause (xxi) above and this clause (xxii)
(on an aggregate basis) shall not, for any period, exceed an amount equal to 15% of Consolidated Adjusted EBITDA for such period,
calculated prior to giving effect to such add-backs;
minus
(c) to the extent such amounts increase Consolidated Net Income:
(i)
non-Cash gains or income; provided that if any non-Cash gain or income represents an accrual or deferred income in respect of
potential Cash items in any future period, such Person may determine not to deduct such non-Cash gain or income in the current period;
(ii)
unrealized net gains in the fair market value of any arrangements under Hedge Agreements;
(iii) [reserved];
(iv)
the amount added back to Consolidated Adjusted EBITDA pursuant to clause (b)(xii) above (as described in such clause) to the extent
the relevant business interruption insurance proceeds were not received within the time period required by such clause;
(v)
to the extent that such Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause (b)(iv)
above, the cash payment in respect thereof in the relevant future period;
(vi)
the excess of actual Cash rent paid over rent expense during such period due to the use of straight line rent for GAAP purposes;
(vii)
any Consolidated Net Income included in the Borrower’s consolidated financial statements due to the application of ASC 810; and
(viii)
the amount of any non-controlling interest or minority interest gains from income attributable to minority equity interests of third
parties in any non-wholly owned Restricted Subsidiary;
(d)
increased or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards
Codification Topic 460 or any comparable regulation.
Notwithstanding
anything to the contrary herein, it is agreed that for the purpose of calculating the Total Leverage Ratio, the First Lien Leverage
Ratio, the Interest Coverage Ratio and the Secured Leverage Ratio and/or the amount of any basket based on a percentage of
Consolidated Adjusted EBITDA for any period that includes the Fiscal Quarters ended July 3, 2016, October 2, 2016, January 1, 2017
and April 2, 2017, Consolidated Adjusted EBITDA for such Fiscal Quarters shall be deemed to be $15,194,992, $34,765,574, $9,482,738
and $58,534,750 (which amounts are agreed not to include adjustments pursuant to clauses (b)(x), (b)(xx), (b)(xxi) and (b)(xxii)
above), respectively, in each case, as adjusted (i) on a Pro Forma Basis, as applicable and (ii) pursuant to clauses (b)(x),
(b)(xx), (b)(xxi) and (b)(xxii) above, as applicable for each Test Period.
“Consolidated
First Lien Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total
Debt outstanding on such date that is secured by a first priority Lien on any asset or property of such Person or its Restricted Subsidiaries
that constitutes Collateral.
“Consolidated
Interest Expense” means, with respect to any Person for any period, the sum of (a) consolidated total interest
expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized
(including (without duplication), amortization of any debt issuance cost and/or original issue discount, any premium paid to obtain
payment, financial assurance or similar bonds, any interest capitalized during construction, any non-cash interest payment, the
interest component of any deferred payment obligation, commissions, discounts, yield and other fees and charges (including any
interest expense) related to any Qualified Receivables Facility, the interest component of any payment under any Capital Lease
(regardless of whether accounted for as interest expense under GAAP), any commission, discount and/or other fee or charge owed with
respect to any letter of credit, bank guarantee and/or bankers’ acceptance or any similar facilities, any fee and/or expense
paid to the Administrative Agent in connection with its services hereunder, any other bank, administrative agency (or trustee)
and/or financing fee and any cost associated with any surety bond in connection with financing activities (whether amortized or
immediately expensed)), plus (b) any cash dividend paid or payable in respect of Disqualified Capital Stock during such
period other than to such Person or any Loan Party, plus (c) any net losses, obligations or payments arising from or under
any Hedge Agreement and/or other derivative financial instrument issued by such Person for the benefit of such Person or its
subsidiaries, in each case determined on a consolidated basis for such period. For purposes of this definition, interest in respect
of any Capital Lease shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest
implicit in such Capital Lease in accordance with GAAP.
“Consolidated
Net Income” means, as to any Person (the “Subject Person”) for any period, the net income (or loss) of the
Subject Person and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined
in conformity with GAAP; provided that there shall be excluded, without duplication,
(a)
(i) any net income (loss) of any Person if such Person is not the Borrower or a Restricted Subsidiary, except that Consolidated Net Income
will be increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalent (or converted into Cash
or Cash Equivalents) by such Person to the Borrower or any other Restricted Subsidiary (subject, in the case of any such Restricted Subsidiary
that is not a Loan Party, to the limitations contained in clause (ii) below) and (ii) solely for the purpose of determining the amount
available for Restricted Payments under Section 6.04(a)(iii)(A) or the amount of Excess Cash Flow, any net income (loss) of any
Restricted Subsidiary (other than a Loan Party) if such Restricted Subsidiary is subject to restrictions on the payment of dividends
or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Borrower or a Loan Party by operation of
its organizational documents or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable
thereto (other than (x) any restriction that has been waived or otherwise released and (y) any restriction set forth in the Loan Documents,
the documents related to any Incremental Equivalent Debt, the documents relating to any Second Lien Facility and the documents relating
to any Replacement Debt or Refinancing Indebtedness in respect of any of the foregoing), except that Consolidated Net Income will be
increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalents (or converted into Cash or Cash
Equivalents) by the Restricted Subsidiary (subject, in the case of a dividend, distribution or other payment to another Restricted Subsidiary,
to the limitations in this clause (ii));
(b)
any gain or Charge attributable to any asset Disposition (including asset retirement costs or sales or issuances of Capital Stock) or
of returned or surplus assets, in each case, outside the ordinary course of business (as determined in good faith by such Person);
(c)
(i) any gain or Charge from (A) any extraordinary item (as determined in good faith by such Person) and/or (B) any non-recurring or unusual
item (as determined in good faith by such Person) and/or (ii) any Charge associated with and/or payment of any legal settlement, fine,
judgment or order;
(d)
(i) any unrealized or realized net foreign currency translation or transaction gains or Charges impacting net income (including
currency re-measurements of Indebtedness, any net gains or Charges resulting from Hedge Agreements for currency exchange risk
associated with the above or any other currency related risk, any gains or Charges relating to translation of asset and liabilities
denominated in a foreign currency and those resulting from intercompany Indebtedness), (ii) any realized or unrealized gain or
Charge in respect of (x) any obligation under any Hedge Agreement as determined in accordance with GAAP and/or (y) any other
derivative instrument pursuant to, in the case of this clause (y), Financial Accounting Standards Board’s Accounting
Standards Codification No. 815-Derivatives and Hedging and (iii) unrealized gains or losses in respect of any Hedge Agreement and
any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein recognized
in earnings for derivatives that do not qualify as hedge transactions, in respect of Hedge Agreements;
(e)
any net gain or Charge with respect to (i) any disposed, abandoned, divested and/or discontinued asset, property or operation (other
than, at the option of the Borrower, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination
thereof), (ii) any disposal, abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the
option of the Borrower, relating to assets or properties held for sale or pending the divestiture or discontinuation thereof) and/or
(iii) any facility that has been closed during such period;
(f)
any net income or Charge (less all fees and expenses related thereto) attributable to (i) the early extinguishment or cancellation of
Indebtedness or (ii) any Derivative Transaction;
(g)
(i) any Charge incurred as a result of, in connection with or pursuant to (or incurred by a Parent Company to the extent permitted to
be paid by the Borrower hereunder) any management equity plan, profits interest or stock option plan or any other management or employee
benefit plan or agreement, pension plan (including a non-cash deemed finance Charge), any stock subscription or shareholders agreement
or any distributor equity plan or any similar equity plan or agreement (including any deferred compensation arrangement or trust), (ii)
any Charge incurred in connection with the rollover, acceleration or payout of Capital Stock held by management of any Parent Company,
the Borrower and/or any of its subsidiaries, in each case under this clause (ii), to the extent that any such cash Charge is funded
with net Cash proceeds contributed to the Subject Person as a capital contribution or as a result of the sale or issuance of Capital
Stock (other than Disqualified Capital Stock) of the Subject Person and (iii) the amount of payments made to optionholders of such Person
or any Parent Company in connection with, or as a result of, any distribution being made to equityholders of such Person or its Parent
Companies, which payments are being made to compensate such optionholders as though they were equityholders at the time of, and entitled
to share in, such distribution, in each case to the extent permitted hereunder;
(h)
any Charge that is established, adjusted and/or incurred, as applicable, (i) within 12 months after the Closing Date that is required
to be established, adjusted or incurred, as applicable, as a result of the Transactions in accordance with GAAP, (ii) within 12 months
after the closing of any other acquisition that is required to be established, adjusted or incurred, as applicable, as a result of such
acquisition in accordance with GAAP or (iii) as a result of any change in, or the adoption or modification of, accounting principles
or policies;
(i)
any (A) write-off or amortization made in such period of deferred financing costs and premiums paid or other expenses incurred directly
in connection with any early extinguishment of Indebtedness, (B) goodwill or other asset impairment charges, write-offs or write-downs
and (C) amortization of intangible assets (including amortization of goodwill, software, deferred or capitalized financing fees, debt
issuance costs, commissions and expenses and other intangible assets);
(j)
(A) the effects of adjustments (including the effects of such adjustments pushed down to the Subject Person and its subsidiaries) in
component amounts required or permitted by GAAP (including, without limitation, in the inventory, property and equipment, lease,
rights fee arrangements, software, goodwill, intangible asset, in-process research and development, deferred revenue, advanced
billing and debt line items thereof), resulting from the application of recapitalization accounting or acquisition accounting, as
the case may be, in relation to the Transactions or any consummated acquisition or similar Investment or the amortization or write-off of any amounts thereof (including any write-off of in process research and development) and/or (B) the cumulative effect of any
change in accounting principles or policies (effected by way of either a cumulative effect adjustment or as a retroactive
application, in each case, in accordance with GAAP) (except that, if the Borrower determines in good faith that the cumulative
effects thereof are not material to the interests of the Lenders, the effects of any change in any such principles or policies may
be included in any subsequent period after the Fiscal Quarter in which such change, adoption or modification was made);
(k)
the income or loss of any Person accrued prior to the date on which such Person became a Restricted Subsidiary of such Subject Person
or is merged into or consolidated with such Subject Person or any Restricted Subsidiary of such Subject Person or the date that such
other Person’s assets are acquired by such Subject Person or any Restricted Subsidiary of such Subject Person (except to the extent
required for any calculation of Consolidated Adjusted EBITDA on a Pro Forma Basis in accordance with Section 1.04);
(l)
any deferred Tax expense associated with any tax deduction or net operating loss arising as a result of the Transactions, or the release
of any valuation allowance related to any such item;
(m) [reserved];
(n)
earn-out, non-compete and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments
thereof and purchase price adjustments, including in respect of any acquisition consummated prior to the Closing Date;
(o) [reserved];
(p)
(A) Transaction Costs, (B) any Charges incurred (1) in connection with any transaction (in each case, regardless of whether consummated),
whether or not permitted under this Agreement, including any issuance and/or incurrence of Indebtedness and/or any issuance and/or offering
of Capital Stock (including, in each case, by any Parent Company), any Investment, any acquisition, any Disposition, any recapitalization,
any merger, consolidation or amalgamation, becoming a standalone company, any option buyout or any repayment, redemption, refinancing,
amendment or modification of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums
and prepayment penalties) or any similar transaction, and/or (2) in connection with any Qualifying IPO (whether or not consummated),
(C) the amount of any Charges that are actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement
provisions or similar agreements or insurance (it being understood that if the amount received in cash under any such agreement in any
period exceeds the amount of expense paid during such period, any excess amount received may be carried forward and applied against any
expense in any future period); provided that in respect of any reimbursable Charge that is added back in reliance on clause
(C) above, such relevant Person in good faith expects to receive reimbursement for such Charge within the next four Fiscal Quarters
(with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within the next four Fiscal
Quarters) and/or (D) Public Company Costs;
(q)
non-cash Charges incurred or accrued in connection with any single or one-time event (as determined in good faith by such Person),
including in connection with (A) the Transactions, the Amendment No. 1 Transactions, the Amendment No. 2 Transactions and/or any
acquisition consummated after the Closing Date (including legal, accounting and other professional fees and expenses incurred in
connection with acquisitions and other Investments made prior to the Closing Date), (B) the closing, consolidation or
reconfiguration of any facility during such period or (C) one-time consulting costs;
(r)
non-cash compensation Charges and/or any other non-cash Charges arising from the granting of any stock, stock option or similar arrangement
(including any profits interest), the granting of any restricted stock, stock appreciation right and/or similar arrangement (including
any repricing, amendment, modification, substitution or change of any such stock option, restricted stock, stock appreciation right,
profits interest or similar arrangement or the vesting of any warrant); and
(s)
to the extent such amount would otherwise increase Consolidated Net Income, Taxes paid (including pursuant to any Tax sharing arrangement)
in cash (including, to the extent paid in cash, Taxes arising out of any tax examination) and (B) Tax distributions made in cash during
such period.
In
addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, Consolidated
Net Income will include the proceeds of business interruption insurance in an amount representing the earnings for the applicable period
that such proceeds are intended to replace (whether or not received so long as the Borrower in good faith expects to receive such proceeds
within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent not
so received within the next four Fiscal Quarters)).
“Consolidated
Secured Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt
outstanding on such date that is secured by a Lien on any asset or property of such Person or its Restricted Subsidiaries that constitutes
Collateral.
“Consolidated
Total Assets” means, as to any Person, at any date, all amounts that would, in conformity with GAAP, be set forth opposite
the caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person at such date.
“Consolidated
Total Debt” means, as to any Person at any date of determination, the aggregate principal amount of all third party debt for
borrowed money (including LC Disbursements that have not been reimbursed within three Business Days and the outstanding principal balance
of all Indebtedness of such Person represented by notes, bonds and similar instruments), Attributable Debt and purchase money Indebtedness
(but excluding, for the avoidance of doubt, undrawn letters of credit), in each case of such Person; provided that “Consolidated
Total Debt” shall be calculated (i) net of the Unrestricted Cash Amount, (ii) to exclude any obligation, liability or indebtedness
of such Person if, upon or prior to the maturity thereof, such Person has irrevocably deposited with the proper Person in trust or escrow
the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such obligation, liability or indebtedness,
and thereafter such funds and evidences of such obligation, liability or indebtedness or other security so deposited are not included
in the calculation of the Unrestricted Cash Amount, (iii) to exclude obligations under any Derivative Transaction, any Qualified Receivables
Facility, or under any Indebtedness that is non-recourse to the Borrower and its Restricted Subsidiaries and (iv) to exclude any iStar
Exchange or Excluded Property Transaction.
“Consolidated
Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.
“Consolidated
Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end
of such period; provided that there shall be excluded (a) the effect of reclassification during such period between current assets
and long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior period to give
effect to such reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition of any
Person, facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and contingent obligations
under any Hedge Agreement and (d) the application of purchase or recapitalization accounting.
“Contractual
Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties
is bound or to which it or any of its properties is subject.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Copyright”
means the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright whether published or unpublished,
copyright registrations and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past
or future infringements for any of the foregoing; (d) the right to sue for past, present and future infringements of any of the foregoing;
and (e) all rights corresponding to any of the foregoing.
“Cost
Saving Initiative” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Credit
Extension” means each of (i) the making of a Revolving Loan or Swingline Loan or (ii) the issuance, amendment, modification,
renewal or extension of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase
the Stated Amount of the relevant Letter of Credit).
“Credit
Facilities” means the Revolving Facility and the Term Facility.
“Credit
Suisse” has the meaning assigned to such term in the preamble to this Agreement.
“Cure Amount” has the meaning
assigned to such term in Section 6.15(b).
“Cure
Right” has the meaning assigned to such term in Section 6.15(b).
“Current
Assets” means, at any date, all assets of the Borrower and its Restricted Subsidiaries which under GAAP would be
classified as current assets (excluding any (i) cash or Cash Equivalents (including cash and Cash Equivalents held on deposit for
third parties by the Borrower and/or any Restricted Subsidiary), (ii) permitted loans to third parties, (iii) deferred bank fees and
derivative financial instruments related to Indebtedness, (iv) the current portion of current and deferred Taxes and (v) assets held
for sale or pension assets).
“Current
Liabilities” means, at any date, all liabilities of the Borrower and its Restricted Subsidiaries which under GAAP would be
classified as current liabilities, other than (i) current maturities of long term debt, (ii) outstanding revolving loans and letter
of credit exposures, (iii) accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is due and
unpaid), (iv) obligations in respect of derivative financial instruments related to Indebtedness, (v) the current portion of current
and deferred Taxes, (vi) liabilities in respect of unpaid earnouts, (vii) accruals relating to restructuring reserves, (viii)
liabilities in respect of funds of third parties on deposit with the Borrower and/or any Restricted Subsidiary, (ix) the current
portion of any Capital Lease, (x) any liabilities recorded in connection with stock based awards, partnership interest based awards,
awards of profits interests, deferred compensation awards and similar initiative based compensation awards or arrangements and (xi)
the current portion of any other long term liability for borrowed money.
“Debt
Fund Affiliate” means any Affiliate (other than a natural person) of the Sponsor that is a bona fide debt fund or investment
vehicle that is engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise
investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business.
“Debtor
Relief Laws” means the Bankruptcy Code of the U.S., and all other liquidation, conservatorship, bankruptcy, general assignment
for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the
U.S. or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declined
Proceeds” has the meaning assigned to such term in Section 2.11(b)(v).
“Default”
means any event or condition which upon notice, lapse of time or both would become an Event of Default.
“Defaulting
Lender” means any Lender that has (a) defaulted in its obligations under this Agreement, including without limitation, to
make a Loan within two Business Days of the date required to be made by it hereunder or to fund its participation in a Letter of
Credit or Swingline Loan required to be funded by it hereunder within two Business Days of the date such obligation arose or such
Loan, Letter of Credit or Swingline Loan was required to be made or funded, (b) notified the Administrative Agent, any Issuing Bank
or the Swingline Lender or any Loan Party in writing that it does not intend to satisfy any such obligation or has made a public
statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in
which it commits to extend credit generally (unless such writing or public statement relates to such Lender’s obligation to
fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to
funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public
statement) cannot be satisfied), (c) failed, within two Business Days after the request of Administrative Agent or the Borrower, to
confirm in writing that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and
participations in then outstanding Letters of Credit and Swingline Loans; provided that such Lender shall cease to be a
Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent, (d)
become (or any parent company thereof has become) insolvent or been determined by any Governmental Authority having regulatory
authority over such Person or its assets, to be insolvent, or the assets or management of which has been taken over by any
Governmental Authority, (e) become (or any parent company thereof has become) the subject of a bankruptcy or insolvency proceeding,
or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in, any such proceeding or appointment, unless in the case of any Lender
subject to this clause (e), the Borrower and the Administrative Agent shall each have determined that such Lender intends,
and has all approvals required to enable it (in form and substance satisfactory to each of the Borrower and the Administrative
Agent), to continue to perform its obligations as a Lender hereunder or (f) become (or any parent company thereof has become) the
subject of a Bail-In Action; provided that no Lender shall be deemed to be a Defaulting Lender solely by virtue of the
ownership or acquisition of any Capital Stock in such Lender or its parent by any Governmental Authority; provided that such
action does not result in or provide such Lender with immunity from the jurisdiction of courts within the U.S. or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject,
repudiate, disavow or disaffirm any contract or agreement to which such Lender is a party.
“Deposit
Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or
like organization, excluding, for the avoidance of doubt, any investment property (within the meaning of the UCC) or any account evidenced
by an instrument or negotiable certificate of deposit (within the meaning of the UCC).
“Derivative
Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement,
interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives rise to similar
credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction, including any cross-
currency interest-rate swap, any forward foreign-exchange contract, any currency option, and any other instrument linked to exchange
rates that gives rise to similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any equity-linked
option, any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d)
any commodity (including precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any
forward commodity-linked contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided,
that, no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers,
employees, members of management, managers or consultants of the Borrower or its subsidiaries shall constitute a Derivative Transaction.
“Designated
Non-Cash Consideration” means the fair market value (as determined by the Borrower in good faith) of non-Cash consideration
received by the Borrower or any Restricted Subsidiary in connection with any Disposition pursuant to Section 6.07(h) and/or Section
6.08 that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower,
setting forth the basis of such valuation (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection
with a subsequent sale or conversion of such Designated Non-Cash Consideration to Cash or Cash Equivalents).
“Discount
Range” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Disposition”
or “Dispose” means the sale, lease, sublease, or other disposition of any property of any Person. The fair market
value of any assets or other property Disposed of shall be determined by the Borrower in good faith.
“Disqualified
Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an
optional redemption by the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock),
in whole or in part, prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being
understood that if any such redemption is in part, only such part coming into effect prior to 91 days following the Latest Maturity
Date at the time such Capital Stock is issued shall constitute Disqualified Capital Stock), (b) is or becomes convertible into or
exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Capital Stock that would
constitute Disqualified Capital Stock, in each case at any time on or prior to 91 days following the Latest Maturity Date at the
time such Capital Stock is issued, (c) contains any mandatory repurchase obligation or any other repurchase obligation at the option
of the holder thereof (other than for Qualified Capital Stock), in whole or in part, which may come into effect prior to 91 days
following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such repurchase
obligation is in part, only such part coming into effect prior to 91 days following such Latest Maturity Date at the time such
Capital Stock is issued shall constitute Disqualified Capital Stock) or (d) provides for the scheduled payments of dividends in Cash
on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided that any Capital
Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any
security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer thereof
to redeem such Capital Stock upon the occurrence of any change of control, Qualifying IPO or any Disposition occurring prior to 91
days following the Latest Maturity Date at the time such Capital Stock is issued shall not constitute Disqualified Capital Stock if
such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior to the
Termination Date.
Notwithstanding
the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees,
members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management,
managers or consultants, in each case in the ordinary course of business of Holdings, the Borrower or any Restricted Subsidiary,
such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer
thereof in order to satisfy applicable statutory or regulatory obligations and (B) no Capital Stock held by any Permitted
Payee shall be considered Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any
management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership
plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.
Notwithstanding
the foregoing, in all cases both the Series A Preferred Stock and any preferred Capital Stock required by applicable Requirements of
Law to be issued in connection with obtaining liquor licenses shall be deemed not to be Disqualified Capital Stock hereunder.
“Disqualified
Institution” means:
(a)
(i) any Person identified as such in writing to the Arrangers on June 5, 2017 by way of email from the Sponsor (or its attorneys on such
date), (ii) any Person identified as such by the Borrower in writing after June 5, 2017 (and reasonably satisfactory) to the Arrangers
(or if after the Closing Date, to the Administrative Agent in place of the Arrangers), (iii) any Affiliate of any Person described in
clauses (i) or (ii) above that is clearly identifiable as an Affiliate of such Person on the basis of such Affiliate’s
name and (iv) any other Affiliate of any Person described in clauses (i) or (ii) above that is identified by the Borrower
in a written notice to the Arrangers (if prior to the Closing Date) or the Administrative Agent (if after the Closing Date) (other than
Bona Fide Debt Funds other than such Bona Fide Debt Funds excluded pursuant to clause (a)(i) or (a)(ii) of this paragraph) (each such
person described in clauses (i) through (iv) above, a “Disqualified Lending Institution”);
(b)
(i) any Person that is a Company Competitor and/or any Affiliate of any Company Competitor (other than any Affiliate that is a Bona
Fide Debt Fund) and is identified by the Borrower as such in writing to the Arrangers (if prior to the Closing Date) or the
Administrative Agent (if after the Closing Date), (ii) any Affiliate of any Person described in clause (i) above (other than
any Affiliate that is a Bona Fide Debt Fund) that is clearly identifiable as an Affiliate of such person on the basis of such
Affiliate’s name and (iii) any other Affiliate of any Person described in clause (i) above that is identified by the
Borrower in a written notice to the Arrangers (if prior to the Closing Date) or to the Administrative Agent (if after the Closing
Date) (it being understood and agreed that no Bona Fide Debt Fund may be designated as a Disqualified Institution pursuant to this clause
(iii), but such Bona Fide Debt Fund may be designated as a Disqualified Lending Institution pursuant to clause (a)
above); and
(c)
any Affiliate or Representative of any Arranger and/or any Initial Lender that is engaged as a principal primarily in private equity,
mezzanine financing or venture capital;
it
being understood and agreed that no written notice delivered pursuant to clauses (a)(ii), (a)(iv), (b)(i) and/or
(b)(iii) above shall apply retroactively to disqualify any Person that has previously acquired an assignment or participation
interest in any Loans if such Person was not a Disqualified Institution at the time of acquisition of such assignment or participation
interest.
“Disqualified
Lending Institution” has the meaning assigned to such term in the definition of “Disqualified Institution”.
“Disregarded
Domestic Subsidiary” means any Domestic Subsidiary that has no material assets other than the Capital Stock and/or Indebtedness
of one or more Foreign Subsidiaries, IP Rights related to such Foreign Subsidiaries, Cash or Cash Equivalents, and other incidental assets
related thereto or that has no material assets other than Capital Stock and/or Indebtedness of one or more Disregarded Domestic Subsidiaries.
“Dollars”
or “$” refers to lawful money of the U.S.
“Domestic
Subsidiary” means any Restricted Subsidiary incorporated or organized under the laws of the U.S., any state thereof or the
District of Columbia.
“Dutch
Auction” means an auction (an “Auction”) conducted by any Affiliated Lender or any Debt Fund Affiliate (any
such Person, the “Auction Party”) in order to purchase Initial Term Loans (or any Additional Term Loans), in accordance
with the following procedures (as may be modified by such Affiliated Lender or Debt Fund Affiliate (as applicable) and the applicable
“auction agent” in connection with a particular Auction transaction); provided that no Auction Party shall initiate
any Auction unless (I) at least five Business Days have passed since the consummation of the most recent purchase of Term Loans pursuant
to an Auction conducted hereunder; or (II) at least three Business Days have passed since the date of the last Failed Auction (or equivalent)
which was withdrawn:
(a) Notice
Procedures. In connection with any Auction, the Auction Party will provide notification to the Auction Agent (for distribution
to the relevant Lenders) of the Term Loans that will be the subject of the Auction (an “Auction Notice”). Each
Auction Notice shall be in a form reasonably acceptable to the Auction Agent and shall (i) specify the maximum aggregate principal
amount of the Term Loans subject to the Auction, in a minimum amount of $10,000,000 and whole increments of $1,000,000 in excess
thereof (or, in any case, such lesser amount of such Term Loans then outstanding or which is otherwise reasonably acceptable to the
Auction Agent and the Administrative Agent (if different from the Auction Agent)) (the “Auction Amount”), (ii)
specify the discount to par (which may be a range (the “Discount Range”) of percentages of the par principal
amount of the Term Loans subject to such Auction), that represents the range of purchase prices that the Auction Party would be
willing to accept in the Auction, (iii) be extended, at the sole discretion of the Auction Party, to (x) each Lender and/or (y) each
Lender with respect to any Term Loan on an individual Class basis and (iv) remain outstanding through the Auction Response Date. The
Auction Agent will promptly provide each appropriate Lender with a copy of the Auction Notice and a form of the Return Bid to be
submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m. on the date specified in the
Auction Notice (or such later date as the Auction Party may agree with the reasonable consent of the Auction Agent) (the
“Auction Response Date”).
(b) Reply
Procedures. In connection with any Auction, each Lender holding the relevant Term Loans subject to such Auction may, in its sole discretion,
participate in such Auction and may provide the Auction Agent with a notice of participation (the “Return Bid”) which
shall be in a form reasonably acceptable to the Auction Agent, and shall specify (i) a discount to par (that must be expressed as a price
at which it is willing to sell all or any portion of such Term Loans) (the “Reply Price”), which (when expressed as
a percentage of the par principal amount of such Term Loans) must be within the Discount Range and (ii) a principal amount of such Term
Loans, which must be in whole increments of $1,000,000 (or, in any case, such lesser amount of such Term Loans of such Lender then outstanding
or which is otherwise reasonably acceptable to the Auction Agent) (the “Reply Amount”). Lenders may only submit one
Return Bid per Auction, but each Return Bid may contain up to three bids only one of which may result in a Qualifying Bid. In addition
to the Return Bid, the participating Lender must execute and deliver, to be held in escrow by the Auction Agent, an Assignment and Assumption
with the dollar amount of the Term Loans to be assigned to be left in blank, which amount shall be completed by the Auction Agent in accordance
with the final determination of such Lender’s Qualifying Bid pursuant to clause (c) below. Any Lender whose Return Bid is
not received by the Auction Agent by the Auction Response Date shall be deemed to have declined to participate in the relevant Auction
with respect to all of its Term Loans.
(c) Acceptance
Procedures. Based on the Reply Prices and Reply Amounts received by the Auction Agent prior to the applicable Auction Response Date,
the Auction Agent, in consultation with the Auction Party, will determine the applicable price (the “Applicable Price”)
for the Auction, which will be the lowest Reply Price for which the Auction Party can complete the Auction at the Auction Amount; provided
that, in the event that the Reply Amounts are insufficient to allow the Auction Party to complete a purchase of the entire Auction Amount
(any such Auction, a “Failed Auction”), the Auction Party shall either, at its election, (i) withdraw the Auction or
(ii) complete the Auction at an Applicable Price equal to the highest Reply Price. The Auction Party shall purchase the relevant Term
Loans (or the respective portions thereof) from each Lender with a Reply Price that is equal to or lower than the Applicable Price (“Qualifying
Bids”) at the Applicable Price; provided that if the aggregate proceeds required to purchase all Term Loans subject to
Qualifying Bids would exceed the Auction Amount for such Auction, the Auction Party shall purchase such Term Loans at the Applicable Price
ratably based on the principal amounts of such Qualifying Bids (subject to rounding requirements specified by the Auction Agent in its
discretion). If a Lender has submitted a Return Bid containing multiple bids at different Reply Prices, only the bid with the lowest Reply
Price that is equal to or less than the Applicable Price will be deemed to be the Qualifying Bid of such Lender (e.g., a Reply Price of
$100 with a discount to par of 1%, when compared to an Applicable Price of $100 with a 2% discount to par, will not be deemed to be a
Qualifying Bid, while, however, a Reply Price of $100 with a discount to par of 2.50% would be deemed to be a Qualifying Bid). The Auction
Agent shall promptly, and in any case within five Business Days following the Auction Response Date with respect to an Auction, notify
(I) the Borrower of the respective Lenders’ responses to such solicitation, the effective date of the purchase of Term Loans pursuant
to such Auction, the Applicable Price, and the aggregate principal amount of the Term Loans and the tranches thereof to be purchased pursuant
to such Auction, (II) each participating Lender of the effective date of the purchase of Term Loans pursuant to such Auction, the Applicable
Price, and the aggregate principal amount and the tranches of Term Loans to be purchased at the Applicable Price on such date, (III) each
participating Lender of the aggregate principal amount and the tranches of the Term Loans of such Lender to be purchased at the Applicable
Price on such date and (IV) if applicable, each participating Lender of any rounding and/or proration pursuant to the second preceding
sentence. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and Lenders shall be
conclusive and binding for all purposes absent manifest error.
(d)
Additional Procedures.
(i) Once
initiated by an Auction Notice, the Auction Party may not withdraw an Auction other than a Failed Auction. Furthermore, in connection
with any Auction, upon submission by a Lender of a Qualifying Bid, such Lender (each, a “Qualifying Lender”) will be
obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Price.
(ii) To
the extent not expressly provided for herein, each purchase of Term Loans pursuant to an Auction shall be consummated pursuant to procedures
consistent with the provisions in this definition, established by the Auction Agent acting in its reasonable discretion and as reasonably
agreed by the Borrower.
(iii) In
connection with any Auction, the Borrower and the Lenders acknowledge and agree that the Auction Agent may require as a condition to any
Auction, the payment of customary fees and expenses by the Auction Party in connection therewith as agreed between the Auction Party and
the Auction Agent.
(iv) Notwithstanding
anything in any Loan Document to the contrary, for purposes of this definition, each notice or other communication required to be delivered
or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the Auction Agent’s (or its
delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication
actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business
Day.
(v) The
Borrower and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this definition by itself
or through any Affiliate of the Auction Agent and expressly consent to any such delegation of duties by the Auction Agent to such Affiliate
and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each
Affiliate of the Auction Agent and its respective activities in connection with any purchase of Term Loans provided for in this definition
as well as activities of the Auction Agent.
“EAP Substitution” has the meaning
assigned to such term in the iStar Sale/Leaseback Documents.
“EAP Substitution
Property” means any property that is the subject of an EAP Substitution.
“EEA Financial Institution”
means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA
Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a)
of this definition or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described
in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA Resolution Authority”
means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ECF Prepayment Amount” has
the meaning assigned to such term in Section 2.11(b)(i).
“Effective Yield” means,
as to any Indebtedness, the effective yield applicable thereto calculated by the Administrative Agent in consultation with the
Borrower in a manner consistent with generally accepted financial practices, taking into account (a) interest rate margins, (b)
interest rate floors (subject to the proviso set forth below), (c) any amendment to the relevant interest rate margins and interest
rate floors prior to the applicable date of determination and (d) original issue discount and upfront or similar fees (based on an
assumed four-year average life to maturity or lesser remaining average life to maturity), but excluding (i) any advisory,
arrangement, commitment, consent, structuring, success, underwriting, ticking, unused line fees, amendment fees and/or any similar
fees payable in connection therewith (regardless of whether any such fees are paid to or shared in whole or in part with any lender)
and (ii) any other fee that is not paid directly by the Borrower generally to all relevant lenders ratably (or, if only one lender
(or affiliated group of lenders) is providing such Indebtedness, are fees of the type not customarily shared with lenders
generally); provided, that with respect to any Indebtedness that includes a “LIBOR floor” or “Base Rate
floor”, that (A) to the extent that the Published LIBO Rate (for an Interest Period of three months) or Alternate Base Rate
(in each case without giving effect to any floor specified in the definition thereof on the date on which the Effective Yield is
being calculated) is less than such floor, the amount of such difference will be deemed added to the interest rate margin applicable
to such Indebtedness for purposes of calculating the Effective Yield and (B) to the extent that the Published LIBO Rate (for an
Interest Period of three months) or Alternate Base Rate (in each case, without giving effect to any floor specified in the
definitions thereof) is greater than such floor, the floor will be disregarded in calculating the Effective Yield.
“Eligible
Assignee” means (a) any Lender, (b) any commercial bank, insurance company, finance company, financial institution, any
fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), (c)
any Affiliate of any Lender, (d) any Approved Fund of any Lender or (e) to the extent permitted under Section 9.05(g) or with
respect to the Revolving Loans and Revolving Credit Commitments of any Defaulting Lender, any Affiliated Lender or any Debt Fund
Affiliate; provided that in any event, “Eligible Assignee” shall not include (i) any natural person, (ii) any
Disqualified Institution or Defaulting Lender or (iii) except as permitted under Section 9.05(g) or except with respect to
the Revolving Loans and Revolving Credit Commitments of any Defaulting Lender, the Borrower or any of its Affiliates.
“Employee Benefit
Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (regardless of whether such plan is
subject to ERISA) which is sponsored, maintained or contributed to by, or required to be contributed to by, Borrower or any of its Subsidiaries.
“Environmental Claim”
means any written investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order,
decree or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant to or in connection
with any actual or alleged violation of any Environmental Law; or (b) in connection with any actual or alleged Hazardous Materials Activity.
“Environmental Laws”
means any and all applicable foreign or domestic, federal, state or local (or any subdivision thereof), statutes, ordinances, orders,
decrees, rules, regulations, judgments, Governmental Authorizations, or any other applicable binding requirements of Governmental Authorities
or the common law relating to (a) pollution or the protection of the environment or natural resources, human health and safety (to the
extent relating to the exposure to any hazardous material) or other environmental matters; or (b) any Hazardous Materials Activity or
any exposure of any Person to any hazardous material.
“Environmental Liability”
means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties
or indemnities), of the Borrower or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) any Hazardous Materials Activity, (c) exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other legally binding arrangement
pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Contribution” has the
meaning assigned to such term in the Recitals to this Agreement.
“ERISA” means the Employee Retirement Income Security
Act of 1974.
“ERISA Affiliate”
means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section
414(b) of the Code of which that Person is a member; and (b) any trade or business (whether or not incorporated) which is a member of
a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that Person is a member.
“ERISA Event”
means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect
to any Pension Plan (excluding those for which the 30- day notice period has been waived); (b) the failure to meet the minimum funding
standard of Section 412 of the Code with respect to any Pension Plan; (c) the filing of any request for or receipt of a minimum funding
waiver under Section 412 of the Code with respect to any Pension Plan; (d) engaging in a non- exempt prohibited transaction within the
meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Pension Plan; (e) the provision by the administrator of
any Pension Plan pursuant to Section 4041(a)(2) or Section 302 of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (f) the withdrawal by the Borrower, any of its Restricted Subsidiaries or any of their respective
ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in
liability to the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4063 or
4064 of ERISA; (g) the filing by the PBGC of judicial proceedings to terminate any Pension Plan; (h) the imposition of liability on the
Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA
or by reason of the application of Section 4212(c) of ERISA; (i) a complete or partial withdrawal (within the meaning of Sections 4203
and 4205 of ERISA) of the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates from any Multiemployer
Plan if there is any potential liability therefor under Title IV of ERISA, or the receipt by the Borrower, any of its Restricted Subsidiaries
or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA,
or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; or (j) the incurrence of liability or the imposition
of a Lien pursuant to Section 436 or 430(k) of the Code or pursuant to ERISA with respect to any Pension Plan.
“EU Bail-In Legislation Schedule”
means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to
time.
“Event of Default” has the meaning assigned to such
term in Article 7.
“Excess Cash Flow” means, for any Excess Cash Flow
Period, an amount (if positive) equal to:
(a)
the sum, without duplication, of the amounts for such period of the following:
(i) Consolidated
Adjusted EBITDA for such period without giving effect to clause (b)(x) of the definition thereof, plus
(ii)
the Consolidated Working Capital Adjustment for such period, plus
(iii) cash
gains of the type described in clauses (b), (c), (d), (e) and (f) of the definition of “Consolidated
Net Income”, to the extent not otherwise included in calculating Consolidated Adjusted EBITDA (except to the extent such gains consist
of proceeds utilized in calculating Net Proceeds falling under paragraph (a) of the definition thereof or Net Insurance/Condemnation
Proceeds subject to Section 2.11(b)(ii)), plus
(iv) to
the extent not otherwise included in the calculation of Consolidated Adjusted EBITDA for such period, cash payments received by the Borrower
or any of its Restricted Subsidiaries with respect to amounts deducted from Excess Cash Flow in a prior period pursuant to clause (b)(vii)
below, minus
(b) the
sum, without duplication, of the amounts for such period (or, in the case of clauses (b)(i), (b)(iii), (b)(iv), (b)(x), (b)(xi), (b)(xiii)
and (b)(xiv), at the option of the Borrower, amounts after such period to the extent paid prior to the date of the applicable Excess Cash
Flow payment) of the following:
(i) the
aggregate principal amount of (i) all optional prepayments of Indebtedness (other than any (A) optional prepayment of Indebtedness that
is deducted in calculating the amount of any Excess Cash Flow payment in accordance with Section 2.11(b)(i) or (B) revolving Indebtedness
except to the extent any related commitment is permanently reduced in connection with such repayment), (ii) all mandatory prepayments
and scheduled repayments of Indebtedness and (iii) the aggregate amount of any premiums, make-whole or penalty payments actually paid
in Cash by the Borrower and/or any Restricted Subsidiary that are or were required to be made in connection with any prepayment of Indebtedness,
in each case, except to the extent financed with long- term funded Indebtedness (other than revolving Indebtedness), plus
(ii)
[reserved], plus
(iii) Consolidated
Interest Expense to the extent paid or payable in Cash (including (A) fees and expenses paid to the Administrative Agent in connection
with its services hereunder, (B) other bank, administrative agency (or trustee) and financing fees (including rating agency fees and other
fees in respect of any Second Lien Facility), (C) costs of surety bonds in connection with financing activities (whether amortized or immediately
expensed) and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments, letters of credit, bank
guarantees, bankers’ acceptances or any similar facilities or financing and Hedge Agreements), plus
(iv) Taxes
(including Taxes paid or payable pursuant to any Tax sharing arrangement or arrangements and/or any Tax distribution) paid or payable,
and provisions for Taxes, to the extent payable in Cash with respect to such Excess Cash Flow Period, plus
(v)
[reserved], plus
(vi) any
foreign translation losses paid or payable in Cash (including any currency re-measurement of Indebtedness, any net gain or loss resulting
from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction
or any other currency-related risk) to the extent included in calculating Consolidated Adjusted EBITDA, plus
(vii) amounts
added back under (i) clauses (b)(xii), (b)(xiv), (b)(xix), (b)(xx), (b)(xxi) or (b)(xxii) of
the definition of “Consolidated Adjusted EBITDA” or (ii) the last paragraph of the definition of Consolidated Net Income with
respect to business interruption insurance, in each case to the extent such amounts have not yet been received by the Borrower or its
Restricted Subsidiaries, plus
(viii) an
amount equal to (A) all Charges either (1) excluded in calculating Consolidated Net Income or (2) added back in calculating Consolidated
Adjusted EBITDA, in each case, to the extent paid or payable in cash and (B) without duplication of amounts deducted in clause (c)(i)
of the definition of Consolidated Adjusted EBITDA, any non-cash item of gain or income included in calculating Consolidated Net Income,
plus
(ix)
[reserved], plus
(x) to
the extent not expensed (or exceeding the amount expensed) during such period or not deducted (or exceeding the amount deducted) in calculating
Consolidated Net Income, the aggregate amount of Charges paid or payable in Cash by the Borrower and its Restricted Subsidiaries during
such period, other than to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness), plus
(xi) Cash
payments (other than in respect of Taxes, which are governed by clause (iv) above) made during such period for any liability the accrual
of which in a prior period did not reduce Consolidated Adjusted EBITDA and therefore increased Excess Cash Flow in such prior period (provided
there was no other deduction to Consolidated Adjusted EBITDA or Excess Cash Flow related to such payment), except to the extent financed
with long term funded Indebtedness (other than revolving Indebtedness), plus
(xii)
[reserved], plus
(xiii) amounts
paid in Cash (except to the extent financed with long term funded Indebtedness (other than revolving Indebtedness)) during such period
on account of (A) items that were accounted for as non-Cash reductions of Consolidated Net Income or Consolidated Adjusted EBITDA in a
prior period and (B) reserves or amounts established in purchase accounting to the extent such reserves or amounts are added back to,
or not deducted from, Consolidated Net Income, plus
(xiv) the
amount of any payment of Cash made during such period to be amortized or expensed over a future period and recorded as a long-term asset,
plus
(xv) the
amount of any Tax obligation of the Borrower and/or any Restricted Subsidiary that is estimated in good faith by the Borrower as due and
payable (but is not currently due and payable) by the Borrower and/or any Restricted Subsidiary as a result of the repatriation of any
dividend or similar distribution of net income of any Foreign Subsidiary to the Borrower and/or any Restricted Subsidiary, plus
(xvi) to
the extent included in the calculation of Consolidated Adjusted EBITDA for such period, the amount of any insurance proceeds received
by the Borrower or any Restricted Subsidiary during such period under the Representation and Warranty Insurance Policy, plus
(xvii) the
aggregate amount of any extraordinary, unusual, special or non- recurring cash Charges paid or payable during such period (whether or
not incurred in such Excess Cash Flow Period) that were excluded in calculating Consolidated Adjusted EBITDA (including any component
definition used therein) for such period, plus
(xviii) to
the extent included in calculating Consolidated Adjusted EBITDA, the aggregate amounts received by the Borrower or any Restricted Subsidiary
pursuant to any iStar Exchange or Excluded Property Transaction.
“Excess Cash Flow
Period” means each full Fiscal Year of the Borrower ending after the Closing Date (commencing, for the avoidance of doubt, with
the Fiscal Year ending on or about June 30, 2018).
“Exchange Act”
means the Securities Exchange Act of 1934 and the rules and regulations of the SEC promulgated thereunder.
“Excluded Assets” means each of the following:
(a) any asset (including
any General Intangibles and any contract, instrument, lease, license, permit, agreement or other document, or any property or other
right subject thereto (including pursuant to a purchase money security interest, capital lease or similar arrangement or, in the
case of after-acquired property, pre-existing secured Indebtedness not incurred in anticipation of the acquisition by the Loan Party
of such property)) the grant or perfection of a security interest in which would (i) constitute a violation of a restriction in
favor of a third party (other than a Loan Party) or result in the abandonment, invalidation or unenforceability of any right or
assets of the relevant Loan Party, (ii) result in a breach, termination (or a right of termination) or default under any such
contract, instrument, lease, license, permit, agreement or other document (including pursuant to any “change of control”
or similar provision) (there being no requirement pursuant to any Loan Document to obtain any consent in respect thereof from any
Person that is not also a Loan Party) or (iii) permit any Person (other than any Loan Party) to amend any rights, benefits and/or
obligations of the relevant Loan Party or Restricted Subsidiary in respect of such relevant asset or permit such Person to require
any Loan Party or any subsidiary of the Borrower to take any action materially adverse to the interests of such subsidiary or Loan
Party; provided, however, that any such asset will only constitute an Excluded Asset under clause (i), clause
(ii) or clause (iii) above to the extent such violation or breach, termination (or right of termination), default or
right to amend would not be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor
provision or provisions) of any relevant jurisdiction or any other applicable Requirement of Law; provided, further,
that any such asset shall cease to constitute an Excluded Asset at such time as the condition causing such violation, breach,
termination (or right of termination) or default or right to amend or require other actions no longer exists and to the extent
severable, the security interest granted under the applicable Collateral Document shall attach immediately to any portion of such
General Intangible or other right that does not result in any of the consequences specified in clauses (i) through (iii)
above,
(b) the
Capital Stock of any (i) Captive Insurance Subsidiary, (ii) Unrestricted Subsidiary, (iii) broker-dealer subsidiary, (iv) not-for-profit
subsidiary and/or (v) special purpose entity used for any securitization facility permitted hereunder or any Receivables Subsidiary,
(c) any
(i) foreign IP Rights and/or (ii) intent-to-use (or similar) Trademark application prior to the filing of a “Statement of Use”,
“Amendment to Allege Use” or similar filing with respect thereto, only to the extent, if any, that, and solely during the
period, in which, if any, the grant of a security interest therein may impair the validity or enforceability, or result in the voiding
of, such intent-to-use Trademark application or any registration issuing therefrom under applicable law,
(d) any asset or
property (including Capital Stock), the grant or perfection of a security interest in which would (A) require any governmental or regulatory
consent, approval, license or authorization (there being no requirement under any Loan Document to obtain the consent, approval, license
or authorization of any Governmental Authority or other Person (other than any Loan Party), including, without limitation, no requirement
to comply with the Federal Assignment of Claims Act or any similar statute), (B) be prohibited or restricted by applicable Requirements
of Law (including enforceable anti-assignment provisions of applicable Requirements of Law), except, in the case of this clause (B),
to the extent such prohibition would be rendered ineffective under applicable anti-assignment provisions of the UCC of any relevant jurisdiction
notwithstanding such prohibition, (C) trigger termination of any contract pursuant to a “change of control” or similar provision
or (D) result in adverse tax or regulatory consequences to any Loan Party or any of its subsidiaries or Parent Companies as determined
by the Borrower in good faith following consultation with the Administrative Agent,
(e) (i)
except to the extent a security interest therein can be perfected by the filing of an “all-assets” UCC-1 financing statement,
any leasehold interest, (ii) any real property or real property interest that is not a Material Real Estate Asset, (iii) any real property
(including improvements) or real property interest (including improvements) that was leased by the Borrower or any of its Subsidiaries
and later deeded or conveyed to the Borrower or any other Loan Party, (iv) any real property (including improvements) or real property
interest (including improvements) owned by a Loan Party immediately prior to the Closing Date and not required to be subject to a mortgage
or security interest pursuant to the terms of the Existing Credit Facilities (including the real property (and improvements thereto) set
forth on Schedule 1.01(e) hereto) or the terms hereunder and (v) any Excluded Property,
(f) any
Capital Stock of any Person that is not a Wholly-Owned Restricted Subsidiary or that is an Immaterial Subsidiary,
(g)
any Margin Stock,
(h) the
voting Capital Stock of any Foreign Subsidiary that is a “controlled foreign corporation” (as defined in Section 957(a) of
the Code) or Disregarded Domestic Subsidiary, other than 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary
or Disregarded Domestic Subsidiary, as applicable,
(i) any
Letter-of-Credit-Right (other than to the extent a security interest in such Letter-of-Credit-Right can be perfected by filing an “all-assets”
UCC financing statement, without need for any other action) and all Commercial Tort Claims,
(j) any
Cash or Cash Equivalents (other than Cash and Cash Equivalents representing identifiable proceeds of other Collateral, a security interest
in which can be perfected through the filing of an “all-assets” UCC financing statement or which is perfected or arises by
law (including without limitation, the UCC), in each case without need for any action by any Loan Party or any Affiliate thereof),
(k) any
Deposit Account or commodity or securities account (including any securities entitlement and any related asset) (except to the extent
a security interest therein can be perfected through the filing of an “all assets” UCC financing statement (without need for
any other action); it being understood that Cash and Cash Equivalents representing identifiable proceeds of other Collateral as referred
to in the preceding clause (j) are not excluded hereby, and shall constitute Collateral (but any other Cash or Cash Equivalents shall
not constitute Collateral), but there shall be no requirement for any control agreement (or similar agreement)),
(l) any
motor vehicle, airplane or other asset subject to a certificate of title (other than to the extent a security interest therein can be
perfected by filing an “all assets” UCC financing statement (without need for any other action) and without the requirement
to list any VIN, serial or similar number),
(m) any
governmental or regulatory license or state or local franchise, charter, consent, permit or authorization to the extent the granting of
a security interest therein is prohibited or restricted thereby or by applicable Requirements of Law; provided, however,
that any such asset will only constitute an Excluded Asset under this clause (m) to the extent such prohibition or restriction
would not be rendered ineffective pursuant to applicable anti- assignment provisions of the UCC of any relevant jurisdiction,
(n) Receivables
Facility Assets and related assets sold or otherwise transferred to a Receivables Subsidiary or otherwise pledged, transferred or sold
in connection with a Receivables Facility, factoring transaction or any similar arrangement permitted hereunder,
(o) any
asset with respect to which the Administrative Agent and the relevant Loan Party have determined in good faith that the cost, burden,
difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its operations and business in the
ordinary course of business) of obtaining or perfecting a security interest therein outweighs the benefit of a security interest to the
relevant Secured Parties afforded thereby, and
(p) any
league deposits to the extent identifiable as such pursuant to the ledgers maintained by the Loan Parties.
“Excluded Property”
means any SLB Property, the properties (and improvements) set forth on Schedule 1.01(f) hereto, any EAP Substitution Property,
any other Real Estate Asset not required to be subject to a Mortgage in favor of the Administrative Agent and any other property purchased
with the proceeds of a Disposition of any of the foregoing.
“Excluded Property
Limited Recourse Financing” means any financing (other than a Sale and Lease-Back Transaction) with respect to an Excluded Property
that constitutes Limited Recourse Financing with respect to the Borrower or any Subsidiary.
“Excluded Property
Limited Recourse Financing Documents” means all definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the date hereof in connection with any Excluded
Property Limited Recourse Financing, in each case as the same may be amended, modified or supplemented from time to time hereafter in
accordance with the provisions thereof, and including all basic financing information and all other agreements, documents and instruments
relating to the Excluded Property Limited Recourse Financing and all exhibits and schedules to any of the foregoing.
“Excluded Property
Sale/Leaseback Transaction” means any Sale and Lease-Back Transaction with respect to one or more Excluded Properties effected
after the date hereof, including any amendment or modification of the iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“Excluded Property
Sale/Leaseback Transaction Documents” means the definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the date hereof in connection with any Excluded
Property Sale/Leaseback Transaction, in each case as the same may be amended, modified or supplemented from time to time hereafter in
accordance with the provisions thereof, and including all basic lease information and all other agreements, documents and instruments
relating to the Excluded Property Sale/Leaseback Transaction and all exhibits and schedules to any of the foregoing.
“Excluded Property
Transaction” means any Excluded Property Sale/Leaseback Transaction and any Excluded Property Limited Recourse Financing.
“Excluded Property
Transaction Documents” means the Excluded Property Sale/Leaseback Transaction Documents and any Excluded Property Limited Recourse
Financing Documents.
“Excluded Subsidiary” means:
(a)
any Restricted Subsidiary that is not a Wholly-Owned Subsidiary,
(b)
any Immaterial Subsidiary,
(c) any
Restricted Subsidiary that is prohibited or restricted by law, rule or regulation or contractual obligation from providing a Loan Guaranty
or that would require a governmental (including regulatory) or third party consent, approval, license or authorization to provide a Loan
Guaranty (including under any financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance
or similar legal principles) unless such consent has been received, it being understood that Holdings and its subsidiaries shall have
no obligation to obtain any such consent, approval, license or authorization,
(d)
any not-for-profit subsidiary,
(e)
any Captive Insurance Subsidiary or subsidiary that is a broker-dealer,
(f) any
special purpose entity (including a special purpose entity used for any permitted securitization or receivables facility or financing,
or established in connection with any iStar Exchange or Excluded Property Transaction) and any Receivables Subsidiary,
(g)
any Foreign Subsidiary,
(h) (i)
any Disregarded Domestic Subsidiary or (ii) any Domestic Subsidiary that is a direct or indirect subsidiary of any Foreign Subsidiary
or any Disregarded Domestic Subsidiary,
(i)
any Unrestricted Subsidiary,
(j) any
subsidiary acquired pursuant to a Permitted Acquisition or other Investment permitted by this Agreement that has assumed secured Indebtedness
not incurred in contemplation of such Permitted Acquisition or other Investment and any Restricted Subsidiary thereof that guarantees
such secured Indebtedness, in each case to the extent the terms of such secured Indebtedness prohibit such subsidiary from becoming a
Guarantor,
(k)
[reserved],
(l) any
Restricted Subsidiary if the provision of a Loan Guaranty could reasonably be expected to result in adverse tax or regulatory consequences
to any Loan Party or any of its subsidiaries or Parent Companies as determined by the Borrower in good faith, and
(m) any
other Restricted Subsidiary with respect to which, in the good faith judgment of the Administrative Agent and the Borrower, the burden
or cost of providing a Loan Guaranty outweighs the benefits afforded thereby.
“Excluded Swap Obligation”
means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Loan Guaranty of such Loan
Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Loan Guaranty thereof) is or
becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the
application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible
contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to
Section 3.20 of the Loan Guaranty and any other “keepwell”, support or other agreement for the benefit of such Loan
Party) at the time the Loan Guaranty of such Loan Party or the grant of such security interest becomes effective with respect to such
Swap Obligation. If any Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only
to the portion of such Swap Obligation that is attributable to swaps for which such Loan Guaranty or security interest is or becomes illegal.
“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender or Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of any Loan Party hereunder, (a) Taxes imposed on (or measured by) its net income or franchise Taxes (i) by
the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) any branch profits taxes imposed
by the U.S. or any similar tax imposed by any other jurisdiction described in clause (a), (c) in the case of a Lender, any U.S.
withholding tax that is imposed on amounts payable to such Lender at the time such Lender acquires an interest in a Loan or Commitment
(or designates a new lending office), except (i) pursuant to an assignment or designation of a new lending office under Section 2.19
and (ii) to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from any Loan Party with respect to such withholding tax pursuant to Section 2.17, (d)
any tax imposed as a result of a failure by the Administrative Agent or any Lender or Issuing Bank to comply with Section 2.17(f)
and (e) any withholding tax under FATCA.
“Existing Credit Facilities”
has the meaning assigned to such term in Section 4.01(h).
“Existing Letter of Credit”
means each letter of credit set forth on Schedule 1.01(b).
“Existing Letter
of Credit Issuer” means each Lender or Affiliate of a Lender that issued an Existing Letter of Credit.
“Existing Sponsor” means Cerberus
Capital Management, L.P. and its respective Affiliates.
“Expected Cost Savings”
has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Extended Revolving Credit Commitment”
has the meaning assigned to such term in Section 2.23(a).
“Extended Revolving Loans” has the meaning assigned
to such term in Section 2.23(a).
“Extended Term Loans” has the meaning assigned to
such term in Section 2.23(a)(ii).
“Extension” has the meaning assigned to such term
in Section 2.23(a)(ii).
“Extension Amendment”
means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (to the extent required by Section
2.23) and the Borrower, executed by each of (a) the Borrower, (b) the Administrative Agent and (c) each Lender that has accepted
the applicable Extension Offer pursuant hereto and in accordance with Section 2.23.
“Extension Offer” has the meaning
assigned to such term in Section 2.23(a).
“Facility”
means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or, except with respect
to Articles 5 and 6, hereof owned, leased, operated or used by the Borrower or any of its Restricted Subsidiaries or any
of their respective predecessors or Affiliates.
“Failed Auction”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is
substantively comparable and not materially more onerous to comply with), any current or future regulations or official
interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, and any law, regulation, rules,
practice or other published administrative guidance adopted pursuant to any intergovernmental agreement entered into in connection
with the implementation of such section of the Code.
“Federal Assignment of Claims Act” means the Federal
Assignment of Claims Act (41 U.S.C. § 15).
“Federal Funds Effective
Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds
transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York sets forth on its public
website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds
effective rate; provided that if such rate as determined above is at any time negative, the Federal Funds Effective Rate at such
time shall instead be zero.
“Fee Letter”
means that certain Amended and Restated Fee Letter, dated as of June 15, 2017, by and among, inter alios, Parent and the Arrangers,
as amended to date.
“Financial Covenant” means the covenant in Section
6.15(a).
“First Lien Leverage
Ratio” means the ratio, as of any date of determination, of (a) Consolidated First Lien Debt as of such date to (b) Consolidated
Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “First Lien Leverage
Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries.
“First Priority”
means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that, subject to the Intercreditor
Agreement or any other applicable intercreditor agreement, such Lien is senior in priority to any other Lien to which such Collateral
is subject, other than any Permitted Lien.
“Fiscal Quarter” means a fiscal quarter of any Fiscal
Year.
“Fiscal Year”
means the fiscal year of the Borrower ending on or about June 30 of each calendar year, as such fiscal year end may be adjusted in accordance
with the terms of this Agreement.
“Fixed Amounts” has the meaning assigned to such
term in Section 1.04(g).
“Flood Hazard Property”
means any Material Real Estate Asset subject to a Mortgage if any building included in such Material Real Estate Asset is located in an
area designated by the Federal Emergency Management Agency as having special flood hazards.
“Flood Insurance
Laws” means, collectively, (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of 1973, (iii)
the National Flood Insurance Reform Act of 1994, (iv) the Flood Insurance Reform Act of 2004 and (v) the Biggert–Waters Flood Insurance
Reform Act of 2012, each as now or hereafter in effect or any successor statute thereto, and in each case, together with all statutory
and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing, as amended
or modified from time to time.
“Foreign Asset Disposition”
means a Disposition where the relevant asset is (A) the stock of or assets of a Foreign Subsidiary or (B) one or more assets of the Borrower
or any Restricted Subsidiary which are located outside the United States or any territory thereof.
“Foreign Lender”
means any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“Foreign Subsidiary” means any Restricted Subsidiary
that is not a Domestic Subsidiary.
“Funding Account” has the meaning assigned to such
term in Section 2.03(f).
“GAAP”
means generally accepted accounting principles in the U.S. in effect and applicable to the accounting period in respect of which reference
to GAAP is made.
“General Intangibles” has the meaning set forth
in Article 9 of the UCC.
“Governmental Authority”
means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or
instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether associated with the U.S., a foreign government or any
political subdivision of either thereof.
“Governmental Authorization”
means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Granting Lender” has the meaning assigned to such
term in Section 9.05(e).
“GS Bank” has the meaning assigned to such term
in the preamble to this Agreement.
“Guarantee”
of or by any Person (the “Guarantor”) means any obligation, contingent or otherwise, of the Guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “Primary
Obligor”) in any manner and including any obligation of the Guarantor (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner
of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other
monetary obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness
or monetary obligation, (e) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or
other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or
in part) or (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of any other
Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or any right, contingent or otherwise,
of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business, or customary and reasonable indemnity obligations
in effect on the Closing Date or entered into in connection with any acquisition, Disposition or other transaction permitted under this
Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made
or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person
in good faith.
“Hazardous Materials”
means any chemical, material, substance or waste, or any constituent thereof, which is prohibited, limited or regulated by any Environmental
Law due to its hazardous, toxic or similar characteristics, including any chemical, material, substance or waste defined or listed as
“hazardous” or “toxic” in any Environmental Law.
“Hazardous Materials
Activity” means the use, manufacture, possession, storage, holding, Release, threatened Release, discharge, placement, generation,
transportation, processing, treatment, abatement, removal, investigation, remediation, disposal, disposition or handling of any Hazardous
Material, and any corrective action or response action with respect to any of the foregoing.
“Hedge Agreement”
means any agreement with respect to any Derivative Transaction between any Loan Party or any Restricted Subsidiary and any other Person.
“Hedging Obligations”
means, with respect to any Person, the obligations of such Person under any Hedge Agreement.
“Holdings”
means (a) initially, Merger Sub 1, and after giving effect to the Merger Sub 1 Merger, the Target (in each case prior to the consummation
of a transaction described in clause (b) of this definition) and (b) following the consummation of a transaction permitted hereunder
that results in a New Holdings, New Holdings.
“Holdings Reorganization
Transaction” means (a) the contribution by Holdings of 100% of the Capital Stock of the Borrower to a newly formed domestic
“shell” company owned or controlled by the Permitted Holders or (b) the merger or other consolidation of Holdings with another
Person that, after giving effect thereto, shall hold 100% of the Capital Stock of the Borrower, in each case, so long as, contemporaneously
therewith (as applicable) (i) New Holdings delivers to the Administrative Agent any new certificate issued (if any) to evidence the contributed
Capital Stock of the Borrower and grants a security interest in such Capital Stock in favor of the Administrative Agent pursuant to the
Security Agreement or a joinder thereto in a form reasonably satisfactory to the Administrative Agent and (ii) New Holdings assumes the
Loan Guaranty provided by Holdings and all other obligations of Holdings under this Agreement and each of the other Loan Documents to
which Holdings is a party pursuant to a supplement hereto or thereto that is reasonably acceptable to the Administrative Agent.
“IFRS”
means international accounting standards within the meaning of the IAS Regulation 1606/2002, as in effect from time to time (subject to
the provisions of Section 1.04), to the extent applicable to the relevant financial statements.
“Immaterial Subsidiary”
means, as of any date, any Restricted Subsidiary of the Borrower (a) that does not have assets in excess of 2.5% of Consolidated Total
Assets of the Borrower and its Restricted Subsidiaries and (b) that does not contribute Consolidated Adjusted EBITDA in excess of 2.5%
of the Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries, in each case, as of the last day of the most recently
ended Test Period; provided that, the Consolidated Total Assets and Consolidated Adjusted EBITDA (as so determined) of all Immaterial
Subsidiaries shall not exceed 5.0% of Consolidated Total Assets and 5.0% of Consolidated Adjusted EBITDA, in each case, of the Borrower
and its Restricted Subsidiaries as of the last day of the most recently ended Test Period; provided further that,
at all times prior to the first delivery of financial statements pursuant to Section 5.01(a) or (b), this definition shall
be applied based on the pro forma consolidated financial statements of the Target delivered pursuant to Section 4.01.
“Immediate Family
Member” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant,
parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling or step-siblings (and linear
descendants either thereof), mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships), any trust,
partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals, any of the
foregoing individual’s (including the initial individual) estate (or an executor or administrator acting on its behalf), heirs or
legatees or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any
such individual is the donor.
“Incremental Cap” means:
(a)
the Shared Incremental Amount, plus
(b) in
the case of any Incremental Facility or Incremental Equivalent Debt that effectively extends the Maturity Date with respect to any Class
of Loans and/or commitments hereunder, an amount equal to the portion of the relevant Class of Loans or commitments that will be replaced
by such Incremental Facility or Incremental Equivalent Debt, plus
(c) in
the case of any Incremental Facility or Incremental Equivalent Debt that effectively replaces any Revolving Credit Commitment or Additional
Revolving Credit Commitment terminated in accordance with Section 2.19 hereof, an amount equal to the relevant terminated Revolving
Credit Commitment or Additional Revolving Credit Commitment, plus
(d) (i)
the amount of any optional prepayment of any Loan (including any Incremental Loan) in accordance with Section 2.11(a) and/or the
amount of any permanent reduction of any Revolving Credit Commitment, (ii) the amount of any optional prepayment, redemption or repurchase
of Incremental Equivalent Debt incurred pursuant to the Shared Incremental Amount, (iii) the amount of any optional prepayment, redemption
or repurchase of any Replacement Term Loan or Loans under any Replacement Revolving Facility (to the extent accompanied by a permanent
reduction in commitments) or any borrowing or issuance of Replacement Debt previously applied to the permanent prepayment of any Loan
hereunder or of any Incremental Equivalent Debt, (iv) the amount of any optional prepayment, redemption or repurchase of “Incremental
Loans” and/or “Incremental Equivalent Debt” incurred pursuant to the “Shared Incremental Amount” or of any
“Replacement Term Loans” previously applied to the permanent prepayment of any of the foregoing (each as defined in the Second
Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien Facility) and (v) the aggregate amount
of any Indebtedness referred to in clauses (i) through (iv) repaid or retired resulting from any assignment of such Indebtedness to (and/or
assignment and/or purchase of such Indebtedness by) Holdings, the Borrower and/or any Restricted Subsidiary; provided that for
each of clauses (i) through (v), the relevant prepayment, redemption, repurchase or assignment and/or purchase was not funded
with the proceeds of any long-term Indebtedness (other than revolving Indebtedness), plus
(e) an
unlimited amount so long as, in the case of this clause (e), on a Pro Forma Basis after giving effect to the incurrence of
the Incremental Facility or the Incremental Equivalent Debt, as applicable, and the application of the proceeds thereof (but without
netting the cash proceeds thereof, but giving effect to any related Subject Transaction) and to any relevant Subject Transaction
(and, in the case of any Incremental Revolving Facility then being established, assuming a full drawing thereunder), (i) if such
Indebtedness is secured by a first priority Lien on the Collateral, the First Lien Leverage Ratio does not exceed the greater of (x)
4.20:1.00 and (y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the First Lien
Leverage Ratio as of the last day of the most recently ended Test Period, (ii) if such Indebtedness is secured by a Lien on the
Collateral other than on a first priority basis or is secured by a Lien on assets of the Borrower or any Restricted Subsidiary that
are not Collateral, the Secured Leverage Ratio does not exceed the greater of (x) 5.00:1.00 and (y) if such Indebtedness is
incurred to finance an acquisition or other Investment permitted hereunder, the Secured Leverage Ratio as of the last day of the
most recently ended Test Period and (iii) if such Indebtedness is unsecured, at the election of the Borrower, either (A) the Total
Leverage Ratio does not exceed the greater of (x) 5.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition or
other Investment permitted hereunder, the Total Leverage Ratio as of the last day of the most recently ended Test Period or (B) the
Interest Coverage Ratio is not less than the lesser of (x) 2.00:1.00 and (y) if such Indebtedness is incurred to finance an
acquisition or other Investment permitted hereunder, the Interest Coverage Ratio as of the last day of the most recently ended Test
Period;
provided that:
(1) any
Incremental Facility and/or Incremental Equivalent Debt may be incurred under one or more of clauses (a) through (e) of this definition
as selected by the Borrower in its sole discretion (provided that, in the case of clause (e), an Incremental Facility may be incurred
only under clause (i) thereof),
(2) if
any Incremental Facility or Incremental Equivalent Debt is intended to be incurred under clause (e) of this definition and any other clause
of this definition in a single transaction or series of related transactions, (A) the incurrence of the portion of such Incremental Facility
or Incremental Equivalent Debt to be incurred or implemented under clause (e) of this definition shall be calculated first without giving
effect to any Incremental Facilities or Incremental Equivalent Debt to be incurred under any other clause of this definition, but giving
full pro forma effect to the use of proceeds of the entire amount of such Incremental Facility or Incremental Equivalent Debt and the
related transactions and (B) the incurrence of the portion of such Incremental Facility or Incremental Equivalent Debt to be incurred
or implemented under the other applicable clauses of this definition shall be calculated thereafter, and
(3) any
portion of any Incremental Facility or Incremental Equivalent Debt that is incurred under clauses (a) through (d) of this definition,
unless otherwise elected by the Borrower, shall automatically and without need for action by any Person, be reclassified as having been
incurred under clause (e) of this definition if, at any time after the incurrence thereof, when financial statements required pursuant
to Section 5.01(a) or (b) are delivered or, if earlier, become internally available, such portion of such Incremental Facility
or Incremental Equivalent Debt would, using the figures reflected in such financial statements, be (or have been) permitted under the
First Lien Leverage Ratio, Secured Leverage Ratio, Total Leverage Ratio or Interest Coverage Ratio test, as applicable, set forth in clause
(e) of this definition.
“Incremental Commitment” means
any commitment made by a lender to provide all or any portion of any Incremental Facility or Incremental Loans.
“Incremental Equivalent Debt”
means any Indebtedness that satisfies the following conditions:
(a) the
aggregate outstanding principal amount thereof does not exceed the Incremental Cap as in effect at the time of determination (after giving
effect to any reclassification on or prior to such date of determination),
(b) the
Weighted Average Life to Maturity of such Indebtedness is no shorter than the remaining Weighted Average Life to Maturity of the Amendment
No. 2 Term Loans and the final maturity date of such Indebtedness is no earlier than the Latest Term Loan Maturity Date applicable to
the Amendment No. 2 Term Loans, in each case as determined on the date of the issuance or incurrence, as applicable, thereof; provided,
that the foregoing limitations shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided,
that any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such
bridge loans shall be subject to the requirements of this clause (b) or (ii) Indebtedness subject to the Permitted Earlier Maturity
Indebtedness Exception,
(c) subject
to clause (b), such Indebtedness may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such
Indebtedness,
(d) if
such Indebtedness is in the form of broadly syndicated Dollar denominated term loans that are pari passu with the Amendment No.
2 Term Loans in right of payment and with respect to security (other than customary bridge loans with a maturity date of not longer than
one year that are convertible or exchangeable into, or are intended to be refinanced with, any Indebtedness other than term loans that
are pari passu with the Amendment No. 2 Term Loans in right of payment and with respect to security), the MFN Provisions of Section
2.22(a)(v) shall apply to such Indebtedness as if (but only to the extent, including after giving effect to applicable exclusions
and sunset provisions) such Indebtedness was an Incremental Term Facility of the type subject to the provisions of Section 2.22(a)(v),
mutatis mutandis,
(e) if
such Indebtedness is secured by assets that constitute Collateral, the holders of such Indebtedness (or a representative therefor) shall
be party to an Acceptable Intercreditor Agreement,
(f) such
Indebtedness may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term
Loans made pursuant to Section 2.11(a) and (B) to the extent secured on a pari passu basis with the Amendment No. 2 Term Loans, on a pro
rata basis (but not on a greater than pro rata basis other than in the case of a prepayment with proceeds of Indebtedness refinancing
such Incremental Equivalent Debt) in any mandatory prepayment of Term Loans required pursuant to Section 2.11(b) or less than a pro rata
basis with the then-outstanding Term Facility, and
(g) if
any financial maintenance covenant is added to any such Indebtedness and such financial maintenance covenant is more favorable to the
lenders under such Indebtedness than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable after
the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable
financial maintenance covenant (together with, at the election of the Borrower, any applicable “equity cure” provisions with
respect to any such financial maintenance covenant).
“Incremental Facilities” has
the meaning assigned to such term in Section 2.22(a).
“Incremental Facility
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (solely for
purposes of giving effect to Section 2.22) and the Borrower executed by each of (a) Holdings and the Borrower, (b) the
Administrative Agent and (c) each Lender that agrees to provide all or any portion of the Incremental Facility being incurred
pursuant thereto and in accordance with Section 2.22.
“Incremental Loans” has the
meaning assigned to such term in Section 2.22(a).
“Incremental Revolving Facility”
has the meaning assigned to such term in Section 2.22(a).
“Incremental
Revolving Facility Lender” means, with respect to any Incremental Revolving Facility, each Revolving Lender providing any
portion of such Incremental Revolving Facility.
“Incremental Revolving Loans” has the meaning assigned
to such term in Section 2.22(a).
“Incremental Term Facility” has the meaning assigned
to such term in Section 2.22(a).
“Incremental Term Loans” has the meaning assigned
to such term in Section 2.22(a).
“Incurrence-Based Amounts” has the meaning assigned
to such term in Section 1.04(g).
“Indebtedness”
as applied to any Person means, without duplication, (a) all indebtedness of such Person for borrowed money; (b) the Attributable
Debt of such Person in respect of any Capital Lease of such Person; (c) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments to the extent the same would appear as a liability on a balance sheet (excluding the
footnotes thereto) of such Person prepared in accordance with GAAP; (d) any obligation of such Person owed for all or any part of
the deferred purchase price of property or services (excluding (w) any earn out obligation or purchase price adjustment until such
obligation (A) becomes a liability on the balance sheet of such Person (excluding the footnotes thereto) in accordance with GAAP and
(B) has not been paid within 30 days after becoming due and payable following expiration of any dispute resolution mechanics set
forth in the applicable agreement governing the applicable transaction, (x) any such obligations incurred under ERISA or under any
employee consulting agreements, (y) accrued expenses, trade accounts payable and accruals for payroll, in the ordinary course of
business (including on an intercompany basis) and (z) liabilities associated with customer prepayments and deposits), which purchase
price is (i) due more than six months from the date of incurrence of the obligation in respect thereof or (ii) evidenced by a note
or similar written instrument; (e) all Indebtedness of others secured by any Lien on any property or asset owned or held by such
Person regardless of whether the Indebtedness secured thereby has been assumed by such Person or is non-recourse to the credit of
such Person; (f) the face amount of any letter of credit issued for the account of such Person or as to which such Person is
otherwise liable for reimbursement of drawings; (g) the Guarantee by such Person of the Indebtedness of another; (h) all obligations
of such Person in respect of any Disqualified Capital Stock; and (i) all net obligations of such Person in respect of any Derivative
Transaction, including any Hedge Agreement, whether or not entered into for hedging or speculative purposes; provided that
(i) in no event shall obligations under any Derivative Transaction be deemed “Indebtedness” for any calculation of the
Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio or any other financial
ratio under this Agreement, (ii) in all cases Indebtedness shall exclude any Excluded Property Limited Recourse Financing, (iii) the
amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (A) the
aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the
documentation pursuant to which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as
determined by such Person in good faith and (iv) the amount of any Limited Recourse Debt of any Person shall be deemed to be equal
to the lesser of (A) the aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly
provided for under the documentation pursuant to which the respective Lien is granted) and (B) the fair market value of the property
encumbered thereby as determined by such Person in good faith.
For all purposes hereof, the
Indebtedness of any Person shall include the Indebtedness of any partnership or any Joint Venture (other than any Joint Venture that is
itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent
such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would otherwise be included
in the calculation of Consolidated Total Debt; provided that notwithstanding anything herein to the contrary, the term “Indebtedness”
shall not include, and shall be calculated without giving effect to, (x) the effects of Accounting Standards Codification Topic 815 and
related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder
as a result of accounting for any embedded derivatives created by the terms of such Indebtedness (it being understood that any such amounts
that would have constituted Indebtedness hereunder but for the application of this proviso shall not be deemed an incurrence of Indebtedness
hereunder), (y) the effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects
would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivative
created by the terms of such Indebtedness (it being understood that any such amounts that would have constituted Indebtedness hereunder
but for the application of this proviso shall not be deemed to be an incurrence of Indebtedness hereunder) and (z) Indebtedness of any
Parent Company appearing on the balance sheet of the Borrower or any of its Subsidiaries solely by reason of push down accounting under
GAAP.
“Indemnified Taxes”
means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan
Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” has the meaning assigned to such term
in Section 9.03(b).
“Information” has the meaning set forth in Section
3.11(a).
“Information Memorandum”
means the Confidential Information Memorandum finalized on or about June 20, 2017, relating to the Borrower and its subsidiaries and
the Transactions.
“Initial Lenders”
means the Arrangers and the affiliates of the Arrangers who are party to this Agreement as Lenders on the Closing Date.
“Initial
Revolving Credit Commitment” means, with respect to any Person, the commitment of such Person to make Initial Revolving
Loans (and acquire participations in Letters of Credit and Swingline Loans) hereunder as set forth on the Commitment Schedule, or in
the Assignment Agreement pursuant to which such Lender assumed its Initial Revolving Credit Commitment, as applicable, as the same
may be (a) reduced from time to time pursuant to Section 2.09 or 2.19, (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.05 or (c) increased pursuant to Section 2.22. The
aggregate amount of the Initial Revolving Credit Commitments as of the Closing Date is $50,000,000.
“Initial Revolving
Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of all Initial
Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure and Swingline Exposure,
in each case, attributable to its Initial Revolving Credit Commitment.
“Initial Revolving Credit Maturity Date” means the
date that is five years after the Closing
Date.
“Initial Revolving Facility”
means the Initial Revolving Credit Commitments and the Initial Revolving Loans and other extensions of credit thereunder.
“Initial Revolving Lender” means
any Person with an Initial Revolving Credit Commitment or any Initial Revolving Credit Exposure.
“Initial Revolving Loan” means
any revolving loan made by the Initial Revolving Lenders to the Borrower pursuant to Section 2.01(a)(ii).
“Initial Term Lender”
means any Person with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial Term
Loan Commitment” means, with respect to any Person, the commitment of such Person to make Initial Term Loans hereunder in
an aggregate amount not to exceed the amount set forth opposite such Person’s name on the Commitment Schedule, as the same may
be (a) reduced from time to time pursuant to Section 2.09 or Section 2.19 and (b) reduced or increased from time to
time pursuant to (x) assignments by or to such Person pursuant to Section 9.05 or (y) an Additional Term Loan Commitment. The
aggregate amount of the Initial Term Loan Commitments on the Closing Date is $585,000,000. The aggregate amount of the Initial Term
Loan Commitments on the Amendment No. 1 Effective Date is $113,000,000.
“Initial Term Loan Maturity Date”
means the date that is seven years after the Closing Date.
“Initial Term Loans”
means the term loans (including, without limitation, any Amendment No. 1 Incremental Term Loans) made by the Initial Term Lenders to
the Borrower pursuant to Section 2.01(a)(i).
“Intellectual Property
Security Agreement” means any agreement executed on or after the Closing Date confirming or effecting the grant of any Lien
on IP Rights owned by any Loan Party to the Administrative Agent, for the benefit of the Secured Parties, in accordance with this Agreement,
including any of the following: (a) a Trademark Security Agreement substantially in the form of Exhibit H-1 hereto, (b) a Patent
Security Agreement substantially in the form of Exhibit H-2 hereto or (c) a Copyright Security Agreement substantially in the form
of Exhibit H-3 hereto.
“Intercreditor Agreement”
means the Intercreditor Agreement substantially in the form of Exhibit N hereto, dated as of the Closing Date, among, inter
alios, the Second Lien Collateral Agent, as agent for the Second Lien Claimholders referred to therein, the Administrative Agent,
as agent for the First Lien Claimholders referred to therein, if applicable, the provider of any Additional Letter of Credit Facility
(or a representative thereof) and the Loan Parties from time to time party thereto.
“Interest Coverage
Ratio” means, as of any date of determination, the ratio for the most recently ended Test Period of (a) Consolidated Adjusted
EBITDA for such Test Period to (b) Ratio Interest Expense for such Test Period; provided that, for purposes of calculating the
Interest Coverage Ratio for any period ending prior to the first anniversary of the Closing Date, Ratio Interest Expense shall be an amount
equal to actual Ratio Interest Expense from the Closing Date through the date of determination multiplied by a fraction the numerator
of which is 365 and the denominator of which is the number of days from the Closing Date through the date of determination.
“Interest Election
Request” means a request by the Borrower in the form of Exhibit D hereto or another form reasonably acceptable to the
Administrative Agent to convert or continue a Borrowing in accordance with Section 2.08.
“Interest Payment
Date” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December (commencing
with the last Business Day of September 2017) or the maturity date applicable to such Loan and (b) with respect to any LIBO Rate Loan,
the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a LIBO Rate Borrowing
with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing.
“Interest Period”
means with respect to any LIBO Rate Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding
day in the calendar month that is one, two, three or six months (or, to the extent available to all relevant affected Lenders, twelve
months or, to the extent acceptable to all applicable Lenders, a shorter period) thereafter, as the Borrower may elect; provided
that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business
Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Investment”
means (a) any purchase or other acquisition by the Borrower or any of its Restricted Subsidiaries of any of the Securities of any other
Person (other than any Loan Party), (b) the acquisition by purchase or otherwise (other than any purchase or other acquisition of inventory,
materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the business, property or
fixed assets of any other Person or any division or line of business or other business unit of any other Person and (c) any loan, advance
(other than any advance to any current or former employee, officer, director, member of management, manager, consultant or independent
contractor of the Borrower, any Restricted Subsidiary or any Parent Company for moving, entertainment and travel expenses, drawing accounts
and similar expenditures or payroll expenses or advances in the ordinary course of business) or capital contribution by the Borrower or
any of its Restricted Subsidiaries to any other Person. Subject to Section 5.10, the amount of any Investment shall be the original
cost of such Investment, plus the cost of any addition thereto that otherwise constitutes an Investment, without any adjustments
for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but giving effect to any repayments
of principal in the case of any Investment in the form of a loan and any return of capital or return on Investment in the case of any
equity Investment (whether as a distribution, dividend, redemption or sale).
“Investors”
means (a) the Sponsor, (b) the Management Investors and (c) other investors identified to the Administrative Agent in writing that, directly
or indirectly, beneficially own Capital Stock in Holdings on the Closing Date.
“IP Rights” has the meaning assigned to such term
in Section 3.05(c).
“IPO Reorganization
Transaction” means any transaction taken in connection with and reasonably related to consummating a Qualifying IPO by the Borrower
or any Parent Company thereof so long as, after giving effect thereto, (a) the Loan Parties are in compliance with the Collateral and
Guarantee Requirements and Section 5.12 and (b) the security interest of the Secured Parties in the Collateral, taken as a whole,
is not materially impaired (including by a material portion of the assets that constitute Collateral immediately prior to such IPO Reorganization
Transaction no longer constituting Collateral) as a result of such IPO Reorganization Transaction.
“IRS” means the U.S. Internal Revenue Service.
“Issuing Bank”
means, as the context may require, (a) JPM, (b) solely with respect to any Existing Letter of Credit (and any amendment, renewal or extension
thereof in accordance with the terms of this Agreement), each Existing Letter of Credit Issuer and (c) each other Revolving Lender party
hereto from time to time that is appointed as an Issuing Bank in accordance with Section 2.05(i). Subject to the reasonable consent
of the Borrower (subject to the standards set forth in Section 9.05(b)), any Issuing Bank may, in its discretion, arrange for one
or more Letters of Credit to be issued by any Affiliate of such Issuing Bank, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“iStar Amendments”
means the iStar I Eighth Amendment, the iStar II Eighth Amendment and the iStar 2014 Amendment, individually or collectively (as the context
may require).
“iStar I Eighth Amendment”
means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers I LP, and solely with respect to the
Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and AMF Bowling Centers, Inc., as tenant.
“iStar II Eighth
Amendment” means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers II LP, as landlord,
and AMF Bowling Centers, Inc., as tenant.
“iStar 2014 Amendment”
means that certain lease amendment that is expected to be the “First Lease Amendment” in respect of the iStar Sale/Leaseback
2014 Documents, which is anticipated to include (among other things) certain changes generally consistent with the iStar I Eighth Amendment
and iStar II Eighth Amendment, to be entered into between BW Bowling Properties LP, and solely with respect to the Site (as defined in
subparagraph 34(n)(v) therein) located in Pennsylvania, BW Bowling Properties LLC, as landlord, and Leiserv, LLC and Brunswick Centres,
Inc., as tenant.
“iStar Exchange”
means those transactions described in Section 11 of each of the iStar I Eighth Amendment and the iStar II Eighth Amendment.
“iStar Exchange Documents”
means the agreements and other documents governing any iStar Exchange transaction, as more particularly described in each of the iStar
I Eighth Amendment and the iStar II Eighth Amendment.
“iStar Sale/Leaseback”
means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback Documents.
“iStar Sale/Leaseback
2014” means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback 2014 Documents.
“iStar Sale/Leaseback
2014 Documents” means (i) the Lease Agreement, dated as of September 18, 2014, by and among BW Bowling Properties LP, BW Bowling
Properties Canada Inc. and BW Bowling Properties LLC (collectively as landlord) and Leiserv, LLC and Brunswick Centres, Inc. (jointly
and severally, as tenant) and (ii) the Guaranty dated as of September 18, 2014 by Holdings in favor of BW Bowling Properties LP, BW Bowling
Properties Canada Inc. and BW Bowling Properties LLC, in each case as the same may be amended, modified or supplemented through the date
hereof and from time to time hereafter in accordance with the provisions thereof, and including all basic lease information and all other
agreements, documents and instruments relating to the iStar Sale/Leaseback 2014 and all exhibits and schedules to any of the foregoing.
“iStar Sale/Leaseback
Documents” means (I) (a) the Lease I Agreement dated as of February 27, 2004 between iStar Bowling Centers I LP, and solely
with respect to the Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and AMF Bowling Centers,
Inc., as tenant, as amended by (i) that certain First Lease Amendment dated as of June 30, 2004, intending to be effective as of February
27, 2004, (ii) that certain Second Lease Amendment dated as of February 3, 2005, intending to be effective as of February 27, 2004, (iii)
that certain Third Lease Amendment dated as of June 18, 2008, intending to be effective as of March 30, 2008, (iv) that certain Fourth
Lease Amendment dated and intended to be effective as of July 1, 2013, (v) that certain Fifth Lease Amendment dated and intended to be
effective as of September 25, 2013, (vi) that certain Sixth Lease Amendment dated and intended to be effective as of October 3, 2014,
(vii) that certain Amended and Restated Seventh Lease Amendment dated and intended to be effective as of September 9, 2016, and (viii)
the iStar I Eighth Amendment, (b) the Guaranty dated as of July 1, 2013 by Holdings in favor of iStar Bowling Centers I LP, and (II) (a)
the Lease II Agreement dated as of February 27, 2004 between iStar Bowling Centers II LP, as landlord, and AMF Bowling Centers, Inc.,
as tenant, as amended by (i) that certain First Lease Amendment dated as of June 30, 2004, intending to be effective as of February 27,
2004, (ii) that certain Second Lease Amendment dated as of February 3, 2005, intending to be effective as of February 27, 2004, (iii)
that certain Third Lease Amendment dated as of June 18, 2008, intending to be effective as of March 30, 2008, (iv) that certain Fourth
Lease Amendment dated and intended to be effective as of July 1, 2013, (v) that certain Fifth Lease Amendment dated and intended to be
effective as of September 25, 2013, (vi) that certain Sixth Lease Amendment dated and intended to be effective as of October 3, 2014,
(vii) that certain Amended and Restated Seventh Lease Amendment dated and intended to be effective as of February 23, 2017, and (viii)
the iStar II Eighth Amendment, and (b) the Guaranty dated as of July 1, 2013 by Holdings in favor of iStar Bowling Centers II LP, in each
case as the same may be amended, modified or supplemented through the date hereof and from time to time hereafter in accordance with the
provisions thereof, and including all basic lease information and all other agreements, documents and instruments relating to the iStar
Sale/Leaseback and all exhibits and schedules to any of the foregoing.
“Joint Venture”
means the Thousand Oaks Company, a Texas corporation, and any other joint venture, in the form of a corporation, limited liability company,
business trust, joint venture, association, company or partnership, entered into by the Borrower or any of its Subsidiaries which (i)
is engaged in a line of business in accordance with Section 5.16 and (ii) is formed or organized in a manner that limits the exposure
of the Borrower and its Subsidiaries for the liabilities thereof to (A) the Investments of the Borrower and its Subsidiaries therein permitted
under Section 6.06 and (B) any Indebtedness of any Joint Venture or any Guarantee by the Borrower or any of its Subsidiaries in respect
of such Indebtedness, which Indebtedness or Guarantee are permitted at the time under Section 6.01.
“Junior Indebtedness”
means any Indebtedness for borrowed money (other than Indebtedness among Holdings, the Borrower and/or its subsidiaries) of the Borrower
or any of its Restricted Subsidiaries that is a Loan Party that is expressly subordinated in right of payment to the Obligations.
“Junior Lien Indebtedness”
means any Indebtedness for borrowed money that is secured by a security interest on the Collateral (other than Indebtedness among Holdings,
the Borrower and/or its subsidiaries) that is expressly junior or subordinated to the Lien securing the Credit Facilities with respect
to the Collateral, including any “Term Loans” governed by the Second Lien Credit Agreement.
“Kingpin Intermediate”
means Kingpin Intermediate Holdings LLC, a Delaware limited liability company.
“Latest Maturity
Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder
at such time, including the latest maturity or expiration date of any Initial Term Loan, Additional Term Loan, Revolving Loan, Additional
Revolving Loan, Initial Revolving Credit Commitment or Additional Commitment.
“Latest Revolving
Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any revolving
loan or revolving credit commitment hereunder at
such time, including the latest maturity or expiration date of any Revolving Loan, any Additional Revolving Loan, the Revolving Credit
Commitment or any Additional Revolving Credit Commitment.
“Latest Term Loan
Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any term loan or
term commitment hereunder at such time, including the latest maturity or expiration date of any Additional Term Loan or Additional Term
Loan Commitment hereunder at such time.
“LC Collateral Account” has the meaning assigned
to such term in Section 2.05(j).
“LC Disbursement”
means a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
“LC Exposure”
means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the aggregate
principal amount of all LC Disbursements that have not yet been reimbursed at such time. The LC Exposure of any Revolving Lender at any
time shall equal its Applicable Percentage of the aggregate LC Exposure at such time.
“Legal Reservations”
means the application of relevant Debtor Relief Laws, general principles of equity and/or principles of good faith and fair dealing.
“Lenders”
means the Term Lenders, the Revolving Lenders, any Additional Lender, any lender with an Additional Commitment or an outstanding Additional
Loan and any other Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to be
a party hereto pursuant to an Assignment Agreement or as a result of the application of Section 9.05(g).
“Letter of Credit”
means any Standby Letter of Credit or Commercial Letter of Credit issued pursuant to this Agreement (and shall be deemed to include all
Existing Letters of Credit).
“Letter-of-Credit Right” has the meaning set forth
in Article 9 of the UCC.
“Letter of Credit
Sublimit” means $25,000,000, as increased from time to time in accordance with Section 2.22 hereof.
“LIBO Rate”
means, the Published LIBO Rate, as adjusted to reflect applicable reserves prescribed by governmental authorities; provided that,
(a) solely with respect to the Amendment No. 2 Term Loans (including, for the avoidance of doubt, the Amendment
No. 3 Incremental Term Loans), in no event shall the LIBO Rate be less than 1.00% per annum and (b) solely with respect to
the Initial Revolving Loans, in no event shall the LIBO Rate be less than 0.00% per annum.
“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capital Lease
having substantially the same economic effect as any of the foregoing), in each case, in the nature of security; provided that
in no event shall an operating lease in and of itself be deemed to constitute a Lien.
“Liquor License Subsidiaries”
means (i) as of the Closing Date, each of the Subsidiaries listed on Schedule 1.01(g) hereto and (ii) thereafter, any other Restricted
Subsidiary of the Borrower established solely for the purpose of satisfying applicable requirements of local Law with respect to the ownership and use of liquor licenses and which has entered into or has a bona fide intent to enter into
(A) a lease pursuant to which such Restricted Subsidiary leases, as lessee, from Holdings or one or more of its Subsidiaries (other than
another Liquor License Subsidiary) snack bar and related space at one or more bowling centers and (B) a management services agreement
with a Loan Party, pursuant to which such Loan Party provides employees, management and related services to such Subsidiary.
“Limited Condition
Transaction” means any acquisition, Investment, Disposition, Restricted Payment or Restricted Debt Payment permitted by this
Agreement, in each case whose consummation is not conditioned on the availability of, or on obtaining, third-party financing.
“Limited Recourse
Financing” means, with respect to any Person, Indebtedness to the extent: (i) such Person, subject to customary exceptions
for nonrecourse Indebtedness financing, shall not have personal liability with respect to the Indebtedness and the lender thereunder
shall only seek recourse for satisfaction of the Indebtedness against the property or collateral secured thereunder; and (ii) no
default with respect thereto would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the
Loans or Loans under any Second Lien Facility) of such Person to declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity.
“Loan Documents”
means this Agreement, any Promissory Note, each Loan Guaranty, the Collateral Documents, the Intercreditor Agreement, any Acceptable Intercreditor
Agreement and any other document or instrument designated by the Borrower and the Administrative Agent as a “Loan Document”,
including any Incremental Facility Amendment (including Amendment No. 1), Refinancing Amendment or Extension Amendment or any other amendment
hereto or thereto (including Amendment No. 2 and Amendment No. 3). Any reference in this Agreement
or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto.
“Loan Guaranty”
means (a) the Guaranty Agreement, substantially in the form of Exhibit I hereto, executed by each Loan Party party thereto and
the Administrative Agent for the benefit of the Secured Parties and (b) each other guaranty agreement executed by any Person pursuant
to Section 5.12 in substantially the form attached as Exhibit I hereto or another form that is otherwise reasonably satisfactory
to the Administrative Agent and the Borrower.
“Loan Installment Date” has the meaning assigned
to such term in Section 2.10(a).
“Loan Parties” means Holdings, the Borrower and
each Subsidiary Guarantor.
“Loans”
means any Initial Term Loan, any Additional Term Loan (including the Amendment No. 2 Term Loans and the
Amendment No. 3 Incremental Term Loans), any Revolving Loan, any Swingline Loan or any Additional Revolving Loan.
“Management Investors”
means the officers, directors, managers, employees and members of management of (i) the Borrower, (ii) any Parent Company and/or (iii)
any subsidiary of the Borrower (including, on the Closing Date, those of the Target and its subsidiaries) and the Immediate Family Members
of any of the foregoing.
“Margin Stock” has the meaning assigned to such
term in Regulation U.
“Market
Capitalization” means, at any date of determination pursuant to Section 1.04(e), the amount equal to (a) the total
number of then issued and outstanding shares of common Capital Stock of the Borrower or any Parent Company multiplied by (b)
the arithmetic mean of the closing prices per share of such common Capital Stock on the principal securities exchange on which such common Capital Stock are
traded for the 30 consecutive trading days immediately preceding such date.
“Market Intercreditor
Agreement” means an intercreditor or subordination agreement or arrangement the terms of which are either (a)(i) consistent
with market terms governing intercreditor arrangements for the sharing or subordination of liens or arrangements relating to the distribution
of payments, as applicable, at the time the applicable agreement or arrangement is proposed to be established in light of the type of
Indebtedness subject thereto or (ii) taken as a whole, not materially less favorable to the Lenders than the terms of any Acceptable Intercreditor
Agreement governing similar priorities that is then in effect, in each case as determined by the Borrower in good faith or (b) in the
event a “Market Intercreditor Agreement” has been entered into after the Closing Date meeting the requirement of the preceding
clause (a), the terms of which are, taken as a whole, not materially less favorable to the Lenders than the terms of such Market Intercreditor
Agreement to the extent such agreement governs similar priorities.
“Material
Adverse Effect” means (a) on the Closing Date, a Closing Date Material Adverse Effect and (b) after the Closing Date, a
material adverse effect on (i) the business, financial condition or results of operations, in each case, of the Borrower and its
Restricted Subsidiaries, taken as a whole or (ii) the material rights and remedies (taken as a whole) of the Administrative Agent
under the applicable Loan Documents.
“Material Debt Instrument”
means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged and delivered to the Administrative
Agent (or its bailee) pursuant to the Security Agreement.
“Material Real Estate
Asset” means any “fee-owned” Real Estate Asset acquired by any Loan Party after the Closing Date (other than as
part of the iStar Exchange or EAP Substitution) having a fair market value (as determined by the Borrower in good faith after taking into
account any liabilities with respect thereto that impact such fair market value) in excess of $12,500,000 as of the date of acquisition
thereof (provided that the aggregate fair market value of all properties acquired after the Closing Date and so excluded on account of
such dollar threshold (each determined at the time of such initial exclusion) shall not exceed $50,000,000).
“Maturity
Date” means (a) with respect to the Initial Revolving Facility, the Initial Revolving Credit Maturity Date, (b) with respect
to the Amendment No. 2 Term Loans, the (including
any Amendment No. 3 Incremental Term Loans), the
Initial Term Loan Maturity Date, (c) with respect to any other Replacement Term Loans or any Replacement Revolving Facility, the final
maturity date for such Replacement Term Loans or Replacement Revolving Facility, as the case may be, as set forth in the applicable Refinancing
Amendment, (d) with respect to any Incremental Facility, the final maturity date set forth in the applicable Incremental Facility Amendment
and (e) with respect to any Extended Revolving Credit Commitment or Extended Term Loans, the final maturity date set forth in the applicable
Extension Amendment.
“Maximum Rate” has the meaning assigned to such
term in Section 9.19.
“Merger Sub 1” has the meaning assigned to such
term in the Preamble to this Agreement.
“Merger Sub 1 Merger” has the
meaning assigned to such term in the Recitals to this Agreement.
“Merger Sub 2” has the meaning assigned to such
term in the Preamble to this Agreement.
“Merger Sub 2 Merger”
has the meaning assigned to such term in the Recitals to this Agreement.
“Mergers”
or “Merger” means the Merger Sub 1 Merger and/or the Merger Sub 2 Merger, as the context may require.
“MFN Provision” has the meaning assigned to such
term in Section 2.22(a)(v).
“Minimum Equity Percentage”
has the meaning assigned to such term in the Recitals to this Agreement.
“Minimum Extension Condition”
has the meaning assigned to such term in Section 2.23(b).
“Moody’s” means Moody’s
Investors Service, Inc.
“Mortgage”
means any mortgage, deed of trust, deed to secure debt or other agreement which conveys or evidences a Lien in favor of the Administrative
Agent, for the benefit of the Administrative Agent and the relevant Secured Parties, on any Material Real Estate Asset constituting Collateral.
“Mortgage Policy”
has the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement”.
“Multiemployer Plan”
means any employee benefit plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA, that is subject to the
provisions of Title IV of ERISA, and in respect of which the Borrower or any of its Restricted Subsidiaries, or any of their respective
ERISA Affiliates, makes or is obligated to make contributions or with respect to which any of them has any ongoing obligation or liability,
contingent or otherwise.
“Narrative Report”
means, with respect to the financial statements with respect to which it is delivered, a management discussion and narrative report describing
the operations of the Borrower and its Restricted Subsidiaries for the applicable Fiscal Quarter or Fiscal Year and for the period from
the beginning of the then-current Fiscal Year to the end of the period to which the relevant financial statements relate.
“Net Insurance/Condemnation
Proceeds” means an amount equal to: (a) any Cash payments or proceeds (including Cash Equivalents) received by the Borrower
or any of its Restricted Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder of any assets of
the Borrower or any of its Restricted Subsidiaries or (ii) as a result of the taking of any assets of the Borrower or any of its Restricted
Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets
to a purchaser with such power under threat of such a taking, minus (b) in respect of the Loan Parties or any of their respective subsidiaries,
Affiliates or direct or indirect equityholders (i) any actual out-of-pocket costs and expenses incurred in connection with the adjustment,
settlement or collection of any claims in respect thereof, (ii) payment of the outstanding principal amount of, premium or penalty, if
any, and interest and other amounts on any Indebtedness (other than the Loans, Indebtedness under any Second Lien Facility and any Indebtedness
secured by a Lien on the Collateral that is pari passu with or expressly subordinated to the Lien on the Collateral securing the
Secured Obligations) that is secured by a Lien on the assets in question and that is required to be repaid or otherwise comes due or would
be in default under the terms thereof as a result of such loss, taking or sale, (iii) in the case of a taking, the reasonable out-of-pocket
costs of putting any affected property in a safe and secure position, (iv) any selling costs and out-of-pocket expenses (including reasonable
broker’s fees or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums,
and related search and recording charges, deed or mortgage recording taxes, other expenses and brokerage, consultant and other customary
fees actually incurred in connection therewith and transfer and similar Taxes and the Borrower’s good faith estimate of income Taxes
paid or payable (including pursuant to Tax sharing arrangements or that are or would be imposed on intercompany distributions with such
proceeds)) in connection with any sale or taking of such assets as described in clause (a) of this definition, (v) any amounts
provided as a reserve in accordance with GAAP against any liabilities under any indemnification obligation or purchase price adjustments
associated with any sale or taking of such assets as referred to in clause (a) of this definition (provided that to the
extent and at the time any such amounts are released from such reserve, other than to make a payment for which such amount was reserved,
such amounts shall constitute Net Insurance/Condemnation Proceeds) and (vi) in the case of any covered loss or taking from any non- Wholly-Owned
Subsidiary, the pro rata portion thereof (calculated without regard to this clause (vi)) attributable to minority interests and
not available for distribution to or for the account of the Borrower or a Wholly-Owned Subsidiary as a result thereof.
“Net Proceeds”
means (a) with respect to any Disposition (including any Prepayment Asset Sale), the Cash proceeds (including Cash Equivalents and Cash
proceeds subsequently received (as and when received) in respect of non-cash consideration initially received), net of (with respect to
any Loan Party or its subsidiaries, Affiliates or direct or indirect equity owners) (i) selling costs and out-of-pocket expenses (including
broker’s fees or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums,
and related search and recording charges, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other
customary fees actually incurred in connection therewith and transfer and similar Taxes and the Borrower’s good faith estimate of
income Taxes paid or payable (including pursuant to Tax sharing arrangements or that are or would be imposed on intercompany distributions
with such proceeds) in connection with such Disposition), (ii) amounts provided as a reserve in accordance with GAAP against any liabilities
under any indemnification obligation or purchase price adjustment associated with such Disposition (provided that to the extent
and at the time any such amounts are released from such reserve, other than to make a payment for which such amount was reserved, such
amounts shall constitute Net Proceeds), (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness
(other than the Loans, Indebtedness under any Second Lien Facility and any other Indebtedness secured by a Lien on the Collateral that
is pari passu with or expressly subordinated to the Lien on the Collateral securing the Secured Obligations) which is secured by the asset
sold in such Disposition and which is required to be repaid or otherwise comes due or would be in default and is repaid (other than any
such Indebtedness that is assumed by the purchaser of such asset), (iv) Cash escrows (until released from escrow to the Borrower or any
of its Restricted Subsidiaries) from the sale price for such Disposition and (v) in the case of any Disposition by any non-Wholly-Owned
Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (v)) attributable to any
minority interest and not available for distribution to or for the account of the Borrower or a Wholly-Owned Subsidiary as a result thereof;
and (b) with respect to any issuance or incurrence of Indebtedness or Capital Stock, the Cash proceeds thereof, net of all Taxes and fees,
commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith.
“New Holdings”
means the Person that shall, immediately following the consummation of a Holdings Reorganization Transaction in accordance with the provisions
of the definition thereof, hold 100% of the Capital Stock of the Borrower.
“Non-Consenting Lender” has the meaning assigned
to such term in Section 2.19(b).
“Non-Debt Fund Affiliate”
means the Sponsor and any Affiliate of the Sponsor, other than any Debt Fund Affiliate.
“Notice of Intent to Cure”
has the meaning assigned to such term in Section 6.15(b).
“Obligations” means all
unpaid principal of and accrued and unpaid interest (including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, all LC
Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities and all other advances to, debts, liabilities
and obligations of the Loan Parties to the Lenders or to any Lender, the Administrative Agent, any Issuing Bank or any indemnified
party arising under the Loan Documents in respect of any Loan or Letter of Credit, whether direct or indirect (including those
acquired by assumption), absolute, contingent, due or to become due, now existing or hereafter arising.
“Organizational Documents”
means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its by-laws, (b) with respect
to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with respect to any general partnership,
its partnership agreement, (d) with respect to any limited liability company, its articles of organization or certificate of formation,
and its operating agreement or limited liability company agreement and (e) with respect to any other form of entity, such other organizational
documents required by local Requirements of Law or customary under the jurisdiction in which such entity is organized to document the
formation and governance principles of such type of entity. In the event that any term or condition of this Agreement or any other Loan
Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference
to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
“Other Applicable
Indebtedness” has the meaning assigned to such term in Section 2.11(b)(i).
“Other
Connection Taxes” means, with respect to any Lender or Administrative Agent, Taxes imposed as a result of a present or
former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely from such
recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, or engaged in any other transaction pursuant to or enforced any Loan Document, or sold or
assigned an interest in any Loan or Loan Document).
“Other Taxes”
means any and all present or future stamp, court or documentary taxes or any intangible, recording, filing or similar taxes, charges or
similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment
made pursuant to Section 2.19). For the avoidance of doubt, Other Taxes do not include any Excluded Taxes.
“Outstanding Amount”
means (a) with respect to Term Loans, Revolving Loans and Swingline Loans on any date, the amount of the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Loans and Swingline Loans,
as the case may be, occurring on such date, (b) with respect to any Letters of Credit, the aggregate amount available to be drawn under
such Letters of Credit after giving effect to any changes in the aggregate amount available to be drawn under such Letters of Credit or
the issuance or expiry of any Letters of Credit, including as a result of any LC Disbursements and (c) with respect to any LC Disbursements
on any date, the amount of the aggregate outstanding amount of such LC Disbursements on such date after giving effect to any disbursements
with respect to any Letter of Credit occurring on such date and any other changes in the aggregate amount of the LC Disbursements as of
such date, including as a result of any reimbursements by the Borrower of unreimbursed LC Disbursements.
“Parent” means A-B Parent LLC, a Delaware limited
liability company.
“Parent Company”
means (a) Holdings and (b) any other Person or group of Persons that are Affiliates of the Sponsor (but in any event not any portfolio
company of the Sponsor), of which the Borrower is an indirect Subsidiary.
“Participant” has the meaning assigned to such term
in Section 9.05(c).
“Participant Register” has the meaning assigned
to such term in Section 9.05(c).
“Patent” means the
following: (a) any and all patents and patent applications; (b) all inventions described and claimed therein; (c) all reissues,
divisions, continuations, renewals, extensions and continuations in part thereof; (d) all income, royalties, damages, claims and
payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for
past and future infringements thereof; (e) all rights to sue for past, present and future infringements thereof; and (f) all rights
corresponding to any of the foregoing.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan”
means any employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that is subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, which the Borrower or any of its Restricted Subsidiaries,
or any of their respective ERISA Affiliates, maintains or contributes to or has an obligation to contribute to, or otherwise has any liability
for, contingent or otherwise.
“Perfection Certificate” means a certificate substantially
in the form of Exhibit E.
“Perfection
Requirements” means (a) the filing of appropriate financing statements with the office of the Secretary of State or other
appropriate office in the state of organization of each Loan Party, (b) the filing of Intellectual Property Security Agreements or
other appropriate assignments or notices with the U.S. Patent and Trademark Office and/or the U.S. Copyright Office, as applicable,
(c) the proper recording or filing, as applicable, of Mortgages and fixture filings with respect to any Material Real Estate Asset
constituting Collateral, in each case in favor of the Administrative Agent for the benefit of the Secured Parties, (d) the delivery
to the Administrative Agent of any stock certificate or promissory note to the extent required to be delivered by the applicable
Loan Documents and (e) other filings, recordings and registrations necessary to perfect the Liens on the Collateral granted by the
Loan Parties in favor of the Administrative Agent or to enforce the rights of the Administrative Agent and the Secured Parties under
the Loan Documents.
“Permitted
Acquisition” means any acquisition by the Borrower or any of its Restricted Subsidiaries, whether by purchase, merger,
amalgamation or otherwise, of all or a substantial portion of the assets of, or any business line, unit or division or product line
(including research and development and related assets in respect of any product or facility) of, any Person or of a majority of the
outstanding Capital Stock of any Person (and, in any event, including any Investment in any Restricted Subsidiary which serves to
increase the Borrower’s or any Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary), in
each case if (1) such Person is or becomes a Restricted Subsidiary or (2) such Person, in one transaction or a series of related
transactions, is amalgamated, merged or consolidated with or into, or transfers or conveys all or a substantial portion of its
assets (or such division, business line, unit or product line or facility) to, or is liquidated into, the Borrower and/or any
Restricted Subsidiary as a result of such transaction; provided that (i) the target Person, assets, business or division in
respect of such acquisition is a business permitted under Section 5.16 and (ii) at the applicable time elected by the
Borrower in accordance with Section 1.04(e), with respect to such acquisition, no Event of Default under Section
7.01(a), (f) or (g) shall be continuing.
“Permitted
Earlier Maturity Indebtedness Exception” means, with respect to any Incremental Term Facility and any Incremental
Equivalent Debt permitted to be incurred hereunder, that up to $20,000,000 aggregate principal amount of such Indebtedness
outstanding at any time (the “Specified Debt”) may have a final maturity date that is earlier than, and a
Weighted Average Life to Maturity that is shorter than the remaining Weighted Average Life to maturity of, the Indebtedness with
respect to which the Specified Debt is otherwise required to have a later final maturity date or Weighted Average Life.
“Permitted Equity” has the
meaning assigned to such term in the Recitals to this Agreement.
“Permitted Holders” means
(a) the Investors, (b) the Shannon Holders and (c) any Person with which one or more Investors and/or the Shannon Holders form a
“group” (within the meaning of Section 14(d) of the Exchange Act as in effect on the date hereof) so long as, in the
case of this clause (c), the relevant Investors and /or the Shannon Holders collectively own more than 50% of the relevant
voting stock beneficially owned by the group.
“Permitted Liens” means Liens
permitted pursuant to Section 6.02.
“Permitted Payee”
means any future, current or former director, officer, member of management, manager, employee, independent contractor or consultant (or
any Immediate Family Member or transferee of any of the foregoing) of the Borrower (or any Parent Company or any subsidiary).
“Permitted Reorganization”
means any transaction or undertaking, including Investments, in connection with internal reorganizations and or restructurings (including
in connection with tax planning and corporate reorganizations), so long as, after giving effect thereto, (a) the Loan Parties shall comply
with the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest of the Secured Parties in the Collateral,
taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral immediately prior
to such Permitted Reorganization no longer constituting Collateral) as a result of such Permitted Reorganization.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or any other entity.
“Preferred Capital
Stock” means any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution or winding
up.
“Prepayment Asset
Sale” means any Disposition by the Borrower or its Restricted Subsidiaries made pursuant to Section 6.07(h).
“Primary Obligor” has the meaning
assigned to such term in the definition of “Guarantee”.
“Prime Rate” means (a)
the rate of interest publicly announced, from time to time, by the Administrative Agent at its principal office in New York City as
its “prime rate,” with the understanding that the “prime rate” is one of the Administrative Agent’s
base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated
for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal
publications as the Administrative Agent may designate or (b) if the Administrative Agent has no “prime rate,” the rate
of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street
Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve
Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer
quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the
Federal Reserve Board (as reasonably determined by the Administrative Agent).
“Pro Forma Basis”
or “pro forma effect” means, with respect to any determination of the Total Leverage Ratio, the First Lien Leverage
Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated
Total Assets (including component definitions thereof) that each Subject Transaction shall be deemed to have occurred as of the first
day of the applicable Test Period (or, in the case of Consolidated Total Assets (or with respect to any determination pertaining to the
balance sheet, including the acquisition of Cash and Cash Equivalents in connection with an acquisition of a Person, business line, unit,
division or product line), as of the last day of such Test Period) with respect to any test or covenant for which such calculation is
being made and that:
(a) (i)
in the case of (A) any Disposition of all or substantially all of the Capital Stock of any Restricted Subsidiary or any division and/or
product line of the Borrower or any Restricted Subsidiary or (B) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary,
income statement items (whether positive or negative) attributable to the property or Person subject to such Subject Transaction, shall
be excluded as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination
is being made and (ii) in the case of any Permitted Acquisition, Investment and/or designation of an Unrestricted Subsidiary as a Restricted
Subsidiary described in the definition of the term “Subject Transaction”, income statement items (whether positive or negative)
attributable to the property or Person subject to such Subject Transaction shall be included as of the first day of the applicable Test
Period with respect to any test or covenant for which the relevant determination is being made; provided that any pro forma adjustment
may be applied to any such test or covenant solely to the extent that such adjustment is consistent with, subject to the limitations set
forth in and without duplication with respect to the application of, the definition of “Consolidated Adjusted EBITDA”,
(b) any
Expected Cost Savings as a result of any Cost Savings Initiative shall be calculated on a pro forma basis as though such Expected Costs
Savings had been realized on the first day of the applicable Test Period and as if such Expected Cost Savings were realized in full during
the entirety of such period; provided that any pro forma adjustment may be applied to any such test or covenant solely to the extent that
such adjustment is consistent with, subject to the limitations set forth in and without duplication with respect to the application of,
the definition of “Consolidated Adjusted EBITDA”,
(c) any
retirement or repayment of Indebtedness (other than normal fluctuations in revolving Indebtedness incurred for working capital purposes)
shall be deemed to have occurred as of the first day of the applicable Test Period with respect to any test or covenant for which the
relevant determination is being made,
(d) any
Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in connection therewith shall be deemed to have occurred as
of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being made;
provided that (x) if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest
for the applicable Test Period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect
to such Indebtedness at the relevant date of determination (taking into account any interest hedging arrangements applicable to such Indebtedness),
(y) interest on any obligation with respect to any Capital Lease shall be deemed to accrue at an interest rate determined by a Responsible
Officer of the Borrower in good faith to be the rate of interest implicit in such obligation in accordance with GAAP and (z) interest
on any Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a Eurocurrency
interbank offered rate or other rate shall be determined to have been based upon the rate actually chosen, or if none, then based upon
such optional rate chosen by the Borrower, and
(e) the
acquisition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total Assets, whether pursuant to
any Subject Transaction or any Person becoming a subsidiary or merging, amalgamating or consolidating with or into the Borrower or any
of its subsidiaries, or the Disposition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total
Assets described in the definition of “Subject Transaction” shall be deemed to have occurred as of the last day of the applicable
Test Period with respect to any test or covenant for which such calculation is being made.
In the case of any calculation
of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio or Consolidated Total
Assets for any event described above that occurs prior to the date on which financial statements have been (or are required to be) delivered
pursuant to Section 5.01(b) for the Fiscal Year ended on or about June 30, 2017, any such calculation required to be made on a “Pro
Forma Basis” shall use the consolidated financial statements of Holdings delivered to the Arrangers for the Fiscal Quarter ended
April 2, 2017. Notwithstanding anything to the contrary set forth in the immediately preceding paragraph, for the avoidance of doubt,
when calculating the First Lien Leverage Ratio for purposes of the definitions of “Applicable Rate” and “Commitment
Fee Rate” and for purposes of Section 6.15 (other than for the purpose of determining pro forma compliance with Section
6.15 as a condition to taking any action under this Agreement), the events described in the immediately preceding paragraph that occurred
subsequent to the end of the applicable Test Period shall not be given pro forma effect.
“Projections”
means the projections of the Borrower and its Subsidiaries included in the Information Memorandum (or a supplement thereto).
“Promissory Note”
means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of Exhibit G
hereto, evidencing the aggregate outstanding principal amount of Loans of the Borrower to such Lender resulting from the Loans made by
such Lender.
“Public Company Costs”
means Charges associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection therewith and Charges relating to compliance with the provisions of the Securities
Act and the Exchange Act (and in each case, any similar Requirement of Law under any other applicable jurisdiction), as applicable to
companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity or
debt securities, directors’, compensation, fees and expense reimbursement, Charges relating to investor relations, shareholder meetings
and reports to shareholders or debtholders, directors’ and officers’ insurance, listing fees and all executive, legal and
professional fees related to the foregoing.
“Published LIBO
Rate” means, with respect to any Interest Period when used in reference to any Loan or Borrowing, (a) the rate of interest
(rounded upwards, if necessary, to the nearest 1/100th) appearing on Reuters Screen LIBOR01
Page (or on any successor or substitute page of such service, or any successor to such service as determined by Administrative Agent)
as the London interbank offered rate for deposits in Dollars for a term comparable to such Interest Period, at approximately 11:00 a.m.
(London time) on the date which is two Business Days prior to the commencement of such Interest Period (but if more than one rate is
specified on such page, the rate will be an arithmetic average of all such rates) and (b) if such rate is not available at such time
for any reason, then the “Published LIBO Rate” for such Interest Period shall be the interest rate per annum reasonably determined
by the Administrative Agent in good faith to be the rate per annum at which deposits in Dollars for delivery on the first day of such
Interest Period in immediately available funds in the approximate amount of the LIBO Rate Loan being made, continued or converted by
the Administrative Agent and with a term equivalent to such Interest Period would be offered to the Administrative Agent by major banks
in the London or other offshore interbank market for Dollars at their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period; provided that if such rate as determined above is at any time negative,
the Published LIBO Rate at such time shall instead be zero.
“Qualified Capital
Stock” of any Person means any Capital Stock of such Person that is not Disqualified Capital Stock.
“Qualified Receivables
Facility” means any Receivables Facility that meets the following conditions: (a) the Borrower shall have determined in good
faith that such Receivables Facility (including financing terms, covenants, termination events and other provisions) is in the aggregate
economically fair and reasonable to the Borrower and its Restricted Subsidiaries; (b) all sales of Receivables Facility Assets and related
assets by the Borrower or any Restricted Subsidiary to the Receivables Subsidiary or any other Person are made at fair market value (as
determined in good faith by the Borrower); (c) the financing terms, covenants, termination events and other provisions thereof shall be
on market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings; and (d) the obligations
under such Receivables Facility are non-recourse (except for customary representations, warranties, covenants and indemnities made in
connection with such facilities) to the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary).
“Qualifying Bid”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Qualifying IPO”
means any transaction or series of related transactions that results in any of the common Capital Stock of Holdings, any Parent Company
or the Borrower being publicly traded on any U.S. national securities exchange or any analogous exchange or any recognized securities
exchange in Canada, the United Kingdom or any country in the European Union.
“Qualifying Lender”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Ratio Interest Expense”
means, with respect to any Person for any period, (a) consolidated total cash interest expense of such Person and its Restricted Subsidiaries
for such period, (i) including the interest component of any payment under any Capital Lease (regardless of whether accounted for as interest
expense under GAAP) and (ii) excluding (A) amortization, accretion or accrual of deferred financing fees, original issue discount, debt issuance costs, discounted liabilities, commissions, fees and expenses,
(B) any expense arising from any bridge, commitment, structuring and/or other financing fee (including fees and expenses associated with
the Transactions, the Amendment No. 1 Transactions, the Amendment No. 2 Transactions, the Amendment No. 3
Transactions and agency and trustee fees), (C) any expense resulting from the discounting of Indebtedness in connection with
the application of recapitalization accounting or, if applicable, acquisition accounting, (D) fees and expenses associated with any Dispositions,
acquisitions, Investments, issuances of Capital Stock or Indebtedness (in each case, whether or not consummated), (E) costs associated
with obtaining, or breakage costs in respect of, any Hedge Agreement or any other derivative instrument other than any interest rate Hedge
Agreement or interest rate derivative instrument with respect to Indebtedness, (F) penalties and interest relating to Taxes, (G) any “additional
interest” or “liquidated damages” for failure to timely comply with registration rights obligations, (H) interest expense
with respect to Indebtedness of any Parent Company of such Person appearing on the balance sheet of such Person solely by reason of push-down
accounting under GAAP, (I) any payments with respect to make-whole, prepayment or repayment premiums or other breakage costs of any Indebtedness,
(J) any interest expense attributable to the exercise of appraisal rights or other rights of dissenting shareholders and the settlement
of any claims or actions (whether actual, contingent or potential) with respect thereto in connection with the Transactions or any acquisition
or Investment permitted hereunder and (K) for the avoidance of doubt, any non-cash interest expense attributable to any movement in the
mark to market valuation of any obligation under any Hedge Agreement or any other derivative instrument and/or any payment obligation
arising under any Hedge Agreement or derivative instrument other than any interest rate Hedge Agreement or interest rate derivative instrument
with respect to Indebtedness minus (b) cash interest income for such period. For purposes of this definition, (x) interest in respect
of any Capital Lease shall be deemed to accrue at an interest rate determined by such Person in good faith to be the rate of interest
implicit in such Capital Lease in accordance with GAAP and (y) for the avoidance of doubt, unless already included in the calculation
of interest expense, interest expense shall be calculated after giving effect to any payments made or received under any Hedge Agreement
or any other derivative instrument with respect to Indebtedness.
“Real Estate Asset”
means, at any time of determination, all right, title and interest of any Loan Party in and to any and all parcels of or interests in
real property owned, leased or subleased by a Loan Party (including, but not limited to, land, improvements and fixtures thereon) of such
Loan Party.
“Receivables Facility”
means any of one or more receivables financing facilities or securitization financing facilities as amended, supplemented, modified, extended,
renewed, restated or refunded from time to time, pursuant to which the Borrower or any of the Restricted Subsidiaries sells or grants
a security interest in its Receivables Facility Assets to either (a) a Person that is not a Restricted Subsidiary or (b) a Restricted
Subsidiary or Receivables Subsidiary that in turn funds such purchase by selling or granting a security interest in its Receivables Facility
Assets to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables Subsidiary that
in turn funds itself by borrowing from such a Person, in each case, that constitutes a Qualified Receivables Facility.
“Receivables Facility
Asset” means (a) any accounts receivable, revenue stream or other right of payment, real estate asset, mortgage receivable or
related asset and (b) contract rights, lockbox accounts and records with respect to such assets customarily transferred therewith, in
each case subject to a Receivables Facility.
“Receivables Fees”
means distributions or payments made directly or by means of discounts with respect to any Receivables Facility Asset or participation
interest therein issued or sold in connection with, and other fees and expenses paid to a Person that is not a Restricted Subsidiary in
connection with, any Receivables Facility.
“Receivables Subsidiary”
means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities, and in each case engages
only in activities reasonably related or incidental thereto or another Person formed for the purposes of engaging in a Receivables Facility
in which the Borrower or any subsidiary makes an Investment and to which the Borrower or any subsidiary transfers Receivables Facility
Assets.
“Refinancing” has the meaning assigned to such term
in Section 4.01(h).
“Refinancing
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent and the
Borrower executed by (a) Holdings and the Borrower, (b) the Administrative Agent and (c) each Lender that agrees to provide all or
any portion of the Replacement Term Loans or the Replacement Revolving Facility, as applicable, being incurred pursuant thereto and
in accordance with Section 9.02(c).
“Refinancing Indebtedness” has the meaning assigned
to such term in Section 6.01(p).
“Refunding Capital Stock” has the meaning assigned
to such term in Section 6.04(a)(viii).
“Register” has the meaning assigned to such term
in Section 9.05(b).
“Regulation U”
means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Regulation X”
means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Related Funds”
means with respect to any Lender that is an Approved Fund, any other Approved Fund that is managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the respective directors, managers, officers, trustees,
employees, partners, agents, advisors and other representatives of such Person and such Person’s Affiliates.
“Release” means any release,
spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration
of any Hazardous Material into the indoor or outdoor environment (including the abandonment of any barrels, containers or other closed
receptacles containing any Hazardous Material).
“Replaced Revolving Facility” has the meaning assigned
to such term in Section 9.02(c).
“Replaced Term Loans” has the meaning assigned to
such term in Section 9.02(c).
“Replacement Debt” means any Refinancing Indebtedness
(whether borrowed in the form of secured or unsecured loans, issued in a public offering, Rule 144A under the Securities Act or other
private placement or bridge financing in lieu of the foregoing or otherwise) incurred in respect of Indebtedness permitted under Section
6.01(a) (and any subsequent refinancing of such Replacement Debt).
“Replacement Revolving Facility” has the meaning
assigned to such term in Section 9.02(c).
“Replacement Term Loans” has the meaning assigned
to such term in Section 9.02(c).
“Reply Amount” has the meaning assigned to such
term in the definition of “Dutch Auction”.
“Reply Price” has the meaning assigned to such term
in the definition of “Dutch Auction”.
“Representation and Warranty
Insurance Policy” means the representation and warranty insurance policy obtained by the Sponsor in connection with the
Mergers.
“Representative” has the meaning
assigned to such term in Section 9.13.
“Repricing Transaction”
means each of (a) the optional prepayment (or mandatory prepayment pursuant to Section 2.11(b)(iii)), repayment, refinancing, substitution
or replacement of all or a portion of the Amendment No. 2 Term Loans substantially concurrently with the incurrence by any Loan Party
of any broadly syndicated term loans secured on a pari passu basis with the Amendment No. 2 Term Loans (including any first-lien
secured Replacement Term Loans) having an Effective Yield that is less than the Effective Yield applicable to the Amendment No. 2 Term
Loans so prepaid, repaid, refinanced, substituted or replaced and (b) any amendment, waiver or other modification to this Agreement that
would have the effect of reducing the Effective Yield applicable to the Amendment No. 2 Term Loans; provided that the primary purpose
(as determined by the Borrower in good faith) of such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver
or other modification was to reduce the Effective Yield applicable to the Amendment No. 2 Term Loans; provided, further, that in
no event shall any such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification in connection
with a Change of Control, Qualifying IPO or Transformative Acquisition constitute a Repricing Transaction. Any determination by the Administrative
Agent of the Effective Yield for purposes of the definition shall be conclusive and binding on all Lenders, and the Administrative Agent
shall have no liability to any Person with respect to such determination absent bad faith, gross negligence or willful misconduct.
“Required Excess
Cash Flow Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 4.00:1.00,
50%, (b) if the First Lien Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.50:1.00, 25% and (c) if the First Lien
Leverage Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies
to the determination of the amount of Excess Cash Flow that is required to be applied to prepay Subject Loans under Section 2.11(b)(i)
for any Excess Cash Flow Period, the First Lien Leverage Ratio shall be determined on the scheduled date of prepayment (after giving pro
forma effect to such prepayment and to any other repayment or prepayment at or prior to the time such Excess Cash Flow prepayment is due).
“Required Lenders”
means, at any time, Lenders having Loans or unused Revolving Credit Commitments or Additional Commitments representing more than 50% of
the sum of the total Loans and such unused commitments at such time.
“Required Net Proceeds
Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 4.00:1.00, 100%, (b)
if the First Lien Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.50:1.00, 50% and (c) if the First Lien Leverage
Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies to the
determination of the amount of Net Proceeds or Net Insurance/Condemnation Proceeds that are required to be applied to prepay Subject Loans
under Section 2.11(b)(ii) for any payment, the First Lien Leverage Ratio shall be determined on the date on which such proceeds
are received by the applicable Borrower or Restricted Subsidiary (giving pro forma effect to the subject Dispositions and/or casualty
events and the application of the relevant proceeds thereof).
“Required Revolving
Lenders” means, at any time, Lenders having Initial Revolving Loans, Additional Revolving Loans, unused Initial Revolving Credit
Commitments or unused Additional Revolving Credit Commitments representing more than 50% of the sum of the total Initial Revolving Loans,
Additional Revolving Loans and such unused Revolving Credit Commitments at such time.
“Requirements of
Law” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational or
international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions,
decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other
determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having the force of law
and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer”
of any Person means the chief executive officer, the president, the chief financial officer, the treasurer, any assistant treasurer, any
executive vice president, any senior vice president, any vice president or the chief operating officer of such Person and any other individual
or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement, and, as
to any document delivered on the Closing Date, shall include any secretary or assistant secretary or any other individual or similar official
thereof with substantially equivalent responsibilities of a Loan Party and, solely for purposes of notices given pursuant to Article
2, any other officer of the applicable Loan Party so designated by any of the foregoing officers in a written notice to the Administrative
Agent (including, for the avoidance of doubt, by electronic means). Any document delivered hereunder that is signed by a Responsible Officer
of any Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on
the part of such Loan Party, and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Responsible Officer
Certification” means, with respect to the financial statements for which such certification is required, the certification of
a Responsible Officer of the Borrower that such financial statements fairly present, in all material respects, in accordance with GAAP,
the consolidated financial condition of the Borrower as at the dates indicated and its consolidated income and cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end adjustments and, in the case of quarterly financial statements,
the absence of footnotes.
“Restricted Amount” has the meaning set forth in
Section 2.11(b)(iv).
“Restricted Debt”
means any Junior Indebtedness and any Junior Lien Indebtedness, in each case to the extent the outstanding principal amount thereof is
equal to or greater than the Threshold Amount.
“Restricted Debt Payment” has the meaning set forth
in Section 6.04(b).
“Restricted Payment”
means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of the Borrower, except a dividend
payable solely in shares of Qualified Capital Stock (or in options, warrants or other rights to purchase such Qualified Capital Stock)
to the holders of such class, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value
of any shares of any class of the Capital Stock of the Borrower and (c) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of the Capital Stock of the Borrower now or hereafter outstanding.
The amount of any Restricted Payment (other than Cash) shall be the fair market value, as determined in good faith by the Borrower on
the applicable date set forth in Section 1.04(e), of the assets or securities proposed to be transferred or issued by the Borrower
pursuant to such Restricted Payment.
“Restricted Subsidiary”
means, as to any Person, any subsidiary of such Person that is not an Unrestricted Subsidiary. Unless otherwise specified, “Restricted
Subsidiary” shall mean any Restricted Subsidiary of the Borrower.
“Return Bid” has the meaning
assigned to such term in the definition of “Dutch Auction”.
“Revolving Credit
Commitment” means any Initial Revolving Credit Commitment and any Additional Revolving Credit Commitment.
“Revolving Credit
Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of such Lender’s
Initial Revolving Credit Exposure and Additional Revolving Credit Exposure.
“Revolving Facility”
means the Initial Revolving Facility and, if applicable, any Incremental Revolving Facility, any facility governing any Extended Revolving
Credit Commitment or Extended Revolving Loans and any Replacement Revolving Facility.
“Revolving Facility
Test Condition” means, as of any date of determination, without duplication, that the aggregate Outstanding Amount of (a) all
Revolving Loans (including Swingline Loans) as of such date, (b) LC Disbursements as of such date that have not been reimbursed within
three Business Days and (c) Letters of Credit (excluding (i) any Letter of Credit to the extent cash collateralized or back-stopped and
(ii) other Letters of Credit (or any portion thereof) in an aggregate face amount up to $15,000,000 (with only such Letter of Credit amounts
in excess of $15,000,000 being applied for purposes hereof)) exceeds an amount equal to 35% of the Total Revolving Credit Commitment.
“Revolving Lender”
means any Initial Revolving Lender and any Additional Revolving Lender. Unless the context otherwise requires, the term “Revolving
Lenders” shall include the Swingline Lender.
“Revolving Loans”
means any Initial Revolving Loans and any Additional Revolving Loans.
“S&P”
means Standard & Poor’s Financial Services LLC, a subsidiary of the McGraw-Hill Companies, Inc.
“Sale and Lease-Back Transaction”
has the meaning assigned to such term in Section 6.08.
“Sanctioned Country”
means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this
Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“Sanctioned Person”
means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets
Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State, (b) any Person operating,
organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing
clause (a).
“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the Office of Foreign
Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State.
“Scheduled Consideration”
has the meaning assigned to such term in Section 2.11(b)(i).
“SEC” means the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of its functions.
“Second Lien Claimholders” has the meaning set forth
in the Intercreditor Agreement.
“Second Lien Collateral Agent” has the meaning set
forth in the Intercreditor Agreement.
“Second Lien Credit
Agreement” means the Second Lien Credit Agreement, dated as of the Closing Date, among, inter alios, Holdings, the
Borrower and Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent and the lenders from time to time
party thereto.
“Second Lien Facility”
means the credit facility governed by the Second Lien Credit Agreement and one or more debt facilities or other financing arrangements
(including indentures) providing for loans, notes or other long-term indebtedness that replace or refinance such facility or other financing
arrangement, including any such replacement or refinancing facility or indenture or other financing arrangement that increases or decreases
the amount permitted to be borrowed thereunder or alters the maturity thereof and whether by the same or any other agent, lender or group
of lenders, and any amendments, supplements, modifications, extensions, renewals, restatements, amendments and restatements or refundings
thereof or any such indentures or facilities or other financing arrangement that replace or refinance such credit facility (or any subsequent
replacement thereof), in each case to the extent permitted or not restricted by this Agreement.
“Secured Hedging
Obligations” means all Hedging Obligations (other than any Excluded Swap Obligations) under each Hedge Agreement that (a) is
in effect on the Closing Date between any Loan Party and a counterparty that is the Administrative Agent, a Lender, an Arranger or any
Affiliate of the Administrative Agent, a Lender or an Arranger as of the Closing Date or (b) is entered into after the Closing Date between
any Loan Party and any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger at the time such
Hedge Agreement is entered into, for which such Loan Party agrees to provide security and in each case that has been designated to the
Administrative Agent in writing by the Borrower as being a Secured Hedging Obligation for purposes of the Loan Documents, it being understood
that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan Documents
and (B) to agree to be bound by the provisions of Article 8, Sections 9.03 and 9.10 and the Intercreditor Agreement
and each other Acceptable Intercreditor Agreement as if it were a Lender.
“Secured Leverage
Ratio” means the ratio, as of any date of determination, of (a) Consolidated Secured Debt as of such date to (b) Consolidated
Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “Secured Leverage
Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries; provided that solely for
purposes of calculating the Secured Leverage Ratio in connection with the incurrence of Incremental Equivalent Debt, clause (a) of this
definition shall also include Consolidated Total Debt as of such date that is secured by a Lien on any non-Collateral assets of the Borrower
or any Restricted Subsidiary.
“Secured Obligations”
means all Obligations, together with (a) all Banking Services Obligations and (b) all Secured Hedging Obligations; provided that
Banking Services Obligations and Secured Hedging Obligations shall cease to constitute Secured Obligations on and after the Termination
Date.
“Secured Parties”
means (i) the Lenders, the Swingline Lender and each Issuing Bank, (ii) the Administrative Agent, (iii) each counterparty to a Hedge Agreement
with a Loan Party the obligations under which constitute Secured Obligations, (iv) each provider of Banking Services to any Loan Party
the obligations under which constitute Secured Obligations, (v) the Arrangers and (vi) the beneficiaries of each indemnification obligation
undertaken by any Loan Party under any Loan Document.
“Securities”
means any stock, shares, units, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares
or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing; provided that the term “Securities” shall not include any earn-out agreement or obligation or
any employee bonus or other incentive compensation plan or agreement.
“Securities Act”
means the Securities Act of 1933 and the rules and regulations of the SEC promulgated thereunder.
“Securitization Repurchase
Obligation” means any obligation of a seller (or any guaranty of such obligation) of assets subject to a Qualified Receivables
Facility to repurchase such assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including,
without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim
of any kind as a result of any action taken by, any failure to take action by or any other event relating to such seller.
“Security Agreement”
means the First Lien Pledge and Security Agreement, substantially in the form of Exhibit J, among the Loan Parties and the Administrative
Agent for the benefit of the Secured Parties.
“Series A Preferred
Stock” means the shares of preferred stock of Holdings, designated as “Series A Preferred Stock”, having the terms
set forth in the certificate of incorporation of the Target, as amended and restated in connection with the Merger Sub I Merger.
“Shannon Holders”
means (i) Thomas Shannon, (ii) Cobalt Recreation LLC, (iii) any Immediate Family Member of Thomas Shannon, (iv) a trust, family-partnership
or estate-planning vehicle or other legal entity substantially all the economic interests of which are held by or for the benefit of Thomas
Shannon and/or any of his Immediate Family Members and (v) any other Affiliate of Thomas Shannon or any other Shannon Holder, including
The Cobalt Group LLC.
“Shared Incremental
Amount” means, as of any date of determination, (a) the greater of (i) $105,000,000 and (ii) 75% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period minus (b) (i) the aggregate principal amount of all
Incremental Facilities and/or Incremental Equivalent Debt originally incurred or issued in reliance on the Shared Incremental Amount
outstanding on such date and (ii) the aggregate principal amount of “Incremental Loans” and “Incremental
Equivalent Debt” (each as defined in the Second Lien Credit Agreement or any equivalent term under any documentation governing
any Second Lien Facility) originally incurred or issued in reliance on the Shared Incremental Amount outstanding on such date, in
each case after giving effect to any reclassification of any such Indebtedness as having been incurred under clause (e) of
the definition of “Incremental Cap” hereunder or clause (e) of the definition of “Incremental Cap”
(as defined in the Second Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien
Facility).
“Similar Business”
means any Person the majority of the revenues of which are derived from a business that would be permitted by Section 5.16 if
the references to “Restricted Subsidiaries” in Section 5.16 were read to refer to such Person.
“SLB Property”
means the real property interests (and Bowling Equipment and other tangible personal property located thereon) that are subject to the
iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“SPC” has the meaning assigned to such term in Section
9.05(e).
“Specified Acquisition
Agreement Representations” means the representations and warranties made by or on behalf of the Target, its subsidiaries or
their respective businesses in the Acquisition Agreement which are material to the interests of the Lenders, but only to the extent that
Merger Sub (or its applicable affiliate) has the right to terminate its obligations under the Acquisition Agreement or to decline to consummate
the Acquisition as a result of a breach of such representations and warranties.
“Specified Representations”
means the representations and warranties set forth in Section 3.01(a)(i) (as it relates to Holdings and the Borrower), Section
3.02 (as it relates to the due authorization, execution, delivery and performance of the Loan Documents and the enforceability thereof),
Section 3.03(b)(i) (limited to the execution, delivery and performance of the Loan Documents, incurrence of the Indebtedness thereunder
and the granting of Guarantees and Liens in respect thereof), Section 3.08, Section 3.12, Section 3.14 (as it relates
to the creation, validity and perfection of the security interests in the Collateral, subject to the last sentence of Section 4.01),
Section 3.16 and Sections 3.17(a)(ii) and (c).
“Sponsor”
means Atairos Group, Inc. and the funds, partnerships, investment vehicles or other co-investment vehicles or other entities managed,
advised or controlled by Atairos Group, Inc. or its Affiliates (but in any event excluding any portfolio company of any of the foregoing).
“Standard Securitization
Undertakings” means representations, warranties, covenants and indemnities entered into by the Borrower or any Subsidiary of
the Borrower which the Borrower has determined in good faith to be customary in a Receivables Facility, including, without limitation,
those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Securitization Repurchase Obligation
shall be deemed to be a Standard Securitization Undertaking.
“Standby Letter of Credit” means any Letter of
Credit other than any Commercial Letter of Credit.
“Stated Amount”
means, with respect to any Letter of Credit, at any time, the maximum amount available to be drawn thereunder, in each case determined
(x) as if any future automatic increases in the maximum available amount provided for in any such Letter of Credit had in fact occurred
at such time and (y) without regard to whether any conditions to drawing could then be met but after giving effect to all previous drawings
made thereunder.
“Subject Loans”
means, as of any date of determination, (a) Initial Term Loans and (b) any Additional Term Loans that are subject to ratable prepayment
requirements in accordance with Section 2.11(b) on such date of repayment.
“Subject Person”
has the meaning assigned to such term in the definition of “Consolidated Net Income”.
“Subject Proceeds” has the meaning assigned to such
term in Section 2.11(b)(ii).
“Subject Transaction”
means, with respect to any Test Period, (a) the Transactions, (b) any Permitted Acquisition or any other acquisition, whether by purchase,
merger, amalgamation or otherwise, of all or substantially all of the assets of, or any business line, unit or division of, any Person
or any facility, or of a majority of the outstanding Capital Stock of any Person (but in any event including any Investment in any Restricted
Subsidiary which serves to increase the Borrower’s or any Restricted Subsidiary’s respective equity ownership in such Restricted
Subsidiary), in each case that is permitted by this Agreement, (c) any Disposition of all or substantially all of the assets or Capital
Stock of a subsidiary (or any business unit, line of business or division of the Borrower or a Restricted Subsidiary) not prohibited by
this Agreement, (d) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted
Subsidiary in accordance with Section 5.10 hereof, (e) any incurrence or repayment of Indebtedness (other than revolving Indebtedness),
(f) any Cost Savings Initiative and/or (g) any other event that by the terms of the Loan Documents requires pro forma compliance with
a test or covenant hereunder or requires such test or covenant to be calculated on a pro forma basis.
“Subsidiary”
or “subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of the total voting power of stock or other ownership interests entitled
(without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or
other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is
at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or a combination
thereof; provided that in determining the percentage of ownership interests of any Person controlled by another Person, no ownership
interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding. Unless otherwise specified,
“subsidiary” shall mean any subsidiary of the Borrower.
“Subsidiary Guarantor”
means (x) on the Closing Date, each subsidiary of the Borrower (other than any subsidiary that is an Excluded Subsidiary on the Closing
Date) and (y) thereafter, each subsidiary of the Borrower that becomes a guarantor of the Secured Obligations pursuant to the terms of
this Agreement, in each case, until such time as the relevant subsidiary is released from its obligations under the Loan Guaranty in accordance
with the terms and provisions hereof. Notwithstanding the foregoing, the Borrower may from time to time, upon notice to the Administrative
Agent (or in the case of a Foreign Subsidiary, the prior written consent of the Administrative Agent (not to be unreasonably withheld
or delayed)), elect to cause any subsidiary that would otherwise be an Excluded Subsidiary to become a Subsidiary Guarantor hereunder
(but shall have no obligation to do so), subject to the satisfaction of guarantee and collateral requirements consistent with the Collateral
and Guarantee Requirements or otherwise reasonably acceptable to the Borrower and the Administrative Agent (which shall include, in the
case of a Foreign Subsidiary, guarantee and collateral requirements customary under local law, including customary local limitations).
“Successor Borrower” has the meaning assigned to
such term in Section 6.07(a).
“Swap Obligations”
means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes
a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline Exposure”
means, at any time, the aggregate principal amount of Swingline Loans outstanding at such time. The Swingline Exposure of any Revolving
Lender at any time shall be equal to its Applicable Percentage of the aggregate Swingline Exposure at such time.
“Swingline Lender”
means JPM, in its capacity as lender of Swingline Loans hereunder, or any successor lender of Swingline Loans hereunder.
“Swingline Loan” means any Loan made pursuant to
Section 2.04.
“Target” means Bowlmor AMF Corp., a Delaware corporation.
“Tax Group” has the meaning assigned to such term
in Section 6.04(a)(xv).
“Taxes”
means any and all present and future taxes (including “business activities” taxes), levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions
to tax or penalties applicable thereto.
“Termination Date” has the meaning assigned to such
term in the lead-in to Article 5.
“Term Facility”
means the Term Loans provided to or for the benefit of the Borrower pursuant to the terms of this Agreement.
“Term Lender”
means a Person with an Initial Term Loan Commitment or outstanding Initial Term Loan or an Additional Term Loan Commitment (including
the Amendment No. 2 Term Loan Commitments and Amendment No. 3 Incremental Term Loan Commitments)
or an outstanding Additional Term Loan (including the Amendment No. 2 Term Loans which, for the avoidance
of doubt, include the Amendment No. 3 Incremental Term Loans).
“Term Loan” means the Initial
Term Loans and, if applicable, any Additional Term Loans (including the Amendment No. 2 Term Loans and
Amendment No. 3 Incremental Term Loans).
“Test Period”
means, as of any date, (a) for purposes of determining actual compliance with Section 6.15(a), the period of four consecutive Fiscal
Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered
(or are required to have been delivered) and (b) for any other purpose, the period of four consecutive Fiscal Quarters then most recently
ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (or are
required to have been delivered) or, if earlier, are internally available; it being understood and agreed that prior to the first delivery
(or required delivery) of financial statements under Section 5.01(a), “Test Period” means the period of four consecutive
Fiscal Quarters most recently ended for which financial statements of Holdings and its consolidated subsidiaries are available.
“Threshold Amount” means $30,000,000.
“Total Leverage Ratio”
means the ratio, as of any date of determination, of (a) Consolidated Total Debt outstanding as of such date to (b) Consolidated Adjusted
EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “Total Leverage Ratio”
is used in this Agreement in each case for the Borrower and its Restricted Subsidiaries.
“Total Revolving
Credit Commitment” means, at any time, the aggregate amount of the Revolving Credit Commitments as in effect at such time. The
Total Revolving Credit Commitment as of the Closing Date is $50,000,000.
“Trademark”
means the following: (a) all trademarks (including service marks), common law marks, trade names, trade dress, and logos, slogans and
other indicia of origin under the laws of any jurisdiction in the world, and the registrations and applications for registration thereof
and the goodwill of the business symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims and payments for past and
future infringements thereof; (d) all rights to sue for past, present and future infringements of the foregoing, including the right to
settle suits involving claims and demands for royalties owing; and (e) all domestic rights corresponding to any of the foregoing.
“Transaction Costs”
means fees, premiums, expenses and other transaction costs (including original issue discount or upfront fees) payable or otherwise borne
by any Parent Company and/or its subsidiaries in connection with the Transactions, the Amendment No. 1 Transactions, the Amendment No.
2 Transactions and, in each case, the transactions contemplated thereby.
“Transactions”
means, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party and
the Borrowing of Loans hereunder, (b) the Acquisition, (c) the Equity Contribution, (d) the Refinancing, (e) the execution, delivery and
performance of, including the incurrence of Indebtedness under, the Second Lien Credit Agreement and (f) the payment of the Transaction
Costs.
“Transformative Acquisition”
means any acquisition or Investment by the Borrower or any Restricted Subsidiary that is either (a) not permitted by the terms of this
Agreement immediately prior to the consummation of such acquisition or Investment or (b) if permitted by the terms of this Agreement immediately
prior to the consummation of such acquisition or Investment, would not provide the Borrower and its Subsidiaries with adequate flexibility
under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by
the Borrower acting in good faith.
“Treasury Capital Stock” has the meaning assigned
to such term in Section 6.04(a)(viii).
“Treasury Regulations” means
the U.S. federal income tax regulations promulgated under the Code.
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate or the Alternate Base Rate.
“UCC” means
the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required
to be applied in connection with the creation or perfection of security interests.
“Unrestricted Cash
Amount” means, as to any Person on any date of determination, the amount of (a) unrestricted Cash and Cash Equivalents of such
Person and its Restricted Subsidiaries and (b) Cash and Cash Equivalents of such Person and its Restricted Subsidiaries that are restricted
in favor of the Credit Facilities, any Second Lien Facility and/or other permitted pari passu or junior secured Indebtedness (which
may also include Cash and Cash Equivalents securing other Indebtedness that is secured by a Lien on Collateral along with the Credit Facilities,
any Second Lien Facility and/or any other permitted pari passu or junior secured Indebtedness), in each case as determined in accordance
with GAAP.
“Unrestricted Subsidiary”
means any subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary on the Closing Date and listed on Schedule
5.10 hereto or after the Closing Date pursuant to Section 5.10.
“Unused Revolving
Credit Commitment” of any Lender, at any time, means the remainder of the Revolving Credit Commitment of such Lender at such
time, if any, less the sum of (a) the aggregate Outstanding Amount of Revolving Loans made by such Lender, (b) such Lender’s LC
Exposure at such time and (c) except for purposes of Section 2.12(a), such Lender’s Applicable Percentage of the aggregate
Outstanding Amount of Swingline Loans.
“U.S.” or “United
States” means the United States of America.
“USA PATRIOT Act”
means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title
III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“U.S. Tax Compliance Certificate”
has the meaning assigned to such term in Section 2.17(f).
“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity
or other required scheduled payments of principal, including payment at final maturity, in respect thereof by (ii) the number of
years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then
outstanding principal amount of such Indebtedness; provided that the effect of any prepayment made in respect of such
Indebtedness shall be disregarded in making such calculation.
“Wholly-Owned Subsidiary”
of any Person means a subsidiary of such Person 100% of the Capital Stock of which (other than directors’ qualifying shares or shares
required by Requirements of Law to be owned by a resident of the relevant jurisdiction) are owned by such Person or by one or more Wholly-Owned
Subsidiaries of such Person.
“Write-Down and
Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution
Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers
are described in the EU Bail-In Legislation Schedule.
Section 1.02. Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Term
Loan”) or by Type (e.g., a “LIBO Rate Loan”) or by Class and Type (e.g., a “LIBO Rate Term Loan”).
Borrowings also may be classified and referred to by Class (e.g., a “Term Loan Borrowing”) or by Type (e.g., a “LIBO
Rate Borrowing”) or by Class and Type (e.g., a “LIBO Rate Term Loan Borrowing”).
Section 1.03. Terms Generally.
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall.” The words “ordinary course of business”
or “ordinary course” shall, with respect to any Person, be deemed to refer to items or actions that are consistent with industry
practice of such Person’s business industry or such Person’s past practice (it being understood that the sale of accounts
receivable (and related assets) pursuant to supply- chain, factoring or reverse factoring arrangements entered into by the Borrower and
its Restricted Subsidiaries shall be deemed to be in the ordinary course of business so long as such accounts receivable (and related
assets) are sold for Cash in an amount not less than 95% of the face amount thereof). Unless the context requires otherwise (i) any definition
of or reference to any agreement, instrument or other document herein or in any Loan Document (including any Loan Document, the Second
Lien Credit Agreement and any Loan Document referred to therein) shall be construed as referring to such agreement, instrument or other
document as from time to time amended, restated, amended and restated, supplemented or otherwise modified or extended, replaced or refinanced
(subject to any restrictions or qualifications on such amendments, restatements, amendment and restatements, supplements or modifications
or extensions, replacements or refinancings set forth herein), (ii) any reference to any Requirement of Law in any Loan Document shall
include all statutory and regulatory provisions consolidating, amending, replacing, supplementing, superseding or interpreting such Requirement
of Law, (iii) any reference herein or in any Loan Document to any Person shall be construed to include such Person’s successors
and permitted assigns, (iv) the words “herein,” “hereof” and “hereunder,” and words of similar import,
when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision
hereof, (v) all references herein or in any Loan Document to Articles, Sections, clauses, paragraphs, Exhibits and Schedules shall be
construed to refer to Articles, Sections, clauses and paragraphs of, and Exhibits and Schedules to, such Loan Document, (vi) in the computation
of periods of time in any Loan Document from a specified date to a later specified date, the word “from” means “from
and including”, the words “to” and “until” mean “to but excluding” and the word “through”
means “to and including” and (vii) the words “asset” and “property”, when used in any Loan Document,
shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including
Cash, securities, accounts and contract rights. For the avoidance of doubt, all references to Amendment
No. 2 Loans herein, shall, from and after the Amendment No. 3 Effective Date (as applicable), include (and be deemed to include) Amendment
No. 3 Incremental Term Loans in order to result in equivalent treatment thereof.
(b) For
purposes of determining compliance at any time with Sections 6.01, 6.02, 6.04, 6.06 and 6.07, in
the event that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment or Disposition, as applicable, or
portion thereof, at any time meets the criteria of more than one of the categories of transactions or items permitted pursuant to
any clause of such Sections 6.01 (other than Sections 6.01(a) (in the case of Indebtedness incurred on the Closing
Date) and (x)), 6.02 (other than Sections 6.02(a) and (t) (with respect to Section 6.01(x)), 6.04, 6.06
and 6.07 (each of the foregoing, a “Reclassifiable Item”), the Borrower, in its sole discretion, may, from
time to time, divide, classify or reclassify such Reclassifiable Item (or portion thereof) under one or more clauses of each such
Section and will only be required to include such Reclassifiable Item (or portion thereof) in any one category; provided
that, upon delivery of any financial statements pursuant to Section 5.01(a) or (b) following the initial incurrence or
making of any such Reclassifiable Item, if such Reclassifiable Item could, based on such financial statements, have been incurred in
reliance on Section 6.01(z) (in the case of Indebtedness and Liens) or any “ratio-based” basket (in the case of
all other Reclassifiable Items), such Reclassifiable Item shall automatically be reclassified as having been incurred or made under
the applicable provisions of Section 6.01(z) or such “ratio-based” basket, as applicable (in each case, subject
to any other applicable provision of Section 6.01(z) or such “ratio-based” basket, as applicable). It is
understood and agreed that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment and/or Disposition need
not be permitted solely by reference to one category of permitted Indebtedness, Lien, Restricted Payment, Restricted Debt Payment,
Investment and/or Disposition under Sections 6.01, 6.02, 6.04, 6.06 or 6.07, respectively, but
may instead be permitted in part under any combination thereof or under any other available exception.
Section 1.04. Accounting Terms; GAAP.
(a) (i)
All financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time to
time and, except as otherwise expressly provided herein, all terms of an accounting or financial nature that are used in calculating the
Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted EBITDA,
Consolidated Net Income or Consolidated Total Assets shall be construed and interpreted in accordance with GAAP, as in effect from time
to time; provided that (A) if any change to GAAP or in the application thereof (including the conversion to IFRS as described below)
is implemented after the date of delivery of the financial statements described in Section 3.04(a) and/or there is any change in
the functional currency reflected in the financial statements or (B) if the Borrower elects or is required to report under IFRS, the Borrower
or the Required Lenders may request to amend the relevant affected provisions hereof (whether or not the request for such amendment is
delivered before or after the relevant change or election) to eliminate the effect of such change or election, as the case may be, on
the operation of such provisions and (x) the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment
of the relevant affected provisions (it being understood that no amendment or similar fee shall be payable to the Administrative Agent
or any Lender in connection therewith) to preserve the original intent thereof in light of the applicable change or election, as the case
may be and (y) the relevant affected provisions shall be interpreted on the basis of GAAP and the currency, in each case, as in effect
and applied immediately prior to the applicable change or election, as the case may be, until the request for amendment has been withdrawn
by the Borrower or the Required Lenders, as applicable, or this Agreement has been amended as contemplated hereby. Any consent required
from the Administrative Agent or any Required Lender with respect to the foregoing shall not be unreasonably withheld, conditioned or
delayed.
(ii) All terms of an accounting
or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without
giving effect to (i) any election under Accounting Standards Codification 825-10-25 (previously referred to as Statement of Financial
Accounting Standards 159) (or any other Accounting Standards Codification, International Accounting Standard or Financial Accounting Standard
having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any subsidiary at “fair value,”
as defined therein, (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification
470-20 (or any other Accounting Standards Codification, International Accounting Standard or Financial Accounting Standard having a similar
result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at
all times be valued at the full stated principal amount thereof and (iii) the application of Accounting Standards Codification 480, 815,
805 and 718 (to the extent these pronouncements under Accounting Standards Codification 718 result in recording an equity award as a liability
on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries in the circumstance where, but for the application of
the pronouncements, such award would have been classified as equity). If the Borrower notifies the Administrative Agent that the Borrower
(or its applicable Parent Company) is required to report under IFRS or has elected to do so through an early adoption policy, “GAAP”
shall mean international financial reporting standards pursuant to IFRS (provided thereafter, the Borrower cannot elect to report under
GAAP).
(b) Notwithstanding
anything to the contrary herein, but subject to Sections 1.04(d), (e) and (g), all financial ratios
and tests (including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio
and the amount of Consolidated Total Assets, Consolidated Net Income and Consolidated Adjusted EBITDA) contained in this Agreement that
are calculated with respect to any Test Period during which any Subject Transaction occurs shall be calculated with respect to such Test
Period and such Subject Transaction on a Pro Forma Basis. Further, if since the beginning of any such Test Period and on or prior to
the date of any required calculation of any financial ratio or test (x) any Subject Transaction has occurred or (y) any Person that subsequently
became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries
since the beginning of such Test Period has consummated any Subject Transaction, then, in each case, any applicable financial ratio or
test shall be calculated on a Pro Forma Basis for such Test Period as if such Subject Transaction had occurred at the beginning of the
applicable Test Period (or, in the case of Consolidated Total Assets (or with respect to any determination pertaining to the balance
sheet, including the acquisition of Cash and Cash Equivalents), as of the last day of such Test Period), it being understood, for the
avoidance of doubt, that solely for purposes of (x) calculating quarterly compliance with Section 6.15 and (y) calculating the
First Lien Leverage Ratio for purposes of the definitions of “Applicable Rate” and “Commitment Fee Rate”, in
each case, the date of the required calculation shall be the last day of the Test Period, and no Subject Transaction occurring thereafter
shall be taken into account.
(c) Notwithstanding
anything to the contrary contained in paragraph (a) above or in the definition of “Attributable Debt”, “Capital
Lease” or “Capital Lease Obligation”, in the event of an accounting change or a change in the application of GAAP requiring
all or certain leases to be capitalized or otherwise accounted for as liabilities on the balance sheet of the applicable Person, unless
the Borrower elects otherwise, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof)
that would constitute Capital Leases (including leases that are classified as “Financing Leases” for purposes of GAAP) in
conformity with GAAP on the date hereof shall be considered Capital Leases, and all calculations and deliverables under this Agreement
or any other Loan Document shall be made or delivered, as applicable, in accordance therewith. Notwithstanding anything contained in any
Loan Document to the contrary, the leases relating to the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 and any Excluded Property
Sale/Leaseback Transaction shall be deemed not to be and shall not otherwise be classified as a Capital Lease (and the obligations in
respect thereof shall not be considered Indebtedness) for purposes of this Agreement and any other Loan Document.
(d) For
purposes of determining the permissibility of any action, change, transaction or event that by the terms of the Loan Documents requires
a calculation of any financial ratio or financial test (including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured
Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated Total
Assets), subject to the succeeding clause (e), such financial ratio or test shall be calculated at the time such action is taken,
such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall
be deemed to have occurred solely as a result of a change in such financial ratio or financial test occurring after the time such action
is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding
anything to the contrary herein (including in connection with any calculation made on a Pro Forma Basis), if the terms of this Agreement
require (i) compliance with any financial ratio or financial test (including, without limitation, Section 6.15(a) hereof, any First
Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage Ratio test) and/or
any cap expressed as a percentage of Consolidated Total Assets or Consolidated Adjusted EBITDA, (ii) accuracy of any representation or
warranty and/or the absence of a Default or Event of Default (or any type of default or event of default) or (iii) compliance with any
basket, as a condition to (A) the consummation of any transaction (including in connection with any acquisition or similar Investment
or the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of any Restricted Debt
Payment, in each case in connection with a Limited Condition Transaction, the determination of whether the relevant condition is satisfied
may be made, at the election of the Borrower, (1) in the case of any acquisition or similar Investment or any Disposition and any transaction
related thereto, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) either
(x) the execution of the definitive agreement with respect to such acquisition, Investment or Disposition or (y) the consummation of such
acquisition, Investment or Disposition, (2) in the case of any Restricted Payment, at the time of (or on the basis of the financial statements
for the most recently ended Test Period at the time of) (x) the declaration of such Restricted Payment or (y) the making of such Restricted
Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis of the financial statements for the most recently
ended Test Period at the time of) (x) delivery of notice with respect to such Restricted Debt Payment or (y) the making of such Restricted
Debt Payment, in each case, after giving effect to the relevant acquisition, Restricted Payment and/or Restricted Debt Payment or other
transaction on a Pro Forma Basis (including, in each case, giving effect to the relevant transaction, any relevant Indebtedness (including
the intended use of proceeds thereof) and, at the election of the Borrower, giving pro forma effect to other prospective Limited Condition
Transactions that are acquisitions or similar Investments for which definitive agreements have been executed, and no Default or Event
of Default shall be deemed to have occurred solely as a result of an adverse change in such financial ratio or test occurring after the
time such election is made (but any subsequent improvement in the applicable financial ratio or test may be utilized by the Borrower or
any Restricted Subsidiary). For the avoidance of doubt, if the Borrower shall have elected the option set forth in clause (x) of any of
the preceding clauses (1), (2) or (3) in respect of any transaction, then the Borrower shall be permitted to consummate such transaction
even if any applicable test or condition shall cease to be satisfied subsequent to the Borrower’s election of such option. The provisions
of this paragraph (e) shall also apply in respect of the incurrence of any Incremental Facility.
(f) [Reserved].
(g) Notwithstanding
anything to the contrary herein, unless the Borrower otherwise notifies the Administrative Agent, with respect to any amounts
incurred under the Revolving Facility, any Additional Revolving Facility or any other permitted revolving facility or any amounts
incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement (including Section
6.01(x) (as it relates to the incurrence of any “fixed” or similar amount incurred under any Second Lien Facility))
that does not require compliance with a financial ratio or financial test (including any First Lien Leverage Ratio test, any Secured
Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed
Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance
on a provision of this Agreement (including Section 6.01(x) (as it relates to the incurrence of any “incurrence
based” or similar amount incurred under any Second Lien Facility)) that requires compliance with a financial ratio or
financial test (including any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or
any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed
that (A) the incurrence of the Incurrence-Based Amount shall be calculated first without giving effect to any Fixed Amount but
giving full pro forma effect to the use of proceeds of such Fixed Amount and the related transactions and (B) the incurrence of the
Fixed Amount shall be calculated thereafter. Unless the Borrower elects otherwise, the Borrower shall be deemed to have used amounts
under an Incurrence-Based Amount then available to the Borrower prior to utilization of any amount under a Fixed Amount then
available to the Borrower. For the avoidance of doubt, all Indebtedness substantially concurrently incurred will be included for
purposes of calculating compliance with Sections 6.04(a)(xiii), 6.04(b)(vii) and 6.06(dd) (in each case, giving
pro forma effect to the intended use of proceeds thereof).
(h) The
principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the
principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(i) The
increase in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of interest
or a dividend in the form of additional Indebtedness, amortization of original issue discount and/or any increase in the amount of Indebtedness
outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency will not be deemed to be the granting
of a Lien for purposes of Section 6.02.
(j) For
purposes of determining compliance with Section 6.01 or Section 6.02, if any Indebtedness or Lien is incurred in reliance
on a basket measured by reference to a percentage of Consolidated Adjusted EBITDA, and any refinancing or replacement thereof would cause
the percentage of Consolidated Adjusted EBITDA to be exceeded if calculated based on the Consolidated Adjusted EBITDA on the date of such
refinancing or replacement, such percentage of Consolidated Adjusted EBITDA will be deemed not to be exceeded so long as the principal
amount of such refinancing or replacement Indebtedness or other obligation does not exceed an amount sufficient to repay the principal
amount of such Indebtedness or other obligation being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest,
penalties and premiums (including tender, prepayment or repayment premiums) thereon plus underwriting discounts and other customary fees,
commissions and expenses (including upfront fees, original issue discount or initial yield payment) incurred in connection with such refinancing
or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under Section
6.01.
(k) Any
financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific
action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying
the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number).
Section 1.05. Effectuation
of Transactions. Each of the representations and warranties contained in this Agreement (and all corresponding definitions) is made
after giving effect to the Transactions, unless the context otherwise requires.
Section 1.06. Timing
of Payment and Performance. When payment of any obligation or the performance of any covenant, duty or obligation is stated to
be due or required on a day which is not a Business Day, the date of such payment (other than as described in the definition of
“Interest Period”) or performance shall extend to the immediately succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of such extension.
Section 1.07. Times of Day. Unless otherwise
specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).
Section 1.08. Currency Equivalents Generally.
(a) Notwithstanding
anything to the contrary in clause (b) below, for purposes of any determination under Article 5, Article 6 (other than Section
6.15 and the calculation of compliance with any financial ratio for purposes of taking any action hereunder) or Article 7
with respect to the amount of any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition, Sale and
Lease-Back Transaction, affiliate transaction or other transaction, event or circumstance, or any determination under any other
provision of this Agreement (any of the foregoing, a “relevant transaction”), in a currency other than Dollars,
(i) the Dollar equivalent amount of a relevant transaction in a currency other than Dollars shall be calculated based on the rate of
exchange quoted by the Bloomberg Foreign Exchange Rates & World Currencies Page (or any successor page thereto, or in the event
such rate does not appear on any Bloomberg Page, by reference to such other publicly available service for displaying exchange rates
as may be agreed upon by the Administrative Agent and the Borrower) for such foreign currency, as in effect at 11:00 a.m. (London
time) on the date of such relevant transaction (which, in the case of any Restricted Payment, Restricted Debt Payment, Investment,
Disposition or incurrence of Indebtedness, shall be determined as set forth in Section 1.04(e)); provided, that if any
Indebtedness is incurred (and, if applicable, associated Lien granted) to refinance or replace other Indebtedness denominated in a
currency other than Dollars, and the relevant refinancing or replacement would cause the applicable Dollar-denominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing or replacement, such
Dollar- denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing or
replacement Indebtedness (and, if applicable, associated Lien granted) does not exceed an amount sufficient to repay the principal
amount of such Indebtedness being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest, penalties and
premiums (including tender premiums) thereon plus underwriting discounts and other customary fees, commissions and expenses
(including upfront fees, original issue discount or initial yield payment) incurred in connection with such refinancing or
replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under Section
6.01 and (ii) for the avoidance of doubt, no Default or Event of Default shall be deemed to have occurred solely as a result of
a change in the rate of currency exchange occurring after the time of any relevant transaction so long as such relevant transaction
was permitted at the time incurred, made, acquired, committed, entered or declared as set forth in clause (i). For purposes
of Section 6.15 and the calculation of compliance with any financial ratio for purposes of taking any action hereunder
(including for purposes of calculating compliance with the Incremental Cap) on any relevant date of determination, amounts
denominated in currencies other than Dollars shall be translated into Dollars at the applicable currency exchange rate used in
preparing the financial statements delivered pursuant to Sections 5.01(a) or (b) (or, prior to the first such
delivery, the financial statements referred to in Section 3.04), as applicable, for the relevant Test Period. Notwithstanding
the foregoing or anything to the contrary herein, to the extent that the Borrower would not be in compliance with Section
6.15(a) if any Indebtedness denominated in a currency other than Dollars were to be translated into Dollars on the basis of the
applicable currency exchange rate used in preparing the financial statements delivered pursuant to Section 5.01(a) or (b),
as applicable, for the relevant Test Period, but would be in compliance with Section 6.15(a) if such Indebtedness that is
denominated in a currency other than in Dollars were instead translated into Dollars on the basis of the average relevant currency
exchange rates over such Test Period (taking into account the currency translation effects, determined in accordance with GAAP, of
any Hedge Agreement permitted hereunder in respect of currency exchange risks with respect to the applicable currency in effect on
the date of determination for the Dollar equivalent amount of such Indebtedness), then, solely for purposes of compliance with Section
6.15(a), the First Lien Leverage Ratio as of the last day of such Test Period shall be calculated on the basis of such average
relevant currency exchange rates.
(b) Each
provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time
specify with the Borrower’s consent to appropriately reflect a change in currency of any country and any relevant market convention
or practice relating to such change in currency.
Section 1.09. Cashless
Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that
any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental Loans, Replacement
Term Loans, Loans in connection with any Replacement Revolving Facility, Extended Term Loans, Extended Revolving Loans or loans incurred
under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a
“cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any requirement
hereunder or any other Loan Document that such payment be made “in Dollars”, “in immediately available funds”,
“in Cash” or any other similar requirement.
Section 1.10. Alternative Currencies.
(a) The
Borrower may from time to time request that LIBO Rate Revolving Loans be made and/or Letters of Credit be issued in a currency other than
Dollars; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable
and convertible into Dollars. In the case of any such request with respect to the making of LIBO Rate Revolving Loans, such request shall
be subject to the approval of the Revolving Lenders of the applicable Class that will provide such Loans, and in the case of any such
request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the applicable Issuing Banks,
in each case as set forth in Section 9.02(b)(ii)(E).
(b) Any
such request shall be made to the Administrative Agent not later than 11:00 a.m., ten Business Days prior to the requested date of the
making of such Revolving Loan or issuance of such Letter of Credit (or such other time or date as may be agreed by the Administrative
Agent and, in the case of any such request pertaining to Letters of Credit, the applicable Issuing Banks, in its or their sole discretion).
In the case of any such request pertaining to LIBO Rate Revolving Loans, the Administrative Agent shall promptly notify each Revolving
Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the
applicable Issuings Bank thereof. Each applicable Revolving Lender (in the case of any such request pertaining to LIBO Rate Revolving
Loans) or each applicable Issuing Bank (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent,
not later than 11:00 a.m., five Business Days after receipt of such request whether it consents, in its sole discretion, to the making
of LIBO Rate Revolving Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(c) Any failure by a
Revolving Lender or Issuing Bank, as the case may be, to respond to such request within the time period specified in the preceding
paragraph shall be deemed to be a refusal by such Revolving Lender or Issuing Bank, as the case may be, to permit LIBO Rate
Revolving Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the
applicable Revolving Lenders consent to making LIBO Rate Revolving Loans or issuance of Letters of Credit in such requested
currency, the Administrative Agent shall so notify the Borrower and the Borrower and the Revolving Lenders shall amend this
Agreement and the other Loan Documents as necessary to accommodate such Borrowings and/or Letters of Credit (as applicable), in
accordance with Section 9.02(b)(ii)(E). If the Administrative Agent shall fail to obtain consent to any request for an
additional currency under this Section 1.10, the Administrative Agent shall promptly so notify the Borrower.
ARTICLE 2 THE CREDITS
Section 2.01. Commitments.
(a) Subject to the terms and
conditions set forth herein, (i) (x) each Initial Term Lender severally, and not jointly, agrees to make Initial Term Loans to the Borrower
on the Closing Date in Dollars in a principal amount not to exceed its Initial Term Loan Commitment as of the Closing Date and (y) each
Amendment No. 1 Incremental Term Lender severally, and not jointly, agrees to make Amendment No. 1 Incremental Term Loans to the Borrower
on the Amendment No. 1 Effective Date in a principal amount not to exceed its Initial Term Loan Commitment as of the Amendment No. 1
Effective Date and (ii) each Revolving Lender severally, and not jointly, agrees to make Revolving Loans to the Borrower in Dollars at
any time and from time to time on and after the Closing Date, and until the earlier of the Initial Revolving Credit Maturity Date and
the termination of the Initial Revolving Credit Commitment of such Revolving Lender in accordance with the terms hereof; provided
that, after giving effect to any Borrowing of Initial Revolving Loans, the Outstanding Amount of such Revolving Lender’s Initial
Revolving Credit Exposure shall not exceed such Revolving Lender’s Initial Revolving Credit Commitment. Subject to the terms and
conditions set forth in Amendment No. 2 (x) each Converting Lender (as defined in Amendment No. 2) severally, and not jointly, agrees
to exchange its Existing Term Loans (as defined in Amendment No. 2) for a like principal amount of Amendment No. 2 Term Loans on the
Amendment No. 2 Effective Date (or such lesser amount allocated to such Lender by the Administrative Agent) and (y) each Amendment No.
2 Term Lender severally, and not jointly, agrees to make Amendment No. 2 Term Loans to the Borrower on the Amendment No. 2 Effective
Date in a principal amount not to exceed its Amendment No. 2 Term Loan Commitment as of the Amendment No. 2 Effective Date. Subject
to the terms and conditions set forth herein, each Amendment No. 3 Incremental Term Lender severally, and not jointly, agrees to make
Amendment No. 3 Incremental Term Loans to the Borrower on the Amendment No. 3 Effective Date in a principal amount not to exceed its
Amendment No. 3 Incremental Term Loan Commitment as of the Amendment No. 3 Effective Date. Within
the foregoing limits and subject to the terms, conditions and limitations set forth herein, the Borrower may borrow, pay or prepay and
reborrow Revolving Loans. Amounts paid or prepaid in respect of the Initial Term Loans or,
Amendment No. 2 Term Loans or Amendment No. 3 Incremental
Term Loans may not be reborrowed.
(b) Subject
to the terms and conditions of this Agreement and any applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment,
each Lender with an Additional Commitment of a given Class, severally and not jointly, agrees to make Additional Loans of such Class to
the Borrower, which Loans shall not exceed for any such Lender at the time of any incurrence thereof the Additional Commitment of such
Class of such Lender as set forth in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment.
Section 2.02. Loans and Borrowings.
(a) Each
Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their respective Commitments of the applicable Class. Each Swingline Loan shall be made in accordance with
the procedures set forth in Section 2.04.
(b) Subject
to Section 2.01 and Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or LIBO Rate Loans as the Borrower
may request in accordance herewith; provided that each Swingline Loan shall be an ABR Loan. Each Lender at its option may make
any LIBO Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any
exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement,
(ii) such LIBO Rate Loan shall be deemed to have been made and held by such Lender, and the obligation of the Borrower to repay such LIBO
Rate Loan shall nevertheless be to such Lender for the account of such domestic or foreign branch or Affiliate of such Lender and (iii)
in exercising such option, such Lender shall use reasonable efforts to minimize increased costs to the Borrower resulting therefrom (which
obligation of such Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs
for which it will not be compensated hereunder or that it otherwise determines would be disadvantageous to it and in the event of such
request for costs for which compensation is provided under this Agreement, the provisions of Section 2.15 shall apply); provided,
further, that any such domestic or foreign branch or Affiliate of such Lender shall not be entitled to any greater indemnification
under Section 2.17 with respect to such LIBO Rate Loan than that to which the applicable Lender was entitled on the date on which
such Loan was made (except in connection with any indemnification entitlement arising as a result of a Change in Law after the date on
which such Loan was made).
(c) At the commencement of
each Interest Period for any LIBO Rate Borrowing, such Borrowing shall comprise an aggregate principal amount that is an integral
multiple of $100,000 and not less than $500,000. Each ABR Borrowing when made shall be in a minimum principal amount of $100,000; provided
that an ABR Revolving Loan Borrowing may be made in a lesser aggregate amount that is (x) equal to the entire aggregate Unused
Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at
any time be more than a total of 10 different Interest Periods in effect for LIBO Rate Borrowings at any time outstanding (or such
greater number of different Interest Periods as the Administrative Agent may agree from time to time).
(d) Notwithstanding
any other provision of this Agreement, the Borrower shall not, nor shall it be entitled to, request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date applicable to such Loans.
Section 2.03. Requests
for Borrowings. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of LIBO Rate Loans
shall be made upon irrevocable notice by the Borrower to the Administrative Agent (provided that notices in respect of any
Borrowings (x) to be made on the Closing Date may be conditioned on the closing of the Acquisition and (y) to be made in connection
with any acquisition, Investment or irrevocable repayment, redemption or refinancing of Indebtedness may be conditioned on the
closing of such acquisition, Investment or irrevocable repayment, redemption or refinancing of such Indebtedness). Each such notice
must be in writing or by telephone (and promptly confirmed in writing) and must be received by the Administrative Agent (by hand
delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) not later than 12:00 p.m. (i)
three Business Days prior to the requested day of any Borrowing of, conversion to or continuation of LIBO Rate Loans (or 12:00 p.m.
one Business Day in the case of any Borrowing of LIBO Rate Loans to be made on the Closing Date) and (ii) on the requested date of
any Borrowing of or conversion to ABR Loans (other than Swingline Loans) (or, in each case, such later time as shall be acceptable
to the Administrative Agent); provided, however, that if the Borrower wishes to request LIBO Rate Loans having an
Interest Period of other than one, two, three or six months in duration as provided in the definition of “Interest
Period,” (A) the applicable notice from the Borrower must be received by the Administrative Agent not later than 11:00 a.m.
four Business Days prior to the requested date of such Borrowing, conversion or continuation (or such later time as is acceptable to
the Administrative Agent), whereupon the Administrative Agent shall give prompt notice to the appropriate Lenders of such request
and determine whether the requested Interest Period is acceptable to them and (B) not later than 10:00 a.m. three Business Days
before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower whether
or not the requested Interest Period has been consented to by all the appropriate Lenders. Each written notice (or confirmation of
telephonic notice) with respect to a Borrowing by the Borrower pursuant to this Section 2.03 shall be delivered to the
Administrative Agent in the form of a written Borrowing Request, appropriately completed and signed by a Responsible Officer of the
Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section
2.02:
(a) the Class of such Borrowing;
(b) the aggregate amount of the requested Borrowing;
(c) the date of such Borrowing, which shall be a Business Day;
(d) whether such Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing;
(e) in
the case of a LIBO Rate Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition
of the term “Interest Period”; and
(f) the
location and number of the Borrower’s account or any other designated account(s) to which funds are to be disbursed (the “Funding
Account”).
If no election as to the Type of Borrowing is
specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested LIBO
Rate Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative
Agent shall advise each Lender of the details thereof and of the amount of the Loan to be made as part of the requested Borrowing (x)
in the case of any ABR Borrowing, on the same Business Day of receipt of a Borrowing Request in accordance with this Section or (y) in
the case of any LIBO Rate Borrowing, no later than one Business Day following receipt of a Borrowing Request in accordance with this Section.
Section 2.04. Swingline Loans.
(a) Subject to the terms
and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the
Availability Period, in an aggregate principal amount at any time outstanding not to exceed $10,000,000; provided that (x)
the Swingline Lender shall not be required to make any Swingline Loan to refinance an outstanding Swingline Loan and (y) after
giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall
not exceed the Total Revolving Credit Commitment. Each Swingline Loan shall be in a minimum principal amount of not less than
$100,000 or such lesser amount as may be agreed by the Swingline Lender; provided that, notwithstanding the foregoing, a
Swingline Loan may be in an aggregate amount that is (x) equal to the entire unused balance of the aggregate Unused Revolving Credit
Commitments or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Within the
foregoing limits and subject to the terms and conditions set forth herein, Swingline Loans may be borrowed, prepaid and reborrowed.
To request a Swingline Loan, the Borrower shall notify the Swingline Lender (with a copy to the Administrative Agent) of such
request by telephone (confirmed by facsimile), not later than 2:00 p.m. on the day of a proposed Swingline Loan. Each such notice
shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline
Loan. The Swingline Lender shall make each Swingline Loan available to the Borrower on the same Business Day by means of a credit to
the Funding Account or otherwise in accordance with the instructions of the Borrower (including, in the case of a Swingline Loan
made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the applicable
Issuing Bank).
(b) The
Swingline Lender may by written notice given to the Administrative Agent not later than 12:00 p.m. on any Business Day require the Revolving
Lenders to acquire participations on the second Business Day following receipt of such notice in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon
receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Revolving
Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Credit Commitments,
and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall
comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section
2.07 with respect to Revolving Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis mutandis,
to the payment obligations of the Revolving Lenders pursuant to this Section 2.04(b)), and the Administrative Agent shall promptly
remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower
of any participation in any Swingline Loan acquired pursuant to this Section 2.04(b), and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender
from the Borrower (or other Person on behalf of the Borrower) in respect of any Swingline Loan after receipt by the Swingline Lender of
the proceeds of any sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent and
any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders
that have made their payments pursuant to this Section 2.04(b) and to the Swingline Lender, as their interests may appear; provided
that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter
to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations
in any Swingline Loan pursuant to this Section 2.04(b) shall not relieve the Borrower of any default in the payment thereof.
(c) If
any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to
be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04 by the time specified in Section
2.04(b), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately
available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect
and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A certificate of
the Swingline Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this
clause (c) shall be conclusive absent manifest error.
Section 2.05. Letters of Credit.
(a) General.
(i) Subject
to the terms and conditions set forth herein, (ii) each Issuing Bank agrees, in each case in reliance upon the agreements of the other
Revolving Lenders set forth in this Section 2.05, (A) from time to time on any Business Day during the period from the Closing
Date to the fifth Business Day prior to the Initial Revolving Credit Maturity Date, upon the request of the Borrower, to issue Letters
of Credit issued on sight basis only for the account of the Borrower (or any Restricted Subsidiary; provided that the Borrower
will be the applicant) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.05(b), and
(B) to honor drafts under the Letters of Credit, and (iii) the Revolving Lenders severally agree to participate in the Letters of Credit
issued pursuant to Section 2.05(d). Notwithstanding anything to the contrary contained in this Agreement, no Issuing Bank shall
be required to issue Commercial Letters of Credit without its consent.
(ii) No
Issuing Bank shall have an obligation to issue any Letter of Credit if (x) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, (y) customary “know
your customer” requirements of such Issuing Bank with respect to the beneficiary of such Letter of Credit would be violated or (z)
any law applicable to such Issuing Bank or any directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over such Issuing Bank shall prohibit, or direct that such Issuing Bank refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular.
(b) Notice of Issuance,
Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit, the Borrower shall deliver to
the applicable Issuing Bank and the Administrative Agent, at least three Business Days in advance of the requested date of issuance
(or such shorter period as is acceptable to the applicable Issuing Bank or, in the case of any issuance to be made on the Closing
Date, one Business Day prior to the Closing Date), a request to issue a Letter of Credit, which shall specify that it is being
issued under this Agreement, in the form of Exhibit K attached hereto. To request an amendment, extension or renewal of a
Letter of Credit (other than any automatic extension of a Letter of Credit permitted under Section 2.05(c)), the Borrower shall
submit such a request to the applicable Issuing Bank selected by the Borrower (with a copy to the Administrative Agent) at least
three Business Days in advance of the requested date of amendment, extension or renewal (or such shorter period as is acceptable to
the applicable Issuing Bank), identifying the Letter of Credit to be amended, extended or renewed, and specifying the proposed date
(which shall be a Business Day) and other details of the amendment, extension or renewal. Requests for the issuance, amendment,
extension or renewal of any Letter of Credit must be accompanied by such other information as shall be necessary to issue, amend,
extend or renew such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of
credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. In the event of
any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement shall control. No Letter of Credit, letter of credit
application or other document entered into by the Borrower with the applicable Issuing Bank relating to any Letter of Credit shall
contain any representations or warranties, covenants or events of default not set forth in this Agreement (and to the extent
inconsistent herewith shall be rendered null and void or reformed automatically without further action by any Person to conform to
the terms of this Agreement), and all representations and warranties, covenants and events of default set forth therein shall
contain standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with those set forth in this
Agreement (and, to the extent inconsistent herewith, shall be deemed to automatically incorporate the applicable standards,
qualifications, thresholds and exceptions set forth herein without action by any Person). A Letter of Credit may be issued, amended,
extended or renewed only if (and on the issuance, amendment, extension or renewal of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance, amendment, extension or renewal, (A) the sum of (x) the
aggregate outstanding principal amount of all Revolving Loans and Swingline Loans plus (y) the aggregate amount of all LC
Exposures would not exceed the Total Revolving Credit Commitment and (B) the LC Exposure does not exceed the Letter of Credit
Sublimit (unless otherwise increased). In addition, no Issuing Bank shall be required to issue, amend, extend or renew any Letter of
Credit if the terms of such Letter of Credit extend beyond the Maturity Date applicable to the Revolving Credit Commitments of any
Class unless (1) the aggregate amount of the LC Exposure attributable to Letters of Credit expiring after such Maturity Date does
not exceed the aggregate amount of the Revolving Credit Commitments then in effect that are scheduled to remain in effect after such
Maturity Date, (2) all Revolving Lenders and such Issuing Bank shall have consented to such expiry date or (3) 100% of the
then-available face amount thereof is Cash collateralized or backstopped on or before the date that such Letter of Credit is issued,
amended, extended or renewed beyond such date. Promptly after the delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable Issuing Bank will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. Upon receipt of such Letter of
Credit or amendment, the Administrative Agent shall notify the Revolving Lenders, in writing, of such Letter of Credit or amendment,
and if so requested by a Revolving Lender, the Administrative Agent will provide such Revolving Lender with copies of such Letter of
Credit or amendment.
(c) Expiration Date.
(i) Except
as set forth in Section 2.05(b) (above), no Standby Letter of Credit shall expire later than the earlier of (A) the date that is
one year after the date of the issuance of such Standby Letter of Credit (or such later date to which the relevant Issuing Bank may agree)
and (B) the Latest Revolving Loan Maturity Date; provided that, any Standby Letter of Credit may provide for the automatic extension
thereof for any number of additional periods each of up to one year in duration (none of which, in any event, shall extend beyond the
date referred to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized or backstopped
on or before the date that such Letter of Credit is extended beyond the date referred to in clause (B) above pursuant to arrangements
reasonably satisfactory to the relevant Issuing Bank).
(ii) Except
as set forth in Section 2.05(b) (above), no Commercial Letter of Credit shall expire later than the earlier to occur of (A) one
year after the issuance thereof (or such later date to which the relevant Issuing Bank may agree) and (B) the Latest Revolving Loan Maturity
Date; provided that any Commercial Letter of Credit may provide for the automatic extension thereof for any number of additional
periods each of up to one year in duration (none of which, in any event, shall extend beyond the date referred to in the preceding clause
(B) unless 100% of the then-available face amount thereof is Cash collateralized or backstopped on or before the date that such Letter
of Credit is extended beyond the date referred to in clause (B) above pursuant to arrangements reasonably satisfactory to the relevant
Issuing Bank).
(d) Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the applicable Issuing Bank or the Revolving Lenders, the applicable Issuing Bank hereby grants to each
Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal
to such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC
Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension
of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or termination of the
Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement.
(i) If the applicable Issuing
Bank makes any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent (or, in the case of Commercial Letters of Credit, the applicable Issuing Bank) an amount equal to such LC Disbursement not later
than 1:00 p.m. on the second Business Day immediately following the date on which the Borrower receives notice under paragraph (g)
of this Section of such LC Disbursement (or, if such notice is received less than two hours prior to the deadline for requesting
ABR Borrowings pursuant to Section 2.03, on the third Business Day immediately following the date on which the Borrower receives
such notice); provided that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with
Section 2.03 or 2.04 that such payment be financed with an ABR Revolving Loan or a Swingline Loan and, to the extent so
financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Revolving Loan Borrowing
or Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of
the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Revolving Lender’s Applicable
Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.07 with respect to Loans made
by such Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so
received by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant
to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving
Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing
Bank as their interests may appear.
(ii) If any Revolving
Lender fails to make available to the Administrative Agent for the account of the applicable Issuing Bank any amount required to be
paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.05(e) by the time specified therein,
such Issuing Bank shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately
available to such Issuing Bank at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in
effect and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A
certificate of the applicable Issuing Bank submitted to any Revolving Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (ii) shall be conclusive absent manifest error.
(f) Obligations
Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement,
or any term or provision therein or herein, (ii) any draft or other document presented under any Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable
Issuing Bank under any Letter of Credit against presentation of a draft or other document that does not comply with the terms of such
Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s
obligations hereunder. Neither the Administrative Agent, the Revolving Lenders nor any Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or
any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating
to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms
or any consequence arising from causes beyond the control of such Issuing Bank; provided that the foregoing shall not be construed
to excuse such Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused
by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful
misconduct on the part of applicable Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof,
the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms
of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement
Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent
a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by facsimile) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder;
provided that no failure to give or delay in giving such notice shall relieve the Borrower of its obligation to reimburse such
Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
(h) Interim
Interest. If any Issuing Bank makes any LC Disbursement, then, unless the Borrower reimburses such LC Disbursement in full on
the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such
LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement (or the date on which such LC
Disbursement is reimbursed with the proceeds of Loans, as applicable), at the rate per annum then applicable to Revolving Loans that
are ABR Loans; provided that if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph
(e) of this Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be for the
account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account of such Revolving Lender to
the extent of such payment.
(i) Replacement of an Issuing Bank or Addition of New Issuing Banks.
Any Issuing Bank may be
replaced with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), the Borrower and the successor
Issuing Bank at any time by written agreement among the Borrower, the Administrative Agent and the successor Issuing Bank. The
Administrative Agent shall notify the Revolving Lenders of any such replacement of an Issuing Bank. At the time any such replacement
becomes effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b)(ii). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank,
or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of any Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit after such replacement. The Borrower may, at any time and from time to time with the
consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) and the relevant Revolving Lender,
designate one or more additional Revolving Lenders to act as an issuing bank under the terms of this Agreement. Any Revolving Lender
designated as an issuing bank pursuant to this paragraph (i) shall be deemed to be an “Issuing Bank” (in addition
to being a Revolving Lender) in respect of Letters of Credit issued or to be issued by such Revolving Lender, and, with respect to
such Letters of Credit, such term shall thereafter apply to the other Issuing Bank and such Revolving Lender.
(j) Cash Collateralization.
(i) If
any Event of Default exists and the Revolving Loans have been declared due and payable in accordance with Article 7 hereof, then
on the Business Day that the Borrower receives notice from the Administrative Agent at the direction of the Required Lenders demanding
the deposit of Cash collateral pursuant to this paragraph (j), upon such demand, the Borrower shall deposit, in an interest-bearing
account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders (the “LC
Collateral Account”), an amount in Cash equal to 100% of the LC Exposure as of such date (minus the amount then on deposit
in the LC Collateral Account); provided that the obligation to deposit such Cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event
of Default with respect to the Borrower described in Section 7.01(f) or (g).
(ii) Any such deposit
under clause (i) above shall be held by the Administrative Agent as collateral for the payment and performance of the Secured
Obligations in accordance with the provisions of this paragraph (j). The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account, and the Borrower hereby grants the Administrative
Agent, for the benefit of the Secured Parties, a First Priority security interest in the LC Collateral Account. Interest or profits,
if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the applicable Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied,
shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of the Required Revolving Lenders) be applied to satisfy
other Secured Obligations. If the Borrower is required to provide an amount of Cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (together with all interest and other earnings with respect thereto, to the extent
not applied as aforesaid) shall be returned to the Borrower promptly but in no event later than three Business Days after such Event
of Default has been cured or waived.
(k) Existing
Letters of Credit. Existing Letters of Credit shall be deemed Letters of Credit for all purposes under this Agreement, without need
for any further action by the Borrower or any other Person.
Section 2.06. [Reserved].
Section 2.07. Funding of Borrowings.
(a) Each
Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by
1:00 p.m. to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an amount
equal to such Lender’s respective Applicable Percentage; provided that Swingline Loans shall be made as provided in Section
2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like
funds, to the Funding Account or as otherwise directed by the Borrower; provided that Revolving Loans made to finance the reimbursement
of any LC Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.
(b) Unless
the Administrative Agent has received notice from any Lender prior to the proposed date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if any Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to the Loans comprising such Borrowing
at such time. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing and the Borrower’s obligation to repay the Administrative Agent such corresponding amount pursuant to
this Section 2.07(b) shall cease. If the Borrower pays such amount to the Administrative Agent, the amount so paid shall constitute
a repayment of such Borrowing by such amount. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent or the Borrower or any other Loan Party may have against any Lender
as a result of any default by such Lender hereunder.
Section 2.08. Type; Interest Elections.
(a) Each
Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a LIBO Rate Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert any Borrowing to
a Borrowing of a different Type or to continue such Borrowing and, in the case of a LIBO Rate Borrowing, may elect Interest Periods therefor,
all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders based upon their Applicable Percentages and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Loans, which may not be converted
or continued.
(b) To
make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election either in writing (by hand
delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) or by telephone by the time that
a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and
shall be confirmed promptly by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)
to the Administrative Agent of a written Interest Election Request signed by a Responsible Officer of the Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing; and
(iv) if
the resulting Borrowing is a LIBO Rate Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a LIBO Rate Borrowing
but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent shall advise each applicable Lender of the details thereof
and of such Lender’s portion of each resulting Borrowing.
(e) If the Borrower fails
to deliver a timely Interest Election Request with respect to a LIBO Rate Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing shall be converted at the end of such
Interest Period to a LIBO Rate Borrowing with an Interest Period of one month. Notwithstanding any contrary provision hereof, if an
Event of Default exists and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so
long as such Event of Default exists (i) no outstanding Borrowing may be converted to or continued as a LIBO Rate Borrowing and (ii)
unless repaid, each LIBO Rate Borrowing shall be converted to an ABR Borrowing at the end of the then- current Interest Period
applicable thereto.
Section 2.09. Termination and Reduction of Commitments.
(a) Unless previously terminated,
(i) the Initial Term Loan Commitments on the Closing Date shall automatically terminate upon the making of the Initial Term Loans on
the Closing Date, (ii) the Initial Term Loan Commitments on the Amendment No. 1 Effective Date shall automatically terminate upon the
making of the Amendment No. 1 Incremental Term Loans on the Amendment No. 1 Effective Date, (iii) the Amendment No. 2 Term Loan Commitments
on the Amendment No. 2 Effective Date shall automatically terminate upon the making of the Amendment No. 2 Term Loans on the Amendment
No. 2 Effective Date, (iv) the Initial Revolving Credit Commitments shall automatically terminate on the Initial Revolving Credit Maturity
Date, (v) the Amendment No. 3 Incremental
Term Loan Commitments on the Amendment No. 3 Effective Date shall automatically terminate upon the making of the Amendment No. 3 Incremental
Term Loans on the Amendment No. 3 Effective Date, (vi) the Additional Term Loan Commitments of any Class shall automatically
terminate upon the making of the Additional Term Loans of such Class and, if any such Additional Term Loan Commitment is not drawn on
the date that such Additional Term Loan Commitment is required to be drawn pursuant to the applicable Refinancing Amendment, Extension
Amendment or Incremental Facility Amendment, the undrawn amount thereof shall terminate unless otherwise provided in the applicable Refinancing
Amendment, Extension Amendment or Incremental Facility Amendment and (vivii)
the Additional Revolving Credit Commitments of any Class shall automatically terminate on the Maturity Date specified therefor in the
applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment.
(b) Upon
delivering the notice required by Section 2.09(c), the Borrower may at any time terminate or from time to time reduce the Revolving
Credit Commitments of any Class; provided that (i) each reduction of the Revolving Credit Commitments of any Class shall be in
an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or reduce
the Revolving Credit Commitments of any Class if, after giving effect to such termination or reduction, as applicable, and any concurrent
prepayment of Revolving Loans and Swingline Loans, the aggregate amount of the Revolving Credit Exposure attributable to the Revolving
Credit Commitments of such Class would exceed the aggregate amount of the Revolving Credit Commitments of such Class; provided
that, after the establishment of any Additional Revolving Credit Commitment, any such termination or reduction of the Revolving Credit
Commitments of any Class shall be subject to the provisions set forth in Section 2.22, 2.23 and/or 9.02, as applicable.
(c) The Borrower shall
notify the Administrative Agent of any election to terminate or reduce any Class or Classes of Revolving Credit Commitments under paragraph
(b) of this Section (as selected by the Borrower) not later than 11:00 a.m. on or prior to the effective date of such
termination or reduction (or at least, not later than 11:00 a.m., three Business Days prior to the effective date of such
termination or reduction in the case of a termination or reduction involving a prepayment of LIBO Rate Borrowings (or such later
date to which the Administrative Agent may agree)), specifying such election and the effective date thereof. Promptly following
receipt of any such notice, the Administrative Agent shall advise the Revolving Lenders of each applicable Class or Classes of the
contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that any such
notice may state that such notice is conditioned upon the effectiveness of other transactions, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of any Revolving Credit Commitment pursuant to this Section 2.09 shall be permanent.
Upon any reduction of any Revolving Credit Commitment, the Revolving Credit Commitment of each Revolving Lender of the relevant
Class shall be reduced by such Revolving Lender’s Applicable Percentage of such reduction amount.
Section 2.10. Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally
promises to repay the outstanding principal amount of the Amendment No. 2 Term Loans (including
Amendment No. 3 Incremental Term Loans) to the Administrative Agent for the account of each applicable Term Lender (i) commencing
on December 31, 20182019,
on the last Business Day of each March, June, September and December prior to the Initial Term Loan Maturity Date (each such date being
referred to as a “Loan Installment Date”), in each case in an amount equal to 0.25%
of the original principal amount of the Amendment No. 2 Term Loans$2,052,651.52
(as such payments may be reduced from time to time as a result of the application of prepayments in accordance with Section
2.11 and purchases or assignments in accordance with Section 9.05(g) or increased as a result of any increase in the amount
of such Amendment No. 2 Term Loans pursuant to Section 2.22(a)) and (ii) on the Initial Term Loan Maturity Date, in an amount
equal to the remainder of the principal amount of the Amendment No. 2 Term Loans outstanding on such date, together in each case with
accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment. The Borrower shall repay the
Additional Term Loans of any Class in such scheduled amortization installments and on such date or dates as shall be specified therefor
in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment (as such payments may be reduced from
time to time as a result of the application of prepayments in accordance with Section 2.11 and purchases or assignments in accordance
with Section 9.05(g) or increased as a result of any increase in the amount of such Additional Term Loans pursuant to Section
2.22(a)).
(b) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Revolving Lender the then unpaid
principal amount of each Revolving Loan on the Initial Revolving Credit Maturity Date and (ii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of (x) the 10th Business Day following the incurrence of such Swingline Loan and
(y) the Initial Revolving Credit Maturity Date. On the Initial Revolving Credit Maturity Date, the Borrower shall (A) cancel and return
all outstanding Letters of Credit (or alternatively, with respect to any outstanding Letter of Credit, furnish to the Administrative Agent
a Cash deposit (or if reasonably acceptable to the relevant Issuing Bank, a backup standby letter of credit) equal to 100% of the LC Exposure
(minus the amount then on deposit in the LC Collateral Account) as of such date) and (B) make payment in full in Cash of all accrued
and unpaid fees and all reimbursable expenses and other Obligations with respect to the Revolving Facility then due, together with accrued
and unpaid interest (if any) thereon.
(c) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from
time to time hereunder.
(d) The
Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for
the account of the Lenders or the Issuing Bank and each Lender’s share or the Issuing Bank’s share thereof.
(e) The
entries made in the accounts maintained pursuant to paragraphs (c) or (d) of this Section shall be prima facie evidence
of the existence and amounts of the obligations recorded therein (absent manifest error); provided that the failure of any Lender
or the Administrative Agent to maintain such accounts or any manifest error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement; provided, further, that in the event of any
inconsistency between the accounts maintained by the Administrative Agent pursuant to paragraph (d) of this Section and any Lender’s
records, the accounts of the Administrative Agent shall govern.
(f) Any
Lender may request that Loans made by it be evidenced by a Promissory Note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a Promissory Note payable to such Lender and its registered permitted assigns; it being understood and agreed that such
Lender (and/or its applicable permitted assign) shall be required to return such Promissory Note to the Borrower in accordance with Section
9.05(b)(iii) and upon the occurrence of the Termination Date (or as promptly thereafter as practicable). If any Lender loses the original
copy of its Promissory Note, it shall execute an affidavit of loss containing a customary indemnification provision that is reasonably
satisfactory to the Borrower. The obligation of each Lender to execute an affidavit of loss containing a customary indemnification provision
that is reasonably satisfactory to the Borrower shall survive the Termination Date.
Section 2.11. Prepayment of Loans.
(a) Optional Prepayments.
(i) Upon
prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from time
to time to prepay any Borrowing of Term Loans of one or more Classes (such Class or Classes to be selected by the Borrower in its sole
discretion) in whole or in part without premium or penalty (but subject to (A) in the case of Amendment No. 2 Term Loans only, Section
2.12(f) and (B) if applicable, Section 2.16). Each such prepayment shall be paid to the Lenders in accordance with their respective
Applicable Percentages of the relevant Class.
(ii) Upon
prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from time
to time to prepay any Borrowing of Revolving Loans of any Class or any Borrowing of Swingline Loans, including any Additional Revolving
Loans, in whole or in part without premium or penalty (but subject to Section 2.16). Prepayments made pursuant to this Section
2.11(a)(ii), first, shall be applied ratably to the Swingline Loans and to outstanding LC Disbursements and second, shall be applied
ratably to the outstanding Revolving Loans, including any Additional Revolving Loans of the relevant Class.
(iii) The Borrower shall
notify the Administrative Agent (and, in the case of a prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed
in writing) of any prepayment under this Section 2.11(a) (A) in the case of a prepayment of a LIBO Rate Borrowing, not later
than 1:00 p.m. three Business Days before the date of prepayment, (B) in the case of a prepayment of an ABR Borrowing, not later
than 1:00 p.m. on the date of prepayment or (C) in the case of a prepayment of a Swingline Loan, not later than 1:00 p.m. on the
date of prepayment (or, in each case, such later date or time to which the Administrative Agent may reasonably agree). Each such
notice shall be irrevocable (except as set forth in the proviso to this sentence) and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided that a notice of prepayment delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of other transactions, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Promptly following receipt of any such notice relating to any Borrowing, the Administrative Agent shall advise the
relevant Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in
the case of a Borrowing of the same Type and Class as provided in Section 2.02(c) or such lesser amount that is then
outstanding with respect to such Borrowing being repaid. Each prepayment of Term Loans shall be applied to the Class of Term Loans
as determined by the Borrower and specified in the applicable prepayment notice, and each prepayment of Term Loans of such Class
made pursuant to this Section 2.11(a) shall be applied against the remaining scheduled installments of principal due in
respect of the Term Loans of such Class in the manner specified by the Borrower or, if not so specified on or prior to the date of
such optional prepayment, in direct order of maturity.
(b) Mandatory Prepayments.
(i) No later than the
fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower are delivered
pursuant to Section 5.01(b), commencing with the Fiscal Year ending on or about June 30, 2019, the Borrower shall prepay
Subject Loans in accordance with clause (vi) below in an aggregate principal amount (the “ECF Prepayment
Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted
Subsidiaries for the Excess Cash Flow Period then most recently ended (this clause (A), the “Base ECF Prepayment
Amount”), minus (B) at the option of the Borrower, to the extent occurring during such Excess Cash Flow Period (or
occurring after such Excess Cash Flow Period and prior to the date of the applicable Excess Cash Flow payment), and without
duplication (including duplication of any amounts deducted in any prior Excess Cash Flow Period), the following (collectively, the
“ECF Deductions”):
(1) the
aggregate principal amount of any Initial Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant
to Section 2.11(a);
(2) (x)
the aggregate principal amount of any Incremental Equivalent Debt, Replacement Debt and/or any other Indebtedness permitted to be incurred
pursuant to Section 6.01 to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral
securing the Credit Facilities, voluntarily prepaid, repurchased, redeemed or otherwise retired and (y) the aggregate principal amount
of any loans under any Second Lien Facility (including any Incremental Loans and Additional Loans (as defined in the Second Lien Credit
Agreement or any other document governing any Second Lien Facility)) prepaid pursuant to Section 2.11(a) of the Second Lien Credit
Agreement (or equivalent provision under any other document governing any Second Lien Facility) (to the extent the relevant voluntary
prepayments are permitted by the terms of this Agreement) and the aggregate principal amount of Incremental Equivalent Debt and/or Replacement
Debt (as defined in the Second Lien Credit Agreement or any other document governing any Second Lien Facility) secured on a pari passu
basis with the Second Lien Facility voluntarily prepaid, repurchased, redeemed or otherwise retired (or contractually committed to
be prepaid, repurchased, redeemed or otherwise retired);
(3) (1) the amount of any reduction in the
outstanding amount of any Initial Term Loans, Additional Term Loans, Incremental Equivalent Debt, Replacement Debt and/or any other
Indebtedness permitted to be incurred pursuant to Section 6.01 to the extent secured by Liens on the Collateral that are pari
passu with the Liens on the Collateral securing the Credit Facilities, resulting from any purchase or assignment made in
accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) (with respect to Initial
Term Loans and/or Additional Term Loans) and any equivalent provisions with respect to any Incremental Equivalent Debt, Replacement
Debt and/or such other Indebtedness and/or (2) to the extent permitted by the terms of this Agreement, the amount of any reduction
in the outstanding amount of any loans under the Second Lien Facility and/or any “Incremental Equivalent Debt”,
“Replacement Debt” and/or other Indebtedness permitted to be incurred thereunder to the extent secured by Liens on the
Collateral that are pari passu with the Liens on the Collateral securing the Second Lien Facility (including any reduction
resulting from any purchase or assignment made in accordance with Section 9.05(g) of the Second Lien Credit Agreement (or
equivalent provision under any other document governing any Second Lien Facility) (including in connection with any Dutch Auction
(as defined in the Second Lien Credit Agreement or any other document governing any Second Lien Facility)) and any equivalent
provisions with respect to any such “Incremental Equivalent Debt”, “Replacement Debt” and/or such other
Indebtedness;
(4) all
Cash payments in respect of Capital Expenditures as would be reported in the Borrower’s consolidated statement of cash flows and
all Cash payments made to acquire IP Rights;
(5) Cash
payments by the Borrower and its Restricted Subsidiaries made (or committed) in respect of long-term liabilities (including for purposes
of clarity, the current portion of such long-term liabilities) of the Borrower and its Restricted Subsidiaries other than Indebtedness,
except to the extent such Cash payments were deducted in the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA for
such period;
(6) Cash payments in respect of any
Investment (including acquisitions) permitted by Section 6.06 or otherwise consented to by the Required Lenders (other than
Investments (x) in Cash or Cash Equivalents or (y) in the Borrower or any Loan Party) and/or any Restricted Payment permitted by Section
6.04(a) or otherwise consented to by the Required Lenders;
(7) the
aggregate consideration (i) required to be paid in Cash by the Borrower or its Restricted Subsidiaries pursuant to binding contracts entered
into prior to or during such period relating to Capital Expenditures, acquisitions or other Investments permitted by Section 6.06
or otherwise consented to by the Required Lenders and/or Restricted Payments described in clause (6) above and/or (ii) otherwise
committed or budgeted to be made in connection with Capital Expenditures, acquisitions or Investments and/or Restricted Payments described
in clause (6) above (clauses (i) and (ii) of this clause (7), the “Scheduled Consideration”) (other than Investments
in (x) Cash and Cash Equivalents or (y) the Borrower or any Loan Party) to be consummated or made during the period of four consecutive
Fiscal Quarters of the Borrower following the end of such period; provided that to the extent the aggregate amount actually utilized
to finance such Capital Expenditures, acquisitions, Investments or Restricted Payments during such subsequent period of four consecutive
Fiscal Quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added to the calculation of Excess
Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters;
(8) Cash
expenditures in respect of any Hedge Agreement during such period to the extent (A) not otherwise deducted in the calculation of Consolidated
Net Income or Consolidated Adjusted EBITDA and (B) not financed with long-term funded Indebtedness (other than revolving Indebtedness);
and
(9) the
aggregate amount of expenditures actually made by the Borrower and/or any Restricted Subsidiary in Cash (including any expenditure for
the payment of fees or other Charges (or any amortization thereof for such period) in connection with any Disposition, incurrence or repayment
of Indebtedness, issuance of Capital Stock, refinancing transaction, amendment or modification of any debt instrument, including this
Agreement, and including, in each case, any such transaction consummated prior to, on or after the Closing Date, and Charges incurred
in connection therewith, whether or not such transaction was successful), in each case to the extent that such expenditures were (A) not
expensed and (B) not financed with long-term funded Indebtedness (other than revolving Indebtedness);
in the case of each of clauses
(1)-(9), (I) excluding any such payments, prepayments and expenditures made during such Fiscal Year that reduced the
amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year, (II) in the case of any
prepayment of Revolving Loans and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction in the relevant
commitment, (III) to the extent that such payments, prepayments and expenditures were not financed with the proceeds of other
long-term funded Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries and (IV) in each
case under clause (3) above, based upon the actual amount of cash paid in connection with any relevant purchase or assignment; provided
that no prepayment under this Section 2.11(b)(i) shall be required unless the principal amount of Subject Loans required to
be prepaid exceeds $2,500,000 (and, in such case, only such amount in excess of $2,500,000 shall be required to be prepaid); provided, further,
that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is also required to
prepay, repurchase or offer to prepay or repurchase any Indebtedness that is secured on a pari passu basis (without regard to
the control of remedies) with any Secured Obligation pursuant to the terms of the documentation governing such Indebtedness (such
Indebtedness required to be so prepaid or repurchased or offered to be so prepaid or repurchased, “Other Applicable
Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF
Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Subject Loans
and the relevant Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original
issue discount) at such time) to the prepayment of the Subject Loans and to the prepayment of the relevant Other Applicable
Indebtedness, and the amount of prepayment of the Subject Loans that would have otherwise been required pursuant to this Section
2.11(b)(i) shall be reduced accordingly; it being understood that (1) the portion of such ECF Prepayment Amount allocated to the
Other Applicable Indebtedness shall not exceed the portion of such ECF Prepayment Amount required to be allocated to the Other
Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be
allocated to the Subject Loans in accordance with the terms hereof and (2) to the extent the holders of the Other Applicable
Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within
ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof.
(ii) No later than the fifth Business Day
following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case,
in excess of (x) $10,000,000 in any single transaction or series of related transactions and (y) $15,000,000 in any Fiscal Year, the
Borrower shall apply an amount equal to the Required Net Proceeds Percentage of the Net Proceeds or Net Insurance/Condemnation
Proceeds received with respect thereto in excess of such thresholds (collectively, the “Subject Proceeds”) to
prepay the outstanding principal amount of Subject Loans in accordance with clause (vi) below; provided that (A) if
prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to
reinvest the Subject Proceeds in assets used or useful in the business of the Borrower or any of its subsidiaries (including
permitted acquisitions or other Investments, but excluding Cash or Cash Equivalents), then the Borrower shall not be required to
make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds
are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its subsidiaries has contractually
committed to so reinvest the Subject Proceeds during such 18-month period and the Subject Proceeds are so reinvested within six
months after the expiration of such 18-month period; provided, however, that if the Subject Proceeds have not been so
reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the outstanding principal amount of
Subject Loans with the Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso)
and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is
required to repay or repurchase (or offer to repay or repurchase) any Other Applicable Indebtedness, then the relevant Person may
apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the
Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the
Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at
such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall
not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms
thereof (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the
terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section
2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have
such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the
date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof.
(iii) In
the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness
by the Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, except
to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of the Amendment No.
2 Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Amendment No. 2 Term Loans in accordance
with the requirements of Section 9.02(c)), the Borrower shall, substantially simultaneously with (and in any event not later than
two Business Days thereafter) the receipt of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount
equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Amendment No. 2 Term Loans in accordance
with clause (vi) below.
(iv) Notwithstanding
anything in this Section 2.11(b) to the contrary, (A) the Borrower shall not be required to prepay any amount that would
otherwise be required to be paid pursuant to Sections 2.11(b)(i), (ii) or (iii) above to the extent that the
relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign
Subsidiary, the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary or the relevant Indebtedness is
incurred by any Foreign Subsidiary (except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred by
any Foreign Subsidiary to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section
6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the
requirements of Section 9.02(c)), as the case may be, for so long as the Borrower determines in good faith that the
repatriation to the Borrower of any such amount would be prohibited or delayed (beyond the time period during which such prepayment
is otherwise required to be made pursuant to Section 2.11(b)(i), (ii) or (iii) above) under any Requirement of Law or
conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to
result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or
consultant of such Foreign Subsidiary (including on account of financial assistance, corporate benefit, thin capitalization, capital
maintenance or similar considerations); it being understood and agreed that (i) solely within 365 days following the end of the
applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt of proceeds from the
respective incurrence of Indebtedness, the Borrower shall take all commercially reasonable actions required by applicable
Requirements of Law to permit such repatriation and (ii) if the repatriation of the relevant affected Excess Cash Flow, Subject
Proceeds or Indebtedness proceeds, as the case may be, is permitted under the applicable Requirement of Law and, to the extent
applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result
in, a material risk of personal or criminal liability for the Persons described above, in either case, within 365 days following the
end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt of Net Proceeds
in respect of any such Indebtedness, the relevant Foreign Subsidiary will promptly repatriate the relevant Excess Cash Flow, Subject
Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, and the repatriated Excess Cash Flow, Subject Proceeds or
Net Proceeds in respect of Indebtedness, as the case may be, will be promptly (and in any event not later than two Business Days
after such repatriation) applied (net of additional Taxes payable or reserved against such Excess Cash Flow, such Subject Proceeds
or such Net Proceeds in respect of Indebtedness, as a result thereof, in each case by any Loan Party, such Loan Party’s
subsidiaries, and any Affiliates or indirect or direct equity owners of the foregoing) to the repayment of the Initial Term Loans
and Additional Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause
(iv), (B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections
2.11(b)(i) or (ii) to the extent that the relevant Excess Cash Flow is generated by any Joint Venture or the relevant
Subject Proceeds or Net Proceeds in respect of Indebtedness are received by any Joint Venture for so long as the Borrower determines
in good faith that the distribution to the Borrower of such Excess Cash Flow, Subject Proceeds or Net Proceeds in respect of
Indebtedness would be prohibited under the Organizational Documents (or any relevant shareholders’ or similar agreement)
governing such Joint Venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period
following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt
of Net Proceeds in respect of any such Indebtedness, the relevant Joint Venture will promptly distribute the relevant Excess Cash
Flow, the relevant Subject Proceeds or the relevant Net Proceeds in respect of Indebtedness, as the case may be, and the distributed
Excess Cash Flow, Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, will be promptly (and in any
event not later than ten Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a
result thereof) to the repayment of the Term Loans pursuant to this Section 2.11(b) to the extent required herein (without
regard to this clause (iv)) and (C) if the Borrower determines in good faith that the repatriation to the Borrower of any
amounts required to mandatorily prepay the Initial Term Loans and Additional Term Loans pursuant to Sections 2.11(b)(i), (ii)
or (iii) above would result in material and adverse tax consequences, taking into account any foreign tax credit or benefit
actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as determined by the
Borrower in good faith, the amount the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i), (ii)
or (iii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the
repatriation of any Subject Proceeds, Excess Cash Flow or the Net Proceeds in respect of any such Indebtedness from the relevant
Foreign Subsidiary would no longer have a material and adverse tax consequence within the 365- day period following the event giving
rise to the relevant Subject Proceeds, the receipt of Net Proceeds in respect of any such Indebtedness or the end of the applicable
Excess Cash Flow Period, as the case may be, an amount equal to the Subject Proceeds, Excess Cash Flow or the Net Proceeds in
respect of any such Indebtedness, as applicable, not previously applied pursuant to this clause (C), shall be promptly
applied to the repayment of the Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise
required above (without regard to this clause (iv));
(v) Each
Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent,
prior to any prepayment of Initial Term Loans and Additional Term Loans required to be made by the Borrower pursuant to this Section
2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined
Proceeds”), which Declined Proceeds may be retained by the Borrower and used for any legal purpose permitted (or not prohibited)
hereunder, including to increase the Available Amount; provided, further, that, for the avoidance of doubt, no Lender may
reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of
(w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of the Initial Term Loans or Additional
Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant
to Section 2.22, (y) Replacement Loans incurred to refinance all or a portion of the Term Loans in accordance with the requirements
of Section 9.02(c) and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance
with the requirements of Section 6.01(z). If any Lender fails to deliver a notice to the Administrative Agent of its election to
decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent,
such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory
prepayment of Initial Term Loans and Additional Term Loans.
(vi) Except as may otherwise
be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Initial Term Loans
and Additional Term Loans pursuant to this Section 2.11(b) shall be applied ratably to each Class of Term Loans (based upon the
then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment constituting (w) Refinancing
Indebtedness (including Replacement Debt) incurred to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant
to Section 6.01(p), (x) Incremental Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22,
(y) Replacement Loans incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 9.02(c)
and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements
of Section 6.01(z) shall, in each case be applied solely to each applicable Class of refinanced or replaced Term Loans), (B) with
respect to each Class of Initial Term Loans and Additional Term Loans, all accepted prepayments under Section 2.11(b)(i), (ii)
or (iii) shall be applied against the remaining scheduled installments of principal due in respect of the Initial Term Loans
and Additional Term Loans as directed by the Borrower (or, in the absence of direction from the Borrower, to the remaining scheduled
amortization payments in respect of the Initial Term Loans and Additional Term Loans in direct order of maturity), and (C) each such
prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentages. The amount of such mandatory
prepayments shall be applied on a pro rata basis to the then outstanding Initial Term Loans and Additional Term Loans being prepaid irrespective
of whether such outstanding Loans are ABR Loans or LIBO Rate Loans; provided that the amount thereof shall be applied first to
ABR Loans to the full extent thereof before application to the LIBO Rate Loans in a manner that minimizes the amount of any payments
required to be made by the Borrower pursuant to Section 2.16. Any prepayment of Amendment No. 2 Term Loans made on or prior to
the date that is six months after the Amendment No. 2 Effective Date pursuant to Section 2.11(b)(iii) as part of a Repricing Transaction
shall be accompanied by the fee set forth in Section 2.12(f).
(vii) In
the event that the Aggregate Revolving Credit Exposure exceeds the Total Revolving Credit Commitment then in effect, the Borrower shall,
within five Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Loans or Swingline Loans and/or reduce
LC Exposure in an aggregate amount sufficient to reduce such Aggregate Revolving Credit Exposure as of the date of such payment to an
amount not to exceed the Total Revolving Credit Commitment then in effect by taking any of the following actions as it shall determine
at its sole discretion: (A) prepayment of Revolving Loans or Swingline Loans or (B) with respect to the excess LC Exposure, deposit of
Cash in the LC Collateral Account or “backstopping” or replacement of the relevant Letters of Credit, in each case, in an
amount equal to 100% of such excess LC Exposure (minus the amount then on deposit in the LC Collateral Account).
(viii) At
the time of each prepayment required under Section 2.11(b)(i), (ii) or (iii), the Borrower shall deliver to the Administrative
Agent a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the amount of
such prepayment. Each such certificate shall specify the Borrowings being prepaid and the principal amount of each Borrowing (or portion
thereof) to be prepaid. Prepayments shall be accompanied by accrued interest as required by Section 2.13. All prepayments of Borrowings
under this Section 2.11(b) shall be subject to Section 2.16 and, except as set forth in the last sentence of clause (vi)
above, shall otherwise be without premium or penalty.
Section 2.12. Fees.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender of any Class (other than any Defaulting Lender)
a commitment fee, which shall accrue at a rate equal to the Commitment Fee Rate per annum applicable to the Revolving Credit Commitment
of such Class on the average daily amount of the Unused Revolving Credit Commitment of such Class of such Revolving Lender during the
period from and including the Closing Date to the date on which such Lender’s Revolving Credit Commitments of such Class terminate.
Accrued commitment fees shall be payable in arrears on the last Business Day of each March, June, September and December for the quarterly
period then ended (commencing on September 30, 2017, but in the case of the payment made on September 30, 2017, for the period from the
Closing Date to such date) and on the date on which the Revolving Credit Commitments of the applicable Class terminate. For purposes of
calculating the commitment fees only, no portion of the Revolving Credit Commitments shall be deemed utilized as a result of outstanding
Swingline Loans.
(b) The
Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender of any Class (other than any Defaulting
Lender) a participation fee with respect to its participation in each Letter of Credit, which shall accrue at the Applicable Rate used
to determine the interest rate applicable to LIBO Rate Revolving Loans on the daily face amount of such Lender’s LC Exposure attributable
to its Revolving Credit Commitment of such Class in respect of such Letter of Credit (excluding any portion thereof attributable to unreimbursed
LC Disbursements), during the period from and including the Closing Date to the later of the date on which such Revolving Lender’s
Revolving Credit Commitment of such Class terminates and the date on which such Revolving Lender ceases to have any LC Exposure related
to its Revolving Credit Commitment of such Class in respect of such Letter of Credit (including any such Letter of Credit Exposure that
may exist following the termination of such Revolving Credit Commitments) and (ii) to each Issuing Bank, for its own account, a fronting
fee, in respect of each Letter of Credit issued by such Issuing Bank for the period from the date of issuance of such Letter of Credit
to the expiration date of such Letter of Credit (or if terminated on an earlier date, to the termination date of such Letter of Credit),
computed at a rate equal to the rate agreed by such Issuing Bank and the Borrower (but in any event not to exceed 0.125% per annum) of
the daily face amount of such Letter of Credit, as well as such Issuing Bank’s reasonable and customary fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting
fees accrued to but excluding the last Business Day of each March, June, September and December shall be payable in arrears for the quarterly
period then ended (or, in the case of the payment made on September 30, 2017, for the period from the Closing Date to such date) on the
last Business Day of such calendar quarter; provided that all such fees shall be payable on the date on which the Revolving Credit
Commitments of the applicable Class terminate, and any such fees accruing after the date on which the Revolving Credit Commitments of
the applicable Class terminate shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to this paragraph shall
be payable within 30 days after receipt of a written demand (accompanied by reasonable back-up documentation) therefor.
(c) [Reserved].
(d) The
Borrower agrees to pay to the Administrative Agent, for its own account, the fees in the amounts and at the times separately agreed upon
by the Borrower and the Administrative Agent in writing.
(e) All
fees payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Administrative Agent (or
to the applicable Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation
fees, to the Revolving Lenders. Fees paid shall not be refundable under any circumstances except as otherwise provided in the Fee Letter.
Fees payable hereunder shall accrue through and including the last day of the month immediately preceding the applicable fee payment date.
(f) In the event that, on
or prior to the date that is six months after the Amendment No. 2 Effective Date, the Borrower (x) prepays, repays, refinances,
substitutes or replaces any Amendment No. 2 Term Loans in connection with a Repricing Transaction (including, for the avoidance of
doubt, any prepayment made pursuant to Section 2.11(b)(iii) that constitutes a Repricing Transaction) or (y) effects any
amendment, modification or waiver of, or consent under, this Agreement resulting in a Repricing Transaction, the Borrower shall pay
to the Administrative Agent, for the ratable account of each of the applicable Amendment No. 2 Term Lenders, (I) in the case of clause
(x), a premium of 1.00% of the aggregate principal amount of the Amendment No. 2 Term Loans so prepaid, repaid, refinanced,
substituted or replaced and (II) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the
Amendment No. 2 Term Loans that are the subject of such Repricing Transaction outstanding immediately prior to such amendment. If,
on or prior to the date that is six months after the Amendment No. 2 Effective Date, all or any portion of the Amendment No. 2 Term
Loans held by any Term Lender are prepaid, repaid, refinanced, substituted or replaced pursuant to Section 2.19(b)(iv) as a
result of, or in connection with, such Term Lender not agreeing or otherwise consenting to any waiver, consent, modification or
amendment referred to in clause (y) above (or otherwise in connection with a Repricing Transaction), such prepayment,
repayment, refinancing, substitution or replacement will be made at 101% of the principal amount so prepaid, repaid, refinanced,
substituted or replaced. All such amounts shall be due and payable on the date of effectiveness of such Repricing Transaction.
(g) Unless
otherwise indicated herein, all computations of fees shall be made on the basis of a 360-day year and shall be payable for the actual
days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of the amount of any
fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section 2.13. Interest.
(a) The
Term Loans and Revolving Loans comprising each ABR Borrowing (including Swingline Loans) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The
Term Loans and Revolving Loans comprising each LIBO Rate Borrowing shall bear interest at the LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate.
(c) [Reserved].
(d) Notwithstanding
the foregoing, during the existence and continuance of any Event of Default under Section 7.01(a), if any principal of or interest
on any Amendment No. 2 Term Loan or Revolving Loan, any LC Disbursement or any fee payable by the Borrower hereunder is not, in each case,
paid or reimbursed when due, whether at stated maturity, upon acceleration or otherwise, the relevant overdue amount shall bear interest,
to the fullest extent permitted by applicable Requirements of Law, after as well as before judgment, at a rate per annum equal to (i)
in the case of overdue principal or interest of any Amendment No. 2 Term Loan, Revolving Loan or unreimbursed LC Disbursement, 2.00% plus
the rate otherwise applicable to such Amendment No. 2 Term Loan, Revolving Loan or LC Disbursement as provided in the preceding paragraphs
of this Section or Section 2.05(h) or (ii) in the case of any other amount, 2.00% plus the rate applicable to Revolving
Loans that are ABR Loans as provided in paragraph (a) of this Section; provided that no amount shall be payable pursuant
to this Section 2.13(d) to any Defaulting Lender so long as such Lender is a Defaulting Lender; provided further that no
amounts shall accrue pursuant to this Section 2.13(d) on any overdue amount, reimbursement obligation in respect of any LC Disbursement
or other amount payable to a Defaulting Lender so long as such Lender is a Defaulting Lender.
(e) Accrued interest on
each Amendment No. 2 Term Loan, Revolving Loan or Swingline Loan shall be payable in arrears on each Interest Payment Date for such
Amendment No. 2 Term Loan, Revolving Loan or Swingline Loan and on the Maturity Date applicable to such Loan or upon the termination
of the Revolving Credit Commitments, as applicable; provided that (i) interest accrued pursuant to paragraph (d) of
this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Amendment No. 2 Term Loan or
Revolving Loan (other than a prepayment of an ABR Revolving Loan prior to the termination of the relevant revolving Commitments),
accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any LIBO Rate Loan prior to the end of the current Interest Period therefor, accrued interest on such
Amendment No. 2 Term Loan or Revolving Loan shall be payable on the effective date of such conversion. Accrued interest for any
Class of Additional Revolving Loans or Additional Term Loans shall be payable as set forth in the applicable Refinancing Amendment,
Incremental Facility Amendment or Extension Amendment.
(f) All
interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed for ABR Loans based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest error. Interest shall accrue on each
Loan from the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or
such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall bear interest for one day;
provided further that, in the case of any ABR Loan, interest shall accrue through and including the last day of the month preceding
the applicable Interest Payment Date.
Section 2.14. Alternate Rate of Interest. If
at least two Business Days prior to the commencement of any Interest Period for a LIBO Rate Borrowing:
(a) the
Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the LIBO Rate for such Interest Period; or
(b) the
Administrative Agent is advised by the Required Lenders that the LIBO Rate for such Interest Period will not adequately and fairly reflect
the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall promptly give
notice thereof to the Borrower and the Lenders by telephone or facsimile as promptly as practicable thereafter and, until the Administrative
Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, which the Administrative
Agent agrees promptly to do, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any
Borrowing as, a LIBO Rate Borrowing shall be ineffective and such Borrowing shall be converted to an ABR Borrowing on the last day of
the Interest Period applicable thereto and (ii) if any Borrowing Request requests a LIBO Rate Borrowing, such Borrowing shall be made
as an ABR Borrowing.
Section 2.15. Increased Costs.
(a) If any Change in Law:
(i) imposes,
modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement reflected in the LIBO Rate) or Issuing Bank; or
(ii) imposes
on any Lender or Issuing Bank or the London interbank market any other condition affecting this Agreement or LIBO Rate Loans made by any
Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing is to
increase the cost to the relevant Lender of making or maintaining any LIBO Rate Loan (or of maintaining its obligation to make any
such Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest
or otherwise) in respect of any LIBO Rate Loan or Letter of Credit in an amount deemed by such Lender or Issuing Bank to be
material, then, within 30 days after the Borrower’s receipt of the certificate contemplated by paragraph (c) of this
Section, the Borrower will pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate
such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered (except that this provision
shall not apply to any Taxes, which shall be dealt with exclusively pursuant to Section 2.17); provided that the
Borrower shall not be liable for such compensation if (x) the relevant Change in Law occurs on a date prior to the date such Lender
becomes a party hereto, (y) such Lender invokes Section 2.20 or (z) in the case of requests for reimbursement under clause
(ii) above resulting from a market disruption, (A) the relevant circumstances do not generally affect the banking market or (B)
the applicable request has not been made by Lenders constituting Required Lenders.
(b) If
any Lender or Issuing Bank determines that any Change in Law regarding liquidity or capital requirements has or would have the effect
of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing
Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank
or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law other than due to Taxes,
which shall be dealt with exclusively pursuant to Section 2.17 (taking into consideration such Lender’s or Issuing Bank’s
policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy), then
within 30 days of receipt by the Borrower of the certificate contemplated by paragraph (c) of this Section the Borrower will pay
to such Lender or such Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or such Issuing Bank
or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.
(c) Any
Lender or Issuing Bank requesting compensation under this Section 2.15 shall be required to deliver a certificate to the Borrower
that (i) sets forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as
specified in paragraph (a) or (b) of this Section, (ii) sets forth in reasonable detail the manner in which such amount
or amounts were determined and (iii) certifies that such Lender or Issuing Bank is generally charging such amounts to similarly situated
borrowers, which certificate shall be conclusive absent manifest error.
(d) Failure
or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such
Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate
a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date
that such Lender or Issuing Bank notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or Issuing Bank’s intention to claim compensation therefor; provided, further, that if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.
Section 2.16. Break
Funding Payments. In the event of (a) the conversion or prepayment of any principal of any LIBO Rate Loan other than on the last
day of an Interest Period applicable thereto (whether voluntary, mandatory, automatic, by reason of acceleration or otherwise), (b)
the failure to borrow, convert, continue or prepay any LIBO Rate Loan on the date or in the amount specified in any notice delivered
pursuant hereto or (c) the assignment of any LIBO Rate Loan of any Lender other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense incurred by such Lender that is attributable to such event (other than
loss of profit). In the case of a LIBO Rate Loan, the loss, cost or expense of any Lender shall be the amount reasonably determined
by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the LIBO Rate that would have been applicable to such Loan, for the period from the date of such
event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Loan) over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such
period, for deposits in the applicable currency of a comparable amount and period from other banks in the Eurodollar market; it
being understood that such loss, cost or expense shall in any case exclude any interest rate floor and all administrative,
processing or similar fees. Any Lender requesting compensation under this Section 2.16 shall be required to deliver a
certificate to the Borrower (i) setting forth any amount or amounts that such Lender is entitled to receive pursuant to this
Section, the basis therefor and, in reasonable detail, the manner in which such amount or amounts were determined and (ii)
certifying that such Lender is generally charging the relevant amounts to similarly situated borrowers , which certificate shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days
after receipt thereof.
Section 2.17. Taxes.
(a) Any
and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and without
deduction for any Taxes, except as required by applicable Requirements of Law. If any applicable Requirement of Law requires the deduction
or withholding of any Tax from any such payment, then (i) if such Tax is an Indemnified Tax, the amount payable by the applicable Loan
Party shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, each Lender and each Issuing Bank (as applicable) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Loan Party shall make such deductions and (iii) such Loan Party
shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements of Law.
(b) In
addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements
of Law.
(c) Each Loan Party shall
indemnify the Administrative Agent, each Lender and each Issuing Bank within 30 days after receipt of the certificate described in
the succeeding sentence, for the full amount of any Indemnified Taxes payable or paid by the Administrative Agent, such Lender or
Issuing Bank, as applicable, on or with respect to any payment by or any payment on account of any obligation of any Loan Party
hereunder (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority; provided, however that the Loan Parties shall not be obligated to indemnify
the Administrative Agent or such Lender or such Issuing Bank with respect to any penalties resulting from any action or inaction of
the Administrative Agent or such Lender or Issuing Bank; and provided further, that if such Loan Party reasonably believes
that such Taxes were not correctly or legally asserted, the Administrative Agent or such Lender or Issuing Bank, as applicable, will
use reasonable efforts to cooperate with such Loan Party to obtain a refund of such Taxes (which shall be repaid to such Loan Party
in accordance with Section 2.17(g)) so long as such efforts would not, in the sole determination of the Administrative Agent
or such Lender or Issuing Bank, result in any additional out- of-pocket costs or expenses not reimbursed by such Loan Party or be
otherwise materially disadvantageous to the Administrative Agent or such Lender or Issuing Bank, as applicable. In connection with
any request for reimbursement under this Section 2.17(c), the relevant Lender, Issuing Bank or the Administrative Agent, as
applicable, shall deliver a certificate to the Borrower (i) setting forth, in reasonable detail, the basis and calculation of the
amount of the relevant payment or liability and (ii) certifying that it is generally charging the relevant amounts to similarly
situated borrowers, which certificate shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained
in this Section 2.17(c), the Borrower shall not be required to indemnify the Administrative Agent or any Lender pursuant to
this Section 2.17(c) for any amount to the extent the Administrative Agent or such Lender fails to notify the Borrower of the
relevant possible indemnification claim within 180 days after the Administrative Agent or such Lender receives written notice from
the applicable taxing authority of the specific tax assessment giving rise to such indemnification claim.
(d) Each
Lender and each Issuing Bank shall severally indemnify the Administrative Agent, within 30 days after demand therefor, for (i) any Indemnified
Taxes on or with respect to any payment under any Loan Document that is attributable to such Lender or Issuing Bank (but only to the extent
that no Loan Party has already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of
the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s or Issuing Bank’s failure to comply with the provisions
of Section 9.05(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender
or Issuing Bank, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender or Issuing Bank by the Administrative
Agent shall be conclusive absent manifest error. Each Lender and Issuing Bank hereby authorizes the Administrative Agent to set off and
apply any and all amounts at any time owing to such Lender or Issuing Bank under any Loan Document or otherwise payable by the Administrative
Agent to any Lender or Issuing Bank under any Loan Document or otherwise payable by the Administrative Agent to any Lender or Issuing
Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) As
soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority, such Loan Party shall deliver to the Administrative
Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment that is reasonably satisfactory to the Administrative Agent.
(f) Status of Lenders.
(i) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation as the Borrower or the Administrative Agent may reasonably request to permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by
the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or
not such Lender is subject to backup withholding or information reporting requirements. Each Lender hereby authorizes the Administrative
Agent to deliver to the Borrower and to any successor Administrative Agent any documentation provided to the Administrative Agent pursuant
to this Section 2.17(f).
(ii) Without limiting the generality of the foregoing,
(A) each
Lender that is not a Foreign Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative
Agent), two executed original copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) each
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following
is applicable:
(1) in
the case of any Foreign Lender claiming the benefits of an income tax treaty to which the U.S. is a party (x) with respect to payments
of interest under any Loan Document, executed original copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction
of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable
payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding
Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed original copies of IRS Form W-8ECI;
(3) in
the case of any Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit L-1 to the effect that such Foreign Lender is not a “bank” within the meaning
of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B)
of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance
Certificate”) and (y) executed original copies of IRS Form W-8BEN or W- 8BEN-E; or
(4) to
the extent any Foreign Lender is not the beneficial owner, executed original copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI,
IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3,
IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such Foreign Lender
is a partnership and one or more partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may
provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such partner;
(C) each Foreign Lender
shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed original copies
of any other form prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Requirements of
Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if
a payment made to any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law
and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation as is prescribed by applicable
Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested
by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations
under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount
to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made
to FATCA after the date of this Agreement.
Each Lender agrees that if any documentation it
previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such documentation or promptly notify the
Borrower and the Administrative Agent in writing of its legal inability to do so.
(g) If the Administrative
Agent or any Lender or Issuing Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any
Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which such Loan Party has paid additional
amounts pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it
shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by
such Loan Party under this Section 2.17 with respect to the Indemnified Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or Issuing Bank (including any Taxes imposed with respect to such
refund), and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided
that such Loan Party, upon the request of the Administrative Agent, such Lender or Issuing Bank, agrees to repay the amount paid
over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or Issuing Bank in the event the Administrative Agent, such Lender or Issuing Bank is required to
repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event
will the Administrative Agent, any Lender or Issuing Bank be required to pay any amount to any Loan Party pursuant to this paragraph
(g) to the extent that the payment thereof would place the Administrative Agent, Lender or Issuing Bank in a less favorable net
after-Tax position than the position that the Administrative Agent or such Lender or Issuing Bank would have been in if the Tax
subject to indemnification had not been deducted, withheld or otherwise imposed and the indemnification payments or additional
amounts giving rise to such refund had never been paid. This Section shall not be construed to require the Administrative Agent, any
Lender or any Issuing Bank to make available its Tax returns (or any other information relating to its Taxes which it deems
confidential) to the relevant Loan Party or any other Person.
(h) The Administrative
Agent shall deliver to Borrower, on or before the date on which it becomes the Administrative Agent hereunder, either (i) a duly
executed original IRS Form W-9 (or any applicable successor form) certifying that the Administrative Agent is not subject to backup
withholding, or (ii) (A) a duly completed executed original IRS Form W-8ECI to establish that the Administrative Agent is not
subject to withholding Taxes under the Internal Revenue Code with respect to any amounts payable for the account of the
Administrative Agent under any of the Loan Documents and (B) a duly executed original IRS Form W-8IMY (or applicable successor form)
certifying that it is a U.S. branch that has agreed to be treated as a U.S. person for United States federal withholding Tax
purposes with respect to payments received by it from the Borrower for the account of others under the Loan Documents. The
Administrative Agent shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide the
certification described in the preceding sentence. The Administrative Agent shall also, at the time or times prescribed by law and
at such time or times reasonably requested by the Borrower, provide the Borrower such documentation as prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the
Borrower as may be necessary for the Borrower to comply with its FATCA obligations, to determine whether the Administrative Agent
has or has not complied with its FATCA obligations, and to determine the amount, if any, to deduct and withhold from a payment to
the Administrative Agent.
(i) Survival.
Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent
or any assignment of rights by, or the replacement of, any Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all obligations under any Loan Document.
Section 2.18. Payments Generally; Allocation of Proceeds; Sharing
of Payments.
(a) Unless otherwise
specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior
to the time expressed hereunder or under such Loan Document (or, if no time is expressly required, by 2:00 p.m.) on the date when
due, in immediately available funds, without set-off (except as otherwise provided in Section 2.17) or counterclaim. Any
amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent to the applicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the
applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections
2.15, 2.16 or 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round such Lender’s percentage of such Borrowing to the next higher or lower
whole dollar amount. Except as set forth in any amendment entered into pursuant to Section 9.02(b)(ii)(E) with respect to the
making of Revolving Loans or Letters of Credit denominated in a currency other than Dollars, all payments (including accrued
interest) hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed
to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to
make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the
Administrative Agent to make such payment.
(b) Subject
in all respects to the provisions of the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement, all proceeds
of Collateral received by the Administrative Agent at any time when an Event of Default exists, shall, upon election by the Administrative
Agent or at the direction of the Required Lenders, be applied, first, to the payment of all costs and expenses then due incurred
by the Administrative Agent in connection with any collection, sale or realization on Collateral or otherwise in connection with this
Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of agents and
legal counsel, the repayment of all advances made by the Administrative Agent hereunder or under any other Loan Document on behalf of
any Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any
other Loan Document, second, on a pro rata basis, to pay any fees, indemnities or expense reimbursements then due to the Administrative
Agent (other than those covered in clause first above) or to the Swingline Lender or any Issuing Bank from the Borrower constituting Secured
Obligations, third, on a pro rata basis in accordance with the amounts of the Secured Obligations (other than contingent indemnification
obligations for which no claim has yet been made) owed to the Secured Parties on the date of any such distribution, to the payment in
full of the Secured Obligations (including, with respect to LC Exposure, an amount to be paid to the Administrative Agent equal to 100%
of the LC Exposure (minus the amount then on deposit in the LC Collateral Account) on such date, to be held in the LC Collateral
Account as Cash collateral for such Obligations); provided that if any Letter of Credit expires undrawn, then any Cash collateral
held to secure the related LC Exposure shall be applied in accordance with this Section 2.18(b), beginning with clause first above,
fourth, as provided for under the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement, and fifth,
to the Borrower or as the Borrower shall direct.
(c) If any Lender obtains
payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) in respect of any principal of
or interest on any of its Loans of any Class or participations in LC Disbursements or Swingline Loans held by it resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its Loans of such Class and participations in LC
Disbursements or Swingline Loans and accrued interest thereon than the proportion received by any other Lender with Loans of such
Class and participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase
(for Cash at face value) participations in the Loans of such Class and sub-participations in LC Disbursements or Swingline Loans of
other Lenders of such Class at such time outstanding to the extent necessary so that the benefit of all such payments shall be
shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of and accrued interest on their
respective Loans of such Class and participations in LC Disbursements or Swingline Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this
paragraph shall not apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this
Agreement or (y) any payment obtained by any Lender as consideration for the assignment of or sale of a participation in any of its
Loans to any permitted assignee or participant, including any payment made or deemed made in connection with Sections 2.22, 2.23, 9.02(c)
and/or Section 9.05. The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct
creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive
and binding in the absence of manifest error) of participations purchased under this Section 2.18(c) and will, in each case,
notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section
2.18(c) shall from and after such purchase have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
(d) Unless
the Administrative Agent has received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent
for the account of any Lender or any Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute
to the applicable Lender or Issuing Bank the amount due. In such event, if the Borrower has not in fact made such payment, then each Lender
or the applicable Issuing Bank severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.
(e) If
any Lender fails to make any payment required to be made by it pursuant to Section 2.07(b) or Section 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by
the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.
Section 2.19. Mitigation Obligations; Replacement of
Lenders.
(a) If any Lender requests
compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO Rate Loans pursuant to Section
2.20, or the Borrower is required to pay any additional amount to or indemnify any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or its participation in any Letter of Credit affected by such event, or to assign its rights
and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation
or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as applicable, in the future
or mitigate the impact of Section 2.20, as the case may be, and (ii) would not subject such Lender to any material unreimbursed
out-of-pocket cost or expense and would not otherwise be disadvantageous to such Lender in any material respect. The Borrower hereby
agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) If (i) any Lender
requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO Rate Loans pursuant
to Section 2.20, (ii) the Borrower is required to pay any additional amount to or indemnify any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, (iii) any Lender is a Defaulting Lender or (iv) in
connection with any proposed amendment, waiver or consent requiring the consent of “each Lender”, “each Revolving
Lender” or “each Lender directly affected thereby” (or any other Class or group of Lenders other than the Required
Lenders) with respect to which Required Lender or Required Revolving Lender consent (or the consent of Lenders holding loans or
commitments of such Class or lesser group representing more than 50% of the sum of the total loans and unused commitments of such
Class or lesser group at such time) has been obtained, as applicable, any Lender is a non-consenting Lender (each such Lender, a
“Non-Consenting Lender”), then the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, (x) terminate the applicable Commitments and/or Additional Commitments of such Lender, and repay all
Obligations of the Borrower owing to such Lender relating to the applicable Loans and participations held by such Lender as of such
termination date under one or more Credit Facilities or Additional Credit Facilities as the Borrower may elect or (y) replace such
Lender by requiring such Lender to assign and delegate (and such Lender shall be obligated to assign and delegate), without recourse
(in accordance with and subject to the restrictions contained in Section 9.05), all of its interests, rights and obligations
under this Agreement to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if
any Lender accepts such assignment); provided that (A) such Lender shall have received payment of an amount equal to the
outstanding principal amount of its Loans and, if applicable, participations in LC Disbursements and Swingline Loans, in each case
of such Class of Loans, Commitments and/or Additional Commitments, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder with respect to such Class of Loans, Commitments and/or Additional Commitments, (B) in the case of any
assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section
2.17, such assignment will result in a reduction in such compensation or payments and (C) such assignment does not conflict with
applicable law. No Lender (other than a Defaulting Lender) shall be required to make any such assignment and delegation, and the
Borrower may not repay the Obligations of such Lender or terminate its Commitments or Additional Commitments, if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation
cease to apply. Each Lender agrees that if it is replaced pursuant to this Section 2.19, it shall execute and deliver to the
Administrative Agent an Assignment and Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent
any Promissory Note (if the assigning Lender’s Loans are evidenced by one or more Promissory Notes) subject to such Assignment
and Assumption (provided that the failure of any Lender replaced pursuant to this Section 2.19 to execute an
Assignment and Assumption or deliver any such Promissory Note shall not render such sale and purchase (and the corresponding
assignment) invalid), such assignment shall be recorded in the Register and any such Promissory Note shall be deemed cancelled. Each
Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Lender’s
attorney-in-fact, with full authority in the place and stead of such Lender and in the name of such Lender, from time to time in the
Administrative Agent’s discretion, with prior written notice to such Lender, to take any action and to execute any such
Assignment and Assumption or other instrument that the Administrative Agent may deem reasonably necessary to carry out the
provisions of this clause (b). To the extent that any Lender is replaced pursuant to Section 2.19(b)(iv) in connection
with a Repricing Transaction requiring payment of a fee pursuant to Section 2.12(f), the Borrower shall pay to each Lender
being replaced as a result of such Repricing Transaction the fee set forth in Section 2.12(f).
Section 2.20. Illegality.
If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted
after the Closing Date that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose
interest is determined by reference to the Published LIBO Rate, or to determine or charge interest rates based upon the Published
LIBO Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, (i) any obligation of such Lender to make or continue LIBO Rate Loans in Dollars or to convert ABR Loans to
LIBO Rate Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining ABR Loans the
interest rate on which is determined by reference to the Published LIBO Rate component of the Alternate Base Rate, the interest rate
on which ABR Loans of such Lender, shall, if necessary to avoid such illegality, be determined by the Administrative Agent without
reference to the Published LIBO Rate component of the Alternate Base Rate, in each case until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist (which notice such
Lender agrees to give promptly). Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to
the Administrative Agent), prepay or convert all of such Lender’s LIBO Rate Loans to ABR Loans (the interest rate on which ABR
Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to
the Published LIBO Rate component of the Alternate Base Rate) either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such LIBO Rate Loans to such day, or immediately, if such Lender may not lawfully continue to
maintain such LIBO Rate Loans (in which case the Borrower shall not be required to make payments pursuant to Section 2.16 in
connection with such payment) and (y) if such notice asserts the illegality of such Lender determining or charging interest rates
based upon the Published LIBO Rate, the Administrative Agent shall during the period of such suspension compute the Alternate Base
Rate applicable to such Lender without reference to the Published LIBO Rate component thereof until the Administrative Agent is
advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the
Published LIBO Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid
or converted. Each Lender agrees to designate a different lending office if such designation will avoid the need for such notice and
will not, in the determination of such Lender, otherwise be materially disadvantageous to such Lender.
Section 2.21. Defaulting
Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following
provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees
shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to Section 2.12(a) and, subject
to clause (d)(iv) below, on the participation of such Defaulting Lender in Letters of Credit pursuant to Section 2.12(b)
and pursuant to any other provisions of this Agreement or other Loan Document.
(b) The
Commitments, Loans and LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, each affected Lender,
the Required Lenders, Required Revolving Lenders or such other number of Lenders as may be required hereby or under any other Loan Document
have taken or may take any action hereunder (including any consent to any waiver, amendment or modification pursuant to Section 9.02);
provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects
such Defaulting Lender disproportionately and adversely relative to other affected Lenders shall require the consent of such Defaulting
Lender.
(c) Any payment of
principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Section 2.11, Section 2.15, Section 2.16, Section 2.17, Section
2.18, Article 7, Section 9.05 or otherwise, and including any amounts made available to the Administrative Agent
by such Defaulting Lender pursuant to Section 9.09), shall be applied at such time or times as may be determined by the
Administrative Agent and, where relevant, the Borrower as follows: first, to the payment of any amounts owing by such
Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts
owing by such Defaulting Lender to any applicable Issuing Bank and/or Swingline Lender hereunder; third, if so reasonably
determined by the Administrative Agent or reasonably requested by the applicable Issuing Bank, to be held as Cash collateral for
future funding obligations of such Defaulting Lender in respect of any participation in any Letter of Credit; fourth, so long
as no Default or Event of Default exists, as the Borrower may request, to the funding of any Loan in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement; fifth, if so determined by the
Administrative Agent or the Borrower, to be held in a deposit account and released in order to satisfy obligations of such
Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the non-Defaulting
Lenders, Issuing Banks or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any
non-Defaulting Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; seventh, to the payment of any amounts owing to the Borrower
as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result
of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Loan or LC Exposure in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such
Loan or LC Exposure was made or created, as applicable, at a time when the conditions set forth in Section 4.02 were
satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Exposure owed to, all non-Defaulting Lenders
on a pro rata basis prior to being applied to the payment of any Loans of, or LC Exposure owed to, such Defaulting Lender.
Any payments, prepayments or other amounts paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed
by any Defaulting Lender or to post Cash collateral pursuant to this Section 2.21(c) shall be deemed paid to and redirected
by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d) If any
Swingline Loans or LC Exposure exists at the time any Lender becomes a Defaulting Lender then:
(i) all
or any part of such Swingline Loans and LC Exposure shall be reallocated among the non-Defaulting Revolving Lenders in accordance with
their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures
does not exceed the total of all non-Defaulting Revolving Lenders’ Revolving Credit Commitments;
(ii) if
the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, without prejudice
to any other right or remedy available to it hereunder or under applicable Requirements of Law, within two Business Days following notice
by the Administrative Agent, Cash collateralize 100% of such Defaulting Lender’s LC Exposure and any obligations of such Defaulting
Lender to fund participations in any Swingline Loan (after giving effect to any partial reallocation pursuant to paragraph (i)
above and any Cash collateral provided by such Defaulting Lender or pursuant to Section 2.21(c) above) or make other arrangements
reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank and/or Swingline Lender with respect to such LC
Exposure and/or Swingline Loans and obligations to fund participations. Cash collateral (or the appropriate portion thereof) provided
to reduce LC Exposure or other obligations shall be released promptly following (A) the elimination of the applicable LC Exposure or other
obligations giving rise thereto (including by the termination of the Defaulting Lender status of the applicable Lender (or, as appropriate,
its assignee following compliance with Section 2.19)) or (B) the Administrative Agent’s good faith determination that there
exists excess Cash collateral (including as a result of any subsequent reallocation of Swingline Loans and LC Exposure among non-Defaulting
Lenders described in clause (i) above);
(iii) (A) if the LC
Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.21(d), then the fees payable to the
Revolving Lenders pursuant to Section 2.12(a) and (b), as the case may be, shall be adjusted to give effect to such
reallocation and (B) if the LC Exposure of any Defaulting Lender is Cash collateralized pursuant to this Section 2.21(d),
then, without prejudice to any rights or remedies of the applicable Issuing Bank, any Lender or any Borrower hereunder, no letter of
credit fees shall be payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure; and
(iv) if
any Defaulting Lender’s LC Exposure is not Cash collateralized, prepaid or reallocated pursuant to this Section 2.21(d),
then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Revolving Lender hereunder, all letter of credit
fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable
Issuing Bank until such Defaulting Lender’s LC Exposure is Cash collateralized or reallocated.
(e) So
long as any Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing
Bank shall be required to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably satisfied that
the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders, Cash collateral provided
pursuant to Section 2.21(c) and/or Cash collateral provided by the Borrower in accordance with Section 2.21(d), and participating
interests in any such or newly issued, extended or created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting
Revolving Lenders in a manner consistent with Section 2.21(d)(i) (it being understood that Defaulting Lenders shall not participate
therein).
(f) In
the event that the Administrative Agent and the Borrower agree that any Defaulting Lender has adequately remedied all matters that caused
such Lender to be a Defaulting Lender, then the Applicable Percentage of Swingline Loans and LC Exposure of the Revolving Lenders shall
be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment, and on such date such Revolving Lender shall
purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) or participations in Revolving
Loans as the Administrative Agent shall determine as are necessary in order for such Revolving Lender to hold such Revolving Loans or
participations in accordance with its Applicable Percentage. Notwithstanding the fact that any Defaulting Lender has adequately remedied
all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender and (y) except to the extent otherwise expressly
agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Section 2.22. Incremental Credit Extensions.
(a) The
Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment (i) add one or more new tranches of
term facilities and/or increase the principal amount of the Initial Term Loans or any Additional Term Loans by requesting new term loan
commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans
made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of
revolving commitments and/or increase the Total Revolving Credit Commitment or any Additional Revolving Credit Commitment (any such new
tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental
Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental
Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding
principal amount not to exceed the Incremental Cap; provided that:
(i) no
Incremental Commitment may be less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except
as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental Commitment,
and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that
the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no
Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing
Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(iv) any
such Incremental Revolving Facility shall either (A) be subject to the same terms and conditions as any then-existing Revolving Facility
(and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental
Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving
Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders
participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or
(B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Initial Revolving Credit Maturity Date
and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment
and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the
Borrower) shall be substantially consistent with the Initial Revolving Loans or shall be reasonably satisfactory to the Administrative
Agent; provided, that if any financial maintenance covenant is added to any such Incremental Revolving Facility and such financial
maintenance covenant is more favorable to the lenders under such Incremental Revolving Facility than the Financial Covenant, either (x)
such financial maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving
Lenders shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the Borrower,
any applicable “equity cure” provisions with respect to any such financial maintenance covenant) (it being understood that
if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility,
no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other
provision is (1) also added for the benefit of any then- existing Revolving Facility or (2) only applicable after the applicable Latest
Revolving Loan Maturity Date),
(v) the Effective Yield
(and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and the lender or lenders
providing such Incremental Facility; provided that, in the case of any broadly-syndicated Dollar denominated Incremental Term
Facility that is (x) originally incurred in reliance on clause (a) or clause (e) of the definition of
“Incremental Cap” (but not any reclassification pursuant to clause (3) of the proviso therein) and (y) scheduled
to mature prior to the date that is one year after the Initial Term Loan Maturity Date, the Effective Yield applicable thereto may
not be more than 0.50% higher than the Effective Yield applicable to the Amendment No. 2 Term Loans unless the Applicable Rate
(and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the Amendment No. 2
Term Loans is adjusted such that the Effective Yield on the Amendment No. 2 Term Loans is not more than 0.50% per annum less than
the Effective Yield with respect to such Incremental Facility (this proviso, the “MFN Provision”); provided, further,
that any increase in Effective Yield applicable to any Amendment No. 2 Term Loan due to the application or imposition of an
Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may, at the election of the Borrower, be effected through
an increase in the Alternate Base Rate floor or LIBO Rate floor applicable to such Amendment No. 2 Term Loans or an increase in the
interest rate margin applicable to such Incremental Loans; provided further that the MFN Provision shall not apply to
Incremental Term Facilities having an aggregate principal amount not exceeding $20,000,000 (as selected by the Borrower),
(vi) the
final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date at the time
of the incurrence thereof; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity
date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or
otherwise replace such bridge loans shall be subject to the requirements of this clause (vi) and (ii) the Permitted Earlier Maturity
Indebtedness Exception (to the extent designated by the Borrower),
(vii) the
Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity
of the Amendment No. 2 Term Loans; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a
maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged
for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vii) or (ii) Permitted Earlier
Maturity Indebtedness Exception (to the extent designated by the Borrower),
(viii) subject
to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined
by the Borrower and the lenders providing such Incremental Term Facility,
(ix) subject
to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined
by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x) (A)
each Incremental Facility shall rank pari passu with the Amendment No. 2 Term Loans (in the case of any Incremental Term Facility)
and pari passu with the Initial Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment
and security and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets
other than the Collateral,
(xi) any Incremental Term Facility may
provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made
pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis, other than in the case of
prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment of Term Loans required
pursuant to Section 2.11(b),
(xii) no Event of Default
under Section 7.01(a), (f) or (g) shall exist immediately prior to or after giving effect to the effectiveness of such Incremental
Facility (except in connection with any acquisition or other Investment or irrevocable notice of repayment or redemption of
Indebtedness, where no such Event of Default shall exist at the time as elected by the Borrower pursuant to Section
1.04(e)),
(xiii) except
as otherwise required or permitted in clauses (v) through (xi) above, all other terms of any Incremental Term Facility shall be as agreed
between the Borrower and the lenders providing such Incremental Term Facility,
(xiv) the
proceeds of any Incremental Facility may be used for working capital, Capital Expenditures and other general corporate purposes of the
Borrower and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments
and any other purpose not prohibited by the terms of the Loan Documents), and
(xv) on
the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans, and
notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added
to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type
with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding
Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional
Term Loans, as applicable, of the same type with the same Interest Period of the respective Class.
(b) Incremental
Commitments may be provided by any existing Lender or by any other Eligible Assignee (any such other Eligible Assignee being called an
“Additional Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving
Facility, the Swingline Lender and any Issuing Bank) shall have consented (such consent not to be unreasonably withheld, conditioned or
delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section
9.05(b) for an assignment of Loans to such Additional Lender; provided; further, that any Additional Lender that is
an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental
Commitments and related Obligations had been obtained by such Lender by way of assignment.
(c) Each
Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and
the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative
Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Additional Lender
shall become a Lender for all purposes in connection with this Agreement.
(d) As
a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the
Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements
and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Lender, an administrative
questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”)
and such other documents as it shall reasonably require from such Additional Lender, (1) the Administrative Agent and applicable Additional
Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) upon its
request, the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer thereof:
(A) certifying
and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility
or Incremental Loans, and
(B) to
the extent applicable, certifying that the condition set forth in clause (a)(xii) above has been satisfied.
(e) Upon the implementation of any Incremental
Revolving Facility pursuant to this Section 2.22:
(i) if
such Incremental Revolving Facility is implemented by increasing the amount of then-existing Total Revolving Credit Commitments (rather
than by establishing a new Class of Revolving Loans), (i) each Revolving Lender immediately prior to such increase will automatically
and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental
Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s
participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each deemed assignment
and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations
hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans shall be held on a pro rata basis on the basis
of their respective Revolving Credit Commitments (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section
2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders
of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders
(including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case
to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans
pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the
Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata
borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected
pursuant to this clause (i); and
(ii) if such Incremental Revolving Facility is
implemented pursuant to a request to add one or more new tranches of revolving commitments, (1) the borrowing and repayment (except
for (A) payments of interest and fees at different rates on the existing Revolving Facilities and such Incremental Revolving
Facility, (B) repayments required upon the Maturity Date of the then-existing Revolving Facility and such Incremental Revolving
Facility and (C) repayments made in connection with any permanent repayment and termination of commitments (subject to clause
(3) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Facility Commitments shall be
made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving
Facility, (2) all swingline loans and/or letters of credit made or issued, as applicable, under such Incremental Revolving Facility
shall be participated on a pro rata basis by all Revolving Lenders and (3) the permanent repayment of Loans with respect to,
and termination of commitments under, such Incremental Revolving Facility shall be made on a pro rata basis with the then-
existing Revolving Facility and any other then outstanding Incremental Revolving Facility, except that the Borrower shall be
permitted to permanently repay and terminate commitments under such Incremental Revolving Facility on a greater than pro rata
basis as compared with any other revolving facility with a later Maturity Date than such revolving facility.
(f) Effective
on the date of effectiveness of each Incremental Revolving Facility, the maximum amount of LC Exposure and/or Swingline Loans, as applicable,
permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Borrower and the relevant Issuing
Bank and/or the Swingline Lender, as applicable.
(g) The
Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to
any other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Loans
or commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate
in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches,
in each case on terms consistent with this Section 2.22.
(h) To
the extent the provisions of clause (a)(xv) above require that Term Lenders making new Incremental Term Loans add such Incremental Term
Loans to the then outstanding borrowings of LIBO Rate Loans of the respective Class of Initial Term Loans or Additional Term Loans, as
applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e.,
an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the respective Class and which
will end on the last day of such Interest Period).
(i) Notwithstanding
anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds of any Incremental
Facility are intended to be applied to finance an acquisition or other Investment and the lenders providing such Incremental Facility
so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality (including
the making and accuracy of Specified Representations as conformed for such acquisition or other Investment).
(j) This Section 2.22 shall supersede
any provision in Section 2.18 or 9.02 to the contrary.
Section 2.23. Extensions of Loans and Revolving Credit Commitments.
(a) Notwithstanding
anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from
time to time by the Borrower to all Lenders holding Loans of any Class or Commitments of any Class, in each case on a pro rata basis
(based on the aggregate outstanding principal amount of the respective Loans or Commitments of such Class) and on the same terms to
each such Lender, the Borrower is hereby permitted from time to time to consummate transactions with any individual Lender who
accepts the terms contained in the relevant Extension Offer to extend the Maturity Date of all or a portion of such Lender’s
Loans and/or Commitments of such Class and otherwise modify the terms of all or a portion of such Loans and/or Commitments pursuant
to the terms of the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Loans
and/or Commitments (and related outstandings) and/or modifying the amortization schedule, if any, in respect of such Loans) (each,
an “Extension”); it being understood that any Extended Term Loans shall constitute a separate Class of Loans from
the Class of Loans from which they were converted and any Extended Revolving Credit Commitments shall constitute a separate Class of
Revolving Credit Commitments from the Class of Revolving Credit Commitments from which they were converted, so long as the following
terms are satisfied:
(i) except as to (x)
interest rates, fees and final maturity (which shall, subject to the succeeding clause (iii)(y), be determined by the
Borrower and set forth in the relevant Extension Offer), (y) terms applicable to such Extended Revolving Credit Commitments or
Extended Revolving Loans that are more favorable to the lenders or the agent of such Extended Revolving Credit Commitments or
Extended Revolving Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents on or
prior to the effectiveness of such Extension for the benefit of the Revolving Lenders or, as applicable, the Administrative Agent
pursuant to the applicable Extension Amendment and (z) any terms or other provisions applicable only to periods after the Latest
Revolving Loan Maturity Date (in each case, as of the date of such Extension), the commitment of any Revolving Lender that agrees to
an Extension (an “Extended Revolving Credit Commitment”; and the Loans thereunder, “Extended Revolving
Loans”), and the related outstandings, shall be a revolving commitment (or related outstandings, as the case may be) with
substantially consistent terms (or terms not less favorable to existing Revolving Lenders) as the original Revolving Credit
Commitments (and related outstandings) provided hereunder; provided that to the extent any non-extended portion of the
Revolving Facility or any Additional Revolving Facility then exists, (1) the borrowing and repayment (except for (A) payments of
interest and fees at different rates on such revolving facilities (and related outstandings), (B) repayments required upon the
Maturity Date of such revolving facilities and (C) repayments made in connection with any permanent repayment and termination of
commitments (subject to clause (3) below)) of Extended Revolving Loans after the effective date of such Extended Revolving
Credit Commitments shall be made on a pro rata basis with such portion of the Revolving Facility or the relevant Additional
Revolving Facility, as applicable, (2) all swingline loans and/or letters of credit made or issued, as applicable, under any
Extended Revolving Credit Commitment shall be participated on a pro rata basis by all Revolving Lenders and (3) the permanent
repayment of Loans with respect to, and termination of commitments under, any such Extended Revolving Credit Commitment after the
effective date of such Extended Revolving Credit Commitments shall be made on a pro rata basis with such portion of the
Revolving Facility and/or any Additional Revolving Facility, except that the Borrower shall be permitted to permanently repay and
terminate commitments of any such revolving facility on a greater than pro rata basis (I) as compared to any other Revolving
Facilities with a later Maturity Date than such Revolving Facility and (II) to the extent refinanced or replaced with a Replacement
Revolving Facility or Replacement Debt;
(ii) except
as to (x) interest rates, fees, amortization, final maturity date, premiums, required prepayment dates and participation in prepayments
(which shall, subject to immediately succeeding clauses (iii)(x), (iv) and (v), be determined by the Borrower and
set forth in the relevant Extension Offer), (y) terms applicable to such Extended Term Loans that are more favorable to the lenders or
the agent of such Extended Term Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents
on or prior to the effectiveness of such Extension for the benefit of the Term Lenders or, as applicable, the Administrative Agent pursuant
to the applicable Extension Amendment and (z) any covenants or other provisions applicable only to periods after the Latest Term Loan
Maturity Date (in each case, as of the date of such Extension), the Term Loans of any Lender extended pursuant to any Extension (any such
extended Term Loans, the “Extended Term Loans”) shall have substantially consistent terms as the tranche of Term Loans
subject to the relevant Extension Offer;
(iii) (x)
the final maturity date of any Extended Term Loans shall be no earlier than the then applicable Latest Term Loan Maturity Date at the
time of extension and (y) no Extended Revolving Credit Commitments or Extended Revolving Loans shall have a final maturity date earlier
than (or require commitment reductions prior to) the then applicable Latest Revolving Loan Maturity Date;
(iv) the
Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity
of the Term Loans or any other Extended Term Loans extended thereby;
(v) subject
to clauses (iii) and (iv) above, any Extended Term Loans may otherwise have an amortization schedule as determined by the
Borrower and the Lenders providing such Extended Term Loans;
(vi) any
Extended Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment
of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis other than in the
case of prepayment with proceeds of Indebtedness refinancing such Extended Term Loans) in any mandatory prepayment of Term Loans required
pursuant to Section 2.11(b);
(vii) if
the aggregate principal amount of Loans or commitments, as the case may be, in respect of which Lenders shall have accepted the relevant
Extension Offer exceeds the maximum aggregate principal amount of Loans or commitments, as the case may be, offered to be extended by
the Borrower pursuant to such Extension Offer, then the Loans or commitments, as the case may be, of such Lenders shall be extended ratably
up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) held by Lenders that
have accepted such Extension Offer;
(viii) unless
the Administrative Agent otherwise agrees, each Extension shall be in a minimum amount of $5,000,000;
(ix) any
applicable Minimum Extension Condition shall be satisfied or waived by the Borrower; and
(x) all documentation in respect of such Extension
shall be consistent with the foregoing.
(b) With respect to any
Extension consummated pursuant to this Section 2.23, (i) no such Extension shall constitute a voluntary or mandatory
prepayment for purposes of Section 2.11, (ii) the scheduled amortization payments (in so far as such schedule affects
payments due to Lenders participating in the relevant Class) set forth in Section 2.10 shall be adjusted to give effect to
such Extension of the relevant Class and (iii) except as set forth in clause (a)(viii) above, no Extension Offer is required
to be in any minimum amount or any minimum increment; provided that the Borrower may, at its election, specify as a condition
(a “Minimum Extension Condition”) to consummating such Extension that a minimum amount (to be determined and
specified in the relevant Extension Offer in the Borrower’s sole discretion and which may be waived by the Borrower in its
sole discretion) of Loans or commitments (as applicable) of any or all applicable Classes be tendered. The Administrative Agent and
the Lenders hereby consent to the transactions contemplated by this Section 2.23 (including, for the avoidance of doubt, any
payment of any interest, fees or premium in respect of any tranche of Extended Term Loans and/or Extended Revolving Credit
Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of
this Agreement (including Sections 2.10, 2.11 or 2.18) or any other Loan Document that may otherwise prohibit
any Extension or any other transaction contemplated by this Section.
(c) No
consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (A) the consent of each Lender
agreeing to such Extension with respect to one or more of its Loans and/or commitments under any Class (or a portion thereof), (B) with
respect to any Extension of the Revolving Credit Commitments, the consent of each Issuing Bank to the extent the commitment to provide
Letters of Credit is to be extended and (C) with respect to any Extension of the Revolving Credit Commitments, the consent of the Swingline
Lender to the extent the swingline facility is to be extended (in each case which consent shall not be unreasonably withheld or delayed).
All Extended Term Loans and Extended Revolving Credit Commitments and all obligations in respect thereof shall constitute Secured Obligations
under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with
all other Secured Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative
Agent to enter into such amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to establish
new tranches or sub-tranches in respect of Loans or commitments so extended and such technical amendments as may be necessary or appropriate
in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches,
in each case on terms consistent with this Section 2.23.
(d) In
connection with any Extension, the Borrower shall provide the Administrative Agent at least ten Business Days’ (or such shorter
period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including regarding
timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such
Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish
the purposes of this Section 2.23.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
On the dates and to the extent
required pursuant to Section 4.01 or Section 4.02, as applicable, Holdings (solely with respect to Sections 3.01, 3.02,
3.03, 3.06, 3.07, 3.08, 3.09, 3.12, 3.13, 3.14, 3.16 and 3.17) and
the Borrower hereby represent and warrant to the Lenders that:
Section 3.01. Organization;
Powers. Each of Holdings, the Borrower and each of its Restricted Subsidiaries (a) is (i) duly organized and validly existing
and (ii) in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of its jurisdiction of
organization, (b) has all requisite organizational power and authority to own its property and assets and to carry on its business
as now conducted and (c) is qualified to do business in, and is in good standing (to the extent such concept exists in the relevant
jurisdiction) in, every jurisdiction where its ownership, lease or operation of properties or conduct of its business requires such
qualification; except, in each case referred to in this Section 3.01 (other than clause (a)(i) and (b), in each case
with respect to the Borrower) where the failure to do so, individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect.
Section 3.02. Authorization;
Enforceability. The execution, delivery and performance by each Loan Party of each of the Loan Documents to which such Loan
Party is a party are within such Loan Party’s corporate or other organizational power and have been duly authorized by all
necessary corporate or other organizational action of such Loan Party. Each Loan Document to which any Loan Party is a party has
been duly executed and delivered by such Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in
accordance with its terms, subject to the Legal Reservations.
Section 3.03. Governmental
Approvals; No Conflicts. The execution and delivery of the Loan Documents by each Loan Party party thereto and the performance by
such Loan Party thereof (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental
Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) in connection with the Perfection Requirements
and (iii) such consents, approvals, registrations, filings, or other actions the failure to obtain or make which would not be reasonably
expected to have a Material Adverse Effect, (b) will not violate any (i) of such Loan Party’s Organizational Documents or (ii) Requirements
of Law applicable to such Loan Party which, in the case of this clause (b)(ii), would reasonably be expected to have a Material
Adverse Effect and (c) will not violate or result in a default under (i) the Second Lien Credit Agreement or (ii) any other material Contractual
Obligation in respect of Indebtedness having an aggregate principal amount exceeding the Threshold Amount to which such Loan Party is
a party which, in the case of this clause (c), would reasonably be expected to result in a Material Adverse Effect.
Section 3.04. Financial Condition; No Material Adverse Effect.
(a) After
the Closing Date, the financial statements most recently provided pursuant to Section 5.01(a) or (b), as applicable, present
fairly, in all material respects, the financial position, results of operations and cash flows of the Borrower on a consolidated basis
as of such dates and for such periods in accordance with GAAP, (w) except as otherwise expressly noted therein, (x) subject, in the case
of financial statements provided pursuant to Section 5.01(a), to the absence of footnotes and normal year-end audit adjustments
and (y) except as may be necessary to reflect any differing entity and/or organizational structure prior to giving effect to the Transactions.
(b) Since
the Closing Date, there have been no events, developments or circumstances that have had, or would reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
Section 3.05. Properties.
(a) [Reserved.]
(b) The
Borrower and each of its Restricted Subsidiaries have good and valid fee simple title to or rights to purchase, or valid leasehold interests
in, or easements or other limited property interests in, all of their respective Real Estate Assets, free and clear of all Liens except
for Permitted Liens and have good title to their personal property and assets, in each case material to the business, except (i) for defects
in title that do not materially interfere with their ability to conduct their business as currently conducted or to utilize such properties
and assets for their intended purposes or (ii) where the failure to have such title or interest would not reasonably be expected to have
a Material Adverse Effect.
(c) The Borrower and each
of its Restricted Subsidiaries own or otherwise have a license or right to use all Patents, Trademarks, Copyrights and other rights
in works of authorship (including all copyrights embodied in software), domain names, trade secrets and all other intellectual
property rights (“IP Rights”) necessary to the conduct of the businesses of the Borrower and its Restricted
Subsidiaries as presently conducted, and, to the knowledge of the Borrower, such IP Rights do not infringe or misappropriate the IP
Rights of any third party, except to the extent such failure to own or license or have rights to use would not, or where such
infringement or misappropriation would not, reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.
Section 3.06. Litigation and Environmental Matters. Except
as set forth on Schedule 3.06:
(a) there
are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened in writing against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries which would reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect;
(b) except
for any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, (i) neither
Holdings, the Borrower nor any of its Restricted Subsidiaries has received written notice of any claim with respect to any Environmental
Liability, knows of any basis for any Environmental Liability or, to the knowledge of the Borrower, has become subject to any Environmental
Liability and (ii) neither Holdings, the Borrower nor any of its Restricted Subsidiaries is in violation of any Environmental Law or has
not obtained, maintained, or complied with any permit, license or other approval required under any Environmental Law; and
(c) neither
Holdings, the Borrower nor any of its Restricted Subsidiaries has treated, stored, transported, Released or disposed of any Hazardous
Material at or from any currently or formerly owned, leased or operated real estate or facility nor, to the knowledge of the Borrower,
has any Hazardous Material been Released from any third-party location relating to the Borrower’s or any of its Restricted Subsidiaries’
businesses, in each case in a manner that would reasonably be expected to have a Material Adverse Effect.
Section 3.07. Compliance
with Laws. Each of Holdings, the Borrower and each of its Restricted Subsidiaries is in compliance with all Requirements of Law applicable
to it or its property, except, in each case where the failure to do so, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect, it being understood and agreed that this Section 3.07 shall not apply to any law specifically
referenced in Section 3.17.
Section 3.08. Investment
Company Status. No Loan Party is required to be registered as an “investment company” under the Investment Company Act
of 1940.
Section 3.09. Taxes.
Each of Holdings, the Borrower and each of its Restricted Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it that are due and payable, except
(a) Taxes that are being contested in good faith by appropriate proceedings and for which Holdings, the Borrower or such Restricted Subsidiary,
as applicable, has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent that the failure to do so, individually
or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section 3.10. ERISA.
(a) Each
Pension Plan is in compliance in form and operation with its terms and with ERISA and the Code and all other applicable laws and regulations,
except where any failure to comply would not reasonably be expected to result in a Material Adverse Effect.
(b) No ERISA Event has
occurred in the five-year period prior to the date on which this representation is made or deemed made and is continuing or is
reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected
to occur, would reasonably be expected to result in a Material Adverse Effect.
Section
3.11. Disclosure.
(a) As
of the Closing Date, to the knowledge of the Borrower, all written factual information (other than the Projections, the model delivered
by the Sponsor to the Arrangers on June 4, 2017, other forward-looking or projected information, pro forma information and information
of a general economic or general industry nature (including any reports or memos prepared by third party consultants)) concerning Holdings,
the Borrower and its Restricted Subsidiaries and the Transactions and that was included in the Information Memorandum or otherwise prepared
by or on behalf of the foregoing or the Sponsor or their respective representatives and made available to any Initial Lender or the Administrative
Agent in connection with the Transactions on or before the Closing Date (the “Information”), when taken as a whole,
did not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after
giving effect to all supplements and updates thereto from time to time).
(b) The
Projections have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time furnished (it
being recognized that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies many
of which are beyond the Borrower’s control, that no assurance can be given that any particular financial projections (including
the Projections) will be realized, that actual results may differ from projected results and that such differences may be material).
Section
3.12. Solvency. As of the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date and
the incurrence of indebtedness and obligations on the Closing Date in connection with this Agreement and the Transactions, (i) the sum
of the debt (including contingent liabilities) of Holdings and its Subsidiaries, taken as a whole, does not exceed the fair value of
the assets of Holdings and its Subsidiaries, taken as a whole; (ii) the present fair saleable value of the assets of Holdings and its
Subsidiaries, taken as a whole, is not less than the amount that will be required to pay the probable liabilities (including contingent
liabilities) of Holdings and its Subsidiaries, taken as a whole, on their debts as they become absolute and matured; (iii) the capital
of Holdings and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of Holdings and its Subsidiaries,
taken as a whole, contemplated as of the Closing Date; and (iv) Holdings and its Subsidiaries, taken as a whole, do not intend to incur,
or believe that they will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debts
as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall
be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liability meets the criteria
for accrual under Statement of Financial Accounting Standards No. 5).
Section
3.13. Capitalization and Subsidiaries. Schedule 3.13 sets forth, in each case as of the Closing Date, (a) a correct and
complete list of the name of each subsidiary of Holdings and the ownership interest therein held by Holdings or its applicable subsidiary
and (b) the type of entity of Holdings and each of its subsidiaries.
Section
3.14. Security Interest in Collateral. Subject to the terms of the last paragraph of Section 4.01, the Legal
Reservations, the Perfection Requirements, the provisions, limitations and/or exceptions set forth in this Agreement and/or the
other relevant Loan Documents (including the Intercreditor Agreement or any other Acceptable Intercreditor Agreement), the
Collateral Documents create legal, valid and enforceable Liens on all of the Collateral in favor of the Administrative Agent, for
the benefit of itself and the other Secured Parties, and upon the satisfaction of the applicable Perfection Requirements, such Liens
constitute perfected Liens (with the priority such Liens are expressed to have within the relevant Collateral Documents) on the
Collateral (to the extent such Liens are required to be perfected under the terms of the Loan Documents) securing the Secured
Obligations, in each case as and to the extent set forth therein. For the avoidance of doubt, notwithstanding anything herein or in
any other Loan Document to the contrary, neither the Borrower nor any other Loan Party makes any representation or warranty (other
than any representation or warranty expressly made in such Loan Document) as to (A) the effects of perfection or non-perfection, the
priority or the enforceability of any pledge of or security interest in any Capital Stock of any Foreign Subsidiary, or as to the
rights and remedies of the Administrative Agent or any Lender with respect thereto, under foreign Requirements of Law, (B) the
enforcement of any security interest, or right or remedy with respect to any Collateral that may be limited or restricted by, or
require any consent, authorization approval or license under, any Requirement of Law, (C) on the Closing Date and until required
pursuant to Section 5.12 or the last paragraph of Section 4.01, as applicable, the pledge or creation of any security interest, or
the effects of perfection or non-perfection, the priority or enforceability of any pledge or security interest to the extent the
same is not required on the Closing Date pursuant to the final paragraph of Section 4.01 or (D) any Excluded Asset.
Section
3.15. Labor Disputes. As of the Closing Date, except as individually or in the aggregate would not reasonably be expected to have
a Material Adverse Effect: (a) there are no strikes, lockouts or slowdowns against the Borrower or any of its Restricted Subsidiaries
pending or, to the knowledge of the Borrower or any of its Restricted Subsidiaries, threatened in writing and (b) the hours worked by
and payments made to employees of the Borrower and its Restricted Subsidiaries have not been in violation of the Fair Labor Standards
Act or any other applicable Federal, state, local or foreign law dealing with such matters.
Section
3.16. Federal Reserve Regulations. No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any purpose that results in a violation of the provisions of
Regulation U and X.
Section
3.17. Sanctions and Anti-Corruption Laws.
(a) (i)
None of Holdings, the Borrower nor any of its Restricted Subsidiaries nor, to the knowledge of the Borrower, any director, officer, agent,
employee or controlled Affiliate of any of the foregoing is a Sanctioned Person; and (ii) the Borrower will not directly or, to its knowledge,
indirectly, use the proceeds of the Loans or otherwise make available such proceeds to any Sanctioned Person, for the purpose of financing
the activities of any Sanctioned Person, or in any Sanctioned Country, or in any other matter, in each case, that would result in a violation
by any Person party to this Agreement of Sanctions.
(b)
Each Loan Party is in compliance with applicable Sanctions in all material respects.
(c) No
part of the proceeds of any Loan or any Letter of Credit will be used, directly or, to the knowledge of the Borrower, indirectly,
for any payments to any governmental official or employee, political party, official of a political party, candidate for political
office, or any other person or entity, in order to obtain, retain or direct business or obtain any improper advantage, in violation
of the U.S. Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption law.
ARTICLE
4 CONDITIONS
Section
4.01. Closing Date. The obligations of (i) each Lender to make Loans and (ii) any Issuing Bank to issue Letters of Credit shall
not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) Credit
Agreement and Loan Documents. The Administrative Agent (or its counsel) shall have received from each Loan Party party thereto
(i) a counterpart signed by each such Loan Party (or written evidence reasonably satisfactory to the Administrative Agent (which may
include a copy transmitted by facsimile or other electronic method) that such party has signed a counterpart) of (A) this Agreement,
(B) the Security Agreement, (C) the Loan Guaranty, (D) the Intercreditor Agreement and (E) any Promissory Note requested by a Lender
at least three Business Days prior to the Closing Date and (ii) a Borrowing Request as required by Section 2.03.
(b) Legal
Opinions. The Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders and each Issuing Bank
on the Closing Date, a customary written opinion of (i) Davis Polk & Wardwell LLP, in its capacity as special New York counsel for
Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings, the
Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the Borrower
and the Subsidiary Guarantors.
(c) Financial
Statements and Pro Forma Financial Statements. The Administrative Agent shall have received, (i) (x) audited consolidated balance
sheets of the Target and its consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive
loss, cash flows and stockholders’ equity of the Target and its consolidated subsidiaries for, the three most recently completed
fiscal years ended at least 110 days prior to the Closing Date and (y) an unaudited consolidated balance sheet of the Target and its
consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive loss, cash flows and stockholders’
equity of the Target and its consolidated subsidiaries for, each subsequent fiscal quarter (other than the fourth fiscal quarter of any
fiscal year) of the Target and its consolidated subsidiaries subsequent to the last fiscal year for which financial statements were delivered
pursuant to the preceding clause (x) and ended at least 46 days before the Closing Date (in the case of this clause (y), without footnotes)
and (ii) a unaudited pro forma consolidated balance sheet and related unaudited pro forma consolidated statement of income or operations
of the Target as of, and for the twelve-month period ending on, the last day of the most recently completed four-fiscal quarter period
ended at least 46 days (or 110 days, in case such four-fiscal quarter period is the end of the Target’s fiscal year) prior to the
Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such
balance sheet) or at the beginning of such period (in the case of such statement of income or operations), which need not be prepared
in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting (including
adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, (formerly SFAS 141R))
(it being understood that any purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations
determined by the Borrower). The Administrative Agent hereby acknowledges receipt of the financial statements referred to (i) in clause
(i)(x) above in respect of the fiscal years ended July 29, 2014, June 28, 2015 and July 3, 2016, (ii) in clause (i)(y) above in respect
of the fiscal quarters ended October 2, 2016, January 1, 2017 and April 2, 2017 and (iii) in clause (ii) above in respect of the pro
forma financial statements.
(d) Closing
Certificates; Certified Charters; Good Standing Certificates. The Administrative Agent (or its counsel) shall have received (i)
a certificate of each Loan Party, dated the Closing Date and executed by a secretary, assistant secretary or other senior officer
(as the case may be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or
written consents of its shareholders, board of directors, board of managers, members or other governing body authorizing the
execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, the borrowings
and issuance of Promissory Notes (if any) hereunder, and that such resolutions or written consents have not been modified, rescinded
or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the officers, managers,
directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which it is a party on the Closing
Date and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or
organization (or memorandum of association or other equivalent thereof) of such Loan Party certified by the relevant authority of
the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or operating, management, partnership
or similar agreement and (y) that such documents or agreements have not been amended (except as otherwise attached to such
certificate and certified therein as being the only amendments thereto as of such date) and (ii) a good standing (or equivalent)
certificate (if applicable) as of a recent date for such Loan Party from the relevant authority of its jurisdiction of
organization.
(e) Representations
and Warranties. (i) The Specified Acquisition Agreement Representations shall be true and correct in all material respects as of
the Closing Date solely to the extent required by the terms of the definition thereof and (ii) the Specified Representations shall be
true and correct in all material respects on and as of the Closing Date; provided that (A) in the case of any Specified Representation
which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects
as of the respective date or for the respective period, as the case may be and (B) if any Specified Representation is qualified by or
subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the definition
thereof shall be the definition of “Closing Date Material Adverse Effect” for purposes of the making or deemed making of
such Specified Representation on, or as of, the Closing Date (or any date prior thereto).
(f) Fees.
Prior to or substantially concurrently with the funding of the Initial Term Loans hereunder, the Administrative Agent shall have received
(i) all fees required to be paid by the Borrower on the Closing Date pursuant to the Fee Letter and (ii) all expenses required to be
paid by the Borrower for which invoices have been presented at least three Business Days prior to the Closing Date (including the reasonable
fees and expenses of legal counsel for the Administrative Agent that are payable under the Commitment Letter entered into between the
Arrangers and the Borrower with respect to the Credit Facilities), in each case on or before the Closing Date, which amounts may be offset
against the proceeds of the Loans or may be paid from the proceeds of the Initial Loans.
(g)
[Reserved.]
(h) Refinancing.
Prior to or substantially concurrently with the initial funding of the Loans hereunder, including by use of proceeds thereof, the principal,
accrued and unpaid interest, fees, premium, if any, and other amounts (other than (x) obligations not then due and payable or that by
their terms survive the termination of the Existing Credit Facilities and (y) the Existing Letters of Credit, all of which, on the Closing
Date will be deemed to be Letters of Credit issued hereunder) under the First Lien Credit Agreement dated as of September 19, 2016 and
the Second Lien Credit Agreement dated as of September 19, 2016 (in each case, as amended, supplemented or otherwise modified from time
to time prior to the Closing Date, the “Existing Credit Facilities”), will be repaid in full and all commitments to
extend credit under the Existing Credit Facilities will be terminated and any security interests and guarantees in connection therewith
shall be terminated and/or released (the “Refinancing”).
(i) Equity
Contribution. Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Equity Contribution shall
have been made substantially in the manner and at least in the amount set forth in the definition of Equity Contribution contained herein
(to the extent not otherwise applied to the Transactions).
(j) Solvency.
The Administrative Agent shall have received a certificate dated as of the Closing Date in substantially the form of Exhibit M
from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Target certifying as to the matters
set forth therein (or, at the option of Holdings, a third party opinion as to the solvency of the Target and its subsidiaries on a consolidated
basis in form and substance reasonably satisfactory to the Lead Arrangers issued by a nationally recognized firm reasonably acceptable
to the Lead Arrangers).
(k) Perfection
Certificate. Subject to the last paragraph of this Section 4.01, the Administrative Agent shall have received a completed
Perfection Certificate dated the Closing Date and signed by a Responsible Officer of each Loan Party, together with all attachments contemplated
thereby.
(l) Pledged
Stock; Stock Powers; Pledged Notes. Subject to the last paragraph of this Section 4.01, the Administrative Agent (or its bailee)
shall have received (i) the certificates representing the Capital Stock required to be pledged pursuant to the Security Agreement, together
with an undated stock or similar power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof
and (ii) each Material Debt Instrument (if any) required to be pledged pursuant to the Security Agreement endorsed (without recourse)
in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(m) Filings
Registrations and Recordings. Subject to the last paragraph of this Section 4.01, each document (including any UCC financing
statement) required by any Collateral Document or under law to be filed, registered or recorded in order to create in favor of the Administrative
Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Collateral
Document, shall be in proper form for filing, registration or recordation.
(n) Transactions.
Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Acquisition shall be consummated in all material
respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, consents or
waivers thereto, other than those modifications, amendments, consents or waivers by Merger Sub 1 or its Affiliates that are materially
adverse to the interests of the Lenders in their capacities as such, unless consented to in writing by the Arrangers (such consent not
to be unreasonably withheld, delayed or conditioned); it being understood and agreed that (a) any changes to, or waivers, consents or
approvals by Merger Sub 1 or its Affiliates in respect of, the definition of Closing Date Material Adverse Effect shall be deemed materially
adverse, (b) any reduction in the purchase price of less than 10% or in accordance with the Acquisition Agreement (including pursuant
to any working capital or purchase price adjustment provision set forth in the Acquisition Agreement) shall be deemed not to be materially
adverse, (c) any other reduction in the purchase price shall be deemed not to be materially adverse so long as such decrease is allocated
first to reduce the Equity Contribution to the Minimum Equity Percentage, with any excess then allocated to reduce the Equity Contribution,
the principal amount of the Term Loans and the second lien term loans under the Second Lien Facility on a pro rata, dollar-for-dollar
basis and (d) any increase in the purchase price shall be deemed not to be materially adverse so long as such increase is funded by an
increase in the Equity Contribution or amounts available to be drawn under the Revolving Facility on the Closing Date or such increase
is pursuant to any working capital or purchase price (or similar) adjustment provision set forth in the Acquisition Agreement.
(o) Closing
Date Material Adverse Effect. Since June 6, 2017, there shall have not been an event, change, effect or circumstance that, individually
or in the aggregate has had, or that would reasonably be expected to result in, a Closing Date Material Adverse Effect.
(p) USA
PATRIOT Act. No later than three Business Days in advance of the Closing Date, the Administrative Agent shall have received all
documentation and other information reasonably requested in writing by the Administrative Agent with respect to any Loan Party at
least ten Business Days in advance of the Closing Date, which documentation or other information is required by U.S. regulatory
authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA
PATRIOT Act.
For
purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding
the Loans hereunder, the Administrative Agent and each Lender that has executed this Agreement (or an Assignment and Assumption on the
Closing Date) shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required
hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may
be.
Notwithstanding
the foregoing, to the extent any Lien search or Collateral (including the creation or perfection of any security interest) is not or
cannot be provided on the Closing Date (other than, (i) a Lien on Collateral of any Loan Party that may be perfected by the filing of
a financing statement under the UCC (without need for any other action) and (ii) a pledge of the Capital Stock of the Borrower, the Subsidiary
Guarantors and each other wholly-owned Material Domestic Restricted Subsidiary to the extent certificated with respect to which a Lien
may be perfected on the Closing Date by the delivery of a stock or equivalent certificate, together with a related stock or equivalent
power executed in blank) after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense (and
with respect to the delivery of stock or equivalent certificates of relevant subsidiaries of the Target whose Capital Stock is required
to be pledged pursuant to the Security Agreement, only to the extent received after the Borrower’s use of commercially reasonable
efforts to do so), then the provision of any such Lien search and/or the provision and/or perfection of such Collateral shall not constitute
a condition precedent to the availability and initial funding of the Loans on the Closing Date but may, if required, instead be delivered
and/or perfected 90 days after the Closing Date pursuant to arrangements to be mutually agreed between the Borrower and the Administrative
Agent and subject to extensions as are reasonably agreed by the Administrative Agent.
Section
4.02. Each Credit Extension. After the Closing Date, the obligation of each Revolving Lender to make a Credit Extension (which,
for the avoidance of doubt (including for purposes of the last paragraph of this Section 4.02), shall not include (A) any Incremental
Loans advanced in connection with any acquisition, other Investment or irrevocable repayment or redemption of Indebtedness and/or (B)
any Credit Extension under any Incremental Facility Amendment, Refinancing Amendment and/or Extension Amendment, in each case to the
extent not otherwise required by the lenders in respect of thereof) is subject to the satisfaction of the following conditions:
(a) (i)
In the case of a Borrowing, the Administrative Agent shall have received a Borrowing Request as required by Section 2.03, (ii)
in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a notice
requesting the issuance of such Letter of Credit as required by Section 2.05(b) or (iii) in the case of a Borrowing of Swingline
Loans, the Swingline Lender and the Administrative Agent shall have received a request as required by Section 2.04(a).
(b) The
representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct
in all material respects on and as of the date of any such Credit Extension with the same effect as though such representations and warranties
had been made on and as of the date of such Credit Extension; provided that to the extent that any representation and warranty
specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period.
(c) At
the time of and immediately after giving effect to the applicable Credit Extension, no Event of Default or Default shall have occurred
and be continuing.
Each
Credit Extension after the Closing Date shall be deemed to constitute a representation and warranty by the Borrower on the date thereof
as to the matters specified in paragraphs (b) and (c) of this Section.
ARTICLE
5 AFFIRMATIVE COVENANTS
From
the Closing Date until the date that all the Revolving Credit Commitments and all other Commitments have expired or terminated and the
principal of and interest on each Loan and all fees, expenses and other Obligations payable under any Loan Document (other than contingent
indemnification obligations for which no claim or demand has been made) have been paid in full in Cash and all Letters of Credit have
expired or have been terminated (or have been (x) collateralized or back- stopped by a letter of credit or otherwise in a manner reasonably
satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing Banks or (y) deemed reissued under another agreement
in a manner reasonably satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing Banks) and all LC Disbursements
have been reimbursed (such date, the “Termination Date”), Holdings (solely with respect to Sections 5.02 and
5.03) and the Borrower hereby covenant and agree with the Lenders that:
Section
5.01. Financial Statements and Other Reports. The Borrower will deliver to the Administrative Agent for delivery by the Administrative
Agent to each Lender:
(a) Quarterly
Financial Statements. As soon as available, and in any event within 45 days (or 90 days in the case of the first Fiscal Quarter ending
after the Closing Date and 75 days in the case of the second and third Fiscal Quarters ending after the Closing Date) after the end of
each of the first three Fiscal Quarters of each Fiscal Year, commencing with the Fiscal Quarter ending on or about September 30, 2017,
(i) the unaudited consolidated balance sheet of Holdings as at the end of such Fiscal Quarter and the related unaudited consolidated
statements of income and cash flows of Holdings for such Fiscal Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter and setting forth, in reasonable detail, in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year, all in reasonable detail, together with a Responsible Officer Certification (which
may be included in the applicable Compliance Certificate) with respect thereto and (ii) a Narrative Report; provided that such
financial statements shall only be required to reflect Holdings’ good faith estimate of any purchase accounting adjustments relating
to (A) the Acquisition for any Fiscal Quarter prior to on or about June 30, 2018 and (B) any acquisition consummated after the Closing
Date until the Fiscal Quarter ending on or about June 30 of the Fiscal Year following the Fiscal Year in which the relevant acquisition
was consummated;
(b) Annual
Financial Statements. As soon as available, and in any event within 120 days (or, in the case of the Fiscal Year ending on or
about June 30, 2017, 150 days) after the end of each Fiscal Year ending after the Closing Date, (i) the consolidated balance sheet
of Holdings as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash
flows of Holdings for such Fiscal Year and, commencing after the completion of the second full Fiscal Year ended after the Closing
Date, setting forth, in reasonable detail, in comparative form the corresponding figures for the previous Fiscal Year and (ii) with
respect to such consolidated financial statements, (A) a report thereon of an independent certified public accountant of recognized
national standing or another accounting firm reasonably acceptable to the Administrative Agent (which report shall be unqualified as
to “going concern” and scope of audit (except for any such qualification pertaining to, or disclosure of an exception or
qualification resulting from, the maturity (or impending maturity) of any Credit Facility, any Second Lien Facility or any other
Indebtedness occurring within one year of the date of delivery of the relevant audit opinion, any breach or anticipated breach of
any financial covenant or the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary), and
shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial
position of Holdings as at the dates indicated and its income and cash flows for the periods indicated in conformity with GAAP and
(B) a Narrative Report;
(c) Compliance
Certificate; Unrestricted Subsidiaries. (i) Within 5 Business Days after the delivery of financial statements of Holdings pursuant
to Section 5.01(a) or 5.01(b) with respect to any Fiscal Quarter or Fiscal Year, as applicable, a duly executed and completed
Compliance Certificate and (ii) within 5 Business Days after the delivery of financial statements of Holdings pursuant to Section
5.01(b), (A) a summary (which may be in footnote form) of the pro forma adjustments necessary to eliminate the accounts of Unrestricted
Subsidiaries (if any) from such financial statements and (B) a list identifying each subsidiary of the Borrower as a Restricted Subsidiary
or an Unrestricted Subsidiary as of the date of delivery of such financial statements or confirming that there is no change in such information
since the later of the Closing Date and the most recent prior delivery of such information;
(d)
[Reserved];
(e) Notice
of Default or Event of Default. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) any Default or Event
of Default or (ii) the occurrence of any event or change that has caused or evidences or would reasonably be expected to cause or evidence,
either in any case or in the aggregate, a Material Adverse Effect, a reasonably detailed notice specifying the nature and period of existence
of such condition, event or change and what action the Borrower has taken, is taking and proposes to take with respect thereto;
(f) Notice
of Litigation. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) the institution of any Adverse Proceeding
not previously disclosed in writing by the Borrower to the Administrative Agent or (ii) any material development in any Adverse Proceeding
that, in the case of either clauses (i) or (ii), would reasonably be expected to have a Material Adverse Effect, written notice thereof
by the Borrower together with such other non-privileged information as may be reasonably available to the Loan Parties to enable the
Lenders to evaluate such matters;
(g) ERISA.
Promptly upon any Responsible Officer of the Borrower becoming aware of the occurrence of any ERISA Event that would reasonably be expected
to have a Material Adverse Effect, a written notice specifying the nature thereof;
(h) Financial
Plan. Prior to a Qualifying IPO, together with the delivery of financial statements of the Borrower pursuant to Section 5.01(b)
with respect to any Fiscal Year, commencing with the Fiscal Year ending on or about June 30, 2018, an operating budget for the next
Fiscal Year in a form as customarily prepared by management of the Borrower for its internal use or such other form as the Borrower and
Administrative Agent may reasonably agree;
(i) Information
Regarding Collateral. Promptly (and, in any event, within 45 days of the relevant change or such later date as the Administrative
Agent may agree) written notice of any change (i) in any Loan Party’s legal name, (ii) in any Loan Party’s type of organization,
(iii) in any Loan Party’s jurisdiction of organization or (iv) in any Loan Party’s organizational identification number,
in each case to the extent such information is necessary to enable the Administrative Agent to perfect or maintain the perfection and
priority of its security interest in the Collateral of the relevant Loan Party, together with certified copies of the applicable Organizational
Documents reflecting the relevant change;
(j) Certain
Reports. Promptly upon their becoming publicly available and without duplication of any obligations with respect to any such information
that is otherwise required to be delivered under the provisions of any Loan Document, copies of (i) following a Qualifying IPO, all financial
statements, material reports, material notices and proxy statements sent or made available generally by Holdings to its security holders
acting in such capacity and (ii) all material regular and periodic reports and all material registration statements (other than on Form
S-8 or a similar form) and prospectuses, if any, filed by the Borrower or any of its Restricted Subsidiaries with any securities exchange
or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (other
than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered),
exhibits to any registration statement and, if applicable, any registration statement on Form S-8 or a similar form); provided that no
such delivery shall be required hereunder with respect to any of the foregoing to the extent that such are publicly available via EDGAR;
and
(k) Other
Information. Such other certificates, reports and information (financial or otherwise) as the Administrative Agent may
reasonably request from time to time regarding the financial condition or business of the Borrower and its Restricted Subsidiaries;
provided, however, that none of Holdings, the Borrower or any Restricted Subsidiary shall be required to disclose or provide any
information (i) that constitutes non-financial trade secrets or non-financial proprietary information of Holdings, the Borrower or
any of its subsidiaries or any of their respective customers and/or suppliers, (ii) in
respect of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives) is prohibited by
any applicable Requirement of Law, (iii) that is subject to attorney- client or similar privilege or constitutes attorney work
product or (iv) in respect of which Holdings, the Borrower or any Restricted Subsidiary owes confidentiality obligations to any
third party (provided such confidentiality obligations were not entered into solely in contemplation of the requirements of this Section
5.01(k)); provided, further, that in the event the Borrower does not provide any certificate, report or information
requested pursuant to this clause (k) in reliance on the preceding proviso, the Borrower shall provide notice to the
Administrative Agent that such certificate, report or information is being withheld and the Borrower shall use commercially
reasonable efforts to describe, to the extent both feasible and permitted under applicable Requirements of Law or confidentiality
obligations, or without waiving such privilege, as applicable, the applicable certificate, report or information.
Documents
required to be delivered pursuant to this Section 5.01 may be delivered electronically and, if so delivered, shall be deemed
to have been delivered on the date (i) on which the Borrower (or a representative thereof) (x) posts such documents or (y) provides
a link thereto at the website address listed on Schedule 9.01 (as updated from time to time); provided that, other
than with respect to items required to be delivered pursuant to Section 5.01(j) above, the Borrower shall promptly notify
(which notice may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents on such website
and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents; (ii) on which
such documents are delivered by the Borrower to the Administrative Agent for posting on behalf of the Borrower on IntraLinks,
SyndTrak or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); (iii) on which such documents are faxed to the Administrative
Agent (or electronically mailed to an address provided by the Administrative Agent); or (iv) in respect of the items required to be
delivered pursuant to Section 5.01(j) above in respect of information filed by Holdings, the Borrower or any of its
Restricted Subsidiaries with any securities exchange or with the SEC or any analogous governmental or private regulatory authority
with jurisdiction over matters relating to securities (other than Form 10-Q Reports and Form 10-K Reports), on which such items have
been made available on the SEC website or the website of the relevant analogous governmental or private regulatory authority or
securities exchange.
Notwithstanding
the foregoing, the obligations in paragraphs (a), (b) and (h) of this Section 5.01 may be satisfied with
respect to any financial statements of Holdings by furnishing (A) the applicable financial statements of the Borrower (or any Parent
Company) or (B) the Borrower’s (or any Parent Company’s), as applicable, Form 10-K or 10-Q, as applicable, filed with
the SEC or any securities exchange, in each case, within the time periods specified in such paragraphs; provided that, with
respect to each of clauses (A) and (B), (i) to the extent such financial statements relate to any Parent Company, such
financial statements shall be accompanied by consolidating information (which consolidating information need not be audited) that
summarizes in reasonable detail the differences between the information relating to such Parent Company, on the one hand, and the
information relating to the Borrower or Holdings on a standalone basis, on the other hand, which consolidating information shall be
certified by a Responsible Officer of Holdings as having been fairly presented in all material respects and
(ii) to the extent such statements are in lieu of statements required to be provided under Section
5.01(b), such statements shall be accompanied by a report and opinion of an independent registered public accounting firm of
nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and
opinion shall satisfy the applicable requirements set forth in Section 5.01(b) as if the references to “Holdings”
or “the Borrower” (as applicable) therein were references to such Parent Company.
No
financial statement required to be delivered pursuant to Section 5.01(a) or (b) shall be required to include acquisition
accounting adjustments relating to the Transactions or any Permitted Acquisition or other Investment to the extent it is not practicable
to include any such adjustments in such financial statement.
Section
5.02. Existence. Except as otherwise permitted under Section 6.07 or as a result of the consummation of a Permitted
Reorganization or the consummation of a Holdings Reorganization Transaction, Holdings and the Borrower will, and the Borrower will
cause each of its Restricted Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights,
franchises, licenses and permits material to its business except, other than with respect to the preservation of the existence of
the Borrower, to the extent that the failure to do so would not reasonably be expected to result in a Material Adverse Effect; provided
that neither Holdings nor the Borrower nor any of the Borrower’s Restricted Subsidiaries shall be required to preserve any
such existence (other than with respect to the preservation of existence of the Borrower, except as otherwise permitted under Section
6.07 or as a result of the consummation of a Permitted Reorganization), right, franchise, license or permit if a Responsible
Officer of such Person or such Person’s board of directors (or similar governing body) determines that the preservation
thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not disadvantageous in
any material respect to such Person or to the Lenders.
Section
5.03. Payment of Taxes. Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, pay
all Taxes imposed upon it or any of its properties or assets or in respect of any of its income or businesses or franchises before any
penalty or fine accrues thereon; provided that no such Tax need be paid if (a) it is being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, so long as (i) adequate reserves or other appropriate provisions, as are required
in conformity with GAAP, have been made therefor and (ii) in the case of a Tax which has or may become a Lien against a material portion
of the Collateral, such contest proceedings conclusively operate to stay the sale of such portion of the Collateral to satisfy such Tax
or (b) failure to pay or discharge the same would not reasonably be expected to result in a Material Adverse Effect.
Section
5.04. Maintenance of Properties. The Borrower will, and will cause each of its Restricted Subsidiaries to, maintain or cause to
be maintained in good repair, working order and condition, ordinary wear and tear and casualty and condemnation excepted, all material
tangible property reasonably necessary to the normal conduct of business of the Borrower and its Restricted Subsidiaries and from time
to time will make or cause to be made all needed and appropriate repairs, renewals and replacements thereof except as expressly permitted
by this Agreement or where the failure to maintain such tangible properties or make such repairs, renewals or replacements would not
reasonably be expected to have a Material Adverse Effect.
Section
5.05. Insurance. Except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, the Borrower
will maintain or cause to be maintained, in each case, as determined by the Borrower in good faith, with financially sound and reputable
insurers, such insurance coverage with respect to liabilities, losses or damage in respect of the assets, properties and businesses of
the Borrower and its Restricted Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to self-insurance), with such deductibles, covering
such risks and otherwise on such terms and conditions as shall be customary for such Persons, including, but only if required by applicable
law or regulation, flood insurance with respect to each Flood Hazard Property, in each case in compliance with applicable Flood Insurance
Laws, in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing
or interpreting any of the foregoing, as amended or modified from time to time. Each such policy of insurance shall (i) name the Administrative
Agent on behalf of the Secured Parties as a loss payee and mortgagee or an additional insured, as applicable, thereunder as its interests
may appear and (ii) to the extent available from the relevant insurance carrier, in the case of each casualty insurance policy (excluding
any business interruption insurance policy), contain a loss payable clause or endorsement that names the Administrative Agent, on behalf
of the Secured Parties, as the loss payee thereunder and, to the extent available, provide for at least 30 days’ prior written
notice to the Administrative Agent of any modification or cancellation of such policy (or 10 days’ prior written notice in the
case of the failure to pay any premiums thereunder); provided that the Borrower shall have 45 days after the Closing Date (or
such later date as agreed by the Administrative Agent) to comply with the requirements of the foregoing clauses (i) and (ii) with respect
to policies in effect on the Closing Date.
Section
5.06. Inspections. The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any authorized
representative designated by the Administrative Agent to visit and inspect any of the properties of the Borrower and any of its
Restricted Subsidiaries at which the principal financial records and executive officers of the applicable Person are located, to
inspect, copy and take extracts from its and their respective financial and accounting records, and to discuss its and their
respective affairs, finances and accounts with its and their Responsible Officers and independent public accountants (subject to
such accountants’ customary policies and procedures) (provided that the Borrower (or any of its subsidiaries) may, if
it so chooses, be present at or participate in any such discussion), all upon reasonable notice and at reasonable times during
normal business hours; provided that (x) only the Administrative Agent on behalf of the Lenders may exercise the rights of
the Administrative Agent and the Lenders under this Section 5.06, (y) the Administrative Agent shall not exercise such rights
more often than one time during any calendar year and (z) only one such time per calendar year shall be at the expense of the
Borrower; provided, further, that when an Event of Default exists, the Administrative Agent (or any of its
representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal
business hours and upon reasonable advance notice; provided, further that notwithstanding anything to the contrary
herein, neither the Borrower nor any Restricted Subsidiary shall be required to disclose, permit the inspection, examination or
making of copies of or taking abstracts from, or discuss any document, information or other matter (i) that constitutes
non-financial trade secrets or non-financial proprietary information of the Borrower and its subsidiaries and/or any of its
customers and/or suppliers, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or any of their
respective representatives or contractors) is prohibited by applicable law, (iii) that is subject to attorney-client or similar
privilege or constitutes attorney work product or (iv) in respect of which Holdings, the Borrower or any Restricted Subsidiary owes
confidentiality obligations to any third party (provided such confidentiality obligations were not entered into solely in
contemplation of the requirements of this Section 5.06); provided, further, that in the event any of the circumstances
described in the preceding proviso exist, the Borrower shall provide notice to the Administrative Agent thereof and shall use
commercially reasonable efforts to describe, to the extent both feasible and permitted under applicable Requirements of Law or
confidentiality obligations, or without waiving such privilege, as applicable, the applicable document, information or other
matter.
Section
5.07. Maintenance of Book and Records. The Borrower will, and will cause its Restricted Subsidiaries to, maintain proper books
of record and account containing entries of all material financial transactions and matters involving the assets and business of the
Borrower and its Restricted Subsidiaries that are full, true and correct in all material respects and permit the preparation of consolidated
financial statements in accordance with GAAP.
Section
5.08. Compliance with Laws. The Borrower will comply, and will cause each of its Restricted Subsidiaries to comply, with the
requirements of all applicable laws, rules, regulations and orders of any Governmental Authority (including ERISA and all
Environmental Laws, Sanctions and the U.S. Foreign Corrupt Practices Act of 1977), except to the extent the failure of the Borrower
or the relevant Restricted Subsidiary to comply would not reasonably be expected to have a Material Adverse Effect.
Section
5.09. Hazardous Materials Activity.
(a) The Borrower will deliver to the Administrative Agent:
(i) reasonably
promptly following receipt by Borrower thereof, copies of all written environmental audits, investigations, analyses and reports of any
kind or character, whether prepared by personnel of the Borrower or any of its Restricted Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to any Environmental Liabilities or Hazardous Materials Activity that, in
each case could reasonably be expected to have a Material Adverse Effect;
(ii) reasonably
promptly following Borrower becoming aware of the occurrence thereof, written notice describing in reasonable detail (A) any Release
required to be reported by the Borrower or any of its Restricted Subsidiaries to any federal, state or local governmental or regulatory
agency under any applicable Environmental Law, (B) any remedial action taken by or on behalf of the Borrower or any of its Restricted
Subsidiaries in response to any Hazardous Materials Activity or Environmental Claim, or (C) any pending or threatened Environmental Claim,
that in the case of each of (A), (B) and (C) above, would reasonably be expected to have a Material Adverse Effect; and
(iii) reasonably
promptly following the sending or receipt thereof by the Borrower or any of its Restricted Subsidiaries, a copy of any and all written
communications with respect to any Release required to be reported by the Borrower or any of its Restricted Subsidiaries to any federal,
state or local governmental or regulatory agency or any Release required to be remediated pursuant to any Environmental Law, that in
each case would reasonably be expected to have a Material Adverse Effect.
(b) The
Borrower shall reasonably promptly take, and shall cause each of its Restricted Subsidiaries reasonably promptly to take, any and all
actions reasonably necessary to (i) cure any violation of Environmental Law by the Borrower or any of its Restricted Subsidiaries, and,
to the extent required by Environmental Law, address with appropriate corrective or remedial action any Release or threatened Release
of any Hazardous Material at or from any Facility, that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect and (ii) make an appropriate response to any Environmental Claim against the Borrower or any of its Restricted Subsidiaries
and discharge any obligations it may have to any Person thereunder, where failure to do so could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect; provided that it shall not be deemed to be a violation of this Section 5.09
if the Borrower or its Restricted Subsidiaries are in good faith contesting such violation or Environmental Claim in accordance with
applicable Environmental Law.
Section
5.10. Designation of Subsidiaries. The Borrower may at any time after the Closing Date designate (or re-designate) any subsidiary
as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) no subsidiary may be
designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of the Second Lien Credit Agreement
and (ii) as of the date of the designation thereof, no Unrestricted Subsidiary shall own any Capital Stock in any Restricted Subsidiary
of the Borrower (unless such Restricted Subsidiary is also designated as an Unrestricted Subsidiary simultaneously with the aforementioned
designation in accordance with the terms of this Section 5.10) or hold any Indebtedness of or any Lien on any property of the
Borrower or its Restricted Subsidiaries (unless the Borrower or such Restricted Subsidiary is permitted hereunder to incur such Indebtedness
or grant such Lien in favor of such Unrestricted Subsidiary). The designation of any subsidiary as an Unrestricted Subsidiary shall constitute
an Investment by the Borrower therein at the date of designation in an amount equal to the portion of the fair market value of the net
assets of such Restricted Subsidiary attributable to the Borrower’s equity interest therein as estimated by the Borrower in good
faith (and such designation shall only be permitted to the extent such Investment is permitted under Section 6.06). The designation
of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence or making, as applicable, at the time of designation
of any then-existing Investment, Indebtedness or Lien of such Restricted Subsidiary, as applicable; provided that upon a re-designation
of any Unrestricted Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have an Investment in the resulting
Restricted Subsidiary in an amount (if positive) equal to (a) the Borrower’s “Investment” in such Restricted Subsidiary
at the time of such re-designation less (b) the portion of the fair market value of the net assets of such Restricted Subsidiary attributable
to the Borrower’s equity therein at the time of such re-designation. As of the Closing Date, the subsidiaries listed on Schedule
5.10 hereto have been designated as Unrestricted Subsidiaries.
Section
5.11. Use of Proceeds. The Borrower shall use the proceeds of the Revolving Loans (a) on the Closing Date, (i) to replace, backstop
or cash collateralize Existing Letters of Credit, guarantees or performance or similar bonds or to issue Letters of Credit and (ii) in
an aggregate principal amount of up to $15,000,000 to pay Transaction Costs and expenses and for purchase price and working capital adjustments,
if any, under the Acquisition Agreement and to provide for ordinary course working capital needs and general corporate purposes and (b)
after the Closing Date, to finance the working capital needs and other general corporate purposes of the Borrower and its subsidiaries
(including for capital expenditures, acquisitions, working capital and/or purchase price adjustments, the payment of transaction fees
and expenses (in each case, including in connection with the Acquisition), other Investments, Restricted Payments, Restricted Debt Payments
and any other purpose not prohibited by the terms of the Loan Documents). The Borrower shall use the proceeds of the Swingline Loans
made after the Closing Date to finance the working capital needs and other general corporate purposes of the Borrower and its subsidiaries
and any other purpose not prohibited by the terms of the Loan Documents. The Borrower shall use the proceeds of the Initial Term Loans
(i) to effect all or a portion of the Refinancing, (ii) to finance all or a portion of the Transactions, the Amendment No. 1 Transactions
(including working capital and/or purchase price adjustments and the payment of Transaction Costs) and (iii) for general corporate purposes.
The Borrower shall use the proceeds of the Amendment No. 2 Term Loans (x) to repay the Existing Term Loans (as defined in Amendment No.
2) and for the payment of fees and expenses in connection therewith, together with the accrued and unpaid interest thereon, (y) to finance
all or a portion of the Amendment No. 2 Transactions (including the payment of Transaction Costs) and (z) for general corporate purposes.
The Borrower shall use the proceeds of the Amendment No. 3 Incremental Term Loans to finance all or a portion
of the Amendment No. 3 Transactions (including the payment of transaction costs) and, as further set forth below, for general corporate
purposes (including any purpose not otherwise prohibited hereunder). No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that would entail a violation of Regulation U. The Borrower shall use the proceeds of the Incremental
Term Loans for working capital, capital expenditures and other general corporate purposes of the Borrower and its subsidiaries (and,
in the case of the Amendment No. 1 Incremental Term Loans and the Amendment No. 2 Term Loans, to finance all or a portion of the Amendment
No. 1 Transactions and the Amendment No. 2 Transactions, as applicable) (including for Restricted Payments, Investments,
Permitted Acquisitions and any other purpose not prohibited by the terms of the Loan Documents).
(and, in the case of the Amendment No. 1 Incremental
Term Loans, the Amendment No. 2 Term Loans and the Amendment No. 3 Incremental Term Loans (each, as applicable), to finance all or a
portion of the Amendment No. 1 Transactions, the Amendment No. 2 Transactions and the Amendment No. 3 Transactions, as applicable).
Section
5.12. Covenant to Guarantee Obligations and Give Security.
(a) Upon
(i) the formation or acquisition after the Closing Date of any Restricted Subsidiary that is a Domestic Subsidiary (subject to Section
6.06(hh)), (ii) the designation of any Unrestricted Subsidiary that is a Domestic Subsidiary as a Restricted Subsidiary, (iii) any Restricted
Subsidiary that is a Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary ceasing to be an Excluded
Subsidiary (including by election of the Borrower as set forth herein), (x) if the event giving rise to the obligation under this Section
5.12(a) occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the date on which financial statements are
required to be delivered pursuant to Section 5.01(a) for the Fiscal Quarter in which the relevant formation, acquisition, designation
or cessation occurred or (y) if the event giving rise to the obligation under this Section 5.12(a) occurs during the fourth Fiscal
Quarter of any Fiscal Year, on or before the date that is 60 days after the end of such Fiscal Quarter (or, in the cases of clauses
(x) and (y), such longer period as the Administrative Agent may reasonably agree), the Borrower shall (A) cause such Restricted
Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in clause (a) of the definition of “Collateral
and Guarantee Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary
(other than any Excluded Subsidiary) to deliver to the Administrative Agent a signed copy of a customary opinion of counsel for such
Restricted Subsidiary, addressed to the Administrative Agent and the other relevant Secured Parties.
(b) Within
120 days (or such longer period as the Administrative Agent may reasonably agree) after the acquisition by any Loan Party of any
Material Real Estate Asset, other than any Excluded Asset, the Borrower shall cause such Loan Party to comply with the requirements
set forth in clause (b) of the definition of “Collateral and Guarantee Requirement”; it being understood and
agreed that, with respect to any Material Real Estate Asset (other than any Excluded Asset) owned by any Restricted Subsidiary at
the time such Restricted Subsidiary is required to become a Loan Party under Section 5.12(a) above, such Material Real Estate
Asset shall be deemed to have been acquired by such Restricted Subsidiary on the first day of the time period within which such
Restricted Subsidiary is required to become a Loan Party under Section 5.12(a).
Notwithstanding
anything to the contrary herein or in any other Loan Document, (i) the Administrative Agent may grant extensions of time (including after
the expiration of any relevant period, which apply retroactively) for the creation and perfection of security interests in, or obtaining
of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guaranty
by any Restricted Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date),
and each Lender hereby consents to any such extension of time, (ii) any Lien required to be granted from time to time pursuant to the
definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations set forth in the
Collateral Documents, (iii) perfection by control shall not be required with respect to assets requiring perfection through control agreements
or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than control of pledged
Capital Stock and/or Material Debt Instruments, in each case, that constitute Collateral) and no blocked account agreement, account control
agreement or similar agreement shall be required, (iv) no Loan Party shall be required to seek any landlord waiver, bailee letter, estoppel,
warehouseman waiver or other collateral access or similar letter or agreement, (v) no Loan Party will be required to (1) take any action
outside of the United States or grant or perfect any security interest in any asset located outside of the U.S. or conduct any foreign
lien search, (2) execute any foreign law guarantee, security agreement, pledge agreement, mortgage, deed or charge or (3) make any foreign
intellectual property filing, conduct any foreign intellectual property search or prepare any foreign intellectual property schedule
with respect to any assets of any Loan Party or enter into any source code escrow arrangement or register any intellectual property,
(vi) in no event will the Collateral include any Excluded Assets, (vii) no action shall be required to perfect any Lien with respect
to (x) any vehicle or other asset subject to a certificate of title, or any retention of title, extended retention of title rights, or
similar rights and/or (y) Letter-of-Credit Rights, in each case to the extent that a security interest therein cannot be perfected by
filing a Form UCC-1 (or similar) “all assets” financing statement without the requirement to list any VIN, serial or other
number and (viii) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in,
those assets as to which the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party
to conduct its operations and business in the ordinary course of business) of obtaining or perfecting such Lien (including any mortgage,
stamp, intangibles or other tax or expenses relating to such Lien) outweighs the benefit to the Lenders of the security afforded thereby
as reasonably determined by the Borrower and the Administrative Agent; provided that the foregoing shall not apply and shall not operate
to limit the obligation of the Loan Parties to provide security in foreign jurisdictions (subject to “agreed security principles”
to be negotiated in good faith between the Borrower and the Administrative Agent) if a Foreign Subsidiary becomes a Guarantor.
Additionally,
(i) no action shall be required to create or perfect a Lien in any asset in respect of which the creation or perfection of a
security interest therein would (1) be prohibited by enforceable anti- assignment provisions set forth in any contract that is
permitted or otherwise not prohibited by the terms of this Agreement, (2) violate the terms of any contract relating to such asset
that is permitted or otherwise not prohibited by the terms of this Agreement, in each case, after giving effect to the applicable
anti-assignment provisions of the UCC or other applicable law or (3) trigger termination of any contract relating to such asset that
is permitted or otherwise not prohibited by the terms of this Agreement pursuant to any “change of control” or similar
provision, it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract
described in this clause (other than Excluded Assets) to the extent the assignment of such proceeds or receivables is expressly
deemed effective under the UCC or other applicable Requirements of Law notwithstanding the relevant prohibition, violation or
termination right, (ii) no Loan Party shall be required to create or perfect a security interest in any asset to the extent the
creation or perfection of a security interest in such asset would (A) be prohibited under any applicable Requirement of Law, after
giving effect to any applicable anti-assignment provision of the UCC or other applicable law and other than proceeds thereof (other
than Excluded Assets) to the extent that the assignment of such proceeds is effective under the UCC or other applicable Requirements
of Law notwithstanding such Requirement of Law, (B) require any governmental consent, approval, license or authorization (unless
such consent, approval, license or authorization has been obtained), after giving effect to any applicable anti-assignment provision
of the UCC or other applicable law and other than proceeds thereof (other than Excluded Assets) to the extent that the assignment of
such proceeds is effective under the UCC or other applicable Requirements of Law notwithstanding such consent or restriction and/or
(C) result in adverse tax consequences or adverse regulatory consequences to any Loan Party or any of its subsidiaries or Parent
Companies as determined by the Borrower in good faith following consultation with the Administrative Agent, (iii) any joinder or
supplement to any Loan Guaranty, any Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that
is required to become a Loan Party pursuant to Section 5.12(a) above may, with the consent of the Administrative Agent (not
to be unreasonably withheld or delayed), include such schedules (or updates to schedules) as may be necessary to qualify any
representation or warranty set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is
true and correct to the extent required thereby or by the terms of any other Loan Document; and (iv) (A) no Loan Party will be
required to take any action required under the Federal Assignment of Claims Act or any similar law and (B) no Secured Party will be
permitted to exercise any right of setoff in respect of any account maintained solely for the purpose of receiving and holding
government receivables.
Section
5.13. Maintenance of Ratings. The Borrower shall use commercially reasonable efforts to maintain public corporate credit facility
and public corporate family ratings in respect of Holdings from each of S&P and Moody’s; provided that in no event shall
the Borrower be required to maintain any specific rating with any such agency.
Section
5.14. Maintenance of Fiscal Year. The Borrower shall maintain its Fiscal Year-end as in effect on the Closing Date; provided that
the Borrower may, upon written notice to the Administrative Agent, change its Fiscal Year-end to another date, in which case the Borrower
and the Administrative Agent will, and are hereby authorized to (without requiring the consent of any other Person, including any Lender),
make any adjustments to this Agreement that are necessary to reflect such change in Fiscal Year.
Section
5.15. Further Assurances. Promptly upon reasonable request of the Administrative Agent and subject to the limitations described
in Section 5.12:
(a) The
Borrower will, and will cause each other Loan Party to, execute any and all further documents, financing statements, agreements, instruments,
certificates, notices and acknowledgments and take all such further actions (including the filing and recordation of financing statements,
fixture filings, Mortgages and/or amendments thereto and other documents), that may be required under any applicable law and which the
Administrative Agent may reasonably request to ensure the perfection and priority of the Liens created or intended to be created under
the Collateral Documents, all at the expense of the relevant Loan Parties. For the avoidance of doubt, in no event shall any (x) Excluded
Property or (y) property subject to a Sale and Lease-Back Transaction permitted hereunder be required to be made subject to the Collateral
Documents.
(b) The
Borrower will, and will cause each other Loan Party to, (i) correct any material defect or error that may be discovered in the execution,
acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral and (ii)
do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts (including
notices to third parties), deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from
time to time in order to ensure the creation and perfection of the Liens created under the Collateral Documents.
Section
5.16. Conduct of Business. The Borrower and its Restricted Subsidiaries shall engage only in those material lines of business
that consist of (a) the businesses engaged in by the Borrower or any Restricted Subsidiary on the Closing Date, reasonably related, similar,
incidental, complementary, ancillary, corollary, synergistic or related businesses or reasonable extensions, development or expansion
(or proposed to be engaged) of such businesses (including entertainment and amusement media and content business in connection therewith)
and (b) such other lines of business to which the Administrative Agent may consent.
Section
5.17. Annual Lender Call. Upon the request of the Administrative Agent following each delivery of financial statements pursuant
to Section 5.01(b) (commencing with respect to the financial statements delivered for the Fiscal Year ending on or about June
30, 2018), the Borrower shall participate in a conference call with Lenders arranged by the Administrative Agent to provide discussion
and analysis with respect to the financial condition and results of operations of the Borrower and its Restricted Subsidiaries at a time
at which the Borrower and the Administrative Agent mutually agree.
Section
5.18. Post-Closing Actions. Take the actions set forth on Schedule 5.18 within the time periods specified thereon (or by
such later time as the Administrative Agent may reasonably agree).
ARTICLE
6 NEGATIVE COVENANTS
From
the Closing Date and until the Termination Date has occurred, Holdings (solely with respect to Section 6.14) and the Borrower
covenant and agree with the Lenders that:
Section
6.01. Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the
Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Indebtedness
of the Borrower or any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary (or issued to any Parent Company which
is substantially contemporaneously transferred to the Borrower or any Restricted Subsidiary); provided that in the case of any
Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to a Loan Party, the making of the corresponding loan or advance
shall have been permitted as an Investment pursuant to Section 6.06; provided, further, all such Indebtedness of
any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party
on terms that are reasonably acceptable to the Administrative Agent;
(c) Indebtedness
of any Joint Venture or Indebtedness of the Borrower or any Restricted Subsidiary incurred on behalf of any Joint Venture or any
Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness of any Joint Venture in an aggregate outstanding principal
amount for all such Indebtedness not to exceed at any time the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of
the last day of the most recently ended Test Period;
(d) Indebtedness
arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out
or similar obligations), or payment obligations in respect of any non-compete, consulting or similar arrangements, in each case incurred
in connection with any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder or consummated prior
to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties, letters of credit, bank
guaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary
pursuant to any such agreement;
(e) Indebtedness
of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations (including health, safety and environmental
obligations), bids, leases, governmental contracts, trade contracts, surety, indemnity, stay, customs, judgment, appeal, performance,
completion and/or return of money bonds or guaranties or other similar obligations incurred in the ordinary course of business and (ii)
in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing
items;
(f) Indebtedness
of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, debit cards, purchasing cards,
treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including
depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services, including
Indebtedness arising from the financing by a bank or other financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business), employee credit card programs, cash pooling services, foreign exchange and currency
management services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management
and Deposit Accounts, including Banking Services Obligations and incentive, supplier finance or similar programs;
(g) (i)
Guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers, franchisees, licensees, sublicensees
and cross-licensees in the ordinary course of business, (ii) Indebtedness (A) incurred in the ordinary course of business in respect
of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of property or services or progress
payments in connection with such property and services or (B) consisting of obligations under deferred purchase price or other similar
arrangements incurred in connection with Permitted Acquisitions or any other Investment expressly permitted hereunder and (iii) Indebtedness
in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse
receipts or similar facilities entered into in the ordinary course of business;
(h) Guarantees
(including any co-issuance) by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower and/or
any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other
obligations not prohibited by this Agreement; provided that in the case of any such Guarantee by any Loan Party of the obligations
of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness
of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing (or anticipated), on the Closing Date
and, with respect to any such item of Indebtedness in an aggregate committed or principal amount in excess of $250,000, described on Schedule
6.01;
(j)
Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of
such Indebtedness shall not exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period;
(k) Indebtedness
of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements
entered into in the ordinary course of business;
(l)
Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the
financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements in the ordinary course of business
and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course
of business;
(m) Indebtedness
of the Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness (including mortgage financing,
industrial revenue bond, industrial development bond or similar financings) or to finance the construction, purchase, repair, replacement
or improvement of any fixed or capital asset, in an aggregate outstanding principal amount not to exceed the greater of $65,000,000 and
49% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (excluding, for the avoidance of doubt,
the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Sale/Leaseback Transaction and iStar Exchanges);
(n) Indebtedness
of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or other Investment permitted
hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted
Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof and (ii)
either (A) the Borrower is in compliance with the applicable ratio set forth in clause (e) of the definition of Incremental Cap based
on whether such Indebtedness is secured by a pari passu lien on the Collateral or a junior Lien on the Collateral or is unsecured
or secured by Liens on assets not constituting Collateral (and for such purpose, such Indebtedness shall be deemed to have been incurred
to finance an acquisition or other Investment permitted hereunder), calculated on a Pro Forma Basis as of the last day of the most recently
ended Test Period or (B) the aggregate outstanding principal amount of such Indebtedness does not exceed the greater of $15,000,000 and
11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o) Indebtedness
consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any Permitted
Payee to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) the
Borrower and its Restricted Subsidiaries may become and remain liable for any Indebtedness extending, refinancing, refunding or
replacing any Indebtedness permitted under clauses (a), (c), (i), (j), (m), (n), (r), (u), (v), (w), (y), (z),
(dd), (gg), (ll) and (mm) of this Section 6.01 (in any case, including any extending,
refinancing, refunding or replacing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any
subsequent Refinancing Indebtedness in respect thereof; provided that (i) the principal amount of such Refinancing
Indebtedness does not exceed the principal amount of the Indebtedness being extended, refinanced, refunded or replaced, except by
(A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting
discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield
payments) incurred in connection with the relevant extension, refinancing, refunding or replacement, (B) an amount equal to any
existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01
(provided that (1) any additional Indebtedness referred to in this clause (C) satisfies the other applicable requirements of
this Section 6.01(p) (with additional amounts incurred in reliance on this clause (C) constituting a utilization of
the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is
secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02), (ii) in the case of
Refinancing Indebtedness with respect to clauses (a) and (z) (other than (x) customary bridge loans with a maturity
date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or
otherwise replace such bridge loans shall be subject to the requirements of this clause (ii) and (y) Refinancing Indebtedness
having an aggregate principal amount outstanding not exceeding $20,000,000 (as selected by the Borrower)), such Refinancing
Indebtedness has (A) a final maturity on or later than (and, in the case of revolving Indebtedness, does not require mandatory
commitment reductions, if any, prior to) the earlier of (x) the Latest Term Loan Maturity Date at the time of the incurrence of such
Refinancing Indebtedness and (y) the final maturity of the Indebtedness being extended, refinanced, refunded or replaced and (B)
other than with respect to revolving Indebtedness, a Weighted Average Life to Maturity equal to or greater than (x) the Weighted
Average Life to Maturity of the Indebtedness being extended, refinanced, refunded or replaced or (y) the Weighted Average Life to
Maturity of the outstanding Term Loans at the time of the incurrence of such Refinancing Indebtedness, (iii) with respect to any
Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount, the terms thereof (excluding pricing,
fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect to
Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security) are not, taken as a
whole (as determined by the Borrower in good faith), more favorable to the lenders providing such Indebtedness than those applicable
to the Indebtedness being extended, refinanced, refunded or replaced (other than any covenants or any other terms or provisions (X)
applicable only to periods after the Latest Maturity Date at the time of the incurrence of such Refinancing Indebtedness, (Y) that
are then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining
of a commitment with respect thereto)) for the applicable type of Indebtedness or (Z) solely in the case of Refinancing Indebtedness
in respect of Indebtedness incurred in reliance on clauses (a) and/or (z) of this Section 6.01, terms or other
provisions which are conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative
Agent, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)), (iv) the incurrence
thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause of this Section 6.01 pursuant
to which the Indebtedness being extended, refinanced, refunded or replaced was incurred (i.e., the incurrence of such Refinancing
Indebtedness shall not create availability under such relevant clause), (v) except in the case of Refinancing Indebtedness incurred
in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Indebtedness, if secured, is
secured only by Permitted Liens at the time of such extension, refinancing, refunding or replacement (it being understood that
secured Indebtedness may be refinanced with unsecured Indebtedness), (B) such Indebtedness is incurred by the obligor or obligors in
respect of the Indebtedness being extended, refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section
6.01 (it being understood that Holdings may not be the primary obligor of the applicable Refinancing Indebtedness if Holdings
was not the primary obligor on the relevant refinanced Indebtedness) and (C) if the Indebtedness being extended, refinanced,
refunded or replaced was contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness
were contractually subordinated to such Liens on the Collateral securing the Secured Obligations), such Indebtedness is
contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness are subordinated to the
Liens on the relevant Collateral securing the Secured Obligations) either (x) on terms not materially less favorable, taken as a
whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being extended, refinanced, refunded or
replaced, taken as a whole or (y) pursuant to an Acceptable Intercreditor Agreement, (vi) except in the case of Refinancing
Indebtedness with respect to clause (a) of this Section 6.01, as of the date of the incurrence of such Indebtedness
and after giving effect thereto, no payment or bankruptcy (with respect to the Borrower) Event of Default exists and (vii) in the
case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01,
(A) such Refinancing Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari
passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such
Refinancing Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Acceptable
Intercreditor Agreement, (B) if such Refinancing Indebtedness is secured, it is not secured by any assets other than the Collateral,
(C) if such Refinancing Indebtedness is Guaranteed, it shall not be Guaranteed by any Person other than a Loan Party and (D) such
Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, it being understood and agreed
that any such Refinancing Indebtedness may participate (x) in any voluntary prepayment of Term Loans as set forth in Section
2.11(a)(i) and (y) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi);
(q) endorsement
of instruments or other payment items for collection or deposit in the ordinary course of business;
(r) Indebtedness
in respect of any Additional Letter of Credit Facility in an aggregate principal or face amount at any time outstanding not to exceed
the greater of $40,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(s) Indebtedness
of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t)
[reserved];
(u) Indebtedness
of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the greater of $60,000,000
and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v) Indebtedness
of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 100% of the amount of any
capital contributions or other proceeds received by the Borrower or any Restricted Subsidiary (i) from the issuance or sale of its Qualified
Capital Stock or (ii) in the form of any cash contribution, plus the fair market value, as determined by the Borrower in good
faith, of Cash Equivalents, marketable securities or other property received by the Borrower or any Restricted Subsidiary from the issuance
and sale by it or any Parent Company of its or such Parent Company’s Qualified Capital Stock or a contribution to the Qualified
Capital Stock of any Parent Company, Holdings, the Borrower or any Restricted Subsidiary (including through consolidation, amalgamation
or merger), in each case after the Closing Date, and in each case other than (A) any proceeds received from the sale of Capital Stock
to, or contributions from, the Borrower or any of its Restricted Subsidiaries, (B) to the extent the relevant proceeds have otherwise
been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and (C) Cure Amounts and/or any Available
Excluded Contribution Amount;
(w) Indebtedness
arising under a Qualified Receivables Facility in an aggregate principal amount not to exceed the greater of $20,000,000 and 15% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period;
(x) Indebtedness
of the Borrower and/or any Restricted Subsidiary incurred in respect of (i) any Second Lien Facility and any “Incremental Loans”
and “Incremental Equivalent Debt” (each as defined in the Second Lien Credit Agreement or any equivalent term under any Second
Lien Facility) in an aggregate outstanding principal amount that does not exceed $137,500,000 plus the aggregate outstanding principal
amount of such “Incremental Loans” or “Incremental Equivalent Debt” so long as the sum of the aggregate outstanding
principal amount of any such “Incremental Loans” or “Incremental Equivalent Debt” does not exceed the “Incremental
Cap” (as applicable, and each as defined in the Second Lien Credit Agreement as in effect on the Closing Date, including after
giving effect to Sections 1.04(d) and 1.04(e) thereof) and (ii) any refinancing, refunding or replacing of any Second Lien
Facility or any such “Incremental Loans” or “Incremental Equivalent Debt” after the Closing Date so long as (A)
the aggregate outstanding principal amount of such Indebtedness does not exceed an amount permitted to be incurred under the preceding
clause (i), plus (1) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon,
(2) the amount of any underwriting discounts and other customary fees, commissions and expenses (including upfront fees, original issue
discount or initial yield payments) incurred in connection with the relevant refinancing, (3) an amount equal to any existing commitments
unutilized thereunder and (4) any additional amounts permitted to be incurred pursuant to this Section 6.01 (with additional amounts
incurred in reliance on this clause (4) constituting a utilization of the relevant basket or exception pursuant to which such
additional amount is permitted), (B) such Indebtedness, if secured, is secured only by Liens permitted under Section 6.02(t),
(C) except with respect to revolving Indebtedness, the Weighted Average Life to Maturity of such Indebtedness is equal to or greater
than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced in reliance on this Section 6.01(x) at the
time of such refinancing (without giving effect to any prepayment thereof), (D) the final maturity date of such Indebtedness is equal
to or later than the final maturity date of the Indebtedness being refinanced in reliance on this Section 6.01(x) and (E) no such Indebtedness
is (1) guaranteed by any Person which is not a Loan Party or (2) secured by any assets other than the Collateral;
(y) Indebtedness
of the Borrower and/or any Restricted Subsidiary incurred in connection with Sale and Lease-Back Transactions permitted pursuant to Section
6.08;
(z) Incremental
Equivalent Debt; provided that the aggregate principal amount of Incremental Equivalent Debt incurred by Restricted Subsidiaries
that are not Loan Parties shall not exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the
most recently ended Test Period;
(aa)
Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments
with respect to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers’ compensation
claims (or reimbursement type obligations regarding workers’ compensation claims), unemployment insurance (including premiums related
thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits or property,
casualty or liability insurance or self-insurance;
(bb)
Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred
compensation to current and former directors, officers, employees, members of management, managers and consultants of any Parent
Company, the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other
similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted
hereby;
(cc)
Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of any letter of credit or bank guarantee issued in favor
of any issuing bank or swingline lender to support any defaulting lender’s participation in letters of credit issued, or
swingline loans made, hereunder or under any Additional Letter of Credit Facility;
(dd)
Indebtedness of the Borrower or any Restricted Subsidiary supported by any Letter of Credit issued hereunder or under any Additional
Letter of Credit Facility or any other letters of credit or bank guarantees permitted hereunder;
(ee)
unfunded pension fund and other employee benefit plan obligations and liabilities incurred by the Borrower and/or any Restricted Subsidiary
in the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under Section
7.01(i);
(ff)
without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind
interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Borrower
and/or any Restricted Subsidiary hereunder;
(gg)
(i) to the extent constituting Indebtedness, obligations under the Acquisition Agreement and (ii) any Indebtedness permitted to remain
outstanding after the Closing Date pursuant to the Acquisition Agreement (excluding any Indebtedness required to be refinanced pursuant
to the Refinancing);
(hh)
customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in
the ordinary course of business;
(ii)
[reserved];
(jj)
(i) Indebtedness in connection with bankers’ acceptances, discounted bills of exchange or the discounting or factoring of receivables
for credit management purposes, in each case incurred or undertaken in the ordinary course of business on arm’s-length commercial
terms and (ii) the incurrence of Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights or the settlement
of any claims or actions (whether actual, contingent or potential) with respect to the Transactions or any other acquisition (by merger,
consolidation or amalgamation or otherwise) in accordance with the terms hereof;
(kk)
obligations in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any subsidiary
of the Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed
in jurisdictions other than within the United States;
(ll)
Indebtedness in an aggregate principal amount outstanding at any time not to exceed the Available RP Capacity Amount;
(mm)
Indebtedness in respect of any Excluded Property Transaction or any transactions under any iStar Sale/Leaseback Documents; and
(nn)
Guarantee obligations incurred in the ordinary course of business under repurchase agreements in connection with the financing of Bowling
Equipment sales.
For
the avoidance of doubt, the accrual of interest, the accretion of accreted value, the accretion or amortization of original issue discount,
the payment of interest in the form of additional Indebtedness and increases in the amount of Indebtedness outstanding solely as a result
of fluctuations in the exchange rate of currencies shall be deemed to be permitted Indebtedness for purposes of this Section.
Section
6.02. Liens. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, create, incur, assume or permit
or suffer to exist any Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any
income or profits therefrom, except:
(a) Liens
created pursuant to the Loan Documents securing the Secured Obligations (including Cash collateralization of Letters of Credit as set
forth in Section 2.05);
(b) Liens
for Taxes or other governmental charges which are not overdue for a period of more than 45 days or, if more than 45 days overdue (i)
are being contested in accordance with Section 5.03 or (ii) with respect to which the failure to make payment would not reasonably
be expected to have a Material Adverse Effect;
(c) statutory
or common law Liens (and rights of set-off) of landlords, sub landlords, construction contractors, banks, carriers, warehousemen, mechanics,
repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements of Law, in each case incurred in the ordinary
course of business (i) for amounts not yet overdue by more than 45 days, (ii) for amounts that are overdue by more than 45 days (A) that
are being contested in good faith by appropriate proceedings, so long as any reserves or other appropriate provisions required by GAAP
have been made for any such contested amounts or (B) with respect to which no filing or other action has been taken to enforce such Lien
or (iii) with respect to which the failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(d) Liens
incurred (i) in the ordinary course of business in connection with workers’ compensation, unemployment insurance, health, disability
or employee benefits and other types of social security laws and regulations, (ii) in the ordinary course of business to secure the performance
of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, indemnitees,
performance, completion and return-of-money bonds and other similar obligations (including those to secure health, safety and environmental
obligations) (in each case, exclusive of obligations for the payment of borrowed money), (iii) pursuant to pledges and deposits of Cash
or Cash Equivalents in the ordinary course of business securing (x) any liability for reimbursement, premium or indemnification obligations
of insurance brokers or carriers providing property, casualty, liability or other insurance to Holdings, the Borrower and its subsidiaries
(including deductibles, self- insurance, co-payment, co-insurance and retentions) or (y) leases or licenses of property otherwise permitted
by this Agreement and (iv) to secure obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or
similar instruments posted with respect to the items described in clauses (i) through (iii) above;
(e) Liens
consisting of easements, covenants, conditions, rights-of-way, restrictions, encroachments, servitudes for railways, sewers, drains,
gas and oil and other pipelines, gas and water mains, electric light and power and telecommunication, telephone or telegraph or cable
television conduits, poles, wires and cables and other similar protrusions or encumbrances and other minor defects or irregularities
in title, in each case (x) which do not, in the aggregate, materially interfere with the ordinary conduct of the business of the Borrower
and/or its Restricted Subsidiaries, taken as a whole, or materially interfere with the use of the affected property for its intended
purpose or (y) where the failure to have such title would not reasonably be expected to have a Material Adverse Effect;
(f) Liens
consisting of any (i) interest or title of a lessor, sub-lessor, licensor or sub- licensor under any lease, license or similar arrangement
of real estate or other property (including intellectual property) permitted hereunder, (ii) landlord lien permitted by the terms of
any lease, sub- lease, license, sub-license or similar arrangement, (iii) restriction or encumbrance to which the interest or title of
such lessor, sub-lessor, licensor or sub-licensor may be subject, (iv) subordination of the interest of the lessee, sub-lessee, licensee
or sub-licensee under such lease, sub-lease, license, sub-license or similar arrangement to any restriction or encumbrance referred to
in the preceding clause (iii) or (v) deposit of cash with the owner or lessor of premises leased and operated by the Borrower
or any Restricted Subsidiary in the ordinary course of business to secure the performance of obligations under the terms of the lease
for such premises;
(g) Liens
(i) solely on any Cash (or Cash Equivalent) earnest money deposits (including as part of any escrow arrangement) made by the Borrower
and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment
permitted hereunder (or to secure letters of credit, bank guarantees or similar instruments posted in respect thereof), (ii) on advances
of Cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Sections
6.06(b), (e), (f), (p), (q), (r), (u), (x), (y) or (dd) to be applied against the purchase price for such Investment or (iii)
consisting of (A) an agreement to Dispose of any property in a Disposition permitted under Section 6.07 and/or (B) the pledge
of Cash or Cash Equivalents as part of an escrow or similar arrangement required in any Disposition permitted under Section 6.07;
(h)
precautionary or purported Liens evidenced by the filing of UCC financing statements or similar financing statements under applicable
Requirements of Law relating solely to (i) operating leases or consignment or bailee arrangements entered into in the ordinary course
of business, (ii) the sale of accounts receivable in the ordinary course of business for which a UCC financing statement or similar financing
statement under applicable Requirements of Law is required and/or (iii) the sale of Receivables Facility Assets and related assets in
connection with any Qualified Receivables Facility;
(i) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation
of goods;
(j) Liens
in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority to
control or regulate the use of any dimensions of real property or any structure thereon, including Liens in connection with any condemnation
or eminent domain proceeding or compulsory purchase order;
(k) Liens
securing Indebtedness permitted pursuant to Section 6.01(p) (solely with respect to the permitted extension, refinancing,
refunding or replacement of Indebtedness permitted pursuant to Sections 6.01(a), (c), (i), (j), (m), (n), (r), (u), (v), (w),
(y), (z) and (gg)); provided that (i) no such Lien extends to any asset not covered by the Lien securing the
Indebtedness that is being refinanced other than (A) after-acquired property that is affixed or incorporated into the property
covered by such Lien or financed by Indebtedness permitted under Section 6.01 and (B) proceeds and products thereof,
replacements, accessions or additions thereto and improvements thereon (it being understood that such extensions, refinancings,
refundings or replacements of individual financings of the type permitted under Section 6.01(m) provided by any lender may be
cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) if the Indebtedness being
refinanced was subject to intercreditor arrangements in respect of Liens on Collateral, then any refinancing Indebtedness in respect
thereof secured by Liens on Collateral shall be subject to intercreditor arrangements not materially less favorable to the Secured
Parties, taken as a whole, than the intercreditor arrangements governing the Indebtedness that is refinanced or the intercreditor
arrangements governing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l) Liens
existing on, or contractually committed or contemplated as of, the Closing Date and, with respect to each such Lien securing Indebtedness
in an aggregate committed or principal amount in excess of $250,000, described on Schedule 6.02 and any modification, replacement,
refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired
property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section
6.01 and (B) proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood
that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other
financings of such type provided by such lender or its affiliates) and (ii) any such modification, replacement, refinancing, renewal
or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 6.01;
(m)
Liens arising out of Sale and Lease-Back Transactions permitted under Section 6.08;
(n) Liens
securing Indebtedness permitted pursuant to Section 6.01(m); provided that any such Lien shall encumber only the asset
acquired, constructed, repaired, replaced or improved with the proceeds of such Indebtedness and proceeds and products thereof, replacements,
accessions or additions thereto and improvements thereon and customary security deposits with respect thereto (it being understood that
individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other
financings of such type provided by such lender or its affiliates);
(o) Liens
securing Indebtedness permitted pursuant to Section 6.01(n) on the relevant acquired assets or on the Capital Stock and
assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other
assets (other than the proceeds or products thereof, replacements, accessions or additions thereto and improvements thereon, it
being understood that individual financings of the type permitted under Section 6.01(m) provided by any lender may be
cross-collateralized to other financings of such type provided by such lender or its affiliates) or (y) was created in contemplation
of the applicable acquisition of assets or Capital Stock;
(p) (i)
Liens that are contractual rights of set-off or netting relating to (A) the establishment of depositary relations with banks or
other financial institutions not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of
the Borrower and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of the Borrower and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with
customers of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (D) commodity trading or other
brokerage accounts incurred in the ordinary course of business, (ii) Liens encumbering reasonable customary initial deposits and
margin deposits, (iii) bankers Liens and rights and remedies as to Deposit Accounts or
similar accounts, (iv) Liens of a collection bank arising under Section 4-208 or Section 4-210 of the UCC on items in the ordinary
course of business, (v) Liens (including rights of set-off) in favor of banking or other financial institutions arising as a matter
of Law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution
and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s
general terms and conditions and (vi) Liens on the proceeds of any Indebtedness permitted hereunder incurred in connection with any
transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such
Indebtedness pending the application of such proceeds to finance such transaction or on Cash or Cash Equivalents set aside at the
time of the incurrence of such Indebtedness to the extent such Cash or Cash Equivalents prefund the payment of interest or fees on
such Indebtedness and are held in escrow pending application for such purpose;
(q) Liens
on assets and Capital Stock of Restricted Subsidiaries that are not Loan Parties (including Capital Stock owned by such Persons) securing
Indebtedness or other obligations of Restricted Subsidiaries that are not Loan Parties permitted pursuant to Section 6.01 (or
not prohibited under this Agreement);
(r) Liens
securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar
agreements entered into in the ordinary course of business of the Borrower and/or its Restricted Subsidiaries;
(s) Liens
disclosed in any Mortgage Policy delivered pursuant to Section 5.12 with respect to any Material Real Estate Asset, provided such
Liens do not, in the aggregate, materially interfere with the use of such Material Real Estate Asset, and any replacement, extension
or renewal of any such Lien; provided that no such replacement, extension or renewal Lien shall cover any property other than
the property that was subject to such Lien prior to such replacement, extension or renewal (and additions thereto, improvements thereon
and the proceeds thereof);
(t) Liens
securing Indebtedness incurred pursuant to Sections 6.01(x) and (z); provided that, if any such Lien is on Collateral,
the holders of such Indebtedness (or a representative thereof) shall be party to an Acceptable Intercreditor Agreement;
(u) other
Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed the
greater of $60,000,000 and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v) (i)
Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating
to litigation being contested in good faith not constituting an Event of Default under Section 7.01(h) and (ii) any cash deposits
securing any settlement of litigation;
(w)
(i) leases, licenses, subleases, sublicenses or cross-licenses granted to others, (ii) assignments of IP Rights granted to a customer
of the Borrower or any Restricted Subsidiary in the ordinary course of business which do not secure any Indebtedness or (iii) the rights
reserved or vested in any Person (including any Governmental Authority) by the terms of any lease, license, franchise, grant or permit
held by the Borrower or any of the Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise,
grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(x) Liens
on Securities or other assets that are the subject of repurchase agreements constituting Investments permitted under Section 6.06
arising out of such repurchase transaction;
(y) Liens
securing obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted
under Sections 6.01(d), (e), (g), (aa) and (cc);
(z) Liens
arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any assets or property and
bailee arrangements in the ordinary course of business and permitted by this Agreement or (ii) by operation of law under Article 2
of the UCC (or any similar Requirement of Law of any jurisdiction);
(aa)
Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan
Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 6.01
or Section 6.09;
(bb)
Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(cc)
Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect
of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or goods;
(dd)
Liens securing (i) obligations under Hedge Agreements in connection with any Derivative Transaction of the type described in Section
6.01(s), (ii) obligations of the type described in Section 6.01(f) and/or (iii) obligations of the type described in Section 6.01(r),
which Liens (A) in each case under this Section 6.02(dd), may be (but are not required to be) secured by all of the Collateral
so long as the Lien on the Collateral is subject to an Acceptable Intercreditor Agreement and (B) in the case of clause (iii)
(to the extent not secured as provided in clause (A)), may consist of pledges of Cash collateral in an amount not to exceed the
greater of $15,000,000 and 11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(ee)
(i) Liens on Capital Stock of Joint Ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such
Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect
to non-Wholly- Owned Subsidiaries;
(ff)
Liens on cash or Cash Equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
(gg)
Liens permitted to remain outstanding following the Closing Date pursuant to the terms of the Acquisition Agreement (including liens
on cash or Cash Equivalents backstopping any letters of credit existing on the Closing Date) and any replacements, refinancings or renewals
thereof, so long as no such replacement, refinancings or renewal thereof increases the amount of such Lien except as otherwise permitted
by this Section 6.02;
(hh)
Liens on assets not constituting Collateral (x) securing obligations in an aggregate outstanding principal amount not to exceed the greater
of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period or (y) so long as the
Obligations in respect of the Credit Facilities are secured on a ratable basis (without regard to the control of remedies) with or prior
to the obligations so secured for so long as such obligations are so secured (which Liens, in the case of this clause (y), shall be subject
to an Acceptable Intercreditor Agreement);
(ii) Liens
on Receivables Facility Assets incurred in connection with a Receivables Facility;
(jj)
undetermined or inchoate Liens, rights of distress and charges incidental to current operations that have not at such time been
filed or exercised, or which relate to obligations not due or payable or if due, the validity of such Liens are being contested in
good faith by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of
such Person in accordance with GAAP;
(kk)
with respect to any Foreign Subsidiary, Liens and privileges arising mandatorily by any Requirement of Law; provided such Liens and privileges
extend only to the assets or Capital Stock of such Foreign Subsidiary;
(ll)
ground leases or subleases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries
are located;
(mm)
Liens that are customary in the business of the Borrower and its Restricted Subsidiaries and that do not secure debt for borrowed money;
(nn)
security given to a public or private utility or any Governmental Authority as required in the ordinary course of business;
(oo)
receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on
the related inventory and proceeds;
(pp)
Liens arising pursuant to Section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act or similar provision
of any applicable law;
(qq)
Liens in the nature of the right of setoff in favor of counterparties to contractual agreements with the Borrower or any Restricted Subsidiary
in the ordinary course of business;
(rr)
Liens granted pursuant to a security agreement between the Borrower or any Restricted Subsidiary and a licensee of IP Rights to secure
the damages, if any, incurred by such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization
or similar proceeding with respect to the Borrower or such Restricted Subsidiary;
(ss)
Liens arising solely in connection with rights of dissenting equity holders pursuant to any Requirement of Law in respect of the Transactions,
any Permitted Acquisition or other similar Investment;
(tt)
Liens arising under the iStar Sale/Leaseback Documents, the iStar Sale/Leaseback 2014 Documents, the iStar Exchange Documents or the
Excluded Property Transaction Documents, including options, whether or not then exercisable, to purchase Bowling Equipment of the Borrower
and/or one or more of its Subsidiaries, and letters of credit to secure the obligations of the Borrower or any applicable Restricted
Subsidiary thereunder;
(uu)
Liens on (x) any Excluded Property or (y) any other real property acquired after the Closing Date and not subject (or required to be
subject) to a Mortgage, provided that the aggregate amount of the obligations secured at any one time by such Liens pursuant to this
clause (y) does not exceed $50,000,000; and
(vv)
Liens deemed to exist in connection with repurchase obligations permitted to be incurred pursuant to Section
6.01(nn).
Section
6.03. No Further Negative Pledges. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries that are
Loan Parties to, enter into any agreement prohibiting in any material respect the creation or assumption of any Lien upon any of its
properties (other than Excluded Assets), whether now owned or hereafter acquired, for the benefit of the Secured Parties with
respect to the Obligations, except with respect to:
(a) restrictions
relating to any asset (or all of the assets) of and/or the Capital Stock of the Borrower and/or any Restricted Subsidiary which are imposed
pursuant to an agreement entered into in connection with any Disposition or other transfer, lease or license of such asset (or assets)
and/or all or a portion of the Capital Stock of the relevant Person that is permitted by this Agreement;
(b) restrictions
contained in the Loan Documents, any then extant Second Lien Facility, any Incremental Equivalent Debt, any Receivables Facility (limited
to the assets securing the Indebtedness arising thereunder) or any Additional Letter of Credit Facility (limited to the assets securing
the Indebtedness arising thereunder) (and clause (p) of Section 6.01 to the extent relating to any extension, refinancing, refunding
or replacement of any of the foregoing);
(c) restrictions
contained in any documentation governing any other Indebtedness permitted by Section 6.01 to the extent such restrictions (1)(x)
are, taken as a whole, in the good-faith judgment of the Borrower, not materially more restrictive as concerning the Borrower or any
Restricted Subsidiary than customary market terms for Indebtedness of such type or (y) are not materially more restrictive, taken as
a whole, than the restrictions contained in this Agreement (as determined by the Borrower in good faith) and (2) will not materially
impair the Borrower’s obligation or ability to make any payments required hereunder (as determined by the Borrower in good faith);
(d) restrictions
by reason of customary provisions restricting assignments, subletting or other transfers (including the granting of any Lien) contained
in leases, subleases, licenses, sublicenses, asset sale agreements and other agreements entered into in the ordinary course of business
(provided that such restrictions are limited to the relevant leases, subleases, licenses, sublicenses, asset sale or other agreements
and/or the property or assets secured by such Liens or the property or assets subject to such leases, subleases, licenses, sublicenses,
asset sale or other agreements, as the case may be);
(e) Permitted
Liens and restrictions in the agreements relating thereto that limit the right of the Borrower or any of its Restricted Subsidiaries
to Dispose of or encumber the assets subject to such Liens;
(f) provisions
limiting the Disposition, distribution or encumbrance of assets or property in joint venture agreements, sale and lease-back agreements,
stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements
(or the Persons the Capital Stock of which is the subject of such agreement (or any “shell company” parent with respect thereto));
(g) any
encumbrance or restriction assumed in connection with an acquisition of the property or Capital Stock of any Person, so long as such
encumbrance or restriction relates solely to the Person and its subsidiaries (including the Capital Stock of the relevant Person or Persons)
and/or property so acquired (or to the Person or Persons (and its or their subsidiaries) bound thereby) and was not created solely in
connection with or in anticipation of such acquisition;
(h) restrictions
imposed by customary provisions in partnership agreements, limited liability company organizational governance documents, joint
venture agreements and other similar agreements that restrict the transfer of the assets of, or ownership interests in, the relevant
partnership, limited liability company, joint venture or any similar Person (or any “shell company” parent with respect
thereto);
(i) restrictions
on Cash or other deposits permitted under Section 6.02 and/or 6.06 and any net worth requirements, including such restrictions
or requirements imposed by Persons under contracts entered into in the ordinary course of business or for whose benefit such Cash or
other deposits or net worth requirements exist;
(j) restrictions
(i) set forth in documents which exist on the Closing Date or (ii) which are contemplated as of the Closing Date and, in the case of
this clause (ii), as set forth on Schedule 6.03;
(k) restrictions
contained in documents governing Indebtedness of any Restricted Subsidiary that is not a Loan Party permitted hereunder;
(l)
[reserved];
(m) provisions
restricting the granting of a security interest in IP Rights contained in licenses, sublicenses or cross-licenses by the Borrower and
its Restricted Subsidiaries of such IP Rights, which licenses, sublicenses and cross-licenses were entered into in the ordinary course
of business (in which case such restriction shall relate only to such IP Rights);
(n) restrictions
arising under or as a result of applicable Requirements of Law or the terms of any license, authorization, concession or permit issued
or granted by a Governmental Authority;
(o) restrictions
with respect to a Restricted Subsidiary that was previously an Unrestricted Subsidiary, pursuant to or by reason of an agreement that
such Restricted Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided
that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such
restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property
of such Subsidiary;
(p) customary
restrictions imposed in connection with any Receivables Facility or similar transaction permitted hereunder;
(q) restrictions
contained in the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents as in effect on the date of this Agreement,
and restrictions contained in any iStar Exchange Documents or Excluded Property Transaction Documents; and
(r) other
restrictions or encumbrances imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing of the contracts, instruments or obligations referred to in clauses (a) through (q) above; provided
that no such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good
faith judgment of the Borrower, more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than those
in effect prior to the relevant amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Section
6.04. Restricted Payments; Certain Payments of Indebtedness.
(a) The
Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the
Borrower may make Restricted Payments to the extent necessary to permit any Parent Company:
(A) to
pay general operating and compliance costs and expenses (including corporate overhead, legal or similar expenses and customary salary,
bonus and other benefits payable to directors, officers, employees, members of management, managers and/or consultants of any Parent
Company), in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable
and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent
Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance
of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent
Company other than the Borrower and/or its subsidiaries), the Borrower and/or its subsidiaries;
(B) to
pay franchise, excise and similar Taxes, and other fees, Taxes and expenses, required to maintain the organizational existence of such
Parent Company;
(C) to
pay customary salary, bonus, long-term incentive, severance and other benefits (including payment to certain service providers of the
Borrower or its Subsidiaries pursuant to any equity plan (whether in the form of options, cash settled options or otherwise)) payable
to Permitted Payees, as well as applicable employment, social security or similar taxes in connection therewith, to the extent such salary,
bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Borrower and/or its subsidiaries,
in each case, so long as such Parent Company applies the amount of any such Restricted Payment for such purpose;
(D) to
pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but excluding,
for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary of
any Parent Company other than the Borrower and/or its subsidiaries), the Borrower and its subsidiaries;
(E) for
the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion
of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Borrower
and/or its subsidiaries), the Borrower and its subsidiaries;
(F) to
pay (x) fees and expenses related to any debt and/or equity offerings (including refinancings), investments and/or acquisitions permitted
or not restricted by this Agreement (whether or not consummated, and including advisory, refinancing, subsequent transaction and exit
fees of any Parent Company of the Borrower) and expenses and indemnities of any trustee, agent, arranger, underwriter or similar role
and (y) after the consummation of an initial public offering or the issuance of debt securities, Public Company Costs; and
(G) to
finance any Investment permitted under Section 6.06 as if such Parent Company were subject to Section 6.06 (provided
that (x) any Restricted Payment under this clause (a)(i)(G) shall be made substantially concurrently with the closing or consummation
of such Investment or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection
therewith and (y) the relevant Parent Company shall, promptly following the closing or consummation thereof or at future times as may
be scheduled at the time of such closing or consummation to be made thereafter in connection therewith, cause (I) all property acquired
to be contributed to the Borrower or one or more of its Restricted Subsidiaries or (II) the merger, consolidation or amalgamation of
the Person formed or acquired into the Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment
in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Borrower or the
relevant Restricted Subsidiary);
(ii) the
Borrower may pay (or make Restricted Payments to allow any Parent Company to pay) for the repurchase, redemption, retirement or other
acquisition or retirement for value of Capital Stock of any Parent Company or any subsidiary held by any Permitted Payee:
(A) in
accordance with the terms of promissory notes issued pursuant to Section 6.01(o), so long as the aggregate amount of all Cash
payments made in respect of such promissory notes, together with the aggregate amount of Restricted Payments made pursuant to sub-clause
(D) of this clause (ii) below, (1) does not exceed the greater of $5,500,000 and 4% of Consolidated Adjusted EBITDA as of
the last day of the most recently ended Test Period (which amount shall, following a Qualifying IPO, increase to the greater of $7,500,000
and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period) in any Fiscal Year, which, if not used
in any Fiscal Year, may be carried forward to subsequent Fiscal Years (until so applied)) minus (2) any utilization of the Available
RP Capacity Amount in reliance on unused capacity under clause (D) below; plus
(B) with
the proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock of the Borrower or any Parent
Company (to the extent such proceeds are contributed to the Borrower or any Restricted Subsidiary in respect of Qualified Capital Stock
issued by the Borrower or such Restricted Subsidiary) (other than amounts constituting a Cure Amount or an Available Excluded Contribution
Amount); plus
(C)
with the net proceeds of any key-man life insurance policies; plus
(D)
with Cash and Cash Equivalents in an amount not to exceed, together with the aggregate amount of all cash payments made pursuant to sub-clause
(A) of this clause (ii) in respect of promissory notes issued pursuant to Section 6.01(o), (1) the greater of $5,500,000
and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (which amount shall, following a Qualifying
IPO, increase to the greater of $7,500,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period) in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to subsequent Fiscal Years (until so applied)
minus (2) any utilization of the Available RP Capacity Amount in reliance on unused capacity under the immediately preceding clause
(1); plus
(E)
with the amount of any Cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of Capital
Stock of the Borrower or any Parent Company pursuant to any compensation arrangement, including any deferred compensation plan;
(iii) the
Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such
date that the Borrower elects to apply to this clause (iii)(A) plus (B) the portion, if any, of the Available Excluded Contribution
Amount on such date that the Borrower elects to apply to this clause (iii)(B) (plus, without duplication of amounts referred
to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing
Date, if the acquisition of such property or assets was financed with Available Excluded Contribution Amounts up to the amount of such
Available Excluded Contribution Amount, less any application thereof under Sections 6.04(b)(vi) or 6.06(r));
(iv) the
Borrower may make Restricted Payments (i) to any Parent Company to enable such Parent Company to (A) make Cash payments in lieu of the
issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable
for Capital Stock of such Parent Company, dividends, share splits, reverse share splits (or any combination thereof) and, mergers, consolidations,
amalgamations or other business combinations, and acquisitions and other Investments permitted hereunder and/or (B) honor any conversion
request by a holder of convertible Indebtedness, make any cash payments in lieu of fractional shares in connection with any conversion
and make payments on convertible Indebtedness in accordance with its terms and (ii) consisting of (A) payments made or expected to be
made in respect of withholding or similar Taxes payable by any Permitted Payee and/or (B) repurchases of Capital Stock in consideration
of the payments described in sub clause (A) above, including demand repurchases in connection with the exercise of stock options
and the issuance of restricted stock units or similar stock based awards;
(v) the
Borrower may repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in connection with), or make
Restricted Payments to any Parent Company to enable it to repurchase, redeem, acquire or retire Capital Stock upon (or make provisions
for withholdings in connection with), the exercise of warrants, options or other securities convertible into or exchangeable for Capital
Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants,
options or other securities convertible into or exchangeable for Capital Stock as part of a “cashless” exercise;
(vi) the
Borrower may make Restricted Payments the proceeds of which are applied (i) on the Closing Date, solely to effect the consummation
of the Transactions and on or about the Amendment No. 1 Effective Date, solely to effect the consummation of the Amendment No. 1
Transactions, (ii) on and after the Closing Date, to satisfy any payment obligations owing, or as otherwise required, under the
Acquisition Agreement (including payment of working capital and/or purchase price adjustments) and to pay Transaction Costs, in each
case, with respect to the Transactions, (iii) to satisfy obligations to direct or indirect holders of Capital Stock of the Borrower
(immediately prior to giving effect to the Transactions) in connection with, or as a result of, any working capital and/or purchase
price adjustments, in each case, with respect to the Transactions and (iv) to satisfy any settlement of claims or actions in
connection with the Transactions or to satisfy indemnity or other similar obligations in connection with the
Transactions;
(vii) following
the consummation of the first Qualifying IPO, the Borrower may (or may make Restricted Payments to any Parent Company to enable it to)
make Restricted Payments with respect to any Capital Stock in an amount not to exceed (A) the greater of (x) an amount equal to 6.00%
per annum of the net Cash proceeds received by or contributed to the Borrower from any Qualifying IPO and (y) an amount equal to 6.00%
per annum of the Market Capitalization of the Borrower (or its direct or indirect Parent Company, as applicable) and its subsidiaries
minus (B) any utilization of the Available RP Capacity Amount in reliance on unused capacity under immediately preceding clause
(A);
(viii) the
Borrower may make Restricted Payments to (i) redeem, repurchase, defease, discharge, retire or otherwise acquire any (A) Capital Stock
(“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company,
in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent
sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower or any Parent Company
to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified
Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of
the proceeds of the substantially concurrent sale or issuance (other than to the Borrower or a Restricted Subsidiary) of any Refunding
Capital Stock;
(ix) to
the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than
Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than
Section 6.09(d));
(x) the
Borrower may make additional Restricted Payments in an aggregate amount not to exceed (A) the greater of $20,000,000 and 15% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (B) any utilization of the Available RP Capacity Amount
in reliance on unused capacity under immediately preceding clause (A);
(xi) the
Borrower may pay any dividend or other distribution or consummate any redemption within 60 days after the date of the declaration thereof
or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration or notice, the dividend,
distribution or redemption contemplated by such declaration or redemption notice would have complied with the provisions of this Section
6.04(a);
(xii) the
Borrower may make any Restricted Payment constituting the distribution or payment of Receivables Fees;
(xiii) the
Borrower may make additional Restricted Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total Leverage
Ratio would not exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default hereunder or shall result
therefrom;
(xiv) the
Borrower may make additional Restricted Payments in an amount not to exceed the amount of proceeds received by the Borrower and/or any
Restricted Subsidiary under the Representation and Warranty Insurance Policy during the term of this Agreement;
(xv) (A)
for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income
tax group for U.S. federal and/or applicable state or local income tax purposes of which a direct or indirect parent of the Borrower
is the common parent (a “Tax Group”), or for which the Borrower is a disregarded entity for U.S. federal income tax
purposes wholly-owned by a corporate parent (a “Corporate Parent”), the Borrower and each of its Subsidiaries may make Restricted
Payments (including pursuant to any Tax sharing agreement entered into by the Borrower and any of its Subsidiaries and Comcast Corporation,
a Pennsylvania corporation or its Affiliates) the proceeds of which shall be used by such common parent to pay the portion of any consolidated,
combined or similar U.S. federal, state or local income Taxes of such Tax Group, or by the Corporate Parent to pay the portion of the
U.S. federal, state or local income Taxes of such Corporate Parent, or any franchise taxes imposed in lieu thereof, for such taxable
period that are attributable to the income of the Borrower and/or its Subsidiaries, provided that such amount shall not be greater than
the amount of such U.S. federal, state or local income taxes that would be paid (for such taxable period) by the Borrower and its Subsidiaries
if the Borrower and/or such Subsidiaries had been a stand-alone corporate taxpayer (or stand-alone group of corporate taxpayers filing
on a consolidated, combined or similar basis) for all taxable years ending after the Closing Date (taking into account any net operating
loss carryforwards attributable to the Borrower and its Subsidiaries, as the case may be) and (B) without duplication of Restricted Payments
made under Section 6.04(a)(xv)(A), for any taxable period for which the Borrower is treated as a partnership for U.S. federal and/or
applicable state or local income tax purposes, the Borrower may make Restricted Payments to its equity owners at the times and in the
amounts necessary to enable such owners (and their direct or indirect owners) to pay their Tax obligations attributable to their direct
or indirect ownership interests in the Borrower in an aggregate amount equal to the product of (1) 50% (or such higher tax rate as shall
be applicable to a resident of New York City or California that indirectly owns an interest in the Borrower, taking into account the
character of the taxable income in question and the deductibility of state and local income taxes for U.S. federal income tax purposes)
and (2) the taxable income of the Borrower for such taxable year, less any cumulative taxable losses from prior taxable years to the
extent that such losses are of a character (ordinary or capital) that would permit such losses to be deducted by the direct or indirect
owners of the Borrower against the current taxable income of the Borrower allocable to such owners and have not previously been taken
into account in determining tax distributions;
(xvi) the
Borrower may make additional Restricted Payments constituting any part of a Permitted Reorganization or IPO Reorganization Transaction;
(xvii) the
Borrower may make a distribution, by dividend or otherwise, of the Capital Stock of, or debt owed to any Loan Party or any Restricted
Subsidiary by, any Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries, provided that
such Restricted Subsidiary owns no other material assets other than Capital Stock of one or more Unrestricted Subsidiaries); in each
case, other than Unrestricted Subsidiaries, the primary assets of which are Cash and/or Cash Equivalents; provided that any such
Capital Stock or debt that represents an Investment by the Borrower or any Restricted Subsidiary shall be deemed to continue to charge
(as utilization) the respective clause under Section 6.06 pursuant to which such Investment was made;
(xviii) the
Borrower may make payments and distributions to satisfy dissenters’ rights (including in connection with, or as a result of, the
exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) in respect thereof),
pursuant to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 6.07;
(xix) the
Borrower may make a Restricted Payment in respect of payments made for the benefit of the Borrower or any Restricted Subsidiary to the
extent such payments could have been made by the Borrower or any Restricted Subsidiary because such payments (A) would not otherwise
be Restricted Payments and (B) would be permitted by Section 6.09; and
(xx) the
Borrower may make a Restricted Payment in respect of required withholding or similar non-U.S. Taxes with respect to any Permitted Payee
and any repurchases of Capital Stock in consideration of such payments, including deemed repurchases in connection with the exercise
of stock options or the issuance of restricted stock units or similar stock based awards.
(b) The
Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any prepayment in Cash on or in respect of principal of or
interest on any Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted
Debt Payments”), except:
(i) any
refinancing, purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of any Restricted Debt made by
exchange for, or out of the proceeds of, Refinancing Indebtedness permitted by Section 6.01 and/or any extension, refinancing,
refunding or replacing Indebtedness permitted by Section 6.01(x);
(ii) payments
as part of, or to enable another Person to make, an “applicable high yield discount obligation” catch-up payment;
(iii) payments
of regularly scheduled principal and interest and payments of fees, expenses and indemnification obligations as and when due (other than
payments with respect to Junior Indebtedness that are prohibited by the subordination provisions thereof);
(iv) additional
Restricted Debt Payments in an aggregate amount not to exceed (A)(1) the greater of (x) $25,000,000 and (y) 19% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period minus (2) any utilization of the Available RDP Capacity Amount
in reliance on unused capacity under immediately preceding clause (A)(1) plus (B) the Available RP Capacity Amount;
(v) (A)
Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any Restricted
Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Borrower or any Restricted Subsidiary, (B) Restricted
Debt Payments as a result of the conversion of all or any portion of any Restricted Debt into Qualified Capital Stock of the Borrower
and/or any Restricted Subsidiary or Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest
with respect to any Restricted Debt that is permitted under Section 6.01;
(vi)
Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the
Borrower elects to apply to this clause (vi)(A) plus (B) the portion, if any, of the Available Excluded Contribution Amount
on such date that the Borrower elects to apply to this clause (vi)(B) (plus, without duplication of amounts previously
referred to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing
Date, if the acquisition of such property or assets was financed solely with Available Excluded Contribution Amounts up to the amount
of such Available Excluded Contribution Amount, less any application thereof under Sections 6.04(a)(iii) or 6.06(r));
(vii) additional
Restricted Debt Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total Leverage Ratio would not
exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default under Section 7.01(a) or, with
respect to the Borrower, Sections 7.01(f) or (g) or shall result therefrom;
(viii) Restricted
Debt Payments in respect of Restricted Debt permitted to be assumed pursuant to Section 6.01(n), provided that any such Restricted
Debt Payment shall be deemed an Investment and shall only be permitted to the extent there exists the ability to make such Investment
pursuant to Section 6.06 at such time; and
(ix) Restricted
Debt Payments made on or substantially concurrently with the Amendment No. 1 Effective Date to repay amounts outstanding under the Second
Lien Facility (and related fees and expenses).
Section
6.05. [Reserved].
Section
6.06. Investments. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make or own any Investment
in any other Person except:
(a) Investments
in assets that are Cash or Cash Equivalents, or investments that were Cash or Cash Equivalents at the time made;
(b) (i)
Investments existing on the Closing Date in any subsidiary and any modification, replacement, renewal or extension thereof so long as
no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted
by this Section 6.06 and (ii) Investments made after the Closing Date among Holdings, the Borrower and/or one or more Restricted
Subsidiaries or in any Person that will, upon such Investment, become a Restricted Subsidiary;
(c) Investments
(i) constituting deposits, prepayments and/or other credits to suppliers or other trade counterparties, (ii) made in connection with
obtaining, maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors, suppliers,
licensors and licensees, in each case, in the ordinary course of business or, in the case of clause (iii), to the extent necessary
to maintain the ordinary course of supplies to the Borrower or any Restricted Subsidiary;
(d) Investments
in (i) any Unrestricted Subsidiary (including any Joint Venture that is an Unrestricted Subsidiary) in an aggregate outstanding
amount not to exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently
ended Test Period and (ii) any Similar Business (including any Joint Venture engaged in a Similar Business) in an aggregate
outstanding amount not to exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period; provided that if any Investment pursuant to this clause (d)(ii) is made in any Person that is not a
Restricted Subsidiary at the date of making of such Investment and such Person becomes a Restricted Subsidiary after such date, such
Investment shall thereafter be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been made under
this clause (d);
(e) (i)
Permitted Acquisitions and (ii) Investments in Restricted Subsidiaries that are not Loan Parties in amounts required to permit such Restricted
Subsidiaries to consummate Permitted Acquisitions;
(f) (i)
Investments existing on, or contractually committed to or contemplated as of, the Closing Date and, with respect to any such
Investment in excess of $250,000, described on Schedule 6.06 and (ii) any modification, replacement, renewal or extension of
any Investment described in clause (i) above so long as no such modification,
renewal or extension thereof increases the amount of such Investment except by the terms thereof or as otherwise permitted by this
Section 6.06;
(g) Investments
received in lieu of Cash in connection with any Disposition permitted by Section 6.07 or any other disposition of assets not constituting
a Disposition;
(h) loans
or advances to Permitted Payees to the extent permitted by Requirements of Law, in connection with such Person’s purchase of Capital
Stock of any Parent Company, either (i) in an aggregate principal amount not to exceed the greater of $3,000,000 and 2% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period at any one time outstanding, (ii) so long as the proceeds of
such loan or advance are substantially contemporaneously contributed to the Borrower for the purchase of such Capital Stock or (iii)
so long as no Cash or Cash Equivalents are advanced in connection with such loan or advance;
(i) Investments
consisting of rebates and extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business;
(j) Investments
consisting of (or resulting from) Indebtedness permitted under Section 6.01 (including guarantees thereof) (other than Indebtedness
permitted under Sections 6.01(b) and (h)), Permitted Liens, Restricted Payments permitted under Section 6.04 (other
than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers, consolidations, amalgamations,
liquidations, windings up, dissolutions or Dispositions permitted by Section 6.07 (other than Section 6.07(a)(i) (if made
in reliance on subclause (ii)(y) of the proviso thereto), Section 6.07(b) (if made in reliance on clause (ii) of
the proviso thereto), Section 6.07(c)(ii) (if made in reliance on clause
|
|
(B)
|
therein)
and Section 6.07(g));
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(k) Investments
in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers,
vendors, suppliers, licensors, sublicensors, licensees and sublicensees;
(l) Investments
(including debt obligations and Capital Stock) received (i) in connection with the bankruptcy, work-out, reorganization or
recapitalization of any Person, (ii) in settlement or compromise of delinquent obligations of, or other disputes with or judgments
against, customers, trade-creditors, suppliers, licensees and other account debtors arising in the ordinary course of business,
including pursuant to any plan of reorganization or similar arrangement upon bankruptcy or insolvency of any customer, trade
creditor, supplier or licensee, (iii) in satisfaction of judgments against other Persons, (iv) as a result of foreclosure with
respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (v) in settlement,
compromise or resolution of litigation, arbitration or other disputes;
(m) loans
and advances of payroll payments or other compensation to present or former employees, directors, members of management, officers, managers
or consultants of any Parent Company (to the extent such payments or other compensation relate to services provided to such Parent Company
(but excluding, for the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership or operations of any
subsidiary of any Parent Company other than the Borrower and/or its subsidiaries)), the Borrower and/or any subsidiary in the ordinary
course of business;
(n) Investments
to the extent that payment therefor is made solely with Capital Stock of any Parent Company or Capital Stock (other than Disqualified
Capital Stock) of the Borrower or any Restricted Subsidiary, in each case, to the extent not resulting in a Change of Control;
(o) (i)
Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated
or amalgamated with, the Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise
permitted by this Section 6.06 to the extent that such Investments were not made in contemplation of or in connection with such
acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation
or consolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of
this Section 6.06(o) so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment
except as otherwise permitted by this Section 6.06;
(p) Investments
made in connection with the Transactions and any Investments held by the Target or its Restricted Subsidiaries on the Closing Date and
permitted to remain (or not prohibited from remaining) outstanding after the Closing Date pursuant to the terms of the Acquisition Agreement;
(q) Investments
made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate amount at any time outstanding
not to exceed:
(i) the
greater of $50,000,000 and 37% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, plus
(ii)
the Available RP Capacity Amount plus the Available RDP Capacity Amount, plus
(iii) in
the event that (A) the Borrower or any of its Restricted Subsidiaries makes any Investment after the Closing Date in any Person that
is not a Restricted Subsidiary and (B) such Person subsequently becomes a Restricted
Subsidiary, an amount equal to 100% of the fair market value of such Investment as of the date on which such Person becomes a
Restricted Subsidiary;
(r) Investments
made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount not to
exceed (i) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (r)(i) plus (ii)
the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause
(r)(ii) (plus, without duplication of amounts referred to in this clause (ii), in an amount equal to the Net Proceeds
from a Disposition of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed
with Available Excluded Contribution Amounts up to the amount of such Available Excluded Contribution Amount, less any application
thereof under Sections 6.04(a)(iii) or 6.04(b)(iv));
(s) (i)
Guarantees of leases or subleases (in each case other than Capital Leases) or of other obligations not constituting Indebtedness, (ii)
Guarantees of the lease obligations of suppliers, customers, franchisees and licensees of the Borrower and/or its Restricted Subsidiaries,
in each case, in the ordinary course of business and (iii) Investments consisting of Guarantees of any supplier’s obligations in
respect of commodity contracts, including Hedge Agreements, solely to the extent such commodities related to the materials or products
to be purchased by the Borrower or any Restricted Subsidiary;
(t) (i)
Investments in any Parent Company in amounts and for purposes for which Restricted Payments to such Parent Company are permitted under
Section 6.04(a); provided that any Investment made as provided above in lieu of any such Restricted Payment shall reduce availability
under the applicable Restricted Payment basket under Section 6.04(a) and (ii) Investments consisting of loans and advances to
any Parent Company in connection with the reimbursement of expenses incurred on behalf of the Borrower or any Restricted Subsidiary in
the ordinary course of business;
(u) Investments
made by any Restricted Subsidiary that is not a Loan Party with the proceeds received by such Restricted Subsidiary from an Investment
made by any Loan Party in such Restricted Subsidiary pursuant to this Section 6.06 (other than Investments made pursuant to clause
(ii) of Section 6.06(e));
(v) Investments
in subsidiaries in connection with reorganizations and/or restructurings, including any Permitted Reorganization and/or any IPO Reorganization
Transaction, and/or activities related to tax planning (including Investments in non-Cash or non-Cash Equivalents); provided that, after
giving effect to any such reorganization, restructuring and/or related activity, the security interest of the Administrative Agent in
the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral
immediately prior to such reorganization, restructuring or tax planning activities no longer constituting Collateral) as a result of
such reorganization, restructuring or tax planning activities;
(w) Investments
arising under or in connection with any Derivative Transaction of the type permitted under Section 6.01(s);
(x) Investments
made (i) in Joint Ventures, (ii) in connection with the creation, formation and/or acquisition of any Joint Venture or (iii) in any Restricted
Subsidiary to enable such Restricted Subsidiary to create, form and/or acquire any Joint Venture, in an aggregate outstanding amount
under this clause (x) not to exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the
most recently ended Test Period; provided that if any Investment pursuant to this clause (x) is made in any Person that is not a Restricted
Subsidiary at the date of making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment
shall thereafter be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been made under this clause (x);
(y) Investments
made in joint ventures as required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in joint
venture agreements and similar binding arrangements in effect on the Closing Date or entered into after the Closing Date in the ordinary
course of business;
(z) unfunded
pension fund and other employee benefit plan obligations and liabilities to the extent that they are permitted to remain unfunded under
applicable Requirements of Law;
(aa)
Investments in Holdings, the Borrower and/or any subsidiary in connection with intercompany cash management arrangements and related
activities in the ordinary course of business;
(bb)
Investments made in connection with any nonqualified deferred compensation plan or arrangement for any Permitted Payee;
(cc)
any Investment made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted
Subsidiary (but for the avoidance of doubt, after such subsidiary was designated as an Unrestricted Subsidiary) so long as the relevant
Investment was not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary;
(dd)
additional Investments so long as, as measured at the time provided for in Section 1.04(e), on a Pro Forma Basis, the Total Leverage
Ratio does not exceed 4.25:1.00;
(ee)
Investments consisting of the licensing or contribution of IP Rights pursuant to joint marketing, collaborations or other similar arrangements
with other Persons;
(ff)
Investments in or relating to any Receivables Subsidiary that, in the good faith determination of the Borrower, are necessary or advisable
to effect a Receivables Facility or any repurchases in connection therewith (including Investments of funds held in accounts permitted
or required by the arrangements governing such Receivables Facility or any related Indebtedness);
(gg)
the conversion to Qualified Capital Stock of any Indebtedness owed by the Borrower or any Restricted Subsidiary and permitted by Section
6.01;
(hh)
Restricted Subsidiaries of the Borrower may be established or created if the Borrower and such Restricted Subsidiary comply with the
requirements of Section 5.12, if applicable; provided that, in each case, to the extent such new Restricted Subsidiary
is created solely for the purpose of consummating a transaction pursuant to an acquisition or other Investment permitted by this Section
6.06, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any acquisition or Investment consideration
contributed to it contemporaneously with the closing of such transaction, such new Restricted Subsidiary shall not be required to take
the actions set forth in Section 5.12 until the respective acquisition is consummated (at which time the surviving entity of the
respective transaction shall be required to so comply in accordance with the provisions thereof);
(ii) contributions
in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners, members,
consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of
a bankruptcy of the Borrower or any of its Restricted Subsidiaries;
(jj)
Investments by Loan Parties in any Restricted Subsidiary that is not a Loan Party so long as such Investment is part of a series of simultaneous
Investments by the Borrower and the Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the intercompany
Investment being invested in one or more Loan Parties;
(kk)
Investments consisting of earnest money deposits required in connection with purchase agreements or other acquisitions or
Investments otherwise permitted under this Section 6.06 and any other pledges or deposits permitted by Section
6.02;
(ll)
Term Loans repurchased by Holdings, the Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance
with this Agreement and, to the extent permitted (or not prohibited) by Section 6.04(b), loans repurchased by the Borrower or
a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance with the terms of any other Indebtedness;
(mm)
Guarantee obligations of the Borrower or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations
issued, made or incurred for the benefit of any Restricted Subsidiary of the Borrower to the extent required by law or in connection
with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;
(nn)
purchases and acquisitions of inventory, supplies, materials, services, equipment or similar assets in the ordinary course of business;
and
(oo)
Investments pursuant to, in connection with, or made with the proceeds of any Excluded Property Transaction and/or any iStar Exchange.
Section
6.07. Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries
to, enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves (or suffer any
liquidation or dissolution), or make any Disposition of assets having a fair market value in excess of $5,000,000, in a single transaction
or in a series of related transactions, and in excess of $10,000,000 in the aggregate for all such transactions in any Fiscal Year, except:
(a) any
Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary; provided
that (i) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (A) the Borrower shall be the continuing
or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation (including any immediate
and successive mergers, consolidations or amalgamations of entities) is not the Borrower (any such Person after giving effect to such
transaction or transactions, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or
existing under the law of the U.S., any state thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume
the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (3) except as the Administrative
Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed
and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being
understood and agreed that if the foregoing conditions under clauses (1) through (3) are satisfied, the Successor Borrower
will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (ii) in the case of any
such merger, consolidation or amalgamation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing
or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Subsidiary Guarantor
in a manner reasonably satisfactory to the Administrative Agent or (y) the relevant transaction shall be treated as an Investment and
otherwise be made in compliance with Section 6.06;
(b) Dispositions
(including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that
any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (as determined by
such Person in good faith) or (ii) treated as an Investment and otherwise be made in compliance with Section 6.06 (other than
in reliance on clause (j) thereof);
(c) (i)
the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution
is in the best interests of the Borrower, is not materially disadvantageous to the Lenders, and the Borrower or any Restricted Subsidiary
receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation
or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such
distribution shall be treated as an Investment and shall otherwise be made in compliance with Section 6.06 (other than in reliance
on clause (j) thereof); (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect
(A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause
(c)) or (B) any Investment permitted under Section 6.06; and (iii) the Borrower or any Restricted Subsidiary may be converted
into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or the
Collateral, taken as a whole;
(d) (x)
Dispositions of inventory or goods held for sale, equipment or other assets in the ordinary course of business (including on an intercompany
basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions
of surplus, obsolete, used or worn out property or other property that, in the good faith judgment of the Borrower, is (A) no longer
useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable
or not commercially reasonable to maintain;
(f) Dispositions
of Cash and/or Cash Equivalents or other assets that were Cash and/or Cash Equivalents when the relevant original Investment was made;
(g) Dispositions,
mergers, amalgamations, consolidations or conveyances that constitute (or are made in order to effectuate) Investments permitted pursuant
to Section 6.06 (other than Section 6.06(j)), Permitted Liens, Restricted Payments permitted by Section 6.04(a)
(other than Section 6.04(a)(ix)) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions
for fair market value; provided that with respect to (1) any single Disposition transaction with respect to assets having a
fair market value in excess of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period or (2) any other Disposition transactions with respect to assets having a fair market value in excess of
the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, for all
such transactions on an aggregate basis in any Fiscal Year, at least 75% of the consideration for such Disposition, shall consist of
Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (v) the amount of any
Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are
owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on such Person’s
most recent balance sheet (or in the notes thereto), or if the incurrence of such Indebtedness or other liability took place after
the date of such balance sheet, that would have been shown on such balance sheet or in the notes thereto, as determined in good
faith by the Borrower) that are (i) assumed by the transferee of any such assets and for which the Borrower and/or its applicable
Restricted Subsidiary have been validly released by all relevant creditors in writing or (ii) otherwise cancelled or terminated in
connection with such Disposition, (w) the amount of any trade-in value applied to the purchase price of any replacement assets
acquired in connection with such Disposition, (x) any Securities or other obligations or assets received by the Borrower or any
Restricted Subsidiary from such transferee (including earn-outs or similar obligations) that are converted by such Person into Cash
or Cash Equivalents, or by their terms are required to be satisfied for Cash or Cash Equivalents (to the extent of the Cash or Cash
Equivalents received) within 180 days following the closing of the applicable Disposition and (y) any Designated Non-Cash
Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other
Designated Non-Cash Consideration received pursuant to this clause (y) and clause (C)(z) of the proviso to Section
6.08 that is at that time outstanding, not in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of
the last day of the most recently ended Test Period, in each case shall be deemed to be Cash); provided, further, that
the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section
2.11(b)(ii);
(i) to
the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii)
the proceeds of the relevant Disposition are promptly (or within 180 days) applied to the purchase price of such replacement property;
(j) Dispositions
of Investments in Joint Ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture or similar
parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(k) Dispositions
of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or
in connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(l)
Dispositions and/or terminations of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses (including the
provision of software under any open source license), the Dispositions or terminations of which (i) do not materially interfere with
the business of the Borrower and its Restricted Subsidiaries, (ii) relate to closed facilities or the discontinuation of any product
line or (iii) are made in the ordinary course of business;
(m) (i)
any termination of any lease, sublease, license or sub-license in the ordinary course of business (and any related Disposition of improvements
made to leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal property
and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims
(including in tort) in the ordinary course of business;
(n) Dispositions
of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain or condemnation proceedings (including
in lieu thereof or any similar proceeding);
(o) Dispositions
or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property) with respect to
facilities that are temporarily not in use, held for sale or closed;
(p) the Transactions and any Dispositions in connection with the Transactions;
(q) Dispositions
of non-core assets and sales of Real Estate Assets, in each case acquired in any acquisition or other Investment permitted
hereunder, (x) which Disposition or sale is required to obtain the approval of any anti-trust authority or (y) which, within 120
days of the date of such acquisition or Investment, are designated in writing to the Administrative Agent as being held for sale and
not for the continued operation of the Borrower or any of its Restricted Subsidiaries or any of their respective
businesses;
(r) exchanges
or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property
or assets so long as any such exchange or swap is made for fair value (as determined by the Borrower in good faith) for like property
or assets or property, assets or services of greater value or usefulness to the business of the Borrower and its Restricted Subsidiaries
as a whole, as determined in good faith by the Borrower; provided that upon the consummation of any such exchange or swap by any
Loan Party, to the extent the property received does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien
with the same priority as the Lien held on the property or assets so exchanged or swapped;
(s) Dispositions
of assets that do not constitute Collateral having a fair market value of not more than, in any Fiscal Year, the greater of $10,000,000
and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(t) (i)
licensing and cross-licensing (including sub-licensing) arrangements involving any technology, intellectual property or IP Rights of
the Borrower or any Restricted Subsidiary in the ordinary course of business, (ii) Dispositions, abandonments, cancellations or lapses
of IP Rights or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the good faith determination
of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical
to maintain in light of its use and (iii) Dispositions of any technology, intellectual property or other IP Rights of the Borrower or
any Restricted Subsidiary involving their customers in the ordinary course of business;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions
of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) Dispositions
of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers,
employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions
made to comply with any order or other directive of any Governmental Authority or any applicable Requirement of Law;
(y)
any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary
in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) Dispositions
constituting any part of a Permitted Reorganization and/or an IPO Reorganization Transaction;
(aa)
any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(bb)
other Dispositions involving assets having a fair market value of not more than, in any Fiscal Year, the greater of $15,000,000 and
11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, which amounts if not used in any
Fiscal Year may be carried forward to the next succeeding Fiscal Year (with such carried over amount deemed first applied in such
succeeding Fiscal Year), in any event not to exceed, in any Fiscal Year, the greater of $30,000,000 and 22% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period;
(cc)
Dispositions contemplated on the Closing Date and described on Schedule 6.07 hereto;
(dd)
Dispositions or discounts of accounts receivable, or participations therein, or other rights to payment and related assets in connection
with any Receivables Facility;
(ee)
the Borrower and the Restricted Subsidiaries may issue, sell or dispose of Capital Stock to directors, officers, managers or employees
for purposes of (i) satisfying requirements with respect to directors’ qualifying shares and shares issued to foreign nationals,
in each case as required by applicable Requirements of Law and (ii) satisfying applicable Requirements of Law with respect to Liquor
License Subsidiaries;
(ff)
the Borrower and the Restricted Subsidiaries may enter into any netting arrangement of accounts receivable between or among the Borrower
and its Restricted Subsidiaries or among Restricted Subsidiaries of the Borrower made in the ordinary course of business;
(gg) [reserved];
(hh)
any merger, consolidation, liquidation, wind-up or dissolution by one or more Restricted Subsidiaries in order to effectuate an iStar
Exchange, Excluded Property Transaction or any Sale and Lease-Back Transaction permitted hereunder;
(ii) the
sale, lease, transfer or other Disposition of any Excluded Property or consummation of any iStar Exchange by the Borrower or any Restricted
Subsidiaries;
(jj)
Dispositions of Bowling Equipment pursuant to the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback 2014 Documents by the Borrower
or any Restricted Subsidiaries;
(kk)
Dispositions of the Closed Sites and Closed Centers (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback II
Documents);
(ll)
one or more Foreign Asset Dispositions;
(mm)
Disposition of Site #288 known as Starlite Lanes and of any EAP (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback
2014 Documents);
(nn)
(i) Dispositions in the ordinary course of business of Bowling Equipment, bowling products and other equipment used in the operation
or maintenance of bowling centers and related accessories to Foreign Subsidiaries of the Borrower for use in bowling centers operated
by such Foreign Subsidiaries and (ii) Dispositions of bowling products to Foreign Subsidiaries for resale by such Foreign Subsidiaries,
in each case at a price at least equal to the cost to the Borrower or selling subsidiary of such Bowling Equipment, bowling products,
equipment used in the operation or maintenance of bowling centers or related accessories; and
(oo)
(i) Disposition, licenses or other transfers of patents and other IP Rights, together with the goodwill associated therewith,
related solely to bowling products and the amusement products business, (ii) the granting of a royalty-free perpetual license to use
certain “AMF” trademarks only in the field of bowling and amusement products, equipment and systems and certain services
related to the foregoing and (iii) the granting of a license concerning the Pinspash trademark.
To
the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party,
such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents (which Liens shall be automatically
released upon the consummation of such Disposition) and the Administrative Agent shall be authorized to take, and shall take, any actions
reasonably requested by the Borrower or otherwise deemed appropriate in order to effect the foregoing.
Section
6.08. Sale and Lease-Back Transactions. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to,
directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any
property (whether real, personal or mixed), whether now owned or hereafter acquired, which the Borrower or the relevant Restricted
Subsidiary (a) has sold or transferred or is to sell or to transfer to any other Person
(other than the Borrower or any of its Restricted Subsidiaries) and (b) intends to use for substantially the same purpose as the
property which has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to any Person (other than the
Borrower or any of its Restricted Subsidiaries) in connection with such lease (such a transaction described herein, a “Sale
and Lease-Back Transaction”); provided that any Sale and Lease-Back Transaction shall be permitted so long as
either (A) the resulting Indebtedness, if any, is permitted by Section 6.01(m) or Section 6.01(z), (B) such Sale and
Leaseback Transaction (i) was in existence on the Closing Date or (ii) is an iStar Sale/Leaseback (including pursuant to an iStar
Exchange), iStar Sale/Leaseback 2014 or Excluded Property Sale/Leaseback Transaction or (C) (1) such Sale and Lease-Back Transaction
is made in exchange for cash consideration (provided that for purposes of the foregoing cash consideration requirement, (v)
the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the
Obligations or that are owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on
such Person’s most recent balance sheet (or in the notes thereto), or, if the incurrence of such Indebtedness or other
liability took place after the date of such balance sheet, that would have been shown on such balance sheet or in the notes thereto,
as determined in good faith by the Borrower) that are (i) assumed by the transferee of any such assets and for which the Borrower
and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing or (ii) otherwise
cancelled or terminated in connection with the relevant Sale and Lease Back Transaction, (x) the amount of any trade-in value
applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any Securities or other
obligations or assets received by the Borrower or any Restricted Subsidiary from such transferee (including earn-outs or similar
obligations) that are converted by such Person into Cash or Cash Equivalents, or by their terms are required to be satisfied for
Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the
applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of the relevant Sale and Lease Back
Transaction having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant
to this clause (z) and clause (y) of the proviso to Section 6.07(h) that is at that time outstanding, not in
excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period, in each case shall be deemed to be Cash), (2) the Borrower or its applicable Restricted Subsidiary would otherwise be
permitted to enter into, and remain liable under, the applicable underlying lease and (3) the aggregate fair market value of the
assets sold subject to all Sale and Lease-Back Transactions under this clause (C) shall not exceed the greater of $65,000,000
and 49% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period.
Section
6.09. Transactions with Affiliates. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter
into any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) involving
payment in excess of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended
Test Period in any individual transaction with any of their respective Affiliates on terms that are substantially less favorable to
the Borrower or such Restricted Subsidiary, as the case may be (as determined by the Borrower in good faith), than those that might
be obtained at the time in a comparable arm’s-length transaction from a Person who is not an Affiliate; provided that
the foregoing restriction shall not apply to:
(a) any
transaction between or among Holdings, the Borrower and/or one or more Restricted Subsidiaries (or any entity that becomes a Restricted
Subsidiary as a result of such transaction) to the extent permitted or not restricted by this Agreement;
(b) any
issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body)
of any Parent Company or of the Borrower or any Restricted Subsidiary;
(c) (i)
any collective bargaining, employment, indemnification, expense reimbursement or severance agreement or compensatory (including profit
sharing) arrangement entered into by the Borrower or any of its Restricted Subsidiaries with any Permitted Payee, (ii) any subscription
agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with any Permitted
Payee and (iii) payments or other transactions pursuant to any management equity plan, employee compensation, benefit plan, stock option
plan or arrangement, equity holder arrangement, supplemental executive retirement benefit plan, any health, disability or similar insurance
plan, or any employment contract or arrangement which covers any Permitted Payee and payments pursuant thereto;
(d) (i)
transactions permitted by Sections 6.01(d), (o), (bb) and (ee), 6.04 and 6.06(h), (m),
(o), (t), (v), (x), (y), (z), (aa), (bb), (cc), (ff), (gg),
(ii), (jj), (kk), (ll) and (mm), (ii) any Permitted Reorganization or IPO Reorganization Transaction
and (iii) issuances of Capital Stock and issuances and incurrences of Indebtedness not restricted by this Agreement and payments pursuant
thereto;
(e) the
existence of, or performance by the Borrower or any Restricted Subsidiary of its obligations under the terms of, any transaction or agreement
in existence on the Closing Date and any amendment, modification or extension thereof to the extent such amendment, modification or extension,
taken as a whole, is not (i) materially adverse to the Lenders or (ii) more disadvantageous to the Lenders than the relevant transaction
in existence on the Closing Date;
(f) (i)
so long as no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) (solely with respect to the Borrower in
the case of Section 7.01(f) and (g)) then exists or would result therefrom, the payment of management, monitoring, consulting,
advisory and similar fees to any Investor in an amount not to exceed in any Fiscal Year the greater of $3,000,000 and 1% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period, it being understood that (x) during any such Event of Default,
such fees may continue to accrue and become payable upon the waiver, termination or cure of such Event of Default and (y) any amount
not paid in any Fiscal Year may be carried forward and paid in subsequent Fiscal Years without limitation as to amount, but otherwise
subject to the requirements of this clause (f), (ii) customary termination fees payable to the Investors, (iii) customary compensation
to Affiliates in connection with financial advisory, financing, underwriting or placement services or in respect of other investment
banking activities and other transaction fees, which are approved, or made pursuant to arrangements approved, by the majority of the
members of the board of directors (or similar governing body) or a majority of disinterested members of the board of directors (or
similar governing body) of the Borrower in good faith and (iv) the payment of any indemnification obligations and expenses (and similar
amounts) owed to any Investor and any of their respective directors, officers, members of management, managers, employees and consultants,
in each case of clauses (i), (ii), (iii) and (iv) whether currently due or paid in respect of accruals from prior periods;
(g) the
Transactions, including the payment of Transaction Costs and payments required under the Acquisition Agreement;
(h) any
transaction or transactions approved by a majority of the disinterested members of the board of directors (or similar governing body)
of the Borrower at such time;
(i) Guarantees permitted by Section 6.01 or Section 6.06;
(j) loans
and other transactions among the Loan Parties and their Subsidiaries, in each case to the extent permitted under this Article 6;
(k) the
payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board of directors
(or similar governing body), officers, employees, members of management, managers, consultants and independent contractors of the Borrower
and/or any of its Restricted Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity
on behalf of any Parent Company, to the extent attributable to the operations of the Borrower or its subsidiaries;
(l) transactions
with customers, clients, suppliers, licensees, Joint Ventures, purchasers or sellers of goods or services or providers of employees or
other labor entered into in the ordinary course of business, which are (i) fair to the Borrower and/or its applicable Restricted Subsidiary
in the good faith determination of the board of directors (or similar governing body) of the Borrower or the senior management thereof
or (ii) on terms not substantially less favorable to the Borrower and/or its applicable Restricted Subsidiary as might reasonably be
obtained from a Person other than an Affiliate;
(m) the
payment of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to shareholders
under any shareholder agreement and the existence or performance by the Borrower or any Restricted Subsidiary of its obligations under
any such registration rights or shareholder agreement;
(n) (i)
any purchase by Holdings of the Capital Stock of (or contribution to the equity capital of) the Borrower and (ii) any intercompany loans
made by Holdings to the Borrower or any Restricted Subsidiary;
(o) any
transaction in respect of which the Borrower delivers to the Administrative Agent a letter addressed to the board of directors (or equivalent
governing body) of the Borrower from an accounting, appraisal or investment banking firm of nationally recognized standing stating that
such transaction is on terms that are not substantially less favorable to the Borrower or the applicable Restricted Subsidiary than might
be obtained at the time in a comparable arm’s length transaction from a Person who is not an Affiliate;
(p) (i)
Investments by Affiliates in Securities or other Indebtedness of the Borrower or any Restricted Subsidiary (and payment of
reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the Investment is being offered by
the Borrower or such Restricted Subsidiary generally to other investors on the same or more favorable terms and (ii) payments to
Affiliates in respect of Securities or other Indebtedness of the Borrower or any Restricted Subsidiary contemplated in the foregoing
subclause (i) or that were acquired from Persons other than the Borrower and the Restricted Subsidiaries, in each case, in
accordance with the terms of such Securities or other Indebtedness;
(q) [reserved];
(r) transactions
undertaken in the ordinary course of business pursuant to membership in a purchasing consortium; and
(s) any
transaction in connection with the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Transaction and/or any
iStar Exchange.
Section
6.10. [Reserved].
Section
6.11. [Reserved].
Section
6.12. Amendments of or Waivers with Respect to Restricted Debt. The Borrower shall not, nor shall it permit any of its Restricted
Subsidiaries to, amend or otherwise modify the terms of any Restricted Debt (or the documentation governing any Restricted Debt) if the
effect of such amendment or modification, together with all other amendments or modifications made, is materially adverse to the interests
of the Lenders (in their capacities as such); provided that, for purposes of clarity, it is understood and agreed that the foregoing
limitation shall not otherwise prohibit any Refinancing Indebtedness or any other replacement, refinancing, amendment, supplement, modification,
extension, renewal, restatement or refunding of any Restricted Debt, in each case, that is permitted under this Agreement in respect
thereof.
Section
6.13. [Reserved].
Section
6.14. Permitted Activities of Holdings. Holdings shall not:
(a) incur
any Indebtedness for borrowed money other than (i) the Indebtedness permitted to be incurred by Holdings under the Loan Documents and
any Second Lien Facility or otherwise in connection with the Transactions, (ii) Guarantees of Indebtedness or other obligations of the
Borrower and/or any Restricted Subsidiary, which Indebtedness or other obligations are otherwise permitted hereunder, (iii) Indebtedness
owed to the Borrower or any Restricted Subsidiary otherwise permitted hereunder and (iv) any Indebtedness or other obligations arising
in respect of its Guarantee of the iStar Sale/Leaseback, iStar Sale/Leaseback 2014, any Excluded Property Transaction and any iStar Exchange;
(b) create
or suffer to exist any Lien on any property or asset now owned or hereafter acquired by it other than (i) the Liens created under the
Collateral Documents and, subject to the Intercreditor Agreement, the collateral documents relating to any Second Lien Facility, in each
case, to which it is a party, (ii) any other Lien created in connection with the Transactions, (iii) Permitted Liens on the Collateral
that are secured on a pari passu or junior basis with the Secured Obligations, so long as such Permitted Liens secure Guarantees
permitted under clause (a)(ii) above and the underlying Indebtedness subject to such Guarantee is permitted to be secured on the
same basis pursuant to Section 6.02 and (iv) Liens of the type permitted under Section 6.02 (other than in respect
of Indebtedness for borrowed money not referred to in clause (a)(i) of this Section 6.13); or
(c) engage
in any material business activity or own any material assets other than (i) holding the Capital Stock of the Borrower and,
indirectly, any other subsidiary of the Borrower (and/or any Joint Venture of any thereof); (ii) performing its obligations under
the Loan Documents and any Second Lien Facility and other Indebtedness, Liens (including the granting of Liens) and Guarantees
permitted hereunder; (iii) issuing its own Capital Stock (including, for the avoidance of doubt, the making of any dividend or
distribution on account of, or any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value
of, any shares of any class of Capital Stock permitted hereunder); (iv) filing Tax reports and paying Taxes, including Tax
distributions made pursuant to Section 6.04(a)(xv) and other customary obligations in the ordinary course (and contesting any
Taxes); (v) preparing reports to Governmental Authorities and to its shareholders; (vi) holding director and shareholder meetings,
preparing organizational records and other organizational activities required to maintain its separate organizational structure or
to comply with applicable Requirements of Law; (vii) effecting any initial public offering of its Capital Stock; (viii) holding (A)
Cash, Cash Equivalents and other assets received in connection with permitted distributions or dividends received from, or permitted
Investments or permitted Dispositions made by, any of its subsidiaries or permitted contributions to the capital of, or proceeds
from the issuance of Capital Stock of, Holdings pending the application thereof and (B) the proceeds of Indebtedness permitted by Section
6.01; (ix) providing indemnification for its officers, directors, members of management, employees and advisors or consultants;
(x) participating in tax, accounting and other administrative matters; (xi) making payments of the type permitted under Section
6.09(f) and the performance of its obligations under any document, agreement and/or Investment contemplated by the Transactions,
the Amendment No. 1 Transactions, the Amendment No. 2 Transactions or otherwise not prohibited under this Agreement; (xii) complying
with applicable Requirements of Law (including with respect to the maintenance of its existence); (xiii) [reserved]; (xiv)
repurchases of Indebtedness through open market purchases and/or Dutch Auctions permitted hereunder; (xv) activities incidental to
Permitted Acquisitions or similar Investments consummated by the Borrower and/or any Restricted Subsidiaries, including the
formation of acquisition vehicle entities and intercompany loans and/or Investments incidental to such Permitted Acquisitions or
similar Investments; (xvi) consummating the Holdings Reorganization Transaction, any Permitted Reorganization or any IPO
Reorganization Transaction; (xvii) the maintenance of its legal existence (including the ability to incur and pay, as applicable,
fees, costs and expenses and taxes related to such maintenance), (xviii) activities incidental or reasonably related to any of the
foregoing and (xvii) any transaction expressly permitted pursuant to clauses (a), (b) and/or (d) of this Section
6.14; or
(d) consolidate
or amalgamate with, or merge with or into, or convey, sell or otherwise transfer all or substantially all of its assets to, any
Person; provided that, so long as no Event of Default exists or would result therefrom, (A) Holdings may consolidate or
amalgamate with, or merge with or into, any other Person (other than the Borrower and any of its subsidiaries) so long as (i)
Holdings is the continuing or surviving Person or (ii) if the Person formed by or surviving any such consolidation, amalgamation or
merger is not Holdings, (x) the successor Person expressly assumes all obligations of Holdings under this Agreement and the other
Loan Documents to which Holdings is a party pursuant to a supplement hereto and/or thereto in a form reasonably satisfactory to the
Administrative Agent and (y) the Borrower delivers a certificate of a Responsible Officer with respect to the satisfaction of the
conditions set forth in clause (x) of this clause (A)(ii) and (B) Holdings may (1) consummate the Holdings
Reorganization Transaction and/or (2) otherwise convey, sell or otherwise transfer all or substantially all of its assets to any
other Person (other than the Borrower and any of its subsidiaries) so long as (x) no Change of Control results therefrom, (y) the
Person acquiring such assets expressly assumes all of the obligations of Holdings under this Agreement and the other Loan Documents
to which Holdings is a party pursuant to a supplement hereto and/or thereto in a form reasonably satisfactory to the Administrative
Agent and (z) the Borrower delivers a certificate of a Responsible Officer with respect to the satisfaction of the conditions under clause
(x) set forth in this clause (B); provided, further, that (1) if the conditions set forth in the preceding proviso
are satisfied, the successor to Holdings will succeed to, and be substituted for, Holdings under this Agreement, (2) it is
understood and agreed that Holdings may convert into another form of entity so long as such conversion does not adversely affect the
value of the Collateral pledged by Holdings, taken as a whole and (3) notwithstanding anything to the contrary in this Section
6.14, nothing herein shall preclude Holdings from consummating any Permitted Reorganization or IPO Reorganization
Transaction.
Section
6.15. Financial Covenant.
(a) First
Lien Leverage Ratio. On the last day of any Test Period ending on or after the last day of the first full Fiscal Quarter ending after
the Closing Date on which the Revolving Facility Test Condition is then satisfied, the Borrower shall not permit the First Lien Leverage
Ratio to be greater than 6.25:1.00, stepping-down to a First Lien Leverage Ratio of 6.00:1.00 for the Fiscal Quarter ended on or about
September 30, 2020 and thereafter.
(b) Financial
Cure. Notwithstanding anything to the contrary in this Agreement (including Article 7), if the Borrower reasonably
expects to fail (or has failed) to comply with Section 6.15(a) above for any Fiscal Quarter, the Borrower shall have the
right (the “Cure Right”) (at any time during such Fiscal Quarter or thereafter until the date that is 10 Business
Days after the date on which financial statements for such Fiscal Quarter are required to be delivered pursuant to Section
5.01(a) or (b), as applicable) to issue equity (which shall be common equity, Qualified Capital Stock or other equity
(such other equity to be on terms reasonably acceptable to the Administrative Agent)) for Cash or otherwise receive Cash
contributions in respect of Qualified Capital Stock (the “Cure Amount”), and thereupon the Borrower’s
compliance with Section 6.15(a) shall be recalculated giving effect to the following pro forma adjustment: Consolidated
Adjusted EBITDA shall be increased (notwithstanding the absence of a related addback in the definition of “Consolidated
Adjusted EBITDA”), solely for the purpose of determining compliance with Section 6.15(a) as of the end of such Fiscal
Quarter and for applicable subsequent periods that include such Fiscal Quarter, by an amount equal to the Cure Amount. If, after
giving effect to the foregoing recalculation (but not, for the avoidance of doubt, except as expressly set forth below, taking into
account any immediate repayment of Indebtedness in connection therewith), the requirements of Section 6.15(a) would be
satisfied, then the requirements of Section 6.15(a) shall be deemed satisfied as of the end of the relevant Fiscal Quarter
with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section
6.15(a) that had occurred (or would have occurred) shall be deemed cured for the purposes of this Agreement. Notwithstanding
anything herein to the contrary, (i) in each four consecutive Fiscal Quarter period there shall be at least two Fiscal Quarters
(which may, but are not required to be, consecutive) in which the Cure Right is not exercised, (ii) during the term of this
Agreement, the Cure Right shall not be exercised more than five times, (iii) the Cure Amount shall be no greater than the amount
required for the purpose of complying with Section 6.15(a) (or to be in pro forma compliance with any financial covenant with
respect to any other Indebtedness that is being cured), (iv) upon the Administrative Agent’s receipt of a written
notice from the Borrower that the Borrower intends to exercise the Cure Right (a “Notice of Intent to Cure”),
until the 10th Business Day following the date on which financial statements for the Fiscal Quarter to which such Notice of Intent
to Cure relates are required to be delivered pursuant to Section 5.01(a) or (b), as applicable, neither the
Administrative Agent (nor any sub-agent therefor) nor any Lender shall exercise any right to accelerate the Loans or terminate the
Revolving Credit Commitments or any Additional Commitments, and none of the Administrative Agent (nor any sub-agent therefor) nor
any Lender or Secured Party shall exercise any right to foreclose on or take possession of the Collateral or any other right or
remedy under the Loan Documents, in each case solely on the basis of the relevant Event of Default under Section 6.15(a), (v)
during any Test Period in which any Cure Amount is included in the calculation of Consolidated Adjusted EBITDA as a result of any
exercise of the Cure Right, such Cure Amount shall be (A) counted solely as an increase to Consolidated Adjusted EBITDA (and not as
a reduction of Indebtedness (by netting or otherwise), except to the extent that the proceeds of such Cure Amount are actually
applied to repay Indebtedness, such reduction may be credited in any subsequent Fiscal Quarter) for the purpose of determining
compliance with Section 6.15(a) and (B) disregarded for all other purposes, including the purpose of determining
whether any financial ratio-based condition has been satisfied, the Applicable Rate or the Commitment Fee Rate or the availability
of any carve-out set forth in Article 6 of this Agreement and (vi) no Revolving Lender or Issuing Bank shall be required to
make any Revolving Loan or issue any Letter of Credit hereunder if an Event of Default under Section 6.15(a) exists during
the 10 Business Day period during which the Borrower may exercise a Cure Right above unless and until the Cure Amount is actually
received.
ARTICLE
7 EVENTS OF DEFAULT
Section
7.01. Events of Default. If any of the following events (each, an “Event of Default”) shall occur:
(a) Failure
To Make Payments When Due. Failure by the Borrower to pay (i) any installment of principal of any Loan when due, whether at stated
maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on any Loan,
any fee or other non-principal amount due hereunder within five Business Days after the date due.
(b) Default
in Other Agreements. (i) Failure by the Borrower or any of its Restricted Subsidiaries to pay when due any principal of or interest
on or any other amount payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in clause (a)
above) with an aggregate outstanding principal amount exceeding the Threshold Amount, in each case beyond the applicable notice period
and grace period, if any, provided therefor; or (ii) breach or default by the Borrower or any of its Restricted Subsidiaries with respect
to any other term of (A) one or more items of Indebtedness with an aggregate outstanding principal amount exceeding the Threshold Amount
or (B) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness (other than, for the avoidance
of doubt, with respect to Indebtedness consisting of Hedging Obligations, termination events or equivalent events pursuant to the terms
of the relevant Hedge Agreement which are not the result of any default thereunder by any Loan Party or any Restricted Subsidiary), in
each case beyond the applicable notice period and grace period, if any, provided therefor, if the effect of such breach or default is
to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause,
such Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; provided that clause (ii) of this paragraph (b) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness if such sale or
transfer is permitted hereunder; provided, further, that (x) with respect to any breach or default referred to in clause
(ii) above with respect to a financial covenant in any such Indebtedness, such breach or default shall only constitute an Event of
Default hereunder if such breach or default has resulted in the acceleration of such Indebtedness and the termination of commitments
thereunder and (y) any failure described under clauses (i) or (ii) above is unremedied and is not waived by the holders
of such Indebtedness prior to any termination of the Commitments or acceleration of the Loans pursuant to this Article 7; or
(c) Breach
of Certain Covenants. Failure of any Loan Party, as required by the relevant provision, to perform or comply with any term or
condition contained in Section 5.01(e)(i) (provided that subsequent delivery of a notice of Default or Event of
Default shall cure such Event of Default for failure to provide notice, unless a Responsible Officer of Holdings or the Borrower had
actual knowledge that such Default or Event of Default had occurred and was continuing and should have reasonably known in the
course of his or her duties that failure to provide such notice would constitute an Event of Default), Section 5.02 (as it
applies to the preservation of the existence of the Borrower), or Article 6; provided that, notwithstanding this clause
(c), no breach or default by any Loan Party under Section 6.15(a) will constitute an Event of Default with respect to any
Term Loans unless and until the Required Revolving Lenders have accelerated the Revolving Loans and any Additional Revolving Loans,
terminated the commitments under the Revolving Facility and demanded repayment of, or otherwise accelerated, the Indebtedness or
other obligations under the Revolving Facility and have not rescinded such demand or acceleration (the “Financial Covenant
Standstill”); it being understood and agreed that any breach of Section 6.15(a) (or any other financial covenant)
is subject to cure as provided in Section 6.15(b), and no Event of Default shall arise under Section 6.15(a) until the
10th Business Day after the day on which financial statements are required to be delivered for the relevant Fiscal Quarter under Section
5.01(a) or (b), as applicable, and then only to the extent the Cure Amount has not been received on or prior to such
date; or
(d) Breach
of Representations, Etc. Any representation, warranty or certification made or deemed made by any Loan Party in any Loan Document
or in any certificate required to be delivered in connection herewith or therewith (including, for the avoidance of doubt, any Perfection
Certificate) (limited, on the Closing Date, solely to the Specified Representations and representations referred to in any officer’s
certificate delivered on the Closing Date that specifically refers to this Section 7.01(d)), shall be untrue in any material respect
as of the date made or deemed made and such untrue representation, warranty or certification shall remain untrue for a period of 30 days
after notice from the Administrative Agent to the Borrower (which notice shall only be given at the direction of the Required Lenders);
or
(e) Other
Defaults Under Loan Documents. Default by any Loan Party in the performance of or compliance with any term contained herein or in
any of the other Loan Documents, other than any such term referred to in any other Section of this Article 7, which default has
not been remedied or waived within 30 days after receipt by the Borrower of written notice thereof from the Administrative Agent; or
(f) Involuntary
Bankruptcy; Appointment of Receiver, Etc. (i) The entry by a court of competent jurisdiction of a decree or order for relief in respect
of Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) (any such Person, a “Specified
Person”) in an involuntary case under any Debtor Relief Law now or hereafter in effect, which decree or order is not stayed;
or any other similar relief shall be granted under any applicable federal, state or local law, which relief is not stayed; or (ii) the
commencement of an involuntary case against any Specified Person under any Debtor Relief Law; the entry by a court having jurisdiction
in the premises of a decree or order for the appointment of a receiver, receiver and manager, (preliminary) insolvency receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over any Specified Person, or over all or a substantial part
of its property; or the involuntary appointment of an interim receiver, trustee or other custodian of any Specified Person for all or
a substantial part of its property, which remains, in any case under this clause (f), undismissed, unvacated, unbonded or unstayed
pending appeal for 60 consecutive days; or
(g) Voluntary
Bankruptcy; Appointment of Receiver, Etc. (i) The entry against any Specified Person of an order for relief, the commencement by
any Specified Person of a voluntary case under any Debtor Relief Law, or the consent by any Specified Person to the entry of an order
for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Law, or the
consent by any Specified Person to the appointment of or taking possession by a receiver, receiver and manager, trustee or other custodian
for all or a substantial part of its property; (ii) the making by any Specified Person of a general assignment for the benefit of creditors;
or (iii) the admission by any Specified Person in writing of their inability to pay their respective debts as such debts become due;
or
(h) Judgments
and Attachments. The entry or filing of one or more final money judgments, writs or warrants of attachment or similar process against
the Borrower or any of its Restricted Subsidiaries or any of their respective assets involving in the aggregate at any time an amount
in excess of the Threshold Amount (in either case to the extent not adequately covered by indemnity from a third party as to which the
indemnifying party has been notified and not denied its indemnification obligations, self-insurance (if applicable) or insurance as to
which the relevant third party insurance company has been notified and not denied coverage), which judgment, writ, warrant or similar
process remains unpaid, undischarged, unvacated, unbonded or unstayed pending appeal for a period of 60 consecutive days; or
(i) Employee
Benefit Plans. The occurrence of one or more ERISA Events, which individually or in the aggregate result in liability of the Borrower
or any of its Restricted Subsidiaries in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect;
or
(j) Change
of Control. The occurrence of a Change of Control; or
(k) Guaranties,
Collateral Documents and Other Loan Documents. At any time after the execution and delivery thereof (i) any material Loan Guaranty
for any reason ceasing to be in full force and effect (other than in accordance with its terms or as a result of the occurrence of the
Termination Date) or being declared by a court of competent jurisdiction to be null and void or the repudiation in writing by any Loan
Party of its obligations thereunder (other than as a result of the discharge of such Loan Party in accordance with the terms thereof),
(ii) this Agreement or any material Collateral Document or any Lien on a material portion of the Collateral ceasing to be in full force
and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof, the occurrence of the Termination
Date or any other termination of such Collateral Document in accordance with the terms thereof) or being declared by a court of competent
jurisdiction to be null and void or (iii) other than in any bona fide, good faith dispute as to the scope of Collateral or whether any
Lien has been, or is required to be released, the contesting by any Loan Party of the validity or enforceability of any material provision
of any Loan Document (or any Lien on a material portion of the Collateral purported to be created by the Collateral Documents) in writing
or denial by any Loan Party in writing that it has any further liability (other than by reason of the occurrence of the Termination Date
or any other termination of any other Loan Document in accordance with the terms thereof), including with respect to future advances
by the Lenders, under any Loan Document to which it is a party; it being understood and agreed that the failure of the Administrative
Agent to maintain possession of any Collateral actually delivered to it or file any UCC (or equivalent) continuation statement shall
not result in an Event of Default under this clause (k); or
(l) Subordination.
The Obligations ceasing or the assertion in writing by any Loan Party that the Obligations cease to constitute senior indebtedness under
the subordination provisions of any document or instrument evidencing any permitted Junior Indebtedness in excess of the Threshold Amount
(in each case, to the extent required by such subordination provision) or any such subordination provision being invalidated by a court
of competent jurisdiction or otherwise ceasing, for any reason, to be valid, binding and enforceable obligations of the parties thereto;
then,
and in every such Event of Default (other than (x) an Event of Default with respect to the Borrower described in clause (f)
or (g) of this Article or (y) any Event of Default arising under Section 6.15(a)), and at any time thereafter during
the continuance of such Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, by notice
to the Borrower, take any of the following actions, at the same or different times: (i) terminate the Revolving Credit Commitments,
and thereupon such Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole
(or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower and (iii) require that the Borrower deposit in the LC
Collateral Account an additional amount in Cash as reasonably requested by the Issuing Banks (not to exceed 100% of the relevant
face amount) of the then outstanding LC Exposure (minus the amount then on deposit in the LC Collateral Account); provided
that (A) upon the occurrence of an Event of Default with respect to the Borrower described in clause (f) or (g) of
this Article, any such Commitments shall automatically terminate and the principal of the Loans then outstanding, together with
accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, and the
obligation of the Borrower to Cash collateralize the outstanding Letters of Credit as aforesaid shall automatically become
effective, in each case without further action of the Administrative Agent or any Lender and (B) during the continuance of any Event
of Default arising under Section 6.15(a), after giving effect to the proviso to Section 7.01(c), (X) solely upon the
request of the Required Revolving Lenders (but not the Required Lenders or any other Lender or group of Lenders), the Administrative
Agent shall, by notice to the Borrower, (1) terminate the Revolving Credit Commitments, and thereupon such Revolving Credit
Commitments shall terminate immediately, (2) declare the Revolving Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Revolving Loans so declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder in respect of the Revolving Loans, shall become due and payable
immediately, without presentment, demand, protest or other notice in respect thereof of any kind, all of which are hereby waived by
the Borrower and (3) require that the Borrower deposit in the LC Collateral Account an additional amount in Cash as reasonably
requested by the Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC Exposure (minus
the amount then on deposit in the LC Collateral Account) and (Y) subject to the Financial Covenant Standstill, the Administrative
Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, declare the Loans then outstanding to be due
and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. Upon the occurrence and during the
continuance of an Event of Default, subject to the Intercreditor Agreement and any other applicable intercreditor agreement, the
Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the
Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC.
ARTICLE
8 THE ADMINISTRATIVE AGENT
Each
of the Lenders and the Issuing Banks, on behalf of itself and its applicable Affiliates and in their respective capacities as such and
as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints
JPM (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions
on its behalf, including execution of the other Loan Documents or any other documents with respect to the rights of the Secured Parties
and the Collateral as contemplated by this Agreement and the Loan Documents, and to exercise such powers as are delegated to the Administrative
Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
Each
of the Secured Parties hereby irrevocably appoints and authorizes the Administrative Agent (as collateral agent) to act as the agent
of (and to hold any security interest created by the Loan Documents for and on behalf of or on trust for) such Secured Party for purposes
of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together
with such powers and discretion as are reasonably incidental thereto. The Lenders agree that any such actions by the Administrative Agent
shall bind such Secured Party.
Any
Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include
each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business
with any Loan Party or any subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding
any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan
Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information
to them.
The
Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the
other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used
merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent
contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any
discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the
Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such
other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section
9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the
opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable
Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its
Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not
taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary,
under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful
misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set
forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any
Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan
Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of
any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the
Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article
4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof, provided, further that, the
foregoing paragraph is solely for the benefit of the Administrative Agent and not any Lender.
Each
Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or
under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have
under applicable law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code
or other similar Dispositions of Collateral. Notwithstanding the foregoing, however, except as otherwise expressly limited herein, a
Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that
would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of a proof of claim in a case
under the Bankruptcy Code.
Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured
Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan
Guaranty; it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative
Agent on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents
may be exercised solely by the Administrative Agent and (ii) in the event of a foreclosure by the Administrative Agent on any of the
Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy
Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply
all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent
at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral
at any such Disposition.
No
holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection
with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement.
Each
of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or
by entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes
and shall be deemed to authorize) the Administrative Agent, on behalf of all Secured Parties, to take any of the following actions upon
the instruction of the Required Lenders:
(a) consent
to the Disposition of all or any portion of the Collateral free and clear of the Liens securing the Secured Obligations in connection
with any Disposition pursuant to the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including
Section 363 thereof;
(b) credit
bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly or
through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to the
applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including under Section 363 thereof;
(c) credit
bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly or
through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to the
applicable provisions of the UCC (or other applicable Debtor Relief Law), including pursuant to Sections 9-610 or 9-620 of the UCC;
(d) credit
bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly or
through one or more acquisition vehicles), in connection with any foreclosure or other Disposition conducted in accordance with applicable
law following the occurrence of an Event of Default, including by power of sale, judicial action or otherwise; and/or
(e) estimate
the amount of any contingent or unliquidated Secured Obligations of such Lender or other Secured Party;
it
being understood that no Lender shall be required to fund any new amount in connection with any purchase of all or any portion of the
Collateral by the Administrative Agent pursuant to the foregoing clauses (b), (c) or (d) without its prior written
consent.
Each
Secured Party agrees that the Administrative Agent is under no obligation to credit bid any part of the Secured Obligations or to purchase
or retain or acquire any portion of the Collateral; provided that, in connection with any credit bid or purchase described under
clauses (b), (c) or (d) of the preceding paragraph, the Secured Obligations owed to all of the Secured Parties (other
than with respect to contingent or unliquidated liabilities as set forth in the next succeeding paragraph) may be, and shall be, credit
bid by the Administrative Agent on a ratable basis. For the avoidance of doubt, nothing in this Article 8 shall limit any rights of Holdings
or its Subsidiaries under Section 363(k) of the Bankruptcy Code (or the corresponding provisions of any other applicable Debtor Relief
Law).
With
respect to each contingent or unliquidated claim that is a Secured Obligation, the Administrative Agent is hereby authorized by the Secured
Parties, but is not required, to estimate the amount thereof for purposes of any credit bid or purchase described in the second preceding
paragraph so long as the estimation of the amount or liquidation of such claim would not unduly delay the ability of the Administrative
Agent to credit bid the Secured Obligations or purchase the Collateral in the relevant Disposition. In the event that the Administrative
Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot
be estimated without unduly delaying the ability of the Administrative Agent to consummate any credit bid or purchase in accordance with
the second preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit
bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid.
Each
Secured Party whose Secured Obligations are credit bid under clauses (b), (c) or (d) of the third preceding
paragraph shall be entitled to receive interests in the Collateral or any other asset acquired in connection with such credit bid
(or in the Capital Stock of the acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in
accordance with the percentage obtained by dividing (x) the amount of the Secured Obligations of such Secured Party that were credit
bid in such credit bid or other Disposition by (y) the aggregate amount of all Secured Obligations that were credit bid in such
credit bid or other Disposition.
In
addition, in case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan
Party, each Secured Party agrees that the Administrative Agent (irrespective of whether the principal of any Loan or LC Exposure is then
due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans or LC Exposure and
all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and
all other amounts to the extent due to the Lenders and the Administrative Agent under Sections 2.12 and 9.03) allowed in
such judicial proceeding; and
(ii) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.
Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and each Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative
Agent consents to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and
any other amount due to the Administrative Agent under Sections 2.12 and 9.03.
Nothing
contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or any Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or any Issuing
Bank in any such proceeding.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank,
the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received
notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
The
Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents
appointed by it. The Administrative Agent and any such sub-agent may perform any and all of their respective duties and exercise their
respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent and shall apply to their respective activities
in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent.
The
Administrative Agent may resign at any time by giving thirty days’ written notice to the Lenders, the Issuing Banks and the
Borrower. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or
the Borrower may, upon thirty days’ notice, remove the Administrative Agent. Upon receipt of any such notice of resignation or
delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be
unreasonably withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company or
other Person reasonably acceptable to the Borrower with offices in the U.S.; provided that during the existence and
continuation of an Event of Default under Section 7.01(a) or, with respect to the Borrower, Section 7.01(f) or (g),
no consent of the Borrower shall be required. If no successor shall have been appointed as provided above and accepted such
appointment within thirty days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent
receives notice of removal, then (a) in the case of a retirement, the retiring Administrative Agent may (but shall not be obligated
to), on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent meeting the qualifications set forth
above (including, for the avoidance of doubt, consent of the Borrower) or (b) in the case of a removal, the Borrower may, after
consulting with the Required Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided
that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no
qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no
qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective
in accordance with such notice and (i) the retiring or removed Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the
Administrative Agent in its capacity as collateral agent for the Secured Parties for perfection purposes, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is
appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with
the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable,
appoint a successor Administrative Agent, as provided for above in this Article 8. Upon the acceptance of its appointment as
Administrative Agent hereunder as a successor Administrative Agent, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to
indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged
from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between
the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed
Administrative Agent, its sub-agents and their respective Related Parties in respect of any action taken or omitted to be taken by
any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security
following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified
Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent.
Any
resignation or removal of the Administrative Agent hereunder shall also constitute its resignation as Issuing Bank and the Swingline
Lender effective as of the date of effectiveness of its resignation or removal as Administrative Agent as provided above; it being understood
that in the event of any such resignation, any Letter of Credit then outstanding shall remain outstanding (irrespective of whether any
amounts have been drawn at such time). In the event of any such resignation as an Issuing Bank or the Swingline Lender, the Borrower
shall be entitled to appoint any Revolving Lender that is willing to accept such appointment as successor Issuing Bank or Swingline Lender
hereunder. Upon the acceptance of any appointment as Issuing Bank or Swingline Lender hereunder by a successor Issuing Bank or Swingline
Lender, as applicable, such successor Issuing Bank or Swingline Lender, as applicable, shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the resigning Issuing Bank or Swingline Lender, as applicable, and the resigning Issuing
Bank and Swingline Lender, as applicable, shall be discharged from its duties and obligations in such capacity hereunder. In the event
the Swingline Lender resigns, the Borrower shall promptly repay all outstanding Swingline Loans on the effective date of such resignation
(which repayment may be effectuated with the proceeds of a Borrowing).
Each
Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender or any of their respective Related Parties and based on such documents
and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under
or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Except
for notices, reports and other documents expressly required to be furnished to the Lenders and the Issuing Banks by the Administrative
Agent herein, the Administrative Agent shall not have any duty or responsibility to provide any Lender or any Issuing Bank with any credit
or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into the possession of the Administrative Agent or any of its
Related Parties.
Notwithstanding
anything to the contrary herein, the Arrangers shall not have any right, power, obligation, liability, responsibility or duty under this
Agreement, except in their respective capacities, as applicable, as the Administrative Agent, an Issuing Bank or a Lender hereunder.
Each
Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall:
(a) release
any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the occurrence of the Termination
Date, (ii) that is sold or to be sold or transferred as part of or in connection with any Disposition permitted under the Loan Documents
to a Person that is not a Loan Party, (iii) that does not constitute (or ceases to constitute) Collateral, (iv) if the property subject
to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Loan Guaranty otherwise in accordance
with the Loan Documents, (v) as required under clause (d) below or (vi) if approved, authorized or ratified in writing
by the Required Lenders (or such other number or percentage of Lenders as shall be necessary under the relevant circumstances as provided
in Section 9.02) in accordance with Section 9.02;
(b) without
limiting Section 9.22, release any Subsidiary Guarantor from its obligations under the Loan Guaranty (i) if such Person ceases
to be a Restricted Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions
or any event or other circumstance permitted hereunder); provided, that the release of any Subsidiary Guarantor from its obligations
under the Loan Guaranty if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition
thereof shall only be permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect
to such release and the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower
is deemed to have made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an
amount equal to the portion of the fair market value of the net assets of such Person attributable to the Borrower’s equity interest
therein as estimated by the Borrower in good faith and such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f))
at such time and/or (ii) upon the occurrence of the Termination Date;
(c) subordinate
any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property
that is permitted by Sections 6.02(c), 6.02(d), 6.02(e), 6.02(g), 6.02(l), 6.02(m), 6.02(n),
6.02(o), 6.02(q), 6.02(r), 6.02(u), 6.02(v)(ii), 6.02(x), 6.02(y), 6.02(z)(i),
6.02(bb), 6.02(cc), 6.02(dd), 6.02(ee), 6.02(ff), 6.02(gg), 6.02(hh), 6.02(ii),
6.02(ll), 6.02(tt) and 6.02(uu) (and any Refinancing Indebtedness in respect of any thereof to the extent such Refinancing
Indebtedness is permitted to be secured under Section 6.02(k)); and
(d) enter
into subordination, intercreditor, collateral trust and/or similar agreements (and any amendments thereof) with respect to Indebtedness
(including any Acceptable Intercreditor Agreement and any amendment thereto) that is (i) required or permitted to be subordinated hereunder
or pari passu with the Liens securing the Obligations and/or (ii) secured by Liens, and which Indebtedness contemplates an intercreditor,
subordination, collateral trust or similar agreement.
Upon
the request of the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority
to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under
the Loan Guaranty or its Lien on any Collateral pursuant to this Article 8. In each case as specified in this Article 8,
the Administrative Agent will (and each Lender and each Issuing Bank hereby authorizes the Administrative Agent to), at the Borrower’s
expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release
of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest
therein, or to release such Loan Party from its obligations under the Loan Guaranty, in each case in accordance with the terms of the
Loan Documents and this Article 8. The parties hereto acknowledge and agree that the Administrative Agent may rely conclusively
as to any of the matters described in this Section 9.02 and Section 9.22 (including as to its authority hereunder and thereunder)
on a certificate or similar instrument provided to it by any Loan Party without further inquiry or investigation, which certificate shall
be delivered to the Administrative Agent by the Loan Parties upon request.
The
Administrative Agent is authorized to enter into the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any
other intercreditor, subordination, collateral trust or similar agreement contemplated hereby with respect to any (a) Indebtedness
(i) that is (A) required or permitted to be subordinated hereunder or pari passu with the Liens securing the Obligations and/or (B)
secured by Liens and (ii) with respect to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor,
subordination, collateral trust or similar agreement (any such other intercreditor, subordination, collateral trust and/or similar
agreement, an “Additional Agreement”) and/or (b) Secured Hedging Obligations and/or Banking Services Obligations,
whether or not constituting Indebtedness, and each Secured Party acknowledges that the Intercreditor Agreement, any other Acceptable
Intercreditor Agreement and any Additional Agreement is binding upon them. Each Secured Party hereby (a) acknowledges that it has
received a copy of the Intercreditor Agreement and consents to the subordination of the Liens on the Collateral securing the Secured
Obligations on the terms set forth in the Intercreditor Agreement, (b) agrees that it will be bound by, and will not take any action
contrary to, the provisions of the Intercreditor Agreement, any other Acceptable Intercreditor Agreement or any Additional Agreement
and (c) authorizes and instructs the Administrative Agent to enter into the Intercreditor Agreement or any Additional Agreement
(including any Acceptable Intercreditor Agreement) and to subject the Liens on the Collateral securing the Secured Obligations to
the provisions thereof. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to the
Borrower, and the Secured Parties are intended third-party beneficiaries of such provisions and the provisions of the Intercreditor
Agreement, any Acceptable Intercreditor Agreement and/or any other Additional Agreement.
To
the extent that the Administrative Agent (or any Affiliate thereof) is not reimbursed and indemnified by the Borrower in accordance with
the terms of this Agreement, the Lenders will reimburse and indemnify the Administrative Agent (and any Affiliate thereof) in proportion
to their respective Applicable Percentages (determined as if there were no Defaulting Lenders) for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent (or any Affiliate thereof) in performing its duties hereunder
or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided
that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
ARTICLE
9 MISCELLANEOUS
Section
9.01. Notices.
(a) Except
in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below),
all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by facsimile or email, as follows:
(i) if
to any Loan Party, to such Loan Party in the care of Holdings at:
Bowlmor
AMF Corp.
222
West 44th Street
New
York, New York 10036
Telephone: + 1 212 777-2622
Attention: Brett I. Parker
Email:
with
a copy to (which shall not constitute notice to any Loan Party):
Atairos Group, Inc.
620
Fifth Avenue, Sixth Floor
New
York, New York 10020
Telephone: +1 646 690-5223
Attention: Rachael A.Wagner
Email:
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(ii)
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if
to the Administrative Agent, at:
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JPMorgan
Chase Bank, N.A.
500 Stanton Christiana Rd.
NCC5
/ 1st Floor
Newark,
Delaware 19713
Attention:
Loan & Agency Services Group-Jonathan Martin
Telephone: +1 302-634-1964
Fax:
+1 302 634-3301
Email:
with
a copy to:
JPMorgan
Chase Bank, N.A.
500 Stanton Christiana Rd.
NCC5
/ 1st Floor
Newark,
Delaware 19713
Attention:
Loan & Agency Services Group-William
Telephone: +1 302 634-1964
Fax:
+1 302 634-3301
Email:
(iii) if
to any Lender, to it at its address, facsimile number or email address set forth in its Administrative Questionnaire.
All
such notices and other communications (A) sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof or three Business
Days after dispatch if sent by certified or registered mail, in each case, delivered, sent or mailed (properly addressed) to the relevant
party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance
with this Section 9.01 or (B) sent by facsimile shall be deemed to have been given when sent and when receipt has been confirmed
by telephone; provided that notices and other communications sent by telecopier shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient, such notices or other communications shall be deemed to have been
given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic
communications to the extent provided in clause (b) below shall be effective as provided in such clause (b).
(b) Notices
and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including e-mail and
Internet or Intranet websites) pursuant to procedures set forth herein or otherwise approved by the Administrative Agent. The
Administrative Agent or the Borrower (on behalf of any Loan Party) may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures set forth herein or otherwise approved by it; provided
that approval of such procedures may be limited to particular notices or communications. All such notices and other communications
(i) sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended
recipient (such as by the “return receipt requested” function, as available, return e-mail or other written
acknowledgement); provided that if not given during the normal business hours of the recipient, such notice or communication
shall be deemed to have been given at the opening of business on the next Business Day for the recipient, and (ii) posted to an
Internet or Intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (b)(i) of notification that such notice or communication is available and identifying the
website address therefor.
(c) Any
party hereto may change its address or facsimile number or other notice information hereunder by notice to the other parties hereto;
it being understood and agreed that the Borrower may provide any such notice to the Administrative Agent as recipient on behalf of itself,
the Swingline Lender, each Issuing Bank and each Lender.
Section
9.02. Waivers; Amendments.
(a) No
failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under any other
Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision
of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same is permitted
by this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is
given. Without limiting the generality of the foregoing, to the extent permitted by law, the making of a Loan or the issuance of any
Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent,
any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Subject
to clauses (A), (B), (C), (D) and (E) of this Section 9.02(b) and Sections 9.02(c) and (d)
below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified, except
(i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders
(or the Administrative Agent with the consent of the Required Lenders) or (ii) in the case of any other Loan Document (other than any
waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the terms of such other Loan Document),
pursuant to an agreement or agreements in writing entered into by the Administrative Agent and each Loan Party that is party thereto,
with the consent of the Required Lenders; provided that, notwithstanding the foregoing:
(A) except
with the consent of each Lender directly and adversely affected thereby (but without requiring the consent of the Required Lenders),
no such agreement shall;
(1) increase
the Commitment or Additional Commitment of such Lender (other than with respect to any Incremental Facility pursuant to Section 2.22
in respect of which such Lender has agreed to be an Additional Lender); it being understood that no amendment, modification or waiver
of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment
or mandatory reduction of the Commitments or Additional Commitments shall constitute an increase of any Commitment or Additional Commitment
of such Lender;
(2) reduce
or forgive the principal amount of any Loan owed to such Lender or any amount due to such Lender on any Loan Installment Date (other
than, in each case, any waiver of, or consent to or departure from, any Default or Event of Default or any mandatory prepayment; it being
understood that no change in (i) the definition of “First Lien Leverage Ratio” or any other ratio used in the calculation
of any mandatory prepayment (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction or forgiveness
of any principal amount due hereunder);
(3)
(x) extend the scheduled final maturity of any Loan or (y) postpone any Loan Installment Date, any Interest Payment Date or the
date of any scheduled payment of any fee, in each case payable to such Lender hereunder (in each case, other than any extension for
administrative reasons agreed by the Administrative Agent) (other than, in each case, any waiver of, or consent or departure from,
any Default or Event of Default or any mandatory prepayment; it being understood that no change in the definition of “First
Lien Leverage Ratio” or any other ratio used in the calculation of any mandatory prepayment (including any component
definition thereof) shall constitute such an extension or postponement);
(4) reduce
the rate of interest (other than to waive any Default or Event of Default or obligation of the Borrower to pay interest at the default
rate of interest under Section 2.13(d), which shall only require the consent of the Required Lenders) or the amount of any fee
owed to such Lender; it being understood that no change in (i) the definition of “First Lien Leverage Ratio” or any other
ratio used in the calculation of the Applicable Rate or the Commitment Fee Rate, or in the calculation of any other interest or fee due
hereunder (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction in any rate of interest
or fee hereunder;
(5) extend
the expiry date of such Lender’s Commitment or Additional Commitment; it being understood that no amendment, modification or waiver
of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment
or mandatory reduction of the Commitments or Additional Commitments shall constitute an extension of any Commitment or Additional Commitment
of any Lender; and
(6) waive,
amend or modify the provisions of Section 2.18(b) of this Agreement in a manner that would by its terms alter the pro rata sharing of
payments required thereby (except in connection with any transaction permitted under Sections 2.22, 2.23, 9.02(c)
and/or 9.05(g) or as otherwise provided in this Section 9.02); and
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(B)
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no
such agreement shall:
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(1) change
(x) any of the provisions of Section 9.02(a) or Section 9.02(b) or the definition of “Required Lenders” to
reduce any voting percentage required to waive, amend or modify any right thereunder or make any determination or grant any consent
thereunder, without the prior written consent of each Lender or (y) the definition of “Required Revolving Lenders”
without the prior written consent of each Revolving Lender (it being understood that neither the consent of the Required Lenders nor
the consent of any other Lender shall be required in connection with any change to the definition of “Required Revolving
Lenders”);
(2) release
all or substantially all of the Collateral from the Lien granted pursuant to the Loan Documents (except as otherwise permitted herein
or in the other Loan Documents, including pursuant to Article 8 or Section 9.22 hereof or pursuant to any Acceptable Intercreditor
Agreement), without the prior written consent of each Lender; or
(3) release
all or substantially all of the value of the Guarantees under the Loan Guaranty (except as otherwise permitted herein or in the other
Loan Documents, including pursuant to Article 8 or Section 9.22 hereof), without the prior written consent of each Lender;
(C) solely
with the consent of the Required Revolving Lenders (but without the consent of the Required Lenders or any other Lender), any such agreement
may (x) waive, amend or modify Section 6.15 (or the definition of “First Lien Leverage Ratio” or any component definition
thereof, in each case, as any such definition is used solely for purposes of Section 6.15) or waive any Default or Event of Default
in respect of Section 6.15 (other than as permitted under clause (y)), (y) waive, amend or modify any condition precedent set
forth in Section 4.02 hereof as it pertains to any Revolving Loan and/or Additional Revolving Loan and/or (z) waive any Default
or Event of Default that results from any representation made or deemed made by any Loan Party in any Loan Document in connection with
any Credit Extension under the Revolving Facility being untrue in any material respect as of the date made or deemed made;
(D) solely
with the consent of the relevant Issuing Bank and, in the case of clause (x), the Administrative Agent, any such agreement may
(x) increase or
(y)
decrease the Letter of Credit Sublimit; and
(E) solely
with the consent of the Borrower and applicable Class or Classes of Revolving Lenders and/or, if applicable, Issuing Banks, subject to
the provisions of Section 1.10, this Agreement may be amended or otherwise modified to permit the availability of Revolving Loans
and/or Letters of Credit denominated in a currency other than Dollars and to make technical changes to this Agreement and any other Loan
Document to accommodate the inclusion of any such new currency;
provided, further,
that no such agreement shall (x) amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing
Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, such Issuing Bank or the
Swingline Lender, as the case may be and (y) amend or modify the provisions of Section 2.05 (as it applies to any Issuing
Bank) or any letter of credit application or any bilateral agreement between the Borrower and any Issuing Bank regarding the
respective rights and obligations between the Borrower and such Issuing Bank in connection with the issuance (or deemed issuance) of
Letters of Credit hereunder, without the prior written consent of, with respect to Section 2.05, the Administrative Agent,
the Borrower and such Issuing Bank, or otherwise, the Borrower and such Issuing Bank . The Administrative Agent may also amend the
Commitment Schedule to reflect assignments entered into pursuant to Section 9.05, Commitment reductions or terminations
pursuant to Section 2.09, incurrences of Additional Commitments or Additional Loans pursuant to Sections 2.22, 2.23
or 9.02(c) and reductions or terminations of any such Additional Commitments or Additional Loans. Notwithstanding anything to
the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment and any Additional Commitment of any Defaulting Lender may not be increased without the consent of such
Defaulting Lender (it being understood that any Commitment, Additional Commitment or Loan held or deemed held by any Defaulting
Lender shall be excluded from any vote hereunder that requires the consent of any Lender, except as expressly provided in Section
2.21(b)). Notwithstanding the foregoing, but without limiting the provisions of Section 2.22(g), this Agreement may be
amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (i) to
add one or more additional credit facilities to this Agreement and to permit any extension of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share ratably in the relevant benefits of this Agreement and the
other Loan Documents and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the
Required Lenders on substantially the same basis as the Lenders prior to such inclusion.
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(c)
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Notwithstanding
the foregoing, this Agreement may be amended:
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(i) with
the written consent of the Borrower and the Lenders providing the relevant Replacement Term Loans to permit the refinancing or replacement
of all or any portion of the outstanding Amendment No. 2 Term Loans or any then-existing Additional Term Loans under any applicable Class
(any such loans being refinanced or replaced, the “Replaced Term Loans”) with one or more replacement term loans hereunder
(“Replacement Term Loans”) pursuant to a Refinancing Amendment; provided that
(A) the
aggregate principal amount of any Replacement Term Loans shall not exceed the aggregate principal amount of the Replaced Term Loans
(plus (1) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any such additional
amounts are secured, the related Liens are permitted under Section 6.02 and plus (2) the amount of accrued interest,
penalties and premium (including any tender premium) thereon, any committed but undrawn amount and underwriting discounts, fees
(including upfront fees, original issue discount or initial yield payments), commissions and expenses associated
therewith),
(B) any
Replacement Term Loans (other than customary bridge loans with a maturity date of not longer than one year; provided that any
loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the
requirements of this clause (B)) must have a final maturity date that is equal to or later than the final maturity date of, and
have a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Replaced Term Loans at
the time of the relevant refinancing, provided, that the foregoing limitation shall not apply to Replacement Term Loans having
an aggregate principal amount outstanding not exceeding $20,000,000 (as selected by the Borrower),
(C) any
Replacement Term Loans may be pari passu or junior in right of payment and pari passu (without regard to the control
of remedies) or junior with respect to the Collateral with the remaining portion of the Initial Term Loans or Additional Term Loans
(provided that if pari passu or junior as to payment or Collateral, such Replacement Term Loans shall be subject to an
Acceptable Intercreditor Agreement and may be, at the option of the Borrower, documented in a separate agreement or agreements), or
be unsecured,
(D) if
any Replacement Term Loans are secured, such Replacement Term Loans may not be secured by any assets other than the Collateral,
(E) if
any Replacement Term Loans are guaranteed, such Replacement Term Loans may not be guaranteed by any Person other than one or more Loan
Parties,
(F) any
Replacement Term Loans that are pari passu with the Amendment No. 2 Term Loans in(including,
for the avoidance of doubt,
the Amendment No. 3 Incremental Term Loans) in right
of payment and security may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (B)
in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi),
(G) any
Replacement Term Loans shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F), optional
prepayment and redemption terms and, subject to preceding clause (B), an amortization schedule, as the Borrower and the lenders
providing such Replacement Term Loans may agree,
(H) [reserved],
(I) the
covenants and events of default of any Replacement Term Loans (excluding pricing, interest, fees, rate floors, premiums, optional prepayment
or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be (i) substantially identical
to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders providing such Replacement Term
Loans than those applicable to the Replaced Term Loans (other than covenants or other provisions applicable only to periods after the
latest Maturity Date of such Replaced Term Loans (in each case, as of the date of incurrence of such Replacement Term Loans)), (ii) then-current
market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with
respect thereto)) for the applicable type of Indebtedness or (iii) reasonably acceptable to the Administrative Agent (it being agreed
that covenants and events of default of any Replacement Term Loans that are more favorable to the lenders or the agent of such Replacement
Term Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents pursuant to the applicable
Refinancing Amendment shall thereafter be deemed satisfactory to the Administrative Agent), and
(ii) with
the written consent of the Borrower and the Lenders providing the relevant Replacement Revolving Facility to permit the refinancing or
replacement of all or any portion of any Revolving Credit Commitment or any Additional Revolving Credit Commitment under the applicable
Class (any such Revolving Credit Commitment or Additional Revolving Credit Commitment being refinanced or replaced, a “Replaced
Revolving Facility”) with a replacement revolving facility hereunder (a “Replacement Revolving Facility”)
pursuant to a Refinancing Amendment; provided that:
(A) the
aggregate principal amount of any Replacement Revolving Facility shall not exceed the aggregate principal amount of the Replaced Revolving
Facility (plus (x) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any such additional
amounts are secured, the related Liens are permitted under Section 6.02 and plus (y) the amount of accrued interest, penalties
and premium thereon, any committed but undrawn amounts and underwriting discounts, fees (including upfront fees and original issue discount),
commissions and expenses associated therewith),
(B) no
Replacement Revolving Facility (other than customary bridge loans with a maturity date of not longer than one year; provided that
any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to
the requirements of this clause (B)) may have a final maturity date (or require commitment reductions) prior to the final maturity
date of the relevant Replaced Revolving Facility at the time of such refinancing,
(C) any
Replacement Revolving Facility may be pari passu or junior in right of payment and pari passu (without regard to the control
of remedies) or junior with respect to the Collateral with the remaining portion of the Revolving Credit Commitments or any Additional
Revolving Credit Commitments (provided that if pari passu or junior as to payment or Collateral, such Replacement Revolving
Facility shall be subject to an Acceptable Intercreditor Agreement and may be, at the option of the Borrower, documented in a separate
agreement or agreements), or be unsecured,
(D) if
any Replacement Revolving Facility is secured, it may not be secured by any assets other than the Collateral,
(E) if
any Replacement Revolving Facility is guaranteed, it may not be guaranteed by any Person other than one or more Loan Parties,
(F) any
Replacement Revolving Facility shall be subject to the “ratability” provisions applicable to Extended Revolving Credit Commitments
and Extended Revolving Loans set forth in the proviso to clause (i) of Section 2.23(a), mutatis mutandis, to the
same extent as if fully set forth in this Section 9.02(c)(ii),
(G) any
Replacement Revolving Facility shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F),
optional prepayment and redemption terms as the Borrower and the lenders providing such Replacement Revolving Facility may agree,
(H) [reserved],
(I) the
covenants and events of default of any Replacement Revolving Facility (excluding pricing, interest, fees, rate floors, premiums, optional
prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be (i) substantially
identical to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders providing such Replacement
Revolving Facility than those applicable to the Replaced Revolving Facility (other than covenants or other provisions applicable only
to periods after the latest Maturity Date of such Replaced Revolving Facility (in each case, as of the date of incurrence of the relevant
Replacement Revolving Facility), (ii) then-current market terms (as determined by the Borrower in good faith at the time of incurrence
or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (iii) reasonably acceptable
to the Administrative Agent (it being agreed that covenants and events of default of any Replacement Revolving Facility that are more
favorable to the lenders or the agent of such Replacement Revolving Facility than those contained in the Loan Documents and are then
conformed (or added) to the Loan Documents pursuant to the applicable Refinancing Amendment shall be deemed satisfactory to the Administrative
Agent); provided, that if any financial maintenance covenant is added to any such Replacement Revolving Facility and such financial
maintenance covenant is more favorable to the lenders under such Replacement Revolving Facility than the Financial Covenant, either (x)
such financial maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving
Lenders shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the Borrower,
any applicable “equity cure” provisions with respect to any such financial maintenance covenant); and
(J)
the commitments in respect of the Replaced Revolving Facility shall be terminated, and all loans outstanding thereunder and all fees
thereunder and payable in connection therewith shall be paid in full, in each case on the date such Replacement Revolving Facility is
implemented;
provided,
further, that, in respect of each of clauses (i) and (ii) of this clause (c), (x) any Non-Debt Fund Affiliate
and Debt Fund Affiliate shall be permitted (without Administrative Agent consent) to provide any Replacement Term Loans, it being understood
that in connection with such Replacement Term Loans, the relevant Non-Debt Fund Affiliate or Debt Fund Affiliate, as applicable, shall
be subject to the restrictions applicable to such Persons under Section 9.05 as if such Replacement Term Loans were Term Loans
and (y) any Debt Fund Affiliate (but not any Non-Debt Fund Affiliate) may provide (without Administrative Agent consent) any Replacement
Revolving Facility.
Each
party hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be amended by the Borrower,
the Administrative Agent and the lenders providing the relevant Replacement Term Loans or the Replacement Revolving Facility, as applicable,
to the extent (but only to the extent) necessary to reflect the existence and terms of such Replacement Term Loans or Replacement Revolving
Facility, as applicable, incurred or implemented pursuant thereto (including any amendment necessary to treat the loans and commitments
subject thereto as a separate “tranche” and “Class” of Loans and/or commitments hereunder). It is understood
that any Lender approached to provide all or a portion of any Replacement Term Loans or any Replacement Revolving Facility may elect
or decline, in its sole discretion, to provide such Replacement Term Loans or Replacement Revolving Facility.
(d) Notwithstanding
anything to the contrary contained in this Section 9.02 or any other provision of this Agreement or any provision of any
other Loan Document, (i) the Borrower and the Administrative Agent may, without the input or consent of any Lender, amend,
supplement and/or waive any guaranty, collateral security agreement, pledge agreement and/or related document (if any) executed in
connection with this Agreement to (x) comply with any Requirements of Law or the advice of counsel or (y) cause any such guaranty,
collateral security agreement, pledge agreement or other document to be consistent with this Agreement and/or the relevant other
Loan Documents, (ii) the Borrower and the Administrative Agent may, without the input or consent of any other Lender (other than the
relevant Lenders (including Additional Lenders) providing Loans under such Sections), effect amendments to this Agreement and the
other Loan Documents as may be necessary in the reasonable opinion of the Borrower and the Administrative Agent to (A) effect the
provisions of Sections 2.22, 2.23, 5.12, 5.14, 5.15, 5.16 or 9.02(c), or any other
provision specifying that any waiver, amendment or modification may be made with the consent or approval of the Administrative Agent
and/or (B) add terms (including representations and warranties, conditions, prepayments, covenants or events of default), in
connection with the addition of any Loan or Commitment hereunder or the incurrence of any Incremental Equivalent Debt, any
Replacement Term Loans, any Replacement Revolving Facility, any Replacement Debt and/or any Refinancing Indebtedness incurred in
reliance on Section 6.01(p) with respect to Indebtedness originally incurred in reliance on Section 6.01(z), that are
favorable to the then-existing Lenders, as reasonably determined by the Administrative Agent (it being understood that, where
applicable, any such amendment may be effectuated as part of an Incremental Facility Amendment and/or a Refinancing Amendment),
(iii) if the Administrative Agent and the Borrower have jointly identified any ambiguity, mistake, defect, inconsistency, obvious
error or any error or omission of a technical or administrative nature or any necessary or desirable technical change, in each case,
in any provision of any Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision
solely to address such matter as reasonably determined by them acting jointly without the input or consent of any Lender, (iv) the
Administrative Agent and the Borrower may amend, restate, amend and restate or otherwise modify the Intercreditor Agreement or any
Acceptable Intercreditor Agreement as provided therein or to give effect thereto or to carry out the purpose thereof without the
input or consent of any Lender and (2) any amendment, waiver or modification of any term or provision that directly affects Lenders
under one or more Classes and does not directly affect Lenders under one or more other Classes may be effected with the consent of
Lenders owning 50% of the aggregate commitments or Loans of such directly affected Class in lieu of the consent of the Required
Lenders.
(e) Notwithstanding
anything to the contrary contained in this Section 9.02, if the Revolving Lenders are to receive the benefit of any additional or modified
financial maintenance covenant as a result of the application of the provisions set forth in clause (g) of the definition of “Incremental
Equivalent Debt”, Section 2.22(a)(iv) or Section 9.02(c)(ii)(I), then the Administrative Agent and the Borrower shall
be permitted, without the need for consent by any other Person, to effectuate such provisions by promptly entering into an amendment
to this Agreement.
Section
9.03. Expenses; Indemnity.
(a) Subject
to Section 9.05(f), the Borrower shall pay, upon presentation of a summary statement, together with any supporting
documentation reasonably requested by the Borrower, (i) all reasonable and documented out-of-pocket expenses incurred by each
Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the
actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such
Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as
a whole) in connection with the syndication and distribution (including via the Internet or through a service such as Intralinks) of
the Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation,
including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the
transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or
waiver was requested by the Borrower) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative
Agent, the Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees
and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside
counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all
such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in
connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made
and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph
(a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in
reasonable detail, together with backup documentation supporting the relevant reimbursement request.
(b) The
Borrower shall indemnify each Arranger, the Administrative Agent, each Issuing Bank and each Lender, and each Related Party of any
of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the
actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a
whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and
solely in the case of an actual or perceived conflict of interest after the affected Person notifies the Borrower of such conflict,
(x) one additional counsel to all similarly situated affected Indemnitees, taken as a whole, and (y) one additional local counsel in
any relevant material jurisdiction to all similarly situated affected Indemnitees, taken as a whole), incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or
any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder
or the consummation of the Transactions or any other transactions contemplated hereby or thereby (except for any Taxes, which shall
be governed exclusively by Section 2.17), (ii) the use of the proceeds of the Loans or any Letter of Credit or (iii) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing (including any matters arising
under Environmental Law), whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party
thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of
their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that
any such loss, claim, damage or liability (i) is determined by a final and non-appealable judgment of a court of competent
jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or
willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any such settlement agreement
acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s or a Related Party of such
Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding
brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought
by or against the Administrative Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative Agent, as an
Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its subsidiaries. Each
Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b)
to such Indemnitee for any fees, expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance
with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x)
after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of
reimbursement of costs and expenses, after receipt by the Borrower of an invoice, setting forth such costs and expenses in
reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b)
shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities arising from any
non-Tax claim.
(c) The
Borrower shall not be liable for any settlement or compromise of, or the consent to the ending of any judgment with respect to, any
proceeding effected without its consent (which consent shall not be unreasonably withheld, delayed or conditioned), but if any
proceeding is so settled, compromised or consented with the Borrower’s written consent, or if there is a final judgment
entered against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the
extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee
(which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened
proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an
unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such
settlement does not include any statement as to any admission of fault or culpability.
Section
9.04. Waiver of Claim. To the extent permitted by applicable law, no party to this Agreement shall assert, and each hereby waives,
any claim against any other party hereto or any Related Party thereof, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or
any agreement or instrument contemplated hereby, the Transactions, any Loan or any Letter of Credit or the use of the proceeds thereof,
except, in the case of any claim by any Indemnitee against the Borrower, to the extent such damages would otherwise be subject to indemnification
pursuant to the terms of Section 9.03.
Section
9.05. Successors and Assigns.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns; provided that (i) except as provided under Section 6.07 and/or pursuant to any Permitted Reorganization,
the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted assignment
or transfer not complying with the terms of this Section shall be null and void and, with respect to any attempted assignment or transfer
to any Disqualified Institution, subject to Section 9.05(f)). Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective successors and permitted assigns, Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the
Arrangers, the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement. Any Successor Borrower permitted pursuant to a transaction referred to in clause (i) of the proviso above, shall thereafter
be deemed to be and become the “Borrower” for all purposes hereunder, and such initial Borrower shall be released from its
Obligations in respect of this Agreement and the other Loan Documents.
(b) (i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement (including all or a portion of any Loan or Additional Commitment added pursuant
to Sections 2.22, 2.23 or 9.02(c) at the time owing to it) with the prior written consent (not to be unreasonably
withheld or delayed) of:
(A) the
Borrower; provided that the Borrower shall be deemed to have consented to any assignment of Term Loans (other than any such
assignment to a Disqualified Institution or an affiliate thereof referred to in the last proviso of this clause (i) and identified
to the Administrative Agent as such) if it has not responded to a written request for its consent from the Administrative Agent
within 15 Business Days after receiving such written request; provided, further, that no consent of the Borrower shall
be required (x) for any assignment of Initial Term Loans, Additional Term Loans, Initial Term Loan Commitments or Additional Term
Loan Commitments to another Lender, an Affiliate of any Lender or an Approved Fund or (y) during the continuance of an Event of
Default under Section 7.01(a) or Sections 7.01(f) or (g) (solely with respect to the Borrower);
(B) the
Administrative Agent; provided, that no consent of the Administrative Agent shall be required for any assignment to another Lender,
any Affiliate of a Lender or any Approved Fund, or for any assignment to the Borrower and/or its Affiliates, which otherwise complies
with the terms of this Section 9.05; and
(C) in
the case of the Revolving Facility or any Additional Revolving Facility, each Issuing Bank and the Swingline Lender;
provided,
that notwithstanding the foregoing, the Borrower may withhold its consent to any assignment to any Person that is not expressly a Disqualified
Institution but is known by the Borrower to be an Affiliate of a Disqualified Institution without regard as to whether such Person is
identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name.
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(ii)
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Assignments
shall be subject to the following additional conditions:
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(A) except
in the case of any assignment to another Lender, any Affiliate of any Lender or any Approved Fund or any assignment of the entire remaining
amount of the relevant assigning Lender’s Loans or commitments of any Class, the principal amount of Loans or commitments of the
assigning Lender subject to the relevant assignment (determined as of the date on which the Assignment Agreement with respect to such
assignment is delivered to the Administrative Agent and determined on an aggregate basis in the event of concurrent assignments to Related
Funds or by Related Funds) shall not be less than (x) $1,000,000, in the case of Initial Term Loans, Additional Term Loans, Initial Term
Loan Commitments and Additional Term Loan Commitments and (y) $5,000,000 in the case of Revolving Loans, Additional Revolving Loans,
Revolving Credit Commitments or Additional Revolving Credit Commitments unless the Borrower and the Administrative Agent otherwise consent
to a lesser amount, and in each case any assigned amount may exceed such minimum amount in an integral multiple of $1,000,000 in excess
thereof;
(B) any
partial assignment shall be made as an assignment of a proportionate part of all the relevant assigning Lender’s rights and obligations
under this Agreement;
(C) the
parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement via an electronic
settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and
shall pay to the Administrative Agent a processing and recordation fee of $3,500; provided that (x) such fee may be waived or
reduced in the sole discretion of the Administrative Agent, (y) such fee shall not apply for any assignment to an Affiliated Lender
or Debt Fund Affiliate and (z) only one such fee shall be payable in the event of simultaneous assignments to or from two or more
Approved Funds;
(D) the
relevant Eligible Assignee, if it is not a Lender, shall deliver on or prior to the effective date of such assignment, to the Administrative
Agent and the Borrower (irrespective of whether an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g)
exists) (1) an Administrative Questionnaire and (2) any form required under Section 2.17; and
(E) the
assigning Lender shall, concurrently with its delivery of the same to the Administrative Agent, provide the Borrower with a copy of its
request for such assignment, which shall include the name of the prospective assignee (irrespective of whether an Event of Default under
Section 7.01(a) or Section 7.01(f) or Section 7.01(g) exists).
(iii) Except
as otherwise provided in Section 9.05(g), subject to the acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section, from and after the effective date specified in any Assignment Agreement, the Eligible Assignee thereunder shall be a
party hereto and, to the extent of the interest assigned pursuant to such Assignment Agreement, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment Agreement,
be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be (A) entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03 with respect to facts and circumstances occurring on or prior
to the effective date of such assignment and (B) subject to its obligations thereunder and under Section 9.13). If any assignment
by any Lender holding any Promissory Note is made after the issuance of such Promissory Note, the assigning Lender shall, upon the effectiveness
of such assignment or as promptly thereafter as practicable, surrender such Promissory Note to the Administrative Agent for cancellation,
and, if requested by either the assignee or the assigning Lender, the Borrower shall issue and deliver a new Promissory Note to such
assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new commitments and/or outstanding Loans of the
assignee and/or the assigning Lender.
(iv) The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment
Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders and their respective successors
and assigns, and the commitment of, and principal amount of and interest on the Loans and LC Disbursements owing to, each Lender or Issuing
Bank pursuant to the terms hereof from time to time (the “Register”). Failure to make any such recordation, or any
error in such recordation, shall not affect the Borrower’s obligations in respect of such Loans and LC Disbursements. The entries
in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders
shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower, each Issuing Bank and each Lender (but only as to its
own holdings), at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon
its receipt of a duly completed Assignment Agreement executed by an assigning Lender and an Eligible Assignee, the Eligible Assignee’s
completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the assignee is
already a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and
any written consent to the relevant assignment required by paragraph (b) of this Section, the Administrative Agent shall promptly
accept such Assignment Agreement and record the information contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(vi) By
executing and delivering an Assignment Agreement, the assigning Lender and the Eligible Assignee thereunder shall be deemed to confirm
and agree with each other and the other parties hereto as follows: (A) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim and that the amount of its commitments, and the outstanding
balances of its Loans, in each case without giving effect to any assignment thereof which has not become effective, are as set forth
in such Assignment Agreement, (B) except as set forth in clause (A) above, such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement,
or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any Restricted Subsidiary or
the performance or observance by the Borrower or any Restricted Subsidiary of any of its obligations under this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto; (C) such assignee represents and warrants that it is an
Eligible Assignee (and not a Disqualified Institution), legally authorized to enter into such Assignment Agreement; (D) such assignee
confirms that it has received a copy of this Agreement, the Intercreditor Agreement and each other then-applicable Acceptable Intercreditor
Agreement, together with copies of the financial statements referred to in Section 4.01(c) or the most recent financial statements
delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment Agreement; (E) such assignee will independently and without reliance upon the Administrative
Agent, the assigning Lender or any other Lender and based on such documents and information as it deems appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this Agreement; (F) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative
Agent, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as
a Lender.
(c) (i)
Any Lender may, without the consent of the Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender or any other
Lender, sell participations to any bank or other entity (other than to any Disqualified Institution or an Affiliate thereof referred
to in the last proviso of clause (b)(i) of this Section 9.05 and identified to the Administrative Agent as such, any
Defaulting Lender or any natural Person) (a “Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its commitments and the Loans owing to it); provided that (A)
such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, the Issuing Banks and
the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which any Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the
consent of the relevant Participant, agree to any amendment, modification or waiver described in (x) clause (A) of the first
proviso to Section 9.02(b) that directly and adversely affects the Loans or commitments in which such Participant has an
interest and (y) clauses (B)(1), (2) or (3) of the first proviso to Section 9.02(b). Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16
and 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section (it being understood that the documentation required under Section 2.17(f) shall be delivered to the
participating Lender, and if additional amounts are required to be paid pursuant to Section 2.17(a) or Section
2.17(c), to the Borrower). To the extent permitted by applicable Requirements of Law, each Participant also shall be entitled to
the benefits of Section 9.09 as though it were a Lender; provided that such Participant agrees to be subject to Section
2.18(c) as though it were a Lender.
(ii) No
Participant shall be entitled to receive any greater payment under Sections 2.15, 2.16 or 2.17 than the participating
Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written consent (in its sole discretion) expressly acknowledging such Participant
may receive a greater benefit. Any Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 2.17 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(f) as though it were a Lender and to deliver the tax forms required to
claim an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document and then only to the extent
of any amount to which such Lender would be entitled in the absence of any such participation (it being understood that the documentation
required under Section 2.17(f) shall be delivered to the participating Lender, and if additional amounts are required to be paid
pursuant to Section 2.17(a) or Section 2.17(c), to the Borrower).
Each
Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register
on which it enters the name and address of each Participant and their respective successors and assigns, and the principal amounts and
stated interest of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register
(including the identity of any Participant or any information relating to any Participant’s interest in any Commitment, Loan, Letter
of Credit or any other obligation under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish
that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the Treasury Regulations.
The entries in the Participant Register shall be conclusive absent manifest error, and each Lender shall treat each Person whose name
is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice
to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility
for maintaining a Participant Register.
(d) (i)
Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (other than
to any Disqualified Institution, Defaulting Lender or any natural person) to secure obligations of such Lender, including without
limitation any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over
such Lender, and this Section 9.05 shall not apply to any such pledge or assignment of a security interest; provided
that no such pledge or assignment of a security interest shall release any Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(ii)
No Lender may at any time enter into a total return swap, total rate of return swap, credit default swap or other Derivative Instrument
under which any Loan or other Obligation hereunder is a reference obligation with any counterparty that is a Disqualified Institution,
in each case unless the terms of such Derivative Transaction do not allow for such Lender to provide Confidential Information regarding
Holdings or its subsidiaries to such counterparty and such Lender shall not agree to allow such counterparty (or its Affiliates) to direct
the vote of such Lender with respect to any matter regarding the Facilities (including in any bankruptcy or other restructuring transaction).
(e) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent
and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC
to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) in no event may any Lender grant any option to provide
to the Borrower all or any part of any Loan that such Granting Lender would have otherwise been obligated to make to the Borrower pursuant
to this Agreement to any Disqualified Institution or Defaulting Lender. The making of any Loan by an SPC hereunder shall utilize the
Commitment or Additional Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.
Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs
or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Section
2.15, 2.16 or 2.17) and no SPC shall be entitled to any greater amount under Section 2.15, 2.16 or 2.17
or any other provision of this Agreement or any other Loan Document that the Granting Lender would have been entitled to receive,
unless the grant to such SPC is made with the prior written consent of the Borrower (in its sole discretion), expressly acknowledging
that such SPC’s entitlement to benefits under Section 2.15, 2.16 or 2.17 is not limited to what the Granting
Lender would have been entitled to receive absent the grant to the SPC, (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the Granting Lender) and (iii) the Granting Lender shall for
all purposes including approval of any amendment, waiver or other modification of any provision of the Loan Documents, remain the Lender
of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper
or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the Requirements of Law of the U.S. or any State
thereof; provided that (i) such SPC’s Granting Lender is in compliance in all material respects with its obligations to
the Borrower hereunder and (ii) each Lender designating any SPC hereby agrees to indemnify, save and hold harmless each other party hereto
for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such SPC during such period
of forbearance. In addition, notwithstanding anything to the contrary contained in this Section 9.05, any SPC may (i) with notice
to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guaranty or credit or liquidity
enhancement to such SPC.
(f)
(i) Any assignment or participation by a Lender without the Borrower’s consent (A) to any Disqualified Institution or any
Affiliate thereof or (B) to the extent the Borrower’s consent is required under this Section 9.05, to any other Person,
shall be null and void, and the Borrower shall be entitled to seek specific performance to unwind any such assignment or
participation and/or specifically enforce this Section 9.05(f) in addition to injunctive relief (without posting a bond or
presenting evidence of irreparable harm) or any other remedies available to the Borrower at law or in equity; it being understood
and agreed that Holdings, the Borrower and its subsidiaries will suffer irreparable harm if any Lender breaches any obligation under
this Section 9.05 as it relates to any assignment, participation or pledge of any Loan or Commitment to any Disqualified
Institution or any Affiliate thereof or any other Person to whom the Borrower’s consent is required but not obtained. Nothing
in this Section 9.05(f) shall be deemed to prejudice any right or remedy that Holdings or the Borrower may otherwise have at
law or equity or pursuant to Section 9.05(f)(ii) below;
(ii) If
any assignment or participation under this Section 9.05 is made to any Affiliate of any Disqualified Institution (other than
any Bona Fide Debt Fund that is not itself a Disqualified Institution) without the Borrower’s prior written consent (any such
person, a “Disqualified Person”), then the Borrower may, at its sole expense and effort, upon notice to the
applicable Disqualified Person and the Administrative Agent, (A) terminate any Commitment of such Disqualified Person and repay all
obligations of the Borrower owing to such Disqualified Person, (B) in the case of any outstanding Term Loans held by such
Disqualified Person, purchase such Term Loans by paying the lesser of (x) par and (y) the amount that such Disqualified Person paid
to acquire such Term Loans, plus accrued interest thereon, accrued fees and all other amounts payable to it hereunder and/or
(C) require such Disqualified Person to assign, without recourse (in accordance with and subject to the restrictions contained in
this Section 9.05), all of its interests, rights and obligations under this Agreement to one or more Eligible Assignees and
if such person does not execute and deliver to the Administrative Agent a duly executed Assignment Agreement reflecting such
assignment within five Business Days of the date on which the Eligible Assignee executes and delivers such Assignment Agreement to
such person, then such person shall be deemed to have executed and delivered such Assignment Agreement without any action on its
part; provided that (I) in the case of clauses (A) and (B), the Borrower shall not be liable to the relevant
Disqualified Person under Section 2.16 if any LIBO Rate Loan owing to such Disqualified Person is repaid or purchased other
than on the last day of the Interest Period relating thereto, (II) in the case of clause (C), the relevant assignment shall
otherwise comply with this Section 9.05 (except that (x) no registration and processing fee required under this Section
9.05 shall be required with any assignment pursuant to this paragraph and (y) any Term Loan acquired by any Affiliated Lender
pursuant to this paragraph will not be included in calculating compliance with the Affiliated Lender Cap for a period of 90 days
following such transfer; provided that, to the extent the aggregate principal amount of Term Loans held by Affiliated Lenders
exceeds the Affiliated Lender Cap on the 91st day following such transfer, then such excess amount shall either be (x) contributed
to Holdings, the Borrower or any of its subsidiaries and retired and cancelled immediately upon such contribution or (y)
automatically cancelled)) and (III) in no event shall such Disqualified Person be entitled to receive amounts set forth in Section
2.13(d). Further, any Disqualified Person identified by the Borrower to the Administrative Agent (A) shall not be permitted to
(x) receive information or reporting provided by any Loan Party, the Administrative Agent or any Lender and/or (y) attend and/or
participate in conference calls or meetings attended solely by the Lenders and the Administrative Agent, (B) (x) shall not for
purposes of determining whether the Required Lenders or the majority Lenders under any Class have (i) consented (or not consented)
to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any
departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required
the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan
Document, have a right to consent (or not consent), otherwise act or direct or require the Administrative Agent or any Lender to
take (or refrain from taking) any such action; it being understood that all Loans held by any Disqualified Person shall be deemed to
be not outstanding for all purposes of calculating whether the Required Lenders, majority Lenders under any Class or all Lenders
have taken any action and (y) shall be deemed to vote in the same proportion as Lenders that are not Disqualified Persons in any
proceeding under any Debtor Relief Law commenced by or against the Borrower or any other Loan Party and (C) shall not be entitled to
receive the benefits of Section 9.03. For the sake of clarity, the provisions in this Section 9.05(f) shall not apply
to any Person that is an assignee of any Disqualified Person, if such assignee is not a Disqualified Person;
(iii) Upon
the request of any Lender, the Administrative Agent may and the Borrower will make the list of Disqualified Institutions (other than
any Disqualified Institution that is a reasonably identifiable Affiliate of another Disqualified Institution on the basis of such Person’s
name) at the relevant time and such Lender may provide the list to any potential assignee for the purpose of verifying whether such Person
is a Disqualified Institution, in each case so long as such Lender and such potential assignee agree to keep the list of Disqualified
Institutions confidential in accordance with the terms hereof;
(iv) The
Borrower shall deliver the list of Disqualified Institutions and any updates, supplements or modifications thereto to JPMDQ_Contact@jpmorgan.com
and any such updates, supplements or modifications thereto shall only become effective 3 days after such notice. In the event the list
of Disqualified Institutions is not in accordance with the foregoing, it shall be deemed not received and not effective (except with
respect to any delivery on or prior to the Closing Date); and
(v) Notwithstanding
anything herein to the contrary, the Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain,
inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions.
(g) Notwithstanding
anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under this
Agreement in respect of its Initial Term Loans or Additional Term Loans to an Affiliated Lender on a non-pro rata basis (A) through
Dutch Auctions, or similar transactions pursuant to procedures to be established by the applicable “auction agent” that are
consistent with this Section 9.05(g), in each case open to all Lenders holding the relevant Initial Term Loans or such Additional
Term Loans, as applicable, on a pro rata basis or (B) through open market purchases, in each case with respect to clauses (A)
and (B), without the consent of the Administrative Agent; provided that:
(i) any
Initial Term Loans or Additional Term Loans acquired by Holdings, the Borrower or any of its subsidiaries shall, to the extent
permitted by applicable Requirements of Law, be retired and cancelled immediately upon the acquisition thereof; provided that
upon any such retirement and cancellation, the aggregate outstanding principal amount of the Initial Term Loans or Additional Term
Loans, as applicable, shall be deemed reduced by the full par value of the aggregate principal amount of the Initial Term Loans or
Additional Term Loans so retired and cancelled, and each principal repayment installment with respect to the Initial Term Loans or
Additional Term Loans pursuant to Section 2.10(a) shall be reduced on a pro rata basis by the full par value of the
aggregate principal amount of Initial Term Loans or Additional Term Loans so cancelled (as applicable);
(ii) any
Initial Term Loans or Additional Term Loans acquired by any Affiliated Lender may (but shall not be required to) be contributed to Holdings,
the Borrower or any of its subsidiaries or Parent Companies for purposes of cancelling such Indebtedness, and in exchange thereof such
Affiliated Lender may receive debt or equity securities of such entity or a direct or indirect parent entity or subsidiary thereof that
are otherwise permitted to be issued by such entity at such time, it being understood that (x) any such Initial Term Loans or Additional
Term Loans shall, to the extent permitted by applicable Requirements of Law, be retired and cancelled immediately upon such contribution
and (y) any such contribution shall be treated as a capital contribution that builds the Available Amount pursuant to clause (iii)
of the definition thereof by an amount equal to the fair market value (as determined by the Borrower in good faith) of the Initial
Term Loans or Additional Term Loans so contributed; provided that if the fair market value of such Initial Term Loans or Additional
Term Loans cannot be determined by the Borrower, the fair market value shall be deemed to be the purchase price of such Initial Term
Loans or Additional Term Loans paid by such Affiliated Lender); provided that upon any such cancellation, the aggregate outstanding
principal amount of the Initial Term Loans or Additional Term Loans, as applicable, shall be deemed reduced, as of the date of such contribution,
by the full par value of the aggregate principal amount of the Initial Term Loans or Additional Term Loans so contributed and cancelled,
and each principal repayment installment with respect to the Initial Term Loans or Additional Term Loans pursuant to Section 2.10(a)
shall be reduced pro rata by the full par value of the aggregate principal amount of Initial Term Loans or Additional Term
Loans so contributed and cancelled;
(iii) the
relevant Affiliated Lender and assigning Lender shall have executed an Affiliated Lender Assignment and Assumption;
(iv) after
giving effect to such assignment and to all other assignments to all Affiliated Lenders, the aggregate principal amount of all Initial
Term Loans and Additional Term Loans then held by all Affiliated Lenders shall not exceed 25% of the aggregate principal amount of the
Initial Term Loans and Additional Term Loans then outstanding (after giving effect to any substantially simultaneous cancellations thereof)
(the “Affiliated Lender Cap”); provided that each party hereto acknowledges and agrees that the Administrative
Agent shall not be liable for any losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements
of any kind or nature whatsoever incurred or suffered by any Person in connection with any compliance or non-compliance with this clause
(g)(iv) or any purported assignment exceeding the Affiliated Lender Cap (it being understood and agreed that the Affiliated Lender
Cap is intended to apply to any Loans made available to Affiliated Lenders by means other than formal assignment (e.g., as a result of
an acquisition of another Lender (other than any Debt Fund Affiliate) by any Affiliated Lender or the provision of Additional Term Loans
by any Affiliated Lender); provided, further, that to the extent that any assignment to any Affiliated Lender would result
in the aggregate principal amount of all Initial Term Loans and Additional Term Loans held by Affiliated Lenders exceeding the Affiliated
Lender Cap (after giving effect to any substantially simultaneous cancellations thereof), the assignment of the relevant excess amount
shall be null and void;
(v) in
connection with any assignment effected pursuant to a Dutch Auction and/or open market purchase conducted by Holdings, the Borrower
or any of its Restricted Subsidiaries, (A) the relevant Person may not use the proceeds of any Revolving Loans or Additional
Revolving Loans to fund such assignment and (B) no Event of Default exists at the time of acceptance of bids for the Dutch Auction
or the confirmation of such open market purchase, as applicable;
(vi) by
its acquisition of Term Loans, each relevant Affiliated Lender shall be deemed to have acknowledged and agreed that:
(A) the
Term Loans held by such Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any Required
Lender or other Lender vote (and the Term Loans held by such Affiliated Lender shall be deemed to be voted pro rata along with
the other Lenders that are not Affiliated Lenders); provided that (x) such Affiliated Lender shall have the right to vote (and
the Term Loans held by such Affiliated Lender shall not be so disregarded) with respect to any amendment, modification, waiver, consent
or other action that requires the vote of all Lenders or all Lenders directly and adversely affected thereby, as the case may be, and
(y) no amendment, modification, waiver, consent or other action shall (1) disproportionately affect such Affiliated Lender in its capacity
as a Lender as compared to other Lenders of the same Class that are not Affiliated Lenders or (2) deprive any Affiliated Lender of its
share of any payments which the Lenders are entitled to share on a pro rata basis hereunder, in each case without the consent
of such Affiliated Lender; and
(B) such
Affiliated Lender, solely in its capacity as an Affiliated Lender, will not be entitled to (i) attend (including by telephone) or participate
in any meeting or discussion (or portion thereof) among the Administrative Agent or any Lender or among Lenders to which the Loan Parties
or their representatives are not invited or (ii) receive any information or material prepared by the Administrative Agent or any Lender
or any communication by or among the Administrative Agent and one or more Lenders, except to the extent such information or materials
have been made available by the Administrative Agent or any Lender to any Loan Party or its representatives (and in any case, other than
the right to receive notices of Borrowings, prepayments and other administrative notices in respect of its Initial Term Loans or Additional
Term Loans required to be delivered to Lenders pursuant to Article 2); and
(vii) neither
the Sponsor nor any Affiliated Lender shall be required to represent or warrant that it is not in possession of material non-public information
with respect to Holdings, the Borrower and/or any subsidiary thereof and/or their respective securities in connection with any assignment
permitted by this Section 9.05(g).
Notwithstanding
anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under
this Agreement in respect of its Initial Term Loans, Additional Term Loans, Revolving Credit Commitments or Additional Revolving
Credit Commitments to any Debt Fund Affiliate, and any Debt Fund Affiliate may, from time to time, purchase Initial Term Loans,
Additional Term Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments (x) on a non-pro rata basis
through Dutch Auctions or similar transactions open to all applicable Lenders or (y) on a non-pro rata basis through open
market purchases without the consent of the Administrative Agent, in each case, notwithstanding the requirements set forth in subclauses
(i) through (vii) of this clause (g); provided that the Initial Term Loans, Additional Term Loans and
unused commitments and other Loans of all Debt Fund Affiliates shall not account for more than 49.9% of the amounts included in
determining whether the Required Lenders or Required Revolving Lenders have (A) consented to any amendment, modification, waiver,
consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom or (B)
directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect
to any Loan Document. Any Initial Term Loans or Additional Term Loans acquired by any Debt Fund Affiliate may (but shall not be
required to) be contributed to the Borrower or any of its subsidiaries or parent entities for purposes of cancelling such
Indebtedness and in exchange thereof such Debt Fund Affiliate may receive debt or equity securities of such entity or a direct or
indirect parent entity or subsidiary thereof that are otherwise permitted to be issued by such entity at such time (it being
understood that (x) any Initial Term Loans or Additional Term Loans so contributed shall, to the extent permitted by applicable
Requirements of Law, be retired and cancelled immediately upon contribution thereof and (y) any such contribution shall be treated
as a capital contribution that builds the Available Amount pursuant to clause (iii) of the definition thereof by an amount
equal to the fair market value (as determined by the Borrower in good faith) of the Initial Term Loans or Additional Term Loans so
contributed; provided that if the fair market value of such Initial Term Loans or Additional Term Loans cannot be determined
by the Borrower, the fair market value shall be deemed to be the purchase price of such Initial Term Loans or Additional Term Loans
paid by such Debt Fund Affiliate)); provided that upon any such cancellation, the aggregate outstanding principal amount of
the Initial Term Loans or Additional Term Loans shall be deemed reduced, as of the date of such contribution, by the full par value
of the aggregate principal amount of the Initial Term Loans or Additional Term Loans so contributed and cancelled, and each
principal repayment installment with respect to the Initial Term Loans or Additional Term Loans pursuant to Section 2.10(a) shall
be reduced pro rata by the full par value of the aggregate principal amount of Initial Term Loans or Additional Term Loans so
contributed and cancelled.
(h) Notwithstanding
anything to the contrary herein, at the election of the Borrower, Revolving Loans and Revolving Credit Commitments held by a
Defaulting Lender may be assigned to an Affiliated Lender without the need for the consent of any other Person, with the price of
such assignment being the lower of (i) par plus accrued and unpaid interest and commitment fees thereon and (ii) such lower amount
as agreed by the applicable Defaulting Lender and such Affiliated Lender; provided that Revolving Lenders that are not
Defaulting Lenders shall have the right to repurchase such assigned Revolving Loans and Revolving Credit Commitments from such
Affiliated Lender, with the price of such assignment being the lower of (i) par plus accrued and unpaid interest and commitment fees
thereon and (ii) such lower amount as agreed by such Revolving Lender and such Affiliated Lender; provided further that
the provisions of clause (g)(vi) above shall apply with respect to such Revolving Loans or Revolving Credit Commitments
acquired and held by an Affiliated Lender, other than an Affiliated Lender that is a Debt Fund Affiliate, in which case only the
limitation set forth in the final paragraph of Section 9.05(g) shall apply.
Section
9.06. Survival. All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in
the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letter of Credit regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent may have had notice or knowledge of any Default or Event of Default or incorrect representation
or warranty at the time any credit is extended hereunder, and shall continue in full force and effect until the Termination Date. The
provisions of Sections 2.15, 2.16, 2.17, 9.03 and 9.13 and Article 8 shall survive and remain
in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Revolving Credit Commitment or any Additional Commitment, the occurrence of the Termination
Date or the termination of this Agreement or any provision hereof but in each case, subject to the limitations set forth in this Agreement.
Section
9.07. Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and the Fee Letter constitute the entire agreement among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective when it has been executed by Holdings, the Borrower and the Administrative Agent and when
the Administrative Agent has received counterparts hereof which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted
assigns. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by email as a “.pdf” or
“.tif” attachment shall be effective as delivery of a manually executed counterpart of this Agreement.
Section
9.08. Severability. To the extent permitted by applicable Requirements of Law, any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity
of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section
9.09. Right of Setoff. At any time when an Event of Default exists, upon the written consent of the Administrative Agent and each
Issuing Bank, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Requirements
of Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other
obligations (in any currency) at any time owing by the Administrative Agent, such Issuing Bank or such Lender to or for the credit or
the account of the Borrower or any Loan Party against any of and all the Secured Obligations held by the Administrative Agent, such Issuing
Bank or such Lender, irrespective of whether or not the Administrative Agent, such Issuing Bank or such Lender shall have made any demand
under the Loan Documents and although such obligations may be contingent or unmatured or are owed to a branch or office of such Lender
or Issuing Bank different than the branch or office holding such deposit or obligation on such Indebtedness. Any applicable Lender or
Issuing Bank shall promptly notify the Borrower and the Administrative Agent of such set-off or application; provided that any
failure to give or any delay in giving such notice shall not affect the validity of any such set-off or application under this Section.
The rights of each Lender, each Issuing Bank and the Administrative Agent under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender, such Issuing Bank or the Administrative Agent may have.
Section
9.10. Governing Law; Jurisdiction; Consent to Service of Process.
(a) THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY OR
DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN
DOCUMENTS), WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED, THAT (I) THE INTERPRETATION OF THE DEFINITION OF “CLOSING
DATE MATERIAL ADVERSE EFFECT” AND THE DETERMINATION OF WHETHER A CLOSING DATE MATERIAL ADVERSE EFFECT HAS OCCURRED, (II) THE
DETERMINATION OF THE ACCURACY OF ANY SPECIFIED ACQUISITION AGREEMENT REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY
THEREOF MERGER SUB 1 OR ITS APPLICABLE AFFILIATE HAS A RIGHT TO TERMINATE ITS OBLIGATIONS UNDER THE ACQUISITION AGREEMENT OR DECLINE
TO CONSUMMATE THE ACQUISITION AND (III) THE DETERMINATION OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE
TERMS OF THE ACQUISITION AGREEMENT AND, IN ANY CASE, ANY CLAIM OR DISPUTE ARISING OUT OF ANY SUCH INTERPRETATION OR DETERMINATION OR
ANY ASPECT THEREOF, SHALL IN EACH CASE BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
(b) EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL
OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS
OF LAW, FEDERAL COURT; PROVIDED THAT WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE ACQUISITION
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY WHICH DOES NOT INVOLVE ANY CLAIMS AGAINST THE ARRANGERS, THE ISSUING BANKS, THE LENDERS
OR ANY INDEMNIFIED PERSON, THIS SENTENCE SHALL NOT OVERRIDE ANY JURISDICTION PROVISION IN THE ACQUISITION AGREEMENT. EACH PARTY HERETO
AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE
OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE
REQUIREMENTS OF LAW. EACH PARTY HERETO AGREES THAT THE ADMINISTRATIVE AGENT RETAINS THE RIGHT TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY
IN THE COURTS OF ANY OTHER JURISDICTION SOLELY IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT.
(c) EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
(d) TO
THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF
MAIL) DIRECTED TO IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01. EACH PARTY HERETO HEREBY WAIVES ANY
OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY LOAN DOCUMENT THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE REQUIREMENTS OF LAW.
Section
9.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS
OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
Section
9.12. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Section
9.13. Confidentiality. Each of the Administrative Agent, each Lender, each Issuing Bank and each Arranger agrees (and each Lender
agrees to cause its SPC, if any) to maintain the confidentiality of the Confidential Information (as defined below), except that Confidential
Information may be disclosed (a) to its and its Affiliates’ directors, officers, managers, employees, independent auditors, or
other experts and advisors, including accountants, legal counsel and other advisors (collectively, the “Representatives”)
on a confidential, “need to know” basis solely in connection with the transactions contemplated hereby and who are informed
of the confidential nature of the Confidential Information and are or have been advised of their obligation to keep the Confidential
Information of this type confidential; provided that such Person shall be responsible for its Affiliates’ and their Representatives’
compliance with this paragraph; provided, further, that unless the Borrower otherwise consents, no such disclosure shall
be made by the Administrative Agent, any Issuing Bank, any Arranger, any Lender or any Affiliate or Representative thereof to any Affiliate
or Representative of the Administrative Agent, any Issuing Bank, any Arranger, or any Lender that is a Disqualified Institution, (b)
upon the demand or request of any regulatory or governmental authority having jurisdiction over such Person or its Affiliates (in which
case such Person shall, except with respect to any audit or examination conducted by bank accountants or any Governmental Authority or
regulatory authority exercising examination or regulatory authority, to the extent permitted by applicable Requirements of Law, (i) inform
the Borrower promptly in advance thereof and (ii) ensure that any information so disclosed is accorded confidential treatment), (c) to
the extent compelled by legal process in, or reasonably necessary to, the defense of such legal, judicial or administrative proceeding,
in any legal, judicial or administrative proceeding or otherwise as required by applicable Requirements of Law (in which case such Person
shall (i) to the extent permitted by law, inform the Borrower promptly in advance thereof, (ii) ensure that any such information so disclosed
is accorded confidential treatment and (iii) allow the Borrower a reasonable opportunity to object to such disclosure in such proceeding),
(d) to any other party to this Agreement, (e) subject to an acknowledgment and agreement by the relevant recipient that the Confidential
Information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as otherwise reasonably
acceptable to the Borrower and the Administrative Agent, including as set forth in the Information Memorandum) in accordance with the
standard syndication process of the Arrangers or market standards for dissemination of the relevant type of information, which shall
in any event require “click through” or other affirmative action on the part of the recipient to access the Confidential
Information and acknowledge its confidentiality obligations in respect thereof, to (i) any Eligible Assignee of or Participant in, or
any prospective Eligible Assignee of or prospective Participant in, any of its rights or obligations under this Agreement, including
any SPC (in each case other than a Disqualified Institution), (ii) any pledgee referred to in Section 9.05, (iii) any actual or
prospective direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction (including any credit default
swap) or similar derivative product under which payments are to be made by reference to the Borrower and its Obligations, (iv) any actual
or prospective direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction (including any credit default
swap) or similar derivative product to which any Loan Party is a party and (v) subject to the Borrower’s prior approval of the
information to be disclosed (not to be unreasonably withheld or delayed), to Moody’s or S&P on a confidential basis in connection
with obtaining or maintaining ratings as required under Section 5.13, (f) with the prior written consent of the Borrower
and (g) to the extent the Confidential Information becomes publicly available other than as a result of a breach of this Section by such
Person, its Affiliates or their respective Representatives. For purposes of this Section, “Confidential Information”
means all information relating to Holdings, the Borrower and/or any of its subsidiaries and their respective businesses, the Sponsor,
the Transactions or, the Amendment No.
1 Transactions, the Amendment No. 2 Transactions or the Amendment No. 3 Transactions (including
any information obtained by the Administrative Agent, any Issuing Bank, any Lender or any Arranger, or any of their respective Affiliates
or Representatives, based on a review of the books and records relating to Holdings, the Borrower and/or any of its subsidiaries and
their respective Affiliates from time to time, including prior to the date hereof) other than any such information that is publicly available
to the Administrative Agent or any Arranger, Issuing Bank, or Lender on a non-confidential basis prior to disclosure by Holdings, the
Borrower or any of its subsidiaries. For the avoidance of doubt, in no event shall any disclosure of any Confidential Information be
made to Person that is a Disqualified Institution at the time of disclosure.
Section
9.14. No Fiduciary Duty. Each of the Administrative Agent, the Arrangers, each Lender, each Issuing Bank and their respective
Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that
conflict with those of the Loan Parties, their stockholders and/or their respective affiliates. Each Loan Party agrees that nothing
in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other
implied duty between any Lender, on the one hand, and such Loan Party, its respective stockholders or its respective affiliates, on
the other. Each Loan Party acknowledges and agrees that: (i) the transactions contemplated by the Loan Documents (including the
exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the
one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender
has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its respective stockholders or its respective
affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the
process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Loan Party, its
respective stockholders or its respective Affiliates on other matters) or any other obligation to any Loan Party except the
obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or
fiduciary of such Loan Party, its respective management, stockholders, creditors or any other Person. Each Loan Party acknowledges
and agrees that such Loan Party has consulted its own legal, tax and financial advisors to the extent it deemed appropriate and that
it is responsible for making its own independent judgment with respect to such transactions and the process leading
thereto.
Section
9.15. Several Obligations. The respective obligations of the Lenders hereunder are several and not joint and the failure of any
Lender to make any Loan, issue any Letter of Credit or perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder.
Section
9.16. USA PATRIOT Act. Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Loan Parties
that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies each
Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender to identify
such Loan Party in accordance with the USA PATRIOT Act.
Section
9.17. Disclosure. Each Loan Party, each Issuing Bank and each Lender hereby acknowledges and agrees that the Administrative Agent
and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with any of the Loan
Parties and their respective Affiliates.
Section
9.18. Appointment for Perfection. Each Lender hereby appoints each other Lender and each Issuing Bank as its agent for the purpose
of perfecting Liens for the benefit of the Administrative Agent, the Issuing Banks and the Lenders, in assets which, in accordance with
Article 9 of the UCC or any other applicable Requirements of Law can be perfected only by possession. If any Lender or Issuing Bank (other
than the Administrative Agent) obtains possession of any Collateral, such Lender or such Issuing Bank shall notify the Administrative
Agent thereof; and, promptly upon the Administrative Agent’s request therefor shall deliver such Collateral to the Administrative
Agent or otherwise deal with such Collateral in accordance with the Administrative Agent’s instructions.
Section
9.19. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable
to any Loan or Letter of Credit, together with all fees, charges and other amounts which are treated as interest on such Loan or Letter
of Credit under applicable law (collectively, the “Applicable Charges”), shall exceed the maximum lawful rate (the
“Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender or Issuing Bank holding
such Loan or Letter of Credit in accordance with applicable Requirements of Law, the rate of interest payable in respect of such Loan
or Letter of Credit hereunder, together with all Applicable Charges payable in respect thereof, shall be limited to the Maximum Rate
and, to the extent lawful, the interest and Applicable Charges that would have been payable in respect of such Loan or Letter of Credit
but were not payable as a result of the operation of this Section shall be cumulated and the interest and Applicable Charges payable
to such Lender or Issuing Bank in respect of other Loans or Letters of Credit or periods shall be increased (but not above the Maximum
Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender or Issuing Bank.
Section
9.20. Intercreditor Agreement. REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT. EACH LENDER AND ISSUING BANK HEREUNDER
AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND AUTHORIZES
AND INSTRUCTS THE ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS “FIRST LIEN CREDIT AGREEMENT COLLATERAL
AGENT” AND ON BEHALF OF SUCH LENDER OR ISSUING BANK. THE PROVISIONS OF THIS SECTION 9.20 ARE NOT INTENDED TO SUMMARIZE
ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AGREEMENT, THE FORM OF WHICH IS ATTACHED AS AN EXHIBIT TO THIS AGREEMENT. REFERENCE
MUST BE MADE TO THE INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER AND ISSUING BANK IS
RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER
THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER OR ISSUING BANK AS TO THE SUFFICIENCY OR
ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT. THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO
THE LENDERS UNDER THE SECOND LIEN CREDIT AGREEMENT TO EXTEND CREDIT THEREUNDER AND SUCH LENDERS ARE INTENDED THIRD PARTY
BENEFICIARIES OF SUCH PROVISIONS AND THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.
Section
9.21. Conflicts. Notwithstanding anything to the contrary contained herein or in any other Loan Document (but excluding the Intercreditor
Agreement), in the event of any conflict or inconsistency between this Agreement and any other Loan Document (excluding the Intercreditor
Agreement), the terms of this Agreement shall govern and control; provided that in the case of any conflict or inconsistency between
the Intercreditor Agreement and any other Loan Document, the terms of the Intercreditor Agreement shall govern and control.
Section
9.22. Release of Guarantors. Notwithstanding anything in Section 9.02(b) to the contrary, (a) any Subsidiary Guarantor
shall automatically be released from its obligations hereunder (and its Loan Guaranty shall be automatically released) (i) upon the consummation
of any permitted transaction or series of related transactions if as a result thereof such Subsidiary Guarantor ceases to be a Restricted
Subsidiary (included by merger or dissolution) or becomes an Excluded Subsidiary as a result of a single transaction or series of related
transactions permitted hereunder; or (ii) upon the occurrence of the Termination Date, (b) any Subsidiary Guarantor that qualifies as
an “Excluded Subsidiary” shall be released from its obligations hereunder (and its Loan Guaranty shall be automatically released)
by the Administrative Agent promptly following the request therefor by the Borrower and/or (c) the Person constituting Holdings immediately
prior to the consummation of a Holdings Reorganization Transaction whereby the existing “Holdings” is not intended to remain
as such shall be automatically released from its obligations hereunder (and its Loan Guaranty shall be automatically released) upon the
consummation of such Holdings Reorganization Transaction; provided, that the release of any Subsidiary Guarantor from its obligations
under the Loan Guaranty if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition
thereof shall only be permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect
to such release and the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower
is deemed to have made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an
amount equal to the portion of the fair market value of the net assets of such Person attributable to the Borrower’s equity interest
therein as estimated by the Borrower in good faith and such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f))
at such time. In connection with any such release, the Administrative Agent shall, subject to receipt of an officer’s certificate
from the Borrower certifying that such transaction and release are permitted hereunder, promptly execute and deliver to the relevant
Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence termination or
release. Any execution and delivery of documents pursuant to the preceding sentence of this Section 9.22 shall be without recourse
to or warranty by the Administrative Agent.
Section
9.23. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in
any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges
that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may
be subject to the write-down and conversion powers of an EEA Resolution Authority and each party hereto agrees and consents to, and
acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may
be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its
parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
or
(iii) the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution
Authority.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
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A-B MERGER SUB I INC., as Holdings
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By:
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Name:
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Title:
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A-B MERGER SUB II LLC, as the Borrower
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By:
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Name:
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Title:
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Signature Page to First Lien Credit Agreement
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BOWLMOR AMF CORP., as Holdings
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By:
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Name:
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Title:
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KINGPIN INTERMEDIATE HOLDINGS LLC, as the
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Borrower
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By:
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Name:
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Title:
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Signature Page to First Lien Credit Agreement
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JPMORGAN CHASE BANK, N.A., as Administrative Agent, Issuing Bank and as a Lender
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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Signature Page to First Lien Credit Agreement
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GOLDMAN SACHS BANK USA
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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Signature Page to First Lien Credit Agreement
Exhibit
10.14
EXECUTION
VERSION
FOURTH
AMENDMENT (this “Amendment”), dated as of June 10, 2020, to the First Lien Credit Agreement dated as of July 3,
2017 (as amended as of March 28, 2018, July 5, 2018 and November 20, 2019, and as further amended, restated, supplemented or otherwise
modified from time to time prior to the date hereof, the “Credit Agreement”) among Kingpin Intermediate Holdings LLC,
as Borrower (as the successor to the initial borrower A-B Merger Sub II LLC), Bowlero Corp. (f/k/a Bowlmor AMF Corp.), as Holdings (as
the successor to initial Holdings A-B Merger Sub I Inc.), the financial institutions party thereto as Lenders, JPMorgan Chase Bank, N.A.
(“JPM”), as Administrative Agent and the other parties thereto.
WHEREAS,
the Administrative Agent, Holdings, the Borrower and certain Revolving Lenders (who collectively represent the Required Revolving Lenders)
desire to make certain amendments and other changes to the Credit Agreement, including to suspend the Financial Covenant for the duration
of the Covenant Waiver Period.
WHEREAS,
in connection with the foregoing, the Administrative Agent, Holdings, the Borrower and the Revolving Lenders party hereto (who collectively
represent the Required Revolving Lenders) desire to memorialize the terms of this Amendment and to make certain other changes set forth
herein by amending the Credit Agreement in accordance with Section 9.02 thereof.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Defined Terms. Capitalized terms used and not otherwise defined herein have the meanings assigned to them in the Credit Agreement
as amended hereby.
SECTION
2. Amendments. In accordance with Section 9.02 of the Credit Agreement and effective as of the Fourth Amendment Effective Date, the
Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken
text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the conformed copy of the Credit Agreement attached as Annex A hereto.
SECTION
3. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, Holdings, the Borrower and each
other Loan Party each represents and warrants solely to the other parties hereto on the Fourth Amendment Effective Date that:
(a)
(i) the execution, delivery and performance by such Loan Party of this Amendment (and the Credit Agreement, as amended hereby) is within
such Loan Party’s corporate or other organizational power and has been duly authorized by all necessary corporate or other organizational
action of each such Loan Party; and (ii) this Amendment has been duly executed and delivered by such Loan Party and is a legal, valid
and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to the Legal Reservations; and
(b)
the execution and delivery of this Amendment (and the Credit Agreement, as amended hereby) by each Loan Party and the performance by
such Loan Party thereof (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental
Authority, except (A) such as have been obtained or made and are in full force and effect, (B) in connection with the Perfection Requirements
or (C) such consents, approvals, registrations, filings, or other actions the failure to obtain or make which would not be reasonably
expected to have a Material Adverse Effect, (ii) will not violate any (A) of such Loan Party’s Organizational Documents or (B)
Requirements of Law applicable to such Loan Party which, in the case of this clause (ii), would reasonably be expected to have a Material
Adverse Effect, and (iii) will not violate or result in a default under (A) the Credit Agreement or (B) any other material Contractual
Obligation in respect of Indebtedness having an aggregate principal amount exceeding the Threshold Amount to which such Loan Party is
a party which, in the case of this clause (B), would reasonably be expected to result in a Material Adverse Effect.
SECTION
4. Fourth Amendment Effective Date. This Amendment shall become effective as of the first date (the “Fourth Amendment Effective
Date”) on which each of the following conditions shall have been satisfied (or waived by the Administrative Agent):
(a)
the Administrative Agent shall have received a counterpart signature page of this Amendment duly executed by Holdings, the Borrower and
each Loan Party, the Administrative Agent and certain Revolving Lenders, who shall, collectively, represent the Required Revolving Lenders;
(b)
all expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent (including pursuant to Section 9.03 of
the Credit Agreement and pursuant to Section 6 hereof) on or before the Fourth Amendment Effective Date shall have been (or shall substantially
contemporaneously be) paid in full in cash (to the extent invoiced at least three Business Days prior to the Fourth Amendment Effective
Date);
(c)
the representations and warranties set forth in Article 3 of the Credit Agreement shall be true and correct in all material respects
on and as of the Fourth Amendment Effective Date with the same effect as though such representations and warranties had been made on
the Fourth Amendment Effective Date; provided that to the extent that any representation and warranty specifically refers to a given
date or period, it shall be true and correct in all material respects as of such date or for such period; and
(d)
no Event of Default under Section 7 of the Credit Agreement shall be continuing at the time of or immediately after giving effect to
the effectiveness of this Amendment.
By
executing this Amendment, the Required Revolving Lenders and the Administrative Agent shall be deemed to have consented to, approved
or accepted, or be satisfied with, or have waived, each of the preceding conditions. The Administrative Agent shall post a notice of
effectiveness and occurrence of the Fourth Amendment Effective Date, which shall be conclusive. The Administrative Agent and the Revolving
Lenders party hereto (who collectively represent the Required Revolving Lenders) acknowledge and agree that the Fourth Amendment Effective
Date is June 10, 2020.
SECTION
5. Effect of Amendment.
(a)
Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise
affect the rights and remedies of the Lenders or Agents under the Credit Agreement or any other Loan Document, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any
other provision of the Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower to a consent to, or a waiver, amendment, modification
or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other
Loan Document in similar or different circumstances.
(b)
From and after the Fourth Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein”, or words of like import, and each reference to the “Credit Agreement” in any
other Loan Document shall be deemed a reference to the Credit Agreement as amended hereby.
(c)
This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
(d)
Each party hereto acknowledges that this Amendment constitutes all notices or requests required under Section 9.02 of the Credit Agreement.
(e)
This Amendment shall not constitute a novation of the Credit Agreement or any other Loan Document.
SECTION
6. Expenses. The Borrower agrees to reimburse the Administrative Agent for its reasonable and documented out-of-pocket expenses incurred
by it in connection with this Amendment, including the reasonable and documented fees, charges and disbursements of Cahill Gordon &
Reindel LLP, counsel for the Administrative Agent.
SECTION
7. Amendments; Severability. (a) Once effective, this Amendment may not be amended nor may any provision hereof be waived except
pursuant to Section 9.02 of the Credit Agreement or as otherwise agreed by the Borrower and the Required Revolving Lenders (without the
need for the consent of the Required Lenders or any other Lender).
(b)
If any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the
remaining provisions of this Amendment shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction
shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION
8. Ratification and Reaffirmation. Each Loan Party hereby ratifies and reaffirms: (a) its Obligations in respect of the Credit Agreement
and each of the other Loan Documents to which it is a party and all of the covenants, duties, indebtedness and liabilities under the
Credit Agreement and the other Loan Documents to which it is a party, (b) its prior grant and the validity of the Liens granted by it
pursuant to the Collateral Documents, with all such Liens continuing in full force and effect after giving effect to this Amendment and
(c) the Liens and security interests created in favor of the Administrative Agent for the benefit of the Secured Parties pursuant to
each Collateral Document; which Liens shall continue to secure the Secured Obligations, in each case, on and subject to the terms and
conditions set forth in the Credit Agreement and the other Loan Documents.
SECTION
9. GOVERNING LAW; Waiver of Jury Trial; Jurisdiction. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions of Sections 9.10
and 9.11 of the Credit Agreement, as amended by this Amendment, are incorporated herein by reference, mutatis mutandis.
SECTION
10. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this
Amendment.
SECTION
11. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. Delivery by facsimile or other electronic imaging means of an executed
counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.
SECTION
12. No Recourse. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Credit Agreement (as amended
hereby), including with respect to any references to the Sponsor Preferred Stock Subscription Agreement and/or any Sponsor Subordinated
Debt, in no event will the Sponsor, or any Investor or any of their Affiliates (other than the Loan Parties) have any liability with
respect to obligations under the Credit Agreement (as amended hereby) or any other Loan Documents and/or any transaction that is expressly
permitted (or not prohibited by) the terms of the Amended Loan Documents. For the further avoidance of doubt, none of the Secured Parties
are, or shall be, third party beneficiaries (intended or otherwise) or the Sponsor Preferred Stock Subscription Agreement and/or any
documentation in respect of any Sponsor Subordinated Debt.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto
duly authorized as of the date first written above.
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KINGPIN INTERMEDIATE HOLDINGS LLC,
as Borrower
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By:
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/s/ Brett I. Parker
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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BOWLERO CORP.,
as Holdings
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By:
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/s/ Brett I. Parker
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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[Signature
Page to Fourth Amendment]
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Subsidiary Guarantors:
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Kingpin Intermediate LLC
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Strike Holdings LLC
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Bowlmor Lanes LLC
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Bowlmor Times Square, LLC
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Westwood Lanes, LLC
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Strike Miami, LLC
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Strike Cupertino VFP, LLC
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Strike Tustin TDTL, LLC
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Strike Consulting, LLC
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Strike Long Island, LLC
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Bowlero Jupiter Lanes, LLC
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Leiserv, LLC
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Brunswick Recreation LLC
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Brunswick Zone XL Colorado
Springs, LLC
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Brunswick Zone XL Rockford LLC
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Bowlero Scottsdale, LLC
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Bowlero Leesburg, LLC
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Bowlero Dania, LLC
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AMF Worldwide Bowling Centers
Holdings Inc.
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AMF Bowling Centers Holdings
Inc.
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AMF Bowling Centers, Inc.
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Texas Operations Holding Company,
Inc.
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AMF Bowling Worldwide, Inc.
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Goode Bowling LLC
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AMF Beverage Company of Oregon,
Inc.
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King Louie Lenexa, Inc.
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Bush River Corporation
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L’aigle D’or, Inc.
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Brunswick Riverview Club, Inc.
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Perry Hall Lounge, Inc.
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By:
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/s/
Brett I. Parker
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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[Signature
Page to Fourth Amendment]
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300,
Inc.
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Texas
Operations, LLC
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By:
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/s/ William
Dufour
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Name:
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William Dufour
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Title:
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President
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[Signature
Page to Fourth Amendment]
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The Columbia Lounge, Inc.
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By: :
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/s/ Thomas
F. Shannon
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Name:
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Thomas F. Shannon
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Title:
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President
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[Signature
Page to Fourth Amendment]
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JPMORGAN CHASE BANK, N.A.,
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as Administrative Agent, Revolving Lender,
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Swingline Lender and Issuing Bank
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By:
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/s/ Daniel
Luby
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Name:
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Daniel Luby
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Title:
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Vice President
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[Signature
Page to Fourth Amendment]
ANNEX
A
AMENDMENTS
TO CREDIT AGREEMENT
[Attached]
ANNEX
A
Adjusted
marked version reflecting changes made pursuant to the SecondFourth
Amendment.
Added
text shown underscored; deleted text shown strikethrough.
FIRST
LIEN CREDIT AGREEMENT
Dated
as of July 3, 2017
(as
amended as of March 28, 2018, July 5, 2018 and, November
20, 2019 and June 10, 2020)
among
A-B
MERGER SUB II LLC
(to
be merged with and into KINGPIN INTERMEDIATE HOLDINGS LLC),
as the Borrower,
A-B
MERGER SUB I INC.
(to
be merged with and into BOWLMOR AMF CORP.),
as Holdings,
THE
FINANCIAL INSTITUTIONS PARTY HERETO,
as
Lenders,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent, Swingline Lender and an Issuing Bank,
and
JPMORGAN
CHASE BANK, N.A.,
CREDIT SUISSE SECURITIES (USA) LLC and
GOLDMAN
SACHS BANK USA,
as
Joint Lead Arrangers
and Joint Bookrunners
TABLE
OF CONTENTS
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Page
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Article
1
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DEFINITIONS
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2
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Section 1.01.
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Defined Terms
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2
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Section 1.02.
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Classification of Loans and Borrowings
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75
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Section 1.03.
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Terms Generally
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75
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Section 1.04.
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Accounting Terms; GAAP
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76
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Section 1.05.
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Effectuation of Transactions
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80
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Section 1.06.
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Timing of Payment and Performance
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80
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Section 1.07.
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Times of Day
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80
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Section 1.08.
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Currency Equivalents Generally
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80
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Section 1.09.
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Cashless Rollovers
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81
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Section 1.10.
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Alternative Currencies
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81
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Article
2
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THE CREDITS
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82
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Section 2.01.
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Commitments
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82
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Section 2.02.
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Loans and Borrowings
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83
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Section 2.03.
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Requests for Borrowings
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84
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Section 2.04.
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Swingline Loans
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85
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Section 2.05.
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Letters of Credit
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86
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Section 2.06.
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[Reserved]
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91
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Section 2.07.
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Funding of Borrowings
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91
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Section 2.08.
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Type; Interest Elections
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92
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Section 2.09.
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Termination and Reduction of Commitments
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93
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Section 2.10.
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Repayment of Loans; Evidence of Debt
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94
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Section 2.11.
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Prepayment of Loans
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96
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Section 2.12.
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Fees
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102
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Section 2.13.
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Interest
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103
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Section 2.14.
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Alternate Rate of Interest
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104
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Section 2.15.
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Increased Costs
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105
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Section 2.16.
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Break Funding Payments
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106
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Section 2.17.
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Taxes
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107
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Section 2.18.
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Payments Generally; Allocation of Proceeds;
Sharing of Payments
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111
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Section 2.19.
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Mitigation Obligations; Replacement
of Lenders
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113
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Section 2.20.
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Illegality
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114
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Section 2.21.
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Defaulting Lenders
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114
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Section 2.22.
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Incremental Credit Extensions
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117
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Section 2.23.
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Extensions of Loans and Revolving Credit Commitments
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122
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Article
3
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REPRESENTATIONS AND WARRANTIES
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125
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Section 3.01.
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Organization; Powers
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125
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Section 3.02.
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Authorization; Enforceability
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125
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Section 3.03.
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Governmental Approvals; No Conflicts
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125
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Section 3.04.
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Financial Condition; No Material Adverse
Effect
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125
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Section 3.05.
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Properties
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126
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Section 3.06.
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Litigation and Environmental Matters
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126
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Section 3.07.
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Compliance with Laws
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127
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Section 3.08.
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Investment Company Status
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127
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Section 3.09.
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Taxes
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127
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Section 3.10.
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ERISA
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127
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Section 3.11.
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Disclosure
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127
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Section 3.12.
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Solvency
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128
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Section 3.13.
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Capitalization and Subsidiaries
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128
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Section 3.14.
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Security Interest in Collateral
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128
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Section 3.15.
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Labor Disputes
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128
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Section 3.16.
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Federal Reserve Regulations
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129
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Section 3.17.
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Sanctions and Anti-Corruption Laws
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129
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Article
4
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CONDITIONS
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129
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Section 4.01.
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Closing Date
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129
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Section 4.02.
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Each Credit Extension
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133
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Article
5
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AFFIRMATIVE COVENANTS
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133
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Section 5.01.
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Financial Statements and Other Reports
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134
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Section 5.02.
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Existence
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137
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Section 5.03.
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Payment of Taxes
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137
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Section 5.04.
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Maintenance of Properties
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137
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Section 5.05.
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Insurance
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138
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Section 5.06.
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Inspections
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138
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Section 5.07.
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Maintenance of Book and Records
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138
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Section 5.08.
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Compliance with Laws
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139
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Section 5.09.
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Hazardous Materials Activity
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139
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Section 5.10.
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Designation of Subsidiaries
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140
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Section 5.11.
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Use of Proceeds
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140
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Section 5.12.
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Covenant to Guarantee Obligations and
Give Security
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141
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Section 5.13.
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Maintenance of Ratings
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142
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Section 5.14.
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Maintenance of Fiscal Year
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142
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Section 5.15.
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Further Assurances
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142
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Section 5.16.
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Conduct of Business
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142
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Section 5.17.
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Annual Lender Call
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142
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Section 5.18.
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Post-Closing Actions
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143
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Article
6
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NEGATIVE COVENANTS
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143
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Section
6.01.
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Indebtedness
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143
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Section
6.02.
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Liens
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148
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Section
6.03.
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No Further Negative Pledges
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154
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Section
6.04.
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Restricted Payments; Certain
Payments of Indebtedness
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156
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Section
6.05.
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[Reserved]
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163
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Section
6.06.
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Investments
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163
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Section
6.07.
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Fundamental Changes; Disposition
of Assets
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168
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Section
6.08.
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Sale and Lease-Back Transactions
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173
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Section
6.09.
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Transactions with Affiliates
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173
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Section 6.10.
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[Reserved]
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176
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Section 6.11.
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[Reserved]
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176
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Section 6.12.
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Amendments of or Waivers with Respect
to Restricted Debt
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176
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Section 6.13.
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[Reserved]
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176
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Section 6.14.
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Permitted Activities of Holdings
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176
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Section 6.15.
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Financial Covenant
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178
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Article
7
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EVENTS OF DEFAULT
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183
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Section 7.01.
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Events of Default
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183
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Article
8
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THE ADMINISTRATIVE AGENT
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186
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Article
9
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MISCELLANEOUS
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194
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Section 9.01.
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Notices
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194
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Section 9.02.
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Waivers; Amendments
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196
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Section 9.03.
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Expenses; Indemnity
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203
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Section 9.04.
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Waiver of Claim
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205
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Section 9.05.
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Successors and Assigns
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205
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Section 9.06.
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Survival
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215
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Section 9.07.
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Counterparts; Integration; Effectiveness
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216
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Section 9.08.
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Severability
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216
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Section 9.09.
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Right of Setoff
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216
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Section 9.10.
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Governing Law; Jurisdiction; Consent to Service of Process
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216
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Section 9.11.
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Waiver of Jury Trial
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218
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Section 9.12.
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Headings
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218
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Section 9.13.
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Confidentiality
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218
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Section 9.14.
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No Fiduciary Duty
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219
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Section 9.15.
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Several Obligations
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219
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Section 9.16.
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USA PATRIOT Act
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219
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Section 9.17.
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Disclosure
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219
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Section 9.18.
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Appointment for Perfection
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219
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Section 9.19.
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Interest Rate Limitation
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219
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Section 9.20.
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Intercreditor Agreement
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220
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Section 9.21.
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Conflicts
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220
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Section 9.22.
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Release of Guarantors
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220
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Section 9.23.
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Acknowledgement and Consent to Bail-In of EEA Financial
Institutions
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221
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SCHEDULES:
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Schedule 1.01(a)
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–
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Commitment Schedule
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Schedule 1.01(b)
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–
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Existing Letters of Credit
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Schedule 1.01(c)
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–
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[Reserved]
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Schedule 1.01(d)
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–
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[Reserved]
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Schedule 1.01(e)
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–
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Existing Credit Facilities Excluded Properties
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Schedule 1.01(f)
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–
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Excluded Properties
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Schedule 1.01(g)
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–
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Liquor License Subsidiaries
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Schedule 3.06
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–
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Litigation and Environmental Matters
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Schedule 3.13
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–
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Subsidiaries
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Schedule 5.10
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–
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Unrestricted Subsidiaries
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Schedule 5.18
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–
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Post-Closing Actions
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Schedule 6.01
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–
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Existing Indebtedness
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Schedule 6.02
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–
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Existing Liens
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Schedule 6.03
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–
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Negative Pledges
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Schedule 6.06
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–
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Existing Investments
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Schedule 6.07
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–
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Certain Dispositions
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Schedule 9.01
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–
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Borrower’s Website
Address for Electronic Delivery
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EXHIBITS:
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Exhibit A-1
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–
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Form of Assignment and Assumption
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Exhibit A-2
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–
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Form of Affiliated Lender Assignment and Assumption
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Exhibit B
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–
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Form of Borrowing Request
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Exhibit C
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–
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Form of Compliance Certificate
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Exhibit D
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–
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Form of Interest Election Request
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Exhibit E
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–
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Form of Perfection Certificate
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Exhibit F
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–
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[Reserved]
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Exhibit G
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–
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Form of Promissory Note
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Exhibit H-1
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–
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Form of Trademark Security Agreement
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Exhibit H-2
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–
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Form of Patent Security Agreement
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Exhibit H-3
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–
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Form of Copyright Security Agreement
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Exhibit I
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–
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Form of Guaranty Agreement
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Exhibit J
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–
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Form of Security Agreement
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Exhibit K
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–
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Form of Letter of Credit Request
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Exhibit L-1
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–
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Form of U.S. Tax Compliance Certificate (For Foreign
Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
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Exhibit L-2
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–
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Form of U.S. Tax Compliance Certificate (For Foreign
Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
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Exhibit L-3
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–
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Form of U.S. Tax Compliance Certificate (For Foreign
Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
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Exhibit L-4
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–
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Form of U.S. Tax Compliance Certificate (For Foreign
Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
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Exhibit M
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–
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Form of Solvency Certificate
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Exhibit N
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–
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Form of Intercreditor Agreement
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FIRST
LIEN CREDIT AGREEMENT
FIRST
LIEN CREDIT AGREEMENT, dated as of July 3, 2017 and as amended pursuant to Amendment No. 1, Amendment No. 2 and,
Amendment No. 3 and Amendment No. 4 referred to below (as further amended, supplemented
or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), by and among A-B Merger
Sub I Inc., a Delaware corporation (“Merger Sub 1”), A-B Merger Sub II LLC, a Delaware limited liability company (“Merger
Sub 2”), the Lenders from time to time party hereto, JPMorgan Chase Bank, N.A. (“JPM”), in its capacities
as administrative agent for the Lenders and collateral agent for the Secured Parties (in such capacities, together with its successor
and permitted assigns, the “Administrative Agent”), the Swingline Lender and an Issuing Bank, Credit Suisse AG, Cayman
Islands Branch (“Credit Suisse”), in its capacity as an Issuing Bank, and Goldman Sachs Bank USA (“GS Bank”),
in its capacity as an Issuing Bank, with JPM, Credit Suisse Securities (USA) LLC and Goldman Sachs Bank USA, as joint lead arrangers
and joint bookrunners (in such capacities, collectively, the “Arrangers”).
RECITALS
A.
Pursuant to the terms of the Acquisition Agreement, on the Closing Date, (i) Parent acquired, by merger of Merger Sub 1 with and into
the Target, a majority of the issued and outstanding equity interests of the Target (with the Target being the surviving entity of such
merger) (the “Merger Sub 1 Merger”) and (ii) Merger Sub 2 merged with and into Kingpin Intermediate (with Kingpin
Intermediate being the surviving entity of such merger) (the “Merger Sub 2 Merger”).
B.
To consummate the Transactions, certain of the Investors directly or indirectly (including by way of repayment of existing debt of the
Target and/or payments to existing shareholders of the Target) made cash contributions to Merger Sub 1 and/or the Target (with all such
cash contributions to be in the form of (i) common equity, (ii) the Series A Preferred Stock, (iii) Qualified Capital Stock or (iv) other
preferred Capital Stock or other instruments (in the case of clause (iv), having terms reasonably acceptable to the Administrative
Agent) (any such equity or instruments “Permitted Equity”), which cash contributions were in an aggregate amount that,
when taken together with all equity interests (including restricted stock or options) retained, rolled-over or directly or indirectly
invested in Permitted Equity of Holdings and all Permitted Equity of Holdings issued to, or otherwise directly or indirectly held or
acquired by, any shareholders, directors or management of the Target (together, the “Equity Contribution”) was not
less than 30% (the “Minimum Equity Percentage”) of the sum of (i) the aggregate principal amount of the Credit Facilities
and Second Lien Facility funded on the Closing Date (excluding (A) amounts drawn under the Revolving Facility on the Closing Date for
working capital purposes and/or purchase price adjustments, to fund Transaction Costs or to replace, backstop or cash collateralize existing
letters of credit and (B) any letters of credit outstanding on the Closing Date) and
(ii)
the Equity Contribution.
C.
To consummate the Transactions on the Closing Date, the Borrower requested that the Lenders under this Agreement as of such date (such
agreement as in effect immediately prior to the Amendment No. 34
Effective Date, the “Existing Credit Agreement”) originally extend credit in the form of (a) Initial Term
Loans (excluding the Amendment No. 1 Incremental Term Loans, and for the avoidance of doubt, the Amendment No. 2 Term Loans and the Amendment
No. 3 Incremental Term Loans) in an original aggregate principal amount equal to $585,000,000 and (b) a Revolving Facility with an available
amount of $50,000,000, in each case, subject to increase as provided herein.
D.
To consummate the Transactions on the Closing Date, the Borrower also borrowed term loans in an original aggregate principal amount equal
to $110,000,000 under the Second Lien Credit Agreement.
E.
The Lenders under the Existing Credit Agreement were willing to extend the Initial Term Loans (excluding the Amendment No. 1 Incremental
Term Loans, and for the avoidance of doubt, the Amendment No. 2 Term Loans and the Amendment No. 3 Inccremental Term Loans) and to make
available the Revolving Facility, in each case on the terms and subject to the conditions set forth therein.
F.
To consummate certain transactions on the Amendment No. 1 Effective Date, the Borrower borrowed Incremental Term Loans in an original
aggregate principal amount equal to
$113,000,000
pursuant to Amendment No. 1.
G.
Holdings, the Borrower, the Administrative Agent and the Lenders party thereto entered into that certain Second Amendment (“Amendment
No. 2”), dated as of July 5, 2018 (the “Amendment No. 2 Effective Date”), under which the Amendment No.
2 Term Lenders (as hereinafter defined) extended credit to the Borrower in the form of Amendment No. 2 Term Loans (as hereinafter defined)
in an original aggregate principal amount equal to $715,000,000.
H.
Pursuant to Amendment No. 2, the Administrative Agent, Holdings, the Borrower and the Amendment No. 2 Term Lenders agreed to amend
the Existing Credit Agreement certain amendments
as provided in Amendment No. 2.
I.
Holdings, the Borrower, the Administrative Agent and the Lenders party thereto have
entered into that certain Third Amendment (“Amendment No. 3”), dated as of November 20, 2019 (the “Amendment
No. 3 Effective Date”), under which the Amendment No. 3 Incremental Term Lenders (as hereinafter defined) are
extendingextended credit to the Borrower in the
form of Amendment No. 3 Incremental Term Loans (as hereinafter defined) in an original aggregate principal amount equal to
$105,000,000.
J.
Pursuant to Amendment No. 3, the Administrative Agent, Holdings, the Borrower and the Amendment No. 3 Incremental Term Lenders agreed
to certain amendments as provided in Amendment No. 3.
K.
Holdings, the Borrower, the Administrative Agent and the Revolving Lenders party thereto (who constitute the Required Revolving Lenders)
have entered into that certain Fourth Amendment (“Amendment No. 4”) dated as of June 10, 2020 (the “Amendment
No. 4 Effective Date”), pursuant to which Holdings, the Borrower and such Revolving Lenders have agreed to amend
the Existing Credit Agreement as
provided in Amendment No. 4.
JL.
Accordingly, the parties hereto agree as follows:
ARTICLE
1 DEFINITIONS
Section
1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at
a rate determined by reference to the Alternate Base Rate.
“Acceptable
Intercreditor Agreement” means the Intercreditor Agreement, a Market Intercreditor Agreement, or another intercreditor agreement
that is reasonably satisfactory to the Administrative Agent (which may, if applicable, consist of a payment “waterfall”).
“ACH”
means automated clearing house transfers.
“Acquisition”
means the Mergers and the other transactions contemplated by the Acquisition Agreement.
“Acquisition
Agreement” means that certain Agreement and Plan of Merger, dated as of June 6, 2017, by and among, inter alios, Parent,
Merger Sub 1, Merger Sub 2, the Target and the other Persons party thereto.
“Additional
Agreement” has the meaning assigned to such term in Article 8.
“Additional
Commitment” means any commitment hereunder added pursuant to Sections 2.22, 2.23 or 9.02(c) (including,
for the avoidance of doubt, the Amendment No. 2 Term Loan Commitments).
“Additional
Credit Facilities” means any credit facilities added pursuant to Sections 2.22, 2.23 or 9.02(c).
“Additional
Lender” has the meaning assigned to such term in Section 2.22(b).
“Additional
Letter of Credit Facility” means any letter of credit facility established by the Borrower and/or any Restricted Subsidiary
outside of this Agreement to obtain letters of credit required by customers, suppliers or landlords or otherwise required in the ordinary
course of business.
“Additional
Loans” means any Additional Revolving Loans and any Additional Term Loans.
“Additional
Revolving Credit Commitments” means any revolving credit commitment added pursuant to Sections 2.22, 2.23 or
9.02(c)(ii).
“Additional
Revolving Credit Exposure” means, with respect to any Person at any time, the aggregate outstanding principal amount at such
time of all Additional Revolving Loans of such Person, plus the aggregate amount at such time of such Person’s LC Exposure
and Swingline Exposure, in each case, attributable to its Additional Revolving Credit Commitment.
“Additional
Revolving Facility” means any revolving credit facility added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Revolving Lender” means any Lender with an Additional Revolving Credit Commitment or any Additional Revolving Credit Exposure.
“Additional
Revolving Loans” means any revolving loan added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Term Loan Commitments” means any term loan commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(i)
(including, for the avoidance of doubt, the Amendment No. 2 Term Loan Commitment).
“Additional
Term Loans” means any term loan added pursuant to Section 2.22, 2.23 or 9.02(c)(i) (including, for the
avoidance of doubt, the Amendment No. 2 Term Loans and the Amendment No. 3 Incremental Term Loans).
“Adjustment
Date” means the date of delivery of financial statements required to be delivered pursuant to Section 5.01(a) or Section
5.01(b), as applicable.
“Administrative
Agent” has the meaning assigned to such term in the preamble to this Agreement.
“Administrative
Questionnaire” has the meaning assigned to such term in Section 2.22(d). “Adverse Proceeding” means
any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not
purportedly on behalf of Holdings, the Borrower or any of its Restricted Subsidiaries) at law or in equity, or before or by any Governmental
Authority, domestic or foreign, whether pending or, to the knowledge of Holdings, the Borrower or any of its Restricted Subsidiaries,
threatened in writing, against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries or any property of Holdings,
the Borrower or any of its Restricted Subsidiaries.
“Affiliate”
means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that
Person. No Person shall be an “Affiliate” of Holdings or any subsidiary thereof solely because it is an unrelated portfolio
company of the Sponsor and none of the Administrative Agent, the Arrangers, any Lender (other than any Affiliated Lender or any Debt
Fund Affiliate) or any of their respective Affiliates shall be considered an Affiliate of Holdings or any subsidiary thereof. For the
avoidance of doubt, the parties hereto agree that Comcast Corporation, a Pennsylvania corporation, is not an Affiliate of Holdings or
the Borrower as of the Closing Date.
“Affiliated
Lender” means any Non-Debt Fund Affiliate, Holdings, the Borrower and/or any of its Restricted Subsidiaries.
“Affiliated
Lender Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Affiliated Lender (with
the consent of any party whose consent is required by Section 9.05) and accepted by the Administrative Agent in the form of Exhibit
A-2 or any other form approved by the Administrative Agent and the Borrower.
“Affiliated
Lender Cap” has the meaning assigned to such term in Section 9.05(g)(iv).
“Aggregate
Revolving Credit Exposure” means, at any time, the aggregate amount of the Lenders’ Revolving Credit Exposures at such
time.
“Agreement”
has the meaning assigned to such term in the preamble to this First Lien Credit Agreement.
“Alternate
Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such
day plus 0.50%, (b) to the extent ascertainable, the Published LIBO Rate (which rate shall be calculated based upon an Interest
Period of one month and shall be determined on a daily basis based on the rate determined on such day for such Interest Period at 11:00
a.m. (London time)) plus 1.00%, (c) the Prime Rate and (d) solely with respect to the Amendment No. 2 Term Loans, 2.00%. Any change
in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Published LIBO Rate, as the case
may be, shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or
the Published LIBO Rate, as the case may be.
“Amendment
No. 1” means the First Incremental Amendment, dated as of the Amendment No. 1 Effective Date, among the Borrower, the other
Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
“Amendment
No. 1 Effective Date” means March 28, 2018.
“Amendment
No. 1 Incremental Term Lender” means any Person with an Initial Term Loan Commitment to make Amendment No. 1 Incremental Term
Loans.
“Amendment
No. 1 Incremental Term Loans” means the Term Loans funded pursuant to Amendment No. 1 on the Amendment No. 1 Effective Date,
the proceeds of which shall be used to consummate the Amendment No. 1 Transactions, to pay fees and expenses in connection with the foregoing
and for general corporate purposes or other actions or purposes permitted hereunder.
“Amendment
No. 1 Transactions” means the entering into of Amendment No. 1, the incurrence of the Amendment No. 1 Incremental Term Loans,
the repayment in full of all outstanding amounts under the Second Lien Credit Agreement and the payment of all fees, expenses and other
costs incurred in connection with the foregoing.
“Amendment
No. 2” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 2 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 2 Term Lender” means each “2018 Refinancing Term Loan Lender” as such term is defined in Amendment No. 2.
“Amendment
No. 2 Term Loan Commitment” means the “2018 Refinancing Term Loan Commitment” as such term is defined in Amendment
No. 2.
“Amendment
No. 2 Term Loans” means the “2018 Refinancing Term Loans” as such term is defined in Amendment No. 2 and all Amendment
No. 3 Incremental Term Loans.
“Amendment
No. 2 Transactions” means the entering into of Amendment No. 2, the incurrence of the Amendment No. 2 Term Loans and the payment
of all fees, expenses and other costs incurred in connection with the foregoing.
“Amendment
No. 3” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 3 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 3 Incremental Term Lender” means each Lender under this Agreement that holds an Amendment No. 3 Incremental Term Loan and/or
a commitment to make an Amendment No. 3 Incremental Term Loan (as applicable).
“Amendment
No. 3 Incremental Term Loan Commitment” means an aggregate principal amount set forth opposite such Amendment No. 3 Incremental
Term Lender’s name contained in Schedule 1 in Amendment No. 3. The aggregate amout of the Amendment No. 3 Incremental Term Loan
Commitments on the Amendment No. 3 Effective Date is $105,000,000.
“Amendment
No. 3 Incremental Term Loans” means the Term Loans funded pursuant to Amendment No. 3 on the Amendment No. 3 Effective Date,
the proceeds of which shall be used to consummate the Amendment No. 3 Transactions, to pay fees and expenses in connection with the foregoing
and for general corporate purposes or other actions or purposes permitted hereunder.
“Amendment
No. 3 Transactions” means the entering into of Amendment No. 3, the incurrence of the Amendment No. 3 Incremental Term Loans
and the payment of all fees, expenses and other costs incurred in connection with the foregoing.
“Amendment
No. 4” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 4 Effective Date” has the meaning assigned to such term in the preamble to this
Agreement.
“Applicable
Charges” has the meaning set forth in Section 9.19.
“Applicable
Percentage” means, (a) with respect to any Term Lender of any Class, a percentage equal to a fraction the numerator of which
is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan Commitments of such Term Lender under
such Class and the denominator of which is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan
Commitments of all Term Lenders under such Class and (b) with respect to any Revolving Lender of any Class, the percentage of the aggregate
amount of the Revolving Credit Commitments of such Class represented by such Lender’s Revolving Credit Commitment of such Class;
provided that for purposes of Section 2.21 and otherwise herein, when there is a Defaulting Lender, such Defaulting Lender’s
Revolving Credit Commitment shall be disregarded for any relevant calculation. In the case of clause (b), in the event that the
Revolving Credit Commitments of any Class have expired or been terminated, the Applicable Percentage of any Revolving Lender of such
Class shall be determined on the basis of the Revolving Credit Exposure of such Revolving Lender with respect to such Class, giving effect
to any assignments and to any Revolving Lender’s status as a Defaulting Lender at the time of determination.
“Applicable
Price” has the meaning assigned to such term in the definition of “Dutch Auction”. “Applicable Rate”
means, for any day from and after the Amendment No. 2 Effective Date, (a) for Amendment No. 2 Term Loans (including, for the avoidance
of doubt, all Amendment No. 3 Incremental Term Loans), (i) in the case of ABR Loans, 2.50% per annum and (ii) in the case of LIBO Rate
Loans, 3.50% per annum and (b) for Revolving Loans, the rate per annum set forth below under the caption “ABR Spread” or
“LIBO Rate Spread”, as the case may be, based upon the First Lien Leverage Ratio as of the last day of the most recently
ended Test Period; provided that until the first Adjustment Date following the completion of at least one full Fiscal Quarter ended after
the Closing Date, the “Applicable Rate” for any Revolving Loans shall have been the applicable rate per annum set forth below
in Category 1.
|
First
Lien Leverage Ratio
|
|
ABR Spread for
Revolving
Loans
|
|
LIBO Rate Spread for
Revolving Loans
|
|
|
|
|
|
|
|
Category 1
|
|
|
|
|
|
|
|
|
|
|
|
Greater than 3.70 to 1.00
|
|
3.25%
|
|
4.25%
|
|
|
|
|
|
|
|
Category 2
|
|
|
|
|
|
|
|
|
|
|
|
Less than or equal to 3.70 to 1.00 and greater than 3.20 to 1.00
|
|
3.00%
|
|
4.00%
|
|
|
|
|
|
|
|
Category 3
|
|
|
|
|
|
|
|
|
|
|
|
Less than or equal to 3.20 to 1.00
|
|
2.75%
|
|
3.75%
|
The
Applicable Rate for Revolving Loans shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the First Lien
Leverage Ratio in accordance with the table above; provided that if financial statements are not delivered when required pursuant
to Section 5.01(a) or (b), as applicable, the “Applicable Rate” for Revolving Loans shall be the rate per annum
set forth above in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b),
as applicable.
The
Applicable Rate for any Class of Additional Revolving Loans or Additional Term Loans shall be as set forth in the applicable Refinancing
Amendment, Incremental Facility Amendment or Extension Amendment.
“Approved
Fund” means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding
or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered,
advised or managed by (a) such Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers,
advises or manages such Lender.
“Arrangers”
has the meaning assigned to such term in the preamble to this Agreement and shall include for purposes of Section 9.03, the “Amendment
No. 2 Lead Arrangers” (as defined in Amendment No. 2).
“Assignment
Agreement” means, collectively, each Assignment and Assumption and each Affiliated Lender Assignment and Assumption.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 9.05), and accepted by the Administrative Agent in the form of Exhibit A-1 or any
other form approved by the Administrative Agent and the Borrower.
“Attributable
Debt” means, at any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person (except in the footnotes thereto) prepared in accordance with GAAP, other than (a) Capital Lease Obligations
arising as a result of a modification of the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents to the extent
such modification is not prohibited hereunder (including the iStar Amendments), (b) Capital Lease Obligations arising as a result of
the classification of the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 or any Excluded Property Sale/Leaseback Transaction as
a Capital Lease and (c) Capital Lease Obligations arising as a result of any Excluded Property Sale/Leaseback Transaction. For the avoidance
of doubt, this definition of “Attributable Debt” shall be subject in all respects to the provisions of Section 1.04(c).
“Auction”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Agent” means (a) the Administrative Agent or any of its Affiliates or (b) any other financial institution or advisor engaged
by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Auction pursuant
to the definition of “Dutch Auction”.
“Auction
Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Notice” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Party” has the meaning set forth in the definition of “Dutch Auction”.
“Auction
Response Date” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Availability
Period” means the period from and including the Closing Date to but excluding the earliest of (a) the date of termination of
the Initial Revolving Credit Commitments pursuant to Section 2.09, (b) the date of termination of the Initial Revolving Credit Commitment
of each Initial Revolving Lender to make Initial Revolving Loans and the obligation of each Issuing Bank to issue Letters of Credit pursuant
to Section 7.01 and (c) the Initial Revolving Credit Maturity Date.
“Available
Amount” means, at any time, an amount equal to, without duplication:
(a)
the sum of:
(i)
the greater of $20,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; plus
(ii)
the CNI Growth Amount (provided that such amount shall not be available for any Restricted Payment pursuant to Section 6.04(a)(iii)(A)
or Restricted Debt Payment pursuant to Section 6.04(b)(vi)(A), in each case, if any Event of Default exists pursuant to Section 7.01(a)
or, with respect to the Borrower, Sections 7.01(f) or (g) at the time of determination pursuant to Section 1.04(e)); plus
(iii)
the amount of any capital contributions or other proceeds of any issuance of Capital Stock (other than any amounts (x) constituting a
Cure Amount or an Available Excluded Contribution Amount or proceeds of an issuance of Disqualified Capital Stock, (y) received from
the Borrower or any Restricted Subsidiary or (z) consisting of the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii))
received as Cash equity by the Borrower or any of its Restricted Subsidiaries, plus the fair market value, as determined by the
Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Borrower or any Restricted Subsidiary
as a capital contribution or in return for any issuance of Capital Stock (other than any amounts (x) constituting a Cure Amount or an
Available Excluded Contribution Amount or proceeds of any issuance of Disqualified Capital Stock or (y) received from the Borrower or
any Restricted Subsidiary), in each case, during the period from and including the day immediately following the Closing Date through
and including such time; plus
(iv)
the aggregate principal amount of any Indebtedness or Disqualified Capital Stock, in each case, of the Borrower or any Restricted Subsidiary
issued after the Closing Date (other than Indebtedness or such Disqualified Capital Stock issued to the Borrower or any Restricted Subsidiary),
which has been converted into or exchanged for Capital Stock of the Borrower, any Restricted Subsidiary or any Parent Company that does
not constitute Disqualified Capital Stock, together with the fair market value of any Cash or Cash Equivalents (as determined by the
Borrower in good faith) and the fair market value (as determined by the Borrower in good faith) of any property or assets received by
the Borrower or such Restricted Subsidiary upon such exchange or conversion, in each case, during the period from and including the day
immediately following the Closing Date through and including such time; plus
(v)
the net proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately following
the Closing Date through and including such time in connection with the Disposition to any Person (other than the Borrower or any Restricted
Subsidiary) of any Investment made pursuant to Section 6.06(r)(i); plus
(vi)
to the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of
such Investment, the proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately
following the Closing Date through and including such time in connection with cash returns, cash profits, cash distributions and similar
cash amounts, including cash principal repayments of loans and interest payments on loans, in each case received in respect of any Investment
made after the Closing Date pursuant to Section 6.06(r)(i) or, without duplication, otherwise received by the Borrower or any
Restricted Subsidiary from an Unrestricted Subsidiary (including any proceeds received on account of any issuance of Capital Stock by
any Unrestricted Subsidiary (other than solely on account of the issuance of Capital Stock to the Borrower or any Restricted Subsidiary));
plus
(vii)
an amount equal to the sum of (A) the amount of any Investments by the Borrower or any Restricted Subsidiary pursuant to Section 6.06(r)(i)
in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary, (B) the amount of any Investments by the Borrower
or any Restricted Subsidiary pursuant to Section 6.06(r)(i) in any Unrestricted Subsidiary that has been merged, consolidated
or amalgamated with or into, or is liquidated, wound up or dissolved into, the Borrower or any Restricted Subsidiary and (C) the fair
market value (as determined by the Borrower in good faith) of the property or assets of any Unrestricted Subsidiary that have been transferred,
conveyed or otherwise distributed to the Borrower or any Restricted Subsidiary, in each case, during the period from and including the
day immediately following the Closing Date through and including such time; plus
(viii)
the amount of any Declined Proceeds; minus
(b)
an amount equal to the sum of (i) Restricted Payments made pursuant to Section 6.04(a)(iii)(A), plus (ii) Restricted Debt
Payments made pursuant to Section 6.04(b)(vi)(A), plus (iii) Investments made pursuant to Section 6.06(r)(i), in
each case, after the Closing Date and prior to such time, or contemporaneously therewith.
“Available
Excluded Contribution Amount” means the aggregate amount of Cash or Cash Equivalents or the fair market value of other assets
or property (as determined by the Borrower in good faith, but excluding any Cure Amount and any amounts that are used to increase the
Available Amount) received by the Borrower or any of its Restricted Subsidiaries after the Closing Date from:
(1)
contributions in respect of Qualified Capital Stock (other than any amounts or other assets received from the Borrower or any of its
Restricted Subsidiaries), and
(2)
the sale of Qualified Capital Stock of the Borrower or any of its Restricted Subsidiaries (other than (x) to the Borrower or any Restricted
Subsidiary of the Borrower, (y) pursuant to any management equity plan or stock option plan or any other management or employee benefit
plan or (z) with the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)),
in
each case, designated as Available Excluded Contribution Amounts pursuant to a certificate of a Responsible Officer on or promptly after
the date the relevant capital contribution is made or the relevant proceeds are received, as the case may be, and which are excluded
from the calculation of the Available Amount.
“Available
RDP Capacity Amount” means the amount of Restricted Debt Payments that may be made at the time of determination pursuant to
Section 6.04(b)(iv)(A) minus the amount of the Available RDP Capacity Amount utilized by the Borrower or any Restricted Subsidiary
to make Investments pursuant to Section 6.06(q)(ii).
“Available
RP Capacity Amount” means the amount of Restricted Payments that may be made at the time of determination pursuant to Sections
6.04(a)(ii)(D), (a)(vii) and (a)(x) minus the aggregate amount of the Available RP Capacity Amount utilized by the
Borrower or any Restricted Subsidiary to (a) make Investments pursuant to Section 6.06(q)(ii), (b) make Restricted Debt Payments
pursuant to Section 6.04(b)(iv)(B) or (c) incur Indebtedness pursuant to Section 6.01(ll).
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of
any liability of an EEA Financial Institution.
“Bail-In
Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European
Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described
in the EU Bail-In Legislation Schedule.
“Banking
Services” means each and any of the following bank services: commercial credit cards, stored value cards, debit cards, purchasing
cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including
depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee
credit card programs, cash pooling services, foreign exchange and currency management services and any arrangements or services similar
to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts.
“Banking
Services Obligations” means any and all obligations of any Loan Party, whether absolute or contingent and however and whenever
created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) (a)
under any arrangement that is in effect on the Closing Date between any Loan Party and a counterparty that is (or is an Affiliate of)
the Administrative Agent, any Lender or any Arranger as of the Closing Date or (b) under any arrangement that is entered into after the
Closing Date by any Loan Party with any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger
at the time such arrangement is entered into, in each case, in connection with Banking Services, in each case, that has been designated
to the Administrative Agent in writing by the Borrower as being Banking Services Obligations for purposes of the Loan Documents, it being
understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan
Documents and (B) to agree to be bound by the provisions of Article 8, Section 9.03 and Section 9.10 and the Intercreditor
Agreement and each other Acceptable Intercreditor Agreement, in each case as if it were a Lender.
“Bankruptcy
Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
“Board” means the Board of
Governors of the Federal Reserve System of the U.S.
“Bona
Fide Debt Fund” means any debt fund, investment vehicle, regulated bank entity or unregulated lending entity engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business and
which is managed, sponsored or advised by any Person controlling, controlled by or under common control with (a) any competitor of the
Borrower and/or any of its subsidiaries or (b) any Affiliate of such competitor, but, in each case, with respect to which no personnel
involved with any investment in such Person or the management, control or operation of such Person (i) makes, has the right to make or
participates with others in making any investment decisions with respect to such Person or (ii) has access to any information (other
than information that is publicly available) relating to Holdings, the Borrower or its subsidiaries or any entity that forms a part of
any of their respective businesses; it being understood and agreed that the term “Bona Fide Debt Fund” shall not include
any Person that is separately identified to the Arrangers or the Administrative Agent in accordance with clause (a)(i) or (a)(ii) of
the definition of “Disqualified Institution” or any reasonably identifiable Affiliate of any such Person on the basis of
such Affiliate’s name.
“Borrower”
means (a) initially, Merger Sub 2, and after giving effect to the Merger Sub 2 Merger, Kingpin Intermediate (in each case, prior to the
consummation of a transaction described in clause (b) of this definition) and (b) following the consummation of a transaction
permitted hereunder that results in a Successor Borrower, such Successor Borrower.
“Borrowing”
means any Loans of the same Type and Class made, converted or continued on the same date and, in the case of LIBO Rate Loans, as to which
a single Interest Period is in effect.
“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03 and substantially in the form
attached hereto as Exhibit B or such other form that is reasonably acceptable to the Administrative Agent and the Borrower.
“Bowling
Equipment” means all pin setting machines (pinsetters/pinspotters), ball returns, settees, scoring systems (including front
desk systems), lanes, lane cleaning machines, bumpers, approaches, foul lights, gutters and masking units.
“Business
Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or
required by law to remain closed; provided that when used in connection with a LIBO Rate Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
“Capital
Expenditures” means, as applied to any Person for any period, the aggregate amount, without duplication, of all expenditures
(whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases)
that in accordance with GAAP, are, or are required to be included as, capital expenditures on the consolidated statement of cash flows
for such Person for such period.
“Capital
Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP (but subject to Section 1.04(c)), is or should be accounted for as a capital lease on the balance
sheet of that Person.
“Capital
Lease Obligations” means, with respect to any Person, the amount of obligations attributable to any Capital Lease capitalized
as a liability on the balance sheet (excluding the footnotes thereto) of such Person in accordance with GAAP.
“Capital
Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership
interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but
excluding for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing.
“Captive
Insurance Subsidiary” means any Restricted Subsidiary of the Borrower that is subject to regulation as an insurance company
(or any Restricted Subsidiary thereof).
“Cash”
or “cash” means money, currency or a credit balance in any Deposit Account, in each case determined in accordance
with GAAP.
“Cash
Equivalents” means, as at any date of determination, (a) readily marketable securities (i) issued or directly and unconditionally
guaranteed or insured as to interest and principal by the U.S., U.K., Canada or a member state of the European Union or any political
subdivision thereof or (ii) issued by any agency or instrumentality of the U.S., U.K., Canada or a member state of the European Union
or any political subdivision thereof, the obligations of which are backed by the full faith and credit of the U.S., U.K., Canada or a
member state of the European Union or any political subdivision thereof, in each case maturing within two years after such date and,
in each case, including repurchase agreements and reverse repurchase agreements relating thereto; (b) readily marketable direct obligations
issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof or by any foreign
government, in each case maturing within two years after such date and having, at the time of the acquisition thereof, a rating of at
least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized statistical rating agency) and, in each case, repurchase agreements
and reverse repurchase agreements relating thereto; (c) commercial paper maturing no more than one year from the date of creation thereof
and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if
at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized
statistical rating agency); (d) deposits, money market deposits, time deposit accounts, certificates of deposit or bankers’ acceptances
(or similar instruments) maturing within one year after such date and issued or accepted by any Lender or “Lender” in respect
of the Second Lien Facility or by any bank organized under, or authorized to operate as a bank under, the laws of the U.S., any state
thereof or the District of Columbia or any political subdivision thereof or any foreign bank or its branches or agencies and that has
capital and surplus of not less than $75,000,000 and, in each case, repurchase agreements and reverse repurchase agreements relating
thereto; (e) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued
by any commercial bank having capital and surplus of not less than $75,000,000; (f) Indebtedness or Preferred Capital Stock issued by
Persons with a rating of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the
time, neither is issuing comparable ratings, then a comparable rating of another nationally recognized statistical rating organization)
with maturities of 12 months or less from the date of acquisition; (g) bills of exchange issued in the U.S., U.K., Canada, a member state
of the European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);
(h) solely with respect to any Captive Insurance Subsidiary, any investment that such Captive Insurance Subsidiary is not prohibited
to make in accordance with applicable law; and (i) shares or other interests of any investment company, money market mutual fund or other
money market or enhanced high yield fund that invests 95% or more of its assets in instruments of the types specified in clauses (a)
through (h) above (which investment company or fund may also hold Cash pending investment or distribution).
The
term “Cash Equivalents” shall also include (x) foreign currencies (in addition to Canadian dollars, Euros, Pound Sterling,
Mexican Pesos, any national currency of any member state of the European Union and any other currency held by the Borrower or any Restricted
Subsidiary in the ordinary course of business); provided that such amounts, if received by the Borrower or any Restricted Subsidiary,
are converted into Dollars, Canadian dollars, Euros, Pound Sterling, Mexican Pesos, any national currency of any member state of the
European Union or any other currency held by the Borrower or any Restricted Subsidiary in the ordinary course of business as promptly
as practicable (and in any event within ten Business Days following receipt thereof), (y) Investments of the type and maturity described
in clauses (a) through (i) above of foreign obligors, which Investments or obligors (or the parent companies thereof) have
the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (z) other short-term Investments
utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in Investments analogous to the Investments
described in clauses (a) through (i) and in this paragraph.
“Change
in Law” means (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender
or any Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or such Issuing Bank or by such
Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after the Closing Date (other than any such request, guideline or directive
to comply with any law, rule or regulation that was in effect on the Closing Date). For purposes of this definition and Section 2.15,
(x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder
or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements or directives promulgated
by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or U.S.
regulatory authorities, in each case pursuant to Basel III, shall in each case described in clauses (a), (b) and (c)
above, be deemed to be a Change in Law, regardless of the date enacted, adopted, issued or implemented.
“Change
of Control” means the earliest to occur of:
(a)
at any time prior to a Qualifying IPO, the Permitted Holders ceasing to beneficially own, either directly or indirectly (within the meaning
of Rule 13d-3 and Rule 13d-5 under the Exchange Act as in effect on the Closing Date), Capital Stock representing more than 50% of the
total voting power of all of the outstanding voting Capital Stock of Holdings;
(b)
at any time on or after a Qualifying IPO, the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2)
of the Exchange Act as in effect on the Closing Date), including any group acting for the purpose of acquiring, holding or disposing
of Securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act as in effect on the Closing Date), but excluding (i) any
Employee Benefit Plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) one or more Permitted
Holders and (iii) any underwriter in connection with any Qualifying IPO, of Capital Stock of Holdings representing more than the greater
of (x) 35% of the total voting power of all of the outstanding voting Capital Stock of Holdings and (y) the percentage of the total voting
power of all of the outstanding voting Capital Stock of Holdings collectively owned, directly or indirectly, beneficially by the Permitted
Holders; and
(c)
the Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of Holdings (other than during the pendency of any Holdings Reorganization
Transaction or Permitted Reorganization); it being understood and agreed for the avoidance of doubt that the Mergers shall not trigger
a “Change of Control” for any purpose under this Agreement or any other Loan Document.
Notwithstanding
the preceding or any provision of Section 13d-3 of the Exchange Act as in effect on the Closing Date, (i) a Person or group shall not
be deemed to beneficially own Capital Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant
agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of
the Capital Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more Permitted
Holders, the issued and outstanding Capital Stock of Holdings owned, directly or indirectly, by any Permitted Holders that are part of
such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of determining
whether a Change of Control has occurred so long as one or more Permitted Holders hold in excess of 50% of the issued and outstanding
Capital Stock owned, directly or indirectly, by such group and (iii) a Person or group will not be deemed to beneficially own the Capital
Stock of another Person as a result of its ownership of the Capital Stock or other securities of such other Person’s parent entity
(or related contractual rights) unless (A) it owns 50% or more of the total voting power of the Capital Stock entitled to vote for the
election of directors or board of managers of such parent entity and (B) such directors or managers elected by the Person or group have
a majority of the aggregate votes on the board of directors (or similar body) of such parent entity.
“Charge”
means any fee, loss, charge, expense, cost, accrual or reserve of any kind.
“Class”,
when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial
Term Loans, Amendment No. 2 Term Loans (including, for the avoidance of doubt, Amendment No. 3 Incremental Term Loans), other Additional
Term Loans of any series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(i),
Initial Revolving Loans or Additional Revolving Loans of any series established as a separate “Class” pursuant to Sections
2.22, 2.23 or 9.02(c)(ii) or Swingline Loans, (b) any Commitment, refers to whether such Commitment is an Initial Term
Loan Commitment, an Amendment No. 2 Term Loan Commitment (including, for the avoidance of doubt, Amendment No. 3 Incremental Term Loan
Commitments), another Additional Term Loan Commitment of any series established as a separate “Class” pursuant to Sections
2.22, 2.23 or 9.02(c)(i), an Initial Revolving Credit Commitment or an Additional Revolving Credit Commitment of any
series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(ii), (c) any Lender,
refers to whether such Lender has a Loan or Commitment of a particular Class and (d) any Revolving Credit Exposure, refers to whether
such Revolving Credit Exposure is attributable to a Revolving Credit Commitment of a particular Class (or Revolving Loans incurred or
Letters of Credit issued under a Revolving Credit Commitment of a particular Class).
“Closing
Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02), which date is July 3, 2017.
“Closing
Date Material Adverse Effect” shall have the meaning assigned to the term “Company Material Adverse Effect” in
the Acquisition Agreement as in effect on the Closing Date (it being understood that capitalized terms used in such definition and defined
in the Acquisition Agreement shall have the meanings ascribed to such terms in the Acquisition Agreement as in effect on the Closing
Date).
“CNI
Growth Amount” means, at any date of determination, an amount (which amount shall not be less than zero) equal to 50% of Consolidated
Net Income for the cumulative period from the first day of the Fiscal Quarter of the Borrower during which the Closing Date occurs to
and including the last day of the most recently ended Fiscal Quarter of the Borrower prior to such date for which consolidated financial
statements of the Borrower are internally available (treated as one accounting period).
“Code”
means the Internal Revenue Code of 1986.
“Collateral”
means any and all property of any Loan Party subject to a Lien under any Collateral Document and any and all other property of any Loan
Party, now existing or hereafter acquired, that is or becomes subject to a Lien pursuant to any Collateral Document to secure the Secured
Obligations. For the avoidance of doubt, in no event shall “Collateral” include any Excluded Asset.
“Collateral
and Guarantee Requirement” means, at any time, subject to (x) the applicable limitations set forth in this Agreement and/or
any other Loan Document (including any Acceptable Intercreditor Agreement) and (y) the time periods (and extensions thereof) set forth
in Section 5.12, the requirement that:
(a)
the Administrative Agent shall have received;
(i)
(A) a joinder to the Loan Guaranty in substantially the form attached as an exhibit thereto, (B) a supplement to the Security Agreement
in substantially the form attached as an exhibit thereto, (C) if the respective Restricted Subsidiary required to comply with the requirements
set forth in this definition pursuant to Section 5.12 owns registrations of or applications for U.S. Patents, U.S. Trademarks
and/or U.S. Copyrights that constitute Collateral, an Intellectual Property Security Agreement in substantially the form attached as
an exhibit hereto, (D) a completed Perfection Certificate, (E) Uniform Commercial Code financing statements in appropriate form for filing
in such jurisdictions as the Administrative Agent may reasonably request and (F) an executed joinder to the Intercreditor Agreement in
substantially the form attached as an exhibit thereto; and
(ii)
each item of Collateral required to be delivered in physical form on or prior to such time pursuant to the Collateral Documents.
(b)
the Administrative Agent shall have received with respect to any Material Real Estate Asset (other than an Excluded Asset) acquired after
the Closing Date, a Mortgage and any necessary UCC fixture filing in respect thereof, in each case together with, to the extent customary
and appropriate (as reasonably determined by the Administrative Agent and the Borrower):
(i)
evidence that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any corresponding
UCC or equivalent fixture filing are in form suitable for filing or recording in all filing or recording offices that the Administrative
Agent may deem reasonably necessary in order to create a valid and subsisting Lien on such Material Real Estate Asset in favor of the
Administrative Agent for the benefit of the Secured Parties, (B) such Mortgage and any corresponding UCC or equivalent fixture filings
have been duly recorded or filed, as applicable and (C) all filing and recording taxes and fees have been paid or otherwise provided
for in a manner reasonably satisfactory to the Administrative Agent;
(ii)
a fully paid policy of lender’s title insurance (a “Mortgage Policy”) in an amount reasonably acceptable to
the Administrative Agent (not to exceed the fair market value of such Material Real Estate Asset (as determined by the Borrower in good
faith)) issued by a nationally recognized title insurance company in the applicable jurisdiction that is reasonably acceptable to the
Administrative Agent, insuring the relevant Mortgage as having created a valid subsisting Lien on the real property described therein
with the ranking or the priority which it is expressed to have in such Mortgage, subject only to Permitted Liens, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request to the extent the same are available in
the applicable jurisdiction;
(iii)
a customary legal opinion of local counsel for the relevant Loan Party in the jurisdiction in which such Material Real Estate Asset is
located and, if applicable, in the jurisdiction of formation of the relevant Loan Party, in each case as the Administrative Agent may
reasonably request; and
(iv)
(A) appraisals (if required under the Financial Institutions Reform Recovery and Enforcement Act of 1989, as amended) and (B) “Life-of-Loan”
flood certifications under Regulation H (together with evidence of federal flood insurance for any such Flood Hazard Property); provided
that the Administrative Agent may in its reasonable discretion accept any existing appraisal so long as such existing appraisal satisfies
any applicable local law requirements and sufficient for the applicable title insurance company to issue the endorsements referenced
in clause (ii) above.
Notwithstanding
any provision of any Loan Document to the contrary, if any mortgage tax or similar tax or charge is owed on the entire amount of the
Obligations evidenced hereby in connection with the delivery of a mortgage or UCC fixture filing pursuant to clause (b) above, then,
to the extent permitted by, and in accordance with, applicable Requirements of Law, the amount of such mortgage tax or similar tax or
charge shall be calculated based on the lesser of (x) the amount of the Obligations allocated to the applicable Material Real Estate
Asset and (y) the fair market value of the applicable Material Real Estate Asset at the time the Mortgage is entered into and determined
in a manner reasonably acceptable to Administrative Agent and the Borrower. Notwithstanding anything herein to the contrary, no Mortgage
will be executed and delivered with respect to any Material Real Estate Asset pursuant to the foregoing until the Administrative Agent
has received written notice of such Mortgage at least 45 days prior to such execution and delivery and has confirmed receipt of satisfactory
flood due diligence and evidence of compliance with the applicable Flood Insurance Laws.
“Collateral
Documents” means, collectively, (i) the Security Agreement, (ii) each Mortgage (if any), (iii) each Intellectual Property Security
Agreement, (iv) each Perfection Certificate, (v) any supplement to any of the foregoing delivered to the Administrative Agent pursuant
to the definition of “Collateral and Guarantee Requirement” and (vi) each of the other instruments and documents pursuant
to which any Loan Party grants a Lien on any assets as security for payment of the Secured Obligations.
“Commercial
Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection
with the purchase of any materials, goods or services by the Borrower or any of its Restricted Subsidiaries in the ordinary course of
business of such Person.
“Commercial
Tort Claim” has the meaning set forth in Article 9 of the UCC.
“Commitment”
means, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Initial Revolving Credit Commitment and Additional
Commitment (including, for the avoidance of doubt, the Amendment No. 2 Term Loan Commitment and Amendment No. 3 Incremental Term Loan
Commitment), as applicable, in effect as of such time.
“Commitment
Fee Rate” means, on any date (a) with respect to the Initial Revolving Credit Commitment, subject to the provisions of the
last paragraph hereof, the applicable rate per annum set forth below based upon the First Lien Leverage Ratio as of the last day of the
most recently ended Test Period and (b) with respect to Additional Revolving Credit Commitments of any Class, the rate or rates per annum
specified in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment.
|
First Lien Leverage Ratio
|
|
Commitment Fee Rate
|
|
|
|
|
|
Category 1
|
|
|
|
Greater than 3.70 to 1.00
|
|
0.50%
|
|
|
|
|
|
Category 2
|
|
|
|
Equal to or less than 3.70 to 1.00 but greater
than 3.20 to 1.00
|
|
0.375%
|
|
|
|
|
|
Category 3
|
|
|
|
Equal to or less than 3.20 to 1.00
|
|
0.25%
|
The
Commitment Fee Rate with respect to the Initial Revolving Credit Commitment shall be adjusted quarterly on a prospective basis on each
Adjustment Date based upon the First Lien Leverage Ratio in accordance with the table set forth above; provided that (a) until
the first Adjustment Date following the completion of at least one full Fiscal Quarter after the Closing Date, the Commitment Fee Rate
shall be the applicable rate per annum set forth above in Category 1 and (b) if financial statements are not delivered when required
pursuant to Section 5.01(a) or (b), as applicable, the Commitment Fee Rate shall be the rate per annum set forth above
in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b), as applicable.
“Commitment
Letter” means that certain Amended and Restated Commitment Letter, dated as of June 15, 2017, by and among, inter alios,
Parent and the Arrangers, as amended to date.
“Commitment
Schedule” means the Schedule attached hereto as Schedule 1.01(a).
“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Company
Competitor” means any competitor of the Borrower and/or any of its subsidiaries and/or the Target and/or any of its subsidiaries.
“Compliance
Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
“Confidential
Information” has the meaning assigned to such term in Section 9.13.
“Consolidated
Adjusted EBITDA” means, as to any Person for any period, an amount determined for such Person and its Restricted Subsidiaries
on a consolidated basis equal to the total of (a) Consolidated Net Income for such period plus (b) the sum, without duplication,
of (to the extent deducted in calculating Consolidated Net Income, other than in respect of clauses (x), (xi), (xii),
(xiv), (xix), (xx), (xxi) and (xxii) below) the amounts of:
(i)
Consolidated Interest Expense (including (A) fees and expenses paid to the Administrative Agent in connection with its services hereunder,
(B) other bank, administrative agency (or trustee) and financing fees (including rating agency fees and other fees in respect of any
Second Lien Facility), (C) costs of surety bonds in connection with financing activities (whether amortized or immediately expensed)
and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments, letters of credit, bank guarantees,
bankers’ acceptances or any similar facilities or financing and hedging agreements);
(ii)
(A) Taxes paid and any provision for Taxes, including income, profits, capital, foreign, federal, state, local, franchise and similar
Taxes, property Taxes, foreign withholding Taxes and foreign unreimbursed value added Taxes (including penalties and interest related
to any such Tax or arising from any Tax examination, and including pursuant to any Tax sharing arrangement or as a result of any Tax
distribution) of such Person paid or accrued during the relevant period and (B) any payments to a Parent Company in respect of Taxes
permitted to be made hereunder;
(iii)
(A) depreciation, (B) amortization, (C) any impairment Charge (including any bad debt expense) and (D) any asset write-off and/or write-down;
(iv)
any non-cash Charge, including the excess of rent expense over actual Cash rent paid, including the benefit of lease incentives (in the
case of a charge) during such period due to the use of straight line rent for GAAP purposes (provided that if any such non-Cash
Charge represents an accrual or reserve for potential Cash items in any future period, such Person may determine not to add back such
non-Cash Charge in the then-current period);
(v)
[reserved];
(vi)
Receivables Fees and the amount of loss or discount on the sale of Receivables Facility Assets and related assets to a Receivables Subsidiary
in connection with a Receivables Facility;
(vii)
the amount of management, monitoring, consulting, transaction, advisory, termination and similar fees and related indemnities and expenses
(including reimbursements), paid or accrued and payments made to any Investor (and/or its Affiliates or management companies) (or prior
to the Closing Date, the Existing Sponsor and/or its Affiliates or management companies) for any financial advisory, consulting, financing,
underwriting or placement services or in respect of other investment banking activities and other transaction fees, and payments to outside
directors of the Borrower or a Parent Company actually paid by or on behalf of, or accrued by, such Person or any of its subsidiaries;
provided that such payment is permitted under this Agreement;
(viii)
[reserved];
(ix)
the amount of earn-out and other contingent consideration obligations (including to the extent accounted for as bonuses, compensation
or otherwise) incurred in connection with (A) the Transactions, (B) acquisitions and Investments completed prior to the Closing Date
and (C) any acquisition or other Investment permitted by this Agreement, in each case, which is paid or accrued during the applicable
period;
(x)
pro forma “run rate” cost savings, operating expense reductions, operational improvements and cost synergies (collectively,
“Expected Cost Savings”) (net of actual amounts realized) (1) that are reasonably identifiable, factually supportable
and projected by the Borrower in good faith to result from actions that have been taken or with respect to which substantial steps have
been taken or are expected to be taken (in the good faith determination of such Person) or (2) that have been identified to the Administrative
Agent prior to the Closing Date (including by inclusion in the Acquisition Agreement or the Sponsor’s model and quality of earnings
summaries delivered to the Arrangers on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality
of earnings summary) related to (A) the Transactions and (B) any permitted asset sale, acquisition (including the commencement of activities
constituting a business line), combination, Investment, Disposition (including the termination or discontinuance of activities constituting
a business line), operating improvement, restructuring, cost savings initiative, any similar initiative (including the effect of increased
pricing in customer contracts) and/or specified transaction, in each case prior to, on or after the Closing Date (any such operating
improvement, restructuring, cost savings initiative or similar initiative or specified transaction, a “Cost Saving Initiative”)
(in each case, calculated on a Pro Forma Basis as though such Expected Cost Savings and/or Cost Savings Initiative had been realized
in full on the first day of such period); provided, that the results of such Expected Cost Savings and/or Cost Saving Initiatives
are projected by the Borrower in good faith to result from actions that have been taken or with respect to which steps have been taken
or are expected to be taken (in the good faith determination of the Borrower) within 24 months after (i) with respect to the Transactions,
the Closing Date and (ii) with respect to any Cost Savings Initiative, the date of any such operating improvement, restructuring, cost
savings initiative or similar initiative or specified transaction;
(xi)
Charges attributable to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings initiatives
(including Cost Saving Initiatives), cost rationalization programs, operating expense reductions and/or synergies and/or similar initiatives
and/or programs (including in connection with any integration, restructuring or transition, any reconstruction, decommissioning, recommissioning
or reconfiguration of fixed assets for alternative uses, any office or facility opening and/or pre-opening), including the following:
any inventory optimization program and/or any curtailment, any business optimization Charge, any restructuring Charge (including any
Charge relating to any tax restructuring), any Charge relating to the closure or consolidation of any office or facility (including but
not limited to rent termination costs, moving costs and legal costs), any systems implementation Charge, any severance Charge, any one
time compensation Charge, any Charge relating to entry into a new market, any Charge relating to rights fee arrangements (including any
early terminations thereof), any Charge relating to any strategic initiative or contract, any signing Charge, any Charge relating to
any entry into new markets and contracts (including, without limitation, any renewals, extensions or other modifications thereof) or
exiting a market or contract, any retention or completion Charge or bonus, any recruiting Charge, any lease run-off Charge, any expansion
and/or relocation Charge, any Charge associated with any modification or curtailment to any pension and post-retirement employee benefit
plan, any software or other intellectual property development Charge, any Charge associated with new systems design, any implementation
Charge, any transition Charge, any Charge associated with improvements to IT or accounting functions, losses related to temporary decreases
in work volume and expenses related to maintaining underutilized personnel, any transition Charge, any Charge in connection with unused
warehouse space, any Charge relating to a new contract, any consulting Charge and/or any corporate development Charge; provided, that,
in the case of any such Charge, the results of any such action relating to such Charge are projected by the Borrower in good faith to
be achieved within 24 months of the undertaking thereof;
(xii)
any Charge with respect to any liability or casualty event, business interruption or any product recall, (i) so long as such Person has
submitted in good faith, and reasonably expects to receive payment in connection with, a claim for reimbursement of such amounts under
its relevant insurance policy within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so
added back to the extent not so reimbursed within the next four Fiscal Quarters) or (ii) without duplication of amounts included in a
prior period under the preceding clause (i), to the extent such Charge is covered by insurance, indemnification or otherwise reimbursable
by a third party (whether or not then realized so long as the Borrower in good faith expects to receive proceeds arising out of such
indemnification, insurance or reimbursement obligation within the next four Fiscal Quarters) (it being understood that if the amount
received in cash under any such agreement in any period exceeds the amount of expense paid during such period, any excess amount received
may be carried forward and applied against any expense in any future period);
(xiii)
unrealized net losses in the fair market value of any arrangements under Hedge Agreements;
(xiv)
the amount of any Cash actually received by such Person (or the amount of the benefit of any netting arrangement resulting in reduced
Cash expenditures) during such period, and not included in Consolidated Net Income in any period, to the extent that any non-Cash gain
relating to such Cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA pursuant to clause
(c)(i) below for any previous period and not added back;
(xv)
the amount of any “bad debt” expense related to revenue earned prior to the Closing Date;
(xvi)
any net Charges included in the Borrower’s consolidated financial statements due to the application of Accounting Standards Codification
Topic 810 (“ASC 810”);
(xvii)
the amount of any non-controlling interest or minority interest Charge consisting of income attributable to minority equity interests
of third parties in any non-wholly owned Restricted Subsidiary;
(xviii)
the amount of any Charges (including facility operating losses) related to any de novo facility or any facility renovation, including
any construction, pre-opening/re-opening and start-up period prior to opening (or re-opening, as applicable), until such facility has
been open (or renovated) and operating for a period of 18 consecutive months;
(xix)
the amount of any earned or billed amounts or other revenue that is attributable to services performed during such period but is not
included in Consolidated Net Income for such period; it being understood that if such revenue is added back in calculating Consolidated
Adjusted EBITDA for such period, such revenue shall not be included in Consolidated Net Income in the period in which it is actually
recognized;
(xx)
any other adjustments, exclusions and add-backs (x) reflected in the Sponsor’s model and quality of earnings summaries delivered
to the Arrangers on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality of earnings summary)
or (y) that are consistent with Regulation S-X;
(xxi)
for the first 18 months following the opening of a de novo facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to such de novo facility for each month such de novo facility has been in operation
and (y) the 12-month average Consolidated Adjusted EBITDA for all similar facilities that have been in operation for a period of at least
18 months (as determined by the Borrower in good faith); provided that the aggregate amount added-back to Consolidated Adjusted
EBITDA solely pursuant to this clause (xxi) and clause (xxii) below (on an aggregate basis) shall not, for any period, exceed an amount
equal to 15% of Consolidated Adjusted EBITDA for such period, calculated prior to giving effect to such add-backs; and
(xxii)
for the first 18 months following the renovation of a facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to performance gains for such facility for each month such facility has been
in operation post-renovation and (y) the 12-month average Consolidated Adjusted EBITDA attributable to performance gains for all similar
facilities that have been in operation for a period of at least 18 months (as determined by the Borrower in good faith); provided
that the aggregate amount added-back to Consolidated Adjusted EBITDA solely pursuant to clause (xxi) above and this clause (xxii)
(on an aggregate basis) shall not, for any period, exceed an amount equal to 15% of Consolidated Adjusted EBITDA for such period,
calculated prior to giving effect to such add-backs;
minus
(c) to the extent such amounts increase Consolidated Net Income:
(i)
non-Cash gains or income; provided that if any non-Cash gain or income represents an accrual or deferred income in respect of
potential Cash items in any future period, such Person may determine not to deduct such non-Cash gain or income in the current period;
(ii)
unrealized net gains in the fair market value of any arrangements under Hedge Agreements;
(iii)
[reserved];
(iv)
the amount added back to Consolidated Adjusted EBITDA pursuant to clause (b)(xii) above (as described in such clause) to the extent
the relevant business interruption insurance proceeds were not received within the time period required by such clause;
(v)
to the extent that such Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause (b)(iv)
above, the cash payment in respect thereof in the relevant future period;
(vi)
the excess of actual Cash rent paid over rent expense during such period due to the use of straight line rent for GAAP purposes;
(vii)
any Consolidated Net Income included in the Borrower’s consolidated financial statements due to the application of ASC 810; and
(viii)
the amount of any non-controlling interest or minority interest gains from income attributable to minority equity interests of third
parties in any non-wholly owned Restricted Subsidiary;
(d)
increased or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards
Codification Topic 460 or any comparable regulation.
Notwithstanding
anything to the contrary herein, it is agreed that for the purpose of calculating the Total Leverage Ratio, the First Lien Leverage Ratio,
the Interest Coverage Ratio and the Secured Leverage Ratio and/or the amount of any basket based on a percentage of Consolidated Adjusted
EBITDA for any period that includes the Fiscal Quarters ended July 3, 2016, October 2, 2016, January 1, 2017 and April 2, 2017, Consolidated
Adjusted EBITDA for such Fiscal Quarters shall be deemed to be $15,194,992, $34,765,574, $9,482,738 and $58,534,750 (which amounts are
agreed not to include adjustments pursuant to clauses (b)(x), (b)(xx), (b)(xxi) and (b)(xxii) above), respectively, in each case, as
adjusted (i) on a Pro Forma Basis, as applicable and (ii) pursuant to clauses (b)(x), (b)(xx), (b)(xxi) and (b)(xxii) above, as applicable
for each Test Period.
“Consolidated
First Lien Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total
Debt outstanding on such date that is secured by a first priority Lien on any asset or property of such Person or its Restricted Subsidiaries
that constitutes Collateral.
“Consolidated
Interest Expense” means, with respect to any Person for any period, the sum of (a) consolidated total interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including (without duplication),
amortization of any debt issuance cost and/or original issue discount, any premium paid to obtain payment, financial assurance or similar
bonds, any interest capitalized during construction, any non-cash interest payment, the interest component of any deferred payment obligation,
commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified Receivables Facility,
the interest component of any payment under any Capital Lease (regardless of whether accounted for as interest expense under GAAP), any
commission, discount and/or other fee or charge owed with respect to any letter of credit, bank guarantee and/or bankers’ acceptance
or any similar facilities, any fee and/or expense paid to the Administrative Agent in connection with its services hereunder, any other
bank, administrative agency (or trustee) and/or financing fee and any cost associated with any surety bond in connection with financing
activities (whether amortized or immediately expensed)), plus (b) any cash dividend paid or payable in respect of Disqualified
Capital Stock during such period other than to such Person or any Loan Party, plus (c) any net losses, obligations or payments
arising from or under any Hedge Agreement and/or other derivative financial instrument issued by such Person for the benefit of such
Person or its subsidiaries, in each case determined on a consolidated basis for such period. For purposes of this definition, interest
in respect of any Capital Lease shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of
interest implicit in such Capital Lease in accordance with GAAP.
“Consolidated
Net Income” means, as to any Person (the “Subject Person”) for any period, the net income (or loss) of the
Subject Person and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined
in conformity with GAAP; provided that there shall be excluded, without duplication,
(a)
(i) any net income (loss) of any Person if such Person is not the Borrower or a Restricted Subsidiary, except that Consolidated Net Income
will be increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalent (or converted into Cash
or Cash Equivalents) by such Person to the Borrower or any other Restricted Subsidiary (subject, in the case of any such Restricted Subsidiary
that is not a Loan Party, to the limitations contained in clause (ii) below) and (ii) solely for the purpose of determining the amount
available for Restricted Payments under Section 6.04(a)(iii)(A) or the amount of Excess Cash Flow, any net income (loss) of any
Restricted Subsidiary (other than a Loan Party) if such Restricted Subsidiary is subject to restrictions on the payment of dividends
or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Borrower or a Loan Party by operation of
its organizational documents or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable
thereto (other than (x) any restriction that has been waived or otherwise released and (y) any restriction set forth in the Loan Documents,
the documents related to any Incremental Equivalent Debt, the documents relating to any Second Lien Facility and the documents relating
to any Replacement Debt or Refinancing Indebtedness in respect of any of the foregoing), except that Consolidated Net Income will be
increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalents (or converted into Cash or Cash
Equivalents) by the Restricted Subsidiary (subject, in the case of a dividend, distribution or other payment to another Restricted Subsidiary,
to the limitations in this clause (ii));
(b)
any gain or Charge attributable to any asset Disposition (including asset retirement costs or sales or issuances of Capital Stock) or
of returned or surplus assets, in each case, outside the ordinary course of business (as determined in good faith by such Person);
(c)
(i) any gain or Charge from (A) any extraordinary item (as determined in good faith by such Person) and/or (B) any non-recurring or unusual
item (as determined in good faith by such Person) and/or (ii) any Charge associated with and/or payment of any legal settlement, fine,
judgment or order;
(d)
(i) any unrealized or realized net foreign currency translation or transaction gains or Charges impacting net income (including currency
re-measurements of Indebtedness, any net gains or Charges resulting from Hedge Agreements for currency exchange risk associated with
the above or any other currency related risk, any gains or Charges relating to translation of asset and liabilities denominated in a
foreign currency and those resulting from intercompany Indebtedness), (ii) any realized or unrealized gain or Charge in respect of (x)
any obligation under any Hedge Agreement as determined in accordance with GAAP and/or (y) any other derivative instrument pursuant to,
in the case of this clause (y), Financial Accounting Standards Board’s Accounting Standards Codification No. 815-Derivatives
and Hedging and (iii) unrealized gains or losses in respect of any Hedge Agreement and any ineffectiveness recognized in earnings related
to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge
transactions, in respect of Hedge Agreements;
(e)
any net gain or Charge with respect to (i) any disposed, abandoned, divested and/or discontinued asset, property or operation (other
than, at the option of the Borrower, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination
thereof), (ii) any disposal, abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the
option of the Borrower, relating to assets or properties held for sale or pending the divestiture or discontinuation thereof) and/or
(iii) any facility that has been closed during such period;
(f)
any net income or Charge (less all fees and expenses related thereto) attributable to (i) the early extinguishment or cancellation of
Indebtedness or (ii) any Derivative Transaction;
(g)
(i) any Charge incurred as a result of, in connection with or pursuant to (or incurred by a Parent Company to the extent permitted to
be paid by the Borrower hereunder) any management equity plan, profits interest or stock option plan or any other management or employee
benefit plan or agreement, pension plan (including a non-cash deemed finance Charge), any stock subscription or shareholders agreement
or any distributor equity plan or any similar equity plan or agreement (including any deferred compensation arrangement or trust), (ii)
any Charge incurred in connection with the rollover, acceleration or payout of Capital Stock held by management of any Parent Company,
the Borrower and/or any of its subsidiaries, in each case under this clause (ii), to the extent that any such cash Charge is funded
with net Cash proceeds contributed to the Subject Person as a capital contribution or as a result of the sale or issuance of Capital
Stock (other than Disqualified Capital Stock) of the Subject Person and (iii) the amount of payments made to optionholders of such Person
or any Parent Company in connection with, or as a result of, any distribution being made to equityholders of such Person or its Parent
Companies, which payments are being made to compensate such optionholders as though they were equityholders at the time of, and entitled
to share in, such distribution, in each case to the extent permitted hereunder;
(h)
any Charge that is established, adjusted and/or incurred, as applicable, (i) within 12 months after the Closing Date that is required
to be established, adjusted or incurred, as applicable, as a result of the Transactions in accordance with GAAP, (ii) within 12 months
after the closing of any other acquisition that is required to be established, adjusted or incurred, as applicable, as a result of such
acquisition in accordance with GAAP or (iii) as a result of any change in, or the adoption or modification of, accounting principles
or policies;
(i)
any (A) write-off or amortization made in such period of deferred financing costs and premiums paid or other expenses incurred directly
in connection with any early extinguishment of Indebtedness, (B) goodwill or other asset impairment charges, write-offs or write-downs
and (C) amortization of intangible assets (including amortization of goodwill, software, deferred or capitalized financing fees, debt
issuance costs, commissions and expenses and other intangible assets);
(j)
(A) the effects of adjustments (including the effects of such adjustments pushed down to the Subject Person and its subsidiaries) in
component amounts required or permitted by GAAP (including, without limitation, in the inventory, property and equipment, lease, rights
fee arrangements, software, goodwill, intangible asset, in-process research and development, deferred revenue, advanced billing and debt
line items thereof), resulting from the application of recapitalization accounting or acquisition accounting, as the case may be, in
relation to the Transactions or any consummated acquisition or similar Investment or the amortization or write-off of any amounts thereof
(including any write-off of in process research and development) and/or (B) the cumulative effect of any change in accounting principles
or policies (effected by way of either a cumulative effect adjustment or as a retroactive application, in each case, in accordance with
GAAP) (except that, if the Borrower determines in good faith that the cumulative effects thereof are not material to the interests of
the Lenders, the effects of any change in any such principles or policies may be included in any subsequent period after the Fiscal Quarter
in which such change, adoption or modification was made);
(k)
the income or loss of any Person accrued prior to the date on which such Person became a Restricted Subsidiary of such Subject Person
or is merged into or consolidated with such Subject Person or any Restricted Subsidiary of such Subject Person or the date that such
other Person’s assets are acquired by such Subject Person or any Restricted Subsidiary of such Subject Person (except to the extent
required for any calculation of Consolidated Adjusted EBITDA on a Pro Forma Basis in accordance with Section 1.04);
(l)
any deferred Tax expense associated with any tax deduction or net operating loss arising as a result of the Transactions, or the release
of any valuation allowance related to any such item;
(m)
[reserved];
(n)
earn-out, non-compete and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments
thereof and purchase price adjustments, including in respect of any acquisition consummated prior to the Closing Date;
(o)
[reserved];
(p)
(A) Transaction Costs, (B) any Charges incurred (1) in connection with any transaction (in each case, regardless of whether consummated),
whether or not permitted under this Agreement, including any issuance and/or incurrence of Indebtedness and/or any issuance and/or offering
of Capital Stock (including, in each case, by any Parent Company), any Investment, any acquisition, any Disposition, any recapitalization,
any merger, consolidation or amalgamation, becoming a standalone company, any option buyout or any repayment, redemption, refinancing,
amendment or modification of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums
and prepayment penalties) or any similar transaction, and/or (2) in connection with any Qualifying IPO (whether or not consummated),
(C) the amount of any Charges that are actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement
provisions or similar agreements or insurance (it being understood that if the amount received in cash under any such agreement in any
period exceeds the amount of expense paid during such period, any excess amount received may be carried forward and applied against any
expense in any future period); provided that in respect of any reimbursable Charge that is added back in reliance on clause
(C) above, such relevant Person in good faith expects to receive reimbursement for such Charge within the next four Fiscal Quarters
(with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within the next four Fiscal
Quarters) and/or (D) Public Company Costs;
(q)
non-cash Charges incurred or accrued in connection with any single or one-time event (as determined in good faith by such Person), including
in connection with (A) the Transactions, the Amendment No. 1 Transactions, the Amendment No. 2 Transactions and/or any acquisition consummated
after the Closing Date (including legal, accounting and other professional fees and expenses incurred in connection with acquisitions
and other Investments made prior to the Closing Date), (B) the closing, consolidation or reconfiguration of any facility during such
period or (C) one-time consulting costs;
(r)
non-cash compensation Charges and/or any other non-cash Charges arising from the granting of any stock, stock option or similar arrangement
(including any profits interest), the granting of any restricted stock, stock appreciation right and/or similar arrangement (including
any repricing, amendment, modification, substitution or change of any such stock option, restricted stock, stock appreciation right,
profits interest or similar arrangement or the vesting of any warrant); and
(s)
to the extent such amount would otherwise increase Consolidated Net Income, Taxes paid (including pursuant to any Tax sharing arrangement)
in cash (including, to the extent paid in cash, Taxes arising out of any tax examination) and (B) Tax distributions made in cash during
such period.
In
addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, Consolidated
Net Income will include the proceeds of business interruption insurance in an amount representing the earnings for the applicable period
that such proceeds are intended to replace (whether or not received so long as the Borrower in good faith expects to receive such proceeds
within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent not
so received within the next four Fiscal Quarters)).
“Consolidated
Secured Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt
outstanding on such date that is secured by a Lien on any asset or property of such Person or its Restricted Subsidiaries that constitutes
Collateral.
“Consolidated
Total Assets” means, as to any Person, at any date, all amounts that would, in conformity with GAAP, be set forth opposite
the caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person at such date.
“Consolidated
Total Debt” means, as to any Person at any date of determination, the aggregate principal amount of all third party debt for
borrowed money (including LC Disbursements that have not been reimbursed within three Business Days and the outstanding principal balance
of all Indebtedness of such Person represented by notes, bonds and similar instruments), Attributable Debt and purchase money Indebtedness
(but excluding, for the avoidance of doubt, undrawn letters of credit), in each case of such Person; provided that “Consolidated
Total Debt” shall be calculated (i) net of the Unrestricted Cash Amount, (ii) to exclude any obligation, liability or indebtedness
of such Person if, upon or prior to the maturity thereof, such Person has irrevocably deposited with the proper Person in trust or escrow
the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such obligation, liability or indebtedness,
and thereafter such funds and evidences of such obligation, liability or indebtedness or other security so deposited are not included
in the calculation of the Unrestricted Cash Amount, (iii) to exclude obligations under any Derivative Transaction, any Qualified Receivables
Facility, or under any Indebtedness that is non-recourse to the Borrower and its Restricted Subsidiaries and (iv) to exclude any iStar
Exchange or Excluded Property Transaction.
“Consolidated
Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.
“Consolidated
Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end
of such period; provided that there shall be excluded (a) the effect of reclassification during such period between current assets
and long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior period to give
effect to such reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition of any
Person, facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and contingent obligations
under any Hedge Agreement and (d) the application of purchase or recapitalization accounting.
“Contractual
Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties
is bound or to which it or any of its properties is subject.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Copyright”
means the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright whether published or unpublished,
copyright registrations and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past
or future infringements for any of the foregoing; (d) the right to sue for past, present and future infringements of any of the foregoing;
and (e) all rights corresponding to any of the foregoing.
“Cost
Saving Initiative” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Credit
Extension” means each of (i) the making of a Revolving Loan or Swingline Loan or (ii) the issuance, amendment, modification,
renewal or extension of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase
the Stated Amount of the relevant Letter of Credit).
“Credit
Facilities” means the Revolving Facility and the Term Facility.
“Credit
Suisse” has the meaning assigned to such term in the preamble to this Agreement.
“Cure
Amount” has the meaning assigned to such term in Section 6.15(b).
“Cure
Right” has the meaning assigned to such term in Section 6.15(b).
“Current
Assets” means, at any date, all assets of the Borrower and its Restricted Subsidiaries which under GAAP would be classified
as current assets (excluding any (i) cash or Cash Equivalents (including cash and Cash Equivalents held on deposit for third parties
by the Borrower and/or any Restricted Subsidiary), (ii) permitted loans to third parties, (iii) deferred bank fees and derivative financial
instruments related to Indebtedness, (iv) the current portion of current and deferred Taxes and
(v)
assets held for sale or pension assets).
“Current
Liabilities” means, at any date, all liabilities of the Borrower and its Restricted Subsidiaries which under GAAP would be
classified as current liabilities, other than (i) current maturities of long term debt, (ii) outstanding revolving loans and letter of
credit exposures, (iii) accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is due and unpaid), (iv)
obligations in respect of derivative financial instruments related to Indebtedness, (v) the current portion of current and deferred Taxes,
(vi) liabilities in respect of unpaid earnouts, (vii) accruals relating to restructuring reserves, (viii) liabilities in respect of funds
of third parties on deposit with the Borrower and/or any Restricted Subsidiary, (ix) the current portion of any Capital Lease, (x) any
liabilities recorded in connection with stock based awards, partnership interest based awards, awards of profits interests, deferred
compensation awards and similar initiative based compensation awards or arrangements and (xi) the current portion of any other long term
liability for borrowed money.
“Debt
Fund Affiliate” means any Affiliate (other than a natural person) of the Sponsor that is a bona fide debt fund or investment
vehicle that is engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise
investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business.
“Debtor
Relief Laws” means the Bankruptcy Code of the U.S., and all other liquidation, conservatorship, bankruptcy, general assignment
for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the
U.S. or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declined
Proceeds” has the meaning assigned to such term in Section 2.11(b)(v).
“Default”
means any event or condition which upon notice, lapse of time or both would become an Event of Default.
“Defaulting
Lender” means any Lender that has (a) defaulted in its obligations under this Agreement, including without limitation, to make
a Loan within two Business Days of the date required to be made by it hereunder or to fund its participation in a Letter of Credit or
Swingline Loan required to be funded by it hereunder within two Business Days of the date such obligation arose or such Loan, Letter
of Credit or Swingline Loan was required to be made or funded, (b) notified the Administrative Agent, any Issuing Bank or the Swingline
Lender or any Loan Party in writing that it does not intend to satisfy any such obligation or has made a public statement to the effect
that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend
credit generally (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states
that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together
with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) failed,
within two Business Days after the request of Administrative Agent or the Borrower, to confirm in writing that it will comply with the
terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit
and Swingline Loans; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt
of such written confirmation by the Administrative Agent, (d) become (or any parent company thereof has become) insolvent or been determined
by any Governmental Authority having regulatory authority over such Person or its assets, to be insolvent, or the assets or management
of which has been taken over by any Governmental Authority, (e) become (or any parent company thereof has become) the subject of a bankruptcy
or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance
of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment, unless in the case of any Lender
subject to this clause (e), the Borrower and the Administrative Agent shall each have determined that such Lender intends, and
has all approvals required to enable it (in form and substance satisfactory to each of the Borrower and the Administrative Agent), to
continue to perform its obligations as a Lender hereunder or (f) become (or any parent company thereof has become) the subject of a Bail-In
Action; provided that no Lender shall be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of
any Capital Stock in such Lender or its parent by any Governmental Authority; provided that such action does not result in or
provide such Lender with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of attachment
on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contract or agreement
to which such Lender is a party.
“Deposit
Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or
like organization, excluding, for the avoidance of doubt, any investment property (within the meaning of the UCC) or any account evidenced
by an instrument or negotiable certificate of deposit (within the meaning of the UCC).
“Derivative
Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement,
interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives rise to similar
credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction, including any cross-currency interest-rate swap, any forward foreign-exchange contract, any currency option, and any other instrument linked to exchange
rates that gives rise to similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any equity-linked
option, any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d)
any commodity (including precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any
forward commodity-linked contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided,
that, no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers,
employees, members of management, managers or consultants of the Borrower or its subsidiaries shall constitute a Derivative Transaction.
“Designated
Non-Cash Consideration” means the fair market value (as determined by the Borrower in good faith) of non-Cash consideration
received by the Borrower or any Restricted Subsidiary in connection with any Disposition pursuant to Section 6.07(h) and/or Section
6.08 that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower,
setting forth the basis of such valuation (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection
with a subsequent sale or conversion of such Designated Non-Cash Consideration to Cash or Cash Equivalents).
“Discount
Range” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Disposition”
or “Dispose” means the sale, lease, sublease, or other disposition of any property of any Person. The fair market
value of any assets or other property Disposed of shall be determined by the Borrower in good faith.
“Disqualified
Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, prior
to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such redemption
is in part, only such part coming into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued
shall constitute Disqualified Capital Stock), (b) is or becomes convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (i) debt securities or (ii) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time
on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued, (c) contains any mandatory repurchase
obligation or any other repurchase obligation at the option of the holder thereof (other than for Qualified Capital Stock), in whole
or in part, which may come into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it
being understood that if any such repurchase obligation is in part, only such part coming into effect prior to 91 days following such
Latest Maturity Date at the time such Capital Stock is issued shall constitute Disqualified Capital Stock) or (d) provides for the scheduled
payments of dividends in Cash on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided
that any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or
the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the
issuer thereof to redeem such Capital Stock upon the occurrence of any change of control, Qualifying IPO or any Disposition occurring
prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued shall not constitute Disqualified Capital
Stock if such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior
to the Termination Date.
Notwithstanding
the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees, members
of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or
consultants, in each case in the ordinary course of business of Holdings, the Borrower or any Restricted Subsidiary, such Capital Stock
shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to
satisfy applicable statutory or regulatory obligations and (B) no Capital Stock held by any Permitted Payee shall be considered Disqualified
Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock
option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar
agreement that may be in effect from time to time.
Notwithstanding
the foregoing, in all cases both the Series A Preferred Stock and any preferred Capital Stock required by applicable Requirements of
Law to be issued in connection with obtaining liquor licenses shall be deemed not to be Disqualified Capital Stock hereunder.
“Disqualified
Institution” means:
(a)
(i) any Person identified as such in writing to the Arrangers on June
5, 2017 by way of email from the Sponsor (or its attorneys on such date), (ii) any Person identified as such by the Borrower in writing
after June 5, 2017 (and reasonably satisfactory) to the Arrangers (or if after the Closing Date, to the Administrative Agent in place
of the Arrangers), (iii) any Affiliate of any Person described in clauses (i) or (ii) above that is clearly identifiable
as an Affiliate of such Person on the basis of such Affiliate’s name and (iv) any other Affiliate of any Person described in clauses
(i) or (ii) above that is identified by the Borrower in a written notice to the Arrangers (if prior to the Closing Date) or
the Administrative Agent (if after the Closing Date) (other than Bona Fide Debt Funds other than such Bona Fide Debt Funds excluded pursuant
to clause (a)(i) or (a)(ii) of this paragraph) (each such person described in clauses (i) through (iv) above, a “Disqualified
Lending Institution”);
(b)
(i) any Person that is a Company Competitor and/or any Affiliate of any
Company Competitor (other than any Affiliate that is a Bona Fide Debt Fund) and is identified by the Borrower as such in writing to the
Arrangers (if prior to the Closing Date) or the Administrative Agent (if after the Closing Date), (ii) any Affiliate of any Person described
in clause (i) above (other than any Affiliate that is a Bona Fide Debt Fund) that is clearly identifiable as an Affiliate of such
person on the basis of such Affiliate’s name and (iii) any other Affiliate of any Person described in clause (i) above that
is identified by the Borrower in a written notice to the Arrangers (if prior to the Closing Date) or to the Administrative Agent (if
after the Closing Date) (it being understood and agreed that no Bona Fide Debt Fund may be designated as a Disqualified Institution pursuant
to this clause (iii), but such Bona Fide Debt Fund may be designated as a Disqualified Lending Institution pursuant to clause
(a) above); and
(c)
any Affiliate or Representative of any Arranger and/or any Initial Lender
that is engaged as a principal primarily in private equity, mezzanine financing or venture capital;
it
being understood and agreed that no written notice delivered pursuant to clauses (a)(ii), (a)(iv), (b)(i) and/or
(b)(iii) above shall apply retroactively to disqualify any Person that has previously acquired an assignment or participation
interest in any Loans if such Person was not a Disqualified Institution at the time of acquisition of such assignment or participation
interest.
“Disqualified
Lending Institution” has the meaning assigned to such term in the definition of “Disqualified Institution”.
“Disregarded
Domestic Subsidiary” means any Domestic Subsidiary that has no material assets other than the Capital Stock and/or Indebtedness
of one or more Foreign Subsidiaries, IP Rights related to such Foreign Subsidiaries, Cash or Cash Equivalents, and other incidental assets
related thereto or that has no material assets other than Capital Stock and/or Indebtedness of one or more Disregarded Domestic Subsidiaries.
“Dollars”
or “$” refers to lawful money of the U.S.
“Domestic
Subsidiary” means any Restricted Subsidiary incorporated or organized under the laws of the U.S., any state thereof or the
District of Columbia.
“Dutch
Auction” means an auction (an “Auction”) conducted by any Affiliated Lender or any Debt Fund Affiliate (any
such Person, the “Auction Party”) in order to purchase Initial Term Loans (or any Additional Term Loans), in accordance
with the following procedures (as may be modified by such Affiliated Lender or Debt Fund Affiliate (as applicable) and the applicable
“auction agent” in connection with a particular Auction transaction); provided that no Auction Party shall initiate
any Auction unless (I) at least five Business Days have passed since the consummation of the most recent purchase of Term Loans pursuant
to an Auction conducted hereunder; or (II) at least three Business Days have passed since the date of the last Failed Auction (or equivalent)
which was withdrawn:
(a)
Notice Procedures. In connection with any Auction, the Auction Party will provide notification to the Auction Agent (for distribution
to the relevant Lenders) of the Term Loans that will be the subject of the Auction (an “Auction Notice”). Each Auction
Notice shall be in a form reasonably acceptable to the Auction Agent and shall (i) specify the maximum aggregate principal amount of
the Term Loans subject to the Auction, in a minimum amount of $10,000,000 and whole increments of $1,000,000 in excess thereof (or, in
any case, such lesser amount of such Term Loans then outstanding or which is otherwise reasonably acceptable to the Auction Agent and
the Administrative Agent (if different from the Auction Agent)) (the “Auction Amount”), (ii) specify the discount
to par (which may be a range (the “Discount Range”) of percentages of the par principal amount of the Term Loans subject
to such Auction), that represents the range of purchase prices that the Auction Party would be willing to accept in the Auction, (iii)
be extended, at the sole discretion of the Auction Party, to (x) each Lender and/or (y) each Lender with respect to any Term Loan on
an individual Class basis and (iv) remain outstanding through the Auction Response Date. The Auction Agent will promptly provide each
appropriate Lender with a copy of the Auction Notice and a form of the Return Bid to be submitted by a responding Lender to the Auction
Agent (or its delegate) by no later than 5:00 p.m. on the date specified in the Auction Notice (or such later date as the Auction Party
may agree with the reasonable consent of the Auction Agent) (the “Auction Response Date”).
(b)
Reply Procedures. In connection with any Auction, each Lender holding the relevant Term Loans subject to such Auction may, in
its sole discretion, participate in such Auction and may provide the Auction Agent with a notice of participation (the “Return
Bid”) which shall be in a form reasonably acceptable to the Auction Agent, and shall specify (i) a discount to par (that must
be expressed as a price at which it is willing to sell all or any portion of such Term Loans) (the “Reply Price”),
which (when expressed as a percentage of the par principal amount of such Term Loans) must be within the Discount Range and (ii) a principal
amount of such Term Loans, which must be in whole increments of $1,000,000 (or, in any case, such lesser amount of such Term Loans of
such Lender then outstanding or which is otherwise reasonably acceptable to the Auction Agent) (the “Reply Amount”).
Lenders may only submit one Return Bid per Auction, but each Return Bid may contain up to three bids only one of which may result in
a Qualifying Bid. In addition to the Return Bid, the participating Lender must execute and deliver, to be held in escrow by the Auction
Agent, an Assignment and Assumption with the dollar amount of the Term Loans to be assigned to be left in blank, which amount shall be
completed by the Auction Agent in accordance with the final determination of such Lender’s Qualifying Bid pursuant to clause
(c) below. Any Lender whose Return Bid is not received by the Auction Agent by the Auction Response Date shall be deemed to have
declined to participate in the relevant Auction with respect to all of its Term Loans.
(c)
Acceptance Procedures. Based on the Reply Prices and Reply Amounts received by the Auction Agent prior to the applicable Auction
Response Date, the Auction Agent, in consultation with the Auction Party, will determine the applicable price (the “Applicable
Price”) for the Auction, which will be the lowest Reply Price for which the Auction Party can complete the Auction at the Auction
Amount; provided that, in the event that the Reply Amounts are insufficient to allow the Auction Party to complete a purchase
of the entire Auction Amount (any such Auction, a “Failed Auction”), the Auction Party shall either, at its election,
(i) withdraw the Auction or (ii) complete the Auction at an Applicable Price equal to the highest Reply Price. The Auction Party shall
purchase the relevant Term Loans (or the respective portions thereof) from each Lender with a Reply Price that is equal to or lower than
the Applicable Price (“Qualifying Bids”) at the Applicable Price; provided that if the aggregate proceeds required
to purchase all Term Loans subject to Qualifying Bids would exceed the Auction Amount for such Auction, the Auction Party shall purchase
such Term Loans at the Applicable Price ratably based on the principal amounts of such Qualifying Bids (subject to rounding requirements
specified by the Auction Agent in its discretion). If a Lender has submitted a Return Bid containing multiple bids at different Reply
Prices, only the bid with the lowest Reply Price that is equal to or less than the Applicable Price will be deemed to be the Qualifying
Bid of such Lender (e.g., a Reply Price of $100 with a discount to par of 1%, when compared to an Applicable Price of $100 with a 2%
discount to par, will not be deemed to be a Qualifying Bid, while, however, a Reply Price of $100 with a discount to par of 2.50% would
be deemed to be a Qualifying Bid). The Auction Agent shall promptly, and in any case within five Business Days following the Auction
Response Date with respect to an Auction, notify (I) the Borrower of the respective Lenders’ responses to such solicitation, the
effective date of the purchase of Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount of the
Term Loans and the tranches thereof to be purchased pursuant to such Auction, (II) each participating Lender of the effective date of
the purchase of Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount and the tranches of Term
Loans to be purchased at the Applicable Price on such date, (III) each participating Lender of the aggregate principal amount and the
tranches of the Term Loans of such Lender to be purchased at the Applicable Price on such date and (IV) if applicable, each participating
Lender of any rounding and/or proration pursuant to the second preceding sentence. Each determination by the Auction Agent of the amounts
stated in the foregoing notices to the Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error.
(d)
Additional Procedures.
(i)
Once initiated by an Auction Notice, the Auction Party may not withdraw an Auction other than a Failed Auction. Furthermore, in connection
with any Auction, upon submission by a Lender of a Qualifying Bid, such Lender (each, a “Qualifying Lender”) will
be obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Price.
(ii)
To the extent not expressly provided for herein, each purchase of Term Loans pursuant to an Auction shall be consummated pursuant to
procedures consistent with the provisions in this definition, established by the Auction Agent acting in its reasonable discretion and
as reasonably agreed by the Borrower.
(iii)
In connection with any Auction, the Borrower and the Lenders acknowledge and agree that the Auction Agent may require as a condition
to any Auction, the payment of customary fees and expenses by the Auction Party in connection therewith as agreed between the Auction
Party and the Auction Agent.
(iv)
Notwithstanding anything in any Loan Document to the contrary, for purposes of this definition, each notice or other communication
required to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the
Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication; provided
that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the
opening of business on the next Business Day.
(v) The
Borrower and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this definition by itself
or through any Affiliate of the Auction Agent and expressly consent to any such delegation of duties by the Auction Agent to such Affiliate
and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each
Affiliate of the Auction Agent and its respective activities in connection with any purchase of Term Loans provided for in this definition
as well as activities of the Auction Agent.
“EAP
Substitution” has the meaning assigned to such term in the iStar Sale/Leaseback Documents.
“EAP
Substitution Property” means any property that is the subject of an EAP Substitution.
“EEA
Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA
Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA
Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ECF Prepayment Amount”
has the meaning assigned to such term in Section 2.11(b)(i).
“Effective Yield”
means, as to any Indebtedness, the effective yield applicable thereto calculated by the Administrative Agent in consultation with the
Borrower in a manner consistent with generally accepted financial practices, taking into account (a) interest rate margins, (b) interest
rate floors (subject to the proviso set forth below), (c) any amendment to the relevant interest rate margins and interest rate floors
prior to the applicable date of determination and (d) original issue discount and upfront or similar fees (based on an assumed four-year
average life to maturity or lesser remaining average life to maturity), but excluding (i) any advisory, arrangement, commitment, consent,
structuring, success, underwriting, ticking, unused line fees, amendment fees and/or any similar fees payable in connection therewith
(regardless of whether any such fees are paid to or shared in whole or in part with any lender) and (ii) any other fee that is not paid
directly by the Borrower generally to all relevant lenders ratably (or, if only one lender (or affiliated group of lenders) is providing
such Indebtedness, are fees of the type not customarily shared with lenders generally); provided, that with respect to any Indebtedness
that includes a “LIBOR floor” or “Base Rate floor”, that (A) to the extent that the Published LIBO Rate (for
an Interest Period of three months) or Alternate Base Rate (in each case without giving effect to any floor specified in the definition
thereof on the date on which the Effective Yield is being calculated) is less than such floor, the amount of such difference will be
deemed added to the interest rate margin applicable to such Indebtedness for purposes of calculating the Effective Yield and (B) to the
extent that the Published LIBO Rate (for an Interest Period of three months) or Alternate Base Rate (in each case, without giving effect
to any floor specified in the definitions thereof) is greater than such floor, the floor will be disregarded in calculating the Effective
Yield.
“Eligible
Assignee” means (a) any Lender, (b) any commercial bank, insurance company, finance company, financial institution, any fund
that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), (c) any Affiliate
of any Lender, (d) any Approved Fund of any Lender or (e) to the extent permitted under Section 9.05(g) or with respect to the
Revolving Loans and Revolving Credit Commitments of any Defaulting Lender, any Affiliated Lender or any Debt Fund Affiliate; provided
that in any event, “Eligible Assignee” shall not include (i) any natural person, (ii) any Disqualified Institution or
Defaulting Lender or (iii) except as permitted under Section 9.05(g) or except with respect to the Revolving Loans and Revolving
Credit Commitments of any Defaulting Lender, the Borrower or any of its Affiliates.
“Employee
Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (regardless of whether such
plan is subject to ERISA) which is sponsored, maintained or contributed to by, or required to be contributed to by, Borrower or any of
its Subsidiaries.
“Environmental
Claim” means any written investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order
or other order, decree or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant
to or in connection with any actual or alleged violation of any Environmental Law; or (b) in connection with any actual or alleged Hazardous
Materials Activity.
“Environmental
Laws” means any and all applicable foreign or domestic, federal, state or local (or any subdivision thereof), statutes, ordinances,
orders, decrees, rules, regulations, judgments, Governmental Authorizations, or any other applicable binding requirements of Governmental
Authorities or the common law relating to (a) pollution or the protection of the environment or natural resources, human health and safety
(to the extent relating to the exposure to any hazardous material) or other environmental matters; or (b) any Hazardous Materials Activity
or any exposure of any Person to any hazardous material.
“Environmental
Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any Restricted Subsidiary directly or indirectly resulting from or based upon (a)
any actual or alleged violation of any Environmental Law, (b) any Hazardous Materials Activity, (c) exposure to any Hazardous Materials,
(d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other legally
binding arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Contribution”
has the meaning assigned to such term in the Recitals to this Agreement.
“ERISA” means the Employee Retirement Income
Security Act of 1974.
“ERISA
Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within
the meaning of Section 414(b) of the Code of which that Person is a member; and (b) any trade or business (whether or not incorporated)
which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that
Person is a member.
“ERISA
Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder
with respect to any Pension Plan (excluding those for which the 30-day notice period has been waived); (b) the failure to meet the minimum
funding standard of Section 412 of the Code with respect to any Pension Plan; (c) the filing of any request for or receipt of a minimum
funding waiver under Section 412 of the Code with respect to any Pension Plan; (d) engaging in a non-exempt prohibited transaction within
the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Pension Plan; (e) the provision by the administrator
of any Pension Plan pursuant to Section 4041(a)(2) or Section 302 of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (f) the withdrawal by the Borrower, any of its Restricted Subsidiaries or any of their
respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting
in liability to the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4063
or 4064 of ERISA; (g) the filing by the PBGC of judicial proceedings to terminate any Pension Plan; (h) the imposition of liability on
the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA
or by reason of the application of Section 4212(c) of ERISA; (i) a complete or partial withdrawal (within the meaning of Sections 4203
and 4205 of ERISA) of the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates from any Multiemployer
Plan if there is any potential liability therefor under Title IV of ERISA, or the receipt by the Borrower, any of its Restricted Subsidiaries
or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA,
or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; or (j) the incurrence of liability or the imposition
of a Lien pursuant to Section 436 or 430(k) of the Code or pursuant to ERISA with respect to any Pension Plan.
“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
person), as in effect from time to time.
“Event of Default” has the meaning assigned
to such term in Article 7.
“Excess Cash Flow” means, for any Excess
Cash Flow Period, an amount (if positive) equal to:
(a) the sum, without duplication,
of the amounts for such period of the following:
(i) Consolidated
Adjusted EBITDA for such period without giving effect to clause (b)(x) of the definition thereof, plus
(ii) the Consolidated Working
Capital Adjustment for such period, plus
(iii) cash
gains of the type described in clauses (b), (c), (d), (e) and (f) of the definition of “Consolidated
Net Income”, to the extent not otherwise included in calculating Consolidated Adjusted EBITDA (except to the extent such gains consist
of proceeds utilized in calculating Net Proceeds falling under paragraph (a) of the definition thereof or Net Insurance/Condemnation
Proceeds subject to Section 2.11(b)(ii)), plus
(iv) to
the extent not otherwise included in the calculation of Consolidated Adjusted EBITDA for such period, cash payments received by the Borrower
or any of its Restricted Subsidiaries with respect to amounts deducted from Excess Cash Flow in a prior period pursuant to clause (b)(vii)
below, minus
(b) the sum, without duplication,
of the amounts for such period (or, in the case of clauses (b)(i), (b)(iii), (b)(iv), (b)(x), (b)(xi), (b)(xiii) and (b)(xiv), at the
option of the Borrower, amounts after such period to the extent paid prior to the date of the applicable Excess Cash Flow payment) of
the following:
(i) the
aggregate principal amount of (i) all optional prepayments of Indebtedness (other than any (A) optional prepayment of Indebtedness that
is deducted in calculating the amount of any Excess Cash Flow payment in accordance with Section 2.11(b)(i) or (B) revolving Indebtedness
except to the extent any related commitment is permanently reduced in connection with such repayment), (ii) all mandatory prepayments
and scheduled repayments of Indebtedness and (iii) the aggregate amount of any premiums, make-whole or penalty payments actually paid
in Cash by the Borrower and/or any Restricted Subsidiary that are or were required to be made in connection with any prepayment of Indebtedness,
in each case, except to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness), plus
(ii) [reserved], plus
(iii) Consolidated
Interest Expense to the extent paid or payable in Cash (including (A) fees and expenses paid to the Administrative Agent in connection
with its services hereunder, (B) other bank, administrative agency (or trustee) and financing fees (including rating agency fees and other
fees in respect of any Second Lien Facility), (C) costs of surety bonds in connection with financing activities (whether amortized or
immediately expensed) and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments, letters of
credit, bank guarantees, bankers’ acceptances or any similar facilities or financing and Hedge Agreements), plus
(iv) Taxes
(including Taxes paid or payable pursuant to any Tax sharing arrangement or arrangements and/or any Tax distribution) paid or payable,
and provisions for Taxes, to the extent payable in Cash with respect to such Excess Cash Flow Period, plus
(v) [reserved], plus
(vi) any
foreign translation losses paid or payable in Cash (including any currency re-measurement of Indebtedness, any net gain or loss resulting
from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction
or any other currency-related risk) to the extent included in calculating Consolidated Adjusted EBITDA, plus
(vii) amounts
added back under (i) clauses (b)(xii), (b)(xiv), (b)(xix), (b)(xx), (b)(xxi) or (b)(xxii) of
the definition of “Consolidated Adjusted EBITDA” or (ii) the last paragraph of the definition of Consolidated Net Income with
respect to business interruption insurance, in each case to the extent such amounts have not yet been received by the Borrower or its
Restricted Subsidiaries, plus
(viii) an
amount equal to (A) all Charges either (1) excluded in calculating Consolidated Net Income or (2) added back in calculating Consolidated
Adjusted EBITDA, in each case, to the extent paid or payable in cash and (B) without duplication of amounts deducted in clause (c)(i)
of the definition of Consolidated Adjusted EBITDA, any non-cash item of gain or income included in calculating Consolidated Net Income,
plus
(ix) [reserved], plus
(x) to
the extent not expensed (or exceeding the amount expensed) during such period or not deducted (or exceeding the amount deducted) in calculating
Consolidated Net Income, the aggregate amount of Charges paid or payable in Cash by the Borrower and its Restricted Subsidiaries during
such period, other than to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness), plus
(xi) Cash
payments (other than in respect of Taxes, which are governed by clause (iv) above) made during such period for any liability the accrual
of which in a prior period did not reduce Consolidated Adjusted EBITDA and therefore increased Excess Cash Flow in such prior period (provided
there was no other deduction to Consolidated Adjusted EBITDA or Excess Cash Flow related to such payment), except to the extent financed
with long term funded Indebtedness (other than revolving Indebtedness), plus
(xii) [reserved], plus
(xiii) amounts
paid in Cash (except to the extent financed with long term funded Indebtedness (other than revolving Indebtedness)) during such period
on account of (A) items that were accounted for as non-Cash reductions of Consolidated Net Income or Consolidated Adjusted EBITDA in a
prior period and (B) reserves or amounts established in purchase accounting to the extent such reserves or amounts are added back to,
or not deducted from, Consolidated Net Income, plus
(xiv) the
amount of any payment of Cash made during such period to be amortized or expensed over a future period and recorded as a long-term asset,
plus
(xv) the
amount of any Tax obligation of the Borrower and/or any Restricted Subsidiary that is estimated in good faith by the Borrower as due and
payable (but is not currently due and payable) by the Borrower and/or any Restricted Subsidiary as a result of the repatriation of any
dividend or similar distribution of net income of any Foreign Subsidiary to the Borrower and/or any Restricted Subsidiary, plus
(xvi) to
the extent included in the calculation of Consolidated Adjusted EBITDA for such period, the amount of any insurance proceeds received
by the Borrower or any Restricted Subsidiary during such period under the Representation and Warranty Insurance Policy, plus
(xvii) the
aggregate amount of any extraordinary, unusual, special or non-recurring cash Charges paid or payable during such period (whether or
not incurred in such Excess Cash Flow Period) that were excluded in calculating Consolidated Adjusted EBITDA (including any component
definition used therein) for such period, plus
(xviii) to the
extent included in calculating Consolidated Adjusted EBITDA, the aggregate amounts received by the Borrower or any Restricted Subsidiary
pursuant to any iStar Exchange or Excluded Property Transaction.
“Excess
Cash Flow Period” means each full Fiscal Year of the Borrower ending after the Closing Date (commencing, for the avoidance of
doubt, with the Fiscal Year ending on or about June 30, 2018).
“Exchange
Act” means the Securities Exchange Act of 1934 and the rules and regulations of the SEC promulgated thereunder.
“Excluded Assets” means each of the following:
(a) any asset
(including any General Intangibles and any contract, instrument, lease, license, permit, agreement or other document, or any property
or other right subject thereto (including pursuant to a purchase money security interest, capital lease or similar arrangement or, in
the case of after-acquired property, pre-existing secured Indebtedness not incurred in anticipation of the acquisition by the Loan Party
of such property)) the grant or perfection of a security interest in which would (i) constitute a violation of a restriction in favor
of a third party (other than a Loan Party) or result in the abandonment, invalidation or unenforceability of any right or assets of the
relevant Loan Party, (ii) result in a breach, termination (or a right of termination) or default under any such contract, instrument,
lease, license, permit, agreement or other document (including pursuant to any “change of control” or similar provision) (there
being no requirement pursuant to any Loan Document to obtain any consent in respect thereof from any Person that is not also a Loan Party)
or (iii) permit any Person (other than any Loan Party) to amend any rights, benefits and/or obligations of the relevant Loan Party or
Restricted Subsidiary in respect of such relevant asset or permit such Person to require any Loan Party or any subsidiary of the Borrower
to take any action materially adverse to the interests of such subsidiary or Loan Party; provided, however, that any such
asset will only constitute an Excluded Asset under clause (i), clause (ii) or clause (iii) above to the extent such
violation or breach, termination (or right of termination), default or right to amend would not be rendered ineffective pursuant to Sections
9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable
Requirement of Law; provided, further, that any such asset shall cease to constitute an Excluded Asset at such time as the
condition causing such violation, breach, termination (or right of termination) or default or right to amend or require other actions
no longer exists and to the extent severable, the security interest granted under the applicable Collateral Document shall attach immediately
to any portion of such General Intangible or other right that does not result in any of the consequences specified in clauses (i)
through (iii) above,
(b) the Capital
Stock of any (i) Captive Insurance Subsidiary, (ii) Unrestricted Subsidiary, (iii) broker-dealer subsidiary, (iv) not-for-profit subsidiary
and/or (v) special purpose entity used for any securitization facility permitted hereunder or any Receivables Subsidiary,
(c) any (i)
foreign IP Rights and/or (ii) intent-to-use (or similar) Trademark application prior to the filing of a “Statement of Use”,
“Amendment to Allege Use” or similar filing with respect thereto, only to the extent, if any, that, and solely during the
period, in which, if any, the grant of a security interest therein may impair the validity or enforceability, or result in the voiding
of, such intent-to-use Trademark application or any registration issuing therefrom under applicable law,
(d)
any asset or property (including Capital Stock), the grant or perfection of a security interest in which would (A) require any governmental
or regulatory consent, approval, license or authorization (there being no requirement under any Loan Document to obtain the consent,
approval, license or authorization of any Governmental Authority or other Person (other than any Loan Party), including, without limitation,
no requirement to comply with the Federal Assignment of Claims Act or any similar statute), (B) be prohibited or restricted by applicable
Requirements of Law (including enforceable anti-assignment provisions of applicable Requirements of Law), except, in the case of this
clause (B), to the extent such prohibition would be rendered ineffective under applicable anti-assignment provisions of the UCC
of any relevant jurisdiction notwithstanding such prohibition, (C) trigger termination of any contract pursuant to a “change of
control” or similar provision or (D) result in adverse tax or regulatory consequences to any Loan Party or any of its subsidiaries
or Parent Companies as determined by the Borrower in good faith following consultation with the Administrative Agent,
(e) (i) except
to the extent a security interest therein can be perfected by the filing of an “all-assets” UCC-1 financing statement, any
leasehold interest, (ii) any real property or real property interest that is not a Material Real Estate Asset, (iii) any real property
(including improvements) or real property interest (including improvements) that was leased by the Borrower or any of its Subsidiaries
and later deeded or conveyed to the Borrower or any other Loan Party, (iv) any real property (including improvements) or real property
interest (including improvements) owned by a Loan Party immediately prior to the Closing Date and not required to be subject to a mortgage
or security interest pursuant to the terms of the Existing Credit Facilities (including the real property (and improvements thereto) set
forth on Schedule 1.01(e) hereto) or the terms hereunder and (v) any Excluded Property,
(f) any Capital
Stock of any Person that is not a Wholly-Owned Restricted Subsidiary or that is an Immaterial Subsidiary,
(g) any Margin Stock,
(h) the voting
Capital Stock of any Foreign Subsidiary that is a “controlled foreign corporation” (as defined in Section 957(a) of the Code)
or Disregarded Domestic Subsidiary, other than 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary or Disregarded
Domestic Subsidiary, as applicable,
(i) any Letter-of-Credit-Right
(other than to the extent a security interest in such Letter-of-Credit-Right can be perfected by filing an “all-assets” UCC
financing statement, without need for any other action) and all Commercial Tort Claims,
(j) any Cash or
Cash Equivalents (other than Cash and Cash Equivalents representing identifiable proceeds of other Collateral, a security interest in
which can be perfected through the filing of an “all-assets” UCC financing statement or which is perfected or arises by law
(including without limitation, the UCC), in each case without need for any action by any Loan Party or any Affiliate thereof),
(k) any Deposit
Account or commodity or securities account (including any securities entitlement and any related asset) (except to the extent a security
interest therein can be perfected through the filing of an “all assets” UCC financing statement (without need for any other
action); it being understood that Cash and Cash Equivalents representing identifiable proceeds of other Collateral as referred to in the
preceding clause (j) are not excluded hereby, and shall constitute Collateral (but any other Cash or Cash Equivalents shall not constitute
Collateral), but there shall be no requirement for any control agreement (or similar agreement)),
(l)
any motor vehicle, airplane or other asset subject to a certificate of title (other than to the extent a security interest therein can
be perfected by filing an “all assets” UCC financing statement (without need for any other action) and without the requirement
to list any VIN, serial or similar number),
(m) any governmental
or regulatory license or state or local franchise, charter, consent, permit or authorization to the extent the granting of a security
interest therein is prohibited or restricted thereby or by applicable Requirements of Law; provided, however, that any such
asset will only constitute an Excluded Asset under this clause (m) to the extent such prohibition or restriction would not be rendered
ineffective pursuant to applicable anti-assignment provisions of the UCC of any relevant jurisdiction,
(n) Receivables
Facility Assets and related assets sold or otherwise transferred to a Receivables Subsidiary or otherwise pledged, transferred or sold
in connection with a Receivables Facility, factoring transaction or any similar arrangement permitted hereunder,
(o) any asset
with respect to which the Administrative Agent and the relevant Loan Party have determined in good faith that the cost, burden, difficulty
or consequence (including any effect on the ability of the relevant Loan Party to conduct its operations and business in the ordinary
course of business) of obtaining or perfecting a security interest therein outweighs the benefit of a security interest to the relevant
Secured Parties afforded thereby, and
(p) any league
deposits to the extent identifiable as such pursuant to the ledgers maintained by the Loan Parties.
“Excluded
Property” means any SLB Property, the properties (and improvements) set forth on Schedule 1.01(f) hereto, any EAP Substitution
Property, any other Real Estate Asset not required to be subject to a Mortgage in favor of the Administrative Agent and any other property
purchased with the proceeds of a Disposition of any of the foregoing.
“Excluded
Property Limited Recourse Financing” means any financing (other than a Sale and Lease-Back Transaction) with respect to an Excluded
Property that constitutes Limited Recourse Financing with respect to the Borrower or any Subsidiary.
“Excluded
Property Limited Recourse Financing Documents” means all definitive documentation, guarantees, agreements, certificates,
instruments and related ancillary documentation entered into by the Borrower or any Subsidiary after the date hereof in connection
with any Excluded Property Limited Recourse Financing, in each case as the same may be amended, modified or supplemented from time
to time hereafter in accordance with the provisions thereof, and including all basic financing information and all other agreements,
documents and instruments relating to the Excluded Property Limited Recourse Financing and all exhibits and schedules to any of the
foregoing.
“Excluded
Property Sale/Leaseback Transaction” means any Sale and Lease-Back Transaction with respect to one or more Excluded Properties
effected after the date hereof, including any amendment or modification of the iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“Excluded
Property Sale/Leaseback Transaction Documents” means the definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the date hereof in connection with any Excluded
Property Sale/Leaseback Transaction, in each case as the same may be amended, modified or supplemented from time to time hereafter in
accordance with the provisions thereof, and including all basic lease information and all other agreements, documents and instruments
relating to the Excluded Property Sale/Leaseback Transaction and all exhibits and schedules to any of the foregoing.
“Excluded Property Transaction”
means any Excluded Property Sale/Leaseback Transaction and any Excluded Property Limited Recourse Financing.
“Excluded Property Transaction
Documents” means the Excluded Property Sale/Leaseback Transaction Documents and any Excluded Property Limited Recourse Financing
Documents.
“Excluded Subsidiary” means:
(a) any Restricted Subsidiary that
is not a Wholly-Owned Subsidiary,
(b) any Immaterial Subsidiary,
(c) any Restricted
Subsidiary that is prohibited or restricted by law, rule or regulation or contractual obligation from providing a Loan Guaranty or that
would require a governmental (including regulatory) or third party consent, approval, license or authorization to provide a Loan Guaranty
(including under any financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance or similar
legal principles) unless such consent has been received, it being understood that Holdings and its subsidiaries shall have no obligation
to obtain any such consent, approval, license or authorization,
(d) any not-for-profit subsidiary,
(e) any Captive Insurance Subsidiary
or subsidiary that is a broker-dealer,
(f) any special
purpose entity (including a special purpose entity used for any permitted securitization or receivables facility or financing, or established
in connection with any iStar Exchange or Excluded Property Transaction) and any Receivables Subsidiary,
(g) any Foreign Subsidiary,
(h) (i) any Disregarded
Domestic Subsidiary or (ii) any Domestic Subsidiary that is a direct or indirect subsidiary of any Foreign Subsidiary or any Disregarded
Domestic Subsidiary,
(i) any Unrestricted Subsidiary,
(j) any subsidiary
acquired pursuant to a Permitted Acquisition or other Investment permitted by this Agreement that has assumed secured Indebtedness not
incurred in contemplation of such Permitted Acquisition or other Investment and any Restricted Subsidiary thereof that guarantees such
secured Indebtedness, in each case to the extent the terms of such secured Indebtedness prohibit such subsidiary from becoming a Guarantor,
(k) [reserved],
(l) any Restricted
Subsidiary if the provision of a Loan Guaranty could reasonably be expected to result in adverse tax or regulatory consequences to any
Loan Party or any of its subsidiaries or Parent Companies as determined by the Borrower in good faith, and
(m) any other
Restricted Subsidiary with respect to which, in the good faith judgment of the Administrative Agent and the Borrower, the burden or cost
of providing a Loan Guaranty outweighs the benefits afforded thereby.
“Excluded
Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of
the Loan Guaranty of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any
Loan Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures
Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any
reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder
(determined after giving effect to Section 3.20 of the Loan Guaranty and any other “keepwell”, support or other agreement
for the benefit of such Loan Party) at the time the Loan Guaranty of such Loan Party or the grant of such security interest becomes effective
with respect to such Swap Obligation. If any Swap Obligation arises under a master agreement governing more than one swap, such exclusion
shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Loan Guaranty or security interest
is or becomes illegal.
“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender or Issuing Bank or any other recipient of any payment to
be made by or on account of any obligation of any Loan Party hereunder, (a) Taxes imposed on (or measured by) its net income or franchise
Taxes (i) by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) any branch profits
taxes imposed by the U.S. or any similar tax imposed by any other jurisdiction described in clause (a), (c) in the case of a Lender,
any U.S. withholding tax that is imposed on amounts payable to such Lender at the time such Lender acquires an interest in a Loan or Commitment
(or designates a new lending office), except (i) pursuant to an assignment or designation of a new lending office under Section 2.19
and (ii) to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from any Loan Party with respect to such withholding tax pursuant to Section 2.17, (d)
any tax imposed as a result of a failure by the Administrative Agent or any Lender or Issuing Bank to comply with Section 2.17(f)
and (e) any withholding tax under FATCA.
“Existing Credit Facilities”
has the meaning assigned to such term in Section 4.01(h).
“Existing Letter of Credit”
means each letter of credit set forth on Schedule 1.01(b).
“Existing
Letter of Credit Issuer” means each Lender or Affiliate of a Lender that issued an Existing Letter of Credit.
“Existing Sponsor”
means Cerberus Capital Management, L.P. and its respective Affiliates.
“Expected
Cost Savings” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Extended Revolving
Credit Commitment” has the meaning assigned to such term in Section 2.23(a).
“Extended Revolving Loans” has the
meaning assigned to such term in Section 2.23(a).
“Extended Term Loans” has the meaning
assigned to such term in Section 2.23(a)(ii).
“Extension”
has the meaning assigned to such term in Section 2.23(a)(ii).
“Extension
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (to the extent
required by Section 2.23) and the Borrower, executed by each of (a) the Borrower, (b) the Administrative Agent and (c) each Lender
that has accepted the applicable Extension Offer pursuant hereto and in accordance with Section 2.23.
“Extension Offer”
has the meaning assigned to such term in Section 2.23(a).
“Facility”
means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or, except with respect
to Articles 5 and 6, hereof owned, leased, operated or used by the Borrower or any of its Restricted Subsidiaries or any
of their respective predecessors or Affiliates.
“Failed
Auction” has the meaning assigned to such term in the definition of “Dutch Auction”.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreement entered into pursuant to Section 1471(b)(1) of the Code, and any law, regulation, rules, practice or other published administrative
guidance adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such section of the
Code.
“Federal Assignment
of Claims Act” means the Federal Assignment of Claims Act (41 U.S.C.§ 15).
“Federal
Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s
federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York sets forth
on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as
the federal funds effective rate; provided that if such rate as determined above is at any time negative, the Federal Funds Effective
Rate at such time shall instead be zero.
“Fee
Letter” means that certain Amended and Restated Fee Letter, dated as of June 15, 2017, by and among, inter alios, Parent
and the Arrangers, as amended to date.
“Financial Covenant” means the covenant
in the first sentence of Section 6.15(a).
“First
Lien Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated First Lien Debt as of such date to
(b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “First
Lien Leverage Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries.
“First
Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that,
subject to the Intercreditor Agreement or any other applicable intercreditor agreement, such Lien is senior in priority to any other Lien
to which such Collateral is subject, other than any Permitted Lien.
“Fiscal Quarter” means a fiscal quarter
of any Fiscal Year.
“Fiscal
Year” means the fiscal year of the Borrower ending on or about June 30 of each calendar year, as such fiscal year end may be
adjusted in accordance with the terms of this Agreement.
“Fixed Amounts” has the meaning assigned
to such term in Section 1.04(g).
“Flood
Hazard Property” means any Material Real Estate Asset subject to a Mortgage if any building included in such Material Real Estate
Asset is located in an area designated by the Federal Emergency Management Agency as having special flood hazards.
“Flood
Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of
1973, (iii) the National Flood Insurance Reform Act of 1994, (iv) the Flood Insurance Reform Act of 2004 and (v) the Biggert–Waters
Flood Insurance Reform Act of 2012, each as now or hereafter in effect or any successor statute thereto, and in each case, together with
all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing,
as amended or modified from time to time.
“Foreign
Asset Disposition” means a Disposition where the relevant asset is (A) the stock of or assets of a Foreign Subsidiary or (B)
one or more assets of the Borrower or any Restricted Subsidiary which are located outside the United States or any territory thereof.
“Foreign Lender” means
any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“Foreign Subsidiary” means any Restricted
Subsidiary that is not a Domestic Subsidiary.
“Funding Account” has the meaning
assigned to such term in Section 2.03(f).
“GAAP” means generally
accepted accounting principles in the U.S. in effect and applicable to the accounting period in respect of which reference to GAAP is
made.
“General Intangibles” has the meaning set
forth in Article 9 of the UCC.
“Governmental
Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau,
court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the U.S.,
a foreign government or any political subdivision of either thereof.
“Governmental Authorization”
means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Granting Lender” has the meaning assigned
to such term in Section 9.05(e).
“GS Bank” has the meaning assigned
to such term in the preamble to this Agreement.
“Guarantee”
of or by any Person (the “Guarantor”) means any obligation, contingent or otherwise, of the Guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “Primary
Obligor”) in any manner and including any obligation of the Guarantor (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner
of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other
monetary obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness
or monetary obligation, (e) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness
or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole
or in part) or (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of any
other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or any right, contingent or
otherwise, of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business, or customary and reasonable indemnity obligations
in effect on the Closing Date or entered into in connection with any acquisition, Disposition or other transaction permitted under this
Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made
or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith.
“Hazardous
Materials” means any chemical, material, substance or waste, or any constituent thereof, which is prohibited, limited or regulated
by any Environmental Law due to its hazardous, toxic or similar characteristics, including any chemical, material, substance or waste
defined or listed as “hazardous” or “toxic” in any Environmental Law.
“Hazardous
Materials Activity” means the use, manufacture, possession, storage, holding, Release, threatened Release, discharge, placement,
generation, transportation, processing, treatment, abatement, removal, investigation, remediation, disposal, disposition or handling of
any Hazardous Material, and any corrective action or response action with respect to any of the foregoing.
“Hedge
Agreement” means any agreement with respect to any Derivative Transaction between any Loan Party or any Restricted Subsidiary
and any other Person.
“Hedging
Obligations” means, with respect to any Person, the obligations of such Person under any Hedge Agreement.
“Holdings”
means (a) initially, Merger Sub 1, and after giving effect to the Merger Sub 1 Merger, the Target (in each case prior to the consummation
of a transaction described in clause (b) of this definition) and (b) following the consummation of a transaction permitted hereunder
that results in a New Holdings, New Holdings.
“Holdings
Reorganization Transaction” means (a) the contribution by Holdings of 100% of the Capital Stock of the Borrower to a newly formed
domestic “shell” company owned or controlled by the Permitted Holders or (b) the merger or other consolidation of Holdings
with another Person that, after giving effect thereto, shall hold 100% of the Capital Stock of the Borrower, in each case, so long as,
contemporaneously therewith (as applicable) (i) New Holdings delivers to the Administrative Agent any new certificate issued (if any)
to evidence the contributed Capital Stock of the Borrower and grants a security interest in such Capital Stock in favor of the Administrative
Agent pursuant to the Security Agreement or a joinder thereto in a form reasonably satisfactory to the Administrative Agent and (ii) New
Holdings assumes the Loan Guaranty provided by Holdings and all other obligations of Holdings under this Agreement and each of the other
Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto that is reasonably acceptable to the Administrative
Agent.
“IFRS”
means international accounting standards within the meaning of the IAS Regulation 1606/2002, as in effect from time to time (subject to
the provisions of Section 1.04), to the extent applicable to the relevant financial statements.
“Immaterial
Subsidiary” means, as of any date, any Restricted Subsidiary of the Borrower (a) that does not have assets in excess of 2.5%
of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries and (b) that does not contribute Consolidated Adjusted EBITDA
in excess of 2.5% of the Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries, in each case, as of the last day
of the most recently ended Test Period; provided that, the Consolidated Total Assets and Consolidated Adjusted EBITDA (as so determined)
of all Immaterial Subsidiaries shall not exceed 5.0% of Consolidated Total Assets and 5.0% of Consolidated Adjusted EBITDA, in each case,
of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test Period; provided further that,
at all times prior to the first delivery of financial statements pursuant to Section 5.01(a) or (b), this definition shall
be applied based on the pro forma consolidated financial statements of the Target delivered pursuant to Section 4.01.
“Immediate
Family Member” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant,
parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling or step-siblings (and linear
descendants either thereof), mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships), any trust,
partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals, any of the
foregoing individual’s (including the initial individual) estate (or an executor or administrator acting on its behalf), heirs or
legatees or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any
such individual is the donor.
“Incremental Cap”
means:
(a) the Shared Incremental
Amount, plus
(b) in
the case of any Incremental Facility or Incremental Equivalent Debt that effectively extends the Maturity Date with respect to any Class
of Loans and/or commitments hereunder, an amount equal to the portion of the relevant Class of Loans or commitments that will be replaced
by such Incremental Facility or Incremental Equivalent Debt, plus
(c) in
the case of any Incremental Facility or Incremental Equivalent Debt that effectively replaces any Revolving Credit Commitment or Additional
Revolving Credit Commitment terminated in accordance with Section 2.19 hereof, an amount equal to the relevant terminated Revolving
Credit Commitment or Additional Revolving Credit Commitment, plus
(d)
(i) the amount of any optional prepayment of any Loan (including any Incremental Loan) in accordance with Section 2.11(a) and/or
the amount of any permanent reduction of any Revolving Credit Commitment, (ii) the amount of any optional prepayment, redemption or repurchase
of Incremental Equivalent Debt incurred pursuant to the Shared Incremental Amount, (iii) the amount of any optional prepayment, redemption
or repurchase of any Replacement Term Loan or Loans under any Replacement Revolving Facility (to the extent accompanied by a permanent
reduction in commitments) or any borrowing or issuance of Replacement Debt previously applied to the permanent prepayment of any Loan
hereunder or of any Incremental Equivalent Debt, (iv) the amount of any optional prepayment, redemption or repurchase of “Incremental
Loans” and/or “Incremental Equivalent Debt” incurred pursuant to the “Shared Incremental Amount” or of
any “Replacement Term Loans” previously applied to the permanent prepayment of any of the foregoing (each as defined in the
Second Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien Facility) and (v) the aggregate
amount of any Indebtedness referred to in clauses (i) through (iv) repaid or retired resulting from any assignment of such Indebtedness
to (and/or assignment and/or purchase of such Indebtedness by) Holdings, the Borrower and/or any Restricted Subsidiary; provided
that for each of clauses (i) through (v), the relevant prepayment, redemption, repurchase or assignment and/or purchase
was not funded with the proceeds of any long-term Indebtedness (other than revolving Indebtedness), plus
(e)
an unlimited amount so long as, in the case of this clause (e), on a Pro Forma Basis after giving effect to the incurrence of
the Incremental Facility or the Incremental Equivalent Debt, as applicable, and the application of the proceeds thereof (but without
netting the cash proceeds thereof, but giving effect to any related Subject Transaction) and to any relevant Subject Transaction (and,
in the case of any Incremental Revolving Facility then being established, assuming a full drawing thereunder), (i) if such Indebtedness
is secured by a first priority Lien on the Collateral, the First Lien Leverage Ratio does not exceed the greater of (x) 4.20:1.00 and
(y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the First Lien Leverage Ratio
as of the last day of the most recently ended Test Period, (ii) if such Indebtedness is secured by a Lien on the Collateral other than
on a first priority basis or is secured by a Lien on assets of the Borrower or any Restricted Subsidiary that are not Collateral, the
Secured Leverage Ratio does not exceed the greater of (x) 5.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition
or other Investment permitted hereunder, the Secured Leverage Ratio as of the last day of the most recently ended Test Period and (iii)
if such Indebtedness is unsecured, at the election of the Borrower, either (A) the Total Leverage Ratio does not exceed the greater of
(x) 5.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the Total Leverage
Ratio as of the last day of the most recently ended Test Period or (B) the Interest Coverage Ratio is not less than the lesser of (x)
2.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the Interest Coverage
Ratio as of the last day of the most recently ended Test Period;
provided that:
(1) any Incremental
Facility and/or Incremental Equivalent Debt may be incurred under one or more of clauses (a) through (e) of this definition as selected
by the Borrower in its sole discretion (provided that, in the case of clause (e), an Incremental Facility may be incurred only under clause
(i) thereof),
(2) if any Incremental
Facility or Incremental Equivalent Debt is intended to be incurred under clause (e) of this definition and any other clause of this definition
in a single transaction or series of related transactions, (A) the incurrence of the portion of such Incremental Facility or Incremental
Equivalent Debt to be incurred or implemented under clause (e) of this definition shall be calculated first without giving effect to any
Incremental Facilities or Incremental Equivalent Debt to be incurred under any other clause of this definition, but giving full pro forma
effect to the use of proceeds of the entire amount of such Incremental Facility or Incremental Equivalent Debt and the related transactions
and (B) the incurrence of the portion of such Incremental Facility or Incremental Equivalent Debt to be incurred or implemented under
the other applicable clauses of this definition shall be calculated thereafter, and
(3)
any portion of any Incremental Facility or Incremental Equivalent Debt that is incurred under clauses (a) through (d) of this definition,
unless otherwise elected by the Borrower, shall automatically and without need for action by any Person, be reclassified as having been
incurred under clause (e) of this definition if, at any time after the incurrence thereof, when financial statements required pursuant
to Section 5.01(a) or (b) are delivered or, if earlier, become internally available, such portion of such Incremental Facility
or Incremental Equivalent Debt would, using the figures reflected in such financial statements, be (or have been) permitted under the
First Lien Leverage Ratio, Secured Leverage Ratio, Total Leverage Ratio or Interest Coverage Ratio test, as applicable, set forth in
clause (e) of this definition.
“Incremental Commitment”
means any commitment made by a lender to provide all or any portion of any Incremental Facility or Incremental Loans.
“Incremental Equivalent Debt”
means any Indebtedness that satisfies the following conditions:
(a) the aggregate
outstanding principal amount thereof does not exceed the Incremental Cap as in effect at the time of determination (after giving effect
to any reclassification on or prior to such date of determination),
(b) the Weighted
Average Life to Maturity of such Indebtedness is no shorter than the remaining Weighted Average Life to Maturity of the Amendment No.
2 Term Loans and the final maturity date of such Indebtedness is no earlier than the Latest Term Loan Maturity Date applicable to the
Amendment No. 2 Term Loans, in each case as determined on the date of the issuance or incurrence, as applicable, thereof; provided, that
the foregoing limitations shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided,
that any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such
bridge loans shall be subject to the requirements of this clause (b) or (ii) Indebtedness subject to the Permitted Earlier Maturity
Indebtedness Exception,
(c) subject to
clause (b), such Indebtedness may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such
Indebtedness,
(d) if such Indebtedness
is in the form of broadly syndicated Dollar denominated term loans that are pari passu with the Amendment No. 2 Term Loans in right
of payment and with respect to security (other than customary bridge loans with a maturity date of not longer than one year that are convertible
or exchangeable into, or are intended to be refinanced with, any Indebtedness other than term loans that are pari passu with the
Amendment No. 2 Term Loans in right of payment and with respect to security), the MFN Provisions of Section 2.22(a)(v) shall apply
to such Indebtedness as if (but only to the extent, including after giving effect to applicable exclusions and sunset provisions) such
Indebtedness was an Incremental Term Facility of the type subject to the provisions of Section 2.22(a)(v), mutatis mutandis,
(e) if such Indebtedness
is secured by assets that constitute Collateral, the holders of such Indebtedness (or a representative therefor) shall be party to an
Acceptable Intercreditor Agreement,
(f) such Indebtedness
may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made
pursuant to Section 2.11(a) and (B) to the extent secured on a pari passu basis with the Amendment No. 2 Term Loans, on a pro rata basis
(but not on a greater than pro rata basis other than in the case of a prepayment with proceeds of Indebtedness refinancing such Incremental
Equivalent Debt) in any mandatory prepayment of Term Loans required pursuant to Section 2.11(b) or less than a pro rata basis with the
then-outstanding Term Facility, and
(g) if any financial
maintenance covenant is added to any such Indebtedness and such financial maintenance covenant is more favorable to the lenders under
such Indebtedness than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable after the applicable
Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable financial maintenance
covenant (together with, at the election of the Borrower, any applicable “equity cure” provisions with respect to any such
financial maintenance covenant).
“Incremental Facilities”
has the meaning assigned to such term in Section 2.22(a).
“Incremental Facility
Amendment” means an amendment to this Agreement that is reasonably
satisfactory to the Administrative
Agent (solely for purposes of giving effect to Section 2.22) and the Borrower executed by each of (a) Holdings and the Borrower,
(b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion of the Incremental Facility being incurred
pursuant thereto and in accordance with Section 2.22.
“Incremental Loans” has the meaning
assigned to such term in Section 2.22(a).
“Incremental Revolving Facility” has
the meaning assigned to such term in Section 2.22(a).
“Incremental
Revolving Facility Lender” means, with respect to any Incremental Revolving Facility, each Revolving Lender providing any portion
of such Incremental Revolving Facility.
“Incremental Revolving
Loans” has the meaning assigned to such term in Section 2.22(a).
“Incremental Term Facility”
has the meaning assigned to such term in Section 2.22(a).
“Incremental Term Loans”
has the meaning assigned to such term in Section 2.22(a).
“Incurrence-Based Amounts”
has the meaning assigned to such term in Section 1.04(g).
“Indebtedness” as
applied to any Person means, without duplication, (a) all indebtedness of such
Person
for borrowed money; (b) the Attributable Debt of such Person in respect of any Capital Lease of such Person; (c) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments to the extent the same would appear as a liability on a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with GAAP; (d) any obligation of such Person owed for all or
any part of the deferred purchase price of property or services (excluding (w) any earn out obligation or purchase price adjustment until
such obligation (A) becomes a liability on the balance sheet of such Person (excluding the footnotes thereto) in accordance with GAAP
and (B) has not been paid within 30 days after becoming due and payable following expiration of any dispute resolution mechanics set
forth in the applicable agreement governing the applicable transaction, (x) any such obligations incurred under ERISA or under any employee
consulting agreements, (y) accrued expenses, trade accounts payable and accruals for payroll, in the ordinary course of business (including
on an intercompany basis) and (z) liabilities associated with customer prepayments and deposits), which purchase price is (i) due more
than six months from the date of incurrence of the obligation in respect thereof or (ii) evidenced by a note or similar written instrument;
(e) all Indebtedness of others secured by any Lien on any property or asset owned or held by such Person regardless of whether the Indebtedness
secured thereby has been assumed by such Person or is non-recourse to the credit of such Person; (f) the face amount of any letter of
credit issued for the account of such Person or as to which such Person is otherwise liable for reimbursement of drawings; (g) the Guarantee
by such Person of the Indebtedness of another; (h) all obligations of such Person in respect of any Disqualified Capital Stock; and (i)
all net obligations of such Person in respect of any Derivative Transaction, including any Hedge Agreement, whether or not entered into
for hedging or speculative purposes; provided that (i) in no event shall obligations under any Derivative Transaction be deemed
“Indebtedness” for any calculation of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio,
the Interest Coverage Ratio or any other financial ratio under this Agreement, (ii) in all cases Indebtedness shall exclude any Excluded
Property Limited Recourse Financing, (iii) the amount of Indebtedness of any Person for purposes of clause (e) shall be deemed
to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly
provided for under the documentation pursuant to which the respective Lien is granted) and (B) the fair market value of the property
encumbered thereby as determined by such Person in good faith and (iv) the amount of any Limited Recourse Debt of any Person shall be
deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as
is expressly provided for under the documentation pursuant to which the respective Lien is granted) and (B) the fair market value of
the property encumbered thereby as determined by such Person in good faith.
For all purposes
hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or any Joint Venture (other than any Joint Venture
that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the
extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would otherwise
be included in the calculation of Consolidated Total Debt; provided that notwithstanding anything herein to the contrary, the term
“Indebtedness” shall not include, and shall be calculated without giving effect to, (x) the effects of Accounting Standards
Codification Topic 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness
for any purpose hereunder as a result of accounting for any embedded derivatives created by the terms of such Indebtedness (it being understood
that any such amounts that would have constituted Indebtedness hereunder but for the application of this proviso shall not be deemed an
incurrence of Indebtedness hereunder), (y) the effects of Statement of Financial Accounting Standards No. 133 and related interpretations
to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting
for any embedded derivative created by the terms of such Indebtedness (it being understood that any such amounts that would have constituted
Indebtedness hereunder but for the application of this proviso shall not be deemed to be an incurrence of Indebtedness hereunder) and
(z) Indebtedness of any Parent Company appearing on the balance sheet of the Borrower or any of its Subsidiaries solely by reason of push
down accounting under GAAP.
“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation
of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” has the meaning assigned
to such term in Section 9.03(b).
“Information” has the meaning set
forth in Section 3.11(a).
“Information Memorandum”
means the Confidential Information Memorandum finalized on or about June 20, 2017, relating to the Borrower and its subsidiaries and
the Transactions.
“Initial
Lenders” means the Arrangers and the affiliates of the Arrangers who are party to this Agreement as Lenders on the Closing Date.
“Initial
Revolving Credit Commitment” means, with respect to any Person, the commitment of such Person to make Initial Revolving Loans
(and acquire participations in Letters of Credit and Swingline Loans) hereunder as set forth on the Commitment Schedule, or in the Assignment
Agreement pursuant to which such Lender assumed its Initial Revolving Credit Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 or 2.19, (b) reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 9.05 or (c) increased pursuant to Section 2.22. The aggregate amount of the Initial
Revolving Credit Commitments as of the Closing Date is $50,000,000.
“Initial
Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of all
Initial Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure and Swingline
Exposure, in each case, attributable to its Initial Revolving Credit Commitment.
“Initial Revolving Credit Maturity Date”
means the date that is five years after the Closing Date.
“Initial Revolving
Facility” means the Initial Revolving Credit Commitments and the Initial Revolving Loans and other extensions of credit thereunder.
“Initial
Revolving Lender” means any Person with an Initial Revolving Credit Commitment or any Initial Revolving Credit Exposure.
“Initial
Revolving Loan” means any revolving loan made by the Initial Revolving Lenders to the Borrower pursuant to Section 2.01(a)(ii).
“Initial
Term Lender” means any Person with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial
Term Loan Commitment” means, with respect to any Person, the commitment of such Person to make Initial Term Loans hereunder
in an aggregate amount not to exceed the amount set forth opposite such Person’s name on the Commitment Schedule, as the same may
be (a) reduced from time to time pursuant to Section 2.09 or Section 2.19 and (b) reduced or increased from time to time
pursuant to (x) assignments by or to such Person pursuant to Section 9.05 or (y) an Additional Term Loan Commitment. The aggregate
amount of the Initial Term Loan Commitments on the Closing Date is $585,000,000. The aggregate amount of the Initial Term Loan Commitments
on the Amendment No. 1 Effective Date is $113,000,000.
“Initial
Term Loan Maturity Date” means the date that is seven years after the Closing Date. “Initial Term Loans”
means the term loans (including, without limitation, any Amendment No. 1 Incremental Term Loans) made by the Initial Term Lenders to
the Borrower pursuant to Section 2.01(a)(i).
“Intellectual
Property Security Agreement” means any agreement executed on or after the Closing Date confirming or effecting the grant of
any Lien on IP Rights owned by any Loan Party to the Administrative Agent, for the benefit of the Secured Parties, in accordance with
this Agreement, including any of the following: (a) a Trademark Security Agreement substantially in the form of Exhibit H-1 hereto,
(b) a Patent Security Agreement substantially in the form of Exhibit H-2 hereto or (c) a Copyright Security Agreement substantially
in the form of Exhibit H-3 hereto.
“Intercreditor
Agreement” means the Intercreditor Agreement substantially in the form of Exhibit N hereto, dated as of the Closing
Date, among, inter alios, the Second Lien Collateral Agent, as agent for the Second Lien Claimholders referred to therein, the
Administrative Agent, as agent for the First Lien Claimholders referred to therein, if applicable, the provider of any Additional Letter
of Credit Facility (or a representative thereof) and the Loan Parties from time to time party thereto.
“Interest
Coverage Ratio” means, as of any date of determination, the ratio for the most recently ended Test Period of (a) Consolidated
Adjusted EBITDA for such Test Period to (b) Ratio Interest Expense for such Test Period; provided that, for purposes of calculating
the Interest Coverage Ratio for any period ending prior to the first anniversary of the Closing Date, Ratio Interest Expense shall be
an amount equal to actual Ratio Interest Expense from the Closing Date through the date of determination multiplied by a fraction the
numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the date of determination.
“Interest
Election Request” means a request by the Borrower in the form of Exhibit D hereto or another form reasonably acceptable
to the Administrative Agent to convert or continue a Borrowing in accordance with Section 2.08.
“Interest
Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December (commencing
with the last Business Day of September 2017) or the maturity date applicable to such Loan and (b) with respect to any LIBO Rate Loan,
the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a LIBO Rate Borrowing
with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing.
“Interest
Period” means with respect to any LIBO Rate Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or six months (or, to the extent available to all relevant
affected Lenders, twelve months or, to the extent acceptable to all applicable Lenders, a shorter period) thereafter, as the Borrower
may elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business
Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period)
shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation
of such Borrowing.
“Investment”
means (a) any purchase or other acquisition by the Borrower or any of its Restricted Subsidiaries of any of the Securities of any other
Person (other than any Loan Party), (b) the acquisition by purchase or otherwise (other than any purchase or other acquisition of inventory,
materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the business, property or
fixed assets of any other Person or any division or line of business or other business unit of any other Person and (c) any loan, advance
(other than any advance to any current or former employee, officer, director, member of management, manager, consultant or independent
contractor of the Borrower, any Restricted Subsidiary or any Parent Company for moving, entertainment and travel expenses, drawing accounts
and similar expenditures or payroll expenses or advances in the ordinary course of business) or capital contribution by the Borrower
or any of its Restricted Subsidiaries to any other Person. Subject to Section 5.10, the amount of any Investment shall be the
original cost of such Investment, plus the cost of any addition thereto that otherwise constitutes an Investment, without any
adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but giving effect to any
repayments of principal in the case of any Investment in the form of a loan and any return of capital or return on Investment in the
case of any equity Investment (whether as a distribution, dividend, redemption or sale).
“Investors”
means (a) the Sponsor, (b) the Management Investors and (c) other investors identified to the Administrative Agent in writing that, directly
or indirectly, beneficially own Capital Stock in Holdings on the Closing Date.
“IP Rights” has the meaning assigned to
such term in Section 3.05(c).
“IPO
Reorganization Transaction” means any transaction taken in connection with and reasonably related to consummating a Qualifying
IPO by the Borrower or any Parent Company thereof so long as, after giving effect thereto, (a) the Loan Parties are in compliance with
the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest of the Secured Parties in the Collateral,
taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral immediately prior
to such IPO Reorganization Transaction no longer constituting Collateral) as a result of such IPO Reorganization Transaction.
“IRS” means the U.S. Internal Revenue Service.
“Issuing
Bank” means, as the context may require, (a) JPM, (b) solely with respect to any Existing Letter of Credit (and any amendment,
renewal or extension thereof in accordance with the terms of this Agreement), each Existing Letter of Credit Issuer and (c) each other
Revolving Lender party hereto from time to time that is appointed as an Issuing Bank in accordance with Section 2.05(i). Subject
to the reasonable consent of the Borrower (subject to the standards set forth in Section 9.05(b)), any Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by any Affiliate of such Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“iStar
Amendments” means the iStar I Eighth Amendment, the iStar II Eighth Amendment and the iStar 2014 Amendment, individually or
collectively (as the context may require).
“iStar
I Eighth Amendment” means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers I LP,
and solely with respect to the Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and AMF Bowling
Centers, Inc., as tenant.
“iStar
II Eighth Amendment” means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers II LP,
as landlord, and AMF Bowling Centers, Inc., as tenant.
“iStar
2014 Amendment” means that certain lease amendment that is expected to be the “First Lease Amendment” in respect
of the iStar Sale/Leaseback 2014 Documents, which is anticipated to include (among other things) certain changes generally consistent
with the iStar I Eighth Amendment and iStar II Eighth Amendment, to be entered into between BW Bowling Properties LP, and solely with
respect to the Site (as defined in subparagraph 34(n)(v) therein) located in Pennsylvania, BW Bowling Properties LLC, as landlord, and
Leiserv, LLC and Brunswick Centres, Inc., as tenant.
“iStar
Exchange” means those transactions described in Section 11 of each of the iStar I Eighth Amendment and the iStar II Eighth Amendment.
“iStar
Exchange Documents” means the agreements and other documents governing any iStar Exchange transaction, as more particularly
described in each of the iStar I Eighth Amendment and the iStar II Eighth Amendment.
“iStar
Sale/Leaseback” means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback Documents.
“iStar
Sale/Leaseback 2014” means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback 2014 Documents.
“iStar
Sale/Leaseback 2014 Documents” means (i) the Lease Agreement, dated as of September 18, 2014, by and among BW Bowling Properties
LP, BW Bowling Properties Canada Inc. and BW Bowling Properties LLC (collectively as landlord) and Leiserv, LLC and Brunswick Centres,
Inc. (jointly and severally, as tenant) and (ii) the Guaranty dated as of September 18, 2014 by Holdings in favor of BW Bowling Properties
LP, BW Bowling Properties Canada Inc. and BW Bowling Properties LLC, in each case as the same may be amended, modified or supplemented
through the date hereof and from time to time hereafter in accordance with the provisions thereof, and including all basic lease information
and all other agreements, documents and instruments relating to the iStar Sale/Leaseback 2014 and all exhibits and schedules to any of
the foregoing.
“iStar
Sale/Leaseback Documents” means (I) (a) the Lease I Agreement dated as of February 27, 2004 between iStar Bowling Centers I
LP, and solely with respect to the Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and AMF
Bowling Centers, Inc., as tenant, as amended by (i) that certain First Lease Amendment dated as of June 30, 2004, intending to be effective
as of February 27, 2004, (ii) that certain Second Lease Amendment dated as of February 3, 2005, intending to be effective as of February
27, 2004, (iii) that certain Third Lease Amendment dated as of June 18, 2008, intending to be effective as of March 30, 2008, (iv) that
certain Fourth Lease Amendment dated and intended to be effective as of July 1, 2013, (v) that certain Fifth Lease Amendment dated and
intended to be effective as of September 25, 2013, (vi) that certain Sixth Lease Amendment dated and intended to be effective as of October
3, 2014, (vii) that certain Amended and Restated Seventh Lease Amendment dated and intended to be effective as of September 9, 2016,
and (viii) the iStar I Eighth Amendment, (b) the Guaranty dated as of July 1, 2013 by Holdings in favor of iStar Bowling Centers I LP,
and (II) (a) the Lease II Agreement dated as of February 27, 2004 between iStar Bowling Centers II LP, as landlord, and AMF Bowling Centers,
Inc., as tenant, as amended by (i) that certain First Lease Amendment dated as of June 30, 2004, intending to be effective as of February
27, 2004, (ii) that certain Second Lease Amendment dated as of February 3, 2005, intending to be effective as of February 27, 2004, (iii)
that certain Third Lease Amendment dated as of June 18, 2008, intending to be effective as of March 30, 2008, (iv) that certain Fourth
Lease Amendment dated and intended to be effective as of July 1, 2013, (v) that certain Fifth Lease Amendment dated and intended to be
effective as of September 25, 2013, (vi) that certain Sixth Lease Amendment dated and intended to be effective as of October 3, 2014,
(vii) that certain Amended and Restated Seventh Lease Amendment dated and intended to be effective as of February 23, 2017, and (viii)
the iStar II Eighth Amendment, and (b) the Guaranty dated as of July 1, 2013 by Holdings in favor of iStar Bowling Centers II LP, in
each case as the same may be amended, modified or supplemented through the date hereof and from time to time hereafter in accordance
with the provisions thereof, and including all basic lease information and all other agreements, documents and instruments relating to
the iStar Sale/Leaseback and all exhibits and schedules to any of the foregoing.
“Joint
Venture” means the Thousand Oaks Company, a Texas corporation, and any other joint venture, in the form of a corporation, limited
liability company, business trust, joint venture, association, company or partnership, entered into by the Borrower or any of its Subsidiaries
which (i) is engaged in a line of business in accordance with Section 5.16 and (ii) is formed or organized in a manner that limits
the exposure of the Borrower and its Subsidiaries for the liabilities thereof to (A) the Investments of the Borrower and its Subsidiaries
therein permitted under Section 6.06 and (B) any Indebtedness of any Joint Venture or any Guarantee by the Borrower or any of its Subsidiaries
in respect of such Indebtedness, which Indebtedness or Guarantee are permitted at the time under Section 6.01.
“Junior
Indebtedness” means any Indebtedness for borrowed money (other than Indebtedness among Holdings, the Borrower and/or its subsidiaries)
of the Borrower or any of its Restricted Subsidiaries that is a Loan Party that is expressly subordinated in right of payment to the Obligations.
“Junior
Lien Indebtedness” means any Indebtedness for borrowed money that is secured by a security interest on the Collateral (other
than Indebtedness among Holdings, the Borrower and/or its subsidiaries) that is expressly junior or subordinated to the Lien securing
the Credit Facilities with respect to the Collateral, including any “Term Loans” governed by the Second Lien Credit Agreement.
“Kingpin
Intermediate” means Kingpin Intermediate Holdings LLC, a Delaware limited liability company.
“Latest
Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment
hereunder at such time, including the latest maturity or expiration date of any Initial Term Loan, Additional Term Loan, Revolving Loan,
Additional Revolving Loan, Initial Revolving Credit Commitment or Additional Commitment.
“Latest
Revolving Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any
revolving loan or revolving credit commitment hereunder at such time, including the latest maturity or expiration date of any Revolving
Loan, any Additional Revolving Loan, the Revolving Credit Commitment or any Additional Revolving Credit Commitment.
“Latest
Term Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any term
loan or term commitment hereunder at such time, including the latest maturity or expiration date of any Additional Term Loan or Additional
Term Loan Commitment hereunder at such time.
“LC Collateral Account” has the meaning
assigned to such term in Section 2.05(j).
“LC
Disbursement” means a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
“LC
Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time
and (b) the aggregate principal amount of all LC Disbursements that have not yet been reimbursed at such time. The LC Exposure of any
Revolving Lender at any time shall equal its Applicable Percentage of the aggregate LC Exposure at such time.
“Legal
Reservations” means the application of relevant Debtor Relief Laws, general principles of equity and/or principles of good faith
and fair dealing.
“Lenders”
means the Term Lenders, the Revolving Lenders, any Additional Lender, any lender with an Additional Commitment or an outstanding Additional
Loan and any other Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to be
a party hereto pursuant to an Assignment Agreement or as a result of the application of Section 9.05(g).
“Letter
of Credit” means any Standby Letter of Credit or Commercial Letter of Credit issued pursuant to this Agreement (and shall be
deemed to include all Existing Letters of Credit).
“Letter-of-Credit Right”
has the meaning set forth in Article 9 of the UCC.
“Letter
of Credit Sublimit” means $25,000,000, as increased from time to time in accordance with Section 2.22 hereof.
“LIBO
Rate” means, the Published LIBO Rate, as adjusted to reflect applicable reserves prescribed by governmental authorities; provided
that, (a) solely with respect to the Amendment No. 2 Term Loans (including, for the avoidance of doubt, the Amendment No. 3 Incremental
Term Loans), in no event shall the LIBO Rate be less than 1.00% per annum and (b) solely with respect to the Initial Revolving Loans,
in no event shall the LIBO Rate be less than 0.00% per annum.
“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capital Lease
having substantially the same economic effect as any of the foregoing), in each case, in the nature of security; provided that
in no event shall an operating lease in and of itself be deemed to constitute a Lien.
“Liquor
License Subsidiaries” means (i) as of the Closing Date, each of the Subsidiaries listed on Schedule 1.01(g) hereto and
(ii) thereafter, any other Restricted Subsidiary of the Borrower established solely for the purpose of satisfying applicable requirements
of local Law with respect to the ownership and use of liquor licenses and which has entered into or has a bona fide intent to enter into
(A) a lease pursuant to which such Restricted Subsidiary leases, as lessee, from Holdings or one or more of its Subsidiaries (other than
another Liquor License Subsidiary) snack bar and related space at one or more bowling centers and (B) a management services agreement
with a Loan Party, pursuant to which such Loan Party provides employees, management and related services to such Subsidiary.
“Limited
Condition Transaction” means any acquisition, Investment, Disposition, Restricted Payment or Restricted Debt Payment permitted
by this Agreement, in each case whose consummation is not conditioned on the availability of, or on obtaining, third-party financing.
“Limited
Recourse Financing” means, with respect to any Person, Indebtedness to the extent: (i) such Person, subject to customary exceptions
for nonrecourse Indebtedness financing, shall not have personal liability with respect to the Indebtedness and the lender thereunder
shall only seek recourse for satisfaction of the Indebtedness against the property or collateral secured thereunder; and (ii) no default
with respect thereto would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Loans or Loans
under any Second Lien Facility) of such Person to declare a default on such other Indebtedness or cause the payment thereof to be accelerated
or payable prior to its stated maturity.
“Loan
Documents” means this Agreement, any Promissory Note, each Loan Guaranty, the Collateral Documents, the Intercreditor Agreement,
any Acceptable Intercreditor Agreement and any other document or instrument designated by the Borrower and the Administrative Agent as
a “Loan Document”, including any Incremental Facility Amendment (including Amendment No. 1), Refinancing Amendment or Extension
Amendment or any other amendment hereto or thereto (including Amendment No. 2 and,
Amendment No. 3 and Amendment No. 4). Any reference in this Agreement or any other
Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto.
“Loan
Guaranty” means (a) the Guaranty Agreement, substantially in the form of Exhibit I hereto, executed by each Loan Party
party thereto and the Administrative Agent for the benefit of the Secured Parties and (b) each other guaranty agreement executed by any
Person pursuant to Section 5.12 in substantially the form attached as Exhibit I hereto or another form that is otherwise
reasonably satisfactory to the Administrative Agent and the Borrower.
“Loan Installment Date”
has the meaning assigned to such term in Section 2.10(a). “Loan Parties” means Holdings, the Borrower and each
Subsidiary Guarantor.
“Loans”
means any Initial Term Loan, any Additional Term Loan (including the Amendment No. 2 Term Loans and the Amendment No. 3 Incremental Term
Loans), any Revolving Loan, any Swingline Loan or any Additional Revolving Loan.
“Management
Investors” means the officers, directors, managers, employees and members of management of (i) the Borrower, (ii) any Parent
Company and/or (iii) any subsidiary of the Borrower (including, on the Closing Date, those of the Target and its subsidiaries) and the
Immediate Family Members of any of the foregoing.
“Margin Stock” has
the meaning assigned to such term in Regulation U.
“Market
Capitalization” means, at any date of determination pursuant to Section 1.04(e), the amount equal to (a) the total number
of then issued and outstanding shares of common Capital Stock of the Borrower or any Parent Company multiplied by (b) the arithmetic
mean of the closing prices per share of such common Capital Stock on the principal securities exchange on which such common Capital Stock
are traded for the 30 consecutive trading days immediately preceding such date.
“Market
Intercreditor Agreement” means an intercreditor or subordination agreement or arrangement the terms of which are either (a)(i)
consistent with market terms governing intercreditor arrangements for the sharing or subordination of liens or arrangements relating to
the distribution of payments, as applicable, at the time the applicable agreement or arrangement is proposed to be established in light
of the type of Indebtedness subject thereto or (ii) taken as a whole, not materially less favorable to the Lenders than the terms of any
Acceptable Intercreditor Agreement governing similar priorities that is then in effect, in each case as determined by the Borrower in
good faith or (b) in the event a “Market Intercreditor Agreement” has been entered into after the Closing Date meeting the
requirement of the preceding clause (a), the terms of which are, taken as a whole, not materially less favorable to the Lenders than the
terms of such Market Intercreditor Agreement to the extent such agreement governs similar priorities.
“Material
Adverse Effect” means (a) on the Closing Date, a Closing Date Material Adverse Effect and (b) after the Closing Date, a material
adverse effect on (i) the business, financial condition or results of operations, in each case, of the Borrower and its Restricted Subsidiaries,
taken as a whole or (ii) the material rights and remedies (taken as a whole) of the Administrative Agent under the applicable Loan Documents.
“Material
Debt Instrument” means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged
and delivered to the Administrative Agent (or its bailee) pursuant to the Security Agreement.
“Material
Real Estate Asset” means any “fee-owned” Real Estate Asset acquired by any Loan Party after the Closing Date (other
than as part of the iStar Exchange or EAP Substitution) having a fair market value (as determined by the Borrower in good faith after
taking into account any liabilities with respect thereto that impact such fair market value) in excess of $12,500,000 as of the date of
acquisition thereof (provided that the aggregate fair market value of all properties acquired after the Closing Date and so excluded on
account of such dollar threshold (each determined at the time of such initial exclusion) shall not exceed $50,000,000).
“Maturity
Date” means (a) with respect to the Initial Revolving Facility, the Initial Revolving Credit Maturity Date, (b) with respect
to the Amendment No. 2 Term Loans (including any Amendment No. 3 Incremental Term Loans), the Initial Term Loan Maturity Date, (c) with
respect to any other Replacement Term Loans or any Replacement Revolving Facility, the final maturity date for such Replacement Term Loans
or Replacement Revolving Facility, as the case may be, as set forth in the applicable Refinancing Amendment, (d) with respect to any Incremental
Facility, the final maturity date set forth in the applicable Incremental Facility Amendment and (e) with respect to any Extended Revolving
Credit Commitment or Extended Term Loans, the final maturity date set forth in the applicable Extension Amendment.
“Maximum Rate” has the meaning assigned
to such term in Section 9.19.
“Merger Sub 1”
has the meaning assigned to such term in the Preamble to this Agreement.
“Merger Sub 1 Merger” has the meaning assigned
to such term in the Recitals to this Agreement.
“Merger Sub 2”
has the meaning assigned to such term in the Preamble to this Agreement.
“Merger Sub 2 Merger” has the meaning assigned
to such term in the Recitals to this Agreement.
“Mergers”
or “Merger” means the Merger Sub 1 Merger and/or the Merger Sub 2 Merger, as the context may require.
“MFN Provision” has the meaning assigned
to such term in Section 2.22(a)(v).
“Minimum
Equity Percentage” has the meaning assigned to such term in the Recitals to this Agreement.
“Minimum Extension Condition”
has the meaning assigned to such term in Section 2.23(b).
“Moody’s” means Moody’s Investors Service,
Inc.
“Mortgage”
means any mortgage, deed of trust, deed to secure debt or other agreement which conveys or evidences a Lien in favor of the Administrative
Agent, for the benefit of the Administrative Agent and the relevant Secured Parties, on any Material Real Estate Asset constituting Collateral.
“Mortgage
Policy” has the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement”.
“Multiemployer
Plan” means any employee benefit plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA, that
is subject to the provisions of Title IV of ERISA, and in respect of which the Borrower or any of its Restricted Subsidiaries, or any
of their respective ERISA Affiliates, makes or is obligated to make contributions or with respect to which any of them has any ongoing
obligation or liability, contingent or otherwise.
“Narrative
Report” means, with respect to the financial statements with respect to which it is delivered, a management discussion and narrative
report describing the operations of the Borrower and its Restricted Subsidiaries for the applicable Fiscal Quarter or Fiscal Year and
for the period from the beginning of the then-current Fiscal Year to the end of the period to which the relevant financial statements
relate.
“Net
Insurance/Condemnation Proceeds” means an amount equal to: (a) any Cash payments or proceeds (including Cash Equivalents) received
by the Borrower or any of its Restricted Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder
of any assets of the Borrower or any of its Restricted Subsidiaries or (ii) as a result of the taking of any assets of the Borrower or
any of its Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a
sale of any such assets to a purchaser with such power under threat of such a taking, minus (b) in respect of the Loan Parties or any
of their respective subsidiaries, Affiliates or direct or indirect equityholders (i) any actual out-of-pocket costs and expenses incurred
in connection with the adjustment, settlement or collection of any claims in respect thereof, (ii) payment of the outstanding principal
amount of, premium or penalty, if any, and interest and other amounts on any Indebtedness (other than the Loans, Indebtedness under any
Second Lien Facility and any Indebtedness secured by a Lien on the Collateral that is pari passu with or expressly subordinated
to the Lien on the Collateral securing the Secured Obligations) that is secured by a Lien on the assets in question and that is required
to be repaid or otherwise comes due or would be in default under the terms thereof as a result of such loss, taking or sale, (iii) in
the case of a taking, the reasonable out-of-pocket costs of putting any affected property in a safe and secure position, (iv) any selling
costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, accountants’ fees, investment
banking fees, survey costs, title insurance premiums, and related search and recording charges, deed or mortgage recording taxes, other
expenses and brokerage, consultant and other customary fees actually incurred in connection therewith and transfer and similar Taxes and
the Borrower’s good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or that are or
would be imposed on intercompany distributions with such proceeds)) in connection with any sale or taking of such assets as described
in clause (a) of this definition, (v) any amounts provided as a reserve in accordance with GAAP against any liabilities under any
indemnification obligation or purchase price adjustments associated with any sale or taking of such assets as referred to in clause
(a) of this definition (provided that to the extent and at the time any such amounts are released from such reserve, other
than to make a payment for which such amount was reserved, such amounts shall constitute Net Insurance/Condemnation Proceeds) and (vi)
in the case of any covered loss or taking from any non-Wholly-Owned Subsidiary, the pro rata portion thereof (calculated without regard
to this clause (vi)) attributable to minority interests and not available for distribution to or for the account of the Borrower
or a Wholly-Owned Subsidiary as a result thereof.
“Net
Proceeds” means (a) with respect to any Disposition (including any Prepayment Asset Sale), the Cash proceeds (including Cash
Equivalents and Cash proceeds subsequently received (as and when received) in respect of non-cash consideration initially received),
net of (with respect to any Loan Party or its subsidiaries, Affiliates or direct or indirect equity owners) (i) selling costs and out-of-pocket
expenses (including broker’s fees or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title
insurance premiums, and related search and recording charges, deed or mortgage recording taxes, other customary expenses and brokerage,
consultant and other customary fees actually incurred in connection therewith and transfer and similar Taxes and the Borrower’s
good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or that are or would be imposed on
intercompany distributions with such proceeds) in connection with such Disposition), (ii) amounts provided as a reserve in accordance
with GAAP against any liabilities under any indemnification obligation or purchase price adjustment associated with such Disposition
(provided that to the extent and at the time any such amounts are released from such reserve, other than to make a payment for
which such amount was reserved, such amounts shall constitute Net Proceeds), (iii) the principal amount, premium or penalty, if any,
interest and other amounts on any Indebtedness (other than the Loans, Indebtedness under any Second Lien Facility and any other Indebtedness
secured by a Lien on the Collateral that is pari passu with or expressly subordinated to the Lien on the Collateral securing the Secured
Obligations) which is secured by the asset sold in such Disposition and which is required to be repaid or otherwise comes due or would
be in default and is repaid (other than any such Indebtedness that is assumed by the purchaser of such asset), (iv) Cash escrows (until
released from escrow to the Borrower or any of its Restricted Subsidiaries) from the sale price for such Disposition and (v) in the case
of any Disposition by any non-Wholly-Owned Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to
this clause (v)) attributable to any minority interest and not available for distribution to or for the account of the Borrower
or a Wholly-Owned Subsidiary as a result thereof; and (b) with respect to any issuance or incurrence of Indebtedness or Capital Stock,
the Cash proceeds thereof, net of all Taxes and fees, commissions, costs, underwriting discounts and other fees and expenses incurred
in connection therewith.
“New
Holdings” means the Person that shall, immediately following the consummation of a Holdings Reorganization Transaction in accordance
with the provisions of the definition thereof, hold 100% of the Capital Stock of the Borrower.
“Non-Consenting Lender”
has the meaning assigned to such term in Section 2.19(b).
“Non-Debt
Fund Affiliate” means the Sponsor and any Affiliate of the Sponsor, other than any Debt Fund Affiliate.
“Notice
of Intent to Cure” has the meaning assigned to such term in Section 6.15(b).
“Obligations” means
all unpaid principal of and accrued and unpaid interest (including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, all LC Exposure,
all accrued and unpaid fees and all expenses, reimbursements, indemnities and all other advances to, debts, liabilities and obligations
of the Loan Parties to the Lenders or to any Lender, the Administrative Agent, any Issuing Bank or any indemnified party arising under
the Loan Documents in respect of any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute,
contingent, due or to become due, now existing or hereafter arising.
“Organizational
Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its
by-laws, (b) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with
respect to any general partnership, its partnership agreement, (d) with respect to any limited liability company, its articles of organization
or certificate of formation, and its operating agreement or limited liability company agreement and (e) with respect to any other form
of entity, such other organizational documents required by local Requirements of Law or customary under the jurisdiction in which such
entity is organized to document the formation and governance principles of such type of entity. In the event that any term or condition
of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily
certified by such governmental official.
“Other
Applicable Indebtedness” has the meaning assigned to such term in Section 2.11(b)(i).
“Other Connection Taxes”
means, with respect to any Lender or Administrative Agent, Taxes imposed as a result of a present or former connection between such recipient
and the jurisdiction imposing such Tax (other than connections arising solely from such recipient having executed, delivered, become
a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in
any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other
Taxes” means any and all present or future stamp, court or documentary taxes or any intangible, recording, filing or similar
taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than
an assignment made pursuant to Section 2.19). For the avoidance of doubt, Other Taxes do not include any Excluded Taxes.
“Outstanding
Amount” means (a) with respect to Term Loans, Revolving Loans and Swingline Loans on any date, the amount of the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Loans and Swingline
Loans, as the case may be, occurring on such date, (b) with respect to any Letters of Credit, the aggregate amount available to be drawn
under such Letters of Credit after giving effect to any changes in the aggregate amount available to be drawn under such Letters of Credit
or the issuance or expiry of any Letters of Credit, including as a result of any LC Disbursements and (c) with respect to any LC Disbursements
on any date, the amount of the aggregate outstanding amount of such LC Disbursements on such date after giving effect to any disbursements
with respect to any Letter of Credit occurring on such date and any other changes in the aggregate amount of the LC Disbursements as of
such date, including as a result of any reimbursements by the Borrower of unreimbursed LC Disbursements.
“Parent” means A-B
Parent LLC, a Delaware limited liability company.
“Parent
Company” means (a) Holdings and (b) any other Person or group of Persons that are Affiliates of the Sponsor (but in any event
not any portfolio company of the Sponsor), of which the Borrower is an indirect Subsidiary.
“Participant” has the meaning assigned
to such term in Section 9.05(c).
“Participant Register” has the meaning assigned to such term in Section
9.05(c).
“Patent”
means the following: (a) any and all patents and patent applications; (b) all inventions described and claimed therein; (c) all reissues,
divisions, continuations, renewals, extensions and continuations in part thereof; (d) all income, royalties, damages, claims and payments
now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future
infringements thereof; (e) all rights to sue for past, present and future infringements thereof; and (f) all rights corresponding to any
of the foregoing.
“PBGC” means the Pension Benefit Guaranty
Corporation.
“Pension
Plan” means any employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that is
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, which the Borrower or any of its Restricted
Subsidiaries, or any of their respective ERISA Affiliates, maintains or contributes to or has an obligation to contribute to, or otherwise
has any liability for, contingent or otherwise.
“Perfection Certificate” means a certificate
substantially in the form of Exhibit E.
“Perfection
Requirements” means (a) the filing of appropriate financing statements with the office of the Secretary of State or other appropriate
office in the state of organization of each Loan Party, (b) the filing of Intellectual Property Security Agreements or other appropriate
assignments or notices with the U.S. Patent and Trademark Office and/or the U.S. Copyright Office, as applicable, (c) the proper recording
or filing, as applicable, of Mortgages and fixture filings with respect to any Material Real Estate Asset constituting Collateral, in
each case in favor of the Administrative Agent for the benefit of the Secured Parties, (d) the delivery to the Administrative Agent of
any stock certificate or promissory note to the extent required to be delivered by the applicable Loan Documents and (e) other filings,
recordings and registrations necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Administrative
Agent or to enforce the rights of the Administrative Agent and the Secured Parties under the Loan Documents.
“Permitted
Acquisition” means any acquisition by the Borrower or any of its Restricted Subsidiaries, whether by purchase, merger, amalgamation
or otherwise, of all or a substantial portion of the assets of, or any business line, unit or division or product line (including research
and development and related assets in respect of any product or facility) of, any Person or of a majority of the outstanding Capital Stock
of any Person (and, in any event, including any Investment in any Restricted Subsidiary which serves to increase the Borrower’s
or any Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary), in each case if (1) such Person is or
becomes a Restricted Subsidiary or (2) such Person, in one transaction or a series of related transactions, is amalgamated, merged or
consolidated with or into, or transfers or conveys all or a substantial portion of its assets (or such division, business line, unit or
product line or facility) to, or is liquidated into, the Borrower and/or any Restricted Subsidiary as a result of such transaction; provided
that (i) the target Person, assets, business or division in respect of such acquisition is a business permitted under Section 5.16
and (ii) at the applicable time elected by the Borrower in accordance with Section 1.04(e), with respect to such acquisition, no
Event of Default under Section 7.01(a), (f) or (g) shall be continuing.
“Permitted
Earlier Maturity Indebtedness Exception” means, with respect to any Incremental Term Facility and any Incremental Equivalent
Debt permitted to be incurred hereunder, that up to $20,000,000 aggregate principal amount of such Indebtedness outstanding at any time
(the “Specified Debt”) may have a final maturity date that is earlier than, and a Weighted Average Life to Maturity
that is shorter than the remaining Weighted Average Life to maturity of, the Indebtedness with respect to which the Specified Debt is
otherwise required to have a later final maturity date or Weighted Average Life.
“Permitted Equity”
has the meaning assigned to such term in the Recitals to this Agreement.
“Permitted
Holders” means (a) the Investors, (b) the Shannon Holders and (c) any Person with which one or more Investors and/or the Shannon
Holders form a “group” (within the meaning of Section 14(d) of the Exchange Act as in effect on the date hereof) so long
as, in the case of this clause (c), the relevant Investors and /or the Shannon Holders collectively own more than 50% of the relevant
voting stock beneficially owned by the group.
“Permitted Liens” means Liens permitted
pursuant to Section 6.02.
“Permitted
Payee” means any future, current or former director, officer, member of management, manager, employee, independent contractor
or consultant (or any Immediate Family Member or transferee of any of the foregoing) of the Borrower (or any Parent Company or any subsidiary).
“Permitted
Reorganization” means any transaction or undertaking, including Investments, in connection with internal reorganizations and
or restructurings (including in connection with tax planning and corporate reorganizations), so long as, after giving effect thereto,
(a) the Loan Parties shall comply with the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest of the
Secured Parties in the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute
Collateral immediately prior to such Permitted Reorganization no longer constituting Collateral) as a result of such Permitted Reorganization.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or any other entity.
“Preferred
Capital Stock” means any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution or
winding up.
“Prepayment
Asset Sale” means any Disposition by the Borrower or its Restricted Subsidiaries made pursuant to Section 6.07(h).
“Primary Obligor” has the meaning
assigned to such term in the definition of “Guarantee”.
“Prime Rate”
means (a) the rate of interest publicly announced, from time to time, by the Administrative Agent at its principal office in New York
City as its “prime rate,” with the understanding that the “prime rate” is one of the Administrative Agent’s
base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for
those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as
the Administrative Agent may designate or (b) if the Administrative Agent has no “prime rate,” the rate of interest last
quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to
quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15
(519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate
quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably
determined by the Administrative Agent).
“Pro
Forma Basis” or “pro forma effect” means, with respect to any determination of the Total Leverage Ratio,
the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted EBITDA, Consolidated Net
Income or Consolidated Total Assets (including component definitions thereof) that each Subject Transaction shall be deemed to have occurred
as of the first day of the applicable Test Period (or, in the case of Consolidated Total Assets (or with respect to any determination
pertaining to the balance sheet, including the acquisition of Cash and Cash Equivalents in connection with an acquisition of a Person,
business line, unit, division or product line), as of the last day of such Test Period) with respect to any test or covenant for which
such calculation is being made and that:
(a) (i) in
the case of (A) any Disposition of all or substantially all of the Capital Stock of any Restricted Subsidiary or any division and/or product
line of the Borrower or any Restricted Subsidiary or (B) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary, income
statement items (whether positive or negative) attributable to the property or Person subject to such Subject Transaction, shall be excluded
as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being made
and (ii) in the case of any Permitted Acquisition, Investment and/or designation of an Unrestricted Subsidiary as a Restricted Subsidiary
described in the definition of the term “Subject Transaction”, income statement items (whether positive or negative) attributable
to the property or Person subject to such Subject Transaction shall be included as of the first day of the applicable Test Period with
respect to any test or covenant for which the relevant determination is being made; provided that any pro forma adjustment may
be applied to any such test or covenant solely to the extent that such adjustment is consistent with, subject to the limitations set forth
in and without duplication with respect to the application of, the definition of “Consolidated Adjusted EBITDA”,
(b) any Expected
Cost Savings as a result of any Cost Savings Initiative shall be calculated on a pro forma basis as though such Expected Costs Savings
had been realized on the first day of the applicable Test Period and as if such Expected Cost Savings were realized in full during the
entirety of such period; provided that any pro forma adjustment may be applied to any such test or covenant solely to the extent that
such adjustment is consistent with, subject to the limitations set forth in and without duplication with respect to the application of,
the definition of “Consolidated Adjusted EBITDA”,
(c) any retirement
or repayment of Indebtedness (other than normal fluctuations in revolving Indebtedness incurred for working capital purposes) shall be
deemed to have occurred as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant
determination is being made,
(d) any Indebtedness
incurred by the Borrower or any of its Restricted Subsidiaries in connection therewith shall be deemed to have occurred as of the first
day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being made; provided
that (x) if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable
Test Period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness
at the relevant date of determination (taking into account any interest hedging arrangements applicable to such Indebtedness), (y) interest
on any obligation with respect to any Capital Lease shall be deemed to accrue at an interest rate determined by a Responsible Officer
of the Borrower in good faith to be the rate of interest implicit in such obligation in accordance with GAAP and (z) interest on any Indebtedness
that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a Eurocurrency interbank offered
rate or other rate shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate
chosen by the Borrower, and
(e)
the acquisition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total Assets, whether pursuant
to any Subject Transaction or any Person becoming a subsidiary or merging, amalgamating or consolidating with or into the Borrower or
any of its subsidiaries, or the Disposition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated
Total Assets described in the definition of “Subject Transaction” shall be deemed to have occurred as of the last day of
the applicable Test Period with respect to any test or covenant for which such calculation is being made.
In the case
of any calculation of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio
or Consolidated Total Assets for any event described above that occurs prior to the date on which financial statements have been (or are
required to be) delivered pursuant to Section 5.01(b) for the Fiscal Year ended on or about June 30, 2017, any such calculation required
to be made on a “Pro Forma Basis” shall use the consolidated financial statements of Holdings delivered to the Arrangers for
the Fiscal Quarter ended April 2, 2017. Notwithstanding anything to the contrary set forth in the immediately preceding paragraph, for
the avoidance of doubt, when calculating the First Lien Leverage Ratio for purposes of the definitions of “Applicable Rate”
and “Commitment Fee Rate” and for purposes of Section 6.15 (other than for the purpose of determining pro forma compliance
with Section 6.15 as a condition to taking any action under this Agreement), the events described in the immediately preceding
paragraph that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.
“Projections”
means the projections of the Borrower and its Subsidiaries included in the Information Memorandum (or a supplement thereto).
“Promissory
Note” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of
Exhibit G hereto, evidencing the aggregate outstanding principal amount of Loans of the Borrower to such Lender resulting from
the Loans made by such Lender.
“Public
Company Costs” means Charges associated with, or in anticipation of, or preparation for, compliance with the requirements of
the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and Charges relating to compliance with
the provisions of the Securities Act and the Exchange Act (and in each case, any similar Requirement of Law under any other applicable
jurisdiction), as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange
companies with listed equity or debt securities, directors’, compensation, fees and expense reimbursement, Charges relating to investor
relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance, listing fees
and all executive, legal and professional fees related to the foregoing.
“Published
LIBO Rate” means, with respect to any Interest Period when used in reference to any Loan or Borrowing, (a) the rate of interest
(rounded upwards, if necessary, to the nearest 1/100th) appearing on Reuters Screen LIBOR01 Page
(or on any successor or substitute page of such service, or any successor to such service as determined by Administrative Agent) as the
London interbank offered rate for deposits in Dollars for a term comparable to such Interest Period, at approximately 11:00 a.m. (London
time) on the date which is two Business Days prior to the commencement of such Interest Period (but if more than one rate is specified
on such page, the rate will be an arithmetic average of all such rates) and (b) if such rate is not available at such time for any reason,
then the “Published LIBO Rate” for such Interest Period shall be the interest rate per annum reasonably determined by the
Administrative Agent in good faith to be the rate per annum at which deposits in Dollars for delivery on the first day of such Interest
Period in immediately available funds in the approximate amount of the LIBO Rate Loan being made, continued or converted by the Administrative
Agent and with a term equivalent to such Interest Period would be offered to the Administrative Agent by major banks in the London or
other offshore interbank market for Dollars at their request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period; provided that if such rate as determined above is at any time negative, the Published LIBO
Rate at such time shall instead be zero.
“Qualified
Capital Stock” of any Person means any Capital Stock of such Person that is not Disqualified Capital Stock.
“Qualified
Receivables Facility” means any Receivables Facility that meets the following conditions: (a) the Borrower shall have determined
in good faith that such Receivables Facility (including financing terms, covenants, termination events and other provisions) is in the
aggregate economically fair and reasonable to the Borrower and its Restricted Subsidiaries; (b) all sales of Receivables Facility Assets
and related assets by the Borrower or any Restricted Subsidiary to the Receivables Subsidiary or any other Person are made at fair market
value (as determined in good faith by the Borrower); (c) the financing terms, covenants, termination events and other provisions thereof
shall be on market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings; and (d) the
obligations under such Receivables Facility are non-recourse (except for customary representations, warranties, covenants and indemnities
made in connection with such facilities) to the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary).
“Qualifying
Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Qualifying
IPO” means any transaction or series of related transactions that results in any of the common Capital Stock of Holdings, any
Parent Company or the Borrower being publicly traded on any U.S. national securities exchange or any analogous exchange or any recognized
securities exchange in Canada, the United Kingdom or any country in the European Union.
“Qualifying
Lender” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Ratio
Interest Expense” means, with respect to any Person for any period, (a) consolidated total cash interest expense of such Person
and its Restricted Subsidiaries for such period, (i) including the interest component of any payment under any Capital Lease (regardless
of whether accounted for as interest expense under GAAP) and (ii) excluding (A) amortization, accretion or accrual of deferred financing
fees, original issue discount, debt issuance costs, discounted liabilities, commissions, fees and expenses, (B) any expense arising from
any bridge, commitment, structuring and/or other financing fee (including fees and expenses associated with the Transactions, the Amendment
No. 1 Transactions, the Amendment No. 2 Transactions, the Amendment No. 3 Transactions and agency and trustee fees), (C) any expense
resulting from the discounting of Indebtedness in connection with the application of recapitalization accounting or, if applicable, acquisition
accounting, (D) fees and expenses associated with any Dispositions, acquisitions, Investments, issuances of Capital Stock or Indebtedness
(in each case, whether or not consummated), (E) costs associated with obtaining, or breakage costs in respect of, any Hedge Agreement
or any other derivative instrument other than any interest rate Hedge Agreement or interest rate derivative instrument with respect to
Indebtedness, (F) penalties and interest relating to Taxes, (G) any “additional interest” or “liquidated damages”
for failure to timely comply with registration rights obligations, (H) interest expense with respect to Indebtedness of any Parent Company
of such Person appearing on the balance sheet of such Person solely by reason of push-down accounting under GAAP, (I) any payments with
respect to make-whole, prepayment or repayment premiums or other breakage costs of any Indebtedness, (J) any interest expense attributable
to the exercise of appraisal rights or other rights of dissenting shareholders and the settlement of any claims or actions (whether actual,
contingent or potential) with respect thereto in connection with the Transactions or any acquisition or Investment permitted hereunder
and (K) for the avoidance of doubt, any non-cash interest expense attributable to any movement in the mark to market valuation of any
obligation under any Hedge Agreement or any other derivative instrument and/or any payment obligation arising under any Hedge Agreement
or derivative instrument other than any interest rate Hedge Agreement or interest rate derivative instrument with respect to Indebtedness
minus (b) cash interest income for such period. For purposes of this definition, (x) interest in respect of any Capital Lease
shall be deemed to accrue at an interest rate determined by such Person in good faith to be the rate of interest implicit in such Capital
Lease in accordance with GAAP and (y) for the avoidance of doubt, unless already included in the calculation of interest expense, interest
expense shall be calculated after giving effect to any payments made or received under any Hedge Agreement or any other derivative instrument
with respect to Indebtedness.
“Real
Estate Asset” means, at any time of determination, all right, title and interest of any Loan Party in and to any and all parcels
of or interests in real property owned, leased or subleased by a Loan Party (including, but not limited to, land, improvements and fixtures
thereon) of such Loan Party.
“Receivables
Facility” means any of one or more receivables financing facilities or securitization financing facilities as amended, supplemented,
modified, extended, renewed, restated or refunded from time to time, pursuant to which the Borrower or any of the Restricted Subsidiaries
sells or grants a security interest in its Receivables Facility Assets to either (a) a Person that is not a Restricted Subsidiary or (b)
a Restricted Subsidiary or Receivables Subsidiary that in turn funds such purchase by selling or granting a security interest in its Receivables
Facility Assets to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables Subsidiary
that in turn funds itself by borrowing from such a Person, in each case, that constitutes a Qualified Receivables Facility.
“Receivables
Facility Asset” means (a) any accounts receivable, revenue stream or other right of payment, real estate asset, mortgage receivable
or related asset and (b) contract rights, lockbox accounts and records with respect to such assets customarily transferred therewith,
in each case subject to a Receivables Facility.
“Receivables
Fees” means distributions or payments made directly or by means of discounts with respect to any Receivables Facility Asset
or participation interest therein issued or sold in connection with, and other fees and expenses paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Facility.
“Receivables
Subsidiary” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities,
and in each case engages only in activities reasonably related or incidental thereto or another Person formed for the purposes of engaging
in a Receivables Facility in which the Borrower or any subsidiary makes an Investment and to which the Borrower or any subsidiary transfers
Receivables Facility Assets.
“Refinancing” has the meaning assigned
to such term in Section 4.01(h).
“Refinancing
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent and the Borrower
executed by (a) Holdings and the Borrower, (b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion
of the Replacement Term Loans or the Replacement Revolving Facility, as applicable, being incurred pursuant thereto and in accordance
with Section 9.02(c).
“Refinancing Indebtedness” has the meaning
assigned to such term in Section 6.01(p).
“Refunding Capital Stock” has the meaning
assigned to such term in Section 6.04(a)(viii).
“Register” has the meaning assigned to such term in Section
9.05(b).
“Regulation U”
means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Regulation X” means
Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Related
Funds” means with respect to any Lender that is an Approved Fund, any other Approved Fund that is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
“Related
Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, managers,
officers, trustees, employees, partners, agents, advisors and other representatives of such Person and such Person’s Affiliates.
“Release” means
any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment of any barrels, containers or
other closed receptacles containing any Hazardous Material).
“Replaced Revolving Facility”
has the meaning assigned to such term in Section 9.02(c).
“Replaced Term Loans”
has the meaning assigned to such term in Section 9.02(c).
“Replacement
Debt” means any Refinancing Indebtedness (whether borrowed in the form of secured or unsecured loans, issued in a public offering,
Rule 144A under the Securities Act or other private placement or bridge financing in lieu of the foregoing or otherwise) incurred in
respect of Indebtedness permitted under Section 6.01(a) (and any subsequent refinancing of such Replacement Debt).
“Replacement Revolving Facility” has
the meaning assigned to such term in Section 9.02(c).
“Replacement Term Loans” has the meaning assigned to such
term in Section 9.02(c).
“Reply Amount” has the meaning assigned to such term in the definition of “Dutch
Auction”.
“Reply Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Representation and Warranty
Insurance Policy” means the representation and warranty insurance policy obtained by the Sponsor in connection with the Mergers.
“Representative” has
the meaning assigned to such term in Section 9.13.
“Repricing
Transaction” means each of (a) the optional prepayment (or mandatory prepayment pursuant to Section 2.11(b)(iii)), repayment,
refinancing, substitution or replacement of all or a portion of the Amendment No. 2 Term Loans substantially concurrently with the incurrence
by any Loan Party of any broadly syndicated term loans secured on a pari passu basis with the Amendment No. 2 Term Loans (including
any first-lien secured Replacement Term Loans) having an Effective Yield that is less than the Effective Yield applicable to the Amendment
No. 2 Term Loans so prepaid, repaid, refinanced, substituted or replaced and (b) any amendment, waiver or other modification to this
Agreement that would have the effect of reducing the Effective Yield applicable to the Amendment No. 2 Term Loans; provided that
the primary purpose (as determined by the Borrower in good faith) of such prepayment, repayment, refinancing, substitution, replacement,
amendment, waiver or other modification was to reduce the Effective Yield applicable to the Amendment No. 2 Term Loans; provided,
further, that in no event shall any such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification
in connection with a Change of Control, Qualifying IPO or Transformative Acquisition constitute a Repricing Transaction. Any determination
by the Administrative Agent of the Effective Yield for purposes of the definition shall be conclusive and binding on all Lenders, and
the Administrative Agent shall have no liability to any Person with respect to such determination absent bad faith, gross negligence
or willful misconduct.
“Required
Excess Cash Flow Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 4.00:1.00,
50%, (b) if the First Lien Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.50:1.00, 25% and (c) if the First Lien
Leverage Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies
to the determination of the amount of Excess Cash Flow that is required to be applied to prepay Subject Loans under Section 2.11(b)(i)
for any Excess Cash Flow Period, the First Lien Leverage Ratio shall be determined on the scheduled date of prepayment (after giving pro
forma effect to such prepayment and to any other repayment or prepayment at or prior to the time such Excess Cash Flow prepayment is due).
“Required
Lenders” means, at any time, Lenders having Loans or unused Revolving Credit Commitments or Additional Commitments representing
more than 50% of the sum of the total Loans and such unused commitments at such time.
“Required
Net Proceeds Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 4.00:1.00,
100%, (b) if the First Lien Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.50:1.00, 50% and (c) if the First Lien
Leverage Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies
to the determination of the amount of Net Proceeds or Net Insurance/Condemnation Proceeds that are required to be applied to prepay Subject
Loans under Section 2.11(b)(ii) for any payment, the First Lien Leverage Ratio shall be determined on the date on which such proceeds
are received by the applicable Borrower or Restricted Subsidiary (giving pro forma effect to the subject Dispositions and/or casualty
events and the application of the relevant proceeds thereof).
“Required
Revolving Lenders” means, at any time, Lenders having Initial Revolving Loans, Additional Revolving Loans, unused Initial Revolving
Credit Commitments or unused Additional Revolving Credit Commitments representing more than 50% of the sum of the total Initial Revolving
Loans, Additional Revolving Loans and such unused Revolving Credit Commitments at such time.
“Requirements
of Law” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational
or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs,
injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof
by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having the
force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property
is subject.
“Responsible
Officer” of any Person means the chief executive officer, the president, the chief financial officer, the treasurer, any assistant
treasurer, any executive vice president, any senior vice president, any vice president or the chief operating officer of such Person
and any other individual or similar official thereof responsible for the administration of the obligations of such Person in respect
of this Agreement, and, as to any document delivered on the Closing Date, shall include any secretary or assistant secretary or any other
individual or similar official thereof with substantially equivalent responsibilities of a Loan Party and, solely for purposes of notices
given pursuant to Article 2, any other officer of the applicable Loan Party so designated by any of the foregoing officers in
a written notice to the Administrative Agent (including, for the avoidance of doubt, by electronic means). Any document delivered hereunder
that is signed by a Responsible Officer of any Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party, and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
“Responsible
Officer Certification” means, with respect to the financial statements for which such certification is required, the certification
of a Responsible Officer of the Borrower that such financial statements fairly present, in all material respects, in accordance with GAAP,
the consolidated financial condition of the Borrower as at the dates indicated and its consolidated income and cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end adjustments and, in the case of quarterly financial statements,
the absence of footnotes.
“Restricted Amount” has the meaning
set forth in Section 2.11(b)(iv).
“Restricted
Debt” means any Junior Indebtedness and any Junior Lien Indebtedness, in each case to the extent the outstanding principal amount
thereof is equal to or greater than the Threshold Amount.
“Restricted Debt Payment” has the meaning
set forth in Section 6.04(b).
“Restricted
Payment” means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of the Borrower,
except a dividend payable solely in shares of Qualified Capital Stock (or in options, warrants or other rights to purchase such Qualified
Capital Stock) to the holders of such class, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition
for value of any shares of any class of the Capital Stock of the Borrower and (c) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares of any class of the Capital Stock of the Borrower now or hereafter
outstanding. The amount of any Restricted Payment (other than Cash) shall be the fair market value, as determined in good faith by the
Borrower on the applicable date set forth in Section 1.04(e), of the assets or securities proposed to be transferred or issued
by the Borrower pursuant to such Restricted Payment.
“Restricted
Subsidiary” means, as to any Person, any subsidiary of such Person that is not an Unrestricted Subsidiary. Unless otherwise
specified, “Restricted Subsidiary” shall mean any Restricted Subsidiary of the Borrower.
“Return Bid”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Revolving
Credit Commitment” means any Initial Revolving Credit Commitment and any Additional Revolving Credit Commitment.
“Revolving
Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of such Lender’s
Initial Revolving Credit Exposure and Additional Revolving Credit Exposure.
“Revolving
Facility” means the Initial Revolving Facility and, if applicable, any Incremental Revolving Facility, any facility governing
any Extended Revolving Credit Commitment or Extended Revolving Loans and any Replacement Revolving Facility.
“Revolving
Facility Test Condition” means, as of any date of determination, without duplication, that the aggregate Outstanding Amount
of (a) all Revolving Loans (including Swingline Loans) as of such date, (b) LC Disbursements as of such date that have not been reimbursed
within three Business Days and (c) Letters of Credit (excluding (i) any Letter of Credit to the extent cash collateralized or back-stopped
and (ii) other Letters of Credit (or any portion thereof) in an aggregate face amount up to $15,000,000 (with only such Letter of Credit
amounts in excess of $15,000,000 being applied for purposes hereof)) exceeds an amount equal to 35% of the Total Revolving Credit Commitment.
“Revolving
Lender” means any Initial Revolving Lender and any Additional Revolving Lender. Unless the context otherwise requires, the term
“Revolving Lenders” shall include the Swingline Lender.
“Revolving
Loans” means any Initial Revolving Loans and any Additional Revolving Loans.
“S&P” means Standard &
Poor’s Financial Services LLC, a subsidiary of the McGraw-Hill Companies, Inc.
“Sale and Lease-Back Transaction”
has the meaning assigned to such term in Section 6.08.
“Sanctioned
Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the
time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office
of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State, (b)
any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons
described in the foregoing clause (a).
“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the Office of Foreign
Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State.
“Scheduled
Consideration” has the meaning assigned to such term in Section 2.11(b)(i).
“SEC” means the Securities
and Exchange Commission, or any Governmental Authority succeeding to any or all of its functions.
“Second Lien Claimholders” has the
meaning set forth in the Intercreditor Agreement.
“Second Lien Collateral Agent” has the meaning set forth in the Intercreditor
Agreement.
“Second Lien
Credit Agreement” means the Second Lien Credit Agreement, dated as of the Closing Date, among, inter alios,
Holdings, the Borrower and Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent and the lenders
from time to time party thereto.
“Second
Lien Facility” means the credit facility governed by the Second Lien Credit Agreement and one or more debt facilities or other
financing arrangements (including indentures) providing for loans, notes or other long-term indebtedness that replace or refinance such
facility or other financing arrangement, including any such replacement or refinancing facility or indenture or other financing arrangement
that increases or decreases the amount permitted to be borrowed thereunder or alters the maturity thereof and whether by the same or any
other agent, lender or group of lenders, and any amendments, supplements, modifications, extensions, renewals, restatements, amendments
and restatements or refundings thereof or any such indentures or facilities or other financing arrangement that replace or refinance such
credit facility (or any subsequent replacement thereof), in each case to the extent permitted or not restricted by this Agreement.
“Secured
Hedging Obligations” means all Hedging Obligations (other than any Excluded Swap Obligations) under each Hedge Agreement that
(a) is in effect on the Closing Date between any Loan Party and a counterparty that is the Administrative Agent, a Lender, an Arranger
or any Affiliate of the Administrative Agent, a Lender or an Arranger as of the Closing Date or (b) is entered into after the Closing
Date between any Loan Party and any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger
at the time such Hedge Agreement is entered into, for which such Loan Party agrees to provide security and in each case that has been
designated to the Administrative Agent in writing by the Borrower as being a Secured Hedging Obligation for purposes of the Loan Documents,
it being understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable
Loan Documents and (B) to agree to be bound by the provisions of Article 8, Sections 9.03 and 9.10 and the Intercreditor
Agreement and each other Acceptable Intercreditor Agreement as if it were a Lender.
“Secured
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Secured Debt as of such date to (b) Consolidated
Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “Secured Leverage
Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries; provided that solely for
purposes of calculating the Secured Leverage Ratio in connection with the incurrence of Incremental Equivalent Debt, clause (a) of this
definition shall also include Consolidated Total Debt as of such date that is secured by a Lien on any non-Collateral assets of the Borrower
or any Restricted Subsidiary.
“Secured
Obligations” means all Obligations, together with (a) all Banking Services Obligations and (b) all Secured Hedging Obligations;
provided that Banking Services Obligations and Secured Hedging Obligations shall cease to constitute Secured Obligations on and
after the Termination Date.
“Secured
Parties” means (i) the Lenders, the Swingline Lender and each Issuing Bank, (ii) the Administrative Agent, (iii) each counterparty
to a Hedge Agreement with a Loan Party the obligations under which constitute Secured Obligations, (iv) each provider of Banking Services
to any Loan Party the obligations under which constitute Secured Obligations, (v) the Arrangers and (vi) the beneficiaries of each indemnification
obligation undertaken by any Loan Party under any Loan Document.
“Securities”
means any stock, shares, units, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase
or acquire, any of the foregoing; provided that the term “Securities” shall not include any earn-out agreement or
obligation or any employee bonus or other incentive compensation plan or agreement.
“Securities
Act” means the Securities Act of 1933 and the rules and regulations of the SEC promulgated thereunder.
“Securitization
Repurchase Obligation” means any obligation of a seller (or any guaranty of such obligation) of assets subject to a Qualified
Receivables Facility to repurchase such assets arising as a result of a breach of a representation, warranty or covenant or otherwise,
including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset
or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to such seller.
“Security
Agreement” means the First Lien Pledge and Security Agreement, substantially in the form of Exhibit J, among the Loan
Parties and the Administrative Agent for the benefit of the Secured Parties.
“Series
A Preferred Stock” means the shares of preferred stock of Holdings, designated as “Series A Preferred Stock”, having
the terms set forth in the certificate of incorporation of the Target, as amended and restated in connection with the Merger Sub I Merger.
“Shannon
Holders” means (i) Thomas Shannon, (ii) Cobalt Recreation LLC, (iii) any Immediate Family Member of Thomas Shannon, (iv) a trust,
family-partnership or estate-planning vehicle or other legal entity substantially all the economic interests of which are held by or for
the benefit of Thomas Shannon and/or any of his Immediate Family Members and (v) any other Affiliate of Thomas Shannon or any other Shannon
Holder, including The Cobalt Group LLC.
“Shared
Incremental Amount” means, as of any date of determination, (a) the greater of (i) $105,000,000 and (ii) 75% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (b) (i) the aggregate principal amount of all
Incremental Facilities and/or Incremental Equivalent Debt originally incurred or issued in reliance on the Shared Incremental Amount
outstanding on such date and (ii) the aggregate principal amount of “Incremental Loans” and “Incremental Equivalent
Debt” (each as defined in the Second Lien Credit Agreement or any equivalent term under any documentation governing any Second
Lien Facility) originally incurred or issued in reliance on the Shared Incremental Amount outstanding on such date, in each case after
giving effect to any reclassification of any such Indebtedness as having been incurred under clause (e) of the definition of “Incremental
Cap” hereunder or clause (e) of the definition of “Incremental Cap” (as defined in the Second Lien Credit Agreement
or any equivalent term under any documentation governing any Second Lien Facility).
“Similar
Business” means any Person the majority of the revenues of which are derived from a business that would be permitted by Section
5.16 if the references to “Restricted Subsidiaries” in Section 5.16 were read to refer to such Person.
“SLB
Property” means the real property interests (and Bowling Equipment and other tangible personal property located thereon) that
are subject to the iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“SPC” has the meaning
assigned to such term in Section 9.05(e).
“Specified
Acquisition Agreement Representations” means the representations and warranties made by or on behalf of the Target, its subsidiaries
or their respective businesses in the Acquisition Agreement which are material to the interests of the Lenders, but only to the extent
that Merger Sub (or its applicable affiliate) has the right to terminate its obligations under the Acquisition Agreement or to decline
to consummate the Acquisition as a result of a breach of such representations and warranties.
“Specified
Representations” means the representations and warranties set forth in Section 3.01(a)(i) (as it relates to Holdings
and the Borrower), Section 3.02 (as it relates to the due authorization, execution, delivery and performance of the Loan Documents
and the enforceability thereof), Section 3.03(b)(i) (limited to the execution, delivery and performance of the Loan Documents,
incurrence of the Indebtedness thereunder and the granting of Guarantees and Liens in respect thereof), Section 3.08, Section
3.12, Section 3.14 (as it relates to the creation, validity and perfection of the security interests in the Collateral, subject
to the last sentence of Section 4.01), Section 3.16 and Sections 3.17(a)(ii) and (c).
“Sponsor”
means Atairos Group, Inc. and the funds, partnerships, investment vehicles or other co-investment vehicles or other entities managed,
advised or controlled by Atairos Group, Inc. or its Affiliates (but in any event excluding any portfolio company of any of the foregoing).
“Standard
Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary of the Borrower which the Borrower has determined in good faith to be customary in a Receivables Facility, including, without
limitation, those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Securitization Repurchase
Obligation shall be deemed to be a Standard Securitization Undertaking.
“Standby Letter
of Credit” means any Letter of Credit other than any Commercial Letter of Credit.
“Stated
Amount” means, with respect to any Letter of Credit, at any time, the maximum amount available to be drawn thereunder, in each
case determined (x) as if any future automatic increases in the maximum available amount provided for in any such Letter of Credit had
in fact occurred at such time and (y) without regard to whether any conditions to drawing could then be met but after giving effect to
all previous drawings made thereunder.
“Subject
Loans” means, as of any date of determination, (a) Initial Term Loans and (b) any Additional Term Loans that are subject to
ratable prepayment requirements in accordance with Section 2.11(b) on such date of repayment.
“Subject
Person” has the meaning assigned to such term in the definition of “Consolidated Net Income”.
“Subject Proceeds” has the meaning assigned
to such term in Section 2.11(b)(ii).
“Subject
Transaction” means, with respect to any Test Period, (a) the Transactions, (b) any Permitted Acquisition or any other acquisition,
whether by purchase, merger, amalgamation or otherwise, of all or substantially all of the assets of, or any business line, unit or division
of, any Person or any facility, or of a majority of the outstanding Capital Stock of any Person (but in any event including any Investment
in any Restricted Subsidiary which serves to increase the Borrower’s or any Restricted Subsidiary’s respective equity ownership
in such Restricted Subsidiary), in each case that is permitted by this Agreement, (c) any Disposition of all or substantially all of
the assets or Capital Stock of a subsidiary (or any business unit, line of business or division of the Borrower or a Restricted Subsidiary)
not prohibited by this Agreement, (d) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary
as a Restricted Subsidiary in accordance with Section 5.10 hereof, (e) any incurrence or repayment of Indebtedness (other than
revolving Indebtedness), (f) any Cost Savings Initiative and/or (g) any other event that by the terms of the Loan Documents requires
pro forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a pro forma basis.
“Subsidiary”
or “subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of the total voting power of stock or other ownership interests entitled
(without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or
other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is
at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or a combination
thereof; provided that in determining the percentage of ownership interests of any Person controlled by another Person, no ownership
interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding. Unless otherwise specified,
“subsidiary” shall mean any subsidiary of the Borrower.
“Subsidiary
Guarantor” means (x) on the Closing Date, each subsidiary of the Borrower (other than any subsidiary that is an Excluded Subsidiary
on the Closing Date) and (y) thereafter, each subsidiary of the Borrower that becomes a guarantor of the Secured Obligations pursuant
to the terms of this Agreement, in each case, until such time as the relevant subsidiary is released from its obligations under the Loan
Guaranty in accordance with the terms and provisions hereof. Notwithstanding the foregoing, the Borrower may from time to time, upon notice
to the Administrative Agent (or in the case of a Foreign Subsidiary, the prior written consent of the Administrative Agent (not to be
unreasonably withheld or delayed)), elect to cause any subsidiary that would otherwise be an Excluded Subsidiary to become a Subsidiary
Guarantor hereunder (but shall have no obligation to do so), subject to the satisfaction of guarantee and collateral requirements consistent
with the Collateral and Guarantee Requirements or otherwise reasonably acceptable to the Borrower and the Administrative Agent (which
shall include, in the case of a Foreign Subsidiary, guarantee and collateral requirements customary under local law, including customary
local limitations).
“Successor Borrower” has the meaning assigned
to such term in Section 6.07(a).
“Swap
Obligations” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction
that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline
Exposure” means, at any time, the aggregate principal amount of Swingline Loans outstanding at such time. The Swingline Exposure
of any Revolving Lender at any time shall be equal to its Applicable Percentage of the aggregate Swingline Exposure at such time.
“Swingline Lender”
means JPM, in its capacity as lender of Swingline Loans hereunder, or any successor lender of Swingline Loans hereunder.
“Swingline Loan” means any Loan made
pursuant to Section 2.04.
“Target” means Bowlmor AMF Corp., a Delaware corporation.
“Tax Group” has the meaning assigned to
such term in Section 6.04(a)(xv).
“Taxes”
means any and all present and future taxes (including “business activities” taxes), levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions
to tax or penalties applicable thereto.
“Termination Date” has the meaning assigned
to such term in the lead-in to Article 5.
“Term
Facility” means the Term Loans provided to or for the benefit of the Borrower pursuant to the terms of this Agreement.
“Term
Lender” means a Person with an Initial Term Loan Commitment or outstanding Initial Term Loan or an Additional Term Loan Commitment
(including the Amendment No. 2 Term Loan Commitments and Amendment No. 3 Incremental Term Loan Commitments) or an outstanding Additional
Term Loan (including the Amendment No. 2 Term Loans which, for the avoidance of doubt, include the Amendment No. 3 Incremental Term Loans).
“Term
Loan” means the Initial Term Loans and, if applicable, any Additional Term Loans (including the Amendment No. 2 Term Loans and
Amendment No. 3 Incremental Term Loans).
“Test
Period” means, as of any date, (a) for purposes of determining actual compliance with Section 6.15(a), the period of
four consecutive Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as
applicable, have been delivered (or are required to have been delivered) and (b) for any other purpose, the period of four consecutive
Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable,
have been delivered (or are required to have been delivered) or, if earlier, are internally available; it being understood and agreed
that prior to the first delivery (or required delivery) of financial statements under Section 5.01(a), “Test Period”
means the period of four consecutive Fiscal Quarters most recently ended for which financial statements of Holdings and its consolidated
subsidiaries are available.
“Threshold Amount” means $30,000,000.
“Total
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Total Debt outstanding as of such date
to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term
“Total Leverage Ratio” is used in this Agreement in each case for the Borrower and its Restricted Subsidiaries.
“Total
Revolving Credit Commitment” means, at any time, the aggregate amount of the Revolving Credit Commitments as in effect at such
time. The Total Revolving Credit Commitment as of the Closing Date is $50,000,000.
“Trademark”
means the following: (a) all trademarks (including service marks), common law marks, trade names, trade dress, and logos, slogans and
other indicia of origin under the laws of any jurisdiction in the world, and the registrations and applications for registration thereof
and the goodwill of the business symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims and payments for past and
future infringements thereof; (d) all rights to sue for past, present and future infringements of the foregoing, including the right to
settle suits involving claims and demands for royalties owing; and (e) all domestic rights corresponding to any of the foregoing.
“Transaction
Costs” means fees, premiums, expenses and other transaction costs (including original issue discount or upfront fees) payable
or otherwise borne by any Parent Company and/or its subsidiaries in connection with the Transactions, the Amendment No. 1 Transactions,
the Amendment No. 2 Transactions and, in each case, the transactions contemplated thereby.
“Transactions”
means, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party and
the Borrowing of Loans hereunder, (b) the Acquisition, (c) the Equity Contribution, (d) the Refinancing, (e) the execution, delivery and
performance of, including the incurrence of Indebtedness under, the Second Lien Credit Agreement and (f) the payment of the Transaction
Costs.
“Transformative
Acquisition” means any acquisition or Investment by the Borrower or any Restricted Subsidiary that is either (a) not permitted
by the terms of this Agreement immediately prior to the consummation of such acquisition or Investment or (b) if permitted by the terms
of this Agreement immediately prior to the consummation of such acquisition or Investment, would not provide the Borrower and its Subsidiaries
with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation,
as determined by the Borrower acting in good faith.
“Treasury Capital Stock” has the meaning
assigned to such term in Section 6.04(a)(viii).
“Treasury Regulations”
means the U.S. federal income tax regulations promulgated under the Code.
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate or the Alternate Base Rate.
“UCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required
to be applied in connection with the creation or perfection of security interests.
“Unrestricted
Cash Amount” means, as to any Person on any date of determination, the amount of (a) unrestricted Cash and Cash Equivalents
of such Person and its Restricted Subsidiaries and (b) Cash and Cash Equivalents of such Person and its Restricted Subsidiaries that are
restricted in favor of the Credit Facilities, any Second Lien Facility and/or other permitted pari passu or junior secured Indebtedness
(which may also include Cash and Cash Equivalents securing other Indebtedness that is secured by a Lien on Collateral along with the Credit
Facilities, any Second Lien Facility and/or any other permitted pari passu or junior secured Indebtedness), in each case as determined
in accordance with GAAP.
“Unrestricted
Subsidiary” means any subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary on the Closing Date
and listed on Schedule 5.10 hereto or after the Closing Date pursuant to Section 5.10.
“Unused
Revolving Credit Commitment” of any Lender, at any time, means the remainder of the Revolving Credit Commitment of such Lender
at such time, if any, less the sum of (a) the aggregate Outstanding Amount of Revolving Loans made by such Lender, (b) such Lender’s
LC Exposure at such time and (c) except for purposes of Section 2.12(a), such Lender’s Applicable Percentage of the aggregate
Outstanding Amount of Swingline Loans.
“U.S.” or “United
States” means the United States of America.
“USA
PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“U.S. Tax Compliance Certificate”
has the meaning assigned to such term in Section 2.17(f).
“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a)
the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other
required scheduled payments of principal, including payment at final maturity, in respect thereof by (ii) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal
amount of such Indebtedness; provided that the effect of any prepayment made in respect of such Indebtedness shall be disregarded
in making such calculation.
“Wholly-Owned
Subsidiary” of any Person means a subsidiary of such Person 100% of the Capital Stock of which (other than directors’
qualifying shares or shares required by Requirements of Law to be owned by a resident of the relevant jurisdiction) are owned by such
Person or by one or more Wholly-Owned Subsidiaries of such Person.
“Write-Down
and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion
powers are described in the EU Bail-In Legislation Schedule.
Section 1.02.
Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g.,
a “Term Loan”) or by Type (e.g., a “LIBO Rate Loan”) or by Class and Type (e.g., a “LIBO Rate
Term Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Term Loan Borrowing”) or by Type (e.g.,
a “LIBO Rate Borrowing”) or by Class and Type (e.g., a “LIBO Rate Term Loan Borrowing”).
Section
1.03. Terms Generally. (a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” The words “ordinary
course of business” or “ordinary course” shall, with respect to any Person, be deemed to refer to items or actions
that are consistent with industry practice of such Person’s business industry or such Person’s past practice (it being understood
that the sale of accounts receivable (and related assets) pursuant to supply-chain, factoring or reverse factoring arrangements entered
into by the Borrower and its Restricted Subsidiaries shall be deemed to be in the ordinary course of business so long as such accounts
receivable (and related assets) are sold for Cash in an amount not less than 95% of the face amount thereof). Unless the context requires
otherwise (i) any definition of or reference to any agreement, instrument or other document herein or in any Loan Document (including
any Loan Document, the Second Lien Credit Agreement and any Loan Document referred to therein) shall be construed as referring to such
agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified
or extended, replaced or refinanced (subject to any restrictions or qualifications on such amendments, restatements, amendment and restatements,
supplements or modifications or extensions, replacements or refinancings set forth herein), (ii) any reference to any Requirement of
Law in any Loan Document shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing, superseding
or interpreting such Requirement of Law, (iii) any reference herein or in any Loan Document to any Person shall be construed to include
such Person’s successors and permitted assigns, (iv) the words “herein,” “hereof” and “hereunder,”
and words of similar import, when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not
to any particular provision hereof, (v) all references herein or in any Loan Document to Articles, Sections, clauses, paragraphs, Exhibits
and Schedules shall be construed to refer to Articles, Sections, clauses and paragraphs of, and Exhibits and Schedules to, such Loan
Document, (vi) in the computation of periods of time in any Loan Document from a specified date to a later specified date, the word “from”
means “from and including”, the words “to” and “until” mean “to but excluding” and the
word “through” means “to and including” and (vii) the words “asset” and “property”, when
used in any Loan Document, shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including Cash, securities, accounts and contract rights. For the avoidance of doubt, all references to Amendment
No. 2 Loans herein, shall, from and after the Amendment No. 3 Effective Date (as applicable), include (and be deemed to include) Amendment
No. 3 Incremental Term Loans in order to result in equivalent treatment thereof.
(b)
For purposes of determining compliance at any time with Sections 6.01, 6.02, 6.04, 6.06 and 6.07,
in the event that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment or Disposition, as applicable, or portion
thereof, at any time meets the criteria of more than one of the categories of transactions or items permitted pursuant to any clause
of such Sections 6.01 (other than Sections 6.01(a) (in the case of Indebtedness incurred on the Closing Date) and (x)),
6.02 (other than Sections 6.02(a) and (t) (with respect to Section 6.01(x)), 6.04, 6.06 and
6.07 (each of the foregoing, a “Reclassifiable Item”), the Borrower, in its sole discretion, may, from time
to time, divide, classify or reclassify such Reclassifiable Item (or portion thereof) under one or more clauses of each such Section
and will only be required to include such Reclassifiable Item (or portion thereof) in any one category; provided that, upon delivery
of any financial statements pursuant to Section 5.01(a) or (b) following the initial incurrence or making of any such Reclassifiable
Item, if such Reclassifiable Item could, based on such financial statements, have been incurred in reliance on Section 6.01(z)
(in the case of Indebtedness and Liens) or any “ratio-based” basket (in the case of all other Reclassifiable Items), such
Reclassifiable Item shall automatically be reclassified as having been incurred or made under the applicable provisions of Section 6.01(z)
or such “ratio-based” basket, as applicable (in each case, subject to any other applicable provision of Section 6.01(z)
or such “ratio-based” basket, as applicable). It is understood and agreed that any Indebtedness, Lien, Restricted Payment,
Restricted Debt Payment, Investment and/or Disposition need not be permitted solely by reference to one category of permitted Indebtedness,
Lien, Restricted Payment, Restricted Debt Payment, Investment and/or Disposition under Sections 6.01, 6.02, 6.04,
6.06 or 6.07, respectively, but may instead be permitted in part under any combination thereof or under any other available
exception.
Section 1.04. Accounting Terms; GAAP.
(a)
(i) All financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time
to time and, except as otherwise expressly provided herein, all terms of an accounting or financial nature that are used in calculating
the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted
EBITDA, Consolidated Net Income or Consolidated Total Assets shall be construed and interpreted in accordance with GAAP, as in effect
from time to time; provided that (A) if any change to GAAP or in the application thereof (including the conversion to IFRS as
described below) is implemented after the date of delivery of the financial statements described in Section 3.04(a) and/or there
is any change in the functional currency reflected in the financial statements or (B) if the Borrower elects or is required to report
under IFRS, the Borrower or the Required Lenders may request to amend the relevant affected provisions hereof (whether or not the request
for such amendment is delivered before or after the relevant change or election) to eliminate the effect of such change or election,
as the case may be, on the operation of such provisions and (x) the Borrower and the Administrative Agent shall negotiate in good faith
to enter into an amendment of the relevant affected provisions (it being understood that no amendment or similar fee shall be payable
to the Administrative Agent or any Lender in connection therewith) to preserve the original intent thereof in light of the applicable
change or election, as the case may be and (y) the relevant affected provisions shall be interpreted on the basis of GAAP and the currency,
in each case, as in effect and applied immediately prior to the applicable change or election, as the case may be, until the request
for amendment has been withdrawn by the Borrower or the Required Lenders, as applicable, or this Agreement has been amended as contemplated
hereby. Any consent required from the Administrative Agent or any Required Lender with respect to the foregoing shall not be unreasonably
withheld, conditioned or delayed.
(ii) All terms
of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall
be made, without giving effect to (i) any election under Accounting Standards Codification 825-10-25 (previously referred to as Statement
of Financial Accounting Standards 159) (or any other Accounting Standards Codification, International Accounting Standard or Financial
Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any subsidiary
at “fair value,” as defined therein, (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting
Standards Codification 470-20 (or any other Accounting Standards Codification, International Accounting Standard or Financial Accounting
Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and
such Indebtedness shall at all times be valued at the full stated principal amount thereof and (iii) the application of Accounting Standards
Codification 480, 815, 805 and 718 (to the extent these pronouncements under Accounting Standards Codification 718 result in recording
an equity award as a liability on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries in the circumstance where,
but for the application of the pronouncements, such award would have been classified as equity). If the Borrower notifies the Administrative
Agent that the Borrower (or its applicable Parent Company) is required to report under IFRS or has elected to do so through an early adoption
policy, “GAAP” shall mean international financial reporting standards pursuant to IFRS (provided thereafter, the Borrower
cannot elect to report under GAAP).
(b)
Notwithstanding anything to the contrary herein, but subject to Sections 1.04(d), (e) and (g), all financial ratios and
tests (including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio and
the amount of Consolidated Total Assets, Consolidated Net Income and Consolidated Adjusted EBITDA) contained in this Agreement that are
calculated with respect to any Test Period during which any Subject Transaction occurs shall be calculated with respect to such Test
Period and such Subject Transaction on a Pro Forma Basis. Further, if since the beginning of any such Test Period and on or prior to
the date of any required calculation of any financial ratio or test (x) any Subject Transaction has occurred or (y) any Person that subsequently
became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries
since the beginning of such Test Period has consummated any Subject Transaction, then, in each case, any applicable financial ratio or
test shall be calculated on a Pro Forma Basis for such Test Period as if such Subject Transaction had occurred at the beginning of the
applicable Test Period (or, in the case of Consolidated Total Assets (or with respect to any determination pertaining to the balance
sheet, including the acquisition of Cash and Cash Equivalents), as of the last day of such Test Period), it being understood, for the
avoidance of doubt, that solely for purposes of (x) calculating quarterly compliance with Section 6.15 and (y) calculating the
First Lien Leverage Ratio for purposes of the definitions of “Applicable Rate” and “Commitment Fee Rate”, in
each case, the date of the required calculation shall be the last day of the Test Period, and no Subject Transaction occurring thereafter
shall be taken into account.
(c) Notwithstanding
anything to the contrary contained in paragraph (a) above or in the definition of “Attributable Debt”, “Capital
Lease” or “Capital Lease Obligation”, in the event of an accounting change or a change in the application of GAAP requiring
all or certain leases to be capitalized or otherwise accounted for as liabilities on the balance sheet of the applicable Person, unless
the Borrower elects otherwise, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof)
that would constitute Capital Leases (including leases that are classified as “Financing Leases” for purposes of GAAP) in
conformity with GAAP on the date hereof shall be considered Capital Leases, and all calculations and deliverables under this Agreement
or any other Loan Document shall be made or delivered, as applicable, in accordance therewith. Notwithstanding anything contained in any
Loan Document to the contrary, the leases relating to the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 and any Excluded Property
Sale/Leaseback Transaction shall be deemed not to be and shall not otherwise be classified as a Capital Lease (and the obligations in
respect thereof shall not be considered Indebtedness) for purposes of this Agreement and any other Loan Document.
(d) For purposes
of determining the permissibility of any action, change, transaction or event that by the terms of the Loan Documents requires a calculation
of any financial ratio or financial test (including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio,
the Interest Coverage Ratio and the amount of Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated Total Assets), subject
to the succeeding clause (e), such financial ratio or test shall be calculated at the time such action is taken, such change is
made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to
have occurred solely as a result of a change in such financial ratio or financial test occurring after the time such action is taken,
such change is made, such transaction is consummated or such event occurs, as the case may be.
(e)
Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma Basis), if the terms
of this Agreement require (i) compliance with any financial ratio or financial test (including, without limitation, Section 6.15(a)
hereof, any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage
Ratio test) and/or any cap expressed as a percentage of Consolidated Total Assets or Consolidated Adjusted EBITDA, (ii) accuracy of any
representation or warranty and/or the absence of a Default or Event of Default (or any type of default or event of default) or (iii)
compliance with any basket, as a condition to (A) the consummation of any transaction (including in connection with any acquisition or
similar Investment or the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of
any Restricted Debt Payment, in each case in connection with a Limited Condition Transaction, the determination of whether the relevant
condition is satisfied may be made, at the election of the Borrower, (1) in the case of any acquisition or similar Investment or any
Disposition and any transaction related thereto, at the time of (or on the basis of the financial statements for the most recently ended
Test Period at the time of) either (x) the execution of the definitive agreement with respect to such acquisition, Investment or Disposition
or (y) the consummation of such acquisition, Investment or Disposition, (2) in the case of any Restricted Payment, at the time of (or
on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted
Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis
of the financial statements for the most recently ended Test Period at the time of) (x) delivery of notice with respect to such Restricted
Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after giving effect to the relevant acquisition, Restricted
Payment and/or Restricted Debt Payment or other transaction on a Pro Forma Basis (including, in each case, giving effect to the relevant
transaction, any relevant Indebtedness (including the intended use of proceeds thereof) and, at the election of the Borrower, giving
pro forma effect to other prospective Limited Condition Transactions that are acquisitions or similar Investments for which definitive
agreements have been executed, and no Default or Event of Default shall be deemed to have occurred solely as a result of an adverse change
in such financial ratio or test occurring after the time such election is made (but any subsequent improvement in the applicable financial
ratio or test may be utilized by the Borrower or any Restricted Subsidiary). For the avoidance of doubt, if the Borrower shall have elected
the option set forth in clause (x) of any of the preceding clauses (1), (2) or (3) in respect of any transaction, then the Borrower shall
be permitted to consummate such transaction even if any applicable test or condition shall cease to be satisfied subsequent to the Borrower’s
election of such option. The provisions of this paragraph (e) shall also apply in respect of the incurrence of any Incremental Facility.
(f) [Reserved].
(g) Notwithstanding
anything to the contrary herein, unless the Borrower otherwise notifies the Administrative Agent, with respect to any amounts incurred
under the Revolving Facility, any Additional Revolving Facility or any other permitted revolving facility or any amounts incurred or transactions
entered into (or consummated) in reliance on a provision of this Agreement (including Section 6.01(x) (as it relates to the incurrence
of any “fixed” or similar amount incurred under any Second Lien Facility)) that does not require compliance with a financial
ratio or financial test (including any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test
and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any
amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement (including Section 6.01(x)
(as it relates to the incurrence of any “incurrence based” or similar amount incurred under any Second Lien Facility)) that
requires compliance with a financial ratio or financial test (including any First Lien Leverage Ratio test, any Secured Leverage Ratio
test, any Total Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”),
it is understood and agreed that (A) the incurrence of the Incurrence-Based Amount shall be calculated first without giving effect to
any Fixed Amount but giving full pro forma effect to the use of proceeds of such Fixed Amount and the related transactions and (B) the
incurrence of the Fixed Amount shall be calculated thereafter. Unless the Borrower elects otherwise, the Borrower shall be deemed to have
used amounts under an Incurrence-Based Amount then available to the Borrower prior to utilization of any amount under a Fixed Amount then
available to the Borrower. For the avoidance of doubt, all Indebtedness substantially concurrently incurred will be included for purposes
of calculating compliance with Sections 6.04(a)(xiii), 6.04(b)(vii) and 6.06(dd) (in each case, giving pro forma
effect to the intended use of proceeds thereof).
(h) The principal
amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal
amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(i) The increase
in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of interest or a
dividend in the form of additional Indebtedness, amortization of original issue discount and/or any increase in the amount of Indebtedness
outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency will not be deemed to be the granting
of a Lien for purposes of Section 6.02.
(j)
For purposes of determining compliance with Section 6.01 or Section 6.02, if any Indebtedness or Lien is incurred in reliance
on a basket measured by reference to a percentage of Consolidated Adjusted EBITDA, and any refinancing or replacement thereof would cause
the percentage of Consolidated Adjusted EBITDA to be exceeded if calculated based on the Consolidated Adjusted EBITDA on the date of
such refinancing or replacement, such percentage of Consolidated Adjusted EBITDA will be deemed not to be exceeded so long as the principal
amount of such refinancing or replacement Indebtedness or other obligation does not exceed an amount sufficient to repay the principal
amount of such Indebtedness or other obligation being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest,
penalties and premiums (including tender, prepayment or repayment premiums) thereon plus underwriting discounts and other customary fees,
commissions and expenses (including upfront fees, original issue discount or initial yield payment) incurred in connection with such
refinancing or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under
Section 6.01.
(k) Any financial
ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action
to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest
number (with a rounding-up if there is no nearest number).
Section 1.05.
Effectuation of Transactions. Each of the representations and warranties contained in this Agreement (and all corresponding definitions)
is made after giving effect to the Transactions, unless the context otherwise requires.
Section 1.06.
Timing of Payment and Performance. When payment of any obligation or the performance of any covenant, duty or obligation is stated
to be due or required on a day which is not a Business Day, the date of such payment (other than as described in the definition of “Interest
Period”) or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension.
Section 1.07.
Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight
or standard, as applicable).
Section 1.08. Currency Equivalents Generally.
(a)
Notwithstanding anything to the contrary in clause (b) below, for purposes of any determination under Article 5, Article 6
(other than Section 6.15 and the calculation of compliance with any financial ratio for purposes of taking any action hereunder)
or Article 7 with respect to the amount of any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition,
Sale and Lease-Back Transaction, affiliate transaction or other transaction, event or circumstance, or any determination under any other
provision of this Agreement (any of the foregoing, a “relevant transaction”), in a currency other than Dollars, (i)
the Dollar equivalent amount of a relevant transaction in a currency other than Dollars shall be calculated based on the rate of exchange
quoted by the Bloomberg Foreign Exchange Rates & World Currencies Page (or any successor page thereto, or in the event such rate
does not appear on any Bloomberg Page, by reference to such other publicly available service for displaying exchange rates as may be
agreed upon by the Administrative Agent and the Borrower) for such foreign currency, as in effect at 11:00 a.m. (London time) on the
date of such relevant transaction (which, in the case of any Restricted Payment, Restricted Debt Payment, Investment, Disposition or
incurrence of Indebtedness, shall be determined as set forth in Section 1.04(e)); provided, that if any Indebtedness is
incurred (and, if applicable, associated Lien granted) to refinance or replace other Indebtedness denominated in a currency other than
Dollars, and the relevant refinancing or replacement would cause the applicable Dollar-denominated restriction to be exceeded if calculated
at the relevant currency exchange rate in effect on the date of such refinancing or replacement, such Dollar-denominated restriction
shall be deemed not to have been exceeded so long as the principal amount of such refinancing or replacement Indebtedness (and, if applicable,
associated Lien granted) does not exceed an amount sufficient to repay the principal amount of such Indebtedness being refinanced or
replaced, except by an amount equal to (x) unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus
underwriting discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial
yield payment) incurred in connection with such refinancing or replacement, (y) any existing commitments unutilized thereunder and (z)
additional amounts permitted to be incurred under Section 6.01 and (ii) for the avoidance of doubt, no Default or Event of Default
shall be deemed to have occurred solely as a result of a change in the rate of currency exchange occurring after the time of any relevant
transaction so long as such relevant transaction was permitted at the time incurred, made, acquired, committed, entered or declared as
set forth in clause (i). For purposes of Section 6.15 and the calculation of compliance with any financial ratio for purposes
of taking any action hereunder (including for purposes of calculating compliance with the Incremental Cap) on any relevant date of determination,
amounts denominated in currencies other than Dollars shall be translated into Dollars at the applicable currency exchange rate used in
preparing the financial statements delivered pursuant to Sections 5.01(a) or (b) (or, prior to the first such delivery,
the financial statements referred to in Section 3.04), as applicable, for the relevant Test Period. Notwithstanding the foregoing
or anything to the contrary herein, to the extent that the Borrower would not be in compliance with Section 6.15(a) if any Indebtedness
denominated in a currency other than Dollars were to be translated into Dollars on the basis of the applicable currency exchange rate
used in preparing the financial statements delivered pursuant to Section 5.01(a) or (b), as applicable, for the relevant
Test Period, but would be in compliance with Section 6.15(a) if such Indebtedness that is denominated in a currency other than
in Dollars were instead translated into Dollars on the basis of the average relevant currency exchange rates over such Test Period (taking
into account the currency translation effects, determined in accordance with GAAP, of any Hedge Agreement permitted hereunder in respect
of currency exchange risks with respect to the applicable currency in effect on the date of determination for the Dollar equivalent amount
of such Indebtedness), then, solely for purposes of compliance with Section 6.15(a), the First Lien Leverage Ratio as of the last
day of such Test Period shall be calculated on the basis of such average relevant currency exchange rates.
(b) Each
provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time
specify with the Borrower’s consent to appropriately reflect a change in currency of any country and any relevant market convention
or practice relating to such change in currency.
Section 1.09. Cashless
Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that
any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental Loans, Replacement
Term Loans, Loans in connection with any Replacement Revolving Facility, Extended Term Loans, Extended Revolving Loans or loans incurred
under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a
“cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any requirement
hereunder or any other Loan Document that such payment be made “in Dollars”, “in immediately available funds”,
“in Cash” or any other similar requirement.
Section 1.10. Alternative Currencies.
(a) The
Borrower may from time to time request that LIBO Rate Revolving Loans be made and/or Letters of Credit be issued in a currency other
than Dollars; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and
freely transferable and convertible into Dollars. In the case of any such request with respect to the making of LIBO Rate Revolving
Loans, such request shall be subject to the approval of the Revolving Lenders of the applicable Class that will provide such Loans,
and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval
of the applicable Issuing Banks, in each case as set forth in Section 9.02(b)(ii)(E).
(b) Any
such request shall be made to the Administrative Agent not later than 11:00 a.m., ten Business Days prior to the requested date of the
making of such Revolving Loan or issuance of such Letter of Credit (or such other time or date as may be agreed by the Administrative
Agent and, in the case of any such request pertaining to Letters of Credit, the applicable Issuing Banks, in its or their sole discretion).
In the case of any such request pertaining to LIBO Rate Revolving Loans, the Administrative Agent shall promptly notify each Revolving
Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the
applicable Issuings Bank thereof. Each applicable Revolving Lender (in the case of any such request pertaining to LIBO Rate Revolving
Loans) or each applicable Issuing Bank (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent,
not later than 11:00 a.m., five Business Days after receipt of such request whether it consents, in its sole discretion, to the making
of LIBO Rate Revolving Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(c) Any
failure by a Revolving Lender or Issuing Bank, as the case may be, to respond to such request within the time period specified in the
preceding paragraph shall be deemed to be a refusal by such Revolving Lender or Issuing Bank, as the case may be, to permit LIBO Rate
Revolving Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the applicable
Revolving Lenders consent to making LIBO Rate Revolving Loans or issuance of Letters of Credit in such requested currency, the Administrative
Agent shall so notify the Borrower and the Borrower and the Revolving Lenders shall amend this Agreement and the other Loan Documents
as necessary to accommodate such Borrowings and/or Letters of Credit (as applicable), in accordance with Section 9.02(b)(ii)(E).
If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.10, the
Administrative Agent shall promptly so notify the Borrower.
ARTICLE 2 THE CREDITS
Section 2.01. Commitments.
(a) Subject
to the terms and conditions set forth herein, (i) (x) each Initial Term Lender severally, and not jointly, agrees to make Initial
Term Loans to the Borrower on the Closing Date in Dollars in a principal amount not to exceed its Initial Term Loan Commitment as of
the Closing Date and (y) each Amendment No. 1 Incremental Term Lender severally, and not jointly, agrees to make Amendment No. 1
Incremental Term Loans to the Borrower on the Amendment No. 1 Effective Date in a principal amount not to exceed its Initial Term
Loan Commitment as of the Amendment No. 1 Effective Date and (ii) each Revolving Lender severally, and not jointly, agrees to make
Revolving Loans to the Borrower in Dollars at any time and from time to time on and after the Closing Date, and until the earlier of
the Initial Revolving Credit Maturity Date and the termination of the Initial Revolving Credit Commitment of such Revolving Lender
in accordance with the terms hereof; provided that, after giving effect to any Borrowing of Initial Revolving Loans, the
Outstanding Amount of such Revolving Lender’s Initial Revolving Credit Exposure shall not exceed such Revolving Lender’s
Initial Revolving Credit Commitment. Subject to the terms and conditions set forth in Amendment No. 2 (x) each Converting Lender (as
defined in Amendment No. 2) severally, and not jointly, agrees to exchange its Existing Term Loans (as defined in Amendment No. 2)
for a like principal amount of Amendment No. 2 Term Loans on the Amendment No. 2 Effective Date (or such lesser amount allocated to
such Lender by the Administrative Agent) and (y) each Amendment No. 2 Term Lender severally, and not jointly, agrees to make
Amendment No. 2 Term Loans to the Borrower on the Amendment No. 2 Effective Date in a principal amount not to exceed its Amendment
No. 2 Term Loan Commitment as of the Amendment No. 2 Effective Date. Subject to the terms and conditions set forth herein, each
Amendment No. 3 Incremental Term Lender severally, and not jointly, agrees to make Amendment No. 3 Incremental Term Loans to the
Borrower on the Amendment No. 3 Effective Date in a principal amount not to exceed its Amendment No. 3 Incremental Term Loan
Commitment as of the Amendment No. 3 Effective Date. Within the foregoing limits and subject to the terms, conditions and
limitations set forth herein, the Borrower may borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in
respect of the Initial Term Loans, Amendment No. 2 Term Loans or Amendment No. 3 Incremental Term Loans may not be reborrowed.
(b) Subject
to the terms and conditions of this Agreement and any applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment,
each Lender with an Additional Commitment of a given Class, severally and not jointly, agrees to make Additional Loans of such Class to
the Borrower, which Loans shall not exceed for any such Lender at the time of any incurrence thereof the Additional Commitment of such
Class of such Lender as set forth in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment.
Section 2.02. Loans and Borrowings.
(a) Each
Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their respective Commitments of the applicable Class. Each Swingline Loan shall be made in accordance with
the procedures set forth in Section 2.04.
(b) Subject
to Section 2.01 and Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or LIBO Rate Loans as the Borrower
may request in accordance herewith; provided that each Swingline Loan shall be an ABR Loan. Each Lender at its option may make
any LIBO Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any
exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement,
(ii) such LIBO Rate Loan shall be deemed to have been made and held by such Lender, and the obligation of the Borrower to repay such LIBO
Rate Loan shall nevertheless be to such Lender for the account of such domestic or foreign branch or Affiliate of such Lender and (iii)
in exercising such option, such Lender shall use reasonable efforts to minimize increased costs to the Borrower resulting therefrom (which
obligation of such Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs
for which it will not be compensated hereunder or that it otherwise determines would be disadvantageous to it and in the event of such
request for costs for which compensation is provided under this Agreement, the provisions of Section 2.15 shall apply); provided,
further, that any such domestic or foreign branch or Affiliate of such Lender shall not be entitled to any greater indemnification
under Section 2.17 with respect to such LIBO Rate Loan than that to which the applicable Lender was entitled on the date on which
such Loan was made (except in connection with any indemnification entitlement arising as a result of a Change in Law after the date on
which such Loan was made).
(c) At the
commencement of each Interest Period for any LIBO Rate Borrowing, such Borrowing shall comprise an aggregate principal amount that
is an integral multiple of $100,000 and not less than $500,000. Each ABR Borrowing when made shall be in a minimum principal amount
of $100,000; provided that an ABR Revolving Loan Borrowing may be made in a lesser aggregate amount that is (x) equal to the
entire aggregate Unused Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e). Borrowings of more than one Type and Class may be outstanding at the same time; provided
that there shall not at any time be more than a total of 10 different Interest Periods in effect for LIBO Rate Borrowings at any
time outstanding (or such greater number of different Interest Periods as the Administrative Agent may agree from time to time).
(d) Notwithstanding
any other provision of this Agreement, the Borrower shall not, nor shall it be entitled to, request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date applicable to such Loans.
Section 2.03. Requests
for Borrowings. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of LIBO Rate Loans
shall be made upon irrevocable notice by the Borrower to the Administrative Agent (provided that notices in respect of any
Borrowings (x) to be made on the Closing Date may be conditioned on the closing of the Acquisition and (y) to be made in connection
with any acquisition, Investment or irrevocable repayment, redemption or refinancing of Indebtedness may be conditioned on the
closing of such acquisition, Investment or irrevocable repayment, redemption or refinancing of such Indebtedness). Each such notice
must be in writing or by telephone (and promptly confirmed in writing) and must be received by the Administrative Agent (by hand
delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) not later than 12:00 p.m. (i)
three Business Days prior to the requested day of any Borrowing of, conversion to or continuation of LIBO Rate Loans (or 12:00 p.m.
one Business Day in the case of any Borrowing of LIBO Rate Loans to be made on the Closing Date) and (ii) on the requested date of
any Borrowing of or conversion to ABR Loans (other than Swingline Loans) (or, in each case, such later time as shall be acceptable
to the Administrative Agent); provided, however, that if the Borrower wishes to request LIBO Rate Loans having an
Interest Period of other than one, two, three or six months in duration as provided in the definition of “Interest
Period,” (A) the applicable notice from the Borrower must be received by the Administrative Agent not later than 11:00 a.m.
four Business Days prior to the requested date of such Borrowing, conversion or continuation (or such later time as is acceptable to
the Administrative Agent), whereupon the Administrative Agent shall give prompt notice to the appropriate Lenders of such request
and determine whether the requested Interest Period is acceptable to them and (B) not later than 10:00 a.m. three Business Days
before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower whether
or not the requested Interest Period has been consented to by all the appropriate Lenders. Each written notice (or confirmation of
telephonic notice) with respect to a Borrowing by the Borrower pursuant to this Section 2.03 shall be delivered to the
Administrative Agent in the form of a written Borrowing Request, appropriately completed and signed by a Responsible Officer of the
Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section
2.02:
(a)
the Class of such Borrowing;
(b)
the aggregate amount of the requested Borrowing;
(c)
the date of such Borrowing, which shall be a Business Day;
(d)
whether such Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing;
(e) in
the case of a LIBO Rate Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition
of the term “Interest Period”; and
(f) the
location and number of the Borrower’s account or any other designated account(s) to which funds are to be disbursed (the “Funding
Account”).
If no election as to the Type of Borrowing is specified,
then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested LIBO Rate
Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative
Agent shall advise each Lender of the details thereof and of the amount of the Loan to be made as part of the requested Borrowing
(x) in the case of any ABR Borrowing, on the same Business Day of receipt of a Borrowing Request in accordance with this Section or
(y) in the case of any LIBO Rate Borrowing, no later than one Business Day following receipt of a Borrowing Request in accordance
with this Section.
Section 2.04. Swingline Loans.
(a) Subject
to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during
the Availability Period, in an aggregate principal amount at any time outstanding not to exceed $10,000,000; provided that (x)
the Swingline Lender shall not be required to make any Swingline Loan to refinance an outstanding Swingline Loan and (y) after giving
effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall not exceed
the Total Revolving Credit Commitment. Each Swingline Loan shall be in a minimum principal amount of not less than $100,000 or such lesser
amount as may be agreed by the Swingline Lender; provided that, notwithstanding the foregoing, a Swingline Loan may be in an aggregate
amount that is (x) equal to the entire unused balance of the aggregate Unused Revolving Credit Commitments or (y) required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Within the foregoing limits and subject to the terms
and conditions set forth herein, Swingline Loans may be borrowed, prepaid and reborrowed. To request a Swingline Loan, the Borrower shall
notify the Swingline Lender (with a copy to the Administrative Agent) of such request by telephone (confirmed by facsimile), not later
than 2:00 p.m. on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which
shall be a Business Day) and amount of the requested Swingline Loan. The Swingline Lender shall make each Swingline Loan available to
the Borrower on the same Business Day by means of a credit to the Funding Account or otherwise in accordance with the instructions of
the Borrower (including, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section
2.05(e), by remittance to the applicable Issuing Bank).
(b) The
Swingline Lender may by written notice given to the Administrative Agent not later than 12:00 p.m. on any Business Day require the
Revolving Lenders to acquire participations on the second Business Day following receipt of such notice in all or a portion of the
Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Revolving Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each
Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or
Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or any reduction or termination of the Revolving Credit Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with
its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section
2.07 with respect to Revolving Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders pursuant to this Section 2.04(b)), and the Administrative
Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative
Agent shall notify the Borrower of any participation in any Swingline Loan acquired pursuant to this Section 2.04(b), and
thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any
amounts received by the Swingline Lender from the Borrower (or other Person on behalf of the Borrower) in respect of any Swingline
Loan after receipt by the Swingline Lender of the proceeds of any sale of participations therein shall be promptly remitted by the
Swingline Lender to the Administrative Agent and any such amounts received by the Administrative Agent shall be promptly remitted by
the Administrative Agent to the Revolving Lenders that have made their payments pursuant to this Section 2.04(b) and to the
Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline
Lender or the Administrative Agent, as the case may be, and thereafter to the Borrower, if and to the extent such payment is
required to be refunded to the Borrower for any reason. The purchase of participations in any Swingline Loan pursuant to this Section
2.04(b) shall not relieve the Borrower of any default in the payment thereof.
(c) If
any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to
be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04 by the time specified in Section
2.04(b), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately
available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect
and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A certificate of
the Swingline Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this
clause (c) shall be conclusive absent manifest error.
Section 2.05. Letters of Credit.
(a)
General.
(i) Subject
to the terms and conditions set forth herein, (ii) each Issuing Bank agrees, in each case in reliance upon the agreements of the other
Revolving Lenders set forth in this Section 2.05, (A) from time to time on any Business Day during the period from the Closing
Date to the fifth Business Day prior to the Initial Revolving Credit Maturity Date, upon the request of the Borrower, to issue Letters
of Credit issued on sight basis only for the account of the Borrower (or any Restricted Subsidiary; provided that the Borrower
will be the applicant) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.05(b), and
(B) to honor drafts under the Letters of Credit, and (iii) the Revolving Lenders severally agree to participate in the Letters of Credit
issued pursuant to Section 2.05(d). Notwithstanding anything to the contrary contained in this Agreement, no Issuing Bank shall
be required to issue Commercial Letters of Credit without its consent.
(ii) No
Issuing Bank shall have an obligation to issue any Letter of Credit if (x) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, (y) customary “know
your customer” requirements of such Issuing Bank with respect to the beneficiary of such Letter of Credit would be violated or (z)
any law applicable to such Issuing Bank or any directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over such Issuing Bank shall prohibit, or direct that such Issuing Bank refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular.
(b) Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit, the Borrower
shall deliver to the applicable Issuing Bank and the Administrative Agent, at least three Business Days in advance of the requested
date of issuance (or such shorter period as is acceptable to the applicable Issuing Bank or, in the case of any issuance to be made
on the Closing Date, one Business Day prior to the Closing Date), a request to issue a Letter of Credit, which shall specify that it
is being issued under this Agreement, in the form of Exhibit K attached hereto. To request an amendment, extension or renewal
of a Letter of Credit (other than any automatic extension of a Letter of Credit permitted under Section 2.05(c)), the Borrower shall
submit such a request to the applicable Issuing Bank selected by the Borrower (with a copy to the Administrative Agent) at least
three Business Days in advance of the requested date of amendment, extension or renewal (or such shorter period as is acceptable to
the applicable Issuing Bank), identifying the Letter of Credit to be amended, extended or renewed, and specifying the proposed date
(which shall be a Business Day) and other details of the amendment, extension or renewal. Requests for the issuance, amendment,
extension or renewal of any Letter of Credit must be accompanied by such other information as shall be necessary to issue, amend,
extend or renew such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of
credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. In the event of
any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement shall control. No Letter of Credit, letter of credit
application or other document entered into by the Borrower with the applicable Issuing Bank relating to any Letter of Credit shall
contain any representations or warranties, covenants or events of default not set forth in this Agreement (and to the extent
inconsistent herewith shall be rendered null and void or reformed automatically without further action by any Person to conform to
the terms of this Agreement), and all representations and warranties, covenants and events of default set forth therein shall
contain standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with those set forth in this
Agreement (and, to the extent inconsistent herewith, shall be deemed to automatically incorporate the applicable standards,
qualifications, thresholds and exceptions set forth herein without action by any Person). A Letter of Credit may be issued, amended,
extended or renewed only if (and on the issuance, amendment, extension or renewal of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance, amendment, extension or renewal, (A) the sum of (x) the
aggregate outstanding principal amount of all Revolving Loans and Swingline Loans plus (y) the aggregate amount of all LC
Exposures would not exceed the Total Revolving Credit Commitment and (B) the LC Exposure does not exceed the Letter of Credit
Sublimit (unless otherwise increased). In addition, no Issuing Bank shall be required to issue, amend, extend or renew any Letter of
Credit if the terms of such Letter of Credit extend beyond the Maturity Date applicable to the Revolving Credit Commitments of any
Class unless (1) the aggregate amount of the LC Exposure attributable to Letters of Credit expiring after such Maturity Date does
not exceed the aggregate amount of the Revolving Credit Commitments then in effect that are scheduled to remain in effect after such
Maturity Date, (2) all Revolving Lenders and such Issuing Bank shall have consented to such expiry date or (3) 100% of the
then-available face amount thereof is Cash collateralized or backstopped on or before the date that such Letter of Credit is issued,
amended, extended or renewed beyond such date. Promptly after the delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable Issuing Bank will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. Upon receipt of such Letter of
Credit or amendment, the Administrative Agent shall notify the Revolving Lenders, in writing, of such Letter of Credit or amendment,
and if so requested by a Revolving Lender, the Administrative Agent will provide such Revolving Lender with copies of such Letter of
Credit or amendment.
(c)
Expiration Date.
(i) Except
as set forth in Section 2.05(b) (above), no Standby Letter of Credit shall expire later than the earlier of (A) the date that is
one year after the date of the issuance of such Standby Letter of Credit (or such later date to which the relevant Issuing Bank may agree)
and (B) the Latest Revolving Loan Maturity Date; provided that, any Standby Letter of Credit may provide for the automatic extension
thereof for any number of additional periods each of up to one year in duration (none of which, in any event, shall extend beyond the
date referred to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized or backstopped
on or before the date that such Letter of Credit is extended beyond the date referred to in clause (B) above pursuant to arrangements
reasonably satisfactory to the relevant Issuing Bank).
(ii) Except
as set forth in Section 2.05(b) (above), no Commercial Letter of Credit shall expire later than the earlier to occur of (A) one
year after the issuance thereof (or such later date to which the relevant Issuing Bank may agree) and (B) the Latest Revolving Loan Maturity
Date; provided that any Commercial Letter of Credit may provide for the automatic extension thereof for any number of additional
periods each of up to one year in duration (none of which, in any event, shall extend beyond the date referred to in the preceding clause
(B) unless 100% of the then-available face amount thereof is Cash collateralized or backstopped on or before the date that such Letter
of Credit is extended beyond the date referred to in clause (B) above pursuant to arrangements reasonably satisfactory to the relevant
Issuing Bank).
(d) Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action
on the part of the applicable Issuing Bank or the Revolving Lenders, the applicable Issuing Bank hereby grants to each Revolving Lender,
and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender’s
Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of
the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account
of the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed
by the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded
to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to
this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default
or reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e)
Reimbursement.
(i) If the
applicable Issuing Bank makes any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent (or, in the case of Commercial Letters of Credit, the applicable Issuing Bank) an
amount equal to such LC Disbursement not later than 1:00 p.m. on the second Business Day immediately following the date on which the
Borrower receives notice under paragraph (g) of this Section of such LC Disbursement (or, if such notice is received less
than two hours prior to the deadline for requesting ABR Borrowings pursuant to Section 2.03, on the third Business Day
immediately following the date on which the Borrower receives such notice); provided that the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.04 that such payment be
financed with an ABR Revolving Loan or a Swingline Loan and, to the extent so financed, the Borrower’s obligation to make such
payment shall be discharged and replaced by the resulting Revolving Loan Borrowing or Swingline Loan. If the Borrower fails to make
such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment
then due from the Borrower in respect thereof and such Revolving Lender’s Applicable Percentage thereof. Promptly following
receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then
due from the Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by such Revolving Lender
(and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from the Revolving Lenders.
Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their
interests may appear.
(ii) If any Revolving
Lender fails to make available to the Administrative Agent for the account of the applicable Issuing Bank any amount required to be paid
by such Revolving Lender pursuant to the foregoing provisions of this Section 2.05(e) by the time specified therein, such Issuing
Bank shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such payment is immediately available to such Issuing
Bank at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank compensation. A certificate of the applicable Issuing
Bank submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii)
shall be conclusive absent manifest error.
(f) Obligations
Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section
shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or
this Agreement, or any term or provision therein or herein, (ii) any draft or other document presented under any Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii)
payment by the applicable Issuing Bank under any Letter of Credit against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of
the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right
of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Revolving Lenders nor any
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control
of such Issuing Bank; provided that the foregoing shall not be construed to excuse such Issuing Bank from liability to the
Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by
the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s
failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the
part of applicable Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to
have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of
a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement
Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent
a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by facsimile) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder;
provided that no failure to give or delay in giving such notice shall relieve the Borrower of its obligation to reimburse such
Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
(h) Interim
Interest. If any Issuing Bank makes any LC Disbursement, then, unless the Borrower reimburses such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement
is made to but excluding the date that the Borrower reimburses such LC Disbursement (or the date on which such LC Disbursement is reimbursed
with the proceeds of Loans, as applicable), at the rate per annum then applicable to Revolving Loans that are ABR Loans; provided
that if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section
2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that
interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse
such Issuing Bank shall be for the account of such Revolving Lender to the extent of such payment.
(i)
Replacement of an Issuing Bank or Addition of New Issuing Banks.
Any Issuing Bank
may be replaced with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), the Borrower and the
successor Issuing Bank at any time by written agreement among the Borrower, the Administrative Agent and the successor Issuing Bank.
The Administrative Agent shall notify the Revolving Lenders of any such replacement of an Issuing Bank. At the time any such
replacement becomes effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant
to Section 2.12(b)(ii). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have
all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to
any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement
of any Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but
shall not be required to issue additional Letters of Credit after such replacement. The Borrower may, at any time and from time to
time with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) and the relevant
Revolving Lender, designate one or more additional Revolving Lenders to act as an issuing bank under the terms of this Agreement.
Any Revolving Lender designated as an issuing bank pursuant to this paragraph (i) shall be deemed to be an “Issuing
Bank” (in addition to being a Revolving Lender) in respect of Letters of Credit issued or to be issued by such Revolving
Lender, and, with respect to such Letters of Credit, such term shall thereafter apply to the other Issuing Bank and such Revolving
Lender.
(j)
Cash Collateralization.
(i) If
any Event of Default exists and the Revolving Loans have been declared due and payable in accordance with Article 7 hereof, then
on the Business Day that the Borrower receives notice from the Administrative Agent at the direction of the Required Lenders demanding
the deposit of Cash collateral pursuant to this paragraph (j), upon such demand, the Borrower shall deposit, in an interest-bearing
account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders (the “LC
Collateral Account”), an amount in Cash equal to 100% of the LC Exposure as of such date (minus the amount then on deposit
in the LC Collateral Account); provided that the obligation to deposit such Cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event
of Default with respect to the Borrower described in Section 7.01(f) or (g).
(ii) Any
such deposit under clause (i) above shall be held by the Administrative Agent as collateral for the payment and performance of
the Secured Obligations in accordance with the provisions of this paragraph (j). The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account, and the Borrower hereby grants the Administrative
Agent, for the benefit of the Secured Parties, a First Priority security interest in the LC Collateral Account. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse
the applicable Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held
for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of the Required Revolving Lenders) be applied to satisfy other Secured Obligations. If
the Borrower is required to provide an amount of Cash collateral hereunder as a result of the occurrence of an Event of Default, such
amount (together with all interest and other earnings with respect thereto, to the extent not applied as aforesaid) shall be returned
to the Borrower promptly but in no event later than three Business Days after such Event of Default has been cured or waived.
(k) Existing
Letters of Credit. Existing Letters of Credit shall be deemed Letters of Credit for all purposes under this Agreement, without need
for any further action by the Borrower or any other Person.
Section 2.06. [Reserved].
Section 2.07. Funding of Borrowings.
(a) Each
Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 1:00 p.m. to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in
an amount equal to such Lender’s respective Applicable Percentage; provided that Swingline Loans shall be made as
provided in Section 2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to the Funding Account or as otherwise directed by the Borrower; provided that Revolving
Loans made to finance the reimbursement of any LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank.
(b) Unless
the Administrative Agent has received notice from any Lender prior to the proposed date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if any Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to the Loans comprising such Borrowing
at such time. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing and the Borrower’s obligation to repay the Administrative Agent such corresponding amount pursuant to
this Section 2.07(b) shall cease. If the Borrower pays such amount to the Administrative Agent, the amount so paid shall constitute
a repayment of such Borrowing by such amount. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent or the Borrower or any other Loan Party may have against any Lender
as a result of any default by such Lender hereunder.
Section 2.08. Type; Interest Elections.
(a) Each
Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a LIBO Rate Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert any Borrowing to
a Borrowing of a different Type or to continue such Borrowing and, in the case of a LIBO Rate Borrowing, may elect Interest Periods therefor,
all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders based upon their Applicable Percentages and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Loans, which may not be converted
or continued.
(b) To
make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election either in writing (by hand
delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) or by telephone by the time that
a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and
shall be confirmed promptly by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)
to the Administrative Agent of a written Interest Election Request signed by a Responsible Officer of the Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such
Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing; and
(iv) if
the resulting Borrowing is a LIBO Rate Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a LIBO Rate
Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s
duration.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent shall advise each applicable Lender of the details thereof
and of such Lender’s portion of each resulting Borrowing.
(e) If
the Borrower fails to deliver a timely Interest Election Request with respect to a LIBO Rate Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing shall be converted at the end of such
Interest Period to a LIBO Rate Borrowing with an Interest Period of one month. Notwithstanding any contrary provision hereof, if an Event
of Default exists and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as such
Event of Default exists (i) no outstanding Borrowing may be converted to or continued as a LIBO Rate Borrowing and (ii) unless repaid,
each LIBO Rate Borrowing shall be converted to an ABR Borrowing at the end of the then-current Interest Period applicable thereto.
Section 2.09. Termination and Reduction of Commitments.
(a) Unless
previously terminated, (i) the Initial Term Loan Commitments on the Closing Date shall automatically terminate upon the making of
the Initial Term Loans on the Closing Date, (ii) the Initial Term Loan Commitments on the Amendment No. 1 Effective Date shall
automatically terminate upon the making of the Amendment No. 1 Incremental Term Loans on the Amendment No. 1 Effective Date, (iii)
the Amendment No. 2 Term Loan Commitments on the Amendment No. 2 Effective Date shall automatically terminate upon the making of the
Amendment No. 2 Term Loans on the Amendment No. 2 Effective Date, (iv) the Initial Revolving Credit Commitments shall automatically
terminate on the Initial Revolving Credit Maturity Date, (v) the Amendment No. 3 Incremental Term Loan Commitments on the Amendment
No. 3 Effective Date shall automatically terminate upon the making of the Amendment No. 3 Incremental Term Loans on the Amendment
No. 3 Effective Date, (vi) the Additional Term Loan Commitments of any Class shall automatically terminate upon the making of the
Additional Term Loans of such Class and, if any such Additional Term Loan Commitment is not drawn on the date that such Additional
Term Loan Commitment is required to be drawn pursuant to the applicable Refinancing Amendment, Extension Amendment or Incremental
Facility Amendment, the undrawn amount thereof shall terminate unless otherwise provided in the applicable Refinancing Amendment,
Extension Amendment or Incremental Facility Amendment and (vii) the Additional Revolving Credit Commitments of any Class shall
automatically terminate on the Maturity Date specified therefor in the applicable Refinancing Amendment, Extension Amendment or
Incremental Facility Amendment.
(b) Upon
delivering the notice required by Section 2.09(c), the Borrower may at any time terminate or from time to time reduce the Revolving
Credit Commitments of any Class; provided that (i) each reduction of the Revolving Credit Commitments of any Class shall be in
an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or reduce
the Revolving Credit Commitments of any Class if, after giving effect to such termination or reduction, as applicable, and any concurrent
prepayment of Revolving Loans and Swingline Loans, the aggregate amount of the Revolving Credit Exposure attributable to the Revolving
Credit Commitments of such Class would exceed the aggregate amount of the Revolving Credit Commitments of such Class; provided
that, after the establishment of any Additional Revolving Credit Commitment, any such termination or reduction of the Revolving Credit
Commitments of any Class shall be subject to the provisions set forth in Section 2.22, 2.23 and/or 9.02, as applicable.
(c) The
Borrower shall notify the Administrative Agent of any election to terminate or reduce any Class or Classes of Revolving Credit Commitments
under paragraph (b) of this Section (as selected by the Borrower) not later than 11:00 a.m. on or prior to the effective date of
such termination or reduction (or at least, not later than 11:00 a.m., three Business Days prior to the effective date of such termination
or reduction in the case of a termination or reduction involving a prepayment of LIBO Rate Borrowings (or such later date to which the
Administrative Agent may agree)), specifying such election and the effective date thereof. Promptly following receipt of any such notice,
the Administrative Agent shall advise the Revolving Lenders of each applicable Class or Classes of the contents thereof. Each notice delivered
by the Borrower pursuant to this Section shall be irrevocable; provided that any such notice may state that such notice is conditioned
upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of any Revolving Credit
Commitment pursuant to this Section 2.09 shall be permanent. Upon any reduction of any Revolving Credit Commitment, the Revolving
Credit Commitment of each Revolving Lender of the relevant Class shall be reduced by such Revolving Lender’s Applicable Percentage
of such reduction amount.
Section 2.10. Repayment of Loans; Evidence of Debt.
(a) The
Borrower hereby unconditionally promises to repay the outstanding principal amount of the Amendment No. 2 Term Loans (including
Amendment No. 3 Incremental Term Loans) to the Administrative Agent for the account of each applicable Term Lender (i) commencing on
December 31, 2019, on the last Business Day of each March, June, September and December prior to the Initial Term Loan Maturity Date
(each such date being referred to as a “Loan Installment Date”), in each case in an amount equal to $2,052,651.52
(as such payments may be reduced from time to time as a result of the application of prepayments in accordance with Section
2.11 and purchases or assignments in accordance with Section 9.05(g) or increased as a result of any increase in the
amount of such Amendment No. 2 Term Loans pursuant to Section 2.22(a)) and (ii) on the Initial Term Loan Maturity Date, in an
amount equal to the remainder of the principal amount of the Amendment No. 2 Term Loans outstanding on such date, together in each
case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment. The Borrower
shall repay the Additional Term Loans of any Class in such scheduled amortization installments and on such date or dates as shall be
specified therefor in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment (as such payments
may be reduced from time to time as a result of the application of prepayments in accordance with Section 2.11 and purchases
or assignments in accordance with Section 9.05(g) or increased as a result of any increase in the amount of such Additional
Term Loans pursuant to Section 2.22(a)).
(b) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Revolving Lender the then unpaid
principal amount of each Revolving Loan on the Initial Revolving Credit Maturity Date and (ii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of (x) the 10th Business Day following the incurrence of such Swingline Loan and
(y) the Initial Revolving Credit Maturity Date. On the Initial Revolving Credit Maturity Date, the Borrower shall (A) cancel and return
all outstanding Letters of Credit (or alternatively, with respect to any outstanding Letter of Credit, furnish to the Administrative Agent
a Cash deposit (or if reasonably acceptable to the relevant Issuing Bank, a backup standby letter of credit) equal to 100% of the LC Exposure
(minus the amount then on deposit in the LC Collateral Account) as of such date) and (B) make payment in full in Cash of all accrued
and unpaid fees and all reimbursable expenses and other Obligations with respect to the Revolving Facility then due, together with accrued
and unpaid interest (if any) thereon.
(c) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from
time to time hereunder.
(d) The
Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for
the account of the Lenders or the Issuing Bank and each Lender’s share or the Issuing Bank’s share thereof.
(e) The
entries made in the accounts maintained pursuant to paragraphs (c) or (d) of this Section shall be prima facie evidence
of the existence and amounts of the obligations recorded therein (absent manifest error); provided that the failure of any Lender
or the Administrative Agent to maintain such accounts or any manifest error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement; provided, further, that in the event of any
inconsistency between the accounts maintained by the Administrative Agent pursuant to paragraph (d) of this Section and any Lender’s
records, the accounts of the Administrative Agent shall govern.
(f) Any
Lender may request that Loans made by it be evidenced by a Promissory Note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a Promissory Note payable to such Lender and its registered permitted assigns; it being understood and agreed that such
Lender (and/or its applicable permitted assign) shall be required to return such Promissory Note to the Borrower in accordance with Section
9.05(b)(iii) and upon the occurrence of the Termination Date (or as promptly thereafter as practicable). If any Lender loses the original
copy of its Promissory Note, it shall execute an affidavit of loss containing a customary indemnification provision that is reasonably
satisfactory to the Borrower. The obligation of each Lender to execute an affidavit of loss containing a customary indemnification provision
that is reasonably satisfactory to the Borrower shall survive the Termination Date.
Section 2.11. Prepayment of Loans.
(a)
Optional Prepayments.
(i) Upon
prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from time
to time to prepay any Borrowing of Term Loans of one or more Classes (such Class or Classes to be selected by the Borrower in its sole
discretion) in whole or in part without premium or penalty (but subject to (A) in the case of Amendment No. 2 Term Loans only, Section
2.12(f) and (B) if applicable, Section 2.16). Each such prepayment shall be paid to the Lenders in accordance with their respective
Applicable Percentages of the relevant Class.
(ii) Upon
prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from time
to time to prepay any Borrowing of Revolving Loans of any Class or any Borrowing of Swingline Loans, including any Additional Revolving
Loans, in whole or in part without premium or penalty (but subject to Section 2.16). Prepayments made pursuant to this Section
2.11(a)(ii), first, shall be applied ratably to the Swingline Loans and to outstanding LC Disbursements and second, shall be applied
ratably to the outstanding Revolving Loans, including any Additional Revolving Loans of the relevant Class.
(iii) The
Borrower shall notify the Administrative Agent (and, in the case of a prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed in writing) of any prepayment under this Section 2.11(a) (A) in the case of a prepayment of a LIBO Rate Borrowing, not
later than 1:00 p.m. three Business Days before the date of prepayment, (B) in the case of a prepayment of an ABR Borrowing, not later
than 1:00 p.m. on the date of prepayment or (C) in the case of a prepayment of a Swingline Loan, not later than 1:00 p.m. on the date
of prepayment (or, in each case, such later date or time to which the Administrative Agent may reasonably agree). Each such notice shall
be irrevocable (except as set forth in the proviso to this sentence) and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that a notice of prepayment delivered by the Borrower may state that
such notice is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Promptly following
receipt of any such notice relating to any Borrowing, the Administrative Agent shall advise the relevant Lenders of the contents thereof.
Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type and
Class as provided in Section 2.02(c) or such lesser amount that is then outstanding with respect to such Borrowing being repaid.
Each prepayment of Term Loans shall be applied to the Class of Term Loans as determined by the Borrower and specified in the applicable
prepayment notice, and each prepayment of Term Loans of such Class made pursuant to this Section 2.11(a) shall be applied against
the remaining scheduled installments of principal due in respect of the Term Loans of such Class in the manner specified by the Borrower
or, if not so specified on or prior to the date of such optional prepayment, in direct order of maturity.
(b)
Mandatory Prepayments.
(i) No later
than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower are
delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on or about June 30, 2019, the Borrower shall
prepay Subject Loans in accordance with clause (vi) below in an aggregate principal amount (the “ECF Prepayment
Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted
Subsidiaries for the Excess Cash Flow Period then most recently ended (this clause (A), the “Base ECF Prepayment
Amount”), minus (B) at the option of the Borrower, to the extent occurring during such Excess Cash Flow Period
(or occurring after such Excess Cash Flow Period and prior to the date of the applicable Excess Cash Flow payment), and without
duplication (including duplication of any amounts deducted in any prior Excess Cash Flow Period), the following (collectively, the
“ECF Deductions”):
(1) the
aggregate principal amount of any Initial Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant
to Section 2.11(a);
(2) (x)
the aggregate principal amount of any Incremental Equivalent Debt, Replacement Debt and/or any other Indebtedness permitted to be incurred
pursuant to Section 6.01 to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral
securing the Credit Facilities, voluntarily prepaid, repurchased, redeemed or otherwise retired and (y) the aggregate principal amount
of any loans under any Second Lien Facility (including any Incremental Loans and Additional Loans (as defined in the Second Lien Credit
Agreement or any other document governing any Second Lien Facility)) prepaid pursuant to Section 2.11(a) of the Second Lien Credit
Agreement (or equivalent provision under any other document governing any Second Lien Facility) (to the extent the relevant voluntary
prepayments are permitted by the terms of this Agreement) and the aggregate principal amount of Incremental Equivalent Debt and/or Replacement
Debt (as defined in the Second Lien Credit Agreement or any other document governing any Second Lien Facility) secured on a pari passu
basis with the Second Lien Facility voluntarily prepaid, repurchased, redeemed or otherwise retired (or contractually committed to
be prepaid, repurchased, redeemed or otherwise retired);
(3) (1)
the amount of any reduction in the outstanding amount of any Initial Term Loans, Additional Term Loans, Incremental Equivalent Debt, Replacement
Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 6.01 to the extent secured by Liens on the Collateral
that are pari passu with the Liens on the Collateral securing the Credit Facilities, resulting from any purchase or assignment
made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) (with respect to Initial
Term Loans and/or Additional Term Loans) and any equivalent provisions with respect to any Incremental Equivalent Debt, Replacement Debt
and/or such other Indebtedness and/or (2) to the extent permitted by the terms of this Agreement, the amount of any reduction in the outstanding
amount of any loans under the Second Lien Facility and/or any “Incremental Equivalent Debt”, “Replacement Debt”
and/or other Indebtedness permitted to be incurred thereunder to the extent secured by Liens on the Collateral that are pari passu
with the Liens on the Collateral securing the Second Lien Facility (including any reduction resulting from any purchase or assignment
made in accordance with Section 9.05(g) of the Second Lien Credit Agreement (or equivalent provision under any other document governing
any Second Lien Facility) (including in connection with any Dutch Auction (as defined in the Second Lien Credit Agreement or any other
document governing any Second Lien Facility)) and any equivalent provisions with respect to any such “Incremental Equivalent Debt”,
“Replacement Debt” and/or such other Indebtedness;
(4) all
Cash payments in respect of Capital Expenditures as would be reported in the Borrower’s consolidated statement of cash flows and
all Cash payments made to acquire IP Rights;
(5) Cash
payments by the Borrower and its Restricted Subsidiaries made (or committed) in respect of long-term liabilities (including for purposes
of clarity, the current portion of such long-term liabilities) of the Borrower and its Restricted Subsidiaries other than Indebtedness,
except to the extent such Cash payments were deducted in the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA for
such period;
(6) Cash payments in respect of
any Investment (including acquisitions) permitted by Section 6.06 or otherwise consented to by the Required Lenders (other
than Investments (x) in Cash or Cash Equivalents or (y) in the Borrower or any Loan Party) and/or any Restricted Payment
permitted by Section 6.04(a) or otherwise consented to by the Required Lenders;
(7) the
aggregate consideration (i) required to be paid in Cash by the Borrower or its Restricted Subsidiaries pursuant to binding contracts entered
into prior to or during such period relating to Capital Expenditures, acquisitions or other Investments permitted by Section 6.06
or otherwise consented to by the Required Lenders and/or Restricted Payments described in clause (6) above and/or (ii) otherwise
committed or budgeted to be made in connection with Capital Expenditures, acquisitions or Investments and/or Restricted Payments described
in clause (6) above (clauses (i) and (ii) of this clause (7), the “Scheduled Consideration”) (other than Investments
in (x) Cash and Cash Equivalents or (y) the Borrower or any Loan Party) to be consummated or made during the period of four consecutive
Fiscal Quarters of the Borrower following the end of such period; provided that to the extent the aggregate amount actually utilized
to finance such Capital Expenditures, acquisitions, Investments or Restricted Payments during such subsequent period of four consecutive
Fiscal Quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added to the calculation of Excess
Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters;
(8) Cash
expenditures in respect of any Hedge Agreement during such period to the extent (A) not otherwise deducted in the calculation of Consolidated
Net Income or Consolidated Adjusted EBITDA and (B) not financed with long-term funded Indebtedness (other than revolving Indebtedness);
and
(9) the
aggregate amount of expenditures actually made by the Borrower and/or any Restricted Subsidiary in Cash (including any expenditure for
the payment of fees or other Charges (or any amortization thereof for such period) in connection with any Disposition, incurrence or repayment
of Indebtedness, issuance of Capital Stock, refinancing transaction, amendment or modification of any debt instrument, including this
Agreement, and including, in each case, any such transaction consummated prior to, on or after the Closing Date, and Charges incurred
in connection therewith, whether or not such transaction was successful), in each case to the extent that such expenditures were (A) not
expensed and (B) not financed with long-term funded Indebtedness (other than revolving Indebtedness);
in the case of each of clauses
(1)-(9), (I) excluding any such payments, prepayments and expenditures made during such Fiscal Year that reduced the
amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year, (II) in the case of any
prepayment of Revolving Loans and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction in the relevant
commitment, (III) to the extent that such payments, prepayments and expenditures were not financed with the proceeds of other
long-term funded Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries and (IV) in each
case under clause (3) above, based upon the actual amount of cash paid in connection with any relevant purchase or assignment; provided
that no prepayment under this Section 2.11(b)(i) shall be required unless the principal amount of Subject Loans required to
be prepaid exceeds $2,500,000 (and, in such case, only such amount in excess of $2,500,000 shall be required to be prepaid); provided, further,
that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is also required to
prepay, repurchase or offer to prepay or repurchase any Indebtedness that is secured on a pari passu basis (without regard to
the control of remedies) with any Secured Obligation pursuant to the terms of the documentation governing such Indebtedness (such
Indebtedness required to be so prepaid or repurchased or offered to be so prepaid or repurchased, “Other Applicable
Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF
Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Subject Loans
and the relevant Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original
issue discount) at such time) to the prepayment of the Subject Loans and to the prepayment of the relevant Other Applicable
Indebtedness, and the amount of prepayment of the Subject Loans that would have otherwise been required pursuant to this Section
2.11(b)(i) shall be reduced accordingly; it being understood that (1) the portion of such ECF Prepayment Amount allocated to the
Other Applicable Indebtedness shall not exceed the portion of such ECF Prepayment Amount required to be allocated to the Other
Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be
allocated to the Subject Loans in accordance with the terms hereof and (2) to the extent the holders of the Other Applicable
Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within
ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof.
(ii) No
later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net
Insurance/Condemnation Proceeds, in each case, in excess of (x) $10,000,000 in any single transaction or series of related
transactions and (y) $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to the Required Net Proceeds
Percentage of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds
(collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Subject Loans in accordance
with clause (vi) below; provided that (A) if prior to the date any such prepayment is required to be made, the
Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the
business of the Borrower or any of its subsidiaries (including permitted acquisitions or other Investments, but excluding Cash or
Cash Equivalents), then the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect
of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y)
the Borrower or any of its subsidiaries has contractually committed to so reinvest the Subject Proceeds during such 18-month period
and the Subject Proceeds are so reinvested within six months after the expiration of such 18-month period; provided, however,
that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall
promptly prepay the outstanding principal amount of Subject Loans with the Subject Proceeds not so reinvested as set forth above
(without regard to the immediately preceding proviso) and (B) if, at the time that any such prepayment would be required hereunder,
the Borrower or any of its Restricted Subsidiaries is required to repay or repurchase (or offer to repay or repurchase) any Other
Applicable Indebtedness, then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the
Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate
outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable
Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds
allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the
Other Applicable Indebtedness pursuant to the terms thereof (and the remaining amount, if any, of the Subject Proceeds shall be
allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that
would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent
the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall
promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in
accordance with the terms hereof.
(iii) In
the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness
by the Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, except
to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of the Amendment No.
2 Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Amendment No. 2 Term Loans in accordance
with the requirements of Section 9.02(c)), the Borrower shall, substantially simultaneously with (and in any event not later than
two Business Days thereafter) the receipt of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount
equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Amendment No. 2 Term Loans in accordance
with clause (vi) below.
(iv) Notwithstanding
anything in this Section 2.11(b) to the contrary, (A) the Borrower shall not be required to prepay any amount that would
otherwise be required to be paid pursuant to Sections 2.11(b)(i), (ii) or (iii) above to the extent that the
relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign
Subsidiary, the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary or the relevant Indebtedness is
incurred by any Foreign Subsidiary (except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred by
any Foreign Subsidiary to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section
6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the
requirements of Section 9.02(c)), as the case may be, for so long as the Borrower determines in good faith that the
repatriation to the Borrower of any such amount would be prohibited or delayed (beyond the time period during which such prepayment
is otherwise required to be made pursuant to Section 2.11(b)(i), (ii) or (iii) above) under any Requirement of
Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be
expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of
management or consultant of such Foreign Subsidiary (including on account of financial assistance, corporate benefit, thin
capitalization, capital maintenance or similar considerations); it being understood and agreed that (i) solely within 365 days
following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt
of proceeds from the respective incurrence of Indebtedness, the Borrower shall take all commercially reasonable actions required by
applicable Requirements of Law to permit such repatriation and (ii) if the repatriation of the relevant affected Excess Cash Flow,
Subject Proceeds or Indebtedness proceeds, as the case may be, is permitted under the applicable Requirement of Law and, to the
extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to
result in, a material risk of personal or criminal liability for the Persons described above, in either case, within 365 days
following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt
of Net Proceeds in respect of any such Indebtedness, the relevant Foreign Subsidiary will promptly repatriate the relevant Excess
Cash Flow, Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, and the repatriated Excess Cash Flow,
Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, will be promptly (and in any event not later than
two Business Days after such repatriation) applied (net of additional Taxes payable or reserved against such Excess Cash Flow, such
Subject Proceeds or such Net Proceeds in respect of Indebtedness, as a result thereof, in each case by any Loan Party, such Loan
Party’s subsidiaries, and any Affiliates or indirect or direct equity owners of the foregoing) to the repayment of the Initial
Term Loans and Additional Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause
(iv), (B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections
2.11(b)(i) or (ii) to the extent that the relevant Excess Cash Flow is generated by any Joint Venture or the relevant
Subject Proceeds or Net Proceeds in respect of Indebtedness are received by any Joint Venture for so long as the Borrower determines
in good faith that the distribution to the Borrower of such Excess Cash Flow, Subject Proceeds or Net Proceeds in respect of
Indebtedness would be prohibited under the Organizational Documents (or any relevant shareholders’ or similar agreement)
governing such Joint Venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period
following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds or the receipt
of Net Proceeds in respect of any such Indebtedness, the relevant Joint Venture will promptly distribute the relevant Excess Cash
Flow, the relevant Subject Proceeds or the relevant Net Proceeds in respect of Indebtedness, as the case may be, and the distributed
Excess Cash Flow, Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, will be promptly (and in any
event not later than ten Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a
result thereof) to the repayment of the Term Loans pursuant to this Section 2.11(b) to the extent required herein (without
regard to this clause (iv)) and (C) if the Borrower determines in good faith that the repatriation to the Borrower of any
amounts required to mandatorily prepay the Initial Term Loans and Additional Term Loans pursuant to Sections 2.11(b)(i), (ii)
or (iii) above would result in material and adverse tax consequences, taking into account any foreign tax credit or benefit
actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as determined by the
Borrower in good faith, the amount the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i), (ii)
or (iii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the
repatriation of any Subject Proceeds, Excess Cash Flow or the Net Proceeds in respect of any such Indebtedness from the relevant
Foreign Subsidiary would no longer have a material and adverse tax consequence within the 365-day period following the event giving
rise to the relevant Subject Proceeds, the receipt of Net Proceeds in respect of any such Indebtedness or the end of the applicable
Excess Cash Flow Period, as the case may be, an amount equal to the Subject Proceeds, Excess Cash Flow or the Net Proceeds in
respect of any such Indebtedness, as applicable, not previously applied pursuant to this clause (C), shall be promptly
applied to the repayment of the Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise
required above (without regard to this clause (iv));
(v) Each
Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative
Agent, prior to any prepayment of Initial Term Loans and Additional Term Loans required to be made by the Borrower pursuant to this Section
2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the
“Declined Proceeds”), which Declined Proceeds may be retained by the Borrower and used for any legal purpose
permitted (or not prohibited) hereunder, including to increase the Available Amount; provided, further, that, for the
avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such
prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a
portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred
to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Loans incurred to refinance all or
a portion of the Term Loans in accordance with the requirements of Section 9.02(c) and/or (z) Incremental Equivalent Debt
incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.01(z). If any
Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of its Applicable Percentage of any
mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an
acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Initial Term Loans and
Additional Term Loans.
(vi) Except as
may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Initial
Term Loans and Additional Term Loans pursuant to this Section 2.11(b) shall be applied ratably to each Class of Term Loans (based
upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment constituting
(w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of the Initial Term Loans or Additional
Term Loans pursuant to Section 6.01(p), (x) Incremental Loans incurred to refinance all or a portion of the Term Loans pursuant
to Section 2.22, (y) Replacement Loans incurred to refinance all or a portion of the Term Loans in accordance with the requirements
of Section 9.02(c) and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance
with the requirements of Section 6.01(z) shall, in each case be applied solely to each applicable Class of refinanced or replaced
Term Loans), (B) with respect to each Class of Initial Term Loans and Additional Term Loans, all accepted prepayments under Section
2.11(b)(i), (ii) or (iii) shall be applied against the remaining scheduled installments of principal due in respect
of the Initial Term Loans and Additional Term Loans as directed by the Borrower (or, in the absence of direction from the Borrower, to
the remaining scheduled amortization payments in respect of the Initial Term Loans and Additional Term Loans in direct order of maturity),
and (C) each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentages. The amount
of such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Initial Term Loans and Additional Term Loans
being prepaid irrespective of whether such outstanding Loans are ABR Loans or LIBO Rate Loans; provided that the amount thereof
shall be applied first to ABR Loans to the full extent thereof before application to the LIBO Rate Loans in a manner that minimizes the
amount of any payments required to be made by the Borrower pursuant to Section 2.16. Any prepayment of Amendment No. 2 Term Loans
made on or prior to the date that is six months after the Amendment No. 2 Effective Date pursuant to Section 2.11(b)(iii) as part
of a Repricing Transaction shall be accompanied by the fee set forth in Section 2.12(f).
(vii) In the
event that the Aggregate Revolving Credit Exposure exceeds the Total Revolving Credit Commitment then in effect, the Borrower shall,
within five Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Loans or Swingline Loans and/or
reduce LC Exposure in an aggregate amount sufficient to reduce such Aggregate Revolving Credit Exposure as of the date of such
payment to an amount not to exceed the Total Revolving Credit Commitment then in effect by taking any of the following actions as it
shall determine at its sole discretion: (A) prepayment of Revolving Loans or Swingline Loans or (B) with respect to the excess LC
Exposure, deposit of Cash in the LC Collateral Account or “backstopping” or replacement of the relevant Letters of
Credit, in each case, in an amount equal to 100% of such excess LC Exposure (minus the amount then on deposit in the LC
Collateral Account).
(viii) At
the time of each prepayment required under Section 2.11(b)(i), (ii) or (iii), the Borrower shall deliver to the Administrative
Agent a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the amount of
such prepayment. Each such certificate shall specify the Borrowings being prepaid and the principal amount of each Borrowing (or portion
thereof) to be prepaid. Prepayments shall be accompanied by accrued interest as required by Section 2.13. All prepayments of Borrowings
under this Section 2.11(b) shall be subject to Section 2.16 and, except as set forth in the last sentence of clause (vi)
above, shall otherwise be without premium or penalty.
Section 2.12. Fees.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender of any Class (other than any Defaulting Lender)
a commitment fee, which shall accrue at a rate equal to the Commitment Fee Rate per annum applicable to the Revolving Credit Commitment
of such Class on the average daily amount of the Unused Revolving Credit Commitment of such Class of such Revolving Lender during the
period from and including the Closing Date to the date on which such Lender’s Revolving Credit Commitments of such Class terminate.
Accrued commitment fees shall be payable in arrears on the last Business Day of each March, June, September and December for the quarterly
period then ended (commencing on September 30, 2017, but in the case of the payment made on September 30, 2017, for the period from the
Closing Date to such date) and on the date on which the Revolving Credit Commitments of the applicable Class terminate. For purposes of
calculating the commitment fees only, no portion of the Revolving Credit Commitments shall be deemed utilized as a result of outstanding
Swingline Loans.
(b) The
Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender of any Class (other than any
Defaulting Lender) a participation fee with respect to its participation in each Letter of Credit, which shall accrue at the
Applicable Rate used to determine the interest rate applicable to LIBO Rate Revolving Loans on the daily face amount of such
Lender’s LC Exposure attributable to its Revolving Credit Commitment of such Class in respect of such Letter of Credit
(excluding any portion thereof attributable to unreimbursed LC Disbursements), during the period from and including the Closing Date
to the later of the date on which such Revolving Lender’s Revolving Credit Commitment of such Class terminates and the date on
which such Revolving Lender ceases to have any LC Exposure related to its Revolving Credit Commitment of such Class in respect of
such Letter of Credit (including any such Letter of Credit Exposure that may exist following the termination of such Revolving
Credit Commitments) and (ii) to each Issuing Bank, for its own account, a fronting fee, in respect of each Letter of Credit issued
by such Issuing Bank for the period from the date of issuance of such Letter of Credit to the expiration date of such Letter of
Credit (or if terminated on an earlier date, to the termination date of such Letter of Credit), computed at a rate equal to the rate
agreed by such Issuing Bank and the Borrower (but in any event not to exceed 0.125% per annum) of the daily face amount of such
Letter of Credit, as well as such Issuing Bank’s reasonable and customary fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees accrued to
but excluding the last Business Day of each March, June, September and December shall be payable in arrears for the quarterly period
then ended (or, in the case of the payment made on September 30, 2017, for the period from the Closing Date to such date) on the
last Business Day of such calendar quarter; provided that all such fees shall be payable on the date on which the Revolving
Credit Commitments of the applicable Class terminate, and any such fees accruing after the date on which the Revolving Credit
Commitments of the applicable Class terminate shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to
this paragraph shall be payable within 30 days after receipt of a written demand (accompanied by reasonable back-up documentation)
therefor.
(c)
[Reserved].
(d) The
Borrower agrees to pay to the Administrative Agent, for its own account, the fees in the amounts and at the times separately agreed upon
by the Borrower and the Administrative Agent in writing.
(e) All
fees payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Administrative Agent (or
to the applicable Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation
fees, to the Revolving Lenders. Fees paid shall not be refundable under any circumstances except as otherwise provided in the Fee Letter.
Fees payable hereunder shall accrue through and including the last day of the month immediately preceding the applicable fee payment date.
(f) In
the event that, on or prior to the date that is six months after the Amendment No. 2 Effective Date, the Borrower (x) prepays, repays,
refinances, substitutes or replaces any Amendment No. 2 Term Loans in connection with a Repricing Transaction (including, for the avoidance
of doubt, any prepayment made pursuant to Section 2.11(b)(iii) that constitutes a Repricing Transaction) or (y) effects any amendment,
modification or waiver of, or consent under, this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative
Agent, for the ratable account of each of the applicable Amendment No. 2 Term Lenders, (I) in the case of clause (x), a premium
of 1.00% of the aggregate principal amount of the Amendment No. 2 Term Loans so prepaid, repaid, refinanced, substituted or replaced and
(II) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the Amendment No. 2 Term Loans that are
the subject of such Repricing Transaction outstanding immediately prior to such amendment. If, on or prior to the date that is six months
after the Amendment No. 2 Effective Date, all or any portion of the Amendment No. 2 Term Loans held by any Term Lender are prepaid, repaid,
refinanced, substituted or replaced pursuant to Section 2.19(b)(iv) as a result of, or in connection with, such Term Lender not
agreeing or otherwise consenting to any waiver, consent, modification or amendment referred to in clause (y) above (or otherwise
in connection with a Repricing Transaction), such prepayment, repayment, refinancing, substitution or replacement will be made at 101%
of the principal amount so prepaid, repaid, refinanced, substituted or replaced. All such amounts shall be due and payable on the date
of effectiveness of such Repricing Transaction.
(g) Unless
otherwise indicated herein, all computations of fees shall be made on the basis of a 360-day year and shall be payable for the actual
days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of the amount of any
fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section 2.13. Interest.
(a) The
Term Loans and Revolving Loans comprising each ABR Borrowing (including Swingline Loans) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The
Term Loans and Revolving Loans comprising each LIBO Rate Borrowing shall bear interest at the LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate.
(c)
[Reserved].
(d) Notwithstanding
the foregoing, during the existence and continuance of any Event of Default under Section 7.01(a), if any principal of or interest
on any Amendment No. 2 Term Loan or Revolving Loan, any LC Disbursement or any fee payable by the Borrower hereunder is not, in each case,
paid or reimbursed when due, whether at stated maturity, upon acceleration or otherwise, the relevant overdue amount shall bear interest,
to the fullest extent permitted by applicable Requirements of Law, after as well as before judgment, at a rate per annum equal to (i)
in the case of overdue principal or interest of any Amendment No. 2 Term Loan, Revolving Loan or unreimbursed LC Disbursement, 2.00% plus
the rate otherwise applicable to such Amendment No. 2 Term Loan, Revolving Loan or LC Disbursement as provided in the preceding paragraphs
of this Section or Section 2.05(h) or (ii) in the case of any other amount, 2.00% plus the rate applicable to Revolving
Loans that are ABR Loans as provided in paragraph (a) of this Section; provided that no amount shall be payable pursuant
to this Section 2.13(d) to any Defaulting Lender so long as such Lender is a Defaulting Lender; provided further that no
amounts shall accrue pursuant to this Section 2.13(d) on any overdue amount, reimbursement obligation in respect of any LC Disbursement
or other amount payable to a Defaulting Lender so long as such Lender is a Defaulting Lender.
(e) Accrued
interest on each Amendment No. 2 Term Loan, Revolving Loan or Swingline Loan shall be payable in arrears on each Interest Payment Date
for such Amendment No. 2 Term Loan, Revolving Loan or Swingline Loan and on the Maturity Date applicable to such Loan or upon the termination
of the Revolving Credit Commitments, as applicable; provided that (i) interest accrued pursuant to paragraph (d) of this
Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Amendment No. 2 Term Loan or Revolving Loan
(other than a prepayment of an ABR Revolving Loan prior to the termination of the relevant revolving Commitments), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion
of any LIBO Rate Loan prior to the end of the current Interest Period therefor, accrued interest on such Amendment No. 2 Term Loan or
Revolving Loan shall be payable on the effective date of such conversion. Accrued interest for any Class of Additional Revolving Loans
or Additional Term Loans shall be payable as set forth in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension
Amendment.
(f) All
interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed for ABR Loans based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest error. Interest shall accrue on each
Loan from the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or
such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall bear interest for one day;
provided further that, in the case of any ABR Loan, interest shall accrue through and including the last day of the month preceding
the applicable Interest Payment Date.
Section 2.14. Alternate Rate of
Interest. If at least two Business Days prior to the commencement of any Interest Period for a LIBO Rate Borrowing:
(a) the
Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the LIBO Rate for such Interest Period; or
(b) the
Administrative Agent is advised by the Required Lenders that the LIBO Rate for such Interest Period will not adequately and fairly reflect
the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall promptly
give notice thereof to the Borrower and the Lenders by telephone or facsimile as promptly as practicable thereafter and, until the Administrative
Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, which the Administrative
Agent agrees promptly to do, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any
Borrowing as, a LIBO Rate Borrowing shall be ineffective and such Borrowing shall be converted to an ABR Borrowing on the last day of
the Interest Period applicable thereto and (ii) if any Borrowing Request requests a LIBO Rate Borrowing, such Borrowing shall be made
as an ABR Borrowing.
Section 2.15. Increased Costs.
(a)
If any Change in Law:
(i) imposes,
modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement reflected in the LIBO Rate) or Issuing Bank; or
(ii) imposes
on any Lender or Issuing Bank or the London interbank market any other condition affecting this Agreement or LIBO Rate Loans made by any
Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing
is to increase the cost to the relevant Lender of making or maintaining any LIBO Rate Loan (or of maintaining its obligation to make any
such Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise)
in respect of any LIBO Rate Loan or Letter of Credit in an amount deemed by such Lender or Issuing Bank to be material, then, within 30
days after the Borrower’s receipt of the certificate contemplated by paragraph (c) of this Section, the Borrower will pay
to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank, as applicable,
for such additional costs incurred or reduction suffered (except that this provision shall not apply to any Taxes, which shall be dealt
with exclusively pursuant to Section 2.17); provided that the Borrower shall not be liable for such compensation if (x)
the relevant Change in Law occurs on a date prior to the date such Lender becomes a party hereto, (y) such Lender invokes Section 2.20
or (z) in the case of requests for reimbursement under clause (ii) above resulting from a market disruption, (A) the relevant circumstances
do not generally affect the banking market or (B) the applicable request has not been made by Lenders constituting Required Lenders.
(b) If any
Lender or Issuing Bank determines that any Change in Law regarding liquidity or capital requirements has or would have the effect of
reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or
Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or
such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law
other than due to Taxes, which shall be dealt with exclusively pursuant to Section 2.17 (taking into consideration such
Lender’s or Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company
with respect to capital adequacy), then within 30 days of receipt by the Borrower of the certificate contemplated by paragraph
(c) of this Section the Borrower will pay to such Lender or such Issuing Bank, as applicable, such additional amount or amounts
as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such
reduction suffered.
(c) Any
Lender or Issuing Bank requesting compensation under this Section 2.15 shall be required to deliver a certificate to the Borrower
that (i) sets forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as
specified in paragraph (a) or (b) of this Section, (ii) sets forth in reasonable detail the manner in which such amount
or amounts were determined and (iii) certifies that such Lender or Issuing Bank is generally charging such amounts to similarly situated
borrowers, which certificate shall be conclusive absent manifest error.
(d) Failure
or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such
Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate
a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date
that such Lender or Issuing Bank notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or Issuing Bank’s intention to claim compensation therefor; provided, further, that if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.
Section 2.16. Break
Funding Payments. In the event of (a) the conversion or prepayment of any principal of any LIBO Rate Loan other than on the last day
of an Interest Period applicable thereto (whether voluntary, mandatory, automatic, by reason of acceleration or otherwise), (b) the failure
to borrow, convert, continue or prepay any LIBO Rate Loan on the date or in the amount specified in any notice delivered pursuant hereto
or (c) the assignment of any LIBO Rate Loan of any Lender other than on the last day of the Interest Period applicable thereto as a result
of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense incurred by such Lender that is attributable to such event (other than loss of profit). In the case of a LIBO Rate
Loan, the loss, cost or expense of any Lender shall be the amount reasonably determined by such Lender to be the excess, if any, of (i)
the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the LIBO Rate that
would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such
Loan) over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for deposits in the applicable currency of a comparable amount and period
from other banks in the Eurodollar market; it being understood that such loss, cost or expense shall in any case exclude any interest
rate floor and all administrative, processing or similar fees. Any Lender requesting compensation under this Section 2.16 shall
be required to deliver a certificate to the Borrower (i) setting forth any amount or amounts that such Lender is entitled to receive pursuant
to this Section, the basis therefor and, in reasonable detail, the manner in which such amount or amounts were determined and (ii) certifying
that such Lender is generally charging the relevant amounts to similarly situated borrowers, which certificate shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof.
Section 2.17. Taxes.
(a) Any and
all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and
without deduction for any Taxes, except as required by applicable Requirements of Law. If any applicable Requirement of Law requires
the deduction or withholding of any Tax from any such payment, then (i) if such Tax is an Indemnified Tax, the amount payable by the
applicable Loan Party shall be increased as necessary so that after making all required deductions (including deductions applicable
to additional sums payable under this Section) the Administrative Agent, each Lender and each Issuing Bank (as applicable) receives
an amount equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make such deductions
and (iii) such Loan Party shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with
applicable Requirements of Law.
(b) In
addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements
of Law.
(c) Each Loan
Party shall indemnify the Administrative Agent, each Lender and each Issuing Bank within 30 days after receipt of the certificate
described in the succeeding sentence, for the full amount of any Indemnified Taxes payable or paid by the Administrative Agent, such
Lender or Issuing Bank, as applicable, on or with respect to any payment by or any payment on account of any obligation of any Loan
Party hereunder (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority; provided, however that the Loan Parties shall not be obligated to
indemnify the Administrative Agent or such Lender or such Issuing Bank with respect to any penalties resulting from any action or
inaction of the Administrative Agent or such Lender or Issuing Bank; and provided further, that if such Loan Party reasonably
believes that such Taxes were not correctly or legally asserted, the Administrative Agent or such Lender or Issuing Bank, as
applicable, will use reasonable efforts to cooperate with such Loan Party to obtain a refund of such Taxes (which shall be repaid to
such Loan Party in accordance with Section 2.17(g)) so long as such efforts would not, in the sole determination of the
Administrative Agent or such Lender or Issuing Bank, result in any additional out-of-pocket costs or expenses not reimbursed by
such Loan Party or be otherwise materially disadvantageous to the Administrative Agent or such Lender or Issuing Bank, as
applicable. In connection with any request for reimbursement under this Section 2.17(c), the relevant Lender, Issuing Bank or
the Administrative Agent, as applicable, shall deliver a certificate to the Borrower (i) setting forth, in reasonable detail, the
basis and calculation of the amount of the relevant payment or liability and (ii) certifying that it is generally charging the
relevant amounts to similarly situated borrowers, which certificate shall be conclusive absent manifest error. Notwithstanding
anything to the contrary contained in this Section 2.17(c), the Borrower shall not be required to indemnify the
Administrative Agent or any Lender pursuant to this Section 2.17(c) for any amount to the extent the Administrative Agent or
such Lender fails to notify the Borrower of the relevant possible indemnification claim within 180 days after the Administrative
Agent or such Lender receives written notice from the applicable taxing authority of the specific tax assessment giving rise to such
indemnification claim.
(d) Each
Lender and each Issuing Bank shall severally indemnify the Administrative Agent, within 30 days after demand therefor, for (i) any
Indemnified Taxes on or with respect to any payment under any Loan Document that is attributable to such Lender or Issuing Bank (but
only to the extent that no Loan Party has already indemnified the Administrative Agent for such Indemnified Taxes and without
limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s or Issuing Bank’s
failure to comply with the provisions of Section 9.05(c) relating to the maintenance of a Participant Register and (iii) any
Excluded Taxes attributable to such Lender or Issuing Bank, in each case, that are payable or paid by the Administrative Agent in
connection with any Loan Document and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment
or liability delivered to any Lender or Issuing Bank by the Administrative Agent shall be conclusive absent manifest error. Each
Lender and Issuing Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to
such Lender or Issuing Bank under any Loan Document or otherwise payable by the Administrative Agent to any Lender or Issuing Bank
under any Loan Document or otherwise payable by the Administrative Agent to any Lender or Issuing Bank from any other source against
any amount due to the Administrative Agent under this clause (d).
(e) As
soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority, such Loan Party shall deliver to the Administrative
Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment that is reasonably satisfactory to the Administrative Agent.
(f)
Status of Lenders.
(i) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation as the Borrower or the Administrative Agent may reasonably request to permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by
the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or
not such Lender is subject to backup withholding or information reporting requirements. Each Lender hereby authorizes the Administrative
Agent to deliver to the Borrower and to any successor Administrative Agent any documentation provided to the Administrative Agent pursuant
to this Section 2.17(f).
(ii)
Without limiting the generality of the foregoing,
(A) each
Lender that is not a Foreign Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative
Agent), two executed original copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) each
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following
is applicable:
(1) in
the case of any Foreign Lender claiming the benefits of an income tax treaty to which the U.S. is a party (x) with respect to
payments of interest under any Loan Document, executed original copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption
from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with
respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of
such tax treaty;
(2)
executed original copies of IRS Form W-8ECI;
(3) in
the case of any Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit L-1 to the effect that such Foreign Lender is not a “bank” within the meaning
of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B)
of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance
Certificate”) and (y) executed original copies of IRS Form W-8BEN or W-8BEN-E; or
(4) to
the extent any Foreign Lender is not the beneficial owner, executed original copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI,
IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3,
IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such Foreign Lender
is a partnership and one or more partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may
provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such partner;
(C) each
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed original copies of
any other form prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in U.S. federal withholding
Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Requirements of Law to permit the
Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a
payment made to any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b)
of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed
by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation as is
prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional
documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the
Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such
Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of
this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any documentation
it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such documentation or promptly notify
the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g) If
the Administrative Agent or any Lender or Issuing Bank determines, in its sole discretion exercised in good faith, that it has received
a refund of any Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which such Loan Party has paid
additional amounts pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17),
it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such
Loan Party under this Section 2.17 with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or Issuing Bank (including any Taxes imposed with respect to such refund), and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such
Loan Party, upon the request of the Administrative Agent, such Lender or Issuing Bank, agrees to repay the amount paid over to such Loan
Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent,
such Lender or Issuing Bank in the event the Administrative Agent, such Lender or Issuing Bank is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the Administrative Agent,
any Lender or Issuing Bank be required to pay any amount to any Loan Party pursuant to this paragraph (g) to the extent that the
payment thereof would place the Administrative Agent, Lender or Issuing Bank in a less favorable net after-Tax position than the position
that the Administrative Agent or such Lender or Issuing Bank would have been in if the Tax subject to indemnification had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This
Section shall not be construed to require the Administrative Agent, any Lender or any Issuing Bank to make available its Tax returns (or
any other information relating to its Taxes which it deems confidential) to the relevant Loan Party or any other Person.
(h) The
Administrative Agent shall deliver to Borrower, on or before the date on which it becomes the Administrative Agent hereunder, either
(i) a duly executed original IRS Form W-9 (or any applicable successor form) certifying that the Administrative Agent is not subject
to backup withholding, or (ii) (A) a duly completed executed original IRS Form W-8ECI to establish that the Administrative Agent is
not subject to withholding Taxes under the Internal Revenue Code with respect to any amounts payable for the account of the
Administrative Agent under any of the Loan Documents and (B) a duly executed original IRS Form W-8IMY (or applicable successor form)
certifying that it is a U.S. branch that has agreed to be treated as a U.S. person for United States federal withholding Tax
purposes with respect to payments received by it from the Borrower for the account of others under the Loan Documents. The
Administrative Agent shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide the
certification described in the preceding sentence. The Administrative Agent shall also, at the time or times prescribed by law and
at such time or times reasonably requested by the Borrower, provide the Borrower such documentation as prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the
Borrower as may be necessary for the Borrower to comply with its FATCA obligations, to determine whether the Administrative Agent
has or has not complied with its FATCA obligations, and to determine the amount, if any, to deduct and withhold from a payment to
the Administrative Agent.
(i) Survival.
Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent
or any assignment of rights by, or the replacement of, any Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all obligations under any Loan Document.
Section 2.18. Payments Generally; Allocation of Proceeds;
Sharing of Payments.
(a) Unless
otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to
the time expressed hereunder or under such Loan Document (or, if no time is expressly required, by 2:00 p.m.) on the date when due, in
immediately available funds, without set-off (except as otherwise provided in Section 2.17) or counterclaim. Any amounts received
after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable
account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or
the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16 or 2.17
and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received
by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. Each Lender agrees that in
computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round such
Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount. Except as set forth in any amendment entered
into pursuant to Section 9.02(b)(ii)(E) with respect to the making of Revolving Loans or Letters of Credit denominated in a currency
other than Dollars, all payments (including accrued interest) hereunder shall be made in Dollars. Any payment required to be made by the
Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before
such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing
or settlement system used by the Administrative Agent to make such payment.
(b) Subject
in all respects to the provisions of the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement, all
proceeds of Collateral received by the Administrative Agent at any time when an Event of Default exists, shall, upon election by the
Administrative Agent or at the direction of the Required Lenders, be applied, first, to the payment of all costs and expenses
then due incurred by the Administrative Agent in connection with any collection, sale or realization on Collateral or otherwise in
connection with this Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees
and expenses of agents and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or under any
other Loan Document on behalf of any Loan Party and any other costs or expenses incurred in connection with the exercise of any
right or remedy hereunder or under any other Loan Document, second, on a pro rata basis, to pay any fees, indemnities or
expense reimbursements then due to the Administrative Agent (other than those covered in clause first above) or to the Swingline
Lender or any Issuing Bank from the Borrower constituting Secured Obligations, third, on a pro rata basis in accordance with
the amounts of the Secured Obligations (other than contingent indemnification obligations for which no claim has yet been made) owed
to the Secured Parties on the date of any such distribution, to the payment in full of the Secured Obligations (including, with
respect to LC Exposure, an amount to be paid to the Administrative Agent equal to 100% of the LC Exposure (minus the amount
then on deposit in the LC Collateral Account) on such date, to be held in the LC Collateral Account as Cash collateral for such
Obligations); provided that if any Letter of Credit expires undrawn, then any Cash collateral held to secure the related LC
Exposure shall be applied in accordance with this Section 2.18(b), beginning with clause first above, fourth, as
provided for under the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement, and fifth, to the
Borrower or as the Borrower shall direct.
(c) If
any Lender obtains payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) in respect of any
principal of or interest on any of its Loans of any Class or participations in LC Disbursements or Swingline Loans held by it resulting
in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans of such Class and participations in LC Disbursements
or Swingline Loans and accrued interest thereon than the proportion received by any other Lender with Loans of such Class and participations
in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for Cash at face value) participations
in the Loans of such Class and sub-participations in LC Disbursements or Swingline Loans of other Lenders of such Class at such time outstanding
to the extent necessary so that the benefit of all such payments shall be shared by the Lenders of such Class ratably in accordance with
the aggregate amount of principal of and accrued interest on their respective Loans of such Class and participations in LC Disbursements
or Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not apply to (x) any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or (y) any payment obtained by any Lender as consideration for the assignment of or sale of a participation
in any of its Loans to any permitted assignee or participant, including any payment made or deemed made in connection with Sections
2.22, 2.23, 9.02(c) and/or Section 9.05. The Borrower consents to the foregoing and agrees, to the extent it
may effectively do so under applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive
and binding in the absence of manifest error) of participations purchased under this Section 2.18(c) and will, in each case, notify
the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.18(c)
shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this
Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original
owner of the Obligations purchased.
(d) Unless
the Administrative Agent has received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent
for the account of any Lender or any Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute
to the applicable Lender or Issuing Bank the amount due. In such event, if the Borrower has not in fact made such payment, then each Lender
or the applicable Issuing Bank severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.
(e) If
any Lender fails to make any payment required to be made by it pursuant to Section 2.07(b) or Section 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by
the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.
Section 2.19. Mitigation Obligations; Replacement
of Lenders.
(a) If any Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO
Rate Loans pursuant to Section 2.20, or the Borrower is required to pay any additional amount to or indemnify any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder or its participation in any Letter of Credit affected
by such event, or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15
or 2.17, as applicable, in the future or mitigate the impact of Section 2.20, as the case may be, and (ii) would not subject
such Lender to any material unreimbursed out-of-pocket cost or expense and would not otherwise be disadvantageous to such Lender in any
material respect. The Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in connection
with any such designation or assignment.
(b) If (i)
any Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO Rate
Loans pursuant to Section 2.20, (ii) the Borrower is required to pay any additional amount to or indemnify any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17, (iii) any Lender is a Defaulting Lender or
(iv) in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender”, “each
Revolving Lender” or “each Lender directly affected thereby” (or any other Class or group of Lenders other than
the Required Lenders) with respect to which Required Lender or Required Revolving Lender consent (or the consent of Lenders holding
loans or commitments of such Class or lesser group representing more than 50% of the sum of the total loans and unused commitments
of such Class or lesser group at such time) has been obtained, as applicable, any Lender is a non-consenting Lender (each such
Lender, a “Non-Consenting Lender”), then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, (x) terminate the applicable Commitments and/or Additional Commitments of such Lender, and
repay all Obligations of the Borrower owing to such Lender relating to the applicable Loans and participations held by such Lender
as of such termination date under one or more Credit Facilities or Additional Credit Facilities as the Borrower may elect or (y)
replace such Lender by requiring such Lender to assign and delegate (and such Lender shall be obligated to assign and delegate),
without recourse (in accordance with and subject to the restrictions contained in Section 9.05), all of its interests, rights
and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be
another Lender, if any Lender accepts such assignment); provided that (A) such Lender shall have received payment of an
amount equal to the outstanding principal amount of its Loans and, if applicable, participations in LC Disbursements and Swingline
Loans, in each case of such Class of Loans, Commitments and/or Additional Commitments, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder with respect to such Class of Loans, Commitments and/or Additional Commitments, (B) in the
case of any assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section
2.17, such assignment will result in a reduction in such compensation or payments and (C) such assignment does not conflict with
applicable law. No Lender (other than a Defaulting Lender) shall be required to make any such assignment and delegation, and the
Borrower may not repay the Obligations of such Lender or terminate its Commitments or Additional Commitments, if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation
cease to apply. Each Lender agrees that if it is replaced pursuant to this Section 2.19, it shall execute and deliver to the
Administrative Agent an Assignment and Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent
any Promissory Note (if the assigning Lender’s Loans are evidenced by one or more Promissory Notes) subject to such Assignment
and Assumption (provided that the failure of any Lender replaced pursuant to this Section 2.19 to execute an
Assignment and Assumption or deliver any such Promissory Note shall not render such sale and purchase (and the corresponding
assignment) invalid), such assignment shall be recorded in the Register and any such Promissory Note shall be deemed cancelled. Each
Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Lender’s
attorney-in-fact, with full authority in the place and stead of such Lender and in the name of such Lender, from time to time in the
Administrative Agent’s discretion, with prior written notice to such Lender, to take any action and to execute any such
Assignment and Assumption or other instrument that the Administrative Agent may deem reasonably necessary to carry out the
provisions of this clause (b). To the extent that any Lender is replaced pursuant to Section 2.19(b)(iv) in connection
with a Repricing Transaction requiring payment of a fee pursuant to Section 2.12(f), the Borrower shall pay to each Lender
being replaced as a result of such Repricing Transaction the fee set forth in Section 2.12(f).
Section 2.20. Illegality.
If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted after
the Closing Date that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest
is determined by reference to the Published LIBO Rate, or to determine or charge interest rates based upon the Published LIBO Rate, or
any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits
of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent,
(i) any obligation of such Lender to make or continue LIBO Rate Loans in Dollars or to convert ABR Loans to LIBO Rate Loans shall be suspended
and (ii) if such notice asserts the illegality of such Lender making or maintaining ABR Loans the interest rate on which is determined
by reference to the Published LIBO Rate component of the Alternate Base Rate, the interest rate on which ABR Loans of such Lender, shall,
if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Published LIBO Rate component
of the Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving
rise to such determination no longer exist (which notice such Lender agrees to give promptly). Upon receipt of such notice, (x) the Borrower
shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or convert all of such Lender’s LIBO Rate
Loans to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by
the Administrative Agent without reference to the Published LIBO Rate component of the Alternate Base Rate) either on the last day of
the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBO Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such LIBO Rate Loans (in which case the Borrower shall not be required to make payments pursuant
to Section 2.16 in connection with such payment) and (y) if such notice asserts the illegality of such Lender determining or charging
interest rates based upon the Published LIBO Rate, the Administrative Agent shall during the period of such suspension compute the Alternate
Base Rate applicable to such Lender without reference to the Published LIBO Rate component thereof until the Administrative Agent is advised
in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Published
LIBO Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
Each Lender agrees to designate a different lending office if such designation will avoid the need for such notice and will not, in the
determination of such Lender, otherwise be materially disadvantageous to such Lender.
Section 2.21. Defaulting
Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following
provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees shall cease to accrue on
the unfunded portion of any Commitment of such Defaulting Lender pursuant to Section 2.12(a) and, subject to clause
(d)(iv) below, on the participation of such Defaulting Lender in Letters of Credit pursuant to Section 2.12(b) and
pursuant to any other provisions of this Agreement or other Loan Document.
(b) The
Commitments, Loans and LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, each affected Lender,
the Required Lenders, Required Revolving Lenders or such other number of Lenders as may be required hereby or under any other Loan Document
have taken or may take any action hereunder (including any consent to any waiver, amendment or modification pursuant to Section 9.02);
provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects
such Defaulting Lender disproportionately and adversely relative to other affected Lenders shall require the consent of such Defaulting
Lender.
(c) Any
payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Section 2.11, Section 2.15, Section 2.16, Section 2.17, Section
2.18, Article 7, Section 9.05 or otherwise, and including any amounts made available to the Administrative Agent by
such Defaulting Lender pursuant to Section 9.09), shall be applied at such time or times as may be determined by the Administrative
Agent and, where relevant, the Borrower as follows: first, to the payment of any amounts owing by such Defaulting Lender to the
Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender
to any applicable Issuing Bank and/or Swingline Lender hereunder; third, if so reasonably determined by the Administrative Agent
or reasonably requested by the applicable Issuing Bank, to be held as Cash collateral for future funding obligations of such Defaulting
Lender in respect of any participation in any Letter of Credit; fourth, so long as no Default or Event of Default exists, as the
Borrower may request, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as
required by this Agreement; fifth, if so determined by the Administrative Agent or the Borrower, to be held in a deposit account
and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; sixth, to the payment
of any amounts owing to the non-Defaulting Lenders, Issuing Banks or Swingline Lenders as a result of any judgment of a court of competent
jurisdiction obtained by any non-Defaulting Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result
of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, to the payment of any amounts owing
to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender
as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender
or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Loan or LC Exposure in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loan
or LC Exposure was made or created, as applicable, at a time when the conditions set forth in Section 4.02 were satisfied or waived,
such payment shall be applied solely to pay the Loans of, and LC Exposure owed to, all non-Defaulting Lenders on a pro rata basis
prior to being applied to the payment of any Loans of, or LC Exposure owed to, such Defaulting Lender. Any payments, prepayments or other
amounts paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed by any Defaulting Lender or to post Cash
collateral pursuant to this Section 2.21(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably
consents hereto.
(d) If
any Swingline Loans or LC Exposure exists at the time any Lender becomes a Defaulting Lender then:
(i) all or
any part of such Swingline Loans and LC Exposure shall be reallocated among the non-Defaulting Revolving Lenders in accordance with
their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit
Exposures does not exceed the total of all non-Defaulting Revolving Lenders’ Revolving Credit Commitments;
(ii) if
the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, without prejudice
to any other right or remedy available to it hereunder or under applicable Requirements of Law, within two Business Days following notice
by the Administrative Agent, Cash collateralize 100% of such Defaulting Lender’s LC Exposure and any obligations of such Defaulting
Lender to fund participations in any Swingline Loan (after giving effect to any partial reallocation pursuant to paragraph (i)
above and any Cash collateral provided by such Defaulting Lender or pursuant to Section 2.21(c) above) or make other arrangements
reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank and/or Swingline Lender with respect to such LC
Exposure and/or Swingline Loans and obligations to fund participations. Cash collateral (or the appropriate portion thereof) provided
to reduce LC Exposure or other obligations shall be released promptly following (A) the elimination of the applicable LC Exposure or other
obligations giving rise thereto (including by the termination of the Defaulting Lender status of the applicable Lender (or, as appropriate,
its assignee following compliance with Section 2.19)) or (B) the Administrative Agent’s good faith determination that there
exists excess Cash collateral (including as a result of any subsequent reallocation of Swingline Loans and LC Exposure among non-Defaulting
Lenders described in clause (i) above);
(iii) (A)
if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.21(d), then the fees payable to the
Revolving Lenders pursuant to Section 2.12(a) and (b), as the case may be, shall be adjusted to give effect to such reallocation
and (B) if the LC Exposure of any Defaulting Lender is Cash collateralized pursuant to this Section 2.21(d), then, without prejudice
to any rights or remedies of the applicable Issuing Bank, any Lender or any Borrower hereunder, no letter of credit fees shall be payable
under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure; and
(iv) if
any Defaulting Lender’s LC Exposure is not Cash collateralized, prepaid or reallocated pursuant to this Section 2.21(d),
then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Revolving Lender hereunder, all letter of credit
fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable
Issuing Bank until such Defaulting Lender’s LC Exposure is Cash collateralized or reallocated.
(e) So
long as any Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing
Bank shall be required to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably satisfied that
the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders, Cash collateral provided
pursuant to Section 2.21(c) and/or Cash collateral provided by the Borrower in accordance with Section 2.21(d), and participating
interests in any such or newly issued, extended or created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting
Revolving Lenders in a manner consistent with Section 2.21(d)(i) (it being understood that Defaulting Lenders shall not participate
therein).
(f) In the
event that the Administrative Agent and the Borrower agree that any Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then the Applicable Percentage of Swingline Loans and LC Exposure of the Revolving
Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment, and on such date such
Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) or
participations in Revolving Loans as the Administrative Agent shall determine as are necessary in order for such Revolving Lender to
hold such Revolving Loans or participations in accordance with its Applicable Percentage. Notwithstanding the fact that any
Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be
made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting
Lender and (y) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender
to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a
Defaulting Lender.
Section 2.22. Incremental Credit Extensions.
(a) The
Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment (i) add one or more new tranches of
term facilities and/or increase the principal amount of the Initial Term Loans or any Additional Term Loans by requesting new term loan
commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans
made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of
revolving commitments and/or increase the Total Revolving Credit Commitment or any Additional Revolving Credit Commitment (any such new
tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental
Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental
Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding
principal amount not to exceed the Incremental Cap; provided that:
(i) no
Incremental Commitment may be less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except
as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental Commitment,
and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that
the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no
Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing
Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(iv) any
such Incremental Revolving Facility shall either (A) be subject to the same terms and conditions as any then-existing Revolving
Facility (and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate
an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the
applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees
may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to
any existing Revolving Lenders) or (B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the
Initial Revolving Credit Maturity Date and all other material terms (other than pricing, maturity, upfront, arrangement,
structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment
reductions and immaterial terms, which shall be determined by the Borrower) shall be substantially consistent with the Initial
Revolving Loans or shall be reasonably satisfactory to the Administrative Agent; provided, that if any financial maintenance
covenant is added to any such Incremental Revolving Facility and such financial maintenance covenant is more favorable to the
lenders under such Incremental Revolving Facility than the Financial Covenant, either (x) such financial maintenance covenant shall
only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the
benefit of such more favorable financial maintenance covenant (together with, at the election of the Borrower, any applicable
“equity cure” provisions with respect to any such financial maintenance covenant) (it being understood that if any
financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no
consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or
other provision is (1) also added for the benefit of any then-existing Revolving Facility or (2) only applicable after the
applicable Latest Revolving Loan Maturity Date),
(v) the Effective
Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and the lender or lenders
providing such Incremental Facility; provided that, in the case of any broadly-syndicated Dollar denominated Incremental Term
Facility that is (x) originally incurred in reliance on clause (a) or clause (e) of the definition of “Incremental
Cap” (but not any reclassification pursuant to clause (3) of the proviso therein) and (y) scheduled to mature prior to the
date that is one year after the Initial Term Loan Maturity Date, the Effective Yield applicable thereto may not be more than 0.50% higher
than the Effective Yield applicable to the Amendment No. 2 Term Loans unless the Applicable Rate (and/or, as provided in the proviso
below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the Amendment No. 2 Term Loans is adjusted such that the Effective
Yield on the Amendment No. 2 Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental
Facility (this proviso, the “MFN Provision”); provided, further, that any increase in Effective Yield
applicable to any Amendment No. 2 Term Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on
any Incremental Term Loan may, at the election of the Borrower, be effected through an increase in the Alternate Base Rate floor or LIBO
Rate floor applicable to such Amendment No. 2 Term Loans or an increase in the interest rate margin applicable to such Incremental Loans;
provided further that the MFN Provision shall not apply to Incremental Term Facilities having an aggregate principal amount not
exceeding $20,000,000 (as selected by the Borrower),
(vi) the
final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date at the time
of the incurrence thereof; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity
date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or
otherwise replace such bridge loans shall be subject to the requirements of this clause (vi) and (ii) the Permitted Earlier Maturity
Indebtedness Exception (to the extent designated by the Borrower),
(vii) the
Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity
of the Amendment No. 2 Term Loans; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a
maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged
for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vii) or (ii) Permitted Earlier
Maturity Indebtedness Exception (to the extent designated by the Borrower),
(viii) subject
to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined
by the Borrower and the lenders providing such Incremental Term Facility,
(ix) subject
to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined
by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x) (A)
each Incremental Facility shall rank pari passu with the Amendment No. 2 Term Loans (in the case of any Incremental Term Facility)
and pari passu with the Initial Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment
and security and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets
other than the Collateral,
(xi)
any Incremental Term Facility may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any
voluntary prepayment of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata
basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory
prepayment of Term Loans required pursuant to Section 2.11(b),
(xii) no
Event of Default under Section 7.01(a), (f) or (g) shall exist immediately prior to or after giving effect to the effectiveness of such
Incremental Facility (except in connection with any acquisition or other Investment or irrevocable notice of repayment or redemption of
Indebtedness, where no such Event of Default shall exist at the time as elected by the Borrower pursuant to Section 1.04(e)),
(xiii) except
as otherwise required or permitted in clauses (v) through (xi) above, all other terms of any Incremental Term Facility shall be as agreed
between the Borrower and the lenders providing such Incremental Term Facility,
(xiv) the
proceeds of any Incremental Facility may be used for working capital, Capital Expenditures and other general corporate purposes of the
Borrower and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments
and any other purpose not prohibited by the terms of the Loan Documents), and
(xv) on
the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans, and
notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added
to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type
with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding
Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional
Term Loans, as applicable, of the same type with the same Interest Period of the respective Class.
(b) Incremental
Commitments may be provided by any existing Lender or by any other Eligible Assignee (any such other Eligible Assignee being called
an “Additional Lender”); provided that the Administrative Agent (and, in the case of any Incremental
Revolving Facility, the Swingline Lender and any Issuing Bank) shall have consented (such consent not to be unreasonably withheld,
conditioned or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be
required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided; further, that
any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis
mutandis, to the same extent as if Incremental Commitments and related Obligations had been obtained by such Lender by way of
assignment.
(c) Each
Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and
the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative
Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Additional Lender
shall become a Lender for all purposes in connection with this Agreement.
(d) As
a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the
Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements
and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Lender, an administrative
questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”)
and such other documents as it shall reasonably require from such Additional Lender, (1) the Administrative Agent and applicable Additional
Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) upon its
request, the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer thereof:
(A) certifying
and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility
or Incremental Loans, and
(B) to
the extent applicable, certifying that the condition set forth in clause (a)(xii) above has been satisfied.
(e)
Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) if such
Incremental Revolving Facility is implemented by increasing the amount of then-existing Total Revolving Credit Commitments (rather
than by establishing a new Class of Revolving Loans), (i) each Revolving Lender immediately prior to such increase will
automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each
relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of
such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving
effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental
Revolving Facility Lender) (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans
shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments (after giving effect to any
increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the
applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders
providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing
the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all
of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of
their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment
pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro
rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause
(i); and
(ii) if
such Incremental Revolving Facility is implemented pursuant to a request to add one or more new tranches of revolving commitments, (1)
the borrowing and repayment (except for (A) payments of interest and fees at different rates on the existing Revolving Facilities and
such Incremental Revolving Facility, (B) repayments required upon the Maturity Date of the then-existing Revolving Facility and such Incremental
Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of commitments (subject to clause
(3) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Facility Commitments shall be made
on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Facility, (2)
all swingline loans and/or letters of credit made or issued, as applicable, under such Incremental Revolving Facility shall be participated
on a pro rata basis by all Revolving Lenders and (3) the permanent repayment of Loans with respect to, and termination of commitments
under, such Incremental Revolving Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any
other then outstanding Incremental Revolving Facility, except that the Borrower shall be permitted to permanently repay and terminate
commitments under such Incremental Revolving Facility on a greater than pro rata basis as compared with any other revolving facility
with a later Maturity Date than such revolving facility.
(f) Effective
on the date of effectiveness of each Incremental Revolving Facility, the maximum amount of LC Exposure and/or Swingline Loans, as applicable,
permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Borrower and the relevant Issuing
Bank and/or the Swingline Lender, as applicable.
(g) The
Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to
any other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Loans
or commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate
in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches,
in each case on terms consistent with this Section 2.22.
(h) To
the extent the provisions of clause (a)(xv) above require that Term Lenders making new Incremental Term Loans add such Incremental Term
Loans to the then outstanding borrowings of LIBO Rate Loans of the respective Class of Initial Term Loans or Additional Term Loans, as
applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e.,
an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the respective Class and which
will end on the last day of such Interest Period).
(i) Notwithstanding
anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds of any
Incremental Facility are intended to be applied to finance an acquisition or other Investment and the lenders providing such
Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain
funds” conditionality (including the making and accuracy of Specified Representations as conformed for such acquisition or
other Investment).
(j)
This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary.
Section 2.23. Extensions of Loans
and Revolving Credit Commitments.
(a) Notwithstanding
anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time
to time by the Borrower to all Lenders holding Loans of any Class or Commitments of any Class, in each case on a pro rata basis (based
on the aggregate outstanding principal amount of the respective Loans or Commitments of such Class) and on the same terms to each such
Lender, the Borrower is hereby permitted from time to time to consummate transactions with any individual Lender who accepts the terms
contained in the relevant Extension Offer to extend the Maturity Date of all or a portion of such Lender’s Loans and/or Commitments
of such Class and otherwise modify the terms of all or a portion of such Loans and/or Commitments pursuant to the terms of the relevant
Extension Offer (including by increasing the interest rate or fees payable in respect of such Loans and/or Commitments (and related outstandings)
and/or modifying the amortization schedule, if any, in respect of such Loans) (each, an “Extension”); it being understood
that any Extended Term Loans shall constitute a separate Class of Loans from the Class of Loans from which they were converted and any
Extended Revolving Credit Commitments shall constitute a separate Class of Revolving Credit Commitments from the Class of Revolving Credit
Commitments from which they were converted, so long as the following terms are satisfied:
(i) except
as to (x) interest rates, fees and final maturity (which shall, subject to the succeeding clause (iii)(y), be determined by
the Borrower and set forth in the relevant Extension Offer), (y) terms applicable to such Extended Revolving Credit Commitments or
Extended Revolving Loans that are more favorable to the lenders or the agent of such Extended Revolving Credit Commitments or
Extended Revolving Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents on or
prior to the effectiveness of such Extension for the benefit of the Revolving Lenders or, as applicable, the Administrative Agent
pursuant to the applicable Extension Amendment and (z) any terms or other provisions applicable only to periods after the Latest
Revolving Loan Maturity Date (in each case, as of the date of such Extension), the commitment of any Revolving Lender that agrees to
an Extension (an “Extended Revolving Credit Commitment”; and the Loans thereunder, “Extended Revolving
Loans”), and the related outstandings, shall be a revolving commitment (or related outstandings, as the case may be) with
substantially consistent terms (or terms not less favorable to existing Revolving Lenders) as the original Revolving Credit
Commitments (and related outstandings) provided hereunder; provided that to the extent any non-extended portion of the
Revolving Facility or any Additional Revolving Facility then exists, (1) the borrowing and repayment (except for (A) payments of
interest and fees at different rates on such revolving facilities (and related outstandings), (B) repayments required upon the
Maturity Date of such revolving facilities and (C) repayments made in connection with any permanent repayment and termination of
commitments (subject to clause (3) below)) of Extended Revolving Loans after the effective date of such Extended Revolving
Credit Commitments shall be made on a pro rata basis with such portion of the Revolving Facility or the relevant Additional
Revolving Facility, as applicable, (2) all swingline loans and/or letters of credit made or issued, as applicable, under any
Extended Revolving Credit Commitment shall be participated on a pro rata basis by all Revolving Lenders and (3) the permanent
repayment of Loans with respect to, and termination of commitments under, any such Extended Revolving Credit Commitment after the
effective date of such Extended Revolving Credit Commitments shall be made on a pro rata basis with such portion of the
Revolving Facility and/or any Additional Revolving Facility, except that the Borrower shall be permitted to permanently repay and
terminate commitments of any such revolving facility on a greater than pro rata basis (I) as compared to any other Revolving
Facilities with a later Maturity Date than such Revolving Facility and (II) to the extent refinanced or replaced with a Replacement
Revolving Facility or Replacement Debt;
(ii) except
as to (x) interest rates, fees, amortization, final maturity date, premiums, required prepayment dates and participation in prepayments
(which shall, subject to immediately succeeding clauses (iii)(x), (iv) and (v), be determined by the Borrower and
set forth in the relevant Extension Offer), (y) terms applicable to such Extended Term Loans that are more favorable to the lenders or
the agent of such Extended Term Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents
on or prior to the effectiveness of such Extension for the benefit of the Term Lenders or, as applicable, the Administrative Agent pursuant
to the applicable Extension Amendment and (z) any covenants or other provisions applicable only to periods after the Latest Term Loan
Maturity Date (in each case, as of the date of such Extension), the Term Loans of any Lender extended pursuant to any Extension (any such
extended Term Loans, the “Extended Term Loans”) shall have substantially consistent terms as the tranche of Term Loans
subject to the relevant Extension Offer;
(iii) (x)
the final maturity date of any Extended Term Loans shall be no earlier than the then applicable Latest Term Loan Maturity Date at the
time of extension and (y) no Extended Revolving Credit Commitments or Extended Revolving Loans shall have a final maturity date earlier
than (or require commitment reductions prior to) the then applicable Latest Revolving Loan Maturity Date;
(iv) the
Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity
of the Term Loans or any other Extended Term Loans extended thereby;
(v) subject
to clauses (iii) and (iv) above, any Extended Term Loans may otherwise have an amortization schedule as determined by the
Borrower and the Lenders providing such Extended Term Loans;
(vi) any
Extended Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment
of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis other than in the
case of prepayment with proceeds of Indebtedness refinancing such Extended Term Loans) in any mandatory prepayment of Term Loans required
pursuant to Section 2.11(b);
(vii) if
the aggregate principal amount of Loans or commitments, as the case may be, in respect of which Lenders shall have accepted the relevant
Extension Offer exceeds the maximum aggregate principal amount of Loans or commitments, as the case may be, offered to be extended by
the Borrower pursuant to such Extension Offer, then the Loans or commitments, as the case may be, of such Lenders shall be extended ratably
up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) held by Lenders that
have accepted such Extension Offer;
(viii) unless
the Administrative Agent otherwise agrees, each Extension shall be in a minimum amount of $5,000,000;
(ix) any
applicable Minimum Extension Condition shall be satisfied or waived by the Borrower; and
(x)
all documentation in respect of such Extension shall be consistent with the foregoing.
(b) With
respect to any Extension consummated pursuant to this Section 2.23, (i) no such Extension shall constitute a voluntary or mandatory
prepayment for purposes of Section 2.11, (ii) the scheduled amortization payments (in so far as such schedule affects payments
due to Lenders participating in the relevant Class) set forth in Section 2.10 shall be adjusted to give effect to such Extension
of the relevant Class and (iii) except as set forth in clause (a)(viii) above, no Extension Offer is required to be in any minimum
amount or any minimum increment; provided that the Borrower may, at its election, specify as a condition (a “Minimum Extension
Condition”) to consummating such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer
in the Borrower’s sole discretion and which may be waived by the Borrower in its sole discretion) of Loans or commitments (as applicable)
of any or all applicable Classes be tendered. The Administrative Agent and the Lenders hereby consent to the transactions contemplated
by this Section 2.23 (including, for the avoidance of doubt, any payment of any interest, fees or premium in respect of any tranche
of Extended Term Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant Extension Offer)
and hereby waive the requirements of any provision of this Agreement (including Sections 2.10, 2.11 or 2.18) or any
other Loan Document that may otherwise prohibit any Extension or any other transaction contemplated by this Section.
(c) No
consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (A) the consent of each Lender
agreeing to such Extension with respect to one or more of its Loans and/or commitments under any Class (or a portion thereof), (B) with
respect to any Extension of the Revolving Credit Commitments, the consent of each Issuing Bank to the extent the commitment to provide
Letters of Credit is to be extended and (C) with respect to any Extension of the Revolving Credit Commitments, the consent of the Swingline
Lender to the extent the swingline facility is to be extended (in each case which consent shall not be unreasonably withheld or delayed).
All Extended Term Loans and Extended Revolving Credit Commitments and all obligations in respect thereof shall constitute Secured Obligations
under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with
all other Secured Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative
Agent to enter into such amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to establish
new tranches or sub-tranches in respect of Loans or commitments so extended and such technical amendments as may be necessary or appropriate
in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches,
in each case on terms consistent with this Section 2.23.
(d) In
connection with any Extension, the Borrower shall provide the Administrative Agent at least ten Business Days’ (or such shorter
period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including regarding
timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such
Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish
the purposes of this Section 2.23.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
On the dates and
to the extent required pursuant to Section 4.01 or Section 4.02, as applicable, Holdings (solely with respect to Sections 3.01,
3.02, 3.03, 3.06, 3.07, 3.08, 3.09, 3.12, 3.13, 3.14, 3.16 and 3.17)
and the Borrower hereby represent and warrant to the Lenders that:
Section 3.01. Organization;
Powers. Each of Holdings, the Borrower and each of its Restricted Subsidiaries (a) is (i) duly organized and validly existing
and (ii) in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of its jurisdiction of
organization, (b) has all requisite organizational power and authority to own its property and assets and to carry on its
business as now conducted and (c) is qualified to do business in, and is in good standing (to the extent such concept exists in the
relevant jurisdiction) in, every jurisdiction where its ownership, lease or operation of properties or conduct of its business
requires such qualification; except, in each case referred to in this Section 3.01 (other than clause (a)(i) and (b),
in each case with respect to the Borrower) where the failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
Section 3.02. Authorization;
Enforceability. The execution, delivery and performance by each Loan Party of each of the Loan Documents to which such Loan Party
is a party are within such Loan Party’s corporate or other organizational power and have been duly authorized by all necessary corporate
or other organizational action of such Loan Party. Each Loan Document to which any Loan Party is a party has been duly executed and delivered
by such Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject
to the Legal Reservations.
Section 3.03. Governmental
Approvals; No Conflicts. The execution and delivery of the Loan Documents by each Loan Party party thereto and the performance by
such Loan Party thereof (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental
Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) in connection with the Perfection Requirements
and (iii) such consents, approvals, registrations, filings, or other actions the failure to obtain or make which would not be reasonably
expected to have a Material Adverse Effect, (b) will not violate any (i) of such Loan Party’s Organizational Documents or (ii) Requirements
of Law applicable to such Loan Party which, in the case of this clause (b)(ii), would reasonably be expected to have a Material
Adverse Effect and (c) will not violate or result in a default under (i) the Second Lien Credit Agreement or (ii) any other material Contractual
Obligation in respect of Indebtedness having an aggregate principal amount exceeding the Threshold Amount to which such Loan Party is
a party which, in the case of this clause (c), would reasonably be expected to result in a Material Adverse Effect.
Section 3.04. Financial Condition; No Material Adverse
Effect.
(a) After
the Closing Date, the financial statements most recently provided pursuant to Section 5.01(a) or (b), as applicable, present
fairly, in all material respects, the financial position, results of operations and cash flows of the Borrower on a consolidated basis
as of such dates and for such periods in accordance with GAAP, (w) except as otherwise expressly noted therein, (x) subject, in the case
of financial statements provided pursuant to Section 5.01(a), to the absence of footnotes and normal year-end audit adjustments
and (y) except as may be necessary to reflect any differing entity and/or organizational structure prior to giving effect to the Transactions.
(b) Since
the Closing Date, there have been no events, developments or circumstances that have had, or would reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
Section 3.05. Properties.
(a)
[Reserved.]
(b) The
Borrower and each of its Restricted Subsidiaries have good and valid fee simple title to or rights to purchase, or valid leasehold interests
in, or easements or other limited property interests in, all of their respective Real Estate Assets, free and clear of all Liens except
for Permitted Liens and have good title to their personal property and assets, in each case material to the business, except (i) for defects
in title that do not materially interfere with their ability to conduct their business as currently conducted or to utilize such properties
and assets for their intended purposes or (ii) where the failure to have such title or interest would not reasonably be expected to have
a Material Adverse Effect.
(c) The
Borrower and each of its Restricted Subsidiaries own or otherwise have a license or right to use all Patents, Trademarks, Copyrights and
other rights in works of authorship (including all copyrights embodied in software), domain names, trade secrets and all other intellectual
property rights (“IP Rights”) necessary to the conduct of the businesses of the Borrower and its Restricted Subsidiaries
as presently conducted, and, to the knowledge of the Borrower, such IP Rights do not infringe or misappropriate the IP Rights of any third
party, except to the extent such failure to own or license or have rights to use would not, or where such infringement or misappropriation
would not, reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.06. Litigation and Environmental Matters.
Except as set forth on Schedule 3.06:
(a) there
are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened in writing against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries which would reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect;
(b) except
for any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, (i) neither
Holdings, the Borrower nor any of its Restricted Subsidiaries has received written notice of any claim with respect to any Environmental
Liability, knows of any basis for any Environmental Liability or, to the knowledge of the Borrower, has become subject to any Environmental
Liability and (ii) neither Holdings, the Borrower nor any of its Restricted Subsidiaries is in violation of any Environmental Law or has
not obtained, maintained, or complied with any permit, license or other approval required under any Environmental Law; and
(c) neither
Holdings, the Borrower nor any of its Restricted Subsidiaries has treated, stored, transported, Released or disposed of any Hazardous
Material at or from any currently or formerly owned, leased or operated real estate or facility nor, to the knowledge of the Borrower,
has any Hazardous Material been Released from any third-party location relating to the Borrower’s or any of its Restricted Subsidiaries’
businesses, in each case in a manner that would reasonably be expected to have a Material Adverse Effect.
Section 3.07. Compliance
with Laws. Each of Holdings, the Borrower and each of its Restricted Subsidiaries is in compliance with all Requirements of Law
applicable to it or its property, except, in each case where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, it being understood and agreed that this Section 3.07 shall not apply
to any law specifically referenced in Section 3.17.
Section 3.08. Investment
Company Status. No Loan Party is required to be registered as an “investment company” under the Investment Company Act
of 1940.
Section 3.09. Taxes.
Each of Holdings, the Borrower and each of its Restricted Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it that are due and payable, except
(a) Taxes that are being contested in good faith by appropriate proceedings and for which Holdings, the Borrower or such Restricted Subsidiary,
as applicable, has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent that the failure to do so, individually
or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section 3.10. ERISA.
(a) Each
Pension Plan is in compliance in form and operation with its terms and with ERISA and the Code and all other applicable laws and regulations,
except where any failure to comply would not reasonably be expected to result in a Material Adverse Effect.
(b) No
ERISA Event has occurred in the five-year period prior to the date on which this representation is made or deemed made and is continuing
or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected
to occur, would reasonably be expected to result in a Material Adverse Effect.
Section 3.11. Disclosure.
(a) As
of the Closing Date, to the knowledge of the Borrower, all written factual information (other than the Projections, the model delivered
by the Sponsor to the Arrangers on June 4, 2017, other forward-looking or projected information, pro forma information and information
of a general economic or general industry nature (including any reports or memos prepared by third party consultants)) concerning Holdings,
the Borrower and its Restricted Subsidiaries and the Transactions and that was included in the Information Memorandum or otherwise prepared
by or on behalf of the foregoing or the Sponsor or their respective representatives and made available to any Initial Lender or the Administrative
Agent in connection with the Transactions on or before the Closing Date (the “Information”), when taken as a whole,
did not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving
effect to all supplements and updates thereto from time to time).
(b) The
Projections have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time furnished (it
being recognized that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies many
of which are beyond the Borrower’s control, that no assurance can be given that any particular financial projections (including
the Projections) will be realized, that actual results may differ from projected results and that such differences may be material).
Section 3.12. Solvency.
As of the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date and the incurrence of
indebtedness and obligations on the Closing Date in connection with this Agreement and the Transactions, (i) the sum of the debt
(including contingent liabilities) of Holdings and its Subsidiaries, taken as a whole, does not exceed the fair value of the assets
of Holdings and its Subsidiaries, taken as a whole; (ii) the present fair saleable value of the assets of Holdings and its
Subsidiaries, taken as a whole, is not less than the amount that will be required to pay the probable liabilities (including
contingent liabilities) of Holdings and its Subsidiaries, taken as a whole, on their debts as they become absolute and matured;
(iii) the capital of Holdings and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of
Holdings and its Subsidiaries, taken as a whole, contemplated as of the Closing Date; and (iv) Holdings and its Subsidiaries, taken
as a whole, do not intend to incur, or believe that they will incur, debts (including current obligations and contingent
liabilities) beyond their ability to pay such debts as they mature in the ordinary course of business. For the purposes hereof, the
amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective
of whether such contingent liability meets the criteria for accrual under Statement of Financial Accounting Standards No. 5).
Section 3.13. Capitalization
and Subsidiaries. Schedule 3.13 sets forth, in each case as of the Closing Date, (a) a correct and complete list of the name
of each subsidiary of Holdings and the ownership interest therein held by Holdings or its applicable subsidiary and (b) the type of entity
of Holdings and each of its subsidiaries.
Section 3.14. Security
Interest in Collateral. Subject to the terms of the last paragraph of Section 4.01, the Legal Reservations, the Perfection
Requirements, the provisions, limitations and/or exceptions set forth in this Agreement and/or the other relevant Loan Documents (including
the Intercreditor Agreement or any other Acceptable Intercreditor Agreement), the Collateral Documents create legal, valid and enforceable
Liens on all of the Collateral in favor of the Administrative Agent, for the benefit of itself and the other Secured Parties, and upon
the satisfaction of the applicable Perfection Requirements, such Liens constitute perfected Liens (with the priority such Liens are expressed
to have within the relevant Collateral Documents) on the Collateral (to the extent such Liens are required to be perfected under the terms
of the Loan Documents) securing the Secured Obligations, in each case as and to the extent set forth therein. For the avoidance of doubt,
notwithstanding anything herein or in any other Loan Document to the contrary, neither the Borrower nor any other Loan Party makes any
representation or warranty (other than any representation or warranty expressly made in such Loan Document) as to (A) the effects of perfection
or non-perfection, the priority or the enforceability of any pledge of or security interest in any Capital Stock of any Foreign Subsidiary,
or as to the rights and remedies of the Administrative Agent or any Lender with respect thereto, under foreign Requirements of Law, (B)
the enforcement of any security interest, or right or remedy with respect to any Collateral that may be limited or restricted by, or require
any consent, authorization approval or license under, any Requirement of Law, (C) on the Closing Date and until required pursuant to Section
5.12 or the last paragraph of Section 4.01, as applicable, the pledge or creation of any security interest, or the effects of perfection
or non-perfection, the priority or enforceability of any pledge or security interest to the extent the same is not required on the Closing
Date pursuant to the final paragraph of Section 4.01 or (D) any Excluded Asset.
Section 3.15. Labor
Disputes. As of the Closing Date, except as individually or in the aggregate would not reasonably be expected to have a Material Adverse
Effect: (a) there are no strikes, lockouts or slowdowns against the Borrower or any of its Restricted Subsidiaries pending or, to the
knowledge of the Borrower or any of its Restricted Subsidiaries, threatened in writing and (b) the hours worked by and payments made to
employees of the Borrower and its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters.
Section 3.16. Federal
Reserve Regulations. No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, for any purpose that results in a violation of the provisions of Regulation U and X.
Section 3.17. Sanctions and Anti-Corruption Laws.
(a) (i)
None of Holdings, the Borrower nor any of its Restricted Subsidiaries nor, to the knowledge of the Borrower, any director, officer, agent,
employee or controlled Affiliate of any of the foregoing is a Sanctioned Person; and (ii) the Borrower will not directly or, to its knowledge,
indirectly, use the proceeds of the Loans or otherwise make available such proceeds to any Sanctioned Person, for the purpose of financing
the activities of any Sanctioned Person, or in any Sanctioned Country, or in any other matter, in each case, that would result in a violation
by any Person party to this Agreement of Sanctions.
(b)
Each Loan Party is in compliance with applicable Sanctions in all material respects.
(c) No part
of the proceeds of any Loan or any Letter of Credit will be used, directly or, to the knowledge of the Borrower, indirectly, for any
payments to any governmental official or employee, political party, official of a political party, candidate for political office,
or any other person or entity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the
U.S. Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption law.
ARTICLE 4 CONDITIONS
Section 4.01. Closing
Date. The obligations of (i) each Lender to make Loans and (ii) any Issuing Bank to issue Letters of Credit shall not become effective
until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) Credit
Agreement and Loan Documents. The Administrative Agent (or its counsel) shall have received from each Loan Party party thereto
(i) a counterpart signed by each such Loan Party (or written evidence reasonably satisfactory to the Administrative Agent (which may
include a copy transmitted by facsimile or other electronic method) that such party has signed a counterpart) of (A) this Agreement,
(B) the Security Agreement, (C) the Loan Guaranty, (D) the Intercreditor Agreement and (E) any Promissory Note requested by a Lender
at least three Business Days prior to the Closing Date and (ii) a Borrowing Request as required by Section 2.03.
(b) Legal
Opinions. The Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders and each Issuing Bank
on the Closing Date, a customary written opinion of (i) Davis Polk & Wardwell LLP, in its capacity as special New York counsel for
Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings, the
Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the Borrower
and the Subsidiary Guarantors.
(c) Financial
Statements and Pro Forma Financial Statements. The Administrative Agent shall have received, (i) (x) audited consolidated
balance sheets of the Target and its consolidated subsidiaries as at the end of, and related consolidated statements of operations,
comprehensive loss, cash flows and stockholders’ equity of the Target and its consolidated subsidiaries for, the three most
recently completed fiscal years ended at least 110 days prior to the Closing Date and (y) an unaudited consolidated balance sheet of
the Target and its consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive
loss, cash flows and stockholders’ equity of the Target and its consolidated subsidiaries for, each subsequent fiscal quarter
(other than the fourth fiscal quarter of any fiscal year) of the Target and its consolidated subsidiaries subsequent to the last
fiscal year for which financial statements were delivered pursuant to the preceding clause (x) and ended at least 46 days before the
Closing Date (in the case of this clause (y), without footnotes) and (ii) a unaudited pro forma consolidated balance sheet and
related unaudited pro forma consolidated statement of income or operations of the Target as of, and for the twelve-month period
ending on, the last day of the most recently completed four-fiscal quarter period ended at least 46 days (or 110 days, in case such
four-fiscal quarter period is the end of the Target’s fiscal year) prior to the Closing Date, prepared after giving effect to
the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such
period (in the case of such statement of income or operations), which need not be prepared in compliance with Regulation S-X of the
Securities Act of 1933, as amended, or include adjustments for purchase accounting (including adjustments of the type contemplated
by Financial Accounting Standards Board Accounting Standards Codification 805, (formerly SFAS 141R)) (it being understood that any
purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations determined by the
Borrower). The Administrative Agent hereby acknowledges receipt of the financial statements referred to (i) in clause (i)(x) above
in respect of the fiscal years ended July 29, 2014, June 28, 2015 and July 3, 2016, (ii) in clause (i)(y) above in respect of the
fiscal quarters ended October 2, 2016, January 1, 2017 and April 2, 2017 and (iii) in clause (ii) above in respect of the pro forma
financial statements.
(d) Closing
Certificates; Certified Charters; Good Standing Certificates. The Administrative Agent (or its counsel) shall have received (i) a
certificate of each Loan Party, dated the Closing Date and executed by a secretary, assistant secretary or other senior officer (as the
case may be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents
of its shareholders, board of directors, board of managers, members or other governing body authorizing the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of the Borrower, the borrowings and issuance of Promissory Notes (if any)
hereunder, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect,
(B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party
authorized to sign the Loan Documents to which it is a party on the Closing Date and (C) certify (x) that attached thereto is a true and
complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent thereof)
of such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy
of its by-laws or operating, management, partnership or similar agreement and (y) that such documents or agreements have not been amended
(except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and (ii)
a good standing (or equivalent) certificate (if applicable) as of a recent date for such Loan Party from the relevant authority of its
jurisdiction of organization.
(e) Representations
and Warranties. (i) The Specified Acquisition Agreement Representations shall be true and correct in all material respects as of the
Closing Date solely to the extent required by the terms of the definition thereof and (ii) the Specified Representations shall be true
and correct in all material respects on and as of the Closing Date; provided that (A) in the case of any Specified Representation
which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects
as of the respective date or for the respective period, as the case may be and (B) if any Specified Representation is qualified by or
subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the definition
thereof shall be the definition of “Closing Date Material Adverse Effect” for purposes of the making or deemed making of such
Specified Representation on, or as of, the Closing Date (or any date prior thereto).
(f) Fees.
Prior to or substantially concurrently with the funding of the Initial Term Loans hereunder, the Administrative Agent shall have received
(i) all fees required to be paid by the Borrower on the Closing Date pursuant to the Fee Letter and (ii) all expenses required to be paid
by the Borrower for which invoices have been presented at least three Business Days prior to the Closing Date (including the reasonable
fees and expenses of legal counsel for the Administrative Agent that are payable under the Commitment Letter entered into between the
Arrangers and the Borrower with respect to the Credit Facilities), in each case on or before the Closing Date, which amounts may be offset
against the proceeds of the Loans or may be paid from the proceeds of the Initial Loans.
(g) [Reserved.]
(h) Refinancing.
Prior to or substantially concurrently with the initial funding of the Loans hereunder, including by use of proceeds thereof, the principal,
accrued and unpaid interest, fees, premium, if any, and other amounts (other than (x) obligations not then due and payable or that by
their terms survive the termination of the Existing Credit Facilities and (y) the Existing Letters of Credit, all of which, on the Closing
Date will be deemed to be Letters of Credit issued hereunder) under the First Lien Credit Agreement dated as of September 19, 2016 and
the Second Lien Credit Agreement dated as of September 19, 2016 (in each case, as amended, supplemented or otherwise modified from time
to time prior to the Closing Date, the “Existing Credit Facilities”), will be repaid in full and all commitments to
extend credit under the Existing Credit Facilities will be terminated and any security interests and guarantees in connection therewith
shall be terminated and/or released (the “Refinancing”).
(i) Equity
Contribution. Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Equity Contribution shall
have been made substantially in the manner and at least in the amount set forth in the definition of Equity Contribution contained herein
(to the extent not otherwise applied to the Transactions).
(j) Solvency.
The Administrative Agent shall have received a certificate dated as of the Closing Date in substantially the form of Exhibit M
from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Target certifying as to the matters
set forth therein (or, at the option of Holdings, a third party opinion as to the solvency of the Target and its subsidiaries on a consolidated
basis in form and substance reasonably satisfactory to the Lead Arrangers issued by a nationally recognized firm reasonably acceptable
to the Lead Arrangers).
(k) Perfection
Certificate. Subject to the last paragraph of this Section 4.01, the Administrative Agent shall have received a completed Perfection
Certificate dated the Closing Date and signed by a Responsible Officer of each Loan Party, together with all attachments contemplated
thereby.
(l) Pledged
Stock; Stock Powers; Pledged Notes. Subject to the last paragraph of this Section 4.01, the Administrative Agent (or its bailee)
shall have received (i) the certificates representing the Capital Stock required to be pledged pursuant to the Security Agreement, together
with an undated stock or similar power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof
and (ii) each Material Debt Instrument (if any) required to be pledged pursuant to the Security Agreement endorsed (without recourse)
in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(m) Filings Registrations
and Recordings. Subject to the last paragraph of this Section 4.01, each document (including any UCC financing statement)
required by any Collateral Document or under law to be filed, registered or recorded in order to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant
to such Collateral Document, shall be in proper form for filing, registration or recordation.
(n) Transactions.
Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Acquisition shall be consummated in all material
respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, consents or
waivers thereto, other than those modifications, amendments, consents or waivers by Merger Sub 1 or its Affiliates that are materially
adverse to the interests of the Lenders in their capacities as such, unless consented to in writing by the Arrangers (such consent not
to be unreasonably withheld, delayed or conditioned); it being understood and agreed that (a) any changes to, or waivers, consents or
approvals by Merger Sub 1 or its Affiliates in respect of, the definition of Closing Date Material Adverse Effect shall be deemed materially
adverse, (b) any reduction in the purchase price of less than 10% or in accordance with the Acquisition Agreement (including pursuant
to any working capital or purchase price adjustment provision set forth in the Acquisition Agreement) shall be deemed not to be materially
adverse, (c) any other reduction in the purchase price shall be deemed not to be materially adverse so long as such decrease is allocated
first to reduce the Equity Contribution to the Minimum Equity Percentage, with any excess then allocated to reduce the Equity Contribution,
the principal amount of the Term Loans and the second lien term loans under the Second Lien Facility on a pro rata, dollar-for-dollar
basis and (d) any increase in the purchase price shall be deemed not to be materially adverse so long as such increase is funded by an
increase in the Equity Contribution or amounts available to be drawn under the Revolving Facility on the Closing Date or such increase
is pursuant to any working capital or purchase price (or similar) adjustment provision set forth in the Acquisition Agreement.
(o) Closing
Date Material Adverse Effect. Since June 6, 2017, there shall have not been an event, change, effect or circumstance that, individually
or in the aggregate has had, or that would reasonably be expected to result in, a Closing Date Material Adverse Effect.
(p) USA
PATRIOT Act. No later than three Business Days in advance of the Closing Date, the Administrative Agent shall have received all
documentation and other information reasonably requested in writing by the Administrative Agent with respect to any Loan Party at
least ten Business Days in advance of the Closing Date, which documentation or other information is required by U.S. regulatory
authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA
PATRIOT Act.
For purposes
of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding the Loans
hereunder, the Administrative Agent and each Lender that has executed this Agreement (or an Assignment and Assumption on the Closing Date)
shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder
to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be.
Notwithstanding the
foregoing, to the extent any Lien search or Collateral (including the creation or perfection of any security interest) is not or
cannot be provided on the Closing Date (other than, (i) a Lien on Collateral of any Loan Party that may be perfected by the filing
of a financing statement under the UCC (without need for any other action) and (ii) a pledge of the Capital Stock of the Borrower,
the Subsidiary Guarantors and each other wholly-owned Material Domestic Restricted Subsidiary to the extent certificated with
respect to which a Lien may be perfected on the Closing Date by the delivery of a stock or equivalent certificate, together with a
related stock or equivalent power executed in blank) after the Borrower’s use of commercially reasonable efforts to do so
without undue burden or expense (and with respect to the delivery of stock or equivalent certificates of relevant subsidiaries of
the Target whose Capital Stock is required to be pledged pursuant to the Security Agreement, only to the extent received after the
Borrower’s use of commercially reasonable efforts to do so), then the provision of any such Lien search and/or the provision
and/or perfection of such Collateral shall not constitute a condition precedent to the availability and initial funding of the Loans
on the Closing Date but may, if required, instead be delivered and/or perfected 90 days after the Closing Date pursuant to
arrangements to be mutually agreed between the Borrower and the Administrative Agent and subject to extensions as are reasonably
agreed by the Administrative Agent.
Section 4.02.
Each Credit Extension. After the Closing Date, the obligation of each Revolving Lender to make a Credit Extension (which, for the
avoidance of doubt (including for purposes of the last paragraph of this Section 4.02), shall not include (A) any Incremental Loans advanced
in connection with any acquisition, other Investment or irrevocable repayment or redemption of Indebtedness and/or (B) any Credit Extension
under any Incremental Facility Amendment, Refinancing Amendment and/or Extension Amendment, in each case to the extent not otherwise required
by the lenders in respect of thereof) is subject to the satisfaction of the following conditions:
(a) (i)
In the case of a Borrowing, the Administrative Agent shall have received a Borrowing Request as required by Section 2.03, (ii)
in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a notice
requesting the issuance of such Letter of Credit as required by Section 2.05(b) or (iii) in the case of a Borrowing of Swingline
Loans, the Swingline Lender and the Administrative Agent shall have received a request as required by Section 2.04(a).
(b) The representations and
warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects
on and as of the date of any such Credit Extension with the same effect as though such representations and warranties had been made on
and as of the date of such Credit Extension; provided that to the extent that any representation and warranty specifically refers
to a given date or period, it shall be true and correct in all material respects as of such date or for such period.;
provided further that, during the Covenant Waiver Period, for purposes of this Section 4.02(b), as it pertains to the obligation of any
Revolving Lender to make a Credit Extension, events and circumstances surrounding, and/or any matters or impacts arising from, related
to, or in connection with, the outbreak and spread of the novel coronavirus known as COVID-19 shall not constitute, result in or
otherwise have (or reasonably be expected to constitute, result in or otherwise have) a Material Adverse Effect of the type described
in clause (b)(i) of the definition thereof, and in each case shall be disregarded.
(c) At
the time of and immediately after giving effect to the applicable Credit Extension, no Event of Default or Default shall have occurred
and be continuing.
Each Credit
Extension after the Closing Date shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to
the matters specified in paragraphs (b) and (c) of this Section.
ARTICLE 5 AFFIRMATIVE COVENANTS
From the
Closing Date until the date that all the Revolving Credit Commitments and all other Commitments have expired or terminated and the
principal of and interest on each Loan and all fees, expenses and other Obligations payable under any Loan Document (other than
contingent indemnification obligations for which no claim or demand has been made) have been paid in full in Cash and all Letters of
Credit have expired or have been terminated (or have been (x) collateralized or back-stopped by a letter of credit or otherwise in
a manner reasonably satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing Banks or (y) deemed reissued
under another agreement in a manner reasonably satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing
Banks) and all LC Disbursements have been reimbursed (such date, the “Termination Date”), Holdings (solely with
respect to Sections 5.02 and 5.03) and the Borrower hereby covenant and agree with the Lenders that:
Section 5.01. Financial Statements
and Other Reports. The Borrower will deliver to the Administrative Agent for delivery by the Administrative Agent to each Lender:
(a) Quarterly
Financial Statements. As soon as available, and in any event within 45 days (or 90 days in the case of the first Fiscal Quarter ending
after the Closing Date and 75 days in the case of the second and third Fiscal Quarters ending after the Closing Date) after the end of
each of the first three Fiscal Quarters of each Fiscal Year, commencing with the Fiscal Quarter ending on or about September 30, 2017,
(i) the unaudited consolidated balance sheet of Holdings as at the end of such Fiscal Quarter and the related unaudited consolidated statements
of income and cash flows of Holdings for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to
the end of such Fiscal Quarter and setting forth, in reasonable detail, in comparative form the corresponding figures for the corresponding
periods of the previous Fiscal Year, all in reasonable detail, together with a Responsible Officer Certification (which may be included
in the applicable Compliance Certificate) with respect thereto and (ii) a Narrative Report; provided that such financial statements
shall only be required to reflect Holdings’ good faith estimate of any purchase accounting adjustments relating to (A) the Acquisition
for any Fiscal Quarter prior to on or about June 30, 2018 and (B) any acquisition consummated after the Closing Date until the Fiscal
Quarter ending on or about June 30 of the Fiscal Year following the Fiscal Year in which the relevant acquisition was consummated;
(b) Annual
Financial Statements. As soon as available, and in any event within 120 days (or, in the case of the Fiscal Year ending on or about
June 30, 2017, 150 days) after the end of each Fiscal Year ending after the Closing Date, (i) the consolidated balance sheet of Holdings
as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows of Holdings
for such Fiscal Year and, commencing after the completion of the second full Fiscal Year ended after the Closing Date, setting forth,
in reasonable detail, in comparative form the corresponding figures for the previous Fiscal Year and (ii) with respect to such consolidated
financial statements, (A) a report thereon of an independent certified public accountant of recognized national standing or another accounting
firm reasonably acceptable to the Administrative Agent (which report shall be unqualified as to “going concern” and scope
of audit (except for any such qualification pertaining to, or disclosure of an exception or qualification resulting from, the maturity
(or impending maturity) of any Credit Facility, any Second Lien Facility or any other Indebtedness occurring within one year of the date
of delivery of the relevant audit opinion, any breach or anticipated breach of any financial covenant or the activities, operations, financial
results, assets or liabilities of any Unrestricted Subsidiary), and shall state that such consolidated financial statements fairly present,
in all material respects, the consolidated financial position of Holdings as at the dates indicated and its income and cash flows for
the periods indicated in conformity with GAAP and (B) a Narrative Report;
(c) Compliance
Certificate; Unrestricted Subsidiaries. (i) Within 5 Business Days after the delivery of financial statements of Holdings
pursuant to Section 5.01(a) or 5.01(b) with respect to any Fiscal Quarter or Fiscal Year, as applicable, a duly
executed and completed Compliance Certificate and (ii) within 5 Business Days after the delivery of financial statements of Holdings
pursuant to Section 5.01(b), (A) a summary (which may be in footnote form) of the pro forma adjustments necessary to
eliminate the accounts of Unrestricted Subsidiaries (if any) from such financial statements and (B) a list identifying each
subsidiary of the Borrower as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such financial
statements or confirming that there is no change in such information since the later of the Closing Date and the most recent prior
delivery of such information;
(d) [Reserved];
(e) Notice
of Default or Event of Default. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) any Default or Event
of Default or (ii) the occurrence of any event or change that has caused or evidences or would reasonably be expected to cause or evidence,
either in any case or in the aggregate, a Material Adverse Effect, a reasonably detailed notice specifying the nature and period of existence
of such condition, event or change and what action the Borrower has taken, is taking and proposes to take with respect thereto;
(f) Notice
of Litigation. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) the institution of any Adverse Proceeding
not previously disclosed in writing by the Borrower to the Administrative Agent or (ii) any material development in any Adverse Proceeding
that, in the case of either clauses (i) or (ii), would reasonably be expected to have a Material Adverse Effect, written notice thereof
by the Borrower together with such other non-privileged information as may be reasonably available to the Loan Parties to enable the Lenders
to evaluate such matters;
(g) ERISA.
Promptly upon any Responsible Officer of the Borrower becoming aware of the occurrence of any ERISA Event that would reasonably be expected
to have a Material Adverse Effect, a written notice specifying the nature thereof;
(h) Financial
Plan. Prior to a Qualifying IPO, together with the delivery of financial statements of the Borrower pursuant to Section 5.01(b)
with respect to any Fiscal Year, commencing with the Fiscal Year ending on or about June 30, 2018, an operating budget for the next Fiscal
Year in a form as customarily prepared by management of the Borrower for its internal use or such other form as the Borrower and Administrative
Agent may reasonably agree;
(i) Information
Regarding Collateral. Promptly (and, in any event, within 45 days of the relevant change or such later date as the Administrative
Agent may agree) written notice of any change (i) in any Loan Party’s legal name, (ii) in any Loan Party’s type of organization,
(iii) in any Loan Party’s jurisdiction of organization or (iv) in any Loan Party’s organizational identification number, in
each case to the extent such information is necessary to enable the Administrative Agent to perfect or maintain the perfection and priority
of its security interest in the Collateral of the relevant Loan Party, together with certified copies of the applicable Organizational
Documents reflecting the relevant change;
(j) Certain
Reports. Promptly upon their becoming publicly available and without duplication of any obligations with respect to any such information
that is otherwise required to be delivered under the provisions of any Loan Document, copies of (i) following a Qualifying IPO, all financial
statements, material reports, material notices and proxy statements sent or made available generally by Holdings to its security holders
acting in such capacity and (ii) all material regular and periodic reports and all material registration statements (other than on Form
S-8 or a similar form) and prospectuses, if any, filed by the Borrower or any of its Restricted Subsidiaries with any securities exchange
or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (other
than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered),
exhibits to any registration statement and, if applicable, any registration statement on Form S-8 or a similar form); provided that no
such delivery shall be required hereunder with respect to any of the foregoing to the extent that such are publicly available via EDGAR;
and
(k) Other
Information. Such other certificates, reports and information (financial or otherwise) as the Administrative Agent may
reasonably request from time to time regarding the financial condition or business of the Borrower and its Restricted Subsidiaries;
provided, however, that none of Holdings, the Borrower or any Restricted Subsidiary shall be required to disclose or provide any
information (i) that constitutes non-financial trade secrets or non-financial proprietary information of Holdings, the Borrower or
any of its subsidiaries or any of their respective customers and/or suppliers, (ii) in respect of which disclosure to the
Administrative Agent or any Lender (or any of their respective representatives) is prohibited by any applicable Requirement of Law,
(iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which
Holdings, the Borrower or any Restricted Subsidiary owes confidentiality obligations to any third party (provided such
confidentiality obligations were not entered into solely in contemplation of the requirements of this Section 5.01(k)); provided,
further, that in the event the Borrower does not provide any certificate, report or information requested pursuant to this clause
(k) in reliance on the preceding proviso, the Borrower shall provide notice to the Administrative Agent that such certificate,
report or information is being withheld and the Borrower shall use commercially reasonable efforts to describe, to the extent both
feasible and permitted under applicable Requirements of Law or confidentiality obligations, or without waiving such privilege, as
applicable, the applicable certificate, report or information.
Documents required
to be delivered pursuant to this Section 5.01 may be delivered electronically and, if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower (or a representative thereof) (x) posts such documents or (y) provides a link thereto
at the website address listed on Schedule 9.01 (as updated from time to time); provided that, other than with respect to
items required to be delivered pursuant to Section 5.01(j) above, the Borrower shall promptly notify (which notice may be by facsimile
or electronic mail) the Administrative Agent of the posting of any such documents on such website and provide to the Administrative Agent
by electronic mail electronic versions (i.e., soft copies) of such documents; (ii) on which such documents are delivered by the Borrower
to the Administrative Agent for posting on behalf of the Borrower on IntraLinks, SyndTrak or another relevant website, if any, to which
each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative
Agent); (iii) on which such documents are faxed to the Administrative Agent (or electronically mailed to an address provided by the Administrative
Agent); or (iv) in respect of the items required to be delivered pursuant to Section 5.01(j) above in respect of information filed
by Holdings, the Borrower or any of its Restricted Subsidiaries with any securities exchange or with the SEC or any analogous governmental
or private regulatory authority with jurisdiction over matters relating to securities (other than Form 10-Q Reports and Form 10-K Reports),
on which such items have been made available on the SEC website or the website of the relevant analogous governmental or private regulatory
authority or securities exchange.
Notwithstanding the
foregoing, the obligations in paragraphs (a), (b) and (h) of this Section 5.01 may be satisfied with
respect to any financial statements of Holdings by furnishing (A) the applicable financial statements of the Borrower (or any Parent
Company) or (B) the Borrower’s (or any Parent Company’s), as applicable, Form 10-K or 10-Q, as applicable, filed with
the SEC or any securities exchange, in each case, within the time periods specified in such paragraphs; provided that, with
respect to each of clauses (A) and (B), (i) to the extent such financial statements relate to any Parent Company, such
financial statements shall be accompanied by consolidating information (which consolidating information need not be audited) that
summarizes in reasonable detail the differences between the information relating to such Parent Company, on the one hand, and the
information relating to the Borrower or Holdings on a standalone basis, on the other hand, which consolidating information shall be
certified by a Responsible Officer of Holdings as having been fairly presented in all material respects and (ii) to the extent such
statements are in lieu of statements required to be provided under Section 5.01(b), such statements shall be accompanied by a
report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm
reasonably acceptable to the Administrative Agent, which report and opinion shall satisfy the applicable requirements set forth in Section
5.01(b) as if the references to “Holdings” or “the Borrower” (as applicable) therein were references to
such Parent Company.
No financial
statement required to be delivered pursuant to Section 5.01(a) or (b) shall be required to include acquisition accounting
adjustments relating to the Transactions or any Permitted Acquisition or other Investment to the extent it is not practicable to include
any such adjustments in such financial statement.
Section 5.02.
Existence. Except as otherwise permitted under Section 6.07 or as a result of the consummation of a Permitted Reorganization
or the consummation of a Holdings Reorganization Transaction, Holdings and the Borrower will, and the Borrower will cause each of its
Restricted Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights, franchises, licenses
and permits material to its business except, other than with respect to the preservation of the existence of the Borrower, to the extent
that the failure to do so would not reasonably be expected to result in a Material Adverse Effect; provided that neither Holdings
nor the Borrower nor any of the Borrower’s Restricted Subsidiaries shall be required to preserve any such existence (other than
with respect to the preservation of existence of the Borrower, except as otherwise permitted under Section 6.07 or
as a result of the consummation of a Permitted Reorganization), right, franchise, license or permit if a Responsible Officer of such
Person or such Person’s board of directors (or similar governing body) determines that the preservation thereof is no longer desirable
in the conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person
or to the Lenders.
Section 5.03.
Payment of Taxes. Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, pay all Taxes
imposed upon it or any of its properties or assets or in respect of any of its income or businesses or franchises before any penalty or
fine accrues thereon; provided that no such Tax need be paid if (a) it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as (i) adequate reserves or other appropriate provisions, as are required in conformity
with GAAP, have been made therefor and (ii) in the case of a Tax which has or may become a Lien against a material portion of the Collateral,
such contest proceedings conclusively operate to stay the sale of such portion of the Collateral to satisfy such Tax or
(b) failure to pay or discharge
the same would not reasonably be expected to result in a Material Adverse Effect.
Section 5.04.
Maintenance of Properties. The Borrower will, and will cause each of its Restricted Subsidiaries to, maintain or cause to be maintained
in good repair, working order and condition, ordinary wear and tear and casualty and condemnation excepted, all material tangible property
reasonably necessary to the normal conduct of business of the Borrower and its Restricted Subsidiaries and from time to time will make
or cause to be made all needed and appropriate repairs, renewals and replacements thereof except as expressly permitted by this Agreement
or where the failure to maintain such tangible properties or make such repairs, renewals or replacements would not reasonably be expected
to have a Material Adverse Effect.
Section 5.05. Insurance.
Except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, the Borrower will maintain or
cause to be maintained, in each case, as determined by the Borrower in good faith, with financially sound and reputable insurers,
such insurance coverage with respect to liabilities, losses or damage in respect of the assets, properties and businesses of the
Borrower and its Restricted Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses, in each case in such amounts (giving effect to self-insurance), with such
deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for such Persons, including, but
only if required by applicable law or regulation, flood insurance with respect to each Flood Hazard Property, in each case in
compliance with applicable Flood Insurance Laws, in each case, together with all statutory and regulatory provisions consolidating,
amending, replacing, supplementing, implementing or interpreting any of the foregoing, as amended or modified from time to time.
Each such policy of insurance shall (i) name the Administrative Agent on behalf of the Secured Parties as a loss payee and mortgagee
or an additional insured, as applicable, thereunder as its interests may appear and (ii) to the extent available from the relevant
insurance carrier, in the case of each casualty insurance policy (excluding any business interruption insurance policy), contain a
loss payable clause or endorsement that names the Administrative Agent, on behalf of the Secured Parties, as the loss payee
thereunder and, to the extent available, provide for at least 30 days’ prior written notice to the Administrative Agent of any
modification or cancellation of such policy (or 10 days’ prior written notice in the case of the failure to pay any premiums
thereunder); provided that the Borrower shall have 45 days after the Closing Date (or such later date as agreed by the
Administrative Agent) to comply with the requirements of the foregoing clauses (i) and (ii) with respect to policies in effect on
the Closing Date.
Section 5.06.
Inspections. The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any authorized representative designated
by the Administrative Agent to visit and inspect any of the properties of the Borrower and any of its Restricted Subsidiaries at which
the principal financial records and executive officers of the applicable Person are located, to inspect, copy and take extracts from its
and their respective financial and accounting records, and to discuss its and their respective affairs, finances and accounts with its
and their Responsible Officers and independent public accountants (subject to such accountants’ customary policies and procedures)
(provided that the Borrower (or any of its subsidiaries) may, if it so chooses, be present at or participate in any such discussion),
all upon reasonable notice and at reasonable times during normal business hours; provided that (x) only the Administrative Agent
on behalf of the Lenders may exercise the rights of the Administrative Agent and the Lenders under this Section 5.06, (y) the Administrative
Agent shall not exercise such rights more often than one time during any calendar year and (z) only one such time per calendar year shall
be at the expense of the Borrower; provided, further, that when an Event of Default exists, the Administrative Agent (or
any of its representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal
business hours and upon reasonable advance notice; provided, further that notwithstanding anything to the contrary herein,
neither the Borrower nor any Restricted Subsidiary shall be required to disclose, permit the inspection, examination or making of copies
of or taking abstracts from, or discuss any document, information or other matter (i) that constitutes non-financial trade secrets or
non-financial proprietary information of the Borrower and its subsidiaries and/or any of its customers and/or suppliers, (ii) in respect
of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives or contractors) is prohibited
by applicable law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect
of which Holdings, the Borrower or any Restricted Subsidiary owes confidentiality obligations to any third party (provided such confidentiality
obligations were not entered into solely in contemplation of the requirements of this Section 5.06); provided, further,
that in the event any of the circumstances described in the preceding proviso exist, the Borrower shall provide notice to the Administrative
Agent thereof and shall use commercially reasonable efforts to describe, to the extent both feasible and permitted under applicable Requirements
of Law or confidentiality obligations, or without waiving such privilege, as applicable, the applicable document, information or other
matter.
Section 5.07. Maintenance
of Book and Records. The Borrower will, and will cause its Restricted Subsidiaries to, maintain proper books of record and
account containing entries of all material financial transactions and matters involving the assets and business of the Borrower and
its Restricted Subsidiaries that are full, true and correct in all material respects and permit the preparation of consolidated
financial statements in accordance with GAAP.
Section
5.08. Compliance with Laws. The Borrower will comply, and will cause each of its Restricted Subsidiaries to comply, with the
requirements of all applicable laws, rules, regulations and orders of any Governmental Authority (including ERISA and all
Environmental Laws, Sanctions and the U.S. Foreign Corrupt Practices Act of 1977), except to the extent the failure of the Borrower
or the relevant Restricted Subsidiary to comply would not reasonably be expected to have a Material Adverse Effect.
Section 5.09. Hazardous Materials Activity.
(a) The Borrower will deliver to the Administrative Agent:
(i) reasonably
promptly following receipt by Borrower thereof, copies of all written environmental audits, investigations, analyses and reports of any
kind or character, whether prepared by personnel of the Borrower or any of its Restricted Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to any Environmental Liabilities or Hazardous Materials Activity that, in
each case could reasonably be expected to have a Material Adverse Effect;
(ii) reasonably
promptly following Borrower becoming aware of the occurrence thereof, written notice describing in reasonable detail (A) any Release required
to be reported by the Borrower or any of its Restricted Subsidiaries to any federal, state or local governmental or regulatory agency
under any applicable Environmental Law, (B) any remedial action taken by or on behalf of the Borrower or any of its Restricted Subsidiaries
in response to any Hazardous Materials Activity or Environmental Claim, or (C) any pending or threatened Environmental Claim, that in
the case of each of (A), (B) and (C) above, would reasonably be expected to have a Material Adverse Effect; and
(iii) reasonably
promptly following the sending or receipt thereof by the Borrower or any of its Restricted Subsidiaries, a copy of any and all written
communications with respect to any Release required to be reported by the Borrower or any of its Restricted Subsidiaries to any federal,
state or local governmental or regulatory agency or any Release required to be remediated pursuant to any Environmental Law, that in each
case would reasonably be expected to have a Material Adverse Effect.
(b) The
Borrower shall reasonably promptly take, and shall cause each of its Restricted Subsidiaries reasonably promptly to take, any and all
actions reasonably necessary to (i) cure any violation of Environmental Law by the Borrower or any of its Restricted Subsidiaries, and,
to the extent required by Environmental Law, address with appropriate corrective or remedial action any Release or threatened Release
of any Hazardous Material at or from any Facility, that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect and (ii) make an appropriate response to any Environmental Claim against the Borrower or any of its Restricted Subsidiaries
and discharge any obligations it may have to any Person thereunder, where failure to do so could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect; provided that it shall not be deemed to be a violation of this Section 5.09
if the Borrower or its Restricted Subsidiaries are in good faith contesting such violation or Environmental Claim in accordance with applicable
Environmental Law.
Section 5.10.
Designation of Subsidiaries. The Borrower may at any time after the Closing Date designate (or re-designate) any subsidiary as
an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) no subsidiary may be designated
as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of the Second Lien Credit Agreement and (ii)
as of the date of the designation thereof, no Unrestricted Subsidiary shall own any Capital Stock in any Restricted Subsidiary of the
Borrower (unless such Restricted Subsidiary is also designated as an Unrestricted Subsidiary simultaneously with the aforementioned designation
in accordance with the terms of this Section 5.10) or hold any Indebtedness of or any Lien on any property of the Borrower or its
Restricted Subsidiaries (unless the Borrower or such Restricted Subsidiary is permitted hereunder to incur such Indebtedness or grant
such Lien in favor of such Unrestricted Subsidiary). The designation of any subsidiary as an Unrestricted Subsidiary shall constitute
an Investment by the Borrower therein at the date of designation in an amount equal to the portion of the fair market value of the net
assets of such Restricted Subsidiary attributable to the Borrower’s equity interest therein as estimated by the Borrower in good
faith (and such designation shall only be permitted to the extent such Investment is permitted under Section 6.06). The designation
of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence or making, as applicable, at the time of designation
of any then-existing Investment, Indebtedness or Lien of such Restricted Subsidiary, as applicable; provided that upon a re-designation
of any Unrestricted Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have an Investment in the resulting
Restricted Subsidiary in an amount (if positive) equal to (a) the Borrower’s “Investment” in such Restricted Subsidiary
at the time of such re-designation less (b) the portion of the fair market value of the net assets of such Restricted Subsidiary attributable
to the Borrower’s equity therein at the time of such re-designation. As of the Closing Date, the subsidiaries listed on Schedule
5.10 hereto have been designated as Unrestricted Subsidiaries.
Section 5.11. Use of
Proceeds. The Borrower shall use the proceeds of the Revolving Loans (a) on the Closing Date, (i) to replace, backstop or cash
collateralize Existing Letters of Credit, guarantees or performance or similar bonds or to issue Letters of Credit and (ii) in an
aggregate principal amount of up to $15,000,000 to pay Transaction Costs and expenses and for purchase price and working capital
adjustments, if any, under the Acquisition Agreement and to provide for ordinary course working capital needs and general corporate
purposes and (b) after the Closing Date, to finance the working capital needs and other general corporate purposes of the Borrower
and its subsidiaries (including for capital expenditures, acquisitions, working capital and/or purchase price adjustments, the
payment of transaction fees and expenses (in each case, including in connection with the Acquisition), other Investments, Restricted
Payments, Restricted Debt Payments and any other purpose not prohibited by the terms of the Loan Documents). The Borrower shall use
the proceeds of the Swingline Loans made after the Closing Date to finance the working capital needs and other general corporate
purposes of the Borrower and its subsidiaries and any other purpose not prohibited by the terms of the Loan Documents. The Borrower
shall use the proceeds of the Initial Term Loans (i) to effect all or a portion of the Refinancing, (ii) to finance all or a portion
of the Transactions, the Amendment No. 1 Transactions (including working capital and/or purchase price adjustments and the payment
of Transaction Costs) and (iii) for general corporate purposes. The Borrower shall use the proceeds of the Amendment No. 2 Term Loans (x) to repay the Existing Term Loans (as defined in Amendment No. 2) and for the payment of fees and expenses in connection
therewith, together with the accrued and unpaid interest thereon, (y) to finance all or a portion of the Amendment No. 2
Transactions (including the payment of Transaction Costs) and (z) for general corporate purposes. The Borrower shall use the
proceeds of the Amendment No. 3 Incremental Term Loans to finance all or a portion of the Amendment No. 3 Transactions (including
the payment of transaction costs) and, as further set forth below, for general corporate purposes (including any purpose not
otherwise prohibited hereunder). No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose
that would entail a violation of Regulation U. The Borrower shall use the proceeds of the Incremental Term Loans for working
capital, capital expenditures and other general corporate purposes of the Borrower and its subsidiaries (including for Restricted
Payments, Investments, Permitted Acquisitions and any other purpose not prohibited by the terms of the Loan Documents) (and, in the
case of the Amendment No. 1 Incremental Term Loans, the Amendment No. 2 Term Loans and the Amendment No. 3 Incremental Term Loans
(each, as applicable), to finance all or a portion of the Amendment No. 1 Transactions, the Amendment No. 2 Transactions and the
Amendment No. 3 Transactions, as applicable).
Section 5.12. Covenant to Guarantee Obligations and
Give Security.
(a) Upon
(i) the formation or acquisition after the Closing Date of any Restricted Subsidiary that is a Domestic Subsidiary (subject to Section
6.06(hh)), (ii) the designation of any Unrestricted Subsidiary that is a Domestic Subsidiary as a Restricted Subsidiary, (iii) any Restricted
Subsidiary that is a Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary ceasing to be an Excluded
Subsidiary (including by election of the Borrower as set forth herein), (x) if the event giving rise to the obligation under this Section
5.12(a) occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the date on which financial statements are
required to be delivered pursuant to Section 5.01(a) for the Fiscal Quarter in which the relevant formation, acquisition, designation
or cessation occurred or (y) if the event giving rise to the obligation under this Section 5.12(a) occurs during the fourth Fiscal
Quarter of any Fiscal Year, on or before the date that is 60 days after the end of such Fiscal Quarter (or, in the cases of clauses
(x) and (y), such longer period as the Administrative Agent may reasonably agree), the Borrower shall (A) cause such Restricted
Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in clause (a) of the definition of “Collateral
and Guarantee Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary
(other than any Excluded Subsidiary) to deliver to the Administrative Agent a signed copy of a customary opinion of counsel for such Restricted
Subsidiary, addressed to the Administrative Agent and the other relevant Secured Parties.
(b) Within
120 days (or such longer period as the Administrative Agent may reasonably agree) after the acquisition by any Loan Party of any Material
Real Estate Asset, other than any Excluded Asset, the Borrower shall cause such Loan Party to comply with the requirements set forth in
clause (b) of the definition of “Collateral and Guarantee Requirement”; it being understood and agreed that, with respect
to any Material Real Estate Asset (other than any Excluded Asset) owned by any Restricted Subsidiary at the time such Restricted Subsidiary
is required to become a Loan Party under Section 5.12(a) above, such Material Real Estate Asset shall be deemed to have been acquired
by such Restricted Subsidiary on the first day of the time period within which such Restricted Subsidiary is required to become a Loan
Party under Section 5.12(a).
Notwithstanding anything to the contrary
herein or in any other Loan Document, (i) the Administrative Agent may grant extensions of time (including after the expiration of
any relevant period, which apply retroactively) for the creation and perfection of security interests in, or obtaining of title
insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guaranty by
any Restricted Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing
Date), and each Lender hereby consents to any such extension of time, (ii) any Lien required to be granted from time to time
pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations
set forth in the Collateral Documents, (iii) perfection by control shall not be required with respect to assets requiring perfection
through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts
(other than control of pledged Capital Stock and/or Material Debt Instruments, in each case, that constitute Collateral) and no
blocked account agreement, account control agreement or similar agreement shall be required, (iv) no Loan Party shall be required to
seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement,
(v) no Loan Party will be required to (1) take any action outside of the United States or grant or perfect any security interest in
any asset located outside of the U.S. or conduct any foreign lien search, (2) execute any foreign law guarantee, security agreement,
pledge agreement, mortgage, deed or charge or (3) make any foreign intellectual property filing, conduct any foreign intellectual
property search or prepare any foreign intellectual property schedule with respect to any assets of any Loan Party or enter into any
source code escrow arrangement or register any intellectual property, (vi) in no event will the Collateral include any Excluded
Assets, (vii) no action shall be required to perfect any Lien with respect to (x) any vehicle or other asset subject to a
certificate of title, or any retention of title, extended retention of title rights, or similar rights and/or (y) Letter-of-Credit
Rights, in each case to the extent that a security interest therein cannot be perfected by filing a Form UCC-1 (or similar)
“all assets” financing statement without the requirement to list any VIN, serial or other number and (viii) the
Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to
which the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its
operations and business in the ordinary course of business) of obtaining or perfecting such Lien (including any mortgage, stamp,
intangibles or other tax or expenses relating to such Lien) outweighs the benefit to the Lenders of the security afforded thereby as
reasonably determined by the Borrower and the Administrative Agent; provided that the foregoing shall not apply and shall not
operate to limit the obligation of the Loan Parties to provide security in foreign jurisdictions (subject to “agreed security
principles” to be negotiated in good faith between the Borrower and the Administrative Agent) if a Foreign Subsidiary becomes
a Guarantor.
Additionally, (i) no action shall be
required to create or perfect a Lien in any asset in respect of which the creation or perfection of a security interest therein
would (1) be prohibited by enforceable anti-assignment provisions set forth in any contract that is permitted or otherwise not
prohibited by the terms of this Agreement, (2) violate the terms of any contract relating to such asset that is permitted or
otherwise not prohibited by the terms of this Agreement, in each case, after giving effect to the applicable anti-assignment
provisions of the UCC or other applicable law or (3) trigger termination of any contract relating to such asset that is permitted or
otherwise not prohibited by the terms of this Agreement pursuant to any “change of control” or similar provision, it
being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this
clause (other than Excluded Assets) to the extent the assignment of such proceeds or receivables is expressly deemed effective under
the UCC or other applicable Requirements of Law notwithstanding the relevant prohibition, violation or termination right, (ii) no
Loan Party shall be required to create or perfect a security interest in any asset to the extent the creation or perfection of a
security interest in such asset would (A) be prohibited under any applicable Requirement of Law, after giving effect to any
applicable anti-assignment provision of the UCC or other applicable law and other than proceeds thereof (other than Excluded Assets)
to the extent that the assignment of such proceeds is effective under the UCC or other applicable Requirements of Law
notwithstanding such Requirement of Law, (B) require any governmental consent, approval, license or authorization (unless such
consent, approval, license or authorization has been obtained), after giving effect to any applicable anti-assignment provision of
the UCC or other applicable law and other than proceeds thereof (other than Excluded Assets) to the extent that the assignment of
such proceeds is effective under the UCC or other applicable Requirements of Law notwithstanding such consent or restriction and/or
(C) result in adverse tax consequences or adverse regulatory consequences to any Loan Party or any of its subsidiaries or Parent
Companies as determined by the Borrower in good faith following consultation with the Administrative Agent, (iii) any joinder or
supplement to any Loan Guaranty, any Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that
is required to become a Loan Party pursuant to Section 5.12(a) above may, with the consent of the Administrative Agent (not
to be unreasonably withheld or delayed), include such schedules (or updates to schedules) as may be necessary to qualify any
representation or warranty set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is
true and correct to the extent required thereby or by the terms of any other Loan Document; and (iv) (A) no Loan Party will be
required to take any action required under the Federal Assignment of Claims Act or any similar law and (B) no Secured Party will be
permitted to exercise any right of setoff in respect of any account maintained solely for the purpose of receiving and holding
government receivables.
Section 5.13.
Maintenance of Ratings. The Borrower shall use commercially reasonable efforts to maintain public corporate credit facility and
public corporate family ratings in respect of Holdings from each of S&P and Moody’s; provided that in no event shall
the Borrower be required to maintain any specific rating with any such agency.
Section 5.14.
Maintenance of Fiscal Year. The Borrower shall maintain its Fiscal Year-end as in effect on the Closing Date; provided that the
Borrower may, upon written notice to the Administrative Agent, change its Fiscal Year-end to another date, in which case the Borrower
and the Administrative Agent will, and are hereby authorized to (without requiring the consent of any other Person, including any Lender),
make any adjustments to this Agreement that are necessary to reflect such change in Fiscal Year.
Section 5.15.
Further Assurances. Promptly upon reasonable request of the Administrative Agent and subject to the limitations described in Section
5.12:
(a) The
Borrower will, and will cause each other Loan Party to, execute any and all further documents, financing statements, agreements, instruments,
certificates, notices and acknowledgments and take all such further actions (including the filing and recordation of financing statements,
fixture filings, Mortgages and/or amendments thereto and other documents), that may be required under any applicable law and which the
Administrative Agent may reasonably request to ensure the perfection and priority of the Liens created or intended to be created under
the Collateral Documents, all at the expense of the relevant Loan Parties. For the avoidance of doubt, in no event shall any (x) Excluded
Property or (y) property subject to a Sale and Lease-Back Transaction permitted hereunder be required to be made subject to the Collateral
Documents.
(b) The
Borrower will, and will cause each other Loan Party to, (i) correct any material defect or error that may be discovered in the execution,
acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral and (ii) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts (including notices
to third parties), deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from time
to time in order to ensure the creation and perfection of the Liens created under the Collateral Documents.
Section 5.16.
Conduct of Business. The Borrower and its Restricted Subsidiaries shall engage only in those material lines of business that consist
of (a) the businesses engaged in by the Borrower or any Restricted Subsidiary on the Closing Date, reasonably related, similar, incidental,
complementary, ancillary, corollary, synergistic or related businesses or reasonable extensions, development or expansion (or proposed
to be engaged) of such businesses (including entertainment and amusement media and content business in connection therewith) and (b) such
other lines of business to which the Administrative Agent may consent.
Section 5.17. Annual
Lender Call. Upon the request of the Administrative Agent following each delivery of financial statements pursuant to Section
5.01(b) (commencing with respect to the financial statements delivered for the Fiscal Year ending on or about June 30, 2018),
the Borrower shall participate in a conference call with Lenders arranged by the Administrative Agent to provide discussion and
analysis with respect to the financial condition and results of operations of the Borrower and its Restricted Subsidiaries at a time
at which the Borrower and the Administrative Agent mutually agree.
Section 5.18.
Post-Closing Actions. Take the actions set forth on Schedule 5.18 within the time periods specified thereon (or by such
later time as the Administrative Agent may reasonably agree).
ARTICLE 6 NEGATIVE COVENANTS
From the Closing
Date and until the Termination Date has occurred, Holdings (solely with respect to Section 6.14) and the Borrower covenant and
agree with the Lenders that:
Section 6.01.
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the
Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Indebtedness
of the Borrower or any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary (or issued to any Parent Company which
is substantially contemporaneously transferred to the Borrower or any Restricted Subsidiary); provided that in the case of any
Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to a Loan Party, the making of the corresponding loan or advance
shall have been permitted as an Investment pursuant to Section 6.06; provided, further, all such Indebtedness of
any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party
on terms that are reasonably acceptable to the Administrative Agent;
(c) Indebtedness
of any Joint Venture or Indebtedness of the Borrower or any Restricted Subsidiary incurred on behalf of any Joint Venture or any Guarantees
by the Borrower or any Restricted Subsidiary of Indebtedness of any Joint Venture in an aggregate outstanding principal amount for all
such Indebtedness not to exceed at any time the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the
most recently ended Test Period;
(d) Indebtedness
arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out
or similar obligations), or payment obligations in respect of any non-compete, consulting or similar arrangements, in each case incurred
in connection with any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder or consummated prior to
the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties, letters of credit, bank guaranties,
surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant
to any such agreement;
(e) Indebtedness
of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations (including health, safety and environmental
obligations), bids, leases, governmental contracts, trade contracts, surety, indemnity, stay, customs, judgment, appeal, performance,
completion and/or return of money bonds or guaranties or other similar obligations incurred in the ordinary course of business and (ii)
in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing
items;
(f) Indebtedness of the
Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, debit cards, purchasing cards,
treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including
depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services, including
Indebtedness arising from the financing by a bank or other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business), employee credit card programs, cash pooling services, foreign
exchange and currency management services and any arrangements or services similar to any of the foregoing and/or otherwise in
connection with Cash management and Deposit Accounts, including Banking Services Obligations and incentive, supplier finance or
similar programs;
(g) (i)
Guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers, franchisees, licensees, sublicensees
and cross-licensees in the ordinary course of business, (ii) Indebtedness (A) incurred in the ordinary course of business in respect of
obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of property or services or progress payments
in connection with such property and services or (B) consisting of obligations under deferred purchase price or other similar arrangements
incurred in connection with Permitted Acquisitions or any other Investment expressly permitted hereunder and (iii) Indebtedness in respect
of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts
or similar facilities entered into in the ordinary course of business;
(h) Guarantees
(including any co-issuance) by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower and/or
any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other
obligations not prohibited by this Agreement; provided that in the case of any such Guarantee by any Loan Party of the obligations
of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness
of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing (or anticipated), on the Closing Date and,
with respect to any such item of Indebtedness in an aggregate committed or principal amount in excess of $250,000, described on Schedule
6.01;
(j) Indebtedness of Restricted
Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not
exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness
of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements
entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any
Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply
arrangements in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with
customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the
Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness (including mortgage
financing, industrial revenue bond, industrial development bond or similar financings) or to finance the construction, purchase,
repair, replacement or improvement of any fixed or capital asset, in an aggregate outstanding principal amount not to exceed the
greater of $65,000,000 and 49% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (excluding,
for the avoidance of doubt, the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Sale/Leaseback
Transaction and iStar Exchanges);
(n) Indebtedness
of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or other Investment permitted
hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary
or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof and (ii) either (A)
the Borrower is in compliance with the applicable ratio set forth in clause (e) of the definition of Incremental Cap based on whether
such Indebtedness is secured by a pari passu lien on the Collateral or a junior Lien on the Collateral or is unsecured or secured
by Liens on assets not constituting Collateral (and for such purpose, such Indebtedness shall be deemed to have been incurred to finance
an acquisition or other Investment permitted hereunder), calculated on a Pro Forma Basis as of the last day of the most recently ended
Test Period or (B) the aggregate outstanding principal amount of such Indebtedness does not exceed the greater of $15,000,000 and 11%
of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o) Indebtedness
consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any Permitted
Payee to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) the Borrower and its
Restricted Subsidiaries may become and remain liable for any Indebtedness extending, refinancing, refunding or replacing any
Indebtedness permitted under clauses (a), (c), (i), (j), (m), (n), (r), (u), (v), (w), (y), (z),
(dd), (gg), (ll) and (mm) of this Section 6.01 (in any case, including any extending,
refinancing, refunding or replacing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any
subsequent Refinancing Indebtedness in respect thereof; provided that (i) the principal amount of such Refinancing
Indebtedness does not exceed the principal amount of the Indebtedness being extended, refinanced, refunded or replaced, except by
(A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting
discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield
payments) incurred in connection with the relevant extension, refinancing, refunding or replacement, (B) an amount equal to any
existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01
(provided that (1) any additional Indebtedness referred to in this clause (C) satisfies the other applicable requirements of
this Section 6.01(p) (with additional amounts incurred in reliance on this clause (C) constituting a utilization of
the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is
secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02), (ii) in the case of
Refinancing Indebtedness with respect to clauses (a) and (z) (other than (x) customary bridge loans with a maturity
date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or
otherwise replace such bridge loans shall be subject to the requirements of this clause (ii) and (y) Refinancing Indebtedness
having an aggregate principal amount outstanding not exceeding $20,000,000 (as selected by the Borrower)), such Refinancing
Indebtedness has (A) a final maturity on or later than (and, in the case of revolving Indebtedness, does not require mandatory
commitment reductions, if any, prior to) the earlier of (x) the Latest Term Loan Maturity Date at the time of the incurrence of such
Refinancing Indebtedness and (y) the final maturity of the Indebtedness being extended, refinanced, refunded or replaced and (B)
other than with respect to revolving Indebtedness, a Weighted Average Life to Maturity equal to or greater than (x) the Weighted
Average Life to Maturity of the Indebtedness being extended, refinanced, refunded or replaced or (y) the Weighted Average Life to
Maturity of the outstanding Term Loans at the time of the incurrence of such Refinancing Indebtedness, (iii) with respect to any
Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount, the terms thereof (excluding pricing,
fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect to
Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security) are not, taken as a
whole (as determined by the Borrower in good faith), more favorable to the lenders providing such Indebtedness than those applicable
to the Indebtedness being extended, refinanced, refunded or replaced (other than any covenants or any other terms or provisions (X)
applicable only to periods after the Latest Maturity Date at the time of the incurrence of such Refinancing Indebtedness, (Y) that
are then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining
of a commitment with respect thereto)) for the applicable type of Indebtedness or (Z) solely in the case of Refinancing Indebtedness
in respect of Indebtedness incurred in reliance on clauses (a) and/or (z) of this Section 6.01, terms or other
provisions which are conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative
Agent, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)), (iv) the incurrence
thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause of this Section 6.01
pursuant to which the Indebtedness being extended, refinanced, refunded or replaced was incurred (i.e., the incurrence of such
Refinancing Indebtedness shall not create availability under such relevant clause), (v) except in the case of Refinancing
Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such
Indebtedness, if secured, is secured only by Permitted Liens at the time of such extension, refinancing, refunding or replacement
(it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), (B) such Indebtedness is incurred by
the obligor or obligors in respect of the Indebtedness being extended, refinanced, refunded or replaced, except to the extent
otherwise permitted pursuant to Section 6.01 (it being understood that Holdings may not be the primary obligor of the
applicable Refinancing Indebtedness if Holdings was not the primary obligor on the relevant refinanced Indebtedness) and (C) if the
Indebtedness being extended, refinanced, refunded or replaced was contractually subordinated to the Obligations in right of payment
(or the Liens securing such Indebtedness were contractually subordinated to such Liens on the Collateral securing the Secured
Obligations), such Indebtedness is contractually subordinated to the Obligations in right of payment (or the Liens securing such
Indebtedness are subordinated to the Liens on the relevant Collateral securing the Secured Obligations) either (x) on terms not
materially less favorable, taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable)
being extended, refinanced, refunded or replaced, taken as a whole or (y) pursuant to an Acceptable Intercreditor Agreement, (vi)
except in the case of Refinancing Indebtedness with respect to clause (a) of this Section 6.01, as of the date of the
incurrence of such Indebtedness and after giving effect thereto, no payment or bankruptcy (with respect to the Borrower) Event of
Default exists and (vii) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause
(a) of this Section 6.01, (A) such Refinancing Indebtedness is pari passu or junior in right of payment and
secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is
unsecured; provided that any such Refinancing Indebtedness that is pari passu or junior with respect to the Collateral
shall be subject to an Acceptable Intercreditor Agreement, (B) if such Refinancing Indebtedness is secured, it is not secured by any
assets other than the Collateral, (C) if such Refinancing Indebtedness is Guaranteed, it shall not be Guaranteed by any Person other
than a Loan Party and (D) such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement,
it being understood and agreed that any such Refinancing Indebtedness may participate (x) in any voluntary prepayment of Term Loans
as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayment of Term Loans as set forth in Section
2.11(b)(vi);
(q) endorsement
of instruments or other payment items for collection or deposit in the ordinary course of business;
(r) Indebtedness
in respect of any Additional Letter of Credit Facility in an aggregate principal or face amount at any time outstanding not to exceed
the greater of $40,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(s) Indebtedness
of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) [reserved];
(u) Indebtedness
of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the greater of $60,000,000
and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v) Indebtedness
of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 100% of the amount of any
capital contributions or other proceeds received by the Borrower or any Restricted Subsidiary (i) from the issuance or sale of its Qualified
Capital Stock or (ii) in the form of any cash contribution, plus the fair market value, as determined by the Borrower in good faith,
of Cash Equivalents, marketable securities or other property received by the Borrower or any Restricted Subsidiary from the issuance and
sale by it or any Parent Company of its or such Parent Company’s Qualified Capital Stock or a contribution to the Qualified Capital
Stock of any Parent Company, Holdings, the Borrower or any Restricted Subsidiary (including through consolidation, amalgamation or merger),
in each case after the Closing Date, and in each case other than (A) any proceeds received from the sale of Capital Stock to, or contributions
from, the Borrower or any of its Restricted Subsidiaries, (B) to the extent the relevant proceeds have otherwise been applied to make
Investments, Restricted Payments or Restricted Debt Payments hereunder and (C) Cure Amounts and/or any Available Excluded Contribution
Amount;
(w) Indebtedness
arising under a Qualified Receivables Facility in an aggregate principal amount not to exceed the greater of $20,000,000 and 15% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period;
(x) Indebtedness of the
Borrower and/or any Restricted Subsidiary incurred in respect of (i) any Second Lien Facility and any “Incremental
Loans” and “Incremental Equivalent Debt” (each as defined in the Second Lien Credit Agreement or any equivalent
term under any Second Lien Facility) in an aggregate outstanding principal amount that does not exceed $137,500,000 plus the
aggregate outstanding principal amount of such “Incremental Loans” or “Incremental Equivalent Debt” so long
as the sum of the aggregate outstanding principal amount of any such “Incremental Loans” or “Incremental
Equivalent Debt” does not exceed the “Incremental Cap” (as applicable, and each as defined in the Second Lien
Credit Agreement as in effect on the Closing Date, including after giving effect to Sections 1.04(d) and 1.04(e)
thereof) and (ii) any refinancing, refunding or replacing of any Second Lien Facility or any such “Incremental Loans” or
“Incremental Equivalent Debt” after the Closing Date so long as (A) the aggregate outstanding principal amount of such
Indebtedness does not exceed an amount permitted to be incurred under the preceding clause (i), plus (1) an amount
equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon, (2) the amount of any underwriting
discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield
payments) incurred in connection with the relevant refinancing, (3) an amount equal to any existing commitments unutilized
thereunder and (4) any additional amounts permitted to be incurred pursuant to this Section 6.01 (with additional amounts
incurred in reliance on this clause (4) constituting a utilization of the relevant basket or exception pursuant to which such
additional amount is permitted), (B) such Indebtedness, if secured, is secured only by Liens permitted under Section 6.02(t),
(C) except with respect to revolving Indebtedness, the Weighted Average Life to Maturity of such Indebtedness is equal to or greater
than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced in reliance on this Section 6.01(x) at the
time of such refinancing (without giving effect to any prepayment thereof), (D) the final maturity date of such Indebtedness is
equal to or later than the final maturity date of the Indebtedness being refinanced in reliance on this Section 6.01(x) and (E) no
such Indebtedness is (1) guaranteed by any Person which is not a Loan Party or (2) secured by any assets other than the
Collateral;
(y) Indebtedness
of the Borrower and/or any Restricted Subsidiary incurred in connection with Sale and Lease-Back Transactions permitted pursuant to Section
6.08;
(z) Incremental
Equivalent Debt; provided that the aggregate principal amount of Incremental Equivalent Debt incurred by Restricted Subsidiaries
that are not Loan Parties shall not exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the
most recently ended Test Period;
(aa) Indebtedness
(including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect
to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers’ compensation claims (or reimbursement
type obligations regarding workers’ compensation claims), unemployment insurance (including premiums related thereto), other types
of social security, pension obligations, vacation pay, health, disability or other employee benefits or property, casualty or liability
insurance or self-insurance;
(bb) Indebtedness of the Borrower
and/or any Restricted Subsidiary representing (i) deferred compensation to current and former directors, officers, employees,
members of management, managers and consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary in the ordinary
course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted
Acquisition or any other Investment permitted hereby;
(cc) Indebtedness
of the Borrower and/or any Restricted Subsidiary in respect of any letter of credit or bank guarantee issued in favor of any issuing bank
or swingline lender to support any defaulting lender’s participation in letters of credit issued, or swingline loans made, hereunder
or under any Additional Letter of Credit Facility;
(dd) Indebtedness
of the Borrower or any Restricted Subsidiary supported by any Letter of Credit issued hereunder or under any Additional Letter of Credit
Facility or any other letters of credit or bank guarantees permitted hereunder;
(ee) unfunded
pension fund and other employee benefit plan obligations and liabilities incurred by the Borrower and/or any Restricted Subsidiary in
the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under Section
7.01(i);
(ff) without
duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind interest),
accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Borrower and/or any
Restricted Subsidiary hereunder;
(gg) (i) to the extent constituting
Indebtedness, obligations under the Acquisition Agreement and (ii) any Indebtedness permitted to remain outstanding after the Closing
Date pursuant to the Acquisition Agreement (excluding any Indebtedness required to be refinanced pursuant to the Refinancing);
(hh) customer deposits
and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course
of business;
(ii) [reserved];
(jj) (i) Indebtedness
in connection with bankers’ acceptances, discounted bills of exchange or the discounting or factoring of receivables for credit
management purposes, in each case incurred or undertaken in the ordinary course of business on arm’s-length commercial terms and
(ii) the incurrence of Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights or the settlement of
any claims or actions (whether actual, contingent or potential) with respect to the Transactions or any other acquisition (by merger,
consolidation or amalgamation or otherwise) in accordance with the terms hereof;
(kk) obligations
in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any subsidiary of the
Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions
other than within the United States;
(ll) Indebtedness
in an aggregate principal amount outstanding at any time not to exceed the Available RP Capacity Amount;
(mm) Indebtedness
in respect of any Excluded Property Transaction or any transactions under any iStar Sale/Leaseback Documents; and
(nn) Guarantee obligations
incurred in the ordinary course of business under repurchase agreements in connection with the financing of Bowling Equipment sales.
For the avoidance
of doubt, the accrual of interest, the accretion of accreted value, the accretion or amortization of original issue discount, the payment
of interest in the form of additional Indebtedness and increases in the amount of Indebtedness outstanding solely as a result of fluctuations
in the exchange rate of currencies shall be deemed to be permitted Indebtedness for purposes of this Section.
Section 6.02.
Liens. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, create, incur, assume or permit or suffer
to exist any Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any income or
profits therefrom, except:
(a) Liens
created pursuant to the Loan Documents securing the Secured Obligations (including Cash collateralization of Letters of Credit as set
forth in Section 2.05);
(b) Liens
for Taxes or other governmental charges which are not overdue for a period of more than 45 days or, if more than 45 days overdue (i) are
being contested in accordance with Section 5.03 or (ii) with respect to which the failure to make payment would not reasonably
be expected to have a Material Adverse Effect;
(c) statutory or common
law Liens (and rights of set-off) of landlords, sub landlords, construction contractors, banks, carriers, warehousemen, mechanics,
repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements of Law, in each case incurred in the ordinary
course of business (i) for amounts not yet overdue by more than 45 days, (ii) for amounts that are overdue by more than 45 days (A)
that are being contested in good faith by appropriate proceedings, so long as any reserves or other appropriate provisions required
by GAAP have been made for any such contested amounts or (B) with respect to which no filing or other action has been taken to
enforce such Lien or (iii) with respect to which the failure to make payment would not reasonably be expected to have a Material
Adverse Effect;
(d) Liens
incurred (i) in the ordinary course of business in connection with workers’ compensation, unemployment insurance, health, disability
or employee benefits and other types of social security laws and regulations, (ii) in the ordinary course of business to secure the performance
of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, indemnitees,
performance, completion and return-of-money bonds and other similar obligations (including those to secure health, safety and environmental
obligations) (in each case, exclusive of obligations for the payment of borrowed money), (iii) pursuant to pledges and deposits of Cash
or Cash Equivalents in the ordinary course of business securing (x) any liability for reimbursement, premium or indemnification obligations
of insurance brokers or carriers providing property, casualty, liability or other insurance to Holdings, the Borrower and its subsidiaries
(including deductibles, self-insurance, co-payment, co-insurance and retentions) or (y) leases or licenses of property otherwise permitted
by this Agreement and (iv) to secure obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or
similar instruments posted with respect to the items described in clauses (i) through (iii) above;
(e) Liens
consisting of easements, covenants, conditions, rights-of-way, restrictions, encroachments, servitudes for railways, sewers, drains, gas
and oil and other pipelines, gas and water mains, electric light and power and telecommunication, telephone or telegraph or cable television
conduits, poles, wires and cables and other similar protrusions or encumbrances and other minor defects or irregularities in title, in
each case (x) which do not, in the aggregate, materially interfere with the ordinary conduct of the business of the Borrower and/or its
Restricted Subsidiaries, taken as a whole, or materially interfere with the use of the affected property for its intended purpose or (y)
where the failure to have such title would not reasonably be expected to have a Material Adverse Effect;
(f) Liens
consisting of any (i) interest or title of a lessor, sub-lessor, licensor or sub-licensor under any lease, license or similar arrangement
of real estate or other property (including intellectual property) permitted hereunder, (ii) landlord lien permitted by the terms of any
lease, sub-lease, license, sub-license or similar arrangement, (iii) restriction or encumbrance to which the interest or title of such
lessor, sub-lessor, licensor or sub-licensor may be subject, (iv) subordination of the interest of the lessee, sub-lessee, licensee or
sub-licensee under such lease, sub-lease, license, sub-license or similar arrangement to any restriction or encumbrance referred to in
the preceding clause (iii) or (v) deposit of cash with the owner or lessor of premises leased and operated by the Borrower or any
Restricted Subsidiary in the ordinary course of business to secure the performance of obligations under the terms of the lease for such
premises;
(g) Liens (i) solely on
any Cash (or Cash Equivalent) earnest money deposits (including as part of any escrow arrangement) made by the Borrower and/or any
of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment
permitted hereunder (or to secure letters of credit, bank guarantees or similar instruments posted in respect thereof), (ii) on
advances of Cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Sections
6.06(b), (e), (f), (p), (q), (r), (u), (x), (y) or (dd) to be applied against the purchase price for such Investment or
(iii) consisting of (A) an agreement to Dispose of any property in a Disposition permitted under Section 6.07 and/or (B) the
pledge of Cash or Cash Equivalents as part of an escrow or similar arrangement required in any Disposition permitted under Section
6.07;
(h)
precautionary or purported Liens evidenced by the filing of UCC financing statements or similar financing statements under
applicable Requirements of Law relating solely to (i) operating leases or consignment or bailee arrangements entered into in the
ordinary course of business, (ii) the sale of accounts receivable in the ordinary course of business for which a UCC financing
statement or similar financing statement under applicable Requirements of Law is required and/or (iii) the sale of Receivables
Facility Assets and related assets in connection with any Qualified Receivables Facility;
(i) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation
of goods;
(j) Liens
in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority to
control or regulate the use of any dimensions of real property or any structure thereon, including Liens in connection with any condemnation
or eminent domain proceeding or compulsory purchase order;
(k) Liens
securing Indebtedness permitted pursuant to Section 6.01(p) (solely with respect to the permitted extension, refinancing, refunding
or replacement of Indebtedness permitted pursuant to Sections 6.01(a), (c), (i), (j), (m), (n),
(r), (u), (v), (w), (y), (z) and (gg)); provided that (i) no such Lien extends to any
asset not covered by the Lien securing the Indebtedness that is being refinanced other than (A) after-acquired property that is affixed
or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.01 and (B) proceeds
and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood that such extensions,
refinancings, refundings or replacements of individual financings of the type permitted under Section 6.01(m) provided by any lender
may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) if the Indebtedness being
refinanced was subject to intercreditor arrangements in respect of Liens on Collateral, then any refinancing Indebtedness in respect thereof
secured by Liens on Collateral shall be subject to intercreditor arrangements not materially less favorable to the Secured Parties, taken
as a whole, than the intercreditor arrangements governing the Indebtedness that is refinanced or the intercreditor arrangements governing
the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l) Liens
existing on, or contractually committed or contemplated as of, the Closing Date and, with respect to each such Lien securing Indebtedness
in an aggregate committed or principal amount in excess of $250,000, described on Schedule 6.02 and any modification, replacement,
refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired
property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section
6.01 and (B) proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood
that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other
financings of such type provided by such lender or its affiliates) and (ii) any such modification, replacement, refinancing, renewal or
extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 6.01;
(m) Liens arising out of Sale
and Lease-Back Transactions permitted under Section 6.08;
(n) Liens
securing Indebtedness permitted pursuant to Section 6.01(m); provided that any such Lien shall encumber only the asset acquired,
constructed, repaired, replaced or improved with the proceeds of such Indebtedness and proceeds and products thereof, replacements, accessions
or additions thereto and improvements thereon and customary security deposits with respect thereto (it being understood that individual
financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other financings of
such type provided by such lender or its affiliates);
(o) Liens securing
Indebtedness permitted pursuant to Section 6.01(n) on the relevant acquired assets or on the Capital Stock and assets of the
relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other
than the proceeds or products thereof, replacements, accessions or additions thereto and improvements thereon, it being understood
that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to
other financings of such type provided by such lender or its affiliates) or (y) was created in contemplation of the applicable
acquisition of assets or Capital Stock;
(p) (i) Liens that are
contractual rights of set-off or netting relating to (A) the establishment of depositary relations with banks or other financial
institutions not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of the Borrower
and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of
business of the Borrower and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of
the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (D) commodity trading or other brokerage
accounts incurred in the ordinary course of business, (ii) Liens encumbering reasonable customary initial deposits and margin
deposits, (iii) bankers Liens and rights and remedies as to Deposit Accounts or similar accounts, (iv) Liens of a collection bank
arising under Section 4-208 or Section 4-210 of the UCC on items in the ordinary course of business, (v) Liens (including rights of
set-off) in favor of banking or other financial institutions arising as a matter of Law or under customary general terms and
conditions encumbering deposits or other funds maintained with a financial institution and that are within the general parameters
customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions and (vi)
Liens on the proceeds of any Indebtedness permitted hereunder incurred in connection with any transaction permitted hereunder, which
proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such
proceeds to finance such transaction or on Cash or Cash Equivalents set aside at the time of the incurrence of such Indebtedness to
the extent such Cash or Cash Equivalents prefund the payment of interest or fees on such Indebtedness and are held in escrow pending
application for such purpose;
(q) Liens
on assets and Capital Stock of Restricted Subsidiaries that are not Loan Parties (including Capital Stock owned by such Persons) securing
Indebtedness or other obligations of Restricted Subsidiaries that are not Loan Parties permitted pursuant to Section 6.01 (or not
prohibited under this Agreement);
(r) Liens
securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar
agreements entered into in the ordinary course of business of the Borrower and/or its Restricted Subsidiaries;
(s) Liens disclosed in any
Mortgage Policy delivered pursuant to Section 5.12 with respect to any Material Real Estate Asset, provided such Liens do
not, in the aggregate, materially interfere with the use of such Material Real Estate Asset, and any replacement, extension or
renewal of any such Lien; provided that no such replacement, extension or renewal Lien shall cover any property other than
the property that was subject to such Lien prior to such replacement, extension or renewal (and additions thereto, improvements
thereon and the proceeds thereof);
(t) Liens
securing Indebtedness incurred pursuant to Sections 6.01(x) and (z); provided that, if any such Lien is on Collateral,
the holders of such Indebtedness (or a representative thereof) shall be party to an Acceptable Intercreditor Agreement;
(u) other
Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed the
greater of $60,000,000 and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v) (i)
Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating
to litigation being contested in good faith not constituting an Event of Default under Section 7.01(h) and (ii) any cash deposits
securing any settlement of litigation;
(w) (i) leases, licenses, subleases,
sublicenses or cross-licenses granted to others, (ii) assignments of IP Rights granted to a customer of the Borrower or any
Restricted Subsidiary in the ordinary course of business which do not secure any Indebtedness or (iii) the rights reserved or vested
in any Person (including any Governmental Authority) by the terms of any lease, license, franchise, grant or permit held by the
Borrower or any of the Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant
or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(x) Liens
on Securities or other assets that are the subject of repurchase agreements constituting Investments permitted under Section 6.06
arising out of such repurchase transaction;
(y) Liens
securing obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted
under Sections 6.01(d), (e), (g), (aa) and (cc);
(z) Liens
arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any assets or property and bailee
arrangements in the ordinary course of business and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC
(or any similar Requirement of Law of any jurisdiction);
(aa) Liens (i)
in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in
the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 6.01 or Section
6.09;
(bb) Liens on
insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(cc) Liens on specific
items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of documentary
letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment
or storage of such inventory or goods;
(dd) Liens securing (i)
obligations under Hedge Agreements in connection with any Derivative Transaction of the type described in Section 6.01(s),
(ii) obligations of the type described in Section 6.01(f) and/or (iii) obligations of the type described in Section 6.01(r),
which Liens (A) in each case under this Section 6.02(dd), may be (but are not required to be) secured by all of the
Collateral so long as the Lien on the Collateral is subject to an Acceptable Intercreditor Agreement and (B) in the case of clause
(iii) (to the extent not secured as provided in clause (A)), may consist of pledges of Cash collateral in an amount not
to exceed the greater of $15,000,000 and 11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period;
(ee) (i) Liens
on Capital Stock of Joint Ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons and
(ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries;
(ff) Liens on
cash or Cash Equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
(gg) Liens permitted
to remain outstanding following the Closing Date pursuant to the terms of the Acquisition Agreement (including liens on cash or Cash Equivalents
backstopping any letters of credit existing on the Closing Date) and any replacements, refinancings or renewals thereof, so long as no
such replacement, refinancings or renewal thereof increases the amount of such Lien except as otherwise permitted by this Section 6.02;
(hh) Liens on assets
not constituting Collateral (x) securing obligations in an aggregate outstanding principal amount not to exceed the greater of $25,000,000
and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period or (y) so long as the Obligations in
respect of the Credit Facilities are secured on a ratable basis (without regard to the control of remedies) with or prior to the obligations
so secured for so long as such obligations are so secured (which Liens, in the case of this clause (y), shall be subject to an Acceptable
Intercreditor Agreement);
(ii) Liens on Receivables
Facility Assets incurred in connection with a Receivables
Facility;
(jj) undetermined
or inchoate Liens, rights of distress and charges incidental to current operations that have not at such time been filed or exercised,
or which relate to obligations not due or payable or if due, the validity of such Liens are being contested in good faith by appropriate
actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with
GAAP;
(kk) with respect
to any Foreign Subsidiary, Liens and privileges arising mandatorily by any Requirement of Law; provided such Liens and privileges extend
only to the assets or Capital Stock of such Foreign Subsidiary;
(ll) ground leases
or subleases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries are
located;
(mm) Liens that
are customary in the business of the Borrower and its Restricted Subsidiaries and that do not secure debt for borrowed money;
(nn) security
given to a public or private utility or any Governmental Authority as required in the ordinary course of business;
(oo) receipt
of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on the related
inventory and proceeds;
(pp) Liens arising
pursuant to Section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act or similar provision of any applicable
law;
(qq) Liens in the
nature of the right of setoff in favor of counterparties to contractual agreements with the Borrower or any Restricted Subsidiary in the
ordinary course of business;
(rr) Liens granted
pursuant to a security agreement between the Borrower or any Restricted Subsidiary and a licensee of IP Rights to secure the damages,
if any, incurred by such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization or similar
proceeding with respect to the Borrower or such Restricted Subsidiary;
(ss) Liens arising
solely in connection with rights of dissenting equity holders pursuant to any Requirement of Law in respect of the Transactions, any Permitted
Acquisition or other similar Investment;
(tt) Liens arising
under the iStar Sale/Leaseback Documents, the iStar Sale/Leaseback 2014 Documents, the iStar Exchange Documents or the Excluded Property
Transaction Documents, including options, whether or not then exercisable, to purchase Bowling Equipment of the Borrower and/or one or
more of its Subsidiaries, and letters of credit to secure the obligations of the Borrower or any applicable Restricted Subsidiary thereunder;
(uu) Liens on
(x) any Excluded Property or (y) any other real property acquired after the Closing Date and not subject (or required to be subject) to
a Mortgage, provided that the aggregate amount of the obligations secured at any one time by such Liens pursuant to this clause (y) does
not exceed $50,000,000; and
(vv) Liens deemed
to exist in connection with repurchase obligations permitted to be incurred pursuant to Section 6.01(nn).
Section 6.03.
No Further Negative Pledges. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries that are Loan Parties
to, enter into any agreement prohibiting in any material respect the creation or assumption of any Lien upon any of its properties (other
than Excluded Assets), whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to the Obligations,
except with respect to:
(a) restrictions
relating to any asset (or all of the assets) of and/or the Capital Stock of the Borrower and/or any Restricted Subsidiary which are imposed
pursuant to an agreement entered into in connection with any Disposition or other transfer, lease or license of such asset (or assets)
and/or all or a portion of the Capital Stock of the relevant Person that is permitted by this Agreement;
(b) restrictions
contained in the Loan Documents, any then extant Second Lien Facility, any Incremental Equivalent Debt, any Receivables Facility (limited
to the assets securing the Indebtedness arising thereunder) or any Additional Letter of Credit Facility (limited to the assets securing
the Indebtedness arising thereunder) (and clause (p) of Section 6.01 to the extent relating to any extension, refinancing, refunding or
replacement of any of the foregoing);
(c) restrictions contained
in any documentation governing any other Indebtedness permitted by Section 6.01 to the extent such restrictions (1)(x) are,
taken as a whole, in the good-faith judgment of the Borrower, not materially more restrictive as concerning the Borrower or any
Restricted Subsidiary than customary market terms for Indebtedness of such type or (y) are not materially more restrictive, taken as
a whole, than the restrictions contained in this Agreement (as determined by the Borrower in good faith) and (2) will not materially
impair the Borrower’s obligation or ability to make any payments required hereunder (as determined by the Borrower in good
faith);
(d) restrictions
by reason of customary provisions restricting assignments, subletting or other transfers (including the granting of any Lien) contained
in leases, subleases, licenses, sublicenses, asset sale agreements and other agreements entered into in the ordinary course of business
(provided that such restrictions are limited to the relevant leases, subleases, licenses, sublicenses, asset sale or other agreements
and/or the property or assets secured by such Liens or the property or assets subject to such leases, subleases, licenses, sublicenses,
asset sale or other agreements, as the case may be);
(e) Permitted
Liens and restrictions in the agreements relating thereto that limit the right of the Borrower or any of its Restricted Subsidiaries to
Dispose of or encumber the assets subject to such Liens;
(f) provisions
limiting the Disposition, distribution or encumbrance of assets or property in joint venture agreements, sale and lease-back agreements,
stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements
(or the Persons the Capital Stock of which is the subject of such agreement (or any “shell company” parent with respect thereto));
(g) any
encumbrance or restriction assumed in connection with an acquisition of the property or Capital Stock of any Person, so long as such encumbrance
or restriction relates solely to the Person and its subsidiaries (including the Capital Stock of the relevant Person or Persons) and/or
property so acquired (or to the Person or Persons (and its or their subsidiaries) bound thereby) and was not created solely in connection
with or in anticipation of such acquisition;
(h) restrictions
imposed by customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture
agreements and other similar agreements that restrict the transfer of the assets of, or ownership interests in, the relevant partnership,
limited liability company, joint venture or any similar Person (or any “shell company” parent with respect thereto);
(i) restrictions
on Cash or other deposits permitted under Section 6.02 and/or 6.06 and any net worth requirements, including such restrictions
or requirements imposed by Persons under contracts entered into in the ordinary course of business or for whose benefit such Cash or other
deposits or net worth requirements exist;
(j) restrictions
(i) set forth in documents which exist on the Closing Date or (ii) which are contemplated as of the Closing Date and, in the case of this
clause (ii), as set forth on Schedule 6.03;
(k) restrictions
contained in documents governing Indebtedness of any Restricted Subsidiary that is not a Loan Party permitted hereunder;
(l) [reserved];
(m) provisions restricting
the granting of a security interest in IP Rights contained in licenses, sublicenses or cross-licenses by the Borrower and its
Restricted Subsidiaries of such IP Rights, which licenses, sublicenses and cross-licenses were entered into in the ordinary course
of business (in which case such restriction shall relate only to such IP Rights);
(n) restrictions
arising under or as a result of applicable Requirements of Law or the terms of any license, authorization, concession or permit issued
or granted by a Governmental Authority;
(o) restrictions
with respect to a Restricted Subsidiary that was previously an Unrestricted Subsidiary, pursuant to or by reason of an agreement that
such Restricted Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided
that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such restriction
does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such
Subsidiary;
(p) customary
restrictions imposed in connection with any Receivables Facility or similar transaction permitted hereunder;
(q) restrictions
contained in the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents as in effect on the date of this Agreement,
and restrictions contained in any iStar Exchange Documents or Excluded Property Transaction Documents; and
(r) other
restrictions or encumbrances imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing of the contracts, instruments or obligations referred to in clauses (a) through (q) above; provided
that no such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good
faith judgment of the Borrower, more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than those
in effect prior to the relevant amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Section 6.04. Restricted Payments; Certain Payments
of Indebtedness.
(a) The
Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the
Borrower may make Restricted Payments to the extent necessary to permit any Parent Company:
(A) to
pay general operating and compliance costs and expenses (including corporate overhead, legal or similar expenses and customary salary,
bonus and other benefits payable to directors, officers, employees, members of management, managers and/or consultants of any Parent Company),
in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary
indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company, in
each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance of doubt,
the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other
than the Borrower and/or its subsidiaries), the Borrower and/or its subsidiaries;
(B) to
pay franchise, excise and similar Taxes, and other fees, Taxes and expenses, required to maintain the organizational existence of such
Parent Company;
(C) to
pay customary salary, bonus, long-term incentive, severance and other benefits (including payment to certain service providers of the
Borrower or its Subsidiaries pursuant to any equity plan (whether in the form of options, cash settled options or otherwise)) payable
to Permitted Payees, as well as applicable employment, social security or similar taxes in connection therewith, to the extent such salary,
bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Borrower and/or its subsidiaries,
in each case, so long as such Parent Company applies the amount of any such Restricted Payment for such purpose;
(D) to
pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but excluding,
for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary of
any Parent Company other than the Borrower and/or its subsidiaries), the Borrower and its subsidiaries;
(E) for
the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion
of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Borrower
and/or its subsidiaries), the Borrower and its subsidiaries;
(F) to
pay (x) fees and expenses related to any debt and/or equity offerings (including refinancings), investments and/or acquisitions permitted
or not restricted by this Agreement (whether or not consummated, and including advisory, refinancing, subsequent transaction and exit
fees of any Parent Company of the Borrower) and expenses and indemnities of any trustee, agent, arranger, underwriter or similar role
and (y) after the consummation of an initial public offering or the issuance of debt securities, Public Company Costs; and
(G) to
finance any Investment permitted under Section 6.06 as if such Parent Company were subject to Section 6.06
(provided that (x) any Restricted Payment under this clause (a)(i)(G) shall be made substantially concurrently with
the closing or consummation of such Investment or at future times as may be scheduled at the time of such closing or consummation to
be made thereafter in connection therewith and (y) the relevant Parent Company shall, promptly following the closing or consummation
thereof or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection
therewith, cause (I) all property acquired to be contributed to the Borrower or one or more of its Restricted Subsidiaries or (II)
the merger, consolidation or amalgamation of the Person formed or acquired into the Borrower or one or more of its Restricted
Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if
undertaken as a direct Investment by the Borrower or the relevant Restricted Subsidiary);
(ii) the Borrower may pay (or make
Restricted Payments to allow any Parent Company to pay) for the repurchase, redemption, retirement or other acquisition or
retirement for value of Capital Stock of any Parent Company or any subsidiary held by any Permitted Payee:
(A) in
accordance with the terms of promissory notes issued pursuant to Section 6.01(o), so long as the aggregate amount of all Cash payments
made in respect of such promissory notes, together with the aggregate amount of Restricted Payments made pursuant to sub-clause (D)
of this clause (ii) below, (1) does not exceed the greater of $5,500,000 and 4% of Consolidated Adjusted EBITDA as of the last
day of the most recently ended Test Period (which amount shall, following a Qualifying IPO, increase to the greater of $7,500,000 and
6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period) in any Fiscal Year, which, if not used in
any Fiscal Year, may be carried forward to subsequent Fiscal Years (until so applied)) minus (2) any utilization of the Available RP Capacity
Amount in reliance on unused capacity under clause (D) below; plus
(B) with
the proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock of the Borrower or any Parent
Company (to the extent such proceeds are contributed to the Borrower or any Restricted Subsidiary in respect of Qualified Capital Stock
issued by the Borrower or such Restricted Subsidiary) (other than amounts constituting a Cure Amount or an Available Excluded Contribution
Amount); plus
(C) with the net proceeds of any key-man life
insurance policies; plus
(D) with
Cash and Cash Equivalents in an amount not to exceed, together with the aggregate amount of all cash payments made pursuant to sub-clause
(A) of this clause (ii) in respect of promissory notes issued pursuant to Section 6.01(o), (1) the greater
of $5,500,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (which amount shall, following
a Qualifying IPO, increase to the greater of $7,500,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently
ended Test Period) in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to subsequent Fiscal Years (until
so applied) minus (2) any utilization of the Available RP Capacity Amount in reliance on unused capacity under the immediately preceding
clause (1); plus
(E) with
the amount of any Cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of Capital Stock
of the Borrower or any Parent Company pursuant to any compensation arrangement, including any deferred compensation plan;
(iii) the
Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such
date that the Borrower elects to apply to this clause (iii)(A) plus (B) the portion, if any, of the Available Excluded
Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B) (plus, without duplication
of amounts referred to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets
acquired after the Closing Date, if the acquisition of such property or assets was financed with Available Excluded Contribution
Amounts up to the amount of such Available Excluded Contribution Amount, less any application thereof under Sections
6.04(b)(vi) or 6.06(r));
(iv) the
Borrower may make Restricted Payments (i) to any Parent Company to enable such Parent Company to (A) make Cash payments in lieu of the
issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable
for Capital Stock of such Parent Company, dividends, share splits, reverse share splits (or any combination thereof) and, mergers, consolidations,
amalgamations or other business combinations, and acquisitions and other Investments permitted hereunder and/or (B) honor any conversion
request by a holder of convertible Indebtedness, make any cash payments in lieu of fractional shares in connection with any conversion
and make payments on convertible Indebtedness in accordance with its terms and (ii) consisting of (A) payments made or expected to be
made in respect of withholding or similar Taxes payable by any Permitted Payee and/or (B) repurchases of Capital Stock in consideration
of the payments described in sub clause (A) above, including demand repurchases in connection with the exercise of stock options
and the issuance of restricted stock units or similar stock based awards;
(v) the
Borrower may repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in connection with), or make
Restricted Payments to any Parent Company to enable it to repurchase, redeem, acquire or retire Capital Stock upon (or make provisions
for withholdings in connection with), the exercise of warrants, options or other securities convertible into or exchangeable for Capital
Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants,
options or other securities convertible into or exchangeable for Capital Stock as part of a “cashless” exercise;
(vi) the
Borrower may make Restricted Payments the proceeds of which are applied (i) on the Closing Date, solely to effect the consummation of
the Transactions and on or about the Amendment No. 1 Effective Date, solely to effect the consummation of the Amendment No. 1 Transactions,
(ii) on and after the Closing Date, to satisfy any payment obligations owing, or as otherwise required, under the Acquisition Agreement
(including payment of working capital and/or purchase price adjustments) and to pay Transaction Costs, in each case, with respect to the
Transactions, (iii) to satisfy obligations to direct or indirect holders of Capital Stock of the Borrower (immediately prior to giving
effect to the Transactions) in connection with, or as a result of, any working capital and/or purchase price adjustments, in each case,
with respect to the Transactions and (iv) to satisfy any settlement of claims or actions in connection with the Transactions or to satisfy
indemnity or other similar obligations in connection with the Transactions;
(vii) following
the consummation of the first Qualifying IPO, the Borrower may (or may make Restricted Payments to any Parent Company to enable it to)
make Restricted Payments with respect to any Capital Stock in an amount not to exceed (A) the greater of (x) an amount equal to 6.00%
per annum of the net Cash proceeds received by or contributed to the Borrower from any Qualifying IPO and (y) an amount equal to 6.00%
per annum of the Market Capitalization of the Borrower (or its direct or indirect Parent Company, as applicable) and its subsidiaries
minus (B) any utilization of the Available RP Capacity Amount in reliance on unused capacity under immediately preceding clause
(A);
(viii) the
Borrower may make Restricted Payments to (i) redeem, repurchase, defease, discharge, retire or otherwise acquire any (A) Capital
Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any
Parent Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the
substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the
Borrower or any Parent Company to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted
Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends
on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to the Borrower or a
Restricted Subsidiary) of any Refunding Capital Stock;
(ix) to
the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than
Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Section
6.09(d));
(x) the
Borrower may make additional Restricted Payments in an aggregate amount not to exceed (A) the greater of $20,000,000 and 15% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (B) any utilization of the Available RP Capacity Amount
in reliance on unused capacity under immediately preceding clause (A);
(xi) the
Borrower may pay any dividend or other distribution or consummate any redemption within 60 days after the date of the declaration thereof
or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration or notice, the dividend,
distribution or redemption contemplated by such declaration or redemption notice would have complied with the provisions of this Section
6.04(a);
(xii) the
Borrower may make any Restricted Payment constituting the distribution or payment of Receivables Fees;
(xiii) the
Borrower may make additional Restricted Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total Leverage
Ratio would not exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default hereunder or shall result
therefrom;
(xiv) the
Borrower may make additional Restricted Payments in an amount not to exceed the amount of proceeds received by the Borrower and/or any
Restricted Subsidiary under the Representation and Warranty Insurance Policy during the term of this Agreement;
(xv) (A) for any
taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income tax
group for U.S. federal and/or applicable state or local income tax purposes of which a direct or indirect parent of the Borrower is
the common parent (a “Tax Group”), or for which the Borrower is a disregarded entity for U.S. federal income tax
purposes wholly-owned by a corporate parent (a “Corporate Parent”), the Borrower and each of its Subsidiaries may make
Restricted Payments (including pursuant to any Tax sharing agreement entered into by the Borrower and any of its Subsidiaries and
Comcast Corporation, a Pennsylvania corporation or its Affiliates) the proceeds of which shall be used by such common parent to pay
the portion of any consolidated, combined or similar U.S. federal, state or local income Taxes of such Tax Group, or by the
Corporate Parent to pay the portion of the U.S. federal, state or local income Taxes of such Corporate Parent, or any franchise
taxes imposed in lieu thereof, for such taxable period that are attributable to the income of the Borrower and/or its Subsidiaries,
provided that such amount shall not be greater than the amount of such U.S. federal, state or local income taxes that would be paid
(for such taxable period) by the Borrower and its Subsidiaries if the Borrower and/or such Subsidiaries had been a stand-alone
corporate taxpayer (or stand-alone group of corporate taxpayers filing on a consolidated, combined or similar basis) for all taxable
years ending after the Closing Date (taking into account any net operating loss carryforwards attributable to the Borrower and its
Subsidiaries, as the case may be) and (B) without duplication of Restricted Payments made under Section 6.04(a)(xv)(A), for any
taxable period for which the Borrower is treated as a partnership for U.S. federal and/or applicable state or local income tax
purposes, the Borrower may make Restricted Payments to its equity owners at the times and in the amounts necessary to enable such
owners (and their direct or indirect owners) to pay their Tax obligations attributable to their direct or indirect ownership
interests in the Borrower in an aggregate amount equal to the product of (1) 50% (or such higher tax rate as shall be applicable to
a resident of New York City or California that indirectly owns an interest in the Borrower, taking into account the character of the
taxable income in question and the deductibility of state and local income taxes for U.S. federal income tax purposes) and (2) the
taxable income of the Borrower for such taxable year, less any cumulative taxable losses from prior taxable years to the extent that
such losses are of a character (ordinary or capital) that would permit such losses to be deducted by the direct or indirect owners
of the Borrower against the current taxable income of the Borrower allocable to such owners and have not previously been taken into
account in determining tax distributions;
(xvi) the
Borrower may make additional Restricted Payments constituting any part of a Permitted Reorganization or IPO Reorganization Transaction;
(xvii) the
Borrower may make a distribution, by dividend or otherwise, of the Capital Stock of, or debt owed to any Loan Party or any Restricted
Subsidiary by, any Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries, provided that
such Restricted Subsidiary owns no other material assets other than Capital Stock of one or more Unrestricted Subsidiaries); in each case,
other than Unrestricted Subsidiaries, the primary assets of which are Cash and/or Cash Equivalents; provided that any such Capital
Stock or debt that represents an Investment by the Borrower or any Restricted Subsidiary shall be deemed to continue to charge (as utilization)
the respective clause under Section 6.06 pursuant to which such Investment was made;
(xviii) the
Borrower may make payments and distributions to satisfy dissenters’ rights (including in connection with, or as a result of, the
exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) in respect thereof),
pursuant to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 6.07;
(xix) the
Borrower may make a Restricted Payment in respect of payments made for the benefit of the Borrower or any Restricted Subsidiary to the
extent such payments could have been made by the Borrower or any Restricted Subsidiary because such payments (A) would not otherwise be
Restricted Payments and (B) would be permitted by Section 6.09; and
(xx) the
Borrower may make a Restricted Payment in respect of required withholding or similar non-U.S. Taxes with respect to any Permitted Payee
and any repurchases of Capital Stock in consideration of such payments, including deemed repurchases in connection with the exercise of
stock options or the issuance of restricted stock units or similar stock based awards.
(b) The
Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any prepayment in Cash on or in respect of principal of or
interest on any Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted
Debt Payments”), except:
(i) any
refinancing, purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of any Restricted Debt made by
exchange for, or out of the proceeds of, Refinancing Indebtedness permitted by Section 6.01 and/or any extension, refinancing,
refunding or replacing Indebtedness permitted by Section 6.01(x);
(ii) payments
as part of, or to enable another Person to make, an “applicable high yield discount obligation” catch-up payment;
(iii) payments
of regularly scheduled principal and interest and payments of fees, expenses and indemnification obligations as and when due (other than
payments with respect to Junior Indebtedness that are prohibited by the subordination provisions thereof);
(iv) additional
Restricted Debt Payments in an aggregate amount not to exceed (A)(1) the greater of (x) $25,000,000 and (y) 19% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period minus (2) any utilization of the Available RDP Capacity Amount
in reliance on unused capacity under immediately preceding clause (A)(1) plus (B) the Available RP Capacity Amount;
(v) (A)
Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any Restricted
Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Borrower or any Restricted Subsidiary, (B) Restricted
Debt Payments as a result of the conversion of all or any portion of any Restricted Debt into Qualified Capital Stock of the Borrower
and/or any Restricted Subsidiary or Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest
with respect to any Restricted Debt that is permitted under Section 6.01;
(vi) Restricted
Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects
to apply to this clause (vi)(A) plus (B) the portion, if any, of the Available Excluded Contribution Amount on such date
that the Borrower elects to apply to this clause (vi)(B) (plus, without duplication of amounts previously referred to in
this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing Date, if the
acquisition of such property or assets was financed solely with Available Excluded Contribution Amounts up to the amount of such Available
Excluded Contribution Amount, less any application thereof under Sections 6.04(a)(iii) or 6.06(r));
(vii) additional
Restricted Debt Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total Leverage Ratio would not exceed
4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default under Section 7.01(a) or, with respect
to the Borrower, Sections 7.01(f) or (g) or shall result therefrom;
(viii)
Restricted Debt Payments in respect of Restricted Debt permitted to be assumed pursuant to Section 6.01(n), provided that any
such Restricted Debt Payment shall be deemed an Investment and shall only be permitted to the extent there exists the ability to
make such Investment pursuant to Section 6.06 at such time; and
(ix) Restricted
Debt Payments made on or substantially concurrently with the Amendment No. 1 Effective Date to repay amounts outstanding under the Second
Lien Facility (and related fees and expenses).
Section 6.05. [Reserved].
Section 6.06. Investments.
The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make or own any Investment in any other Person except:
(a) Investments
in assets that are Cash or Cash Equivalents, or investments that were Cash or Cash Equivalents at the time made;
(b) (i)
Investments existing on the Closing Date in any subsidiary and any modification, replacement, renewal or extension thereof so long as
no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted
by this Section 6.06 and (ii) Investments made after the Closing Date among Holdings, the Borrower and/or one or more Restricted
Subsidiaries or in any Person that will, upon such Investment, become a Restricted Subsidiary;
(c) Investments
(i) constituting deposits, prepayments and/or other credits to suppliers or other trade counterparties, (ii) made in connection with obtaining,
maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors, suppliers, licensors
and licensees, in each case, in the ordinary course of business or, in the case of clause (iii), to the extent necessary to maintain
the ordinary course of supplies to the Borrower or any Restricted Subsidiary;
(d)
Investments in (i) any Unrestricted Subsidiary (including any Joint Venture that is an Unrestricted Subsidiary) in an aggregate
outstanding amount not to exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period and (ii) any Similar Business (including any Joint Venture engaged in a Similar Business) in an aggregate
outstanding amount not to exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period; provided that if any Investment pursuant to this clause (d)(ii) is made in any Person that is not a
Restricted Subsidiary at the date of making of such Investment and such Person becomes a Restricted Subsidiary after such date, such
Investment shall thereafter be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been made under
this clause (d);
(e) (i)
Permitted Acquisitions and (ii) Investments in Restricted Subsidiaries that are not Loan Parties in amounts required to permit such Restricted
Subsidiaries to consummate Permitted Acquisitions;
(f) (i) Investments
existing on, or contractually committed to or contemplated as of, the Closing Date and, with respect to any such Investment in
excess of $250,000, described on Schedule 6.06 and (ii) any modification, replacement, renewal or extension of any
Investment described in clause (i) above so long as no such modification, renewal or extension thereof increases the amount
of such Investment except by the terms thereof or as otherwise permitted by this Section 6.06;
(g) Investments
received in lieu of Cash in connection with any Disposition permitted by Section 6.07 or any other disposition of assets not constituting
a Disposition;
(h) loans
or advances to Permitted Payees to the extent permitted by Requirements of Law, in connection with such Person’s purchase of Capital
Stock of any Parent Company, either (i) in an aggregate principal amount not to exceed the greater of $3,000,000 and 2% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period at any one time outstanding, (ii) so long as the proceeds of
such loan or advance are substantially contemporaneously contributed to the Borrower for the purchase of such Capital Stock or (iii) so
long as no Cash or Cash Equivalents are advanced in connection with such loan or advance;
(i) Investments
consisting of rebates and extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business;
(j) Investments consisting
of (or resulting from) Indebtedness permitted under Section 6.01 (including guarantees thereof) (other than Indebtedness permitted
under Sections 6.01(b) and (h)), Permitted Liens, Restricted Payments permitted under Section 6.04 (other than Section
6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers, consolidations, amalgamations, liquidations,
windings up, dissolutions or Dispositions permitted by Section 6.07 (other than Section 6.07(a)(i) (if made in reliance
on subclause (ii)(y) of the proviso thereto), Section 6.07(b) (if made in reliance on clause (ii) of the proviso
thereto), Section 6.07(c)(ii) (if made in reliance on clause (B) therein) and Section 6.07(g));
(k) Investments
in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers,
vendors, suppliers, licensors, sublicensors, licensees and sublicensees;
(l) Investments
(including debt obligations and Capital Stock) received (i) in connection with the bankruptcy, work-out, reorganization or recapitalization
of any Person, (ii) in settlement or compromise of delinquent obligations of, or other disputes with or judgments against, customers,
trade-creditors, suppliers, licensees and other account debtors arising in the ordinary course of business, including pursuant to any
plan of reorganization or similar arrangement upon bankruptcy or insolvency of any customer, trade creditor, supplier or licensee, (iii)
in satisfaction of judgments against other Persons, (iv) as a result of foreclosure with respect to any secured Investment or other transfer
of title with respect to any secured Investment and/or (v) in settlement, compromise or resolution of litigation, arbitration or other
disputes;
(m) loans
and advances of payroll payments or other compensation to present or former employees, directors, members of management, officers, managers
or consultants of any Parent Company (to the extent such payments or other compensation relate to services provided to such Parent Company
(but excluding, for the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership or operations of any
subsidiary of any Parent Company other than the Borrower and/or its subsidiaries)), the Borrower and/or any subsidiary in the ordinary
course of business;
(n) Investments
to the extent that payment therefor is made solely with Capital Stock of any Parent Company or Capital Stock (other than Disqualified
Capital Stock) of the Borrower or any Restricted Subsidiary, in each case, to the extent not resulting in a Change of Control;
(o) (i)
Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or
consolidated or amalgamated with, the Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of an
Investment otherwise permitted by this Section 6.06 to the extent that such Investments were not made in contemplation of or
in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant
acquisition, merger, amalgamation or consolidation and (ii) any modification, replacement, renewal or extension of any Investment
permitted under clause (i) of this Section 6.06(o) so long as no such modification, replacement, renewal or extension
thereof increases the amount of such Investment except as otherwise permitted by this Section 6.06;
(p) Investments
made in connection with the Transactions and any Investments held by the Target or its Restricted Subsidiaries on the Closing Date and
permitted to remain (or not prohibited from remaining) outstanding after the Closing Date pursuant to the terms of the Acquisition Agreement;
(q) Investments
made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate amount at any time outstanding not
to exceed:
(i) the
greater of $50,000,000 and 37% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, plus
(ii) the Available RP Capacity Amount
plus the Available RDP Capacity Amount, plus
(iii) in the event that (A) the
Borrower or any of its Restricted Subsidiaries makes any Investment after the Closing Date in any Person that is not a Restricted
Subsidiary and (B) such Person subsequently becomes a Restricted Subsidiary, an amount equal to 100% of the fair market value of
such Investment as of the date on which such Person becomes a Restricted Subsidiary;
(r) Investments
made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount not to exceed
(i) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (r)(i) plus (ii)
the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (r)(ii)
(plus, without duplication of amounts referred to in this clause (ii), in an amount equal to the Net Proceeds from a Disposition
of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Available Excluded
Contribution Amounts up to the amount of such Available Excluded Contribution Amount, less any application thereof under Sections 6.04(a)(iii)
or 6.04(b)(iv));
(s) (i)
Guarantees of leases or subleases (in each case other than Capital Leases) or of other obligations not constituting Indebtedness, (ii)
Guarantees of the lease obligations of suppliers, customers, franchisees and licensees of the Borrower and/or its Restricted Subsidiaries,
in each case, in the ordinary course of business and (iii) Investments consisting of Guarantees of any supplier’s obligations in
respect of commodity contracts, including Hedge Agreements, solely to the extent such commodities related to the materials or products
to be purchased by the Borrower or any Restricted Subsidiary;
(t) (i) Investments in any
Parent Company in amounts and for purposes for which Restricted Payments to such Parent Company are permitted under Section
6.04(a); provided that any Investment made as provided above in lieu of any such Restricted Payment shall reduce availability
under the applicable Restricted Payment basket under Section 6.04(a) and (ii) Investments consisting of loans and advances to
any Parent Company in connection with the reimbursement of expenses incurred on behalf of the Borrower or any Restricted Subsidiary
in the ordinary course of business;
(u) Investments
made by any Restricted Subsidiary that is not a Loan Party with the proceeds received by such Restricted Subsidiary from an Investment
made by any Loan Party in such Restricted Subsidiary pursuant to this Section 6.06 (other than Investments made pursuant to clause
(ii) of Section 6.06(e));
(v) Investments
in subsidiaries in connection with reorganizations and/or restructurings, including any Permitted Reorganization and/or any IPO Reorganization
Transaction, and/or activities related to tax planning (including Investments in non-Cash or non-Cash Equivalents); provided that, after
giving effect to any such reorganization, restructuring and/or related activity, the security interest of the Administrative Agent in
the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral
immediately prior to such reorganization, restructuring or tax planning activities no longer constituting Collateral) as a result of such
reorganization, restructuring or tax planning activities;
(w) Investments
arising under or in connection with any Derivative Transaction of the type permitted under Section 6.01(s);
(x) Investments
made (i) in Joint Ventures, (ii) in connection with the creation, formation and/or acquisition of any Joint Venture or (iii) in any Restricted
Subsidiary to enable such Restricted Subsidiary to create, form and/or acquire any Joint Venture, in an aggregate outstanding amount under
this clause (x) not to exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period; provided that if any Investment pursuant to this clause (x) is made in any Person that is not a Restricted
Subsidiary at the date of making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall
thereafter be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been made under this clause (x);
(y) Investments
made in joint ventures as required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in joint
venture agreements and similar binding arrangements in effect on the Closing Date or entered into after the Closing Date in the ordinary
course of business;
(z) unfunded
pension fund and other employee benefit plan obligations and liabilities to the extent that they are permitted to remain unfunded under
applicable Requirements of Law;
(aa) Investments
in Holdings, the Borrower and/or any subsidiary in connection with intercompany cash management arrangements and related activities in
the ordinary course of business;
(bb) Investments
made in connection with any nonqualified deferred compensation plan or arrangement for any Permitted Payee;
(cc) any Investment
made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted Subsidiary (but
for the avoidance of doubt, after such subsidiary was designated as an Unrestricted Subsidiary) so long as the relevant Investment was
not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary;
(dd) additional
Investments so long as, as measured at the time provided for in Section 1.04(e), on a Pro Forma Basis, the Total Leverage Ratio
does not exceed 4.25:1.00;
(ee) Investments
consisting of the licensing or contribution of IP Rights pursuant to joint marketing, collaborations or other similar arrangements with
other Persons;
(ff) Investments
in or relating to any Receivables Subsidiary that, in the good faith determination of the Borrower, are necessary or advisable to effect
a Receivables Facility or any repurchases in connection therewith (including Investments of funds held in accounts permitted or required
by the arrangements governing such Receivables Facility or any related Indebtedness);
(gg) the conversion
to Qualified Capital Stock of any Indebtedness owed by the Borrower or any Restricted Subsidiary and permitted by Section 6.01;
(hh) Restricted Subsidiaries
of the Borrower may be established or created if the Borrower and such Restricted Subsidiary comply with the requirements of Section
5.12, if applicable; provided that, in each case, to the extent such new Restricted Subsidiary is created solely for the purpose
of consummating a transaction pursuant to an acquisition or other Investment permitted by this Section 6.06, and such new Restricted
Subsidiary at no time holds any assets or liabilities other than any acquisition or Investment consideration contributed to it contemporaneously
with the closing of such transaction, such new Restricted Subsidiary shall not be required to take the actions set forth in Section 5.12 until
the respective acquisition is consummated (at which time the surviving entity of the respective transaction shall be required to so comply
in accordance with the provisions thereof);
(ii) contributions
in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners, members,
consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a
bankruptcy of the Borrower or any of its Restricted Subsidiaries;
(jj) Investments
by Loan Parties in any Restricted Subsidiary that is not a Loan Party so long as such Investment is part of a series of simultaneous Investments
by the Borrower and the Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the intercompany Investment
being invested in one or more Loan Parties;
(kk) Investments consisting of earnest
money deposits required in connection with purchase agreements or other acquisitions or Investments otherwise permitted under this Section
6.06 and any other pledges or deposits permitted by Section 6.02;
(ll) Term Loans
repurchased by Holdings, the Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance with
this Agreement and, to the extent permitted (or not prohibited) by Section 6.04(b), loans repurchased by the Borrower or a Restricted
Subsidiary pursuant to and subject to immediate cancellation in accordance with the terms of any other Indebtedness;
(mm) Guarantee
obligations of the Borrower or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations issued, made
or incurred for the benefit of any Restricted Subsidiary of the Borrower to the extent required by law or in connection with any statutory
filing or the delivery of audit opinions performed in jurisdictions other than within the United States;
(nn) purchases and acquisitions
of inventory, supplies, materials, services, equipment or similar assets in the ordinary course of business; and
(oo) Investments
pursuant to, in connection with, or made with the proceeds of any Excluded Property Transaction and/or any iStar Exchange.
Section 6.07.
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to,
enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves (or suffer any liquidation
or dissolution), or make any Disposition of assets having a fair market value in excess of $5,000,000, in a single transaction or in a
series of related transactions, and in excess of $10,000,000 in the aggregate for all such transactions in any Fiscal Year, except:
(a) any
Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary; provided
that (i) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (A) the Borrower shall be the continuing
or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation (including any immediate
and successive mergers, consolidations or amalgamations of entities) is not the Borrower (any such Person after giving effect to such
transaction or transactions, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or
existing under the law of the U.S., any state thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume the
Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (3) except as the Administrative Agent
may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and
delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood
and agreed that if the foregoing conditions under clauses (1) through (3) are satisfied, the Successor Borrower will succeed
to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (ii) in the case of any such merger, consolidation
or amalgamation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing or surviving Person
or the continuing or surviving Person shall expressly assume the guarantee obligations of the Subsidiary Guarantor in a manner reasonably
satisfactory to the Administrative Agent or (y) the relevant transaction shall be treated as an Investment and otherwise be made in compliance
with Section 6.06;
(b) Dispositions
(including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided
that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (as determined by
such Person in good faith) or (ii) treated as an Investment and otherwise be made in compliance with Section 6.06 (other than in
reliance on clause (j) thereof);
(c) (i) the liquidation or
dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower, is not materially disadvantageous to the Lenders, and the Borrower or any Restricted Subsidiary
receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any
liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a
Loan Party, such distribution shall be treated as an Investment and shall otherwise be made in compliance with Section 6.06
(other than in reliance on clause (j) thereof); (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the
purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause
(b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the Borrower or any
Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely
affect the value of the Loan Guaranty or the Collateral, taken as a whole;
(d) (x)
Dispositions of inventory or goods held for sale, equipment or other assets in the ordinary course of business (including on an intercompany
basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions
of surplus, obsolete, used or worn out property or other property that, in the good faith judgment of the Borrower, is (A) no longer useful
in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable or not commercially
reasonable to maintain;
(f) Dispositions
of Cash and/or Cash Equivalents or other assets that were Cash and/or Cash Equivalents when the relevant original Investment was made;
(g) Dispositions,
mergers, amalgamations, consolidations or conveyances that constitute (or are made in order to effectuate) Investments permitted pursuant
to Section 6.06 (other than Section 6.06(j)), Permitted Liens, Restricted Payments permitted by Section 6.04(a) (other
than Section 6.04(a)(ix)) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair
market value; provided that with respect to (1) any single Disposition transaction with respect to assets having a fair
market value in excess of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently
ended Test Period or (2) any other Disposition transactions with respect to assets having a fair market value in excess of the
greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, for all
such transactions on an aggregate basis in any Fiscal Year, at least 75% of the consideration for such Disposition, shall consist of
Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (v) the amount of any
Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are
owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on such Person’s
most recent balance sheet (or in the notes thereto), or if the incurrence of such Indebtedness or other liability took place after
the date of such balance sheet, that would have been shown on such balance sheet or in the notes thereto, as determined in good
faith by the Borrower) that are (i) assumed by the transferee of any such assets and for which the Borrower and/or its applicable
Restricted Subsidiary have been validly released by all relevant creditors in writing or (ii) otherwise cancelled or terminated in
connection with such Disposition, (w) the amount of any trade-in value applied to the purchase price of any replacement assets
acquired in connection with such Disposition, (x) any Securities or other obligations or assets received by the Borrower or any
Restricted Subsidiary from such transferee (including earn-outs or similar obligations) that are converted by such Person into Cash
or Cash Equivalents, or by their terms are required to be satisfied for Cash or Cash Equivalents (to the extent of the Cash or Cash
Equivalents received) within 180 days following the closing of the applicable Disposition and (y) any Designated Non-Cash
Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other
Designated Non-Cash Consideration received pursuant to this clause (y) and clause (C)(z) of the proviso to Section
6.08 that is at that time outstanding, not in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of
the last day of the most recently ended Test Period, in each case shall be deemed to be Cash); provided, further, that
the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section
2.11(b)(ii);
(i) to
the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of the relevant Disposition are promptly (or within 180 days) applied to the purchase price of such replacement property;
(j) Dispositions
of Investments in Joint Ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture or similar
parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(k) Dispositions
of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in
connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(l) Dispositions and/or
terminations of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses (including the provision of software
under any open source license), the Dispositions or terminations of which (i) do not materially interfere with the business of the
Borrower and its Restricted Subsidiaries, (ii) relate to closed facilities or the discontinuation of any product line or (iii) are
made in the ordinary course of business;
(m) (i)
any termination of any lease, sublease, license or sub-license in the ordinary course of business (and any related Disposition of improvements
made to leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal property
and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims
(including in tort) in the ordinary course of business;
(n) Dispositions
of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain or condemnation proceedings (including
in lieu thereof or any similar proceeding);
(o) Dispositions
or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property) with respect to facilities
that are temporarily not in use, held for sale or closed;
(p) the Transactions and any Dispositions in connection with the Transactions;
(q) Dispositions
of non-core assets and sales of Real Estate Assets, in each case acquired in any acquisition or other Investment permitted hereunder,
(x) which Disposition or sale is required to obtain the approval of any anti-trust authority or (y) which, within 120 days of the date
of such acquisition or Investment, are designated in writing to the Administrative Agent as being held for sale and not for the continued
operation of the Borrower or any of its Restricted Subsidiaries or any of their respective businesses;
(r) exchanges
or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property
or assets so long as any such exchange or swap is made for fair value (as determined by the Borrower in good faith) for like property
or assets or property, assets or services of greater value or usefulness to the business of the Borrower and its Restricted Subsidiaries
as a whole, as determined in good faith by the Borrower; provided that upon the consummation of any such exchange or swap by any
Loan Party, to the extent the property received does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with
the same priority as the Lien held on the property or assets so exchanged or swapped;
(s) Dispositions
of assets that do not constitute Collateral having a fair market value of not more than, in any Fiscal Year, the greater of $10,000,000
and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(t) (i)
licensing and cross-licensing (including sub-licensing) arrangements involving any technology, intellectual property or IP Rights of the
Borrower or any Restricted Subsidiary in the ordinary course of business, (ii) Dispositions, abandonments, cancellations or lapses of
IP Rights or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the good faith determination
of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical
to maintain in light of its use and (iii) Dispositions of any technology, intellectual property or other IP Rights of the Borrower or
any Restricted Subsidiary involving their customers in the ordinary course of business;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions
of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) Dispositions
of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers,
employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions
made to comply with any order or other directive of any Governmental Authority or any applicable Requirement of Law;
(y) any
merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary
in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) Dispositions
constituting any part of a Permitted Reorganization and/or an IPO Reorganization Transaction;
(aa) any sale
of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(bb) other Dispositions
involving assets having a fair market value of not more than, in any Fiscal Year, the greater of $15,000,000 and 11% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period, which amounts if not used in any Fiscal Year may be carried forward
to the next succeeding Fiscal Year (with such carried over amount deemed first applied in such succeeding Fiscal Year), in any event not
to exceed, in any Fiscal Year, the greater of $30,000,000 and 22% of Consolidated Adjusted EBITDA as of the last day of the most recently
ended Test Period;
(cc) Dispositions contemplated on the Closing Date and
described on Schedule 6.07
hereto;
(dd) Dispositions
or discounts of accounts receivable, or participations therein, or other rights to payment and related assets in connection with any Receivables
Facility;
(ee) the Borrower and the
Restricted Subsidiaries may issue, sell or dispose of Capital Stock to directors, officers, managers or employees for purposes of
(i) satisfying requirements with respect to directors’ qualifying shares and shares issued to foreign nationals, in each case
as required by applicable Requirements of Law and (ii) satisfying applicable Requirements of Law with respect to Liquor License
Subsidiaries;
(ff) the Borrower
and the Restricted Subsidiaries may enter into any netting arrangement of accounts receivable between or among the Borrower and its Restricted
Subsidiaries or among Restricted Subsidiaries of the Borrower made in the ordinary course of business;
(gg) [reserved];
(hh) any merger,
consolidation, liquidation, wind-up or dissolution by one or more Restricted Subsidiaries in order to effectuate an iStar Exchange, Excluded
Property Transaction or any Sale and Lease-Back Transaction permitted hereunder;
(ii) the
sale, lease, transfer or other Disposition of any Excluded Property or consummation of any iStar Exchange by the Borrower or any Restricted
Subsidiaries;
(jj) Dispositions
of Bowling Equipment pursuant to the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback 2014 Documents by the Borrower or any
Restricted Subsidiaries;
(kk) Dispositions
of the Closed Sites and Closed Centers (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback II Documents);
(ll) one or more Foreign Asset Dispositions;
(mm) Disposition
of Site #288 known as Starlite Lanes and of any EAP (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback 2014
Documents);
(nn) (i) Dispositions
in the ordinary course of business of Bowling Equipment, bowling products and other equipment used in the operation or maintenance of
bowling centers and related accessories to Foreign Subsidiaries of the Borrower for use in bowling centers operated by such Foreign Subsidiaries
and (ii) Dispositions of bowling products to Foreign Subsidiaries for resale by such Foreign Subsidiaries, in each case at a price at
least equal to the cost to the Borrower or selling subsidiary of such Bowling Equipment, bowling products, equipment used in the operation
or maintenance of bowling centers or related accessories; and
(oo) (i) Disposition,
licenses or other transfers of patents and other IP Rights, together with the goodwill associated therewith, related solely to bowling
products and the amusement products business, (ii) the granting of a royalty-free perpetual license to use certain “AMF” trademarks
only in the field of bowling and amusement products, equipment and systems and certain services related to the foregoing and (iii) the
granting of a license concerning the Pinspash trademark.
To the extent
that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral
shall automatically be sold free and clear of the Liens created by the Loan Documents (which Liens shall be automatically released upon
the consummation of such Disposition) and the Administrative Agent shall be authorized to take, and shall take, any actions reasonably
requested by the Borrower or otherwise deemed appropriate in order to effect the foregoing.
Section 6.08. Sale
and Lease-Back Transactions. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or
indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether
real, personal or mixed), whether now owned or hereafter acquired, which the Borrower or the relevant Restricted Subsidiary (a) has
sold or transferred or is to sell or to transfer to any other Person (other than the Borrower or any of its Restricted Subsidiaries)
and (b) intends to use for substantially the same purpose as the property which has been or is to be sold or transferred by the
Borrower or such Restricted Subsidiary to any Person (other than the Borrower or any of its Restricted Subsidiaries) in connection
with such lease (such a transaction described herein, a “Sale and Lease-Back Transaction”); provided that
any Sale and Lease-Back Transaction shall be permitted so long as either (A) the resulting Indebtedness, if any, is permitted by Section
6.01(m) or Section 6.01(z), (B) such Sale and Leaseback Transaction (i) was in existence on the Closing Date or (ii) is
an iStar Sale/Leaseback (including pursuant to an iStar Exchange), iStar Sale/Leaseback 2014 or Excluded Property Sale/Leaseback
Transaction or (C) (1) such Sale and Lease-Back Transaction is made in exchange for cash consideration (provided that for
purposes of the foregoing cash consideration requirement, (v) the amount of any Indebtedness or other liabilities (other than
Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Borrower or any Restricted
Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet (or in the notes
thereto), or, if the incurrence of such Indebtedness or other liability took place after the date of such balance sheet, that would
have been shown on such balance sheet or in the notes thereto, as determined in good faith by the Borrower) that are (i) assumed by
the transferee of any such assets and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released
by all relevant creditors in writing or (ii) otherwise cancelled or terminated in connection with the relevant Sale and Lease Back
Transaction, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection
with such Disposition, (y) any Securities or other obligations or assets received by the Borrower or any Restricted Subsidiary from
such transferee (including earn-outs or similar obligations) that are converted by such Person into Cash or Cash Equivalents, or by
their terms are required to be satisfied for Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received)
within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in
respect of the relevant Sale and Lease Back Transaction having an aggregate fair market value, taken together with all other
Designated Non-Cash Consideration received pursuant to this clause (z) and clause (y) of the proviso to Section
6.07(h) that is at that time outstanding, not in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as
of the last day of the most recently ended Test Period, in each case shall be deemed to be Cash), (2) the Borrower or its applicable
Restricted Subsidiary would otherwise be permitted to enter into, and remain liable under, the applicable underlying lease and (3)
the aggregate fair market value of the assets sold subject to all Sale and Lease-Back Transactions under this clause (C)
shall not exceed the greater of $65,000,000 and 49% of Consolidated Adjusted EBITDA as of the last day of the most recently ended
Test Period.
Section 6.09.
Transactions with Affiliates. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any
transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) involving payment in excess
of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in any individual
transaction with any of their respective Affiliates on terms that are substantially less favorable to the Borrower or such Restricted
Subsidiary, as the case may be (as determined by the Borrower in good faith), than those that might be obtained at the time in a comparable
arm’s-length transaction from a Person who is not an Affiliate; provided that the foregoing restriction shall not apply to:
(a) any
transaction between or among Holdings, the Borrower and/or one or more Restricted Subsidiaries (or any entity that becomes a Restricted
Subsidiary as a result of such transaction) to the extent permitted or not restricted by this Agreement;
(b) any
issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body)
of any Parent Company or of the Borrower or any Restricted Subsidiary;
(c) (i)
any collective bargaining, employment, indemnification, expense reimbursement or severance agreement or compensatory (including profit
sharing) arrangement entered into by the Borrower or any of its Restricted Subsidiaries with any Permitted Payee, (ii) any subscription
agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with any Permitted
Payee and (iii) payments or other transactions pursuant to any management equity plan, employee compensation, benefit plan, stock option
plan or arrangement, equity holder arrangement, supplemental executive retirement benefit plan, any health, disability or similar insurance
plan, or any employment contract or arrangement which covers any Permitted Payee and payments pursuant thereto;
(d) (i)
transactions permitted by Sections 6.01(d), (o), (bb) and (ee), 6.04 and 6.06(h), (m),
(o), (t), (v), (x), (y), (z), (aa), (bb), (cc), (ff), (gg),
(ii), (jj), (kk), (ll) and (mm), (ii) any Permitted Reorganization or IPO Reorganization Transaction
and (iii) issuances of Capital Stock and issuances and incurrences of Indebtedness not restricted by this Agreement and payments pursuant
thereto;
(e) the
existence of, or performance by the Borrower or any Restricted Subsidiary of its obligations under the terms of, any transaction or agreement
in existence on the Closing Date and any amendment, modification or extension thereof to the extent such amendment, modification or extension,
taken as a whole, is not (i) materially adverse to the Lenders or (ii) more disadvantageous to the Lenders than the relevant transaction
in existence on the Closing Date;
(f) (i)
so long as no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) (solely with respect to the Borrower in
the case of Section 7.01(f) and (g)) then exists or would result therefrom, the payment of management, monitoring, consulting,
advisory and similar fees to any Investor in an amount not to exceed in any Fiscal Year the greater of $3,000,000 and 1% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period, it being understood that (x) during any such Event of Default,
such fees may continue to accrue and become payable upon the waiver, termination or cure of such Event of Default and (y) any amount not
paid in any Fiscal Year may be carried forward and paid in subsequent Fiscal Years without limitation as to amount, but otherwise subject
to the requirements of this clause (f), (ii) customary termination fees payable to the Investors, (iii) customary compensation to Affiliates
in connection with financial advisory, financing, underwriting or placement services or in respect of other investment banking activities
and other transaction fees, which are approved, or made pursuant to arrangements approved, by the majority of the members of the board
of directors (or similar governing body) or a majority of disinterested members of the board of directors (or similar governing body)
of the Borrower in good faith and (iv) the payment of any indemnification obligations and expenses (and similar amounts) owed to any Investor
and any of their respective directors, officers, members of management, managers, employees and consultants, in each case of clauses (i),
(ii), (iii) and (iv) whether currently due or paid in respect of accruals from prior periods;
(g) the
Transactions, including the payment of Transaction Costs and payments required under the Acquisition Agreement;
(h) any
transaction or transactions approved by a majority of the disinterested members of the board of directors (or similar governing body)
of the Borrower at such time;
(i) Guarantees permitted by Section 6.01 or Section 6.06;
(j) loans
and other transactions among the Loan Parties and their Subsidiaries, in each case to the extent permitted under this Article 6;
(k) the
payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board of directors
(or similar governing body), officers, employees, members of management, managers, consultants and independent contractors of the Borrower
and/or any of its Restricted Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity
on behalf of any Parent Company, to the extent attributable to the operations of the Borrower or its subsidiaries;
(l) transactions
with customers, clients, suppliers, licensees, Joint Ventures, purchasers or sellers of goods or services or providers of employees or
other labor entered into in the ordinary course of business, which are (i) fair to the Borrower and/or its applicable Restricted Subsidiary
in the good faith determination of the board of directors (or similar governing body) of the Borrower or the senior management thereof
or (ii) on terms not substantially less favorable to the Borrower and/or its applicable Restricted Subsidiary as might reasonably be obtained
from a Person other than an Affiliate;
(m) the
payment of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to shareholders
under any shareholder agreement and the existence or performance by the Borrower or any Restricted Subsidiary of its obligations under
any such registration rights or shareholder agreement;
(n) (i)
any purchase by Holdings of the Capital Stock of (or contribution to the equity capital of) the Borrower and (ii) any intercompany loans
made by Holdings to the Borrower or any Restricted Subsidiary;
(o) any
transaction in respect of which the Borrower delivers to the Administrative Agent a letter addressed to the board of directors (or equivalent
governing body) of the Borrower from an accounting, appraisal or investment banking firm of nationally recognized standing stating that
such transaction is on terms that are not substantially less favorable to the Borrower or the applicable Restricted Subsidiary than might
be obtained at the time in a comparable arm’s length transaction from a Person who is not an Affiliate;
(p) (i)
Investments by Affiliates in Securities or other Indebtedness of the Borrower or any Restricted Subsidiary (and payment of reasonable
out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the Investment is being offered by the Borrower
or such Restricted Subsidiary generally to other investors on the same or more favorable terms and (ii) payments to Affiliates in respect
of Securities or other Indebtedness of the Borrower or any Restricted Subsidiary contemplated in the foregoing subclause (i) or that were
acquired from Persons other than the Borrower and the Restricted Subsidiaries, in each case, in accordance with the terms of such Securities
or other Indebtedness;
(q) [reserved];
(r) transactions
undertaken in the ordinary course of business pursuant to membership in a purchasing consortium; and
(s) any
transaction in connection with the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Transaction and/or any iStar
Exchange.
Section 6.10. [Reserved].
Section 6.11. [Reserved].
Section 6.12.
Amendments of or Waivers with Respect to Restricted Debt. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries
to, amend or otherwise modify the terms of any Restricted Debt (or the documentation governing any Restricted Debt) if the effect of such
amendment or modification, together with all other amendments or modifications made, is materially adverse to the interests of the Lenders
(in their capacities as such); provided that, for purposes of clarity, it is understood and agreed that the foregoing limitation
shall not otherwise prohibit any Refinancing Indebtedness or any other replacement, refinancing, amendment, supplement, modification,
extension, renewal, restatement or refunding of any Restricted Debt, in each case, that is permitted under this Agreement in respect thereof.
Section 6.13. [Reserved].
Section 6.14. Permitted Activities of Holdings.
Holdings shall not:
(a) incur
any Indebtedness for borrowed money other than (i) the Indebtedness permitted to be incurred by Holdings under the Loan Documents and
any Second Lien Facility or otherwise in connection with the Transactions, (ii) Guarantees of Indebtedness or other obligations of the
Borrower and/or any Restricted Subsidiary, which Indebtedness or other obligations are otherwise permitted hereunder, (iii) Indebtedness
owed to the Borrower or any Restricted Subsidiary otherwise permitted hereunder and (iv) any Indebtedness or other obligations arising
in respect of its Guarantee of the iStar Sale/Leaseback, iStar Sale/Leaseback 2014, any Excluded Property Transaction and any iStar Exchange;
(b) create or suffer to
exist any Lien on any property or asset now owned or hereafter acquired by it other than (i) the Liens created under the Collateral
Documents and, subject to the Intercreditor Agreement, the collateral documents relating to any Second Lien Facility, in each case,
to which it is a party, (ii) any other Lien created in connection with the Transactions, (iii) Permitted Liens on the Collateral
that are secured on a pari passu or junior basis with the Secured Obligations, so long as such Permitted Liens secure
Guarantees permitted under clause (a)(ii) above and the underlying Indebtedness subject to such Guarantee is permitted to be
secured on the same basis pursuant to Section 6.02 and (iv) Liens of the type permitted under Section 6.02 (other than
in respect of Indebtedness for borrowed money not referred to in clause (a)(i) of this Section 6.13); or
(c) engage in any material
business activity or own any material assets other than (i) holding the Capital Stock of the Borrower and, indirectly, any other
subsidiary of the Borrower (and/or any Joint Venture of any thereof); (ii) performing its obligations under the Loan Documents and
any Second Lien Facility and other Indebtedness, Liens (including the granting of Liens) and Guarantees permitted hereunder; (iii)
issuing its own Capital Stock (including, for the avoidance of doubt, the making of any dividend or distribution on account of, or
any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value of, any shares of any class of
Capital Stock permitted hereunder); (iv) filing Tax reports and paying Taxes, including Tax distributions made pursuant to Section
6.04(a)(xv) and other customary obligations in the ordinary course (and contesting any Taxes); (v) preparing reports to
Governmental Authorities and to its shareholders; (vi) holding director and shareholder meetings, preparing organizational records
and other organizational activities required to maintain its separate organizational structure or to comply with applicable
Requirements of Law; (vii) effecting any initial public offering of its Capital Stock; (viii) holding (A) Cash, Cash Equivalents and
other assets received in connection with permitted distributions or dividends received from, or permitted Investments or permitted
Dispositions made by, any of its subsidiaries or permitted contributions to the capital of, or proceeds from the issuance of Capital
Stock of, Holdings pending the application thereof and (B) the proceeds of Indebtedness permitted by Section 6.01; (ix)
providing indemnification for its officers, directors, members of management, employees and advisors or consultants; (x)
participating in tax, accounting and other administrative matters; (xi) making payments of the type permitted under Section
6.09(f) and the performance of its obligations under any document, agreement and/or Investment contemplated by the Transactions,
the Amendment No. 1 Transactions, the Amendment No. 2 Transactions or otherwise not prohibited under this Agreement; (xii) complying
with applicable Requirements of Law (including with respect to the maintenance of its existence); (xiii) [reserved]; (xiv)
repurchases of Indebtedness through open market purchases and/or Dutch Auctions permitted hereunder; (xv) activities incidental to
Permitted Acquisitions or similar Investments consummated by the Borrower and/or any Restricted Subsidiaries, including the
formation of acquisition vehicle entities and intercompany loans and/or Investments incidental to such Permitted Acquisitions or
similar Investments; (xvi) consummating the Holdings Reorganization Transaction, any Permitted Reorganization or any IPO
Reorganization Transaction; (xvii) the maintenance of its legal existence (including the ability to incur and pay, as applicable,
fees, costs and expenses and taxes related to such maintenance), (xviii) activities incidental or reasonably related to any of the
foregoing and (xvii) any transaction expressly permitted pursuant to clauses (a), (b) and/or (d) of this Section
6.14; or
(d) consolidate
or amalgamate with, or merge with or into, or convey, sell or otherwise transfer all or substantially all of its assets to, any Person;
provided that, so long as no Event of Default exists or would result therefrom, (A) Holdings may consolidate or amalgamate with,
or merge with or into, any other Person (other than the Borrower and any of its subsidiaries) so long as (i) Holdings is the continuing
or surviving Person or (ii) if the Person formed by or surviving any such consolidation, amalgamation or merger is not Holdings, (x) the
successor Person expressly assumes all obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is
a party pursuant to a supplement hereto and/or thereto in a form reasonably satisfactory to the Administrative Agent and (y) the Borrower
delivers a certificate of a Responsible Officer with respect to the satisfaction of the conditions set forth in clause (x) of this
clause (A)(ii) and (B) Holdings may (1) consummate the Holdings Reorganization Transaction and/or (2) otherwise convey,
sell or otherwise transfer all or substantially all of its assets to any other Person (other than the Borrower and any of its subsidiaries)
so long as (x) no Change of Control results therefrom, (y) the Person acquiring such assets expressly assumes all of the obligations of
Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto and/or thereto
in a form reasonably satisfactory to the Administrative Agent and (z) the Borrower delivers a certificate of a Responsible Officer with
respect to the satisfaction of the conditions under clause (x) set forth in this clause (B); provided, further, that
(1) if the conditions set forth in the preceding proviso are satisfied, the successor to Holdings will succeed to, and be substituted
for, Holdings under this Agreement, (2) it is understood and agreed that Holdings may convert into another form of entity so long as such
conversion does not adversely affect the value of the Collateral pledged by Holdings, taken as a whole and (3) notwithstanding anything
to the contrary in this Section 6.14, nothing herein shall preclude Holdings from consummating any Permitted Reorganization or
IPO Reorganization Transaction.
Section 6.15. Financial Covenant.
(a) First
Lien Leverage Ratio. On the last day of any Test Period ending on or after the last day of the first full Fiscal Quarter ending after
the Closing Date on which the Revolving Facility Test Condition is then satisfied (other
than any Test Period ending during the Covenant Waiver Period, so long as the Borrower is in compliance
with any then-applicable Covenant Waiver Conditions at all times during the applicable portions of such Covenant Waiver Period (giving
effect to any cure periods stated therein)), the Borrower shall not permit
the First Lien Leverage Ratio to be greater than 6.25:1.00, stepping-down to a First Lien Leverage Ratio of 6.00:1.00 for the Fiscal
Quarter ended on or about September 30, 2020 and thereafter. (as
applicable). For the avoidance of doubt, if the Borrower ceases to be in compliance with any then-applicable
Covenant Waiver Conditions at any time during the applicable portions of such Covenant Waiver Period, then (A) the Financial Covenant
will be deemed to have been applicable as of the last day of the most recently ended Test Period (but solely to the extent the Revolving
Facility Test Condition was otherwise satisfied on such last day) and (B) accordingly, if the Borrower would not have been in compliance
with the Financial Covenant as of the last day of such Test Period, then, solely to the extent the Revolving Facility Test Condition
was otherwise satisfied on such last day, and subject to the rights and limitations set forth in Section 6.15(b), a breach of this Section
6.15(a) shall be deemed to have occurred from such non-compliance with the Covenant Waiver Conditions
(unless so cured).
Notwithstanding the other provisions of this Agreement, from and after the termination
of the Covenant Waiver Period, for purposes of calculating the First Lien Leverage Ratio for purposes of this
Section 6.15 and determining compliance with the Financial Covenant (if then tested):
(i) for the first Test Period ending after termination of the Covenant Waiver Period, Consolidated Adjusted EBITDA shall
be deemed to be the product of (x) Consolidated Adjusted EBITDA for the most recently ended Fiscal Quarter for which financial
statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have
been delivered), multiplied by (y) the Seasonal Adjustment Factor for such Fiscal Quarter;
(ii) for
the second Test Period ending after termination of the Covenant Waiver Period, Consolidated Adjusted EBITDA shall be deemed to be
the product of (x) Consolidated Adjusted EBITDA for the two most recently ended consecutive Fiscal Quarters for which financial
statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have been delivered), multiplied by
(y) the Seasonal Adjustment Factor for such Fiscal Quarters;
(iii) for the third Test Period ending after termination of the Covenant Waiver
Period, Consolidated Adjusted EBITDA shall be deemed to be the product of (x) Consolidated Adjusted EBITDA for the three most recently
ended consecutive Fiscal Quarters for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered
(or are required to have been delivered), multiplied by (y) the Seasonal Adjustment Factor
for such Fiscal Quarters; and
(iv) for
the avoidance of doubt, for the fourth Test Period ending after the Covenant Waiver Period and each Test Period ending thereafter,
Consolidated Adjusted EBITDA shall be Consolidated Adjusted EBITDA for the four consecutive Fiscal Quarters then most recently ended
for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable,
have been delivered (or are required to have been delivered);
provided
that for any Test Period set forth in clauses (i) through (iii) above the Borrower may elect (with any such election applying to each
subsequent Test Period) to have Consolidated Adjusted EBITDA be Consolidated Adjusted EBITDA for the four consecutive Fiscal Quarters
then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered
(or are required to have been delivered).
For purposes of this Section
6.15 and Section 4.02(b), unless otherwise agreed in writing by the Borrower and the Required Revolving Lenders (but without the consent
of the Required Lenders or any other Lender), the applicable following terms have the meanings
specified below:
“Core
Liquidity” means, on any date of determination, the sum of (i) all Cash and Cash Equivalents (that would qualify as “Unrestricted
Cash Amount”) of the Borrower and its Restricted Subsidiaries as of such date, plus (ii) the entire aggregate Unused Revolving
Credit Commitments as of such date.
“Covenant
Waiver Conditions” means that, from and after the Amendment No. 4 Effective Date, each of the following shall be satisfied at
all times prior to the earlier to occur of (i) termination of the Covenant Waiver Period and (ii) Borrower’s delivery to the Administrative
Agent of a Covenant Waiver Termination Notice:
(a)
(i) the Borrower and its Restricted Subsidiaries shall maintain Total Liquidity of not less than
$20,000,000 as of the end of each Business Day; provided that if Total Liquidity is less than $20,000,000 as of the end of any
Business Day, then notwithstanding the foregoing, it shall not be a breach of (or failure to satisfy) the Covenant Waiver Conditions
if (i) the Borrower shall promptly thereafter notify the Administrative Agent in writing of such shortfall and (ii) on or prior to the
seventh Business Day following the date of such shortfall, the Borrower shall have received Cash proceeds of Capital Stock or capital
contributions or Subordinated Sponsor Debt (in each case, the terms and/or classification of which would satisfy the following proviso
of this paragraph (a)) in an amount equal to the greatest level of shortfall that shall have occurred from and including the date of
such applicable initial shortfall through the Business Day immediately prior to such actual date of contribution or borrowing); provided
further that if Core Liquidity is less than $10,000,000 as of the end of any Business Day, then the Borrower shall promptly thereafter
notify the Administrative Agent in writing of such shortfall, and in connection therewith, either (x) Holdings shall promptly submit
a request to draw an amount of Cash pursuant to the Sponsor Preferred Stock Subscription Agreement (and promptly following receipt of
the proceeds thereof, contribute such proceeds to the Borrower (which shall be on account of either (A) equity issued by the Borrower
in the form of common equity, Qualified Capital Stock or other equity (such other equity to be on terms reasonably acceptable to the
Administrative Agent) for Cash or (B) Cash contributions in respect of Qualified Capital Stock) (and for the avoidance of doubt, any
equity issued by Holdings (if any) in connection therewith shall be issued pursuant to the Sponsor Preferred Stock Subscription Agreement
or on terms not materially less favorable to Holdings than as provided therein (as determined by the Borrower in good faith, or as otherwise
may be reasonably acceptable to the Administrative Agent), it being understood that, notwithstanding anything herein to the contrary,
such equity may be in the form of Disqualified Capital Stock)) or (y) the Borrower shall promptly borrow an amount of Sponsor Subordinated
Debt, in each case of clause (x) and (y), such that Core Liquidity, calculated on a pro forma basis after giving effect to such contribution
or borrowing (as applicable), shall not be less than $20,000,000 on such date of contribution or borrowing (as applicable); provided
that, notwithstanding the foregoing, Holdings shall have no obligation to make any draw pursuant to the Sponsor Preferred Stock Subscription
Agreement if the conditions to any such draw set forth therein are not satisfied at such time (and the equivalent conditions and limitations
shall be deemed to apply with respect to any borrowing of Sponsor Subordinated Debt); provided further that, for the avoidance
of doubt, any such failure to draw under the Sponsor Preferred Stock Subscription Agreement or to borrow Sponsor Subordinated Debt within
12 Business Days (or such later date as approved by the Administrative Agent) of delivery of a request for such draw or borrowing promptly
following the applicable written notice to the Administrative Agent of any Core Liquidity shortfall (in each case, as applicable to cause
Core Liquidity to be not less than $20,000,000 on the applicable date) shall be a breach of the Covenant Waiver Conditions and (ii) the
Borrower shall deliver to the Administrative Agent for delivery by the Administrative Agent
to each Revolving Lender, within 15 days after the end of each calendar month ending after the Amendment No. 4 Effective Date, a computation
of Total Liquidity as of the end of each Business Day during such calendar month then ended (excluding Business Days occurring prior
to the Amendment No. 4 Effective Date);
(b)
(i) Holdings shall not amend or otherwise modify the terms of the Sponsor Preferred Stock Subscription
Agreement and (ii) the Borrower shall not amend or modify the terms of any Sponsor Subordinated Debt (if any), in each case of clause
(i) and (ii), if the effect of such amendment or modification, together with all or other such amendments or modifications made, is materially
adverse to the interests of the Revolving Lenders (in their capacities as such) (it being understood and agreed that, for the avoidance
of doubt, (x) any election by Sponsor or Holdings to fund the Investments provided for under the Sponsor Preferred Stock Subscription
Agreement in portions, as opposed to a single draw, (y) any (1) Refinancing Indebtedness or any other replacement, refinancing, amendment,
supplement, modification, extension, renewal, restatement or refunding of any Sponsor Subordinated Debt that is otherwise permitted under
this Agreement and otherwise constitutes Sponsor Subordinated Debt and (2) repayment of any Sponsor Subordinated Debt with the Cash proceeds
of any equity of Holdings issued pursuant to the Sponsor Preferred Stock Subscription Agreement (or with other Capital Stock having terms
otherwise not materially less favorable to the Revolving Lenders (in their capacities as such)), and (z) any election by Holdings or
the Borrower to terminate (or reduce commitments pursuant to) the Sponsor Preferred Stock Subscription Agreement in an amount equivalent
to the amount of any Sponsor Subordinated Debt actually funded to the Borrower, in each case of clauses (x), (y) and/or (z), shall not
be so materially adverse); provided that, for the avoidance of doubt, it is acknowledged and agreed that none of the Administrative
Agent or any Required Revolving Lender (or any Person not a party thereto) are third party beneficiaries of the Sponsor Preferred Stock
Subscription Agreement or any definitive documentation relating to any Sponsor Subordinated
Debt;
(c)
notwithstanding anything to the contrary in Sections 2.22, 6.01 or 9.02, during any period when
the Revolving Facility Test Condition is otherwise in effect, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries
to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness pursuant to Section
2.22, Section 6.01(u) or Section 6.01(z) of this Agreement, for borrowed money (or evidenced by bonds, debentures, notes or similar instruments)
to the extent the same would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance
with GAAP, in each case to the extent that such Indebtedness would be secured on a pari passu basis by a first priority Lien on a material
portion of the Collateral (any such Indebtedness, “Restricted First Lien Debt”) (other than (i) any such Indebtedness (A)
existing as of the Amendment No. 4 Effective Date or (B)(x) incurred pursuant to Section 2.22, Section 6.01(u) or Section 6.01(z) in
an aggregate outstanding principal amount not to exceed the lesser of (1) $200,000,000 and (2) the Incremental Cap as in effect at the
time of determination and (y) that is on terms not materially less favorable (in each case, as determined by the Borrower in good faith)
to the Borrower than the terms required by the Federal Reserve Bank of Boston in respect of any loan made pursuant to the “Main
Street Expanded Loan Facility” that have been authorized under Section 13(3) of the Federal Reserve Act (as published prior to
June 7, 2020) (provided that notwithstanding the foregoing (1) the quantum, pricing, interest rates and other interest terms (including
cash pay interest), fees, prepayment penalties or other economic terms may be as agreed between the Borrower or any of its Restricted
Subsidiaries and each lender providing such Indebtedness (each in their sole discretion), (2) the tenor of such Indebtedness may be shorter
than four years so long as it is not shorter than 91 days following the then-existing Latest Revolving Maturity Date at such time of
incurrence and (3) any amortization may be as agreed between the Borrower or any of its Restricted Subsidiaries and each lender providing
such Indebtedness (each in their sole discretion) so long as the aggregate Weighted Average Life to Maturity (solely with respect to
such amortization component) of such Indebtedness is no shorter than the Weighted Average Life to Maturity (solely with respect to any
amortization component) pursuant to the “Main Street Expanded Loan Facility” that has been authorized under Section 13(3)
of the Federal Reserve Act (as published prior to June 7, 2020)) or (ii) Refinancing Indebtedness in respect of any Indebtedness existing
as of the Amendment No. 4 Effective Date or referred to in the preceding clause (i)); provided that, notwithstanding the foregoing,
it shall also not be a breach or violation of the Covenant Waiver Conditions if the Borrower and/or any of its Restricted Subsidiaries
shall incur any other Restricted First Lien Debt on any date when the Revolving Facility Test Condition is not then satisfied (and thereafter
remain liable therefore), so long as such Restricted First Lien Debt does not have a stated final maturity date that is earlier than
91 days after the then-existing Latest Revolving Maturity Date at such time of incurrence;
and
(d) notwithstanding anything
to the contrary in Section 6.04(a), the Borrower shall not pay or make, directly or indirectly, any Restricted Payment (other than Restricted
payments of the type permitted by Section 6.04(a)(i), (ii), (iv), (v), (vi), (ix), (xi), (xii), (xiv), (xv), (xviii), (xix) or (xx)) (it
being understood that such limitations shall not, for the avoidance of doubt, apply to the usage of any portion of the Available RP Capacity
Amount to (1) make Investments pursuant to Section 6.06(q)(ii), (2) make Restricted Debt Payments pursuant to Section 6.04(b)(iv)(B) or
(3) incur Indebtedness pursuant to Section 6.01(ll)).
“Covenant
Waiver Period” means the period from and after the Amendment No. 4 Effective Date to and including the earliest of (i) the
day immediately preceding the last day of the Test Period ending on (or about) June 30, 2021 and (ii) the day immediately preceding the
last day of the Test Period during which the Borrower has delivered a written notice to the Administrative Agent electing to terminate
the Covenant Waiver Period (a “Covenant Waiver Termination Notice”) (e.g., assuming Fiscal Quarters ending on calendar
quarter-ends, if such Covenant Waiver Termination Notice is delivered on October 1, 2020, then December 30, 2020, and the first reinstituted
testing of the Financial Covenant would occur for the Fiscal Quarter ending on December 31, 2020, but solely to the extent the Revolving
Facility Test Conditions are satisfied on December 31, 2020).
“Covenant
Waiver Termination Notice” has the meaning assigned to such term in the definition
of Covenant Waiver Period.
“Seasonal Adjustment Factor” means, for any Fiscal Quarter or any period
of consecutive Fiscal Quarters, as applicable, the product of (i) one, divided by (ii) the Seasonal Adjustment Percentage for such
Fiscal Quarter or the sum of the Seasonal Adjustment Percentages for such Fiscal Quarters, as applicable.
“Seasonal
Adjustment Percentage” means (i) for the first Fiscal Quarter ending on (or about) March 31 after the end of the Covenant Waiver
Period, 43.0%, (ii) for the first Fiscal Quarter ending on (or about) June 30 after the end of the Covenant Waiver Period, 18.0%, (iii)
for the first Fiscal Quarter ending on (or about) September 30 after the end of the Covenant Waiver Period, 12.0% and (iv) for the first
Fiscal Quarter ending on (or about) December 31 after the end of the Covenant Waiver Period, 27.0%.
“Sponsor
Preferred Stock Subscription Agreement” means that certain Subscription Agreement dated as of June 10, 2020 between Sponsor
and Holdings (as in effect at any given time, including as amended, waived or otherwise modified).
“Sponsor
Subordinated Debt” means unsecured Indebtedness incurred by the Borrower (which, for the avoidance of doubt, may be guaranteed
by other Loan Parties) from Sponsor on terms acceptable to each of the Borrower and Sponsor in their sole discretion; provided that
(i) the stated final maturity date of such Indebtedness shall be no earlier than 91 days after the then-existing Latest Revolving Maturity
Date at the time of such incurrence (other than any earlier maturity upon the occurrence of any change of control, Qualifying IPO or
any Disposition occurring prior to such 91 days following the Latest Revolving Maturity Date at the time such Sponsor Subordinated Debt
is incurred), (ii) interest on such Indebtedness shall accrue, at the Borrower’s election, as “payment in kind” interest
at all times during the Covenant Waiver Period (or for such longer period as the Borrower and the Sponsor may otherwise agree) and (iii)
such Indebtedness shall be contractually subordinated in right of payment to the payment in full of all Obligations under this Agreement
on terms and conditions reasonably satisfactory to the Administrative Agent.
“Total Liquidity”
means, on any date of determination, the sum of (i) Core Liquidity as of such date, plus (ii) all unused commitments under the
Sponsor Preferred Stock Subscription Agreement.
(b) Financial Cure.
Notwithstanding anything to the contrary in this Agreement (including Article 7), if the Borrower reasonably expects to fail (or
has failed) to comply with Section 6.15(a) above for any Fiscal Quarter, the Borrower shall have the right (the “Cure
Right”) (at any time during such Fiscal Quarter or thereafter until the date that is 10 Business Days after the date on which
financial statements for such Fiscal Quarter are required to be delivered pursuant to Section 5.01(a) or (b), as applicable)
to issue equity (which shall be common equity, Qualified Capital Stock or other equity (such other equity to be on terms reasonably acceptable
to the Administrative Agent)) for Cash or otherwise receive Cash contributions in respect of Qualified Capital Stock (the “Cure
Amount”), and thereupon the Borrower’s compliance with Section 6.15(a) shall be recalculated giving effect to
the following pro forma adjustment: Consolidated Adjusted EBITDA shall be increased (notwithstanding the absence of a related addback
in the definition of “Consolidated Adjusted EBITDA”), solely for the purpose of determining compliance with Section 6.15(a)
as of the end of such Fiscal Quarter and for applicable subsequent periods that include such Fiscal Quarter, by an amount equal to
the Cure Amount. If, after giving effect to the foregoing recalculation (but not, for the avoidance of doubt, except as expressly set
forth below, taking into account any immediate repayment of Indebtedness in connection therewith), the requirements of Section 6.15(a)
would be satisfied, then the requirements of Section 6.15(a) shall be deemed satisfied as of the end of the relevant Fiscal
Quarter with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default
of Section 6.15(a) that had occurred (or would have occurred) shall be deemed cured for the purposes of this Agreement. Notwithstanding
anything herein to the contrary, (i) in each four consecutive Fiscal Quarter period there shall be at least two Fiscal Quarters (which
may, but are not required to be, consecutive) in which the Cure Right is not exercised, (ii) during the term of this Agreement, the Cure
Right shall not be exercised more than five times, (iii) the Cure Amount shall be no greater than the amount required for the purpose
of complying with Section 6.15(a) (or to be in pro forma compliance with any financial covenant with respect to any other Indebtedness
that is being cured), (iv) upon the Administrative Agent’s receipt of a written notice from the Borrower that the Borrower
intends to exercise the Cure Right (a “Notice of Intent to Cure”), until the 10th Business Day following the date
on which financial statements for the Fiscal Quarter to which such Notice of Intent to Cure relates are required to be delivered pursuant
to Section 5.01(a) or (b), as applicable, neither the Administrative Agent (nor any sub-agent therefor) nor any Lender
shall exercise any right to accelerate the Loans or terminate the Revolving Credit Commitments or any Additional Commitments, and none
of the Administrative Agent (nor any sub-agent therefor) nor any Lender or Secured Party shall exercise any right to foreclose on or
take possession of the Collateral or any other right or remedy under the Loan Documents, in each case solely on the basis of the relevant
Event of Default under Section 6.15(a), (v) during any Test Period in which any Cure Amount is included in the calculation of
Consolidated Adjusted EBITDA as a result of any exercise of the Cure Right, such Cure Amount shall be (A) counted solely as an increase
to Consolidated Adjusted EBITDA (and not as a reduction of Indebtedness (by netting or otherwise), except to the extent that the proceeds
of such Cure Amount are actually applied to repay Indebtedness, such reduction may be credited in any subsequent Fiscal Quarter) for
the purpose of determining compliance with Section 6.15(a) and (B) disregarded for all other purposes, including the purpose
of determining whether any financial ratio-based condition has been satisfied, the Applicable Rate or the Commitment Fee Rate or the
availability of any carve-out set forth in Article 6 of this Agreement and (vi) no Revolving Lender or Issuing Bank shall be required
to make any Revolving Loan or issue any Letter of Credit hereunder if an Event of Default under Section 6.15(a) exists during
the 10 Business Day period during which the Borrower may exercise a Cure Right above unless and until the Cure Amount is actually received.
ARTICLE 7 EVENTS OF DEFAULT
Section 7.01. Events of Default.
If any of the following events (each, an “Event of Default”) shall occur:
(a) Failure
To Make Payments When Due. Failure by the Borrower to pay (i) any installment of principal of any Loan when due, whether at stated
maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on any Loan,
any fee or other non-principal amount due hereunder within five Business Days after the date due.
(b) Default
in Other Agreements. (i) Failure by the Borrower or any of its Restricted Subsidiaries to pay when due any principal of or interest
on or any other amount payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in clause (a)
above) with an aggregate outstanding principal amount exceeding the Threshold Amount, in each case beyond the applicable notice period
and grace period, if any, provided therefor; or (ii) breach or default by the Borrower or any of its Restricted Subsidiaries with respect
to any other term of (A) one or more items of Indebtedness with an aggregate outstanding principal amount exceeding the Threshold Amount
or (B) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness (other than, for the avoidance
of doubt, with respect to Indebtedness consisting of Hedging Obligations, termination events or equivalent events pursuant to the terms
of the relevant Hedge Agreement which are not the result of any default thereunder by any Loan Party or any Restricted Subsidiary), in
each case beyond the applicable notice period and grace period, if any, provided therefor, if the effect of such breach or default is
to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause,
such Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; provided that clause (ii) of this paragraph (b) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness if such sale or
transfer is permitted hereunder; provided, further, that (x) with respect to any breach or default referred to in clause
(ii) above with respect to a financial covenant in any such Indebtedness, such breach or default shall only constitute an Event of
Default hereunder if such breach or default has resulted in the acceleration of such Indebtedness and the termination of commitments thereunder
and (y) any failure described under clauses (i) or (ii) above is unremedied and is not waived by the holders of such Indebtedness
prior to any termination of the Commitments or acceleration of the Loans pursuant to this Article 7; or
(c) Breach
of Certain Covenants. Failure of any Loan Party, as required by the relevant provision, to perform or comply with any term or condition
contained in Section 5.01(e)(i) (provided that subsequent delivery of a notice of Default or Event of Default shall cure
such Event of Default for failure to provide notice, unless a Responsible Officer of Holdings or the Borrower had actual knowledge that
such Default or Event of Default had occurred and was continuing and should have reasonably known in the course of his or her duties
that failure to provide such notice would constitute an Event of Default), Section 5.02 (as it applies to the preservation of
the existence of the Borrower), or Article 6; provided that, notwithstanding this clause (c), no breach or default
by any Loan Party under Section 6.15(a) will constitute an Event of Default with respect to any Term Loans unless and until the
Required Revolving Lenders have accelerated the Revolving Loans and any Additional Revolving Loans, terminated the commitments under
the Revolving Facility and demanded repayment of, or otherwise accelerated, the Indebtedness or other obligations under the Revolving
Facility and have not rescinded such demand or acceleration (the “Financial Covenant Standstill”); it being understood
and agreed that any breach of Section 6.15(a) (or any other financial covenant) is subject to cure as provided in Section 6.15(b),
and no Event of Default shall arise under Section 6.15(a) until the 10th Business Day after the day on which financial statements
are required to be delivered for the relevant Fiscal Quarter under Section 5.01(a) or (b), as applicable, and then only
to the extent the Cure Amount has not been received on or prior to such date; or
(d) Breach
of Representations, Etc. Any representation, warranty or certification made or deemed made by any Loan Party in any Loan Document
or in any certificate required to be delivered in connection herewith or therewith (including, for the avoidance of doubt, any Perfection
Certificate) (limited, on the Closing Date, solely to the Specified Representations and representations referred to in any officer’s
certificate delivered on the Closing Date that specifically refers to this Section 7.01(d)), shall be untrue in any material respect
as of the date made or deemed made and such untrue representation, warranty or certification shall remain untrue for a period of 30 days
after notice from the Administrative Agent to the Borrower (which notice shall only be given at the direction of the Required Lenders);
or
(e) Other
Defaults Under Loan Documents. Default by any Loan Party in the performance of or compliance with any term contained herein or in
any of the other Loan Documents, other than any such term referred to in any other Section of this Article 7, which default has
not been remedied or waived within 30 days after receipt by the Borrower of written notice thereof from the Administrative Agent; or
(f) Involuntary
Bankruptcy; Appointment of Receiver, Etc. (i) The entry by a court of competent jurisdiction of a decree or order for relief in respect
of Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) (any such Person, a “Specified
Person”) in an involuntary case under any Debtor Relief Law now or hereafter in effect, which decree or order is not stayed;
or any other similar relief shall be granted under any applicable federal, state or local law, which relief is not stayed; or (ii) the
commencement of an involuntary case against any Specified Person under any Debtor Relief Law; the entry by a court having jurisdiction
in the premises of a decree or order for the appointment of a receiver, receiver and manager, (preliminary) insolvency receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over any Specified Person, or over all or a substantial part of
its property; or the involuntary appointment of an interim receiver, trustee or other custodian of any Specified Person for all or a substantial
part of its property, which remains, in any case under this clause (f), undismissed, unvacated, unbonded or unstayed pending appeal
for 60 consecutive days; or
(g) Voluntary
Bankruptcy; Appointment of Receiver, Etc. (i) The entry against any Specified Person of an order for relief, the commencement by any
Specified Person of a voluntary case under any Debtor Relief Law, or the consent by any Specified Person to the entry of an order for
relief in an involuntary case or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Law, or the consent
by any Specified Person to the appointment of or taking possession by a receiver, receiver and manager, trustee or other custodian for
all or a substantial part of its property; (ii) the making by any Specified Person of a general assignment for the benefit of creditors;
or (iii) the admission by any Specified Person in writing of their inability to pay their respective debts as such debts become due; or
(h) Judgments
and Attachments. The entry or filing of one or more final money judgments, writs or warrants of attachment or similar process against
the Borrower or any of its Restricted Subsidiaries or any of their respective assets involving in the aggregate at any time an amount
in excess of the Threshold Amount (in either case to the extent not adequately covered by indemnity from a third party as to which the
indemnifying party has been notified and not denied its indemnification obligations, self-insurance (if applicable) or insurance as to
which the relevant third party insurance company has been notified and not denied coverage), which judgment, writ, warrant or similar
process remains unpaid, undischarged, unvacated, unbonded or unstayed pending appeal for a period of 60 consecutive days; or
(i) Employee
Benefit Plans. The occurrence of one or more ERISA Events, which individually or in the aggregate result in liability of the Borrower
or any of its Restricted Subsidiaries in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect;
or
(j) Change of Control. The occurrence of a Change of Control; or
(k) Guaranties,
Collateral Documents and Other Loan Documents. At any time after the execution and delivery thereof (i) any material Loan Guaranty
for any reason ceasing to be in full force and effect (other than in accordance with its terms or as a result of the occurrence of the
Termination Date) or being declared by a court of competent jurisdiction to be null and void or the repudiation in writing by any Loan
Party of its obligations thereunder (other than as a result of the discharge of such Loan Party in accordance with the terms thereof),
(ii) this Agreement or any material Collateral Document or any Lien on a material portion of the Collateral ceasing to be in full force
and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof, the occurrence of the Termination
Date or any other termination of such Collateral Document in accordance with the terms thereof) or being declared by a court of competent
jurisdiction to be null and void or (iii) other than in any bona fide, good faith dispute as to the scope of Collateral or whether any
Lien has been, or is required to be released, the contesting by any Loan Party of the validity or enforceability of any material provision
of any Loan Document (or any Lien on a material portion of the Collateral purported to be created by the Collateral Documents) in writing
or denial by any Loan Party in writing that it has any further liability (other than by reason of the occurrence of the Termination Date
or any other termination of any other Loan Document in accordance with the terms thereof), including with respect to future advances by
the Lenders, under any Loan Document to which it is a party; it being understood and agreed that the failure of the Administrative Agent
to maintain possession of any Collateral actually delivered to it or file any UCC (or equivalent) continuation statement shall not result
in an Event of Default under this clause (k); or
(l) Subordination.
The Obligations ceasing or the assertion in writing by any Loan Party that the Obligations cease to constitute senior indebtedness under
the subordination provisions of any document or instrument evidencing any permitted Junior Indebtedness in excess of the Threshold Amount
(in each case, to the extent required by such subordination provision) or any such subordination provision being invalidated by a court
of competent jurisdiction or otherwise ceasing, for any reason, to be valid, binding and enforceable obligations of the parties thereto;
then, and in every such Event
of Default (other than (x) an Event of Default with respect to the Borrower described in clause (f) or (g) of this Article
or (y) any Event of Default arising under Section 6.15(a)), and at any time thereafter during the continuance of such Event of
Default, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take any of the following
actions, at the same or different times: (i) terminate the Revolving Credit Commitments, and thereupon such Commitments shall terminate
immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared
to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrower and (iii) require that the Borrower deposit in the LC Collateral Account an additional amount in Cash as reasonably requested
by the Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC Exposure (minus the amount then
on deposit in the LC Collateral Account); provided that (A) upon the occurrence of an Event of Default with respect to the Borrower
described in clause (f) or (g) of this Article, any such Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower, and the obligation of the Borrower to Cash collateralize the outstanding Letters of Credit as aforesaid shall
automatically become effective, in each case without further action of the Administrative Agent or any Lender and (B) during the continuance
of any Event of Default arising under Section 6.15(a), after giving effect to the proviso to Section 7.01(c), (X) solely
upon the request of the Required Revolving Lenders (but not the Required Lenders or any other Lender or group of Lenders), the Administrative
Agent shall, by notice to the Borrower, (1) terminate the Revolving Credit Commitments, and thereupon such Revolving Credit Commitments
shall terminate immediately, (2) declare the Revolving Loans then outstanding to be due and payable in whole (or in part, in which case
any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of
the Revolving Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder in respect of the Revolving Loans, shall become due and payable immediately, without presentment, demand,
protest or other notice in respect thereof of any kind, all of which are hereby waived by the Borrower and (3) require that the Borrower
deposit in the LC Collateral Account an additional amount in Cash as reasonably requested by the Issuing Banks (not to exceed 100% of
the relevant face amount) of the then outstanding LC Exposure (minus the amount then on deposit in the LC Collateral Account)
and (Y) subject to the Financial Covenant Standstill, the Administrative Agent may, and at the request of the Required Lenders shall,
by notice to the Borrower, declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal
not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived
by the Borrower. Upon the occurrence and during the continuance of an Event of Default, subject to the Intercreditor Agreement and any
other applicable intercreditor agreement, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any
rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided
under the UCC.
ARTICLE 8 THE ADMINISTRATIVE AGENT
Each of the
Lenders and the Issuing Banks, on behalf of itself and its applicable Affiliates and in their respective capacities as such and as Secured
Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints JPM
(or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions on its
behalf, including execution of the other Loan Documents or any other documents with respect to the rights of the Secured Parties and the
Collateral as contemplated by this Agreement and the Loan Documents, and to exercise such powers as are delegated to the Administrative
Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
Each of the
Secured Parties hereby irrevocably appoints and authorizes the Administrative Agent (as collateral agent) to act as the agent of (and
to hold any security interest created by the Loan Documents for and on behalf of or on trust for) such Secured Party for purposes of acquiring,
holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together with such
powers and discretion as are reasonably incidental thereto. The Lenders agree that any such actions by the Administrative Agent shall
bind such Secured Party.
Any Person
serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person
serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money
to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Loan Party
or any subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge
that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any
of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate)
and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them.
The Administrative Agent
shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default
or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine
of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are
expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed by the
Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant
circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan
Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower
or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken
or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under
the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as
determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The
Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof
is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent shall not be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document,
(ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the
performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any
Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency
of the Collateral, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any
Loan Party or any Affiliate thereof, provided, further that, the foregoing paragraph is solely for the benefit of the Administrative
Agent and not any Lender.
Each Lender
agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any
other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable
law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code or other similar Dispositions
of Collateral. Notwithstanding the foregoing, however, except as otherwise expressly limited herein, a Lender may take action to preserve
or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement
of the Obligations held by such Lender, including the filing of a proof of claim in a case under the Bankruptcy Code.
Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured
Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty;
it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf
of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents may be exercised
solely by the Administrative Agent and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant
to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the
Administrative Agent, as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply all or any
portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such
Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at
any such Disposition.
No holder of
any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with
the management or release of any Collateral or of the obligations of any Loan Party under this Agreement.
Each of the
Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or by
entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes and
shall be deemed to authorize) the Administrative Agent, on behalf of all Secured Parties, to take any of the following actions upon the
instruction of the Required Lenders:
(a) consent
to the Disposition of all or any portion of the Collateral free and clear of the Liens securing the Secured Obligations in connection
with any Disposition pursuant to the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including Section
363 thereof;
(b) credit
bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly or
through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to the
applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including under Section 363 thereof;
(c) credit
bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly or
through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to the
applicable provisions of the UCC (or other applicable Debtor Relief Law), including pursuant to Sections 9-610 or 9-620 of the UCC;
(d) credit
bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly or
through one or more acquisition vehicles), in connection with any foreclosure or other Disposition conducted in accordance with applicable
law following the occurrence of an Event of Default, including by power of sale, judicial action or otherwise; and/or
(e) estimate
the amount of any contingent or unliquidated Secured Obligations of such Lender or other Secured Party;
it being understood that no Lender
shall be required to fund any new amount in connection with any purchase of all or any portion of the Collateral by the Administrative
Agent pursuant to the foregoing clauses (b), (c) or (d) without its prior written consent.
Each Secured
Party agrees that the Administrative Agent is under no obligation to credit bid any part of the Secured Obligations or to purchase or
retain or acquire any portion of the Collateral; provided that, in connection with any credit bid or purchase described under clauses
(b), (c) or (d) of the preceding paragraph, the Secured Obligations owed to all of the Secured Parties (other than with
respect to contingent or unliquidated liabilities as set forth in the next succeeding paragraph) may be, and shall be, credit bid by the
Administrative Agent on a ratable basis. For the avoidance of doubt, nothing in this Article 8 shall limit any rights of Holdings or its
Subsidiaries under Section 363(k) of the Bankruptcy Code (or the corresponding provisions of any other applicable Debtor Relief Law).
With respect
to each contingent or unliquidated claim that is a Secured Obligation, the Administrative Agent is hereby authorized by the Secured Parties,
but is not required, to estimate the amount thereof for purposes of any credit bid or purchase described in the second preceding paragraph
so long as the estimation of the amount or liquidation of such claim would not unduly delay the ability of the Administrative Agent to
credit bid the Secured Obligations or purchase the Collateral in the relevant Disposition. In the event that the Administrative Agent,
in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot be estimated
without unduly delaying the ability of the Administrative Agent to consummate any credit bid or purchase in accordance with the second
preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit bid, and shall
not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid.
Each Secured Party whose
Secured Obligations are credit bid under clauses (b), (c) or (d) of the third preceding paragraph shall be entitled
to receive interests in the Collateral or any other asset acquired in connection with such credit bid (or in the Capital Stock of the
acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in accordance with the percentage obtained
by dividing (x) the amount of the Secured Obligations of such Secured Party that were credit bid in such credit bid or other Disposition
by (y) the aggregate amount of all Secured Obligations that were credit bid in such credit bid or other Disposition.
In addition,
in case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, each
Secured Party agrees that the Administrative Agent (irrespective of whether the principal of any Loan or LC Exposure is then due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans or LC Exposure and
all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and
all other amounts to the extent due to the Lenders and the Administrative Agent under Sections 2.12 and 9.03) allowed in
such judicial proceeding; and
(ii) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.
Any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by
each Lender and each Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative Agent consents
to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amount
due to the Administrative Agent under Sections 2.12 and 9.03.
Nothing contained
herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or
any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender
or any Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or any Issuing Bank in any
such proceeding.
The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed
by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely
upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter
of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent
may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from
such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable
for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
The Administrative
Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it.
The Administrative Agent and any such sub-agent may perform any and all of their respective duties and exercise their respective rights
and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and
to the Related Parties of the Administrative Agent and any such sub-agent and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent.
The Administrative Agent
may resign at any time by giving thirty days’ written notice to the Lenders, the Issuing Banks and the Borrower. If the Administrative
Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon thirty days’
notice, remove the Administrative Agent. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the
Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor
Administrative Agent which shall be a commercial bank or trust company or other Person reasonably acceptable to the Borrower with offices
in the U.S.; provided that during the existence and continuation of an Event of Default under Section 7.01(a) or, with
respect to the Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be required. If no successor shall have
been appointed as provided above and accepted such appointment within thirty days after the retiring Administrative Agent gives notice
of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of a retirement, the retiring Administrative
Agent may (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent meeting
the qualifications set forth above (including, for the avoidance of doubt, consent of the Borrower) or (b) in the case of a removal,
the Borrower may, after consulting with the Required Lenders, appoint a successor Administrative Agent meeting the qualifications set
forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and
the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the
Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless
become effective in accordance with such notice and (i) the retiring or removed Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative
Agent in its capacity as collateral agent for the Secured Parties for perfection purposes, the retiring Administrative Agent shall continue
to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications
and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each
Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions),
until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided for above
in this Article 8. Upon the acceptance of its appointment as Administrative Agent hereunder as a successor Administrative Agent,
such successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring
or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring
or removed Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section
9.13 hereof). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation
or removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring
or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any action taken or omitted to be
taken by any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral
security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified
Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent.
Any resignation
or removal of the Administrative Agent hereunder shall also constitute its resignation as Issuing Bank and the Swingline Lender effective
as of the date of effectiveness of its resignation or removal as Administrative Agent as provided above; it being understood that in the
event of any such resignation, any Letter of Credit then outstanding shall remain outstanding (irrespective of whether any amounts have
been drawn at such time). In the event of any such resignation as an Issuing Bank or the Swingline Lender, the Borrower shall be entitled
to appoint any Revolving Lender that is willing to accept such appointment as successor Issuing Bank or Swingline Lender hereunder. Upon
the acceptance of any appointment as Issuing Bank or Swingline Lender hereunder by a successor Issuing Bank or Swingline Lender, as applicable,
such successor Issuing Bank or Swingline Lender, as applicable, shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning Issuing Bank or Swingline Lender, as applicable, and the resigning Issuing Bank and Swingline Lender,
as applicable, shall be discharged from its duties and obligations in such capacity hereunder. In the event the Swingline Lender resigns,
the Borrower shall promptly repay all outstanding Swingline Loans on the effective date of such resignation (which repayment may be effectuated
with the proceeds of a Borrowing).
Each Lender
and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or
any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender or any of their respective Related Parties and based on such documents and information
as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon
this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Except for notices, reports
and other documents expressly required to be furnished to the Lenders and the Issuing Banks by the Administrative Agent herein, the Administrative
Agent shall not have any duty or responsibility to provide any Lender or any Issuing Bank with any credit or other information concerning
the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of the Administrative Agent or any of its Related Parties.
Notwithstanding
anything to the contrary herein, the Arrangers shall not have any right, power, obligation, liability, responsibility or duty under this
Agreement, except in their respective capacities, as applicable, as the Administrative Agent, an Issuing Bank or a Lender hereunder.
Each Secured
Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall:
(a) release
any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the occurrence of the Termination
Date, (ii) that is sold or to be sold or transferred as part of or in connection with any Disposition permitted under the Loan Documents
to a Person that is not a Loan Party, (iii) that does not constitute (or ceases to constitute) Collateral, (iv) if the property subject
to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Loan Guaranty otherwise in accordance
with the Loan Documents, (v) as required under clause (d) below or (vi) if approved, authorized or ratified in writing by
the Required Lenders (or such other number or percentage of Lenders as shall be necessary under the relevant circumstances as provided
in Section 9.02) in accordance with Section 9.02;
(b) without
limiting Section 9.22, release any Subsidiary Guarantor from its obligations under the Loan Guaranty (i) if such Person ceases
to be a Restricted Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions
or any event or other circumstance permitted hereunder); provided, that the release of any Subsidiary Guarantor from its obligations
under the Loan Guaranty if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition
thereof shall only be permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect
to such release and the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower
is deemed to have made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an
amount equal to the portion of the fair market value of the net assets of such Person attributable to the Borrower’s equity interest
therein as estimated by the Borrower in good faith and such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f))
at such time and/or (ii) upon the occurrence of the Termination Date;
(c) subordinate
any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property
that is permitted by Sections 6.02(c), 6.02(d), 6.02(e), 6.02(g), 6.02(l), 6.02(m), 6.02(n),
6.02(o), 6.02(q), 6.02(r), 6.02(u), 6.02(v)(ii), 6.02(x), 6.02(y), 6.02(z)(i),
6.02(bb), 6.02(cc), 6.02(dd), 6.02(ee), 6.02(ff), 6.02(gg), 6.02(hh), 6.02(ii),
6.02(ll), 6.02(tt) and 6.02(uu) (and any Refinancing Indebtedness in respect of any thereof to the extent such Refinancing
Indebtedness is permitted to be secured under Section 6.02(k)); and
(d) enter
into subordination, intercreditor, collateral trust and/or similar agreements (and any amendments thereof) with respect to Indebtedness
(including any Acceptable Intercreditor Agreement and any amendment thereto) that is (i) required or permitted to be subordinated hereunder
or pari passu with the Liens securing the Obligations and/or (ii) secured by Liens, and which Indebtedness contemplates an intercreditor,
subordination, collateral trust or similar agreement.
Upon the request
of the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release
or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Loan
Guaranty or its Lien on any Collateral pursuant to this Article 8. In each case as specified in this Article 8, the Administrative
Agent will (and each Lender and each Issuing Bank hereby authorizes the Administrative Agent to), at the Borrower’s expense, execute
and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item
of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest therein,
or to release such Loan Party from its obligations under the Loan Guaranty, in each case in accordance with the terms of the Loan Documents
and this Article 8. The parties hereto acknowledge and agree that the Administrative Agent may rely conclusively as to any of the
matters described in this Section 9.02 and Section 9.22 (including as to its authority hereunder and thereunder) on a certificate
or similar instrument provided to it by any Loan Party without further inquiry or investigation, which certificate shall be delivered
to the Administrative Agent by the Loan Parties upon request.
The Administrative Agent
is authorized to enter into the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any other intercreditor, subordination,
collateral trust or similar agreement contemplated hereby with respect to any (a) Indebtedness (i) that is (A) required or permitted
to be subordinated hereunder or pari passu with the Liens securing the Obligations and/or (B) secured by Liens and (ii) with respect
to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor, subordination, collateral trust or similar agreement
(any such other intercreditor, subordination, collateral trust and/or similar agreement, an “Additional Agreement”)
and/or (b) Secured Hedging Obligations and/or Banking Services Obligations, whether or not constituting Indebtedness, and each Secured
Party acknowledges that the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any Additional Agreement is binding
upon them. Each Secured Party hereby (a) acknowledges that it has received a copy of the Intercreditor Agreement and consents to the
subordination of the Liens on the Collateral securing the Secured Obligations on the terms set forth in the Intercreditor Agreement,
(b) agrees that it will be bound by, and will not take any action contrary to, the provisions of the Intercreditor Agreement, any other
Acceptable Intercreditor Agreement or any Additional Agreement and (c) authorizes and instructs the Administrative Agent to enter into
the Intercreditor Agreement or any Additional Agreement (including any Acceptable Intercreditor Agreement) and to subject the Liens on
the Collateral securing the Secured Obligations to the provisions thereof. The foregoing provisions are intended as an inducement to
the Secured Parties to extend credit to the Borrower, and the Secured Parties are intended third-party beneficiaries of such provisions
and the provisions of the Intercreditor Agreement, any Acceptable Intercreditor Agreement and/or any other Additional Agreement.
To the extent
that the Administrative Agent (or any Affiliate thereof) is not reimbursed and indemnified by the Borrower in accordance with the terms
of this Agreement, the Lenders will reimburse and indemnify the Administrative Agent (and any Affiliate thereof) in proportion to their
respective Applicable Percentages (determined as if there were no Defaulting Lenders) for and against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed
on, asserted against or incurred by the Administrative Agent (or any Affiliate thereof) in performing its duties hereunder or under any
other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided that no Lender
shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and non-appealable decision).
ARTICLE 9 MISCELLANEOUS
Section 9.01. Notices.
(a) Except
in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below),
all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by facsimile or email, as follows:
(i) if
to any Loan Party, to such Loan Party in the care of Holdings at:
Bowlmor AMF Corp.
222 West 44th
Street
New York, New York 10036
Telephone: + 1 212 777-2622
Attention: Brett I. Parker
Email:
with a copy to (which shall not constitute notice
to any Loan Party):
Atairos Group, Inc.
620 Fifth Avenue, Sixth Floor
New York, New York 10020
Telephone:
+1 646 690-5223
Attention: Rachael A.Wagner
Email:
(ii) if to the Administrative Agent, at:
JPMorgan Chase Bank, N.A.
500 Stanton Christiana
Rd.
NCC5 / 1st Floor
Newark, Delaware 19713
Attention: Loan & Agency Services Group-Jonathan
Martin
Telephone: +1 302-634-1964
Fax: +1 302 634-3301
Email:
with a copy to:
JPMorgan Chase Bank, N.A.
500 Stanton Christiana
Rd.
NCC5 / 1st Floor
Newark, Delaware 19713
Attention: Loan & Agency Services Group-William
Telephone: +1 302 634-1964
Fax: +1 302 634-3301
Email:
(iii) if
to any Lender, to it at its address, facsimile number or email address set forth in its Administrative Questionnaire.
All such notices and other communications
(A) sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when delivered
in person or by courier service and signed for against receipt thereof or three Business Days after dispatch if sent by certified or registered
mail, in each case, delivered, sent or mailed (properly addressed) to the relevant party as provided in this Section 9.01 or in
accordance with the latest unrevoked direction from such party given in accordance with this Section 9.01 or (B) sent by facsimile
shall be deemed to have been given when sent and when receipt has been confirmed by telephone; provided that notices and other
communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours
for the recipient, such notices or other communications shall be deemed to have been given at the opening of business on the next Business
Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in clause
(b) below shall be effective as provided in such clause (b).
(b) Notices and other
communications to the Lenders hereunder may be delivered or furnished by electronic communications (including e-mail and Internet or
Intranet websites) pursuant to procedures set forth herein or otherwise approved by the Administrative Agent. The Administrative Agent
or the Borrower (on behalf of any Loan Party) may, in its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures set forth herein or otherwise approved by it; provided that approval of such
procedures may be limited to particular notices or communications. All such notices and other communications (i) sent to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return
receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if not given during
the normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business
on the next Business Day for the recipient, and (ii) posted to an Internet or Intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described in the foregoing clause (b)(i) of notification that such
notice or communication is available and identifying the website address therefor.
(c) Any
party hereto may change its address or facsimile number or other notice information hereunder by notice to the other parties hereto; it
being understood and agreed that the Borrower may provide any such notice to the Administrative Agent as recipient on behalf of itself,
the Swingline Lender, each Issuing Bank and each Lender.
Section 9.02. Waivers; Amendments.
(a) No
failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under any other Loan
Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of
any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same is permitted
by this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is
given. Without limiting the generality of the foregoing, to the extent permitted by law, the making of a Loan or the issuance of any Letter
of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender
or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Subject
to clauses (A), (B), (C), (D) and (E) of this Section 9.02(b) and Sections 9.02(c) and (d) below,
neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified, except (i)
in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders
(or the Administrative Agent with the consent of the Required Lenders) or (ii) in the case of any other Loan Document (other than any
waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the terms of such other Loan Document),
pursuant to an agreement or agreements in writing entered into by the Administrative Agent and each Loan Party that is party thereto,
with the consent of the Required Lenders; provided that, notwithstanding the foregoing:
(A) except
with the consent of each Lender directly and adversely affected thereby (but without requiring the consent of the Required Lenders), no
such agreement shall;
(1) increase
the Commitment or Additional Commitment of such Lender (other than with respect to any Incremental Facility pursuant to Section 2.22
in respect of which such Lender has agreed to be an Additional Lender); it being understood that no amendment, modification or waiver
of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment
or mandatory reduction of the Commitments or Additional Commitments shall constitute an increase of any Commitment or Additional Commitment
of such Lender;
(2) reduce
or forgive the principal amount of any Loan owed to such Lender or any amount due to such Lender on any Loan Installment Date (other than,
in each case, any waiver of, or consent to or departure from, any Default or Event of Default or any mandatory prepayment; it being understood
that no change in (i) the definition of “First Lien Leverage Ratio” or any other ratio used in the calculation of any mandatory
prepayment (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction or forgiveness of any principal
amount due hereunder);
(3) (x) extend
the scheduled final maturity of any Loan or (y) postpone any Loan Installment Date, any Interest Payment Date or the date of any scheduled
payment of any fee, in each case payable to such Lender hereunder (in each case, other than any extension for administrative reasons
agreed by the Administrative Agent) (other than, in each case, any waiver of, or consent or departure from, any Default or Event of Default
or any mandatory prepayment; it being understood that no change in the definition of “First Lien Leverage Ratio” or any other
ratio used in the calculation of any mandatory prepayment (including any component definition thereof) shall constitute such an extension
or postponement);
(4) reduce
the rate of interest (other than to waive any Default or Event of Default or obligation of the Borrower to pay interest at the default
rate of interest under Section 2.13(d), which shall only require the consent of the Required Lenders) or the amount of any fee
owed to such Lender; it being understood that no change in (i) the definition of “First Lien Leverage Ratio” or any other
ratio used in the calculation of the Applicable Rate or the Commitment Fee Rate, or in the calculation of any other interest or fee due
hereunder (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction in any rate of interest
or fee hereunder;
(5) extend
the expiry date of such Lender’s Commitment or Additional Commitment; it being understood that no amendment, modification or waiver
of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment
or mandatory reduction of the Commitments or Additional Commitments shall constitute an extension of any Commitment or Additional Commitment
of any Lender; and
(6) waive,
amend or modify the provisions of Section 2.18(b) of this Agreement in a manner that would by its terms alter the pro rata sharing of
payments required thereby (except in connection with any transaction permitted under Sections 2.22, 2.23, 9.02(c) and/or
9.05(g) or as otherwise provided in this Section 9.02); and
(B) no such agreement shall:
(1) change (x) any of
the provisions of Section 9.02(a) or Section 9.02(b) or the definition of “Required Lenders” to reduce any
voting percentage required to waive, amend or modify any right thereunder or make any determination or grant any consent thereunder,
without the prior written consent of each Lender or (y) the definition of “Required Revolving Lenders” without the prior
written consent of each Revolving Lender (it being understood that neither the consent of the Required Lenders nor the consent of any
other Lender shall be required in connection with any change to the definition of “Required Revolving Lenders”);
(2) release
all or substantially all of the Collateral from the Lien granted pursuant to the Loan Documents (except as otherwise permitted herein
or in the other Loan Documents, including pursuant to Article 8 or Section 9.22 hereof or pursuant to any Acceptable Intercreditor
Agreement), without the prior written consent of each Lender; or
(3) release
all or substantially all of the value of the Guarantees under the Loan Guaranty (except as otherwise permitted herein or in the other
Loan Documents, including pursuant to Article 8 or Section 9.22 hereof), without the prior written consent of each Lender;
(C) solely
with the consent of the Required Revolving Lenders (but without the consent of the Required Lenders or any other Lender), any such agreement
may (x) waive, amend or modify Section 6.15 (or the definition of “Core
Liquidity”, “Covenant Waiver Conditions, “Covenant Waiver Period”, “Covenant Waiver
Termination Notice”, “First Lien Leverage Ratio”, “Seasonal Adjustment
Factor”, “Seasonal Adjustment Percentage”, “Sponsor Preferred Stock Subscription Agreement”, “Sponsor
Subordinated Debt”, “Total Liquidity” or any component definition thereofof
any of the foregoing, in each case, as any such definition is used solely for purposes of Section 6.15) or waive any
Default or Event of Default in respect of Section 6.15 (other than as permitted under clause (y)), (y) waive, amend or modify any
condition precedent set forth in Section 4.02 hereof as it pertains to any Revolving Loan and/or Additional Revolving Loan and/or
(z) waive any Default or Event of Default that results from any representation made or deemed made by any Loan Party in any Loan Document
in connection with any Credit Extension under the Revolving Facility being untrue in any material respect as of the date made or deemed
made;
(D) solely with the
consent of the relevant Issuing Bank and, in the case of clause (x), the Administrative Agent, any such agreement may (x) increase
or (y) decrease the Letter of Credit Sublimit; and
(E) solely
with the consent of the Borrower and applicable Class or Classes of Revolving Lenders and/or, if applicable, Issuing Banks, subject to
the provisions of Section 1.10, this Agreement may be amended or otherwise modified to permit the availability of Revolving Loans
and/or Letters of Credit denominated in a currency other than Dollars and to make technical changes to this Agreement and any other Loan
Document to accommodate the inclusion of any such new currency;
provided, further,
that no such agreement shall (x) amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank
or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, such Issuing Bank or the Swingline Lender,
as the case may be and (y) amend or modify the provisions of Section 2.05 (as it applies to any Issuing Bank) or any letter of
credit application or any bilateral agreement between the Borrower and any Issuing Bank regarding the respective rights and obligations
between the Borrower and such Issuing Bank in connection with the issuance (or deemed issuance) of Letters of Credit hereunder, without
the prior written consent of, with respect to Section 2.05, the Administrative Agent, the Borrower and such Issuing Bank, or otherwise,
the Borrower and such Issuing Bank. The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into
pursuant to Section 9.05, Commitment reductions or terminations pursuant to Section 2.09, incurrences of Additional Commitments
or Additional Loans pursuant to Sections 2.22, 2.23 or 9.02(c) and reductions or terminations of any such Additional
Commitments or Additional Loans. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve
or disapprove any amendment, waiver or consent hereunder, except that the Commitment and any Additional Commitment of any Defaulting
Lender may not be increased without the consent of such Defaulting Lender (it being understood that any Commitment, Additional Commitment
or Loan held or deemed held by any Defaulting Lender shall be excluded from any vote hereunder that requires the consent of any Lender,
except as expressly provided in Section 2.21(b)). Notwithstanding the foregoing, but without limiting the provisions of Section
2.22(g), this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative
Agent and the Borrower (i) to add one or more additional credit facilities to this Agreement and to permit any extension of credit from
time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the relevant benefits of
this Agreement and the other Loan Documents and (ii) to include appropriately the Lenders holding such credit facilities in any determination
of the Required Lenders on substantially the same basis as the Lenders prior to such inclusion.
(c) Notwithstanding the foregoing, this Agreement may be amended:
(i) with
the written consent of the Borrower and the Lenders providing the relevant Replacement Term Loans to permit the refinancing or replacement
of all or any portion of the outstanding Amendment No. 2 Term Loans or any then-existing Additional Term Loans under any applicable Class
(any such loans being refinanced or replaced, the “Replaced Term Loans”) with one or more replacement term loans hereunder
(“Replacement Term Loans”) pursuant to a Refinancing Amendment; provided that
(A) the aggregate
principal amount of any Replacement Term Loans shall not exceed the aggregate principal amount of the Replaced Term Loans (plus
(1) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any such additional amounts are secured,
the related Liens are permitted under Section 6.02 and plus (2) the amount of accrued interest, penalties and premium (including
any tender premium) thereon, any committed but undrawn amount and underwriting discounts, fees (including upfront fees, original issue
discount or initial yield payments), commissions and expenses associated therewith),
(B) any Replacement
Term Loans (other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes,
securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements
of this clause (B)) must have a final maturity date that is equal to or later than the final maturity date of, and have a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Replaced Term Loans at the time of the
relevant refinancing, provided, that the foregoing limitation shall not apply to Replacement Term Loans having an aggregate principal
amount outstanding not exceeding $20,000,000 (as selected by the Borrower),
(C) any Replacement Term Loans may be pari passu
or junior in right of payment and pari passu (without regard to the control of remedies) or junior with respect to the Collateral
with the remaining portion of the Initial Term Loans or Additional Term Loans (provided that if pari passu or junior as
to payment or Collateral, such Replacement Term Loans shall be subject to an Acceptable Intercreditor Agreement and may be, at the option
of the Borrower, documented in a separate agreement or agreements), or be unsecured,
(D) if
any Replacement Term Loans are secured, such Replacement Term Loans may not be secured by any assets other than the Collateral,
(E) if
any Replacement Term Loans are guaranteed, such Replacement Term Loans may not be guaranteed by any Person other than one or more Loan
Parties,
(F) any
Replacement Term Loans that are pari passu with the Amendment No. 2 Term Loans (including, for the avoidance of doubt, the Amendment
No. 3 Incremental Term Loans) in right of payment and security may participate (A) in any voluntary prepayment of Term Loans as set forth
in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi),
(G) any
Replacement Term Loans shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F), optional
prepayment and redemption terms and, subject to preceding clause (B), an amortization schedule, as the Borrower and the lenders
providing such Replacement Term Loans may agree,
(H) [reserved],
(I) the
covenants and events of default of any Replacement Term Loans (excluding pricing, interest, fees, rate floors, premiums, optional prepayment
or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be (i) substantially identical
to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders providing such Replacement Term
Loans than those applicable to the Replaced Term Loans (other than covenants or other provisions applicable only to periods after the
latest Maturity Date of such Replaced Term Loans (in each case, as of the date of incurrence of such Replacement Term Loans)), (ii) then-current
market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with
respect thereto)) for the applicable type of Indebtedness or (iii) reasonably acceptable to the Administrative Agent (it being agreed
that covenants and events of default of any Replacement Term Loans that are more favorable to the lenders or the agent of such Replacement
Term Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents pursuant to the applicable
Refinancing Amendment shall thereafter be deemed satisfactory to the Administrative Agent), and
(ii) with the written
consent of the Borrower and the Lenders providing the relevant Replacement Revolving Facility to permit the refinancing or replacement
of all or any portion of any Revolving Credit Commitment or any Additional Revolving Credit Commitment under the applicable Class (any
such Revolving Credit Commitment or Additional Revolving Credit Commitment being refinanced or replaced, a “Replaced Revolving
Facility”) with a replacement revolving facility hereunder (a “Replacement Revolving Facility”) pursuant
to a Refinancing Amendment; provided that:
(A) the
aggregate principal amount of any Replacement Revolving Facility shall not exceed the aggregate principal amount of the Replaced Revolving
Facility (plus (x) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any such additional
amounts are secured, the related Liens are permitted under Section 6.02 and plus (y) the amount of accrued interest, penalties
and premium thereon, any committed but undrawn amounts and underwriting discounts, fees (including upfront fees and original issue discount),
commissions and expenses associated therewith),
(B) no
Replacement Revolving Facility (other than customary bridge loans with a maturity date of not longer than one year; provided that
any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to
the requirements of this clause (B)) may have a final maturity date (or require commitment reductions) prior to the final maturity
date of the relevant Replaced Revolving Facility at the time of such refinancing,
(C) any
Replacement Revolving Facility may be pari passu or junior in right of payment and pari passu (without regard to the control
of remedies) or junior with respect to the Collateral with the remaining portion of the Revolving Credit Commitments or any Additional
Revolving Credit Commitments (provided that if pari passu or junior as to payment or Collateral, such Replacement Revolving
Facility shall be subject to an Acceptable Intercreditor Agreement and may be, at the option of the Borrower, documented in a separate
agreement or agreements), or be unsecured,
(D) if
any Replacement Revolving Facility is secured, it may not be secured by any assets other than the Collateral,
(E) if
any Replacement Revolving Facility is guaranteed, it may not be guaranteed by any Person other than one or more Loan Parties,
(F) any
Replacement Revolving Facility shall be subject to the “ratability” provisions applicable to Extended Revolving Credit Commitments
and Extended Revolving Loans set forth in the proviso to clause (i) of Section 2.23(a), mutatis mutandis, to the
same extent as if fully set forth in this Section 9.02(c)(ii),
(G) any
Replacement Revolving Facility shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F),
optional prepayment and redemption terms as the Borrower and the lenders providing such Replacement Revolving Facility may agree,
(H) [reserved],
(I) the covenants
and events of default of any Replacement Revolving Facility (excluding pricing, interest, fees, rate floors, premiums, optional prepayment
or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be (i) substantially identical
to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders providing such Replacement Revolving
Facility than those applicable to the Replaced Revolving Facility (other than covenants or other provisions applicable only to periods
after the latest Maturity Date of such Replaced Revolving Facility (in each case, as of the date of incurrence of the relevant Replacement
Revolving Facility), (ii) then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance
(or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (iii) reasonably acceptable to the
Administrative Agent (it being agreed that covenants and events of default of any Replacement Revolving Facility that are more favorable
to the lenders or the agent of such Replacement Revolving Facility than those contained in the Loan Documents and are then conformed
(or added) to the Loan Documents pursuant to the applicable Refinancing Amendment shall be deemed satisfactory to the Administrative
Agent); provided, that if any financial maintenance covenant is added to any such Replacement Revolving Facility and such financial
maintenance covenant is more favorable to the lenders under such Replacement Revolving Facility than the Financial Covenant, either (x)
such financial maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving
Lenders shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the Borrower,
any applicable “equity cure” provisions with respect to any such financial maintenance covenant); and
(J) the
commitments in respect of the Replaced Revolving Facility shall be terminated, and all loans outstanding thereunder and all fees thereunder
and payable in connection therewith shall be paid in full, in each case on the date such Replacement Revolving Facility is implemented;
provided, further, that, in respect of
each of clauses (i) and (ii) of this clause (c), (x) any Non-Debt Fund Affiliate and Debt Fund Affiliate shall be
permitted (without Administrative Agent consent) to provide any Replacement Term Loans, it being understood that in connection with such
Replacement Term Loans, the relevant Non-Debt Fund Affiliate or Debt Fund Affiliate, as applicable, shall be subject to the restrictions
applicable to such Persons under Section 9.05 as if such Replacement Term Loans were Term Loans and (y) any Debt Fund Affiliate
(but not any Non-Debt Fund Affiliate) may provide (without Administrative Agent consent) any Replacement Revolving Facility.
Each party hereto hereby agrees
that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be amended by the Borrower, the Administrative Agent and
the lenders providing the relevant Replacement Term Loans or the Replacement Revolving Facility, as applicable, to the extent (but only
to the extent) necessary to reflect the existence and terms of such Replacement Term Loans or Replacement Revolving Facility, as applicable,
incurred or implemented pursuant thereto (including any amendment necessary to treat the loans and commitments subject thereto as a separate
“tranche” and “Class” of Loans and/or commitments hereunder). It is understood that any Lender approached to provide
all or a portion of any Replacement Term Loans or any Replacement Revolving Facility may elect or decline, in its sole discretion, to
provide such Replacement Term Loans or Replacement Revolving Facility.
(d) Notwithstanding
anything to the contrary contained in this Section 9.02 or any other provision of this Agreement or any provision of any other
Loan Document, (i) the Borrower and the Administrative Agent may, without the input or consent of any Lender, amend, supplement and/or
waive any guaranty, collateral security agreement, pledge agreement and/or related document (if any) executed in connection with this
Agreement to (x) comply with any Requirements of Law or the advice of counsel or (y) cause any such guaranty, collateral security agreement,
pledge agreement or other document to be consistent with this Agreement and/or the relevant other Loan Documents, (ii) the Borrower and
the Administrative Agent may, without the input or consent of any other Lender (other than the relevant Lenders (including Additional
Lenders) providing Loans under such Sections), effect amendments to this Agreement and the other Loan Documents as may be necessary in
the reasonable opinion of the Borrower and the Administrative Agent to (A) effect the provisions of Sections 2.22, 2.23,
5.12, 5.14, 5.15, 5.16 or 9.02(c), or any other provision specifying that any waiver, amendment or
modification may be made with the consent or approval of the Administrative Agent and/or (B) add terms (including representations and
warranties, conditions, prepayments, covenants or events of default), in connection with the addition of any Loan or Commitment hereunder
or the incurrence of any Incremental Equivalent Debt, any Replacement Term Loans, any Replacement Revolving Facility, any Replacement
Debt and/or any Refinancing Indebtedness incurred in reliance on Section 6.01(p) with respect to Indebtedness originally incurred
in reliance on Section 6.01(z), that are favorable to the then-existing Lenders, as reasonably determined by the Administrative
Agent (it being understood that, where applicable, any such amendment may be effectuated as part of an Incremental Facility Amendment
and/or a Refinancing Amendment), (iii) if the Administrative Agent and the Borrower have jointly identified any ambiguity, mistake, defect,
inconsistency, obvious error or any error or omission of a technical or administrative nature or any necessary or desirable technical
change, in each case, in any provision of any Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend
such provision solely to address such matter as reasonably determined by them acting jointly without the input or consent of any Lender,
(iv) the Administrative Agent and the Borrower may amend, restate, amend and restate or otherwise modify the Intercreditor Agreement
or any Acceptable Intercreditor Agreement as provided therein or to give effect thereto or to carry out the purpose thereof without the
input or consent of any Lender and (2) any amendment, waiver or modification of any term or provision that directly affects Lenders under
one or more Classes and does not directly affect Lenders under one or more other Classes may be effected with the consent of Lenders
owning 50% of the aggregate commitments or Loans of such directly affected Class in lieu of the consent of the Required Lenders.
(e) Notwithstanding
anything to the contrary contained in this Section 9.02, if the Revolving Lenders are to receive the benefit of any additional or modified
financial maintenance covenant as a result of the application of the provisions set forth in clause (g) of the definition of “Incremental
Equivalent Debt”, Section 2.22(a)(iv) or Section 9.02(c)(ii)(I), then the Administrative Agent and the Borrower shall
be permitted, without the need for consent by any other Person, to effectuate such provisions by promptly entering into an amendment to
this Agreement.
Section 9.03. Expenses; Indemnity.
(a) Subject to Section
9.05(f), the Borrower shall pay, upon presentation of a summary statement, together with any supporting documentation reasonably
requested by the Borrower, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative
Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket
fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local
counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution
(including via the Internet or through a service such as Intralinks) of the Credit Facilities, the preparation, execution, delivery and
administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver
of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the
preparation of any such amendment, modification or waiver was requested by the Borrower) and (ii) all reasonable and documented out-of-pocket
expenses incurred by the Administrative Agent, the Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates
(but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other
charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material
jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective
rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made
and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph
(a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable
detail, together with backup documentation supporting the relevant reimbursement request.
(b) The Borrower shall
indemnify each Arranger, the Administrative Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented
out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary,
one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived
conflict of interest after the affected Person notifies the Borrower of such conflict, (x) one additional counsel to all similarly situated
affected Indemnitees, taken as a whole, and (y) one additional local counsel in any relevant material jurisdiction to all similarly situated
affected Indemnitees, taken as a whole), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result
of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties
hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby
or thereby (except for any Taxes, which shall be governed exclusively by Section 2.17), (ii) the use of the proceeds of the Loans
or any Letter of Credit or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing
(including any matters arising under Environmental Law), whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other
Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that any such loss, claim, damage or liability (i) is determined by a final and non-appealable judgment of a court of competent
jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful
misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any such settlement agreement acknowledges)
that any such loss, claim, damage, or liability has resulted from such Person’s or a Related Party of such Person’s material
breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against
another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent,
any Issuing Bank or any Arranger, acting in its capacity as the Administrative Agent, as an Issuing Bank or as an Arranger) that does
not involve any act or omission of Holdings, the Borrower or any of its subsidiaries. Each Indemnitee shall be obligated to refund or
return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses or
damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this
paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor,
in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower
of an invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant
reimbursement request.
This Section 9.03(b) shall not apply with respect
to Taxes other than any Taxes that represent losses, claims, damages or liabilities arising from any non-Tax claim.
(c) The
Borrower shall not be liable for any settlement or compromise of, or the consent to the ending of any judgment with respect to, any proceeding
effected without its consent (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is so settled,
compromised or consented with the Borrower’s written consent, or if there is a final judgment entered against any Indemnitee in
any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above.
The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld,
conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought
hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims
that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or
culpability.
Section 9.04.
Waiver of Claim. To the extent permitted by applicable law, no party to this Agreement shall assert, and each hereby waives, any
claim against any other party hereto or any Related Party thereof, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or any Letter of Credit or the use of the proceeds thereof, except,
in the case of any claim by any Indemnitee against the Borrower, to the extent such damages would otherwise be subject to indemnification
pursuant to the terms of Section 9.03.
Section 9.05. Successors and Assigns.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns; provided that (i) except as provided under Section 6.07 and/or pursuant to any Permitted Reorganization,
the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign
or otherwise transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted assignment
or transfer not complying with the terms of this Section shall be null and void and, with respect to any attempted assignment or transfer
to any Disqualified Institution, subject to Section 9.05(f)). Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective successors and permitted assigns, Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the
Arrangers, the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement. Any Successor Borrower permitted pursuant to a transaction referred to in clause (i) of the proviso above, shall thereafter
be deemed to be and become the “Borrower” for all purposes hereunder, and such initial Borrower shall be released from its
Obligations in respect of this Agreement and the other Loan Documents.
(b) (i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement (including all or a portion of any Loan or Additional Commitment added pursuant
to Sections 2.22, 2.23 or 9.02(c) at the time owing to it) with the prior written consent (not to be unreasonably
withheld or delayed) of:
(A) the Borrower;
provided that the Borrower shall be deemed to have consented to any assignment of Term Loans (other than any such assignment to
a Disqualified Institution or an affiliate thereof referred to in the last proviso of this clause (i) and identified to the Administrative
Agent as such) if it has not responded to a written request for its consent from the Administrative Agent within 15 Business Days after
receiving such written request; provided, further, that no consent of the Borrower shall be required (x) for any assignment
of Initial Term Loans, Additional Term Loans, Initial Term Loan Commitments or Additional Term Loan Commitments to another Lender, an
Affiliate of any Lender or an Approved Fund or (y) during the continuance of an Event of Default under Section 7.01(a) or Sections
7.01(f) or (g) (solely with respect to the Borrower);
(B) the
Administrative Agent; provided, that no consent of the Administrative Agent shall be required for any assignment to another Lender,
any Affiliate of a Lender or any Approved Fund, or for any assignment to the Borrower and/or its Affiliates, which otherwise complies
with the terms of this Section 9.05; and
(C) in
the case of the Revolving Facility or any Additional Revolving Facility, each Issuing Bank and the Swingline Lender;
provided, that notwithstanding
the foregoing, the Borrower may withhold its consent to any assignment to any Person that is not expressly a Disqualified Institution
but is known by the Borrower to be an Affiliate of a Disqualified Institution without regard as to whether such Person is identifiable
as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name.
(ii) Assignments shall be subject to the following additional conditions:
(A) except
in the case of any assignment to another Lender, any Affiliate of any Lender or any Approved Fund or any assignment of the entire remaining
amount of the relevant assigning Lender’s Loans or commitments of any Class, the principal amount of Loans or commitments of the
assigning Lender subject to the relevant assignment (determined as of the date on which the Assignment Agreement with respect to such
assignment is delivered to the Administrative Agent and determined on an aggregate basis in the event of concurrent assignments to Related
Funds or by Related Funds) shall not be less than (x) $1,000,000, in the case of Initial Term Loans, Additional Term Loans, Initial Term
Loan Commitments and Additional Term Loan Commitments and (y) $5,000,000 in the case of Revolving Loans, Additional Revolving Loans, Revolving
Credit Commitments or Additional Revolving Credit Commitments unless the Borrower and the Administrative Agent otherwise consent to a
lesser amount, and in each case any assigned amount may exceed such minimum amount in an integral multiple of $1,000,000 in excess thereof;
(B) any
partial assignment shall be made as an assignment of a proportionate part of all the relevant assigning Lender’s rights and obligations
under this Agreement;
(C) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment Agreement via an electronic settlement system acceptable
to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and shall pay to the Administrative Agent
a processing and recordation fee of $3,500; provided that (x) such fee may be waived or reduced in the sole discretion of the
Administrative Agent, (y) such fee shall not apply for any assignment to an Affiliated Lender or Debt Fund Affiliate and (z) only one
such fee shall be payable in the event of simultaneous assignments to or from two or more Approved Funds;
(D) the
relevant Eligible Assignee, if it is not a Lender, shall deliver on or prior to the effective date of such assignment, to the Administrative
Agent and the Borrower (irrespective of whether an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g)
exists) (1) an Administrative Questionnaire and (2) any form required under Section 2.17; and
(E) the
assigning Lender shall, concurrently with its delivery of the same to the Administrative Agent, provide the Borrower with a copy of its
request for such assignment, which shall include the name of the prospective assignee (irrespective of whether an Event of Default under
Section 7.01(a) or Section 7.01(f) or Section 7.01(g) exists).
(iii) Except
as otherwise provided in Section 9.05(g), subject to the acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section, from and after the effective date specified in any Assignment Agreement, the Eligible Assignee thereunder shall be a
party hereto and, to the extent of the interest assigned pursuant to such Assignment Agreement, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment Agreement,
be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be (A) entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03 with respect to facts and circumstances occurring on or prior
to the effective date of such assignment and (B) subject to its obligations thereunder and under Section 9.13). If any assignment
by any Lender holding any Promissory Note is made after the issuance of such Promissory Note, the assigning Lender shall, upon the effectiveness
of such assignment or as promptly thereafter as practicable, surrender such Promissory Note to the Administrative Agent for cancellation,
and, if requested by either the assignee or the assigning Lender, the Borrower shall issue and deliver a new Promissory Note to such assignee
and/or to such assigning Lender, with appropriate insertions, to reflect the new commitments and/or outstanding Loans of the assignee
and/or the assigning Lender.
(iv) The Administrative
Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment Agreement
delivered to it and a register for the recordation of the names and addresses of the Lenders and their respective successors and assigns,
and the commitment of, and principal amount of and interest on the Loans and LC Disbursements owing to, each Lender or Issuing Bank pursuant
to the terms hereof from time to time (the “Register”). Failure to make any such recordation, or any error in such
recordation, shall not affect the Borrower’s obligations in respect of such Loans and LC Disbursements. The entries in the Register
shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower, each Issuing Bank and each Lender (but only as to its own holdings),
at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon
its receipt of a duly completed Assignment Agreement executed by an assigning Lender and an Eligible Assignee, the Eligible Assignee’s
completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the assignee is
already a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and
any written consent to the relevant assignment required by paragraph (b) of this Section, the Administrative Agent shall promptly
accept such Assignment Agreement and record the information contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(vi) By
executing and delivering an Assignment Agreement, the assigning Lender and the Eligible Assignee thereunder shall be deemed to confirm
and agree with each other and the other parties hereto as follows: (A) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim and that the amount of its commitments, and the outstanding
balances of its Loans, in each case without giving effect to any assignment thereof which has not become effective, are as set forth in
such Assignment Agreement, (B) except as set forth in clause (A) above, such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement,
or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any Restricted Subsidiary or
the performance or observance by the Borrower or any Restricted Subsidiary of any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto; (C) such assignee represents and warrants that it is an Eligible
Assignee (and not a Disqualified Institution), legally authorized to enter into such Assignment Agreement; (D) such assignee confirms
that it has received a copy of this Agreement, the Intercreditor Agreement and each other then-applicable Acceptable Intercreditor Agreement,
together with copies of the financial statements referred to in Section 4.01(c) or the most recent financial statements delivered
pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment Agreement; (E) such assignee will independently and without reliance upon the Administrative
Agent, the assigning Lender or any other Lender and based on such documents and information as it deems appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this Agreement; (F) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative
Agent, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as
a Lender.
(c) (i) Any Lender may,
without the consent of the Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender, sell participations
to any bank or other entity (other than to any Disqualified Institution or an Affiliate thereof referred to in the last proviso of clause
(b)(i) of this Section 9.05 and identified to the Administrative Agent as such, any Defaulting Lender or any natural Person)
(a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including
all or a portion of its commitments and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant
to which any Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and
to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the relevant Participant, agree to any amendment, modification or waiver
described in (x) clause (A) of the first proviso to Section 9.02(b) that directly and adversely affects the Loans or commitments
in which such Participant has an interest and (y) clauses (B)(1), (2) or (3) of the first proviso to Section
9.02(b). Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section (it being understood that the documentation required under Section
2.17(f) shall be delivered to the participating Lender, and if additional amounts are required to be paid pursuant to Section
2.17(a) or Section 2.17(c), to the Borrower). To the extent permitted by applicable Requirements of Law, each Participant
also shall be entitled to the benefits of Section 9.09 as though it were a Lender; provided that such Participant agrees
to be subject to Section 2.18(c) as though it were a Lender.
(ii) No
Participant shall be entitled to receive any greater payment under Sections 2.15, 2.16 or 2.17 than the participating
Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written consent (in its sole discretion) expressly acknowledging such Participant
may receive a greater benefit. Any Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 2.17 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(f) as though it were a Lender and to deliver the tax forms required to
claim an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document and then only to the extent
of any amount to which such Lender would be entitled in the absence of any such participation (it being understood that the documentation
required under Section 2.17(f) shall be delivered to the participating Lender, and if additional amounts are required to be paid
pursuant to Section 2.17(a) or Section 2.17(c), to the Borrower).
Each Lender
that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which
it enters the name and address of each Participant and their respective successors and assigns, and the principal amounts and stated interest
of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”);
provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity
of any Participant or any information relating to any Participant’s interest in any Commitment, Loan, Letter of Credit or any other
obligation under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment,
Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the Treasury Regulations. The entries in
the Participant Register shall be conclusive absent manifest error, and each Lender shall treat each Person whose name is recorded in
the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining
a Participant Register.
(d) (i) Any Lender may at any time pledge
or assign a security interest in all or any portion of its rights under this Agreement (other than to any Disqualified Institution, Defaulting
Lender or any natural person) to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations
to any Federal Reserve Bank or other central bank having jurisdiction over such Lender, and this Section 9.05 shall not apply
to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall
release any Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(ii) No Lender may
at any time enter into a total return swap, total rate of return swap, credit default swap or other Derivative Instrument under which
any Loan or other Obligation hereunder is a reference obligation with any counterparty that is a Disqualified Institution, in each case
unless the terms of such Derivative Transaction do not allow for such Lender to provide Confidential Information regarding Holdings or
its subsidiaries to such counterparty and such Lender shall not agree to allow such counterparty (or its Affiliates) to direct the vote
of such Lender with respect to any matter regarding the Facilities (including in any bankruptcy or other restructuring transaction).
(e) Notwithstanding anything
to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle
(an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and
the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC
to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) in no event may any Lender grant any option to provide
to the Borrower all or any part of any Loan that such Granting Lender would have otherwise been obligated to make to the Borrower pursuant
to this Agreement to any Disqualified Institution or Defaulting Lender. The making of any Loan by an SPC hereunder shall utilize the
Commitment or Additional Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.
Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs
or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Section
2.15, 2.16 or 2.17) and no SPC shall be entitled to any greater amount under Section 2.15, 2.16 or 2.17
or any other provision of this Agreement or any other Loan Document that the Granting Lender would have been entitled to receive,
unless the grant to such SPC is made with the prior written consent of the Borrower (in its sole discretion), expressly acknowledging
that such SPC’s entitlement to benefits under Section 2.15, 2.16 or 2.17 is not limited to what the Granting
Lender would have been entitled to receive absent the grant to the SPC, (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the Granting Lender) and (iii) the Granting Lender shall for
all purposes including approval of any amendment, waiver or other modification of any provision of the Loan Documents, remain the Lender
of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper
or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the Requirements of Law of the U.S. or any State
thereof; provided that (i) such SPC’s Granting Lender is in compliance in all material respects with its obligations to
the Borrower hereunder and (ii) each Lender designating any SPC hereby agrees to indemnify, save and hold harmless each other party hereto
for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such SPC during such period
of forbearance. In addition, notwithstanding anything to the contrary contained in this Section 9.05, any SPC may (i) with notice
to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guaranty or credit or liquidity
enhancement to such SPC.
(f) (i) Any assignment or participation by a
Lender without the Borrower’s consent (A) to any Disqualified Institution or any Affiliate thereof or (B) to the extent the Borrower’s
consent is required under this Section 9.05, to any other Person, shall be null and void, and the Borrower shall be entitled to
seek specific performance to unwind any such assignment or participation and/or specifically enforce this Section 9.05(f) in addition
to injunctive relief (without posting a bond or presenting evidence of irreparable harm) or any other remedies available to the Borrower
at law or in equity; it being understood and agreed that Holdings, the Borrower and its subsidiaries will suffer irreparable harm if
any Lender breaches any obligation under this Section 9.05 as it relates to any assignment, participation or pledge of any Loan
or Commitment to any Disqualified Institution or any Affiliate thereof or any other Person to whom the Borrower’s consent is required
but not obtained. Nothing in this Section 9.05(f) shall be deemed to prejudice any right or remedy that Holdings or the Borrower
may otherwise have at law or equity or pursuant to Section 9.05(f)(ii) below;
(ii) If any
assignment or participation under this Section 9.05 is made to any Affiliate of any Disqualified Institution (other than any Bona
Fide Debt Fund that is not itself a Disqualified Institution) without the Borrower’s prior written consent (any such person, a
“Disqualified Person”), then the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified
Person and the Administrative Agent, (A) terminate any Commitment of such Disqualified Person and repay all obligations of the Borrower
owing to such Disqualified Person, (B) in the case of any outstanding Term Loans held by such Disqualified Person, purchase such Term
Loans by paying the lesser of (x) par and (y) the amount that such Disqualified Person paid to acquire such Term Loans, plus accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and/or (C) require such Disqualified Person to assign, without
recourse (in accordance with and subject to the restrictions contained in this Section 9.05), all of its interests, rights and
obligations under this Agreement to one or more Eligible Assignees and if such person does not execute and deliver to the Administrative
Agent a duly executed Assignment Agreement reflecting such assignment within five Business Days of the date on which the Eligible Assignee
executes and delivers such Assignment Agreement to such person, then such person shall be deemed to have executed and delivered such
Assignment Agreement without any action on its part; provided that (I) in the case of clauses (A) and (B), the Borrower
shall not be liable to the relevant Disqualified Person under Section 2.16 if any LIBO Rate Loan owing to such Disqualified Person
is repaid or purchased other than on the last day of the Interest Period relating thereto, (II) in the case of clause (C), the
relevant assignment shall otherwise comply with this Section 9.05 (except that (x) no registration and processing fee required
under this Section 9.05 shall be required with any assignment pursuant to this paragraph and (y) any Term Loan acquired by any
Affiliated Lender pursuant to this paragraph will not be included in calculating compliance with the Affiliated Lender Cap for a period
of 90 days following such transfer; provided that, to the extent the aggregate principal amount of Term Loans held by Affiliated
Lenders exceeds the Affiliated Lender Cap on the 91st day following such transfer, then such excess amount shall either be (x) contributed
to Holdings, the Borrower or any of its subsidiaries and retired and cancelled immediately upon such contribution or (y) automatically
cancelled)) and (III) in no event shall such Disqualified Person be entitled to receive amounts set forth in Section 2.13(d).
Further, any Disqualified Person identified by the Borrower to the Administrative Agent (A) shall not be permitted to (x) receive information
or reporting provided by any Loan Party, the Administrative Agent or any Lender and/or (y) attend and/or participate in conference calls
or meetings attended solely by the Lenders and the Administrative Agent, (B) (x) shall not for purposes of determining whether the Required
Lenders or the majority Lenders under any Class have (i) consented (or not consented) to any amendment, modification, waiver, consent
or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted
on any matter related to any Loan Document or (iii) directed or required the Administrative Agent or any Lender to undertake any action
(or refrain from taking any action) with respect to or under any Loan Document, have a right to consent (or not consent), otherwise act
or direct or require the Administrative Agent or any Lender to take (or refrain from taking) any such action; it being understood that
all Loans held by any Disqualified Person shall be deemed to be not outstanding for all purposes of calculating whether the Required
Lenders, majority Lenders under any Class or all Lenders have taken any action and (y) shall be deemed to vote in the same proportion
as Lenders that are not Disqualified Persons in any proceeding under any Debtor Relief Law commenced by or against the Borrower or any
other Loan Party and (C) shall not be entitled to receive the benefits of Section 9.03. For the sake of clarity, the provisions
in this Section 9.05(f) shall not apply to any Person that is an assignee of any Disqualified Person, if such assignee is not
a Disqualified Person;
(iii) Upon
the request of any Lender, the Administrative Agent may and the Borrower will make the list of Disqualified Institutions (other than any
Disqualified Institution that is a reasonably identifiable Affiliate of another Disqualified Institution on the basis of such Person’s
name) at the relevant time and such Lender may provide the list to any potential assignee for the purpose of verifying whether such Person
is a Disqualified Institution, in each case so long as such Lender and such potential assignee agree to keep the list of Disqualified
Institutions confidential in accordance with the terms hereof;
(iv) The
Borrower shall deliver the list of Disqualified Institutions and any updates, supplements or modifications thereto to JPMDQ_Contact@jpmorgan.com
and any such updates, supplements or modifications thereto shall only become effective 3 days after such notice. In the event the list
of Disqualified Institutions is not in accordance with the foregoing, it shall be deemed not received and not effective (except with respect
to any delivery on or prior to the Closing Date); and
(v) Notwithstanding
anything herein to the contrary, the Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain,
inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions.
(g) Notwithstanding
anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under this
Agreement in respect of its Initial Term Loans or Additional Term Loans to an Affiliated Lender on a non-pro rata basis (A) through
Dutch Auctions, or similar transactions pursuant to procedures to be established by the applicable “auction agent” that are
consistent with this Section 9.05(g), in each case open to all Lenders holding the relevant Initial Term Loans or such Additional
Term Loans, as applicable, on a pro rata basis or (B) through open market purchases, in each case with respect to clauses (A)
and (B), without the consent of the Administrative Agent; provided that:
(i) any Initial
Term Loans or Additional Term Loans acquired by Holdings, the Borrower or any of its subsidiaries shall, to the extent permitted by applicable
Requirements of Law, be retired and cancelled immediately upon the acquisition thereof; provided that upon any such retirement
and cancellation, the aggregate outstanding principal amount of the Initial Term Loans or Additional Term Loans, as applicable, shall
be deemed reduced by the full par value of the aggregate principal amount of the Initial Term Loans or Additional Term Loans so retired
and cancelled, and each principal repayment installment with respect to the Initial Term Loans or Additional Term Loans pursuant to Section
2.10(a) shall be reduced on a pro rata basis by the full par value of the aggregate principal amount of Initial Term Loans
or Additional Term Loans so cancelled (as applicable);
(ii) any
Initial Term Loans or Additional Term Loans acquired by any Affiliated Lender may (but shall not be required to) be contributed to Holdings,
the Borrower or any of its subsidiaries or Parent Companies for purposes of cancelling such Indebtedness, and in exchange thereof such
Affiliated Lender may receive debt or equity securities of such entity or a direct or indirect parent entity or subsidiary thereof that
are otherwise permitted to be issued by such entity at such time, it being understood that (x) any such Initial Term Loans or Additional
Term Loans shall, to the extent permitted by applicable Requirements of Law, be retired and cancelled immediately upon such contribution
and (y) any such contribution shall be treated as a capital contribution that builds the Available Amount pursuant to clause (iii)
of the definition thereof by an amount equal to the fair market value (as determined by the Borrower in good faith) of the Initial Term
Loans or Additional Term Loans so contributed; provided that if the fair market value of such Initial Term Loans or Additional
Term Loans cannot be determined by the Borrower, the fair market value shall be deemed to be the purchase price of such Initial Term Loans
or Additional Term Loans paid by such Affiliated Lender); provided that upon any such cancellation, the aggregate outstanding principal
amount of the Initial Term Loans or Additional Term Loans, as applicable, shall be deemed reduced, as of the date of such contribution,
by the full par value of the aggregate principal amount of the Initial Term Loans or Additional Term Loans so contributed and cancelled,
and each principal repayment installment with respect to the Initial Term Loans or Additional Term Loans pursuant to Section 2.10(a)
shall be reduced pro rata by the full par value of the aggregate principal amount of Initial Term Loans or Additional Term Loans
so contributed and cancelled;
(iii) the
relevant Affiliated Lender and assigning Lender shall have executed an Affiliated Lender Assignment and Assumption;
(iv) after
giving effect to such assignment and to all other assignments to all Affiliated Lenders, the aggregate principal amount of all Initial
Term Loans and Additional Term Loans then held by all Affiliated Lenders shall not exceed 25% of the aggregate principal amount of the
Initial Term Loans and Additional Term Loans then outstanding (after giving effect to any substantially simultaneous cancellations thereof)
(the “Affiliated Lender Cap”); provided that each party hereto acknowledges and agrees that the Administrative
Agent shall not be liable for any losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements
of any kind or nature whatsoever incurred or suffered by any Person in connection with any compliance or non-compliance with this clause
(g)(iv) or any purported assignment exceeding the Affiliated Lender Cap (it being understood and agreed that the Affiliated Lender
Cap is intended to apply to any Loans made available to Affiliated Lenders by means other than formal assignment (e.g., as a result of
an acquisition of another Lender (other than any Debt Fund Affiliate) by any Affiliated Lender or the provision of Additional Term Loans
by any Affiliated Lender); provided, further, that to the extent that any assignment to any Affiliated Lender would result
in the aggregate principal amount of all Initial Term Loans and Additional Term Loans held by Affiliated Lenders exceeding the Affiliated
Lender Cap (after giving effect to any substantially simultaneous cancellations thereof), the assignment of the relevant excess amount
shall be null and void;
(v) in connection
with any assignment effected pursuant to a Dutch Auction and/or open market purchase conducted by Holdings, the Borrower or any of its
Restricted Subsidiaries, (A) the relevant Person may not use the proceeds of any Revolving Loans or Additional Revolving Loans to fund
such assignment and (B) no Event of Default exists at the time of acceptance of bids for the Dutch Auction or the confirmation of such
open market purchase, as applicable;
(vi) by
its acquisition of Term Loans, each relevant Affiliated Lender shall be deemed to have acknowledged and agreed that:
(A) the
Term Loans held by such Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any Required
Lender or other Lender vote (and the Term Loans held by such Affiliated Lender shall be deemed to be voted pro rata along with
the other Lenders that are not Affiliated Lenders); provided that (x) such Affiliated Lender shall have the right to vote (and
the Term Loans held by such Affiliated Lender shall not be so disregarded) with respect to any amendment, modification, waiver, consent
or other action that requires the vote of all Lenders or all Lenders directly and adversely affected thereby, as the case may be, and
(y) no amendment, modification, waiver, consent or other action shall (1) disproportionately affect such Affiliated Lender in its capacity
as a Lender as compared to other Lenders of the same Class that are not Affiliated Lenders or (2) deprive any Affiliated Lender of its
share of any payments which the Lenders are entitled to share on a pro rata basis hereunder, in each case without the consent of
such Affiliated Lender; and
(B) such
Affiliated Lender, solely in its capacity as an Affiliated Lender, will not be entitled to (i) attend (including by telephone) or participate
in any meeting or discussion (or portion thereof) among the Administrative Agent or any Lender or among Lenders to which the Loan Parties
or their representatives are not invited or (ii) receive any information or material prepared by the Administrative Agent or any Lender
or any communication by or among the Administrative Agent and one or more Lenders, except to the extent such information or materials
have been made available by the Administrative Agent or any Lender to any Loan Party or its representatives (and in any case, other than
the right to receive notices of Borrowings, prepayments and other administrative notices in respect of its Initial Term Loans or Additional
Term Loans required to be delivered to Lenders pursuant to Article 2); and
(vii) neither
the Sponsor nor any Affiliated Lender shall be required to represent or warrant that it is not in possession of material non-public information
with respect to Holdings, the Borrower and/or any subsidiary thereof and/or their respective securities in connection with any assignment
permitted by this Section 9.05(g).
Notwithstanding anything
to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement
in respect of its Initial Term Loans, Additional Term Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments
to any Debt Fund Affiliate, and any Debt Fund Affiliate may, from time to time, purchase Initial Term Loans, Additional Term Loans, Revolving
Credit Commitments or Additional Revolving Credit Commitments (x) on a non-pro rata basis through Dutch Auctions or similar transactions
open to all applicable Lenders or (y) on a non-pro rata basis through open market purchases without the consent of the Administrative
Agent, in each case, notwithstanding the requirements set forth in subclauses (i) through (vii) of this clause (g);
provided that the Initial Term Loans, Additional Term Loans and unused commitments and other Loans of all Debt Fund Affiliates
shall not account for more than 49.9% of the amounts included in determining whether the Required Lenders or Required Revolving Lenders
have (A) consented to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document
or any departure by any Loan Party therefrom or (B) directed or required the Administrative Agent or any Lender to undertake any action
(or refrain from taking any action) with respect to any Loan Document. Any Initial Term Loans or Additional Term Loans acquired by any
Debt Fund Affiliate may (but shall not be required to) be contributed to the Borrower or any of its subsidiaries or parent entities for
purposes of cancelling such Indebtedness and in exchange thereof such Debt Fund Affiliate may receive debt or equity securities of such
entity or a direct or indirect parent entity or subsidiary thereof that are otherwise permitted to be issued by such entity at such time
(it being understood that (x) any Initial Term Loans or Additional Term Loans so contributed shall, to the extent permitted by applicable
Requirements of Law, be retired and cancelled immediately upon contribution thereof and (y) any such contribution shall be treated as
a capital contribution that builds the Available Amount pursuant to clause(iii) of the definition thereof by an amount equal to
the fair market value (as determined by the Borrower in good faith) of the Initial Term Loans or Additional Term Loans so contributed;
provided that if the fair market value of such Initial Term Loans or Additional Term Loans cannot be determined by the Borrower,
the fair market value shall be deemed to be the purchase price of such Initial Term Loans or Additional Term Loans paid by such Debt
Fund Affiliate)); provided that upon any such cancellation, the aggregate outstanding principal amount of the Initial Term Loans
or Additional Term Loans shall be deemed reduced, as of the date of such contribution, by the full par value of the aggregate principal
amount of the Initial Term Loans or Additional Term Loans so contributed and cancelled, and each principal repayment installment with
respect to the Initial Term Loans or Additional Term Loans pursuant to Section 2.10(a) shall be reduced pro rata by the
full par value of the aggregate principal amount of Initial Term Loans or Additional Term Loans so contributed and cancelled.
(h) Notwithstanding anything
to the contrary herein, at the election of the Borrower, Revolving Loans and Revolving Credit Commitments held by a Defaulting Lender
may be assigned to an Affiliated Lender without the need for the consent of any other Person, with the price of such assignment being
the lower of (i) par plus accrued and unpaid interest and commitment fees thereon and (ii) such lower amount as agreed by the applicable
Defaulting Lender and such Affiliated Lender; provided that Revolving Lenders that are not Defaulting Lenders shall have the right
to repurchase such assigned Revolving Loans and Revolving Credit Commitments from such Affiliated Lender, with the price of such assignment
being the lower of (i) par plus accrued and unpaid interest and commitment fees thereon and (ii) such lower amount as agreed by
such Revolving Lender and such Affiliated Lender; provided further that the provisions of clause (g)(vi) above shall apply
with respect to such Revolving Loans or Revolving Credit Commitments acquired and held by an Affiliated Lender, other than an Affiliated
Lender that is a Debt Fund Affiliate, in which case only the limitation set forth in the final paragraph of Section 9.05(g) shall
apply.
Section 9.06. Survival.
All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance
of any Letter of Credit regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative
Agent may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit
is extended hereunder, and shall continue in full force and effect until the Termination Date. The provisions of Sections 2.15,
2.16, 2.17, 9.03 and 9.13 and Article 8 shall survive and remain in full force and effect regardless
of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters
of Credit and the Revolving Credit Commitment or any Additional Commitment, the occurrence of the Termination Date or the termination
of this Agreement or any provision hereof but in each case, subject to the limitations set forth in this Agreement.
Section 9.07.
Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This
Agreement, the other Loan Documents and the Fee Letter constitute the entire agreement among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective when it has been executed by Holdings, the Borrower and the Administrative Agent and when the Administrative
Agent has received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Delivery of
an executed counterpart of a signature page to this Agreement by facsimile or by email as a “.pdf” or “.tif” attachment
shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 9.08.
Severability. To the extent permitted by applicable Requirements of Law, any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity
of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 9.09.
Right of Setoff. At any time when an Event of Default exists, upon the written consent of the Administrative Agent and each Issuing
Bank, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Requirements of
Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations
(in any currency) at any time owing by the Administrative Agent, such Issuing Bank or such Lender to or for the credit or the account
of the Borrower or any Loan Party against any of and all the Secured Obligations held by the Administrative Agent, such Issuing Bank or
such Lender, irrespective of whether or not the Administrative Agent, such Issuing Bank or such Lender shall have made any demand under
the Loan Documents and although such obligations may be contingent or unmatured or are owed to a branch or office of such Lender or Issuing
Bank different than the branch or office holding such deposit or obligation on such Indebtedness. Any applicable Lender or Issuing Bank
shall promptly notify the Borrower and the Administrative Agent of such set-off or application; provided that any failure to give
or any delay in giving such notice shall not affect the validity of any such set-off or application under this Section. The rights of
each Lender, each Issuing Bank and the Administrative Agent under this Section are in addition to other rights and remedies (including
other rights of setoff) which such Lender, such Issuing Bank or the Administrative Agent may have.
Section 9.10. Governing Law; Jurisdiction; Consent to
Service of Process.
(a) THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING
UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS), WHETHER
IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK; PROVIDED, THAT (I) THE INTERPRETATION OF THE DEFINITION OF “CLOSING DATE MATERIAL ADVERSE EFFECT”
AND THE DETERMINATION OF WHETHER A CLOSING DATE MATERIAL ADVERSE EFFECT HAS OCCURRED, (II) THE DETERMINATION OF THE ACCURACY OF ANY SPECIFIED
ACQUISITION AGREEMENT REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF MERGER SUB 1 OR ITS APPLICABLE AFFILIATE HAS A
RIGHT TO TERMINATE ITS OBLIGATIONS UNDER THE ACQUISITION AGREEMENT OR DECLINE TO CONSUMMATE THE ACQUISITION AND (III) THE DETERMINATION
OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE ACQUISITION AGREEMENT AND, IN ANY CASE, ANY CLAIM
OR DISPUTE ARISING OUT OF ANY SUCH INTERPRETATION OR DETERMINATION OR ANY ASPECT THEREOF, SHALL IN EACH CASE BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES
OF CONFLICTS OF LAWS.
(b) EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL
OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS
OF LAW, FEDERAL COURT; PROVIDED THAT WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE ACQUISITION
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY WHICH DOES NOT INVOLVE ANY CLAIMS AGAINST THE ARRANGERS, THE ISSUING BANKS, THE LENDERS
OR ANY INDEMNIFIED PERSON, THIS SENTENCE SHALL NOT OVERRIDE ANY JURISDICTION PROVISION IN THE ACQUISITION AGREEMENT. EACH PARTY HERETO
AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE
OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE
REQUIREMENTS OF LAW. EACH PARTY HERETO AGREES THAT THE ADMINISTRATIVE AGENT RETAINS THE RIGHT TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY
IN THE COURTS OF ANY OTHER JURISDICTION SOLELY IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT.
(c) EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
(d) TO THE EXTENT PERMITTED
BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND AGREES
THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL) DIRECTED TO IT AT ITS ADDRESS
FOR NOTICES AS PROVIDED FOR IN SECTION 9.01. EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY LOAN DOCUMENT THAT SERVICE
OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS
AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE REQUIREMENTS OF LAW.
Section 9.11.
Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
Section 9.12.
Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part
of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Section 9.13. Confidentiality.
Each of the Administrative Agent, each Lender, each Issuing Bank and each Arranger agrees (and each Lender agrees to cause its SPC, if
any) to maintain the confidentiality of the Confidential Information (as defined below), except that Confidential Information may be
disclosed (a) to its and its Affiliates’ directors, officers, managers, employees, independent auditors, or other experts and advisors,
including accountants, legal counsel and other advisors (collectively, the “Representatives”) on a confidential, “need
to know” basis solely in connection with the transactions contemplated hereby and who are informed of the confidential nature of
the Confidential Information and are or have been advised of their obligation to keep the Confidential Information of this type confidential;
provided that such Person shall be responsible for its Affiliates’ and their Representatives’ compliance with this
paragraph; provided, further, that unless the Borrower otherwise consents, no such disclosure shall be made by the Administrative
Agent, any Issuing Bank, any Arranger, any Lender or any Affiliate or Representative thereof to any Affiliate or Representative of the
Administrative Agent, any Issuing Bank, any Arranger, or any Lender that is a Disqualified Institution, (b) upon the demand or request
of any regulatory or governmental authority having jurisdiction over such Person or its Affiliates (in which case such Person shall,
except with respect to any audit or examination conducted by bank accountants or any Governmental Authority or regulatory authority exercising
examination or regulatory authority, to the extent permitted by applicable Requirements of Law, (i) inform the Borrower promptly in advance
thereof and (ii) ensure that any information so disclosed is accorded confidential treatment), (c) to the extent compelled by legal process
in, or reasonably necessary to, the defense of such legal, judicial or administrative proceeding, in any legal, judicial or administrative
proceeding or otherwise as required by applicable Requirements of Law (in which case such Person shall (i) to the extent permitted by
law, inform the Borrower promptly in advance thereof, (ii) ensure that any such information so disclosed is accorded confidential treatment
and (iii) allow the Borrower a reasonable opportunity to object to such disclosure in such proceeding), (d) to any other party to this
Agreement, (e) subject to an acknowledgment and agreement by the relevant recipient that the Confidential Information is being disseminated
on a confidential basis (on substantially the terms set forth in this paragraph or as otherwise reasonably acceptable to the Borrower
and the Administrative Agent, including as set forth in the Information Memorandum) in accordance with the standard syndication process
of the Arrangers or market standards for dissemination of the relevant type of information, which shall in any event require “click
through” or other affirmative action on the part of the recipient to access the Confidential Information and acknowledge its confidentiality
obligations in respect thereof, to (i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or prospective
Participant in, any of its rights or obligations under this Agreement, including any SPC (in each case other than a Disqualified Institution),
(ii) any pledgee referred to in Section 9.05, (iii) any actual or prospective direct or indirect contractual counterparty (or
its advisors) to any Derivative Transaction (including any credit default swap) or similar derivative product under which payments are
to be made by reference to the Borrower and its Obligations, (iv) any actual or prospective direct or indirect contractual counterparty
(or its advisors) to any Derivative Transaction (including any credit default swap) or similar derivative product to which any Loan Party
is a party and (v) subject to the Borrower’s prior approval of the information to be disclosed (not to be unreasonably withheld
or delayed), to Moody’s or S&P on a confidential basis in connection with obtaining or maintaining ratings as required under
Section 5.13, (f) with the prior written consent of the Borrower and (g) to the extent the Confidential Information becomes
publicly available other than as a result of a breach of this Section by such Person, its Affiliates or their respective Representatives.
For purposes of this Section, “Confidential Information” means all information relating to Holdings, the Borrower
and/or any of its subsidiaries and their respective businesses, the Sponsor, the Transactions, the Amendment No. 1 Transactions, the
Amendment No. 2 Transactions or the Amendment No. 3 Transactions (including any information obtained by the Administrative Agent, any
Issuing Bank, any Lender or any Arranger, or any of their respective Affiliates or Representatives, based on a review of the books and
records relating to Holdings, the Borrower and/or any of its subsidiaries and their respective Affiliates from time to time, including
prior to the date hereof) other than any such information that is publicly available to the Administrative Agent or any Arranger, Issuing
Bank, or Lender on a non-confidential basis prior to disclosure by Holdings, the Borrower or any of its subsidiaries. For the avoidance
of doubt, in no event shall any disclosure of any Confidential Information be made to Person that is a Disqualified Institution at the
time of disclosure.
Section 9.14. No Fiduciary
Duty. Each of the Administrative Agent, the Arrangers, each Lender, each Issuing Bank and their respective Affiliates (collectively,
solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the
Loan Parties, their stockholders and/or their respective affiliates. Each Loan Party agrees that nothing in the Loan Documents or otherwise
will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the
one hand, and such Loan Party, its respective stockholders or its respective affiliates, on the other. Each Loan Party acknowledges and
agrees that: (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and
thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Loan Parties, on the other,
and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility
in favor of any Loan Party, its respective stockholders or its respective affiliates with respect to the transactions contemplated hereby
(or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised,
is currently advising or will advise any Loan Party, its respective stockholders or its respective Affiliates on other matters) or any
other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely
as principal and not as the agent or fiduciary of such Loan Party, its respective management, stockholders, creditors or any other Person.
Each Loan Party acknowledges and agrees that such Loan Party has consulted its own legal, tax and financial advisors to the extent it
deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process
leading thereto.
Section 9.15.
Several Obligations. The respective obligations of the Lenders hereunder are several and not joint and the failure of any Lender
to make any Loan, issue any Letter of Credit or perform any of its obligations hereunder shall not relieve any other Lender from any of
its obligations hereunder.
Section 9.16.
USA PATRIOT Act. Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Loan Parties that pursuant
to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party
in accordance with the USA PATRIOT Act.
Section 9.17.
Disclosure. Each Loan Party, each Issuing Bank and each Lender hereby acknowledges and agrees that the Administrative Agent and/or
its Affiliates from time to time may hold investments in, make other loans to or have other relationships with any of the Loan Parties
and their respective Affiliates.
Section 9.18.
Appointment for Perfection. Each Lender hereby appoints each other Lender and each Issuing Bank as its agent for the purpose of
perfecting Liens for the benefit of the Administrative Agent, the Issuing Banks and the Lenders, in assets which, in accordance with Article
9 of the UCC or any other applicable Requirements of Law can be perfected only by possession. If any Lender or Issuing Bank (other than
the Administrative Agent) obtains possession of any Collateral, such Lender or such Issuing Bank shall notify the Administrative Agent
thereof; and, promptly upon the Administrative Agent’s request therefor shall deliver such Collateral to the Administrative Agent
or otherwise deal with such Collateral in accordance with the Administrative Agent’s instructions.
Section 9.19. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan or Letter of Credit, together
with all fees, charges and other amounts which are treated as interest on such Loan or Letter of Credit under applicable law (collectively,
the “Applicable Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender or Issuing Bank holding such Loan or Letter of Credit in accordance
with applicable Requirements of Law, the rate of interest payable in respect of such Loan or Letter of Credit hereunder, together with
all Applicable Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Applicable
Charges that would have been payable in respect of such Loan or Letter of Credit but were not payable as a result of the operation of
this Section shall be cumulated and the interest and Applicable Charges payable to such Lender or Issuing Bank in respect of other Loans
or Letters of Credit or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender or Issuing Bank.
Section 9.20. Intercreditor
Agreement. REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT. EACH LENDER AND ISSUING BANK HEREUNDER AGREES THAT IT WILL BE BOUND
BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND AUTHORIZES AND INSTRUCTS THE ADMINISTRATIVE
AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS “FIRST LIEN CREDIT AGREEMENT COLLATERAL AGENT” AND ON BEHALF OF SUCH LENDER
OR ISSUING BANK. THE PROVISIONS OF THIS SECTION 9.20 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS OF THE INTERCREDITOR
AGREEMENT, THE FORM OF WHICH IS ATTACHED AS AN EXHIBIT TO THIS AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR AGREEMENT ITSELF
TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER AND ISSUING BANK IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF
THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES MAKES
ANY REPRESENTATION TO ANY LENDER OR ISSUING BANK AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR
AGREEMENT. THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE LENDERS UNDER THE SECOND LIEN CREDIT AGREEMENT TO EXTEND CREDIT
THEREUNDER AND SUCH LENDERS ARE INTENDED THIRD PARTY BENEFICIARIES OF SUCH PROVISIONS AND THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.
Section 9.21.
Conflicts. Notwithstanding anything to the contrary contained herein or in any other Loan Document (but excluding the Intercreditor
Agreement), in the event of any conflict or inconsistency between this Agreement and any other Loan Document (excluding the Intercreditor
Agreement), the terms of this Agreement shall govern and control; provided that in the case of any conflict or inconsistency between
the Intercreditor Agreement and any other Loan Document, the terms of the Intercreditor Agreement shall govern and control.
Section 9.22.
Release of Guarantors. Notwithstanding anything in Section 9.02(b) to the contrary, (a) any Subsidiary Guarantor shall automatically
be released from its obligations hereunder (and its Loan Guaranty shall be automatically released) (i) upon the consummation of any permitted
transaction or series of related transactions if as a result thereof such Subsidiary Guarantor ceases to be a Restricted Subsidiary (included
by merger or dissolution) or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions permitted
hereunder; or (ii) upon the occurrence of the Termination Date, (b) any Subsidiary Guarantor that qualifies as an “Excluded Subsidiary”
shall be released from its obligations hereunder (and its Loan Guaranty shall be automatically released) by the Administrative Agent promptly
following the request therefor by the Borrower and/or (c) the Person constituting Holdings immediately prior to the consummation of a
Holdings Reorganization Transaction whereby the existing “Holdings” is not intended to remain as such shall be automatically
released from its obligations hereunder (and its Loan Guaranty shall be automatically released) upon the consummation of such Holdings
Reorganization Transaction; provided, that the release of any Subsidiary Guarantor from its obligations under the Loan Guaranty
if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition thereof shall only be
permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect to such release and
the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower is deemed to have
made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an amount equal to the
portion of the fair market value of the net assets of such Person attributable to the Borrower’s equity interest therein as estimated
by the Borrower in good faith and such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f)) at such time. In
connection with any such release, the Administrative Agent shall, subject to receipt of an officer’s certificate from the Borrower
certifying that such transaction and release are permitted hereunder, promptly execute and deliver to the relevant Loan Party, at such
Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence termination or release. Any execution
and delivery of documents pursuant to the preceding sentence of this Section 9.22 shall be without recourse to or warranty by the
Administrative Agent.
Section 9.23. Acknowledgement and Consent
to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution
arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of
an EEA Resolution Authority and each party hereto agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may
be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its
parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
or
(iii) the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution
Authority.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
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A-B MERGER SUB I INC., as Holdings
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By:
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Name:
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Title:
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A-B MERGER SUB II LLC, as the Borrower
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By:
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Signature Page to First Lien Credit Agreement
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BOWLMOR AMF CORP., as Holdings
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By:
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Name:
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KINGPIN INTERMEDIATE HOLDINGS LLC, as the Borrower
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Signature Page to First Lien Credit Agreement
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JPMORGAN CHASE BANK, N.A., as Administrative Agent, Issuing Bank and as a Lender
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By:
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Name:
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By:
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
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By:
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Name:
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Signature Page to First Lien Credit Agreement
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GOLDMAN SACHS BANK USA
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By:
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Signature Page to First Lien Credit Agreement
Exhibit
10.15
EXECUTION
VERSION
FIFTH
AMENDMENT (this “Amendment”), dated as of September 25, 2020, to the First Lien Credit Agreement dated as of July
3, 2017 (as amended as of March 28, 2018, July 5, 2018, November 20, 2019 and June 10, 2020, and as further amended, restated, supplemented
or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”) among Kingpin Intermediate
Holdings LLC, as Borrower (as the successor to the initial borrower A-B Merger Sub II LLC), Bowlero Corp. (f/k/a Bowlmor AMF Corp.),
as Holdings (as the successor to initial Holdings A-B Merger Sub I Inc.), the financial institutions party thereto as Lenders, JPMorgan
Chase Bank, N.A. (“JPM”), as Administrative Agent and the other parties thereto.
WHEREAS,
the Borrower has entered into that certain First Lien Credit Agreement dated as of the date hereof (as amended, restated, supplemented
or otherwise modified from time to time, the “Incremental Liquidity Facility Credit Agreement”) among the Borrower,
Holdings, the financial institutions party thereto as lenders, JPM, as administrative agent and collateral agent, and the other parties
thereto.
WHEREAS,
in connection with the Incremental Liquidity Facility Credit Agreement, the Administrative Agent, Holdings, the Borrower and certain
Revolving Lenders (who collectively represent the Required Revolving Lenders) desire to make certain amendments and other changes to
the Credit Agreement, including with respect to the suspension of the Financial Covenant during the Covenant Waiver Period.
WHEREAS,
in connection with the foregoing, the Administrative Agent, Holdings, the Borrower and the Revolving Lenders party hereto (who collectively
represent the Required Revolving Lenders) desire to memorialize the terms of this Amendment and to make certain other changes set forth
herein by amending the Credit Agreement in accordance with Section 9.02 thereof.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Defined Terms. Capitalized terms used and not otherwise defined herein have the meanings assigned to them in the Credit Agreement
as amended hereby.
SECTION
2. Amendments. In accordance with Section 9.02 of the Credit Agreement and effective as of the Fifth Amendment Effective Date, the
Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken
text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the conformed copy of the Credit Agreement attached as Annex A hereto.
SECTION
3. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, Holdings, the Borrower and each
other Loan Party each represents and warrants solely to the other parties hereto on the Fifth Amendment Effective Date that:
(a)
(i) the execution, delivery and performance by such Loan Party of this Amendment (and the Credit Agreement, as amended hereby) is within
such Loan Party’s corporate or other organizational power and has been duly authorized by all necessary corporate or other organizational
action of each such Loan Party; and (ii) this Amendment has been duly executed and delivered by such Loan Party and is a legal, valid
and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to the Legal Reservations; and
(b)
the execution and delivery of this Amendment (and the Credit Agreement, as amended hereby) by each Loan Party and the performance by
such Loan Party thereof (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental
Authority, except (A) such as have been obtained or made and are in full force and effect, (B) in connection with the Perfection Requirements
or (C) such consents, approvals, registrations, filings, or other actions the failure to obtain or make which would not be reasonably
expected to have a Material Adverse Effect, (ii) will not violate any (A) of such Loan Party’s Organizational Documents or (B)
Requirements of Law applicable to such Loan Party which, in the case of this clause (ii), would reasonably be expected to have a Material
Adverse Effect, and (iii) will not violate or result in a default under (A) the Credit Agreement or (B) any other material Contractual
Obligation in respect of Indebtedness having an aggregate principal amount exceeding the Threshold Amount to which such Loan Party is
a party which, in the case of this clause (B), would reasonably be expected to result in a Material Adverse Effect.
SECTION
4. Fifth Amendment Effective Date. This Amendment shall become effective as of the first date (the “Fifth Amendment Effective
Date”) on which each of the following conditions shall have been satisfied (or waived by the Administrative Agent):
(a)
the Administrative Agent shall have received a counterpart signature page of this Amendment duly executed by Holdings, the Borrower and
each Loan Party, the Administrative Agent and certain Revolving Lenders, who shall, collectively, represent the Required Revolving Lenders;
(b)
all expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent (including pursuant to Section 9.03 of
the Credit Agreement and pursuant to Section 6 hereof) on or before the Fifth Amendment Effective Date shall have been (or shall substantially
contemporaneously be) paid in full in cash (to the extent invoiced at least three Business Days prior to the Fifth Amendment Effective
Date);
(c)
the representations and warranties set forth in Article 3 of the Credit Agreement shall be true and correct in all material respects
on and as of the Fifth Amendment Effective Date with the same effect as though such representations and warranties had been made on the
Fifth Amendment Effective Date; provided that to the extent that any representation and warranty specifically refers to a given date
or period, it shall be true and correct in all material respects as of such date or for such period;
(d)
no Event of Default under Section 7 of the Credit Agreement shall be continuing at the time of or immediately after giving effect to
the effectiveness of this Amendment; and
(e)
the Incremental Liquidity Facility Credit Agreement shall become effective simultaneously with the Fifth Amendment Effective Date.
By
executing this Amendment, the Required Revolving Lenders and the Administrative Agent shall be deemed to have consented to, approved
or accepted, or be satisfied with, or have waived, each of the preceding conditions. The Administrative Agent shall post a notice of
effectiveness and occurrence of the Fifth Amendment Effective Date, which shall be conclusive. The Administrative Agent and the Revolving
Lenders party hereto (who collectively represent the Required Revolving Lenders) acknowledge and agree that the Fifth Amendment Effective
Date is September 25, 2020.
SECTION
5. Effect of Amendment.
(a)
Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise
affect the rights and remedies of the Lenders or Agents under the Credit Agreement or any other Loan Document, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any
other provision of the Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower to a consent to, or a waiver, amendment, modification
or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other
Loan Document in similar or different circumstances.
(b)
From and after the Fifth Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein”, or words of like import, and each reference to the “Credit Agreement” in any
other Loan Document shall be deemed a reference to the Credit Agreement as amended hereby.
(c)
This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
(d)
Each party hereto acknowledges that this Amendment constitutes all notices or requests required under Section 9.02 of the Credit Agreement.
(e)
This Amendment shall not constitute a novation of the Credit Agreement or any other Loan Document.
(f)
The Required Revolving Lenders agree that any financial covenants contained in the Incremental Liquidity Credit Facility Agreement, including
in any “Loan Documents” and/or “Credit Support Documents” referred to therein do not need to be replicated in
the Credit Agreement or provided for the benefit of the Revolving Lenders.
SECTION
6. Expenses. The Borrower agrees to reimburse the Administrative Agent for its reasonable and documented out-of-pocket expenses
incurred by it in connection with this Amendment, including the reasonable and documented fees, charges and disbursements of Cahill Gordon
& Reindel LLP, counsel for the Administrative Agent.
SECTION
7. Amendments; Severability. (a) Once effective, this Amendment may not be amended nor may any provision hereof be waived except
pursuant to Section 9.02 of the Credit Agreement or as otherwise agreed by the Borrower and the Required Revolving Lenders (without the
need for the consent of the Required Lenders or any other Lender).
(b)
If any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the
remaining provisions of this Amendment shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction
shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION
8. Ratification and Reaffirmation. Each Loan Party hereby ratifies and reaffirms: (a) its Obligations in respect of the Credit Agreement
and each of the other Loan Documents to which it is a party and all of the covenants, duties, indebtedness and liabilities under the
Credit Agreement and the other Loan Documents to which it is a party, (b) its prior grant and the validity of the Liens granted by it
pursuant to the Collateral Documents, with all such Liens continuing in full force and effect after giving effect to this Amendment and
(c) the Liens and security interests created in favor of the Administrative Agent for the benefit of the Secured Parties pursuant to
each Collateral Document; which Liens shall continue to secure the Secured Obligations, in each case, on and subject to the terms and
conditions set forth in the Credit Agreement and the other Loan Documents.
SECTION
9. GOVERNING LAW; Waiver of Jury Trial; Jurisdiction. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions of Sections
9.10 and 9.11 of the Credit Agreement, as amended by this Amendment, are incorporated herein by reference, mutatis mutandis.
SECTION
10. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of
this Amendment.
SECTION
11. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. Delivery by facsimile or other electronic imaging means of an executed
counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.
SECTION
12. No Recourse. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Credit Agreement (as amended
hereby), including with respect to any references to the Incremental Liquidity Facility Credit Agreement, the Sponsor Preferred Stock
Subscription Agreement and/or any Sponsor Subordinated Debt, in no event will the Sponsor, or any Investor or any of their Affiliates
(other than the Loan Parties) have any liability with respect to obligations under the Credit Agreement (as amended hereby) or any other
Loan Documents and/or any transaction that is expressly permitted (or not prohibited by) the terms of the Amended Loan Documents. For
the further avoidance of doubt, none of the Secured Parties (in their capacities as such) are, or shall be, third party beneficiaries
(intended or otherwise) of the Incremental Liquidity Facility Credit Agreement, the Sponsor Preferred Stock Subscription Agreement and/or
any documentation in respect of any Sponsor Subordinated Debt.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto
duly authorized as of the date first written above.
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KINGPIN
INTERMEDIATE HOLDINGS LLC, as Borrower
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By:
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/s/
Brett I. Parker
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Name:
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Brett
I. Parker
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Title:
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Chief
Financial Officer
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BOWLERO
CORP., as Holdings
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By:
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/s/
Brett I. Parker
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Name:
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Brett
I. Parker
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Title:
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Chief
Financial Officer
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[Signature Page to Fifth Amendment]
Subsidiary Guarantors:
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Kingpin Intermediate LLC
Strike Holdings LLC
Bowlmor Lanes LLC
Bowlmor Times Square, LLC
Westwood Lanes, LLC
Strike Miami, LLC
Strike Cupertino VFP, LLC
Strike Tustin TDTL, LLC
Strike Consulting, LLC
Strike Long Island, LLC
Bowlero Jupiter Lanes, LLC
Leiserv, LLC
Brunswick Recreation LLC
Brunswick Zone XL Colorado Springs, LLC
Brunswick Zone XL Rockford LLC
Bowlero Scottsdale, LLC
Bowlero Leesburg, LLC
Bowlero Dania, LLC
AMF Worldwide Bowling Centers Holdings Inc.
AMF Bowling Centers Holdings Inc.
AMF Bowling Centers, Inc.
Texas Operations Holding Company, Inc.
AMF Bowling Worldwide, Inc.
Goode Bowling LLC
AMF
Beverage Company of Oregon, Inc.
King Louie Lenexa, Inc.
Bush River Corporation
L’aigle D’or, Inc.
Brunswick
Riverview Club, Inc.
Perry Hall Lounge, Inc.
Bowlero Ann Arbor, LLC
Bowlero Arcadia, LLC
Bowlero Arlington, LLC
Bowlero Atlantic Station, LLC
Bowlero Broadway Seattle, LLC
Bowlero Charlotte, LLC
Bowlero East Hartford, LLC
Bowlero Fairview, LLC
Bowlero Manteca, LLC
Bowlero Mission Valley, LLC
Bowlero Oxnard, LLC
Bowlero Sawgrass, LLC
Bowlero Sports and Entertainment Holdings, LLC
Bowlero Tukwila, LLC
Bowlero
Tuscaloosa, LLC
Bowlero
Tysons Corner, LLC
Bowlero Wallingford, LLC
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[Signature Page to Fifth
Amendment]
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By:
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/s/ Brett
I. Parker
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|
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Name:
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Brett I. Parker
|
|
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Title:
|
Chief Financial Officer
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[Signature Page to Fifth Amendment]
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The
Columbia Lounge, Inc.
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By:
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/s/ Thomas F. Shannon
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Name:
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Thomas F. Shannon
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Title:
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Chief Executive Officer / President
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[Signature Page to Fifth Amendment]
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300,
Inc.
Texas Operations, LLC
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By:
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/s/ William
Dufour
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Name:
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William Dufour
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Title:
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President
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[Signature Page to Fifth
Amendment]
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JPMORGAN
CHASE BANK, N.A.,
as Administrative Agent, Revolving Lender,
Swingline Lender and Issuing Bank
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By:
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/s/
Daniel Luby
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Name:
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Daniel Luby
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Title:
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Vice President
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[Signature Page to Fifth
Amendment]
ANNEX
A
AMENDMENTS
TO CREDIT AGREEMENT
[Attached]
ANNEX
A
Adjusted marked version reflecting changes made pursuant to the Fifth Amendment.
Added
text shown underscored; deleted text shown strikethrough.
FIRST
LIEN CREDIT AGREEMENT
Dated
as of July 3, 2017
(as
amended as of March 28, 2018, July 5, 2018, November 20, 2019 and,
June 10, 2020 and
September
25, 2020)
among
A-B
MERGER SUB II LLC
(to
be merged with and into KINGPIN INTERMEDIATE HOLDINGS LLC),
as the Borrower,
A-B
MERGER SUB I INC.
(to
be merged with and into BOWLMOR AMF CORP.),
as Holdings,
THE
FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent, Swingline Lender and an Issuing Bank,
and
JPMORGAN
CHASE BANK, N.A.,
CREDIT SUISSE SECURITIES (USA) LLC and
GOLDMAN
SACHS BANK USA,
as
Joint Lead Arrangers
and Joint Bookrunners
TABLE OF CONTENTS
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PAGE
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|
ARTICLE 1
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DEFINITIONS
|
2
|
|
|
Section 1.01.
|
Defined Terms
|
2
|
|
|
Section 1.02.
|
Classification of Loans and Borrowings
|
78
|
|
|
Section 1.03.
|
Terms Generally
|
79
|
|
|
Section 1.04.
|
Accounting Terms; GAAP
|
80
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|
Section 1.05.
|
Effectuation of Transactions
|
83
|
|
|
Section 1.06.
|
Timing of Payment and Performance
|
83
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Section 1.07.
|
Times of Day
|
83
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|
|
Section 1.08.
|
Currency Equivalents Generally
|
83
|
|
|
Section 1.09.
|
Cashless Rollovers
|
84
|
|
|
Section 1.10.
|
Alternative Currencies
|
84
|
|
|
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|
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ARTICLE 2
|
THE CREDITS
|
85
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Section 2.01.
|
Commitments
|
85
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Section 2.02.
|
Loans and Borrowings
|
86
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|
|
Section 2.03.
|
Requests for Borrowings
|
87
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|
Section 2.04.
|
Swingline Loans
|
88
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|
Section 2.05.
|
Letters of Credit
|
89
|
|
|
Section 2.06.
|
[Reserved]
|
94
|
|
|
Section 2.07.
|
Funding of Borrowings
|
94
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|
|
Section 2.08.
|
Type; Interest Elections
|
95
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|
Section 2.09.
|
Termination and Reduction of Commitments
|
96
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|
Section 2.10.
|
Repayment of Loans; Evidence of Debt
|
97
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|
Section 2.11.
|
Prepayment of Loans
|
98
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Section 2.12.
|
Fees
|
105
|
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|
Section 2.13.
|
Interest
|
107
|
|
|
Section 2.14.
|
Alternate Rate of Interest
|
108
|
|
|
Section 2.15.
|
Increased Costs
|
108
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|
|
Section 2.16.
|
Break Funding Payments
|
110
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Section 2.17.
|
Taxes
|
110
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Section 2.18.
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Payments Generally; Allocation of Proceeds;
Sharing of Payments
|
114
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Section 2.19.
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Mitigation Obligations; Replacement
of Lenders
|
116
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Section 2.20.
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Illegality
|
118
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Section 2.21.
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Defaulting Lenders
|
118
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Section 2.22.
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Incremental Credit Extensions
|
120
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Section 2.23.
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Extensions of Loans and Revolving Credit
Commitments.
|
125
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ARTICLE 3
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REPRESENTATIONS AND WARRANTIES
|
128
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Section 3.01.
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Organization; Powers
|
128
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Section 3.02.
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Authorization; Enforceability
|
128
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Section 3.03.
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Governmental Approvals; No Conflicts
|
129
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Section 3.04.
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Financial Condition; No Material Adverse
Effect
|
129
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Section 3.05.
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Properties
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129
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Section 3.06.
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Litigation and Environmental Matters
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130
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Section 3.07.
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Compliance with Laws
|
130
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Section 3.08.
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Investment Company Status
|
130
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Section 3.09.
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Taxes
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130
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Section 3.10.
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ERISA
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130
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Section 3.11.
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Disclosure
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131
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Section 3.12.
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Solvency
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131
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Section 3.13.
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Capitalization and Subsidiaries
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131
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Section 3.14.
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Security Interest in Collateral
|
132
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Section 3.15.
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Labor Disputes
|
132
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Section 3.16.
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Federal Reserve Regulations
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132
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Section 3.17.
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Sanctions and Anti-Corruption Laws
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132
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ARTICLE 4
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CONDITIONS
|
132
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Section 4.01.
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Closing Date
|
132
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Section 4.02.
|
Each Credit Extension
|
136
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ARTICLE 5
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AFFIRMATIVE COVENANTS
|
137
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Section 5.01.
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Financial Statements and Other Reports
|
137
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Section 5.02.
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Existence
|
140
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|
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Section 5.03.
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Payment of Taxes
|
140
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Section 5.04.
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Maintenance of Properties
|
141
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Section 5.05.
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Insurance
|
141
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Section 5.06.
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Inspections
|
141
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Section 5.07.
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Maintenance of Book and Records
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142
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Section 5.08.
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Compliance with Laws
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142
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Section 5.09.
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Hazardous Materials Activity
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142
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Section 5.10.
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Designation of Subsidiaries
|
143
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Section 5.11.
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Use of Proceeds
|
144
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Section 5.12.
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Covenant to Guarantee Obligations and
Give Security
|
144
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Section 5.13.
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Maintenance of Ratings
|
146
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Section 5.14.
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Maintenance of Fiscal Year
|
146
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Section 5.15.
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Further Assurances
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146
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Section 5.16.
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Conduct of Business
|
147
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Section 5.17.
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Annual Lender Call
|
147
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Section 5.18.
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Post-Closing Actions
|
147
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ARTICLE 6
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NEGATIVE COVENANTS
|
147
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Section 6.01.
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Indebtedness
|
147
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Section 6.02.
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Liens
|
153
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Section 6.03.
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No Further Negative Pledges
|
159
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Section 6.04.
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Restricted Payments; Certain Payments
of Indebtedness
|
161
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Section 6.05.
|
[Reserved]
|
168
|
|
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Section 6.06.
|
Investments
|
168
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Section 6.07.
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Fundamental Changes; Disposition of
Assets
|
172
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Section 6.08.
|
Sale and Lease-Back Transactions
|
178
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|
Section 6.09.
|
Transactions with Affiliates
|
178
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Section 6.10.
|
[Reserved]
|
180
|
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Section 6.11.
|
[Reserved]
|
180
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Section 6.12.
|
Amendments of or Waivers with Respect
to Restricted Debt
|
180
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|
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Section 6.13.
|
[Reserved]
|
180
|
|
|
Section 6.14.
|
Permitted Activities of Holdings
|
181
|
|
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Section 6.15.
|
Financial Covenant
|
182
|
|
|
|
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ARTICLE 7
|
EVENTS OF DEFAULT
|
188
|
|
|
Section 7.01.
|
Events of Default
|
188
|
|
|
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ARTICLE 8
|
THE ADMINISTRATIVE AGENT
|
192
|
|
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|
ARTICLE 9
|
MISCELLANEOUS
|
200
|
|
|
Section 9.01.
|
Notices
|
200
|
|
|
Section 9.02.
|
Waivers; Amendments
|
202
|
|
|
Section 9.03.
|
Expenses; Indemnity
|
209
|
|
|
Section 9.04.
|
Waiver of Claim
|
211
|
|
|
Section 9.05.
|
Successors and Assigns
|
211
|
|
|
Section 9.06.
|
Survival
|
221
|
|
|
Section 9.07.
|
Counterparts; Integration; Effectiveness
|
221
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
Section 9.08.
|
Severability
|
221
|
|
|
Section 9.09.
|
Right of Setoff
|
222
|
|
|
Section 9.10.
|
Governing Law; Jurisdiction; Consent
to Service of Process
|
222
|
|
|
Section 9.11.
|
Waiver of Jury Trial
|
223
|
|
|
Section 9.12.
|
Headings
|
224
|
|
|
Section 9.13.
|
Confidentiality
|
224
|
|
|
Section 9.14.
|
No Fiduciary Duty
|
225
|
|
|
Section 9.15.
|
Several Obligations
|
225
|
|
|
Section 9.16.
|
USA PATRIOT Act
|
225
|
|
|
Section 9.17.
|
Disclosure
|
225
|
|
|
Section 9.18.
|
Appointment for Perfection
|
225
|
|
|
Section 9.19.
|
Interest Rate Limitation
|
226
|
|
|
Section 9.20.
|
Intercreditor Agreement
|
226
|
|
|
Section 9.21.
|
Conflicts
|
226
|
|
|
Section 9.22.
|
Release of Guarantors
|
227
|
|
|
Section 9.23.
|
Acknowledgement and Consent to Bail-In
of EEA Financial Institutions
|
227
|
|
SCHEDULES:
|
|
|
|
|
|
|
|
Schedule 1.01(a)
|
–
|
Commitment Schedule
|
|
Schedule 1.01(b)
|
–
|
Existing Letters of Credit
|
|
Schedule 1.01(c)
|
–
|
[Reserved]
|
|
Schedule 1.01(d)
|
–
|
[Reserved]
|
|
Schedule 1.01(e)
|
–
|
Existing Credit Facilities Excluded Properties
|
|
Schedule 1.01(f)
|
–
|
Excluded Properties
|
|
Schedule 1.01(g)
|
–
|
Liquor License Subsidiaries
|
|
Schedule 3.06
|
–
|
Litigation and Environmental Matters
|
|
Schedule 3.13
|
–
|
Subsidiaries
|
|
Schedule 5.10
|
–
|
Unrestricted Subsidiaries
|
|
Schedule 5.18
|
–
|
Post-Closing Actions
|
|
Schedule 6.01
|
–
|
Existing Indebtedness
|
|
Schedule 6.02
|
–
|
Existing Liens
|
|
Schedule 6.03
|
–
|
Negative Pledges
|
|
Schedule 6.06
|
–
|
Existing Investments
|
|
Schedule 6.07
|
–
|
Certain Dispositions
|
|
Schedule 9.01
|
–
|
Borrower’s Website Address for Electronic Delivery
|
|
|
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|
|
EXHIBITS:
|
|
|
|
|
|
|
|
Exhibit A-1
|
–
|
Form of Assignment and Assumption
|
|
Exhibit A-2
|
–
|
Form of Affiliated Lender Assignment and Assumption
|
|
Exhibit B
|
–
|
Form of Borrowing Request
|
|
Exhibit C
|
–
|
Form of Compliance Certificate
|
|
Exhibit D
|
–
|
Form of Interest Election Request
|
|
Exhibit E
|
–
|
Form of Perfection Certificate
|
|
Exhibit F
|
–
|
[Reserved]
|
|
Exhibit G
|
–
|
Form of Promissory Note
|
|
Exhibit H-1
|
–
|
Form of Trademark Security Agreement
|
|
Exhibit H-2
|
–
|
Form of Patent Security Agreement
|
|
Exhibit H-3
|
–
|
Form of Copyright Security Agreement
|
|
Exhibit I
|
–
|
Form of Guaranty Agreement
|
|
Exhibit J
|
–
|
Form of Security Agreement
|
|
Exhibit K
|
–
|
Form of Letter of Credit Request
|
|
Exhibit L-1
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are
Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-2
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That
Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-3
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That
Are Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L-4
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are
Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit M
|
–
|
Form of Solvency Certificate
|
|
Exhibit N
|
–
|
Form of Intercreditor Agreement
|
FIRST
LIEN CREDIT AGREEMENT
FIRST
LIEN CREDIT AGREEMENT, dated as of July 3, 2017 and as amended pursuant to Amendment No. 1, Amendment No. 2, Amendment No. 3 and,
Amendment No. 4 and Amendment No. 5 referred to below (as
further amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, this
“Agreement”), by and among A-B Merger Sub I Inc., a Delaware corporation (“Merger Sub 1”), A-B
Merger Sub II LLC, a Delaware limited liability company (“Merger Sub 2”), the Lenders from time to time party
hereto, JPMorgan Chase Bank, N.A. (“JPM”), in its capacities as administrative agent for the Lenders and
collateral agent for the Secured Parties (in such capacities, together with its successor and permitted assigns, the
“Administrative Agent”), the Swingline Lender and an Issuing Bank, Credit Suisse AG, Cayman Islands Branch
(“Credit Suisse”), in its capacity as an Issuing Bank, and Goldman Sachs Bank USA (“GS Bank”),
in its capacity as an Issuing Bank, with JPM, Credit Suisse Securities (USA) LLC and Goldman Sachs Bank USA, as joint lead arrangers
and joint bookrunners (in such capacities, collectively, the “Arrangers”).
RECITALS
A.
Pursuant to the terms of the Acquisition Agreement, on the Closing Date, (i) Parent acquired, by merger of Merger Sub 1 with and into
the Target, a majority of the issued and outstanding equity interests of the Target (with the Target being the surviving entity of such
merger) (the “Merger Sub 1 Merger”) and (ii) Merger Sub 2 merged with and into Kingpin Intermediate (with Kingpin
Intermediate being the surviving entity of such merger) (the “Merger Sub 2 Merger”).
B.
To consummate the Transactions, certain of the Investors directly or indirectly (including by way of repayment of existing debt of the
Target and/or payments to existing shareholders of the Target) made cash contributions to Merger Sub 1 and/or the Target (with all such
cash contributions to be in the form of (i) common equity, (ii) the Series A Preferred Stock, (iii) Qualified Capital Stock or (iv) other
preferred Capital Stock or other instruments (in the case of clause (iv), having terms reasonably acceptable to the Administrative
Agent) (any such equity or instruments “Permitted Equity”), which cash contributions were in an aggregate amount that,
when taken together with all equity interests (including restricted stock or options) retained, rolled-over or directly or indirectly
invested in Permitted Equity of Holdings and all Permitted Equity of Holdings issued to, or otherwise directly or indirectly held or
acquired by, any shareholders, directors or management of the Target (together, the “Equity Contribution”) was not
less than 30% (the “Minimum Equity Percentage”) of the sum of (i) the aggregate principal amount of the Credit Facilities
and Second Lien Facility funded on the Closing Date (excluding (A) amounts drawn under the Revolving Facility on the Closing Date for
working capital purposes and/or purchase price adjustments, to fund Transaction Costs or to replace, backstop or cash collateralize existing
letters of credit and (B) any letters of credit outstanding on the Closing Date) and (ii) the Equity Contribution.
C.
To consummate the Transactions on the Closing Date, the Borrower requested that the Lenders under this Agreement as of such date
(such agreement as in effect immediately prior to the Amendment No. 45
Effective Date, the “Existing Credit Agreement”) originally extend credit in the form of (a) Initial Term Loans
(excluding the Amendment No. 1 Incremental Term Loans, and for the avoidance of doubt, the Amendment No. 2 Term Loans and the
Amendment No. 3 Incremental Term Loans) in an original aggregate principal amount equal to $585,000,000 and (b) a Revolving Facility
with an available amount of $50,000,000, in each case, subject to increase as provided herein.
D.
To consummate the Transactions on the Closing Date, the Borrower also borrowed term loans in an original aggregate principal amount equal
to $110,000,000 under the Second Lien Credit Agreement.
E.
The Lenders under the Existing Credit Agreement were willing to extend the Initial Term Loans (excluding the Amendment No. 1 Incremental
Term Loans, and for the avoidance of doubt, the Amendment No. 2 Term Loans and the Amendment No. 3 Inccremental Term Loans) and to make
available the Revolving Facility, in each case on the terms and subject to the conditions set forth therein.
F.
To consummate certain transactions on the Amendment No. 1 Effective Date, the Borrower borrowed Incremental Term Loans in an original
aggregate principal amount equal to $113,000,000 pursuant to Amendment No. 1.
G.
Holdings, the Borrower, the Administrative Agent and the Lenders party thereto entered into that certain Second Amendment (“Amendment
No. 2”), dated as of July 5, 2018 (the “Amendment No. 2 Effective Date”), under which the Amendment No.
2 Term Lenders (as hereinafter defined) extended credit to the Borrower in the form of Amendment No. 2 Term Loans (as hereinafter defined)
in an original aggregate principal amount equal to $715,000,000.
H.
Pursuant to Amendment No. 2, the Administrative Agent, Holdings, the Borrower and the Amendment No. 2 Term Lenders agreed to certain
amendments as provided in Amendment No. 2.
I.
Holdings, the Borrower, the Administrative Agent and the Lenders party thereto entered into that certain Third Amendment (“Amendment
No. 3”), dated as of November 20, 2019 (the “Amendment No. 3 Effective Date”), under which the Amendment
No. 3 Incremental Term Lenders (as hereinafter defined) extended credit to the Borrower in the form of Amendment No. 3 Incremental Term
Loans (as hereinafter defined) in an original aggregate principal amount equal to $105,000,000.
J.
Pursuant to Amendment No. 3, the Administrative Agent, Holdings, the Borrower and the Amendment No. 3 Incremental Term Lenders agreed
to certain amendments as provided in Amendment No. 3.
K.
Holdings, the Borrower, the Administrative Agent and the Revolving Lenders party thereto (who constituted the Required Revolving Lenders
at such time) entered into that certain Fourth Amendment (“Amendment No. 4”) dated
as of June 10, 2020 (the “Amendment
No. 4 Effective Date”), pursuant to which Holdings, the Borrower and such Revolving Lenders agreed to certain amendments as
provided in Amendment No. 4.
KL.
Holdings, the Borrower, the Administrative Agent and the Revolving Lenders party thereto (who constitute the Required Revolving
Lenders) have entered into that certain FourthFifth
Amendment (“Amendment No. 45”)
dated as of June 10September
25, 2020 (the “Amendment No. 45
Effective Date”), pursuant to which Holdings, the Borrower and such Revolving Lenders have agreed to amend the Existing
Credit Agreement as provided in Amendment No. 45.
LM. Accordingly,
the parties hereto agree as follows:
ARTICLE
1 DEFINITIONS
Section
1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at
a rate determined by reference to the Alternate Base Rate.
“Acceptable
Intercreditor Agreement” means the Intercreditor Agreement, a Market Intercreditor Agreement, or another intercreditor agreement
that is reasonably satisfactory to the Administrative Agent (which may, if applicable, consist of a payment “waterfall”).
“ACH”
means automated clearing house transfers.
“Acquisition”
means the Mergers and the other transactions contemplated by the Acquisition Agreement.
“Acquisition
Agreement” means that certain Agreement and Plan of Merger, dated as of June 6, 2017, by and among, inter alios, Parent,
Merger Sub 1, Merger Sub 2, the Target and the other Persons party thereto.
“Additional
Agreement” has the meaning assigned to such term in Article 8.
“Additional
Commitment” means any commitment hereunder added pursuant to Sections 2.22, 2.23 or 9.02(c)
(including, for the avoidance of doubt, the Amendment No. 2 Term Loan Commitments).
“Additional
Credit Facilities” means any credit facilities added pursuant to Sections 2.22, 2.23 or 9.02(c).
“Additional
Lender” has the meaning assigned to such term in Section 2.22(b).
“Additional
Letter of Credit Facility” means any letter of credit facility established by the Borrower and/or any Restricted Subsidiary
outside of this Agreement to obtain letters of credit required by customers, suppliers or landlords or otherwise required in the ordinary
course of business.
“Additional
Loans” means any Additional Revolving Loans and any Additional Term Loans.
“Additional Revolving Credit Commitments”
means any revolving credit commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Revolving Credit Exposure” means, with respect to any Person at any time, the aggregate outstanding principal amount at such
time of all Additional Revolving Loans of such Person, plus the aggregate amount at such time of such Person’s LC Exposure
and Swingline Exposure, in each case, attributable to its Additional Revolving Credit Commitment.
“Additional
Revolving Facility” means any revolving credit facility added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Revolving Lender” means any Lender with an Additional Revolving Credit Commitment or any Additional Revolving Credit Exposure.
“Additional
Revolving Loans” means any revolving loan added pursuant to Sections 2.22, 2.23 or 9.02(c)(ii).
“Additional
Term Loan Commitments” means any term loan commitment added pursuant to Sections 2.22, 2.23 or 9.02(c)(i) (including,
for the avoidance of doubt, the Amendment No. 2 Term Loan Commitment).
“Additional
Term Loans” means any term loan added pursuant to Section 2.22, 2.23 or 9.02(c)(i) (including, for the avoidance
of doubt, the Amendment No. 2 Term Loans and the Amendment No. 3 Incremental Term Loans).
“Adjustment
Date” means the date of delivery of financial statements required to be delivered pursuant to Section 5.01(a) or Section
5.01(b), as applicable.
“Administrative
Agent” has the meaning assigned to such term in the preamble to this Agreement.
“Administrative
Questionnaire” has the meaning assigned to such term in Section 2.22(d).
“Adverse
Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation
or arbitration (whether or not purportedly on behalf of Holdings, the Borrower or any of its Restricted Subsidiaries) at law or in equity,
or before or by any Governmental Authority, domestic or foreign, whether pending or, to the knowledge of Holdings, the Borrower or any
of its Restricted Subsidiaries, threatened in writing, against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries
or any property of Holdings, the Borrower or any of its Restricted Subsidiaries.
“Affiliate”
means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that
Person. No Person shall be an “Affiliate” of Holdings or any subsidiary thereof solely because it is an unrelated portfolio
company of the Sponsor and none of the Administrative Agent, the Arrangers, any Lender (other than any Affiliated Lender or any Debt
Fund Affiliate) or any of their respective Affiliates shall be considered an Affiliate of Holdings or any subsidiary thereof. For the
avoidance of doubt, the parties hereto agree that Comcast Corporation, a Pennsylvania corporation, is not an Affiliate of Holdings or
the Borrower as of the Closing Date.
“Affiliated
Lender” means any Non-Debt Fund Affiliate, Holdings, the Borrower and/or any of its Restricted Subsidiaries.
“Affiliated
Lender Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Affiliated Lender (with
the consent of any party whose consent is required by Section 9.05) and accepted by the Administrative Agent in the form of Exhibit
A-2 or any other form approved by the Administrative Agent and the Borrower.
“Affiliated
Lender Cap” has the meaning assigned to such term in Section 9.05(g)(iv).
“Aggregate
Revolving Credit Exposure” means, at any time, the aggregate amount of the Lenders’ Revolving Credit Exposures at such
time.
“Agreement”
has the meaning assigned to such term in the preamble to this First Lien Credit Agreement.
“Alternate
Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such
day plus 0.50%, (b) to the extent ascertainable, the Published LIBO Rate (which rate shall be calculated based upon an Interest
Period of one month and shall be determined on a daily basis based on the rate determined on such day for such Interest Period at 11:00
a.m. (London time)) plus 1.00%, (c) the Prime Rate and (d) solely with respect to the Amendment No. 2 Term Loans, 2.00%. Any change
in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Published LIBO Rate, as the case
may be, shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or
the Published LIBO Rate, as the case may be.
“Amendment
No. 1” means the First Incremental Amendment, dated as of the Amendment No. 1 Effective Date, among the Borrower, the other
Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
“Amendment
No. 1 Effective Date” means March 28, 2018.
“Amendment
No. 1 Incremental Term Lender” means any Person with an Initial Term Loan Commitment to make Amendment No. 1 Incremental Term
Loans.
“Amendment
No. 1 Incremental Term Loans” means the Term Loans funded pursuant to Amendment No. 1 on the Amendment No. 1 Effective Date,
the proceeds of which shall be used to consummate the Amendment No. 1 Transactions, to pay fees and expenses in connection with the foregoing
and for general corporate purposes or other actions or purposes permitted hereunder.
“Amendment
No. 1 Transactions” means the entering into of Amendment No. 1, the incurrence of the Amendment No. 1 Incremental Term Loans,
the repayment in full of all outstanding amounts under the Second Lien Credit Agreement and the payment of all fees, expenses and other
costs incurred in connection with the foregoing.
“Amendment
No. 2” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment No. 2 Effective Date”
has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 2 Term Lender” means each “2018 Refinancing Term Loan Lender” as such term is defined in Amendment No. 2.
“Amendment
No. 2 Term Loan Commitment” means the “2018 Refinancing Term Loan Commitment” as such term is defined in Amendment
No. 2.
“Amendment
No. 2 Term Loans” means the “2018 Refinancing Term Loans” as such term is defined in Amendment No. 2 and all Amendment
No. 3 Incremental Term Loans.
“Amendment
No. 2 Transactions” means the entering into of Amendment No. 2, the incurrence of the Amendment No. 2 Term Loans and the payment
of all fees, expenses and other costs incurred in connection with the foregoing.
“Amendment
No. 3” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment No. 3 Effective Date”
has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 3 Incremental Term Lender” means each Lender under this Agreement that holds an Amendment No. 3 Incremental Term Loan and/or
a commitment to make an Amendment No. 3 Incremental Term Loan (as applicable).
“Amendment
No. 3 Incremental Term Loan Commitment” means an aggregate principal amount set forth opposite such Amendment No. 3 Incremental
Term Lender’s name contained in Schedule 1 in Amendment No. 3. The aggregate amout of the Amendment No. 3 Incremental Term Loan
Commitments on the Amendment No. 3 Effective Date is $105,000,000.
“Amendment
No. 3 Incremental Term Loans” means the Term Loans funded pursuant to Amendment No. 3 on the Amendment No. 3 Effective Date,
the proceeds of which shall be used to consummate the Amendment No. 3 Transactions, to pay fees and expenses in connection with the foregoing
and for general corporate purposes or other actions or purposes permitted hereunder.
“Amendment
No. 3 Transactions” means the entering into of Amendment No. 3, the incurrence of the Amendment No. 3 Incremental Term Loans
and the payment of all fees, expenses and other costs incurred in connection with the foregoing.
“Amendment
No. 4” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment No. 4 Effective Date”
has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 5” has the meaning assigned to such term in the preamble to this Agreement.
“Amendment
No. 5 Effective Date” has the meaning assigned to such term in the preamble to this Agreement.
“Applicable
Charges” has the meaning set forth in Section 9.19.
“Applicable
Percentage” means, (a) with respect to any Term Lender of any Class, a percentage equal to a fraction the numerator of which
is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan Commitments of such Term Lender under
such Class and the denominator of which is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan
Commitments of all Term Lenders under such Class and (b) with respect to any Revolving Lender of any Class, the percentage of the aggregate
amount of the Revolving Credit Commitments of such Class represented by such Lender’s Revolving Credit Commitment of such Class;
provided that for purposes of Section 2.21 and otherwise herein, when there is a Defaulting Lender, such Defaulting Lender’s
Revolving Credit Commitment shall be disregarded for any relevant calculation. In the case of clause (b), in the event that the
Revolving Credit Commitments of any Class have expired or been terminated, the Applicable Percentage of any Revolving Lender of such
Class shall be determined on the basis of the Revolving Credit Exposure of such Revolving Lender with respect to such Class, giving effect
to any assignments and to any Revolving Lender’s status as a Defaulting Lender at the time of determination.
“Applicable
Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Applicable Rate”
means, for any day from and after the Amendment No. 2 Effective Date, (a) for Amendment No. 2 Term Loans (including, for the avoidance
of doubt, all Amendment No. 3 Incremental Term Loans), (i) in the case of ABR Loans, 2.50% per annum and (ii) in the case of LIBO Rate
Loans, 3.50% per annum and (b) for Revolving Loans, the rate per annum set forth below under the caption “ABR Spread” or
“LIBO Rate Spread”, as the case may be, based upon the First Lien Leverage Ratio as of the last day of the most recently
ended Test Period; provided that until the first Adjustment Date following the completion of at least one full Fiscal Quarter ended after
the Closing Date, the “Applicable Rate” for any Revolving Loans shall have been the applicable rate per annum set forth below
in Category 1.
|
First
Lien Leverage Ratio
|
ABR
Spread for
Revolving Loans
|
LIBO
Rate Spread for
Revolving
Loans
|
|
Category 1
|
|
|
|
Greater than 3.70 to 1.00
|
3.25%
|
4.25%
|
|
|
|
|
|
Category 2
|
|
|
Less
than or equal to 3.70 to 1.00 and
greater than 3.20 to 1.00
|
3.00%
|
4.00%
|
|
|
|
|
|
Category 3
|
|
|
|
Less
than or equal to 3.20 to 1.00
|
2.75%
|
3.75%
|
The
Applicable Rate for Revolving Loans shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the First Lien
Leverage Ratio in accordance with the table above; provided that if financial statements are not delivered when required pursuant
to Section 5.01(a) or (b), as applicable, the “Applicable Rate” for Revolving Loans shall be the rate per annum
set forth above in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b),
as applicable.
The
Applicable Rate for any Class of Additional Revolving Loans or Additional Term Loans shall be as set forth in the applicable Refinancing
Amendment, Incremental Facility Amendment or Extension Amendment.
“Approved
Fund” means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding
or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered,
advised or managed by (a) such Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers,
advises or manages such Lender.
“Arrangers”
has the meaning assigned to such term in the preamble to this Agreement and shall include for purposes of Section 9.03, the “Amendment
No. 2 Lead Arrangers” (as defined in Amendment No. 2).
“Assignment
Agreement” means, collectively, each Assignment and Assumption and each Affiliated Lender Assignment and Assumption.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 9.05), and accepted by the Administrative Agent in the form of Exhibit A-1 or any
other form approved by the Administrative Agent and the Borrower.
“Attributable
Debt” means, at any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person (except in the footnotes thereto) prepared in accordance with GAAP, other than (a) Capital Lease Obligations
arising as a result of a modification of the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents to the extent
such modification is not prohibited hereunder (including the iStar Amendments), (b) Capital Lease Obligations arising as a result of
the classification of the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 or any Excluded Property Sale/Leaseback Transaction as
a Capital Lease and (c) Capital Lease Obligations arising as a result of any Excluded Property Sale/Leaseback Transaction. For the avoidance
of doubt, this definition of “Attributable Debt” shall be subject in all respects to the provisions of Section 1.04(c).
“Auction”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Agent” means (a) the Administrative Agent or any of its Affiliates or (b) any other financial institution or advisor engaged
by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Auction pursuant
to the definition of “Dutch Auction”.
“Auction
Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction Notice”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction Party” has the meaning
set forth in the definition of “Dutch Auction”.
“Auction
Response Date” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Availability
Period” means the period from and including the Closing Date to but excluding the earliest of (a) the date of termination of
the Initial Revolving Credit Commitments pursuant to Section 2.09, (b) the date of termination of the Initial Revolving Credit Commitment
of each Initial Revolving Lender to make Initial Revolving Loans and the obligation of each Issuing Bank to issue Letters of Credit pursuant
to Section 7.01 and (c) the Initial Revolving Credit Maturity Date.
“Available
Amount” means, at any time, an amount equal to, without duplication:
(a) the sum of:
(i)
the greater of $20,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; plus
(ii)
the CNI Growth Amount (provided that such amount shall not be available for any Restricted Payment pursuant to Section 6.04(a)(iii)(A)
or Restricted Debt Payment pursuant to Section 6.04(b)(vi)(A), in each case, if any Event of Default exists pursuant to Section 7.01(a)
or, with respect to the Borrower, Sections 7.01(f) or (g) at the time of determination pursuant to Section 1.04(e)); plus
(iii)
the amount of any capital contributions or other proceeds of any issuance of Capital Stock (other than any amounts (x) constituting a
Cure Amount or an Available Excluded Contribution Amount or proceeds of an issuance of Disqualified Capital Stock, (y) received from
the Borrower or any Restricted Subsidiary or (z) consisting of the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii))
received as Cash equity by the Borrower or any of its Restricted Subsidiaries, plus the fair market value, as determined by
the Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Borrower or any Restricted Subsidiary
as a capital contribution or in return for any issuance of Capital Stock (other than any amounts (x) constituting a Cure Amount or an
Available Excluded Contribution Amount or proceeds of any issuance of Disqualified Capital Stock or (y) received from the Borrower or
any Restricted Subsidiary), in each case, during the period from and including the day immediately following the Closing Date through
and including such time; plus
(iv)
the aggregate principal amount of any Indebtedness or Disqualified Capital Stock, in each case, of the Borrower or any Restricted Subsidiary
issued after the Closing Date (other than Indebtedness or such Disqualified Capital Stock issued to the Borrower or any Restricted Subsidiary),
which has been converted into or exchanged for Capital Stock of the Borrower, any Restricted Subsidiary or any Parent Company that does
not constitute Disqualified Capital Stock, together with the fair market value of any Cash or Cash Equivalents (as determined by the
Borrower in good faith) and the fair market value (as determined by the Borrower in good faith) of any property or assets received by
the Borrower or such Restricted Subsidiary upon such exchange or conversion, in each case, during the period from and including the day
immediately following the Closing Date through and including such time; plus
(v)
the net proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately following
the Closing Date through and including such time in connection with the Disposition to any Person (other than the Borrower or any Restricted
Subsidiary) of any Investment made pursuant to Section 6.06(r)(i); plus
(vi)
to the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of
such Investment, the proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately
following the Closing Date through and including such time in connection with cash returns, cash profits, cash distributions and similar
cash amounts, including cash principal repayments of loans and interest payments on loans, in each case received in respect of any Investment
made after the Closing Date pursuant to Section 6.06(r)(i) or, without duplication, otherwise received by the Borrower or any
Restricted Subsidiary from an Unrestricted Subsidiary (including any proceeds received on account of any issuance of Capital Stock by
any Unrestricted Subsidiary (other than solely on account of the issuance of Capital Stock to the Borrower or any Restricted Subsidiary));
plus
(vii)
an amount equal to the sum of (A) the amount of any Investments by the Borrower or any Restricted Subsidiary pursuant to Section 6.06(r)(i)
in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary, (B) the amount of any Investments by the Borrower
or any Restricted Subsidiary pursuant to Section 6.06(r)(i) in any Unrestricted Subsidiary that has been merged, consolidated
or amalgamated with or into, or is liquidated, wound up or dissolved into, the Borrower or any Restricted Subsidiary and (C) the fair
market value (as determined by the Borrower in good faith) of the property or assets of any Unrestricted Subsidiary that have been transferred,
conveyed or otherwise distributed to the Borrower or any Restricted Subsidiary, in each case, during the period from and including the
day immediately following the Closing Date through and including such time; plus
(viii) the
amount of any Declined Proceeds; minus
(b)
an amount equal to the sum of (i) Restricted Payments made pursuant to Section 6.04(a)(iii)(A), plus (ii) Restricted Debt
Payments made pursuant to Section 6.04(b)(vi)(A), plus (iii) Investments made pursuant to Section 6.06(r)(i), in
each case, after the Closing Date and prior to such time, or contemporaneously therewith.
“Available
Excluded Contribution Amount” means the aggregate amount of Cash or Cash Equivalents or the fair market value of other assets
or property (as determined by the Borrower in good faith, but excluding any Cure Amount and any amounts that are used to increase the
Available Amount) received by the Borrower or any of its Restricted Subsidiaries after the Closing Date from:
(1)
contributions in respect of Qualified Capital Stock (other than any amounts or other assets received from the Borrower or any of its
Restricted Subsidiaries), and
(2)
the sale of Qualified Capital Stock of the Borrower or any of its Restricted Subsidiaries (other than (x) to the Borrower or any Restricted
Subsidiary of the Borrower, (y) pursuant to any management equity plan or stock option plan or any other management or employee benefit
plan or (z) with the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)),
in
each case, designated as Available Excluded Contribution Amounts pursuant to a certificate of a Responsible Officer on or promptly after
the date the relevant capital contribution is made or the relevant proceeds are received, as the case may be, and which are excluded
from the calculation of the Available Amount.
“Available
RDP Capacity Amount” means the amount of Restricted Debt Payments that may be made at the time of determination pursuant to
Section 6.04(b)(iv)(A) minus the amount of the Available RDP Capacity Amount utilized by the Borrower or any Restricted Subsidiary
to make Investments pursuant to Section 6.06(q)(ii).
“Available
RP Capacity Amount” means the amount of Restricted Payments that may be made at the time of determination pursuant to Sections
6.04(a)(ii)(D), (a)(vii) and (a)(x) minus the aggregate amount of the Available RP Capacity Amount utilized by the Borrower
or any Restricted Subsidiary to (a) make Investments pursuant to Section 6.06(q)(ii), (b) make Restricted Debt Payments pursuant
to Section 6.04(b)(iv)(B) or (c) incur Indebtedness pursuant to Section 6.01(ll).
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of
any liability of an EEA Financial Institution.
“Bail-In
Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European
Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described
in the EU Bail-In Legislation Schedule.
“Banking
Services” means each and any of the following bank services: commercial credit cards, stored value cards, debit cards, purchasing
cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including
depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee
credit card programs, cash pooling services, foreign exchange and currency management services and any arrangements or services similar
to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts.
“Banking
Services Obligations” means any and all obligations of any Loan Party, whether absolute or contingent and however and whenever
created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) (a)
under any arrangement that is in effect on the Closing Date between any Loan Party and a counterparty that is (or is an Affiliate of)
the Administrative Agent, any Lender or any Arranger as of the Closing Date or (b) under any arrangement that is entered into after the
Closing Date by any Loan Party with any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger
at the time such arrangement is entered into, in each case, in connection with Banking Services, in each case, that has been designated
to the Administrative Agent in writing by the Borrower as being Banking Services Obligations for purposes of the Loan Documents, it being
understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan
Documents and (B) to agree to be bound by the provisions of Article 8, Section 9.03 and Section 9.10 and the Intercreditor
Agreement and each other Acceptable Intercreditor Agreement, in each case as if it were a Lender.
“Bankruptcy
Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
“Board” means the Board of
Governors of the Federal Reserve System of the U.S.
“Bona
Fide Debt Fund” means any debt fund, investment vehicle, regulated bank entity or unregulated lending entity engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business and
which is managed, sponsored or advised by any Person controlling, controlled by or under common control with (a) any competitor of the
Borrower and/or any of its subsidiaries or (b) any Affiliate of such competitor, but, in each case, with respect to which no personnel
involved with any investment in such Person or the management, control or operation of such Person (i) makes, has the right to make or
participates with others in making any investment decisions with respect to such Person or (ii) has access to any information (other
than information that is publicly available) relating to Holdings, the Borrower or its subsidiaries or any entity that forms a part of
any of their respective businesses; it being understood and agreed that the term “Bona Fide Debt Fund” shall not include
any Person that is separately identified to the Arrangers or the Administrative Agent in accordance with clause (a)(i) or (a)(ii) of
the definition of “Disqualified Institution” or any reasonably identifiable Affiliate of any such Person on the basis of
such Affiliate’s name.
“Borrower”
means (a) initially, Merger Sub 2, and after giving effect to the Merger Sub 2 Merger, Kingpin Intermediate (in each case, prior to the
consummation of a transaction described in clause (b) of this definition) and (b) following the consummation of a transaction
permitted hereunder that results in a Successor Borrower, such Successor Borrower.
“Borrowing”
means any Loans of the same Type and Class made, converted or continued on the same date and, in the case of LIBO Rate Loans, as to which
a single Interest Period is in effect.
“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03 and substantially in the form
attached hereto as Exhibit B or such other form that is reasonably acceptable to the Administrative Agent and the Borrower.
“Bowling
Equipment” means all pin setting machines (pinsetters/pinspotters), ball returns, settees, scoring systems (including front
desk systems), lanes, lane cleaning machines, bumpers, approaches, foul lights, gutters and masking units.
“Business
Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or
required by law to remain closed; provided that when used in connection with a LIBO Rate Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
“Capital
Expenditures” means, as applied to any Person for any period, the aggregate amount, without duplication, of all expenditures
(whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases)
that in accordance with GAAP, are, or are required to be included as, capital expenditures on the consolidated statement of cash flows
for such Person for such period.
“Capital
Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP (but subject to Section1.04(c)), is or should be accounted for as a capital lease on the balance
sheet of that Person.
“Capital
Lease Obligations” means, with respect to any Person, the amount of obligations attributable to any Capital Lease capitalized
as a liability on the balance sheet (excluding the footnotes thereto) of such Person in accordance with GAAP.
“Capital
Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership
interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but
excluding for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing.
“Captive
Insurance Subsidiary” means any Restricted Subsidiary of the Borrower that is subject to regulation as an insurance company
(or any Restricted Subsidiary thereof).
“Cash”
or “cash” means money, currency or a credit balance in any Deposit Account, in each case determined in accordance
with GAAP.
“Cash
Equivalents” means, as at any date of determination, (a) readily marketable securities (i) issued or directly and unconditionally
guaranteed or insured as to interest and principal by the U.S., U.K., Canada or a member state of the European Union or any political
subdivision thereof or (ii) issued by any agency or instrumentality of the U.S., U.K., Canada or a member state of the European Union
or any political subdivision thereof, the obligations of which are backed by the full faith and credit of the U.S., U.K., Canada or a
member state of the European Union or any political subdivision thereof, in each case maturing within two years after such date and,
in each case, including repurchase agreements and reverse repurchase agreements relating thereto; (b) readily marketable direct obligations
issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof or by any foreign
government, in each case maturing within two years after such date and having, at the time of the acquisition thereof, a rating of at
least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized statistical rating agency) and, in each case, repurchase agreements
and reverse repurchase agreements relating thereto; (c) commercial paper maturing no more than one year from the date of creation thereof
and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if
at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized
statistical rating agency); (d) deposits, money market deposits, time deposit accounts, certificates of deposit or bankers’ acceptances
(or similar instruments) maturing within one year after such date and issued or accepted by any Lender or “Lender” in respect
of the Second Lien Facility or by any bank organized under, or authorized to operate as a bank under, the laws of the U.S., any state
thereof or the District of Columbia or any political subdivision thereof or any foreign bank or its branches or agencies and that has
capital and surplus of not less than $75,000,000 and, in each case, repurchase agreements and reverse repurchase agreements relating
thereto; (e) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued
by any commercial bank having capital and surplus of not less than $75,000,000; (f) Indebtedness or Preferred Capital Stock issued by
Persons with a rating of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the
time, neither is issuing comparable ratings, then a comparable rating of another nationally recognized statistical rating organization)
with maturities of 12 months or less from the date of acquisition; (g) bills of exchange issued in the U.S., U.K., Canada, a member state
of the European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);
(h) solely with respect to any Captive Insurance Subsidiary, any investment that such Captive Insurance Subsidiary is not prohibited
to make in accordance with applicable law; and (i) shares or other interests of any investment company, money market mutual fund or other
money market or enhanced high yield fund that invests 95% or more of its assets in instruments of the types specified in clauses (a)
through (h) above (which investment company or fund may also hold Cash pending investment or distribution).
The
term “Cash Equivalents” shall also include (x) foreign currencies (in addition to Canadian dollars, Euros, Pound Sterling,
Mexican Pesos, any national currency of any member state of the European Union and any other currency held by the Borrower or any Restricted
Subsidiary in the ordinary course of business); provided that such amounts, if received by the Borrower or any Restricted Subsidiary,
are converted into Dollars, Canadian dollars, Euros, Pound Sterling, Mexican Pesos, any national currency of any member state of the
European Union or any other currency held by the Borrower or any Restricted Subsidiary in the ordinary course of business as promptly
as practicable (and in any event within ten Business Days following receipt thereof), (y) Investments of the type and maturity described
in clauses (a) through (i) above of foreign obligors, which Investments or obligors (or the parent companies thereof) have
the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (z) other short-term Investments
utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in Investments analogous to the Investments
described in clauses (a) through (i) and in this paragraph.
“Change
in Law” means (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by
any Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or such Issuing
Bank or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date (other than any such
request, guideline or directive to comply with any law, rule or regulation that was in effect on the Closing Date). For purposes of
this definition and Section 2.15, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules,
guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof and (y) all
requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee
on Banking Supervision (or any successor or similar authority) or U.S. regulatory authorities, in each case pursuant to Basel III,
shall in each case described in clauses (a), (b) and (c) above, be deemed to be a Change in Law, regardless of the
date enacted, adopted, issued or implemented.
“Change
of Control” means the earliest to occur of:
(a)
at any time prior to a Qualifying IPO, the Permitted Holders ceasing to beneficially own, either directly or indirectly (within the meaning
of Rule 13d-3 and Rule 13d-5 under the Exchange Act as in effect on the Closing Date), Capital Stock representing more than 50% of the
total voting power of all of the outstanding voting Capital Stock of Holdings;
(b)
at any time on or after a Qualifying IPO, the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2)
of the Exchange Act as in effect on the Closing Date), including any group acting for the purpose of acquiring, holding or disposing
of Securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act as in effect on the Closing Date), but excluding (i) any
Employee Benefit Plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) one or more Permitted
Holders and (iii) any underwriter in connection with any Qualifying IPO, of Capital Stock of Holdings representing more than the greater
of (x) 35% of the total voting power of all of the outstanding voting Capital Stock of Holdings and (y) the percentage of the total voting
power of all of the outstanding voting Capital Stock of Holdings collectively owned, directly or indirectly, beneficially by the Permitted
Holders; and
(c)
the Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of Holdings (other than during the pendency of any Holdings Reorganization
Transaction or Permitted Reorganization); it being understood and agreed for the avoidance of doubt that the Mergers shall not trigger
a “Change of Control” for any purpose under this Agreement or any other Loan Document.
Notwithstanding
the preceding or any provision of Section 13d-3 of the Exchange Act as in effect on the Closing Date, (i) a Person or group shall not
be deemed to beneficially own Capital Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant
agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of
the Capital Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more Permitted
Holders, the issued and outstanding Capital Stock of Holdings owned, directly or indirectly, by any Permitted Holders that are part of
such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of determining
whether a Change of Control has occurred so long as one or more Permitted Holders hold in excess of 50% of the issued and outstanding
Capital Stock owned, directly or indirectly, by such group and (iii) a Person or group will not be deemed to beneficially own the Capital
Stock of another Person as a result of its ownership of the Capital Stock or other securities of such other Person’s parent entity
(or related contractual rights) unless (A) it owns 50% or more of the total voting power of the Capital Stock entitled to vote for the
election of directors or board of managers of such parent entity and (B) such directors or managers elected by the Person or group have
a majority of the aggregate votes on the board of directors (or similar body) of such parent entity.
“Charge”
means any fee, loss, charge, expense, cost, accrual or reserve of any kind.
“Class”,
when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial
Term Loans, Amendment No. 2 Term Loans (including, for the avoidance of doubt, Amendment No. 3 Incremental Term Loans), other Additional
Term Loans of any series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(i), Initial
Revolving Loans or Additional Revolving Loans of any series established as a separate “Class” pursuant to Sections 2.22,
2.23 or 9.02(c)(ii) or Swingline Loans, (b) any Commitment, refers to whether such Commitment is an Initial Term Loan Commitment,
an Amendment No. 2 Term Loan Commitment (including, for the avoidance of doubt, Amendment No. 3 Incremental Term Loan Commitments), another
Additional Term Loan Commitment of any series established as a separate “Class” pursuant to Sections 2.22, 2.23
or 9.02(c)(i), an Initial Revolving Credit Commitment or an Additional Revolving Credit Commitment of any series established
as a separate “Class” pursuant to Sections 2.22, 2.23 or 9.02(c)(ii), (c) any Lender, refers to whether such
Lender has a Loan or Commitment of a particular Class and (d) any Revolving Credit Exposure, refers to whether such Revolving Credit
Exposure is attributable to a Revolving Credit Commitment of a particular Class (or Revolving Loans incurred or Letters of Credit issued
under a Revolving Credit Commitment of a particular Class).
“Closing
Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02), which date is July 3, 2017.
“Closing
Date Material Adverse Effect” shall have the meaning assigned to the term “Company Material Adverse Effect” in
the Acquisition Agreement as in effect on the Closing Date (it being understood that capitalized terms used in such definition and defined
in the Acquisition Agreement shall have the meanings ascribed to such terms in the Acquisition Agreement as in effect on the Closing
Date).
“CNI
Growth Amount” means, at any date of determination, an amount (which amount shall not be less than zero) equal to 50% of Consolidated
Net Income for the cumulative period from the first day of the Fiscal Quarter of the Borrower during which the Closing Date occurs to
and including the last day of the most recently ended Fiscal Quarter of the Borrower prior to such date for which consolidated financial
statements of the Borrower are internally available (treated as one accounting period).
“Code”
means the Internal Revenue Code of 1986.
“Collateral”
means any and all property of any Loan Party subject to a Lien under any Collateral Document and any and all other property of any Loan
Party, now existing or hereafter acquired, that is or becomes subject to a Lien pursuant to any Collateral Document to secure the Secured
Obligations. For the avoidance of doubt, in no event shall “Collateral” include any Excluded Asset.
“Collateral
and Guarantee Requirement” means, at any time, subject to (x) the applicable limitations set forth in this Agreement and/or
any other Loan Document (including any Acceptable Intercreditor Agreement) and (y) the time periods (and extensions thereof) set forth
in Section 5.12, the requirement that:
(a) the
Administrative Agent shall have received;
(i)
(A) a joinder to the Loan Guaranty in substantially the form attached as an exhibit thereto, (B) a supplement to the Security Agreement
in substantially the form attached as an exhibit thereto, (C) if the respective Restricted Subsidiary required to comply with the requirements
set forth in this definition pursuant to Section 5.12 owns registrations of or applications for U.S. Patents, U.S. Trademarks
and/or U.S. Copyrights that constitute Collateral, an Intellectual Property Security Agreement in substantially the form attached as
an exhibit hereto, (D) a completed Perfection Certificate, (E) Uniform Commercial Code financing statements in appropriate form for filing
in such jurisdictions as the Administrative Agent may reasonably request and (F) an executed joinder to the Intercreditor Agreement in
substantially the form attached as an exhibit thereto; and
(ii)
each item of Collateral required to be delivered in physical form on or prior to such time pursuant to the Collateral Documents.
(b)
the Administrative Agent shall have received with respect to any Material Real Estate Asset (other than an Excluded Asset) acquired after
the Closing Date, a Mortgage and any necessary UCC fixture filing in respect thereof, in each case together with, to the extent customary
and appropriate (as reasonably determined by the Administrative Agent and the Borrower):
(i)
evidence that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any corresponding
UCC or equivalent fixture filing are in form suitable for filing or recording in all filing or recording offices that the Administrative
Agent may deem reasonably necessary in order to create a valid and subsisting Lien on such Material Real Estate Asset in favor of the
Administrative Agent for the benefit of the Secured Parties, (B) such Mortgage and any corresponding UCC or equivalent fixture filings
have been duly recorded or filed, as applicable and (C) all filing and recording taxes and fees have been paid or otherwise provided
for in a manner reasonably satisfactory to the Administrative Agent;
(ii)
a fully paid policy of lender’s title insurance (a “Mortgage Policy”) in an amount reasonably acceptable to
the Administrative Agent (not to exceed the fair market value of such Material Real Estate Asset (as determined by the Borrower in good
faith)) issued by a nationally recognized title insurance company in the applicable jurisdiction that is reasonably acceptable to the
Administrative Agent, insuring the relevant Mortgage as having created a valid subsisting Lien on the real property described therein
with the ranking or the priority which it is expressed to have in such Mortgage, subject only to Permitted Liens, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request to the extent the same are available in
the applicable jurisdiction;
(iii)
a customary legal opinion of local counsel for the relevant Loan Party in the jurisdiction in which such Material Real Estate Asset is
located and, if applicable, in the jurisdiction of formation of the relevant Loan Party, in each case as the Administrative Agent may
reasonably request; and
(iv)
(A) appraisals (if required under the Financial Institutions Reform Recovery and Enforcement Act of 1989, as amended) and (B) “Life-of-Loan”
flood certifications under Regulation H (together with evidence of federal flood insurance for any such Flood Hazard Property); provided
that the Administrative Agent may in its reasonable discretion accept any existing appraisal so long as such existing appraisal satisfies
any applicable local law requirements and sufficient for the applicable title insurance company to issue the endorsements referenced
in clause (ii) above.
Notwithstanding
any provision of any Loan Document to the contrary, if any mortgage tax or similar tax or charge is owed on the entire amount of the
Obligations evidenced hereby in connection with the delivery of a mortgage or UCC fixture filing pursuant to clause (b) above, then,
to the extent permitted by, and in accordance with, applicable Requirements of Law, the amount of such mortgage tax or similar tax or
charge shall be calculated based on the lesser of (x) the amount of the Obligations allocated to the applicable Material Real Estate
Asset and (y) the fair market value of the applicable Material Real Estate Asset at the time the Mortgage is entered into and determined
in a manner reasonably acceptable to Administrative Agent and the Borrower. Notwithstanding anything herein to the contrary, no Mortgage
will be executed and delivered with respect to any Material Real Estate Asset pursuant to the foregoing until the Administrative Agent
has received written notice of such Mortgage at least 45 days prior to such execution and delivery and has confirmed receipt of satisfactory
flood due diligence and evidence of compliance with the applicable Flood Insurance Laws.
“Collateral
Documents” means, collectively, (i) the Security Agreement, (ii) each Mortgage (if any), (iii) each Intellectual Property Security
Agreement, (iv) each Perfection Certificate, (v) any supplement to any of the foregoing delivered to the Administrative Agent pursuant
to the definition of “Collateral and Guarantee Requirement” and (vi) each of the other instruments and documents pursuant
to which any Loan Party grants a Lien on any assets as security for payment of the Secured Obligations.
“Commercial
Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection
with the purchase of any materials, goods or services by the Borrower or any of its Restricted Subsidiaries in the ordinary course of
business of such Person.
“Commercial
Tort Claim” has the meaning set forth in Article 9 of the UCC.
“Commitment”
means, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Initial Revolving Credit Commitment and Additional
Commitment (including, for the avoidance of doubt, the Amendment No. 2 Term Loan Commitment and Amendment No. 3 Incremental Term Loan
Commitment), as applicable, in effect as of such time.
“Commitment
Fee Rate” means, on any date (a) with respect to the Initial Revolving Credit Commitment, subject to the provisions of the
last paragraph hereof, the applicable rate per annum set forth below based upon the First Lien Leverage Ratio as of the last day of the
most recently ended Test Period and (b) with respect to Additional Revolving Credit Commitments of any Class, the rate or rates per annum
specified in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment.
|
First
Lien Leverage Ratio
|
Commitment
Fee Rate
|
|
Category 1
|
|
|
Greater than 3.70 to 1.00
|
0.50%
|
|
|
|
|
Category 2
|
|
Equal to or less than 3.70 to 1.00
but
greater than 3.20 to 1.00
|
0.375%
|
|
|
|
|
Category 3
|
|
|
Equal to or less than 3.20 to 1.00
|
0.25%
|
The
Commitment Fee Rate with respect to the Initial Revolving Credit Commitment shall be adjusted quarterly on a prospective basis on each
Adjustment Date based upon the First Lien Leverage Ratio in accordance with the table set forth above; provided that (a) until
the first Adjustment Date following the completion of at least one full Fiscal Quarter after the Closing Date, the Commitment Fee Rate
shall be the applicable rate per annum set forth above in Category 1 and (b) if financial statements are not delivered when required
pursuant to Section 5.01(a) or (b), as applicable, the Commitment Fee Rate shall be the rate per annum set forth above
in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b), as applicable.
“Commitment
Letter” means that certain Amended and Restated Commitment Letter, dated as of June 15, 2017, by and among, inter alios,
Parent and the Arrangers, as amended to date.
“Commitment
Schedule” means the Schedule attached hereto as Schedule 1.01(a).
“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Company
Competitor” means any competitor of the Borrower and/or any of its subsidiaries and/or the Target and/or any of its subsidiaries.
“Compliance
Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
“Confidential
Information” has the meaning assigned to such term in Section 9.13.
“Consolidated
Adjusted EBITDA” means, as to any Person for any period, an amount determined for such Person and its Restricted Subsidiaries
on a consolidated basis equal to the total of (a) Consolidated Net Income for such period plus (b) the sum, without duplication,
of (to the extent deducted in calculating Consolidated Net Income, other than in respect of clauses (x), (xi), (xii), (xiv), (xix),
(xx), (xxi) and (xxii) below) the amounts of:
(i)
Consolidated Interest Expense (including (A) fees and expenses paid to the Administrative Agent in connection with its services hereunder,
(B) other bank, administrative agency (or trustee) and financing fees (including rating agency fees and other fees in respect of any
Second Lien Facility), (C) costs of surety bonds in connection with financing activities (whether amortized or immediately expensed)
and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments, letters of credit, bank guarantees,
bankers’ acceptances or any similar facilities or financing and hedging agreements);
(ii)
(A) Taxes paid and any provision for Taxes, including income, profits, capital, foreign, federal, state, local, franchise and similar
Taxes, property Taxes, foreign withholding Taxes and foreign unreimbursed value added Taxes (including penalties and interest related
to any such Tax or arising from any Tax examination, and including pursuant to any Tax sharing arrangement or as a result of any Tax
distribution) of such Person paid or accrued during the relevant period and (B) any payments to a Parent Company in respect of Taxes
permitted to be made hereunder;
(iii)
(A) depreciation, (B) amortization, (C) any impairment Charge (including any bad debt expense) and (D) any asset write-off and/or write-down;
(iv)
any non-cash Charge, including the excess of rent expense over actual Cash rent paid, including the benefit of lease incentives (in the
case of a charge) during such period due to the use of straight line rent for GAAP purposes (provided that if any such non-Cash
Charge represents an accrual or reserve for potential Cash items in any future period, such Person may determine not to add back such
non-Cash Charge in the then-current period);
(v) [reserved];
(vi)
Receivables Fees and the amount of loss or discount on the sale of Receivables Facility Assets and related assets to a Receivables Subsidiary
in connection with a Receivables Facility;
(vii)
the amount of management, monitoring, consulting, transaction, advisory, termination and similar fees and related indemnities and expenses
(including reimbursements), paid or accrued and payments made to any Investor (and/or its Affiliates or management companies) (or prior
to the Closing Date, the Existing Sponsor and/or its Affiliates or management companies) for any financial advisory, consulting, financing,
underwriting or placement services or in respect of other investment banking activities and other transaction fees, and payments to outside
directors of the Borrower or a Parent Company actually paid by or on behalf of, or accrued by, such Person or any of its subsidiaries;
provided that such payment is permitted under this Agreement;
(viii) [reserved];
(ix)
the amount of earn-out and other contingent consideration obligations (including to the extent accounted for as bonuses, compensation
or otherwise) incurred in connection with (A) the Transactions, (B) acquisitions and Investments completed prior to the Closing Date
and (C) any acquisition or other Investment permitted by this Agreement, in each case, which is paid or accrued during the applicable
period;
(x)
pro forma “run rate” cost savings, operating expense reductions, operational improvements and cost synergies (collectively,
“Expected Cost Savings”) (net of actual amounts realized) (1) that are reasonably identifiable, factually supportable
and projected by the Borrower in good faith to result from actions that have been taken or with respect to which substantial steps have
been taken or are expected to be taken (in the good faith determination of such Person) or (2) that have been identified to the Administrative
Agent prior to the Closing Date (including by inclusion in the Acquisition Agreement or the Sponsor’s model and quality of earnings
summaries delivered to the Arrangers on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality
of earnings summary) related to (A) the Transactions and (B) any permitted asset sale, acquisition (including the commencement of activities
constituting a business line), combination, Investment, Disposition (including the termination or discontinuance of activities constituting
a business line), operating improvement, restructuring, cost savings initiative, any similar initiative (including the effect of increased
pricing in customer contracts) and/or specified transaction, in each case prior to, on or after the Closing Date (any such operating
improvement, restructuring, cost savings initiative or similar initiative or specified transaction, a “Cost Saving Initiative”)
(in each case, calculated on a Pro Forma Basis as though such Expected Cost Savings and/or Cost Savings Initiative had been realized
in full on the first day of such period); provided, that the results of such Expected Cost Savings and/or Cost Saving Initiatives
are projected by the Borrower in good faith to result from actions that have been taken or with respect to which steps have been taken
or are expected to be taken (in the good faith determination of the Borrower) within 24 months after (i) with respect to the Transactions,
the Closing Date and (ii) with respect to any Cost Savings Initiative, the date of any such operating improvement, restructuring, cost
savings initiative or similar initiative or specified transaction;
(xi)
Charges attributable to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings initiatives
(including Cost Saving Initiatives), cost rationalization programs, operating expense reductions and/or synergies and/or similar initiatives
and/or programs (including in connection with any integration, restructuring or transition, any reconstruction, decommissioning, recommissioning
or reconfiguration of fixed assets for alternative uses, any office or facility opening and/or pre-opening), including the following:
any inventory optimization program and/or any curtailment, any business optimization Charge, any restructuring Charge (including any
Charge relating to any tax restructuring), any Charge relating to the closure or consolidation of any office or facility (including but
not limited to rent termination costs, moving costs and legal costs), any systems implementation Charge, any severance Charge, any one
time compensation Charge, any Charge relating to entry into a new market, any Charge relating to rights fee arrangements (including any
early terminations thereof), any Charge relating to any strategic initiative or contract, any signing Charge, any Charge relating to
any entry into new markets and contracts (including, without limitation, any renewals, extensions or other modifications thereof) or
exiting a market or contract, any retention or completion Charge or bonus, any recruiting Charge, any lease run-off Charge, any expansion
and/or relocation Charge, any Charge associated with any modification or curtailment to any pension and post-retirement employee benefit
plan, any software or other intellectual property development Charge, any Charge associated with new systems design, any implementation
Charge, any transition Charge, any Charge associated with improvements to IT or accounting functions, losses related to temporary decreases
in work volume and expenses related to maintaining underutilized personnel, any transition Charge, any Charge in connection with unused
warehouse space, any Charge relating to a new contract, any consulting Charge and/or any corporate development Charge; provided, that,
in the case of any such Charge, the results of any such action relating to such Charge are projected by the Borrower in good faith to
be achieved within 24 months of the undertaking thereof;
(xii)
any Charge with respect to any liability or casualty event, business interruption or any product recall, (i) so long as such Person has
submitted in good faith, and reasonably expects to receive payment in connection with, a claim for reimbursement of such amounts under
its relevant insurance policy within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so
added back to the extent not so reimbursed within the next four Fiscal Quarters) or (ii) without duplication of amounts included in a
prior period under the preceding clause (i), to the extent such Charge is covered by insurance, indemnification or otherwise reimbursable
by a third party (whether or not then realized so long as the Borrower in good faith expects to receive proceeds arising out of such
indemnification, insurance or reimbursement obligation within the next four Fiscal Quarters) (it being understood that if the amount
received in cash under any such agreement in any period exceeds the amount of expense paid during such period, any excess amount received
may be carried forward and applied against any expense in any future period);
(xiii)
unrealized net losses in the fair market value of any arrangements under Hedge Agreements;
(xiv)
the amount of any Cash actually received by such Person (or the amount of the benefit of any netting arrangement resulting in reduced
Cash expenditures) during such period, and not included in Consolidated Net Income in any period, to the extent that any non-Cash gain
relating to such Cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA pursuant to clause
(c)(i) below for any previous period and not added back;
(xv)
the amount of any “bad debt” expense related to revenue earned prior to the Closing Date;
(xvi)
any net Charges included in the Borrower’s consolidated financial statements due to the application of Accounting Standards Codification
Topic 810 (“ASC 810”);
(xvii)
the amount of any non-controlling interest or minority interest Charge consisting of income attributable to minority equity interests
of third parties in any non- wholly owned Restricted Subsidiary;
(xviii)
the amount of any Charges (including facility operating losses) related to any de novo facility or any facility renovation, including
any construction, pre- opening/re-opening and start-up period prior to opening (or re-opening, as applicable), until such facility has
been open (or renovated) and operating for a period of 18 consecutive months;
(xix)
the amount of any earned or billed amounts or other revenue that is attributable to services performed during such period but is not
included in Consolidated Net Income for such period; it being understood that if such revenue is added back in calculating Consolidated
Adjusted EBITDA for such period, such revenue shall not be included in Consolidated Net Income in the period in which it is actually
recognized;
(xx)
any other adjustments, exclusions and add-backs (x) reflected in the Sponsor’s model and quality of earnings summaries delivered
to the Arrangers on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of the quality of earnings summary)
or (y) that are consistent with Regulation S-X;
(xxi)
for the first 18 months following the opening of a de novo facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to such de novo facility for each month such de novo facility has been in operation
and (y) the 12-month average Consolidated Adjusted EBITDA for all similar facilities that have been in operation for a period of at least
18 months (as determined by the Borrower in good faith); provided that the aggregate amount added-back to Consolidated Adjusted
EBITDA solely pursuant to this clause (xxi) and clause (xxii) below (on an aggregate basis) shall not, for any period, exceed an amount
equal to 15% of Consolidated Adjusted EBITDA for such period, calculated prior to giving effect to such add-backs; and
(xxii)
for the first 18 months following the renovation of a facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to performance gains for such facility for each month such facility has been
in operation post-renovation and (y) the 12-month average Consolidated Adjusted EBITDA attributable to performance gains for all similar
facilities that have been in operation for a period of at least 18 months (as determined by the Borrower in good faith); provided
that the aggregate amount added-back to Consolidated Adjusted EBITDA solely pursuant to clause (xxi) above and this clause (xxii)
(on an aggregate basis) shall not, for any period, exceed an amount equal to 15% of Consolidated Adjusted EBITDA for such period, calculated
prior to giving effect to such add-backs;
minus (c) to the extent such amounts increase Consolidated Net Income:
(i)
non-Cash gains or income; provided that if any non-Cash gain or income represents an accrual or deferred income in respect of
potential Cash items in any future period, such Person may determine not to deduct such non-Cash gain or income in the current period;
(ii)
unrealized net gains in the fair market value of any arrangements under Hedge Agreements;
(iii) [reserved];
(iv)
the amount added back to Consolidated Adjusted EBITDA pursuant to clause (b)(xii) above (as described in such clause) to the extent
the relevant business interruption insurance proceeds were not received within the time period required by such clause;
(v)
to the extent that such Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause (b)(iv)
above, the cash payment in respect thereof in the relevant future period;
(vi)
the excess of actual Cash rent paid over rent expense during such period due to the use of straight line rent for GAAP purposes;
(vii)
any Consolidated Net Income included in the Borrower’s consolidated financial statements due to the application of ASC 810; and
(viii)
the amount of any non-controlling interest or minority interest gains from income attributable to minority equity interests of third
parties in any non-wholly owned Restricted Subsidiary;
(d)
increased or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards
Codification Topic 460 or any comparable regulation.
Notwithstanding
anything to the contrary herein, it is agreed that for the purpose of calculating the Total Leverage Ratio, the First Lien Leverage Ratio,
the Interest Coverage Ratio and the Secured Leverage Ratio and/or the amount of any basket based on a percentage of Consolidated Adjusted
EBITDA for any period that includes the Fiscal Quarters ended July 3, 2016, October 2, 2016, January 1, 2017 and April 2, 2017, Consolidated
Adjusted EBITDA for such Fiscal Quarters shall be deemed to be $15,194,992, $34,765,574, $9,482,738 and $58,534,750 (which amounts are
agreed not to include adjustments pursuant to clauses (b)(x), (b)(xx), (b)(xxi) and (b)(xxii) above), respectively, in each case, as
adjusted (i) on a Pro Forma Basis, as applicable and (ii) pursuant to clauses (b)(x), (b)(xx), (b)(xxi) and (b)(xxii) above, as applicable
for each Test Period.
“Consolidated
First Lien Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total
Debt outstanding on such date that is secured by a first priority Lien on any asset or property of such Person or its Restricted Subsidiaries
that constitutes Collateral.
“Consolidated
Interest Expense” means, with respect to any Person for any period, the sum of (a) consolidated total interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including (without duplication),
amortization of any debt issuance cost and/or original issue discount, any premium paid to obtain payment, financial assurance or similar
bonds, any interest capitalized during construction, any non-cash interest payment, the interest component of any deferred payment obligation,
commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified Receivables Facility,
the interest component of any payment under any Capital Lease (regardless of whether accounted for as interest expense under GAAP), any
commission, discount and/or other fee or charge owed with respect to any letter of credit, bank guarantee and/or bankers’ acceptance
or any similar facilities, any fee and/or expense paid to the Administrative Agent in connection with its services hereunder, any other
bank, administrative agency (or trustee) and/or financing fee and any cost associated with any surety bond in connection with financing
activities (whether amortized or immediately expensed)), plus (b) any cash dividend paid or payable in respect of Disqualified
Capital Stock during such period other than to such Person or any Loan Party, plus (c) any net losses, obligations or payments
arising from or under any Hedge Agreement and/or other derivative financial instrument issued by such Person for the benefit of such
Person or its subsidiaries, in each case determined on a consolidated basis for such period. For purposes of this definition, interest
in respect of any Capital Lease shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of
interest implicit in such Capital Lease in accordance with GAAP.
“Consolidated
Net Income” means, as to any Person (the “Subject Person”) for any period, the net income (or loss) of the
Subject Person and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined
in conformity with GAAP; provided that there shall be excluded, without duplication,
(a) (i) any net income (loss) of any Person
if such Person is not the Borrower or a Restricted Subsidiary, except that Consolidated Net Income will be increased by the amount of
dividends, distributions or other payments made in Cash or Cash Equivalent (or converted into Cash or Cash Equivalents) by such Person
to the Borrower or any other Restricted Subsidiary (subject, in the case of any such Restricted Subsidiary that is not a Loan Party,
to the limitations contained in clause (ii) below) and (ii) solely for the purpose of determining the amount available for Restricted
Payments under Section 6.04(a)(iii)(A) or the amount of Excess Cash Flow, any net income (loss) of any Restricted Subsidiary (other
than a Loan Party) if such Restricted Subsidiary is subject to restrictions on the payment of dividends or the making of distributions
by such Restricted Subsidiary, directly or indirectly, to the Borrower or a Loan Party by operation of its organizational documents or
any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable thereto (other than (x) any
restriction that has been waived or otherwise released and (y) any restriction set forth in the Loan Documents, the documents related
to any Incremental Equivalent Debt, the documents relating to any Second Lien Facility and the documents relating to any Replacement
Debt or Refinancing Indebtedness in respect of any of the foregoing), except that Consolidated Net Income will be increased by the amount
of dividends, distributions or other payments made in Cash or Cash Equivalents (or converted into Cash or Cash Equivalents) by the Restricted
Subsidiary (subject, in the case of a dividend, distribution or other payment to another Restricted Subsidiary, to the limitations in
this clause (ii));
(b) any gain or Charge attributable to any asset Disposition (including asset retirement costs or sales or issuances
of Capital Stock) or of returned or surplus assets, in each case, outside the ordinary course of business (as determined in good faith
by such Person);
(c)
(i) any gain or Charge from (A) any extraordinary item (as determined in good faith by such Person) and/or (B) any non-recurring or unusual
item (as determined in good faith by such Person) and/or (ii) any Charge associated with and/or payment of any legal settlement, fine,
judgment or order;
(d)
(i) any unrealized or realized net foreign currency translation or transaction gains or Charges impacting net income (including currency
re-measurements of Indebtedness, any net gains or Charges resulting from Hedge Agreements for currency exchange risk associated with
the above or any other currency related risk, any gains or Charges relating to translation of asset and liabilities denominated in a
foreign currency and those resulting from intercompany Indebtedness), (ii) any realized or unrealized gain or Charge in respect of (x)
any obligation under any Hedge Agreement as determined in accordance with GAAP and/or (y) any other derivative instrument pursuant to,
in the case of this clause (y), Financial Accounting Standards Board’s Accounting Standards Codification No. 815-Derivatives
and Hedging and (iii) unrealized gains or losses in respect of any Hedge Agreement and any ineffectiveness recognized in earnings related
to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge
transactions, in respect of Hedge Agreements;
(e)
any net gain or Charge with respect to (i) any disposed, abandoned, divested and/or discontinued asset, property or operation (other
than, at the option of the Borrower, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination
thereof), (ii) any disposal, abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the
option of the Borrower, relating to assets or properties held for sale or pending the divestiture or discontinuation thereof) and/or
(iii) any facility that has been closed during such period;
(f)
any net income or Charge (less all fees and expenses related thereto) attributable to (i) the early extinguishment or cancellation of
Indebtedness or (ii) any Derivative Transaction;
(g)
(i) any Charge incurred as a result of, in connection with or pursuant to (or incurred by a Parent Company to the extent permitted to
be paid by the Borrower hereunder) any management equity plan, profits interest or stock option plan or any other management or employee
benefit plan or agreement, pension plan (including a non-cash deemed finance Charge), any stock subscription or shareholders agreement
or any distributor equity plan or any similar equity plan or agreement (including any deferred compensation arrangement or trust), (ii)
any Charge incurred in connection with the rollover, acceleration or payout of Capital Stock held by management of any Parent Company,
the Borrower and/or any of its subsidiaries, in each case under this clause (ii), to the extent that any such cash Charge is funded
with net Cash proceeds contributed to the Subject Person as a capital contribution or as a result of the sale or issuance of Capital
Stock (other than Disqualified Capital Stock) of the Subject Person and (iii) the amount of payments made to optionholders of such Person
or any Parent Company in connection with, or as a result of, any distribution being made to equityholders of such Person or its Parent
Companies, which payments are being made to compensate such optionholders as though they were equityholders at the time of, and entitled
to share in, such distribution, in each case to the extent permitted hereunder;
(h)
any Charge that is established, adjusted and/or incurred, as applicable, (i) within 12 months after the Closing Date that is required
to be established, adjusted or incurred, as applicable, as a result of the Transactions in accordance with GAAP, (ii) within 12 months
after the closing of any other acquisition that is required to be established, adjusted or incurred, as applicable, as a result of such
acquisition in accordance with GAAP or (iii) as a result of any change in, or the adoption or modification of, accounting principles
or policies;
(i)
any (A) write-off or amortization made in such period of deferred financing costs and premiums paid or other expenses incurred directly
in connection with any early extinguishment of Indebtedness, (B) goodwill or other asset impairment charges, write-offs or write-downs
and (C) amortization of intangible assets (including amortization of goodwill, software, deferred or capitalized financing fees, debt
issuance costs, commissions and expenses and other intangible assets);
(j)
(A) the effects of adjustments (including the effects of such adjustments pushed down to the Subject Person and its subsidiaries) in
component amounts required or permitted by GAAP (including, without limitation, in the inventory, property and equipment, lease,
rights fee arrangements, software, goodwill, intangible asset, in-process research and development, deferred revenue, advanced
billing and debt line items thereof), resulting from the application of recapitalization accounting or acquisition accounting, as
the case may be, in relation to the Transactions or any consummated acquisition or similar Investment or the amortization or write-
off of any amounts thereof (including any write-off of in process research and development) and/or (B) the cumulative effect of any
change in accounting principles or policies (effected by way of either a cumulative effect adjustment or as a retroactive
application, in each case, in accordance with GAAP) (except that, if the Borrower determines in good faith that the cumulative
effects thereof are not material to the interests of the Lenders, the effects of any change in any such principles or policies may
be included in any subsequent period after the Fiscal Quarter in which such change, adoption or modification was made);
(k)
the income or loss of any Person accrued prior to the date on which such Person became a Restricted Subsidiary of such Subject Person
or is merged into or consolidated with such Subject Person or any Restricted Subsidiary of such Subject Person or the date that such
other Person’s assets are acquired by such Subject Person or any Restricted Subsidiary of such Subject Person (except to the extent
required for any calculation of Consolidated Adjusted EBITDA on a Pro Forma Basis in accordance with Section 1.04);
(l)
any deferred Tax expense associated with any tax deduction or net operating loss arising as a result of the Transactions, or the release
of any valuation allowance related to any such item;
(m) [reserved];
(n)
earn-out, non-compete and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments
thereof and purchase price adjustments, including in respect of any acquisition consummated prior to the Closing Date;
(o) [reserved];
(p)
(A) Transaction Costs, (B) any Charges incurred (1) in connection with any transaction (in each case, regardless of whether consummated),
whether or not permitted under this Agreement, including any issuance and/or incurrence of Indebtedness and/or any issuance and/or offering
of Capital Stock (including, in each case, by any Parent Company), any Investment, any acquisition, any Disposition, any recapitalization,
any merger, consolidation or amalgamation, becoming a standalone company, any option buyout or any repayment, redemption, refinancing,
amendment or modification of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums
and prepayment penalties) or any similar transaction, and/or (2) in connection with any Qualifying IPO (whether or not consummated),
(C) the amount of any Charges that are actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement
provisions or similar agreements or insurance (it being understood that if the amount received in cash under any such agreement in any
period exceeds the amount of expense paid during such period, any excess amount received may be carried forward and applied against any
expense in any future period); provided that in respect of any reimbursable Charge that is added back in reliance on clause
(C) above, such relevant Person in good faith expects to receive reimbursement for such Charge within the next four Fiscal Quarters
(with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within the next four Fiscal
Quarters) and/or (D) Public Company Costs;
(q)
non-cash Charges incurred or accrued in connection with any single or one-time event (as determined in good faith by such Person), including
in connection with (A) the Transactions, the Amendment No. 1 Transactions, the Amendment No. 2 Transactions and/or any acquisition consummated
after the Closing Date (including legal, accounting and other professional fees and expenses incurred in connection with acquisitions
and other Investments made prior to the Closing Date), (B) the closing, consolidation or reconfiguration of any facility during such
period or (C) one-time consulting costs;
(r)
non-cash compensation Charges and/or any other non-cash Charges arising from the granting of any stock, stock option or similar arrangement
(including any profits interest), the granting of any restricted stock, stock appreciation right and/or similar arrangement (including
any repricing, amendment, modification, substitution or change of any such stock option, restricted stock, stock appreciation right,
profits interest or similar arrangement or the vesting of any warrant); and
(s)
to the extent such amount would otherwise increase Consolidated Net Income, Taxes paid (including pursuant to any Tax sharing arrangement)
in cash (including, to the extent paid in cash, Taxes arising out of any tax examination) and (B) Tax distributions made in cash during
such period.
In
addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, Consolidated
Net Income will include the proceeds of business interruption insurance in an amount representing the earnings for the applicable period
that such proceeds are intended to replace (whether or not received so long as the Borrower in good faith expects to receive such proceeds
within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent not
so received within the next four Fiscal Quarters)).
“Consolidated
Secured Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt
outstanding on such date that is secured by a Lien on any asset or property of such Person or its Restricted Subsidiaries that constitutes
Collateral.
“Consolidated
Total Assets” means, as to any Person, at any date, all amounts that would, in conformity with GAAP, be set forth opposite
the caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person at such date.
“Consolidated
Total Debt” means, as to any Person at any date of determination, the aggregate principal amount of all third party debt for
borrowed money (including LC Disbursements that have not been reimbursed within three Business Days and the outstanding principal balance
of all Indebtedness of such Person represented by notes, bonds and similar instruments), Attributable Debt and purchase money Indebtedness
(but excluding, for the avoidance of doubt, undrawn letters of credit), in each case of such Person; provided that “Consolidated
Total Debt” shall be calculated (i) net of the Unrestricted Cash Amount, (ii) to exclude any obligation, liability or indebtedness
of such Person if, upon or prior to the maturity thereof, such Person has irrevocably deposited with the proper Person in trust or escrow
the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such obligation, liability or indebtedness,
and thereafter such funds and evidences of such obligation, liability or indebtedness or other security so deposited are not included
in the calculation of the Unrestricted Cash Amount, (iii) to exclude obligations under any Derivative Transaction, any Qualified Receivables
Facility, or under any Indebtedness that is non-recourse to the Borrower and its Restricted Subsidiaries and (iv) to exclude any iStar
Exchange or Excluded Property Transaction.
“Consolidated
Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.
“Consolidated
Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end
of such period; provided that there shall be excluded (a) the effect of reclassification during such period between current assets
and long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior period to give
effect to such reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition of any
Person, facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and contingent obligations
under any Hedge Agreement and (d) the application of purchase or recapitalization accounting.
“Contractual
Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties
is bound or to which it or any of its properties is subject.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Copyright”
means the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright whether published or unpublished,
copyright registrations and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past
or future infringements for any of the foregoing; (d) the right to sue for past, present and future infringements of any of the foregoing;
and (e) all rights corresponding to any of the foregoing.
“Cost
Saving Initiative” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Credit
Extension” means each of (i) the making of a Revolving Loan or Swingline Loan or (ii) the issuance, amendment, modification,
renewal or extension of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase
the Stated Amount of the relevant Letter of Credit).
“Credit
Facilities” means the Revolving Facility and the Term Facility.
“Credit
Suisse” has the meaning assigned to such term in the preamble to this Agreement.
“Cure Amount” has the meaning
assigned to such term in Section 6.15(b).
“Cure
Right” has the meaning assigned to such term in Section 6.15(b).
“Current
Assets” means, at any date, all assets of the Borrower and its Restricted Subsidiaries which under GAAP would be classified
as current assets (excluding any (i) cash or Cash Equivalents (including cash and Cash Equivalents held on deposit for third parties
by the Borrower and/or any Restricted Subsidiary), (ii) permitted loans to third parties, (iii) deferred bank fees and derivative financial
instruments related to Indebtedness, (iv) the current portion of current and deferred Taxes and (v) assets held for sale or pension assets).
“Current
Liabilities” means, at any date, all liabilities of the Borrower and its Restricted Subsidiaries which under GAAP would be
classified as current liabilities, other than (i) current maturities of long term debt, (ii) outstanding revolving loans and letter of
credit exposures, (iii) accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is due and unpaid), (iv)
obligations in respect of derivative financial instruments related to Indebtedness, (v) the current portion of current and deferred Taxes,
(vi) liabilities in respect of unpaid earnouts, (vii) accruals relating to restructuring reserves, (viii) liabilities in respect of funds
of third parties on deposit with the Borrower and/or any Restricted Subsidiary, (ix) the current portion of any Capital Lease, (x) any
liabilities recorded in connection with stock based awards, partnership interest based awards, awards of profits interests, deferred
compensation awards and similar initiative based compensation awards or arrangements and (xi) the current portion of any other long term
liability for borrowed money.
“Debt
Fund Affiliate” means any Affiliate (other than a natural person) of the Sponsor that is a bona fide debt fund or investment
vehicle that is engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise
investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business.
“Debtor
Relief Laws” means the Bankruptcy Code of the U.S., and all other liquidation, conservatorship, bankruptcy, general assignment
for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the
U.S. or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declined
Proceeds” has the meaning assigned to such term in Section 2.11(b)(v).
“Default”
means any event or condition which upon notice, lapse of time or both would become an Event of Default.
“Defaulting
Lender” means any Lender that has (a) defaulted in its obligations under this Agreement, including without limitation, to make
a Loan within two Business Days of the date required to be made by it hereunder or to fund its participation in a Letter of Credit or
Swingline Loan required to be funded by it hereunder within two Business Days of the date such obligation arose or such Loan, Letter
of Credit or Swingline Loan was required to be made or funded, (b) notified the Administrative Agent, any Issuing Bank or the Swingline
Lender or any Loan Party in writing that it does not intend to satisfy any such obligation or has made a public statement to the effect
that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend
credit generally (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states
that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together
with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) failed,
within two Business Days after the request of Administrative Agent or the Borrower, to confirm in writing that it will comply with the
terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit
and Swingline Loans; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt
of such written confirmation by the Administrative Agent, (d) become (or any parent company thereof has become) insolvent or been determined
by any Governmental Authority having regulatory authority over such Person or its assets, to be insolvent, or the assets or management
of which has been taken over by any Governmental Authority, (e) become (or any parent company thereof has become) the subject of a bankruptcy
or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance
of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment, unless in the case of any Lender
subject to this clause (e), the Borrower and the Administrative Agent shall each have determined that such Lender intends, and
has all approvals required to enable it (in form and substance satisfactory to each of the Borrower and the Administrative Agent), to
continue to perform its obligations as a Lender hereunder or (f) become (or any parent company thereof has become) the subject of a Bail-In
Action; provided that no Lender shall be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of
any Capital Stock in such Lender or its parent by any Governmental Authority; provided that such action does not result in or
provide such Lender with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of attachment
on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contract or agreement
to which such Lender is a party.
“Deposit
Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or
like organization, excluding, for the avoidance of doubt, any investment property (within the meaning of the UCC) or any account evidenced
by an instrument or negotiable certificate of deposit (within the meaning of the UCC).
“Derivative
Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement,
interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives rise to similar
credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction, including any cross-currency
interest-rate swap, any forward foreign-exchange contract, any currency option, and any other instrument linked to exchange rates that
gives rise to similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any equity-linked option,
any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d) any commodity
(including precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any forward commodity-linked
contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided, that, no phantom stock
or similar plan providing for payments only on account of services provided by current or former directors, officers, employees, members
of management, managers or consultants of the Borrower or its subsidiaries shall constitute a Derivative Transaction.
“Designated
Non-Cash Consideration” means the fair market value (as determined by the Borrower in good faith) of non-Cash consideration
received by the Borrower or any Restricted Subsidiary in connection with any Disposition pursuant to Section 6.07(h) and/or Section
6.08 that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower,
setting forth the basis of such valuation (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection
with a subsequent sale or conversion of such Designated Non-Cash Consideration to Cash or Cash Equivalents).
“Discount
Range” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Disposition”
or “Dispose” means the sale, lease, sublease, or other disposition of any property of any Person. The fair market
value of any assets or other property Disposed of shall be determined by the Borrower in good faith.
“Disqualified
Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, prior
to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such redemption
is in part, only such part coming into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued
shall constitute Disqualified Capital Stock), (b) is or becomes convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (i) debt securities or (ii) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time
on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued, (c) contains any mandatory repurchase
obligation or any other repurchase obligation at the option of the holder thereof (other than for Qualified Capital Stock), in whole
or in part, which may come into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it
being understood that if any such repurchase obligation is in part, only such part coming into effect prior to 91 days following such
Latest Maturity Date at the time such Capital Stock is issued shall constitute Disqualified Capital Stock) or (d) provides for the scheduled
payments of dividends in Cash on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided
that any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or
the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the
issuer thereof to redeem such Capital Stock upon the occurrence of any change of control, Qualifying IPO or any Disposition occurring
prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued shall not constitute Disqualified Capital
Stock if such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior
to the Termination Date.
Notwithstanding
the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees, members
of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or
consultants, in each case in the ordinary course of business of Holdings, the Borrower or any Restricted Subsidiary, such Capital Stock
shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to
satisfy applicable statutory or regulatory obligations and (B) no Capital Stock held by any Permitted Payee shall be considered Disqualified
Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock
option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar
agreement that may be in effect from time to time.
Notwithstanding
the foregoing, in all cases both the Series A Preferred Stock and any preferred Capital Stock required by applicable Requirements of
Law to be issued in connection with obtaining liquor licenses shall be deemed not to be Disqualified Capital Stock hereunder.
“Disqualified
Institution” means:
(a)
(i) any Person identified as such in writing to the Arrangers on June 5, 2017 by way of email from the Sponsor (or its attorneys on such
date), (ii) any Person identified as such by the Borrower in writing after June 5, 2017 (and reasonably satisfactory) to the Arrangers
(or if after the Closing Date, to the Administrative Agent in place of the Arrangers), (iii) any Affiliate of any Person described in
clauses (i) or (ii) above that is clearly identifiable as an Affiliate of such Person on the basis of such Affiliate’s
name and (iv) any other Affiliate of any Person described in clauses (i) or (ii) above that is identified by the Borrower
in a written notice to the Arrangers (if prior to the Closing Date) or the Administrative Agent (if after the Closing Date) (other than
Bona Fide Debt Funds other than such Bona Fide Debt Funds excluded pursuant to clause (a)(i) or (a)(ii) of this paragraph) (each such
person described in clauses (i) through (iv) above, a “Disqualified Lending Institution”);
(b)
(i) any Person that is a Company Competitor and/or any Affiliate of any Company Competitor (other than any Affiliate that is a Bona
Fide Debt Fund) and is identified by the Borrower as such in writing to the Arrangers (if prior to the Closing Date) or the
Administrative Agent (if after the Closing Date), (ii) any Affiliate of any Person described in clause (i) above (other than
any Affiliate that is a Bona Fide Debt Fund) that is clearly identifiable as an Affiliate of such person on the basis of such
Affiliate’s name and (iii) any other Affiliate of any Person described in clause (i) above that is identified by the
Borrower in a written notice to the Arrangers (if prior to the Closing Date) or to the Administrative Agent (if after the Closing
Date) (it being understood and agreed that no Bona Fide Debt Fund may be designated as a Disqualified Institution pursuant to this clause
(iii), but such Bona Fide Debt Fund may be designated as a Disqualified Lending Institution pursuant to clause (a)
above); and
(c)
any Affiliate or Representative of any Arranger and/or any Initial Lender that is engaged as a principal primarily in private equity,
mezzanine financing or venture capital;
it
being understood and agreed that no written notice delivered pursuant to clauses (a)(ii), (a)(iv), (b)(i)
and/or (b)(iii) above shall apply retroactively to disqualify any Person that has previously acquired an assignment or
participation interest in any Loans if such Person was not a Disqualified Institution at the time of acquisition of such assignment
or participation interest.
“Disqualified
Lending Institution” has the meaning assigned to such term in the definition of “Disqualified Institution”.
“Disregarded
Domestic Subsidiary” means any Domestic Subsidiary that has no material assets other than the Capital Stock and/or Indebtedness
of one or more Foreign Subsidiaries, IP Rights related to such Foreign Subsidiaries, Cash or Cash Equivalents, and other incidental assets
related thereto or that has no material assets other than Capital Stock and/or Indebtedness of one or more Disregarded Domestic Subsidiaries.
“Dollars”
or “$” refers to lawful money of the U.S.
“Domestic
Subsidiary” means any Restricted Subsidiary incorporated or organized under the laws of the U.S., any state thereof or the
District of Columbia.
“Dutch
Auction” means an auction (an “Auction”) conducted by any Affiliated Lender or any Debt Fund Affiliate (any
such Person, the “Auction Party”) in order to purchase Initial Term Loans (or any Additional Term Loans), in accordance
with the following procedures (as may be modified by such Affiliated Lender or Debt Fund Affiliate (as applicable) and the applicable
“auction agent” in connection with a particular Auction transaction); provided that no Auction Party shall initiate
any Auction unless (I) at least five Business Days have passed since the consummation of the most recent purchase of Term Loans pursuant
to an Auction conducted hereunder; or (II) at least three Business Days have passed since the date of the last Failed Auction (or equivalent)
which was withdrawn:
(a)
Notice Procedures. In connection with any Auction, the Auction Party will provide notification to the Auction Agent (for distribution
to the relevant Lenders) of the Term Loans that will be the subject of the Auction (an “Auction Notice”). Each Auction
Notice shall be in a form reasonably acceptable to the Auction Agent and shall (i) specify the maximum aggregate principal amount of
the Term Loans subject to the Auction, in a minimum amount of $10,000,000 and whole increments of $1,000,000 in excess thereof (or, in
any case, such lesser amount of such Term Loans then outstanding or which is otherwise reasonably acceptable to the Auction Agent and
the Administrative Agent (if different from the Auction Agent)) (the “Auction Amount”), (ii) specify the discount
to par (which may be a range (the “Discount Range”) of percentages of the par principal amount of the Term Loans subject
to such Auction), that represents the range of purchase prices that the Auction Party would be willing to accept in the Auction, (iii)
be extended, at the sole discretion of the Auction Party, to (x) each Lender and/or (y) each Lender with respect to any Term Loan on
an individual Class basis and (iv) remain outstanding through the Auction Response Date. The Auction Agent will promptly provide each
appropriate Lender with a copy of the Auction Notice and a form of the Return Bid to be submitted by a responding Lender to the Auction
Agent (or its delegate) by no later than 5:00 p.m. on the date specified in the Auction Notice (or such later date as the Auction Party
may agree with the reasonable consent of the Auction Agent) (the “Auction Response Date”).
(b)
Reply Procedures. In connection with any Auction, each Lender holding the relevant Term Loans subject to such Auction may, in
its sole discretion, participate in such Auction and may provide the Auction Agent with a notice of participation (the “Return
Bid”) which shall be in a form reasonably acceptable to the Auction Agent, and shall specify (i) a discount to par (that must
be expressed as a price at which it is willing to sell all or any portion of such Term Loans) (the “Reply Price”),
which (when expressed as a percentage of the par principal amount of such Term Loans) must be within the Discount Range and (ii) a principal
amount of such Term Loans, which must be in whole increments of $1,000,000 (or, in any case, such lesser amount of such Term Loans of
such Lender then outstanding or which is otherwise reasonably acceptable to the Auction Agent) (the “Reply Amount”).
Lenders may only submit one Return Bid per Auction, but each Return Bid may contain up to three bids only one of which may result in
a Qualifying Bid. In addition to the Return Bid, the participating Lender must execute and deliver, to be held in escrow by the Auction
Agent, an Assignment and Assumption with the dollar amount of the Term Loans to be assigned to be left in blank, which amount shall be
completed by the Auction Agent in accordance with the final determination of such Lender’s Qualifying Bid pursuant to clause
(c) below. Any Lender whose Return Bid is not received by the Auction Agent by the Auction Response Date shall be deemed to have
declined to participate in the relevant Auction with respect to all of its Term Loans.
(c)
Acceptance Procedures. Based on the Reply Prices and Reply Amounts received by the Auction Agent prior to the applicable Auction
Response Date, the Auction Agent, in consultation with the Auction Party, will determine the applicable price (the “Applicable
Price”) for the Auction, which will be the lowest Reply Price for which the Auction Party can complete the Auction at the Auction
Amount; provided that, in the event that the Reply Amounts are insufficient to allow the Auction Party to complete a purchase
of the entire Auction Amount (any such Auction, a “Failed Auction”), the Auction Party shall either, at its election,
(i) withdraw the Auction or (ii) complete the Auction at an Applicable Price equal to the highest Reply Price. The Auction Party shall
purchase the relevant Term Loans (or the respective portions thereof) from each Lender with a Reply Price that is equal to or lower than
the Applicable Price (“Qualifying Bids”) at the Applicable Price; provided that if the aggregate proceeds required
to purchase all Term Loans subject to Qualifying Bids would exceed the Auction Amount for such Auction, the Auction Party shall purchase
such Term Loans at the Applicable Price ratably based on the principal amounts of such Qualifying Bids (subject to rounding requirements
specified by the Auction Agent in its discretion). If a Lender has submitted a Return Bid containing multiple bids at different Reply
Prices, only the bid with the lowest Reply Price that is equal to or less than the Applicable Price will be deemed to be the Qualifying
Bid of such Lender (e.g., a Reply Price of $100 with a discount to par of 1%, when compared to an Applicable Price of $100 with a 2%
discount to par, will not be deemed to be a Qualifying Bid, while, however, a Reply Price of $100 with a discount to par of 2.50% would
be deemed to be a Qualifying Bid). The Auction Agent shall promptly, and in any case within five Business Days following the Auction
Response Date with respect to an Auction, notify (I) the Borrower of the respective Lenders’ responses to such solicitation, the
effective date of the purchase of Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount of the
Term Loans and the tranches thereof to be purchased pursuant to such Auction, (II) each participating Lender of the effective date of
the purchase of Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount and the tranches of Term
Loans to be purchased at the Applicable Price on such date, (III) each participating Lender of the aggregate principal amount and the
tranches of the Term Loans of such Lender to be purchased at the Applicable Price on such date and (IV) if applicable, each participating
Lender of any rounding and/or proration pursuant to the second preceding sentence. Each determination by the Auction Agent of the amounts
stated in the foregoing notices to the Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error.
(d) Additional
Procedures.
(i)
Once initiated by an Auction Notice, the Auction Party may not withdraw an Auction other than a Failed Auction. Furthermore, in connection
with any Auction, upon submission by a Lender of a Qualifying Bid, such Lender (each, a “Qualifying Lender”) will
be obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Price.
(ii)
To the extent not expressly provided for herein, each purchase of Term Loans pursuant to an Auction shall be consummated pursuant to
procedures consistent with the provisions in this definition, established by the Auction Agent acting in its reasonable discretion and
as reasonably agreed by the Borrower.
(iii)
In connection with any Auction, the Borrower and the Lenders acknowledge and agree that the Auction Agent may require as a condition
to any Auction, the payment of customary fees and expenses by the Auction Party in connection therewith as agreed between the Auction
Party and the Auction Agent.
(iv)
Notwithstanding anything in any Loan Document to the contrary, for purposes of this definition, each notice or other communication required
to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the Auction Agent’s
(or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice
or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business
on the next Business Day.
(v)
The Borrower and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this definition
by itself or through any Affiliate of the Auction Agent and expressly consent to any such delegation of duties by the Auction Agent to
such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement
shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any purchase of Term Loans provided
for in this definition as well as activities of the Auction Agent.
“EAP
Substitution” has the meaning assigned to such term in the iStar Sale/Leaseback Documents.
“EAP
Substitution Property” means any property that is the subject of an EAP Substitution.
“EEA
Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA
Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA
Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ECF
Prepayment Amount” has the meaning assigned to such term in Section 2.11(b)(i).
“Effective
Yield” means, as to any Indebtedness, the effective yield applicable thereto calculated by the Administrative Agent in consultation
with the Borrower in a manner consistent with generally accepted financial practices, taking into account (a) interest rate margins,
(b) interest rate floors (subject to the proviso set forth below), (c) any amendment to the relevant interest rate margins and interest
rate floors prior to the applicable date of determination and (d) original issue discount and upfront or similar fees (based on an assumed
four-year average life to maturity or lesser remaining average life to maturity), but excluding (i) any advisory, arrangement, commitment,
consent, structuring, success, underwriting, ticking, unused line fees, amendment fees and/or any similar fees payable in connection
therewith (regardless of whether any such fees are paid to or shared in whole or in part with any lender) and (ii) any other fee that
is not paid directly by the Borrower generally to all relevant lenders ratably (or, if only one lender (or affiliated group of lenders)
is providing such Indebtedness, are fees of the type not customarily shared with lenders generally); provided, that with respect
to any Indebtedness that includes a “LIBOR floor” or “Base Rate floor”, that (A) to the extent that the Published
LIBO Rate (for an Interest Period of three months) or Alternate Base Rate (in each case without giving effect to any floor specified
in the definition thereof on the date on which the Effective Yield is being calculated) is less than such floor, the amount of such difference
will be deemed added to the interest rate margin applicable to such Indebtedness for purposes of calculating the Effective Yield and
(B) to the extent that the Published LIBO Rate (for an Interest Period of three months) or Alternate Base Rate (in each case, without
giving effect to any floor specified in the definitions thereof) is greater than such floor, the floor will be disregarded in calculating
the Effective Yield.
“Eligible
Assignee” means (a) any Lender, (b) any commercial bank, insurance company, finance company, financial institution, any fund
that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), (c) any Affiliate
of any Lender, (d) any Approved Fund of any Lender or (e) to the extent permitted under Section 9.05(g) or with respect to the
Revolving Loans and Revolving Credit Commitments of any Defaulting Lender, any Affiliated Lender or any Debt Fund Affiliate; provided
that in any event, “Eligible Assignee” shall not include (i) any natural person, (ii) any Disqualified Institution or
Defaulting Lender or (iii) except as permitted under Section 9.05(g) or except with respect to the Revolving Loans and Revolving
Credit Commitments of any Defaulting Lender, the Borrower or any of its Affiliates.
“Employee
Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (regardless of whether such
plan is subject to ERISA) which is sponsored, maintained or contributed to by, or required to be contributed to by, Borrower or any of
its Subsidiaries.
“Environmental
Claim” means any written investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order
or other order, decree or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant
to or in connection with any actual or alleged violation of any Environmental Law; or (b) in connection with any actual or alleged Hazardous
Materials Activity.
“Environmental
Laws” means any and all applicable foreign or domestic, federal, state or local (or any subdivision thereof), statutes, ordinances,
orders, decrees, rules, regulations, judgments, Governmental Authorizations, or any other applicable binding requirements of Governmental
Authorities or the common law relating to (a) pollution or the protection of the environment or natural resources, human health and safety
(to the extent relating to the exposure to any hazardous material) or other environmental matters; or (b) any Hazardous Materials Activity
or any exposure of any Person to any hazardous material.
“Environmental
Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any Restricted Subsidiary directly or indirectly resulting from or based upon (a)
any actual or alleged violation of any Environmental Law, (b) any Hazardous Materials Activity, (c) exposure to any Hazardous Materials,
(d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other legally
binding arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity
Contribution” has the meaning assigned to such term in the Recitals to this Agreement.
“ERISA” means the
Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within
the meaning of Section 414(b) of the Code of which that Person is a member; and (b) any trade or business (whether or not incorporated)
which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that
Person is a member.
“ERISA
Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder
with respect to any Pension Plan (excluding those for which the 30- day notice period has been waived); (b) the failure to meet the minimum
funding standard of Section 412 of the Code with respect to any Pension Plan; (c) the filing of any request for or receipt of a minimum
funding waiver under Section 412 of the Code with respect to any Pension Plan; (d) engaging in a non- exempt prohibited transaction within
the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Pension Plan; (e) the provision by the administrator
of any Pension Plan pursuant to Section 4041(a)(2) or Section 302 of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (f) the withdrawal by the Borrower, any of its Restricted Subsidiaries or any of their
respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan
resulting in liability to the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4063 or 4064 of ERISA; (g) the filing by the PBGC of judicial proceedings to terminate any Pension Plan; (h) the imposition of liability
on the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA; (i) a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) of the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates from any Multiemployer
Plan if there is any potential liability therefor under Title IV of ERISA, or the receipt by the Borrower, any of its Restricted Subsidiaries
or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA,
or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; or (j) the incurrence of liability or the imposition
of a Lien pursuant to Section 436 or 430(k) of the Code or pursuant to ERISA with respect to any Pension Plan.
“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
person), as in effect from time to time.
“Event
of Default” has the meaning assigned to such term in Article 7.
“Excess
Cash Flow” means, for any Excess Cash Flow Period, an amount (if positive) equal to:
(a)
the sum, without duplication, of the amounts for such period of the following:
(i)
Consolidated Adjusted EBITDA for such period without giving effect to clause (b)(x) of the definition thereof, plus
(ii)
the Consolidated Working Capital Adjustment for such period, plus
(iii)
cash gains of the type described in clauses (b), (c), (d), (e) and (f) of the definition of “Consolidated
Net Income”, to the extent not otherwise included in calculating Consolidated Adjusted EBITDA (except to the extent such gains
consist of proceeds utilized in calculating Net Proceeds falling under paragraph (a) of the definition thereof or Net Insurance/Condemnation
Proceeds subject to Section 2.11(b)(ii)), plus
(iv)
to the extent not otherwise included in the calculation of Consolidated Adjusted EBITDA for such period, cash payments received by the
Borrower or any of its Restricted Subsidiaries with respect to amounts deducted from Excess Cash Flow in a prior period pursuant to clause
(b)(vii) below, minus
(b)
the sum, without duplication, of the amounts for such period (or, in the case of clauses (b)(i), (b)(iii), (b)(iv), (b)(x), (b)(xi),
(b)(xiii) and (b)(xiv), at the option of the Borrower, amounts after such period to the extent paid prior to the date of the applicable
Excess Cash Flow payment) of the following:
(i)
the aggregate principal amount of (i) all optional prepayments of Indebtedness (other than any (A) optional prepayment of
Indebtedness that is deducted in calculating the amount of any Excess Cash Flow payment in accordance with Section 2.11(b)(i) or
(B) revolving Indebtedness except to the extent any related commitment is permanently reduced in connection with such repayment),
(ii) all mandatory prepayments and scheduled repayments of Indebtedness and (iii) the aggregate amount of any premiums, make-whole
or penalty payments actually paid in Cash by the Borrower and/or any Restricted Subsidiary that are or were required to be made in
connection with any prepayment of Indebtedness, in each case, except to the extent financed with long- term funded Indebtedness
(other than revolving Indebtedness), plus
(ii)
[reserved], plus
(iii)
Consolidated Interest Expense to the extent paid or payable in Cash (including (A) fees and expenses paid to the Administrative Agent
in connection with its services hereunder, (B) other bank, administrative agency (or trustee) and financing fees (including rating agency
fees and other fees in respect of any Second Lien Facility), (C) costs of surety bonds in connection with financing activities (whether
amortized or immediately expensed) and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments,
letters of credit, bank guarantees, bankers’ acceptances or any similar facilities or financing and Hedge Agreements), plus
(iv)
Taxes (including Taxes paid or payable pursuant to any Tax sharing arrangement or arrangements and/or any Tax distribution) paid or payable,
and provisions for Taxes, to the extent payable in Cash with respect to such Excess Cash Flow Period, plus
(v)
[reserved], plus
(vi)
any foreign translation losses paid or payable in Cash (including any currency re-measurement of Indebtedness, any net gain or loss resulting
from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction
or any other currency-related risk) to the extent included in calculating Consolidated Adjusted EBITDA, plus
(vii)
amounts added back under (i) clauses (b)(xii), (b)(xiv), (b)(xix), (b)(xx), (b)(xxi) or (b)(xxii)
of the definition of “Consolidated Adjusted EBITDA” or (ii) the last paragraph of the definition of Consolidated Net
Income with respect to business interruption insurance, in each case to the extent such amounts have not yet been received by the
Borrower or its Restricted Subsidiaries, plus
(viii)
an amount equal to (A) all Charges either (1) excluded in calculating Consolidated Net Income or (2) added back in calculating Consolidated
Adjusted EBITDA, in each case, to the extent paid or payable in cash and (B) without duplication of amounts deducted in clause (c)(i)
of the definition of Consolidated Adjusted EBITDA, any non-cash item of gain or income included in calculating Consolidated Net Income,
plus
(ix)
[reserved], plus
(x)
to the extent not expensed (or exceeding the amount expensed) during such period or not deducted (or exceeding the amount deducted) in
calculating Consolidated Net Income, the aggregate amount of Charges paid or payable in Cash by the Borrower and its Restricted Subsidiaries
during such period, other than to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness), plus
(xi)
Cash payments (other than in respect of Taxes, which are governed by clause (iv) above) made during such period for any liability the
accrual of which in a prior period did not reduce Consolidated Adjusted EBITDA and therefore increased Excess Cash Flow in such prior
period (provided there was no other deduction to Consolidated Adjusted EBITDA or Excess Cash Flow related to such payment), except
to the extent financed with long term funded Indebtedness (other than revolving Indebtedness), plus
(xii)
[reserved], plus
(xiii)
amounts paid in Cash (except to the extent financed with long term funded Indebtedness (other than revolving Indebtedness)) during such
period on account of (A) items that were accounted for as non-Cash reductions of Consolidated Net Income or Consolidated Adjusted EBITDA
in a prior period and (B) reserves or amounts established in purchase accounting to the extent such reserves or amounts are added back
to, or not deducted from, Consolidated Net Income, plus
(xiv)
the amount of any payment of Cash made during such period to be amortized or expensed over a future period and recorded as a long-term
asset, plus
(xv)
the amount of any Tax obligation of the Borrower and/or any Restricted Subsidiary that is estimated in good faith by the Borrower as
due and payable (but is not currently due and payable) by the Borrower and/or any Restricted Subsidiary as a result of the repatriation
of any dividend or similar distribution of net income of any Foreign Subsidiary to the Borrower and/or any Restricted Subsidiary, plus
(xvi)
to the extent included in the calculation of Consolidated Adjusted EBITDA for such period, the amount of any insurance proceeds received
by the Borrower or any Restricted Subsidiary during such period under the Representation and Warranty Insurance Policy, plus
(xvii)
the aggregate amount of any extraordinary, unusual, special or non- recurring cash Charges paid or payable during such period (whether
or not incurred in such Excess Cash Flow Period) that were excluded in calculating Consolidated Adjusted EBITDA (including any component
definition used therein) for such period, plus
(xviii)
to the extent included in calculating Consolidated Adjusted EBITDA, the aggregate amounts received by the Borrower or any Restricted
Subsidiary pursuant to any iStar Exchange or Excluded Property Transaction.
“Excess
Cash Flow Period” means each full Fiscal Year of the Borrower ending after the Closing Date (commencing, for the avoidance
of doubt, with the Fiscal Year ending on or about June 30, 2018).
“Exchange
Act” means the Securities Exchange Act of 1934 and the rules and regulations of the SEC promulgated thereunder.
“Excluded
Assets” means each of the following:
(a)
any asset (including any General Intangibles and any contract, instrument, lease, license, permit, agreement or other document, or any
property or other right subject thereto (including pursuant to a purchase money security interest, capital lease or similar arrangement
or, in the case of after-acquired property, pre-existing secured Indebtedness not incurred in anticipation of the acquisition by the
Loan Party of such property)) the grant or perfection of a security interest in which would (i) constitute a violation of a restriction
in favor of a third party (other than a Loan Party) or result in the abandonment, invalidation or unenforceability of any right or assets
of the relevant Loan Party, (ii) result in a breach, termination (or a right of termination) or default under any such contract, instrument,
lease, license, permit, agreement or other document (including pursuant to any “change of control” or similar provision)
(there being no requirement pursuant to any Loan Document to obtain any consent in respect thereof from any Person that is not also a
Loan Party) or (iii) permit any Person (other than any Loan Party) to amend any rights, benefits and/or obligations of the relevant Loan
Party or Restricted Subsidiary in respect of such relevant asset or permit such Person to require any Loan Party or any subsidiary of
the Borrower to take any action materially adverse to the interests of such subsidiary or Loan Party; provided, however, that
any such asset will only constitute an Excluded Asset under clause (i), clause (ii) or clause (iii) above to the extent
such violation or breach, termination (or right of termination), default or right to amend would not be rendered ineffective pursuant
to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other
applicable Requirement of Law; provided, further, that any such asset shall cease to constitute an Excluded Asset at such time
as the condition causing such violation, breach, termination (or right of termination) or default or right to amend or require other
actions no longer exists and to the extent severable, the security interest granted under the applicable Collateral Document shall attach
immediately to any portion of such General Intangible or other right that does not result in any of the consequences specified in clauses
(i) through (iii) above,
(b)
the Capital Stock of any (i) Captive Insurance Subsidiary, (ii) Unrestricted Subsidiary, (iii) broker-dealer subsidiary, (iv) not-for-profit
subsidiary and/or (v) special purpose entity used for any securitization facility permitted hereunder or any Receivables Subsidiary,
(c)
any (i) foreign IP Rights and/or (ii) intent-to-use (or similar) Trademark application prior to the filing of a “Statement of Use”,
“Amendment to Allege Use” or similar filing with respect thereto, only to the extent, if any, that, and solely during the
period, in which, if any, the grant of a security interest therein may impair the validity or enforceability, or result in the voiding
of, such intent-to-use Trademark application or any registration issuing therefrom under applicable law,
(d)
any asset or property (including Capital Stock), the grant or perfection of a security interest in which would (A) require any governmental
or regulatory consent, approval, license or authorization (there being no requirement under any Loan Document to obtain the consent,
approval, license or authorization of any Governmental Authority or other Person (other than any Loan Party), including, without limitation,
no requirement to comply with the Federal Assignment of Claims Act or any similar statute), (B) be prohibited or restricted by applicable
Requirements of Law (including enforceable anti-assignment provisions of applicable Requirements of Law), except, in the case of this
clause (B), to the extent such prohibition would be rendered ineffective under applicable anti-assignment provisions of the UCC
of any relevant jurisdiction notwithstanding such prohibition, (C) trigger termination of any contract pursuant to a “change of
control” or similar provision or (D) result in adverse tax or regulatory consequences to any Loan Party or any of its subsidiaries
or Parent Companies as determined by the Borrower in good faith following consultation with the Administrative Agent,
(e)
(i) except to the extent a security interest therein can be perfected by the filing of an “all-assets” UCC-1 financing statement,
any leasehold interest, (ii) any real property or real property interest that is not a Material Real Estate Asset, (iii) any real property
(including improvements) or real property interest (including improvements) that was leased by the Borrower or any of its Subsidiaries
and later deeded or conveyed to the Borrower or any other Loan Party, (iv) any real property (including improvements) or real property
interest (including improvements) owned by a Loan Party immediately prior to the Closing Date and not required to be subject to a mortgage
or security interest pursuant to the terms of the Existing Credit Facilities (including the real property (and improvements thereto)
set forth on Schedule 1.01(e) hereto) or the terms hereunder and (v) any Excluded Property,
(f)
any Capital Stock of any Person that is not a Wholly-Owned Restricted Subsidiary or that is an Immaterial Subsidiary,
(g)
any Margin Stock,
(h)
the voting Capital Stock of any Foreign Subsidiary that is a “controlled foreign corporation” (as defined in Section 957(a)
of the Code) or Disregarded Domestic Subsidiary, other than 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary
or Disregarded Domestic Subsidiary, as applicable,
(i)
any Letter-of-Credit-Right (other than to the extent a security interest in such Letter-of-Credit-Right can be perfected by filing an
“all-assets” UCC financing statement, without need for any other action) and all Commercial Tort Claims,
(j)
any Cash or Cash Equivalents (other than Cash and Cash Equivalents representing identifiable proceeds of other Collateral, a security
interest in which can be perfected through the filing of an “all-assets” UCC financing statement or which is perfected or
arises by law (including without limitation, the UCC), in each case without need for any action by any Loan Party or any Affiliate thereof),
(k)
any Deposit Account or commodity or securities account (including any securities entitlement and any related asset) (except to the extent
a security interest therein can be perfected through the filing of an “all assets” UCC financing statement (without need
for any other action); it being understood that Cash and Cash Equivalents representing identifiable proceeds of other Collateral as referred
to in the preceding clause (j) are not excluded hereby, and shall constitute Collateral (but any other Cash or Cash Equivalents shall
not constitute Collateral), but there shall be no requirement for any control agreement (or similar agreement)),
(l)
any motor vehicle, airplane or other asset subject to a certificate of title (other than to the extent a security interest therein can
be perfected by filing an “all assets” UCC financing statement (without need for any other action) and without the requirement
to list any VIN, serial or similar number),
(m)
any governmental or regulatory license or state or local franchise, charter, consent, permit or authorization to the extent the granting
of a security interest therein is prohibited or restricted thereby or by applicable Requirements of Law; provided, however, that
any such asset will only constitute an Excluded Asset under this clause (m) to the extent such prohibition or restriction would
not be rendered ineffective pursuant to applicable anti-assignment provisions of the UCC of any relevant jurisdiction,
(n)
Receivables Facility Assets and related assets sold or otherwise transferred to a Receivables Subsidiary or otherwise pledged, transferred
or sold in connection with a Receivables Facility, factoring transaction or any similar arrangement permitted hereunder,
(o)
any asset with respect to which the Administrative Agent and the relevant Loan Party have determined in good faith that the cost, burden,
difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its operations and business in the
ordinary course of business) of obtaining or perfecting a security interest therein outweighs the benefit of a security interest to the
relevant Secured Parties afforded thereby, and
(p)
any league deposits to the extent identifiable as such pursuant to the ledgers maintained by the Loan Parties.
“Excluded
Property” means any SLB Property, the properties (and improvements) set forth on Schedule 1.01(f) hereto, any EAP Substitution
Property, any other Real Estate Asset not required to be subject to a Mortgage in favor of the Administrative Agent and any other property
purchased with the proceeds of a Disposition of any of the foregoing.
“Excluded
Property Limited Recourse Financing” means any financing (other than a Sale and Lease-Back Transaction) with respect to an
Excluded Property that constitutes Limited Recourse Financing with respect to the Borrower or any Subsidiary.
“Excluded
Property Limited Recourse Financing Documents” means all definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the date hereof in connection with any Excluded
Property Limited Recourse Financing, in each case as the same may be amended, modified or supplemented from time to time hereafter in
accordance with the provisions thereof, and including all basic financing information and all other agreements, documents and instruments
relating to the Excluded Property Limited Recourse Financing and all exhibits and schedules to any of the foregoing.
“Excluded
Property Sale/Leaseback Transaction” means any Sale and Lease-Back Transaction with respect to one or more Excluded Properties
effected after the date hereof, including any amendment or modification of the iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“Excluded
Property Sale/Leaseback Transaction Documents” means the definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the date hereof in connection with any Excluded
Property Sale/Leaseback Transaction, in each case as the same may be amended, modified or supplemented from time to time hereafter in
accordance with the provisions thereof, and including all basic lease information and all other agreements, documents and instruments
relating to the Excluded Property Sale/Leaseback Transaction and all exhibits and schedules to any of the foregoing.
“Excluded
Property Transaction” means any Excluded Property Sale/Leaseback Transaction and any Excluded Property Limited Recourse Financing.
“Excluded
Property Transaction Documents” means the Excluded Property Sale/Leaseback Transaction Documents and any Excluded Property
Limited Recourse Financing Documents.
“Excluded Subsidiary” means:
(a)
any Restricted Subsidiary that is not a Wholly-Owned Subsidiary,
(b) any Immaterial Subsidiary,
(c)
any Restricted Subsidiary that is prohibited or restricted by law, rule or regulation or contractual obligation from providing a Loan
Guaranty or that would require a governmental (including regulatory) or third party consent, approval, license or authorization to provide
a Loan Guaranty (including under any financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance
or similar legal principles) unless such consent has been received, it being understood that Holdings and its subsidiaries shall have
no obligation to obtain any such consent, approval, license or authorization,
(d)
any not-for-profit subsidiary,
(e)
any Captive Insurance Subsidiary or subsidiary that is a broker-dealer,
(f)
any special purpose entity (including a special purpose entity used for any permitted securitization or receivables facility or financing,
or established in connection with any iStar Exchange or Excluded Property Transaction) and any Receivables Subsidiary,
(g)
any Foreign Subsidiary,
(h)
(i) any Disregarded Domestic Subsidiary or (ii) any Domestic Subsidiary that is a direct or indirect subsidiary of any Foreign Subsidiary
or any Disregarded Domestic Subsidiary,
(i)
any Unrestricted Subsidiary,
(j)
any subsidiary acquired pursuant to a Permitted Acquisition or other Investment permitted by this Agreement that has assumed secured
Indebtedness not incurred in contemplation of such Permitted Acquisition or other Investment and any Restricted Subsidiary thereof that
guarantees such secured Indebtedness, in each case to the extent the terms of such secured Indebtedness prohibit such subsidiary from
becoming a Guarantor,
(k)
[reserved],
(l)
any Restricted Subsidiary if the provision of a Loan Guaranty could reasonably be expected to result in adverse tax or regulatory consequences
to any Loan Party or any of its subsidiaries or Parent Companies as determined by the Borrower in good faith, and
(m)
any other Restricted Subsidiary with respect to which, in the good faith judgment of the Administrative Agent and the Borrower, the burden
or cost of providing a Loan Guaranty outweighs the benefits afforded thereby.
“Excluded
Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of
the Loan Guaranty of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any
Loan Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures
Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any
reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder
(determined after giving effect to Section 3.20 of the Loan Guaranty and any other “keepwell”, support or other agreement
for the benefit of such Loan Party) at the time the Loan Guaranty of such Loan Party or the grant of such security interest becomes effective
with respect to such Swap Obligation. If any Swap Obligation arises under a master agreement governing more than one swap, such exclusion
shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Loan Guaranty or security interest
is or becomes illegal.
“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender or Issuing Bank or any other recipient of any payment to
be made by or on account of any obligation of any Loan Party hereunder, (a) Taxes imposed on (or measured by) its net income or franchise
Taxes (i) by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) any branch profits
taxes imposed by the U.S. or any similar tax imposed by any other jurisdiction described in clause (a), (c) in the case of a Lender,
any U.S. withholding tax that is imposed on amounts payable to such Lender at the time such Lender acquires an interest in a Loan or
Commitment (or designates a new lending office), except (i) pursuant to an assignment or designation of a new lending office under Section
2.19 and (ii) to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from any Loan Party with respect to such withholding tax pursuant to Section
2.17, (d) any tax imposed as a result of a failure by the Administrative Agent or any Lender or Issuing Bank to comply with Section
2.17(f) and (e) any withholding tax under FATCA.
“Existing
Credit Facilities” has the meaning assigned to such term in Section 4.01(h).
“Existing
Letter of Credit” means each letter of credit set forth on Schedule 1.01(b).
“Existing
Letter of Credit Issuer” means each Lender or Affiliate of a Lender that issued an Existing Letter of Credit.
“Existing
Sponsor” means Cerberus Capital Management, L.P. and its respective Affiliates.
“Expected
Cost Savings” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Extended
Revolving Credit Commitment” has the meaning assigned to such term in Section 2.23(a).
“Extended
Revolving Loans” has the meaning assigned to such term in Section 2.23(a).
“Extended
Term Loans” has the meaning assigned to such term in Section 2.23(a)(ii).
“Extension”
has the meaning assigned to such term in Section 2.23(a)(ii).
“Extension
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (to the extent
required by Section 2.23) and the Borrower, executed by each of (a) the Borrower, (b) the Administrative Agent and (c) each Lender
that has accepted the applicable Extension Offer pursuant hereto and in accordance with Section 2.23.
“Extension
Offer” has the meaning assigned to such term in Section 2.23(a).
“Facility”
means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or, except with respect
to Articles 5 and 6, hereof owned, leased, operated or used by the Borrower or any of its Restricted Subsidiaries or any
of their respective predecessors or Affiliates.
“Failed
Auction” has the meaning assigned to such term in the definition of “Dutch Auction”.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreement entered into pursuant to Section 1471(b)(1) of the Code, and any law, regulation, rules, practice or other published administrative
guidance adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such section of the
Code.
“Federal
Assignment of Claims Act” means the Federal Assignment of Claims Act (41 U.S.C. § 15).
“Federal
Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s
federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York sets forth
on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as
the federal funds effective rate; provided that if such rate as determined above is at any time negative, the Federal Funds Effective
Rate at such time shall instead be zero.
“Fee
Letter” means that certain Amended and Restated Fee Letter, dated as of June 15, 2017, by and among, inter alios, Parent
and the Arrangers, as amended to date.
“Financial
Covenant” means the covenant in the first sentence of Section 6.15(a).
“First
Lien Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated First Lien Debt as of such date
to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term
“First Lien Leverage Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries.
“First
Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that,
subject to the Intercreditor Agreement or any other applicable intercreditor agreement, such Lien is senior in priority to any other
Lien to which such Collateral is subject, other than any Permitted Lien.
“Fiscal
Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal
Year” means the fiscal year of the Borrower ending on or about June 30 of each calendar year, as such fiscal year end may be
adjusted in accordance with the terms of this Agreement.
“Fixed
Amounts” has the meaning assigned to such term in Section 1.04(g).
“Flood
Hazard Property” means any Material Real Estate Asset subject to a Mortgage if any building included in such Material Real
Estate Asset is located in an area designated by the Federal Emergency Management Agency as having special flood hazards.
“Flood
Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of
1973, (iii) the National Flood Insurance Reform Act of 1994, (iv) the Flood Insurance Reform Act of 2004 and (v) the Biggert–Waters
Flood Insurance Reform Act of 2012, each as now or hereafter in effect or any successor statute thereto, and in each case, together with
all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing,
as amended or modified from time to time.
“Foreign
Asset Disposition” means a Disposition where the relevant asset is (A) the stock of or assets of a Foreign Subsidiary or (B)
one or more assets of the Borrower or any Restricted Subsidiary which are located outside the United States or any territory thereof.
“Foreign
Lender” means any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the
Code.
“Foreign
Subsidiary” means any Restricted Subsidiary that is not a Domestic Subsidiary.
“Funding
Account” has the meaning assigned to such term in Section 2.03(f).
“GAAP”
means generally accepted accounting principles in the U.S. in effect and applicable to the accounting period in respect of which reference
to GAAP is made.
“General
Intangibles” has the meaning set forth in Article 9 of the UCC.
“Governmental
Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau,
court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the U.S.,
a foreign government or any political subdivision of either thereof.
“Governmental
Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental
Authority.
“Granting
Lender” has the meaning assigned to such term in Section 9.05(e).
“GS
Bank” has the meaning assigned to such term in the preamble to this Agreement.
“Guarantee”
of or by any Person (the “Guarantor”) means any obligation, contingent or otherwise, of the Guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “Primary
Obligor”) in any manner and including any obligation of the Guarantor (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner
of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other
monetary obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness
or monetary obligation, (e) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness
or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole
or in part) or (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of any
other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or any right, contingent or
otherwise, of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business, or customary and reasonable indemnity obligations
in effect on the Closing Date or entered into in connection with any acquisition, Disposition or other transaction permitted under this
Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made
or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith.
“Hazardous
Materials” means any chemical, material, substance or waste, or any constituent thereof, which is prohibited, limited or regulated
by any Environmental Law due to its hazardous, toxic or similar characteristics, including any chemical, material, substance or waste
defined or listed as “hazardous” or “toxic” in any Environmental Law.
“Hazardous
Materials Activity” means the use, manufacture, possession, storage, holding, Release, threatened Release, discharge, placement,
generation, transportation, processing, treatment, abatement, removal, investigation, remediation, disposal, disposition or handling
of any Hazardous Material, and any corrective action or response action with respect to any of the foregoing.
“Hedge
Agreement” means any agreement with respect to any Derivative Transaction between any Loan Party or any Restricted Subsidiary
and any other Person.
“Hedging
Obligations” means, with respect to any Person, the obligations of such Person under any Hedge Agreement.
“Holdings”
means (a) initially, Merger Sub 1, and after giving effect to the Merger Sub 1 Merger, the Target (in each case prior to the consummation
of a transaction described in clause (b) of this definition) and (b) following the consummation of a transaction permitted hereunder
that results in a New Holdings, New Holdings.
“Holdings
Reorganization Transaction” means (a) the contribution by Holdings of 100% of the Capital Stock of the Borrower to a newly
formed domestic “shell” company owned or controlled by the Permitted Holders or (b) the merger or other consolidation of
Holdings with another Person that, after giving effect thereto, shall hold 100% of the Capital Stock of the Borrower, in each case, so
long as, contemporaneously therewith (as applicable) (i) New Holdings delivers to the Administrative Agent any new certificate issued
(if any) to evidence the contributed Capital Stock of the Borrower and grants a security interest in such Capital Stock in favor of the
Administrative Agent pursuant to the Security Agreement or a joinder thereto in a form reasonably satisfactory to the Administrative
Agent and (ii) New Holdings assumes the Loan Guaranty provided by Holdings and all other obligations of Holdings under this Agreement
and each of the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto that is reasonably acceptable
to the Administrative Agent.
“IFRS”
means international accounting standards within the meaning of the IAS Regulation 1606/2002, as in effect from time to time (subject
to the provisions of Section 1.04), to the extent applicable to the relevant financial statements.
“Immaterial
Subsidiary” means, as of any date, any Restricted Subsidiary of the Borrower (a) that does not have assets in excess of 2.5%
of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries and (b) that does not contribute Consolidated Adjusted EBITDA
in excess of 2.5% of the Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries, in each case, as of the last day
of the most recently ended Test Period; provided that, the Consolidated Total Assets and Consolidated Adjusted EBITDA (as so determined)
of all Immaterial Subsidiaries shall not exceed 5.0% of Consolidated Total Assets and 5.0% of Consolidated Adjusted EBITDA, in each case,
of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test Period; provided further that,
at all times prior to the first delivery of financial statements pursuant to Section 5.01(a) or (b), this definition shall
be applied based on the pro forma consolidated financial statements of the Target delivered pursuant to Section 4.01.
“Immediate
Family Member” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant,
parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling or step-siblings (and linear
descendants either thereof), mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships), any trust,
partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals, any of the
foregoing individual’s (including the initial individual) estate (or an executor or administrator acting on its behalf), heirs
or legatees or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which
any such individual is the donor.
“Incremental
Cap” means:
(a)
the Shared Incremental Amount, plus
(b)
in the case of any Incremental Facility or Incremental Equivalent Debt that effectively extends the Maturity Date with respect to any
Class of Loans and/or commitments hereunder, an amount equal to the portion of the relevant Class of Loans or commitments that will be
replaced by such Incremental Facility or Incremental Equivalent Debt, plus
(c)
in the case of any Incremental Facility or Incremental Equivalent Debt that effectively replaces any Revolving Credit Commitment or Additional
Revolving Credit Commitment terminated in accordance with Section 2.19 hereof, an amount equal to the relevant terminated Revolving
Credit Commitment or Additional Revolving Credit Commitment, plus
(d)
(i) the amount of any optional prepayment of any Loan (including any Incremental Loan) in accordance with Section 2.11(a) and/or
the amount of any permanent reduction of any Revolving Credit Commitment, (ii) the amount of any optional prepayment, redemption or repurchase
of Incremental Equivalent Debt incurred pursuant to the Shared Incremental Amount, (iii) the amount of any optional prepayment, redemption
or repurchase of any Replacement Term Loan or Loans under any Replacement Revolving Facility (to the extent accompanied by a permanent
reduction in commitments) or any borrowing or issuance of Replacement Debt previously applied to the permanent prepayment of any Loan
hereunder or of any Incremental Equivalent Debt, (iv) the amount of any optional prepayment, redemption or repurchase of “Incremental
Loans” and/or “Incremental Equivalent Debt” incurred pursuant to the “Shared Incremental Amount” or of
any “Replacement Term Loans” previously applied to the permanent prepayment of any of the foregoing (each as defined in the
Second Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien Facility) and (v) the aggregate
amount of any Indebtedness referred to in clauses (i) through (iv) repaid or retired resulting from any assignment of such Indebtedness
to (and/or assignment and/or purchase of such Indebtedness by) Holdings, the Borrower and/or any Restricted Subsidiary; provided
that for each of clauses (i) through (v), the relevant prepayment, redemption, repurchase or assignment and/or purchase
was not funded with the proceeds of any long-term Indebtedness (other than revolving Indebtedness), plus
(e)
an unlimited amount so long as, in the case of this clause (e), on a Pro Forma Basis after giving effect to the incurrence of
the Incremental Facility or the Incremental Equivalent Debt, as applicable, and the application of the proceeds thereof (but without
netting the cash proceeds thereof, but giving effect to any related Subject Transaction) and to any relevant Subject Transaction (and,
in the case of any Incremental Revolving Facility then being established, assuming a full drawing thereunder), (i) if such Indebtedness
is secured by a first priority Lien on the Collateral, the First Lien Leverage Ratio does not exceed the greater of (x) 4.20:1.00 and
(y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the First Lien Leverage Ratio
as of the last day of the most recently ended Test Period, (ii) if such Indebtedness is secured by a Lien on the Collateral other than
on a first priority basis or is secured by a Lien on assets of the Borrower or any Restricted Subsidiary that are not Collateral, the
Secured Leverage Ratio does not exceed the greater of (x) 5.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition
or other Investment permitted hereunder, the Secured Leverage Ratio as of the last day of the most recently ended Test Period and (iii)
if such Indebtedness is unsecured, at the election of the Borrower, either (A) the Total Leverage Ratio does not exceed the greater of
(x) 5.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the Total Leverage
Ratio as of the last day of the most recently ended Test Period or (B) the Interest Coverage Ratio is not less than the lesser of (x)
2.00:1.00 and (y) if such Indebtedness is incurred to finance an acquisition or other Investment permitted hereunder, the Interest Coverage
Ratio as of the last day of the most recently ended Test Period;
provided
that:
(1)
any Incremental Facility and/or Incremental Equivalent Debt may be incurred under one or more of clauses (a) through (e) of this definition
as selected by the Borrower in its sole discretion (provided that, in the case of clause (e), an Incremental Facility may be incurred
only under clause (i) thereof),
(2)
if any Incremental Facility or Incremental Equivalent Debt is intended to be incurred under clause (e) of this definition and any other
clause of this definition in a single transaction or series of related transactions, (A) the incurrence of the portion of such Incremental
Facility or Incremental Equivalent Debt to be incurred or implemented under clause (e) of this definition shall be calculated first without
giving effect to any Incremental Facilities or Incremental Equivalent Debt to be incurred under any other clause of this definition,
but giving full pro forma effect to the use of proceeds of the entire amount of such Incremental Facility or Incremental Equivalent Debt
and the related transactions and (B) the incurrence of the portion of such Incremental Facility or Incremental Equivalent Debt to be
incurred or implemented under the other applicable clauses of this definition shall be calculated thereafter, and
(3)
any portion of any Incremental Facility or Incremental Equivalent Debt that is incurred under clauses (a) through (d) of this definition,
unless otherwise elected by the Borrower, shall automatically and without need for action by any Person, be reclassified as having been
incurred under clause (e) of this definition if, at any time after the incurrence thereof, when financial statements required pursuant
to Section 5.01(a) or (b) are delivered or, if earlier, become internally available, such portion of such Incremental Facility
or Incremental Equivalent Debt would, using the figures reflected in such financial statements, be (or have been) permitted under the
First Lien Leverage Ratio, Secured Leverage Ratio, Total Leverage Ratio or Interest Coverage Ratio test, as applicable, set forth in
clause (e) of this definition.
“Incremental
Commitment” means any commitment made by a lender to provide all or any portion of any Incremental Facility or Incremental
Loans.
“Incremental
Equivalent Debt” means any Indebtedness that satisfies the following conditions:
(a)
the aggregate outstanding principal amount thereof does not exceed the Incremental Cap as in effect at the time of determination (after
giving effect to any reclassification on or prior to such date of determination),
(b)
the Weighted Average Life to Maturity of such Indebtedness is no shorter than the remaining Weighted Average Life to Maturity of the
Amendment No. 2 Term Loans and the final maturity date of such Indebtedness is no earlier than the Latest Term Loan Maturity Date applicable
to the Amendment No. 2 Term Loans, in each case as determined on the date of the issuance or incurrence, as applicable, thereof; provided,
that the foregoing limitations shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided,
that any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace
such bridge loans shall be subject to the requirements of this clause (b) or (ii) Indebtedness subject to the Permitted Earlier
Maturity Indebtedness Exception,
(c)
subject to clause (b), such Indebtedness may otherwise have an amortization schedule as determined by the Borrower and the lenders providing
such Indebtedness,
(d)
if such Indebtedness is in the form of broadly syndicated Dollar denominated term loans that are pari passu with the Amendment
No. 2 Term Loans in right of payment and with respect to security (other than customary bridge loans with a maturity date of not longer
than one year that are convertible or exchangeable into, or are intended to be refinanced with, any Indebtedness other than term loans
that are pari passu with the Amendment No. 2 Term Loans in right of payment and with respect to security), the MFN Provisions
of Section 2.22(a)(v) shall apply to such Indebtedness as if (but only to the extent, including after giving effect to applicable
exclusions and sunset provisions) such Indebtedness was an Incremental Term Facility of the type subject to the provisions of Section
2.22(a)(v), mutatis mutandis,
(e)
if such Indebtedness is secured by assets that constitute Collateral, the holders of such Indebtedness (or a representative therefor)
shall be party to an Acceptable Intercreditor Agreement,
(f)
such Indebtedness may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment
of Term Loans made pursuant to Section 2.11(a) and (B) to the extent secured on a pari passu basis with the Amendment No. 2 Term Loans,
on a pro rata basis (but not on a greater than pro rata basis other than in the case of a prepayment with proceeds of Indebtedness refinancing
such Incremental Equivalent Debt) in any mandatory prepayment of Term Loans required pursuant to Section 2.11(b) or less than a pro rata
basis with the then-outstanding Term Facility, and
(g)
if any financial maintenance covenant is added to any such Indebtedness and such financial maintenance covenant is more favorable to
the lenders under such Indebtedness than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable
after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable
financial maintenance covenant (together with, at the election of the Borrower, any applicable “equity cure” provisions with
respect to any such financial maintenance covenant).
“Incremental
Facilities” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Facility Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (solely
for purposes of giving effect to Section 2.22) and the Borrower executed by each of (a) Holdings and the Borrower, (b) the Administrative
Agent and (c) each Lender that agrees to provide all or any portion of the Incremental Facility being incurred pursuant thereto and in
accordance with Section 2.22.
“Incremental
Loans” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Revolving Facility” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Revolving Facility Lender” means, with respect to any Incremental Revolving Facility, each Revolving Lender providing any portion
of such Incremental Revolving Facility.
“Incremental
Revolving Loans” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Term Facility” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Term Loans” has the meaning assigned to such term in Section 2.22(a).
“Incurrence-Based
Amounts” has the meaning assigned to such term in Section 1.04(g).
“Indebtedness”
as applied to any Person means, without duplication, (a) all indebtedness of such Person for borrowed money; (b) the Attributable Debt
of such Person in respect of any Capital Lease of such Person; (c) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments to the extent the same would appear as a liability on a balance sheet (excluding the footnotes thereto) of such
Person prepared in accordance with GAAP; (d) any obligation of such Person owed for all or any part of the deferred purchase price of
property or services (excluding (w) any earn out obligation or purchase price adjustment until such obligation (A) becomes a liability
on the balance sheet of such Person (excluding the footnotes thereto) in accordance with GAAP and (B) has not been paid within 30 days
after becoming due and payable following expiration of any dispute resolution mechanics set forth in the applicable agreement governing
the applicable transaction, (x) any such obligations incurred under ERISA or under any employee consulting agreements, (y) accrued expenses,
trade accounts payable and accruals for payroll, in the ordinary course of business (including on an intercompany basis) and (z) liabilities
associated with customer prepayments and deposits), which purchase price is (i) due more than six months from the date of incurrence
of the obligation in respect thereof or (ii) evidenced by a note or similar written instrument; (e) all Indebtedness of others secured
by any Lien on any property or asset owned or held by such Person regardless of whether the Indebtedness secured thereby has been assumed
by such Person or is non-recourse to the credit of such Person; (f) the face amount of any letter of credit issued for the account of
such Person or as to which such Person is otherwise liable for reimbursement of drawings; (g) the Guarantee by such Person of the Indebtedness
of another; (h) all obligations of such Person in respect of any Disqualified Capital Stock; and (i) all net obligations of such Person
in respect of any Derivative Transaction, including any Hedge Agreement, whether or not entered into for hedging or speculative purposes;
provided that (i) in no event shall obligations under any Derivative Transaction be deemed “Indebtedness” for any
calculation of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio or any
other financial ratio under this Agreement, (ii) in all cases Indebtedness shall exclude any Excluded Property Limited Recourse Financing,
(iii) the amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (A) the
aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the documentation
pursuant to which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as determined by such
Person in good faith and (iv) the amount of any Limited Recourse Debt of any Person shall be deemed to be equal to the lesser of (A)
the aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the documentation
pursuant to which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as determined by such
Person in good faith.
For
all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or any Joint Venture (other than
any Joint Venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer,
except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness
would otherwise be included in the calculation of Consolidated Total Debt; provided that notwithstanding anything herein to the
contrary, the term “Indebtedness” shall not include, and shall be calculated without giving effect to, (x) the effects of
Accounting Standards Codification Topic 815 and related interpretations to the extent such effects would otherwise increase or decrease
an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivatives created by the terms of such
Indebtedness (it being understood that any such amounts that would have constituted Indebtedness hereunder but for the application of
this proviso shall not be deemed an incurrence of Indebtedness hereunder), (y) the effects of Statement of Financial Accounting Standards
No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any
purpose hereunder as a result of accounting for any embedded derivative created by the terms of such Indebtedness (it being understood
that any such amounts that would have constituted Indebtedness hereunder but for the application of this proviso shall not be deemed
to be an incurrence of Indebtedness hereunder) and (z) Indebtedness of any Parent Company appearing on the balance sheet of the Borrower
or any of its Subsidiaries solely by reason of push down accounting under GAAP.
“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation
of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee”
has the meaning assigned to such term in Section 9.03(b).
“Information”
has the meaning set forth in Section 3.11(a).
“Information
Memorandum” means the Confidential Information Memorandum finalized on or about June 20, 2017, relating to the Borrower and
its subsidiaries and the Transactions.
“Initial
Lenders” means the Arrangers and the affiliates of the Arrangers who are party to this Agreement as Lenders on the Closing
Date.
“Initial
Revolving Credit Commitment” means, with respect to any Person, the commitment of such Person to make Initial Revolving Loans
(and acquire participations in Letters of Credit and Swingline Loans) hereunder as set forth on the Commitment Schedule, or in the Assignment
Agreement pursuant to which such Lender assumed its Initial Revolving Credit Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 or 2.19, (b) reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 9.05 or (c) increased pursuant to Section 2.22. The aggregate amount of the Initial
Revolving Credit Commitments as of the Closing Date is $50,000,000.
“Initial
Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of
all Initial Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure and Swingline
Exposure, in each case, attributable to its Initial Revolving Credit Commitment.
“Initial
Revolving Credit Maturity Date” means the date that is five years after the Closing Date.
“Initial
Revolving Facility” means the Initial Revolving Credit Commitments and the Initial Revolving Loans and other extensions of
credit thereunder.
“Initial
Revolving Lender” means any Person with an Initial Revolving Credit Commitment or any Initial Revolving Credit Exposure.
“Initial
Revolving Loan” means any revolving loan made by the Initial Revolving Lenders to the Borrower pursuant to Section 2.01(a)(ii).
“Initial
Term Lender” means any Person with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial
Term Loan Commitment” means, with respect to any Person, the commitment of such Person to make Initial Term Loans hereunder
in an aggregate amount not to exceed the amount set forth opposite such Person’s name on the Commitment Schedule, as the same may
be (a) reduced from time to time pursuant to Section 2.09 or Section 2.19 and (b) reduced or increased from time to time
pursuant to (x) assignments by or to such Person pursuant to Section 9.05 or (y) an Additional Term Loan Commitment. The aggregate
amount of the Initial Term Loan Commitments on the Closing Date is $585,000,000. The aggregate amount of the Initial Term Loan Commitments
on the Amendment No. 1 Effective Date is $113,000,000.
“Initial
Term Loan Maturity Date” means the date that is seven years after the Closing Date.
“Initial Term Loans”
means the term loans (including, without limitation, any Amendment No. 1 Incremental Term Loans) made by the Initial Term Lenders to
the Borrower pursuant to Section 2.01(a)(i).
“Intellectual
Property Security Agreement” means any agreement executed on or after the Closing Date confirming or effecting the grant of
any Lien on IP Rights owned by any Loan Party to the Administrative Agent, for the benefit of the Secured Parties, in accordance with
this Agreement, including any of the following: (a) a Trademark Security Agreement substantially in the form of Exhibit H-1 hereto,
(b) a Patent Security Agreement substantially in the form of Exhibit H-2 hereto or (c) a Copyright Security Agreement substantially
in the form of Exhibit H-3 hereto.
“Intercreditor
Agreement” means the Intercreditor Agreement substantially in the form of Exhibit N hereto, dated as of the Closing
Date, among, inter alios, the Second Lien Collateral Agent, as agent for the Second Lien Claimholders referred to therein, the
Administrative Agent, as agent for the First Lien Claimholders referred to therein, if applicable, the provider of any Additional Letter
of Credit Facility (or a representative thereof) and the Loan Parties from time to time party thereto.
“Interest
Coverage Ratio” means, as of any date of determination, the ratio for the most recently ended Test Period of (a) Consolidated
Adjusted EBITDA for such Test Period to (b) Ratio Interest Expense for such Test Period; provided that, for purposes of calculating
the Interest Coverage Ratio for any period ending prior to the first anniversary of the Closing Date, Ratio Interest Expense shall be
an amount equal to actual Ratio Interest Expense from the Closing Date through the date of determination multiplied by a fraction the
numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the date of determination.
“Interest
Election Request” means a request by the Borrower in the form of Exhibit D hereto or another form reasonably acceptable
to the Administrative Agent to convert or continue a Borrowing in accordance with Section 2.08.
“Interest
Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December (commencing
with the last Business Day of September 2017) or the maturity date applicable to such Loan and (b) with respect to any LIBO Rate Loan,
the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a LIBO Rate Borrowing
with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing.
“Interest
Period” means with respect to any LIBO Rate Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or six months (or, to the extent available to all relevant
affected Lenders, twelve months or, to the extent acceptable to all applicable Lenders, a shorter period) thereafter, as the Borrower
may elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business
Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
“Investment”
means (a) any purchase or other acquisition by the Borrower or any of its Restricted Subsidiaries of any of the Securities of any other
Person (other than any Loan Party), (b) the acquisition by purchase or otherwise (other than any purchase or other acquisition of inventory,
materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the business, property or
fixed assets of any other Person or any division or line of business or other business unit of any other Person and (c) any loan, advance
(other than any advance to any current or former employee, officer, director, member of management, manager, consultant or independent
contractor of the Borrower, any Restricted Subsidiary or any Parent Company for moving, entertainment and travel expenses, drawing accounts
and similar expenditures or payroll expenses or advances in the ordinary course of business) or capital contribution by the Borrower
or any of its Restricted Subsidiaries to any other Person. Subject to Section 5.10, the amount of any Investment shall be the
original cost of such Investment, plus the cost of any addition thereto that otherwise constitutes an Investment, without any
adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but giving effect to any
repayments of principal in the case of any Investment in the form of a loan and any return of capital or return on Investment in the
case of any equity Investment (whether as a distribution, dividend, redemption or sale).
“Investors”
means (a) the Sponsor, (b) the Management Investors and (c) other investors identified to the Administrative Agent in writing that, directly
or indirectly, beneficially own Capital Stock in Holdings on the Closing Date.
“IP
Rights” has the meaning assigned to such term in Section 3.05(c).
“IPO
Reorganization Transaction” means any transaction taken in connection with and reasonably related to consummating a Qualifying
IPO by the Borrower or any Parent Company thereof so long as, after giving effect thereto, (a) the Loan Parties are in compliance with
the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest of the Secured Parties in the Collateral,
taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral immediately prior
to such IPO Reorganization Transaction no longer constituting Collateral) as a result of such IPO Reorganization Transaction.
“IRS”
means the U.S. Internal Revenue Service.
“Issuing
Bank” means, as the context may require, (a) JPM, (b) solely with respect to any Existing Letter of Credit (and any amendment,
renewal or extension thereof in accordance with the terms of this Agreement), each Existing Letter of Credit Issuer and (c) each other
Revolving Lender party hereto from time to time that is appointed as an Issuing Bank in accordance with Section 2.05(i). Subject
to the reasonable consent of the Borrower (subject to the standards set forth in Section 9.05(b)), any Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by any Affiliate of such Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“iStar
Amendments” means the iStar I Eighth Amendment, the iStar II Eighth Amendment and the iStar 2014 Amendment, individually or
collectively (as the context may require).
“iStar
I Eighth Amendment” means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers I LP,
and solely with respect to the Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and AMF Bowling
Centers, Inc., as tenant.
“iStar
II Eighth Amendment” means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers II LP,
as landlord, and AMF Bowling Centers, Inc., as tenant.
“iStar
2014 Amendment” means that certain lease amendment that is expected to be the “First Lease Amendment” in respect
of the iStar Sale/Leaseback 2014 Documents, which is anticipated to include (among other things) certain changes generally consistent
with the iStar I Eighth Amendment and iStar II Eighth Amendment, to be entered into between BW Bowling Properties LP, and solely with
respect to the Site (as defined in subparagraph 34(n)(v) therein) located in Pennsylvania, BW Bowling Properties LLC, as landlord, and
Leiserv, LLC and Brunswick Centres, Inc., as tenant.
“iStar
Exchange” means those transactions described in Section 11 of each of the iStar I Eighth Amendment and the iStar II Eighth
Amendment.
“iStar
Exchange Documents” means the agreements and other documents governing any iStar Exchange transaction, as more particularly
described in each of the iStar I Eighth Amendment and the iStar II Eighth Amendment.
“iStar
Sale/Leaseback” means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback Documents.
“iStar
Sale/Leaseback 2014” means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback 2014 Documents.
“iStar
Sale/Leaseback 2014 Documents” means (i) the Lease Agreement, dated as of September 18, 2014, by and among BW Bowling Properties
LP, BW Bowling Properties Canada Inc. and BW Bowling Properties LLC (collectively as landlord) and Leiserv, LLC and Brunswick Centres,
Inc. (jointly and severally, as tenant) and (ii) the Guaranty dated as of September 18, 2014 by Holdings in favor of BW Bowling Properties
LP, BW Bowling Properties Canada Inc. and BW Bowling Properties LLC, in each case as the same may be amended, modified or supplemented
through the date hereof and from time to time hereafter in accordance with the provisions thereof, and including all basic lease information
and all other agreements, documents and instruments relating to the iStar Sale/Leaseback 2014 and all exhibits and schedules to any of
the foregoing.
“iStar
Sale/Leaseback Documents” means (I) (a) the Lease I Agreement dated as of February 27, 2004 between iStar Bowling Centers I
LP, and solely with respect to the Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and AMF
Bowling Centers, Inc., as tenant, as amended by (i) that certain First Lease Amendment dated as of June 30, 2004, intending to be effective
as of February 27, 2004, (ii) that certain Second Lease Amendment dated as of February 3, 2005, intending to be effective as of February
27, 2004, (iii) that certain Third Lease Amendment dated as of June 18, 2008, intending to be effective as of March 30, 2008, (iv) that
certain Fourth Lease Amendment dated and intended to be effective as of July 1, 2013, (v) that certain Fifth Lease Amendment dated and
intended to be effective as of September 25, 2013, (vi) that certain Sixth Lease Amendment dated and intended to be effective as of October
3, 2014, (vii) that certain Amended and Restated Seventh Lease Amendment dated and intended to be effective as of September 9, 2016,
and (viii) the iStar I Eighth Amendment, (b) the Guaranty dated as of July 1, 2013 by Holdings in favor of iStar Bowling Centers I LP,
and (II) (a) the Lease II Agreement dated as of February 27, 2004 between iStar Bowling Centers II LP, as landlord, and AMF Bowling Centers,
Inc., as tenant, as amended by (i) that certain First Lease Amendment dated as of June 30, 2004, intending to be effective as of February
27, 2004, (ii) that certain Second Lease Amendment dated as of February 3, 2005, intending to be effective as of February 27, 2004, (iii)
that certain Third Lease Amendment dated as of June 18, 2008, intending to be effective as of March 30, 2008, (iv) that certain Fourth
Lease Amendment dated and intended to be effective as of July 1, 2013, (v) that certain Fifth Lease Amendment dated and intended to be
effective as of September 25, 2013, (vi) that certain Sixth Lease Amendment dated and intended to be effective as of October 3, 2014,
(vii) that certain Amended and Restated Seventh Lease Amendment dated and intended to be effective as of February 23, 2017, and (viii)
the iStar II Eighth Amendment, and (b) the Guaranty dated as of July 1, 2013 by Holdings in favor of iStar Bowling Centers II LP, in
each case as the same may be amended, modified or supplemented through the date hereof and from time to time hereafter in accordance
with the provisions thereof, and including all basic lease information and all other agreements, documents and instruments relating to
the iStar Sale/Leaseback and all exhibits and schedules to any of the foregoing.
“Joint
Venture” means the Thousand Oaks Company, a Texas corporation, and any other joint venture, in the form of a corporation, limited
liability company, business trust, joint venture, association, company or partnership, entered into by the Borrower or any of its Subsidiaries
which (i) is engaged in a line of business in accordance with Section 5.16 and (ii) is formed or organized in a manner that limits
the exposure of the Borrower and its Subsidiaries for the liabilities thereof to (A) the Investments of the Borrower and its Subsidiaries
therein permitted under Section 6.06 and (B) any Indebtedness of any Joint Venture or any Guarantee by the Borrower or any of its Subsidiaries
in respect of such Indebtedness, which Indebtedness or Guarantee are permitted at the time under Section 6.01.
“Junior
Indebtedness” means any Indebtedness for borrowed money (other than Indebtedness among Holdings, the Borrower and/or its subsidiaries)
of the Borrower or any of its Restricted Subsidiaries that is a Loan Party that is expressly subordinated in right of payment to the
Obligations.
“Junior
Lien Indebtedness” means any Indebtedness for borrowed money that is secured by a security interest on the Collateral (other
than Indebtedness among Holdings, the Borrower and/or its subsidiaries) that is expressly junior or subordinated to the Lien securing
the Credit Facilities with respect to the Collateral, including any “Term Loans” governed by the Second Lien Credit Agreement.
“Kingpin
Intermediate” means Kingpin Intermediate Holdings LLC, a Delaware limited liability company.
“Latest
Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment
hereunder at such time, including the latest maturity or expiration date of any Initial Term Loan, Additional Term Loan, Revolving Loan,
Additional Revolving Loan, Initial Revolving Credit Commitment or Additional Commitment.
“Latest
Revolving Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to
any revolving loan or revolving credit commitment hereunder at such time, including the latest maturity or expiration date of any Revolving
Loan, any Additional Revolving Loan, the Revolving Credit Commitment or any Additional Revolving Credit Commitment.
“Latest
Term Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any term
loan or term commitment hereunder at such time, including the latest maturity or expiration date of any Additional Term Loan or Additional
Term Loan Commitment hereunder at such time.
“LC
Collateral Account” has the meaning assigned to such term in Section 2.05(j).
“LC
Disbursement” means a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
“LC
Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time
and (b) the aggregate principal amount of all LC Disbursements that have not yet been reimbursed at such time. The LC Exposure of any
Revolving Lender at any time shall equal its Applicable Percentage of the aggregate LC Exposure at such time.
“Legal
Reservations” means the application of relevant Debtor Relief Laws, general principles of equity and/or principles of good
faith and fair dealing.
“Lenders”
means the Term Lenders, the Revolving Lenders, any Additional Lender, any lender with an Additional Commitment or an outstanding Additional
Loan and any other Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to
be a party hereto pursuant to an Assignment Agreement or as a result of the application of Section 9.05(g).
“Letter
of Credit” means any Standby Letter of Credit or Commercial Letter of Credit issued pursuant to this Agreement (and shall be
deemed to include all Existing Letters of Credit).
“Letter-of-Credit
Right” has the meaning set forth in Article 9 of the UCC.
“Letter
of Credit Sublimit” means $25,000,000, as increased from time to time in accordance with Section 2.22 hereof.
“LIBO
Rate” means, the Published LIBO Rate, as adjusted to reflect applicable reserves prescribed by governmental authorities; provided
that, (a) solely with respect to the Amendment No. 2 Term Loans (including, for the avoidance of doubt, the Amendment No. 3 Incremental
Term Loans), in no event shall the LIBO Rate be less than 1.00% per annum and (b) solely with respect to the Initial Revolving Loans,
in no event shall the LIBO Rate be less than 0.00% per annum.
“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capital Lease
having substantially the same economic effect as any of the foregoing), in each case, in the nature of security; provided that
in no event shall an operating lease in and of itself be deemed to constitute a Lien.
“Liquor
License Subsidiaries” means (i) as of the Closing Date, each of the Subsidiaries listed on Schedule 1.01(g) hereto and
(ii) thereafter, any other Restricted Subsidiary of the Borrower established solely for the purpose of satisfying applicable requirements
of local Law with respect to the ownership and use of liquor licenses and which has entered into or has a bona fide intent to enter into
(A) a lease pursuant to which such Restricted Subsidiary leases, as lessee, from Holdings or one or more of its Subsidiaries (other than
another Liquor License Subsidiary) snack bar and related space at one or more bowling centers and (B) a management services agreement
with a Loan Party, pursuant to which such Loan Party provides employees, management and related services to such Subsidiary.
“Limited
Condition Transaction” means any acquisition, Investment, Disposition, Restricted Payment or Restricted Debt Payment permitted
by this Agreement, in each case whose consummation is not conditioned on the availability of, or on obtaining, third-party financing.
“Limited
Recourse Financing” means, with respect to any Person, Indebtedness to the extent: (i) such Person, subject to customary exceptions
for nonrecourse Indebtedness financing, shall not have personal liability with respect to the Indebtedness and the lender thereunder
shall only seek recourse for satisfaction of the Indebtedness against the property or collateral secured thereunder; and (ii) no default
with respect thereto would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Loans or Loans
under any Second Lien Facility) of such Person to declare a default on such other Indebtedness or cause the payment thereof to be accelerated
or payable prior to its stated maturity.
“Loan
Documents” means this Agreement, any Promissory Note, each Loan Guaranty, the Collateral Documents, the Intercreditor
Agreement, any Acceptable Intercreditor Agreement and any other document or instrument designated by the Borrower and the
Administrative Agent as a “Loan Document”, including any Incremental Facility Amendment (including Amendment No. 1),
Refinancing Amendment or Extension Amendment or any other amendment hereto or thereto (including Amendment No. 2, Amendment No. 3 and,
Amendment No. 4 and Amendment No. 5). Any reference in this Agreement or any other Loan
Document to a Loan Document shall include all appendices, exhibits or schedules thereto.
“Loan
Guaranty” means (a) the Guaranty Agreement, substantially in the form of Exhibit I hereto, executed by each Loan Party
party thereto and the Administrative Agent for the benefit of the Secured Parties and (b) each other guaranty agreement executed by any
Person pursuant to Section 5.12 in substantially the form attached as Exhibit I hereto or another form that is otherwise
reasonably satisfactory to the Administrative Agent and the Borrower.
“Loan
Installment Date” has the meaning assigned to such term in Section 2.10(a).
“Loan
Parties” means Holdings, the Borrower and each Subsidiary Guarantor.
“Loans”
means any Initial Term Loan, any Additional Term Loan (including the Amendment No. 2 Term Loans and the Amendment No. 3 Incremental Term
Loans), any Revolving Loan, any Swingline Loan or any Additional Revolving Loan.
“Management
Investors” means the officers, directors, managers, employees and members of management of (i) the Borrower, (ii) any Parent
Company and/or (iii) any subsidiary of the Borrower (including, on the Closing Date, those of the Target and its subsidiaries) and the
Immediate Family Members of any of the foregoing.
“Margin
Stock” has the meaning assigned to such term in Regulation U.
“Market
Capitalization” means, at any date of determination pursuant to Section 1.04(e), the amount equal to (a) the total number
of then issued and outstanding shares of common Capital Stock of the Borrower or any Parent Company multiplied by (b) the arithmetic
mean of the closing prices per share of such common Capital Stock on the principal securities exchange on which such common Capital Stock
are traded for the 30 consecutive trading days immediately preceding such date.
“Market
Intercreditor Agreement” means an intercreditor or subordination agreement or arrangement the terms of which are either (a)(i)
consistent with market terms governing intercreditor arrangements for the sharing or subordination of liens or arrangements relating
to the distribution of payments, as applicable, at the time the applicable agreement or arrangement is proposed to be established in
light of the type of Indebtedness subject thereto or (ii) taken as a whole, not materially less favorable to the Lenders than the terms
of any Acceptable Intercreditor Agreement governing similar priorities that is then in effect, in each case as determined by the Borrower
in good faith or (b) in the event a “Market Intercreditor Agreement” has been entered into after the Closing Date meeting
the requirement of the preceding clause (a), the terms of which are, taken as a whole, not materially less favorable to the Lenders than
the terms of such Market Intercreditor Agreement to the extent such agreement governs similar priorities.
“Material
Adverse Effect” means (a) on the Closing Date, a Closing Date Material Adverse Effect and (b) after the Closing Date, a material
adverse effect on (i) the business, financial condition or results of operations, in each case, of the Borrower and its Restricted Subsidiaries,
taken as a whole or (ii) the material rights and remedies (taken as a whole) of the Administrative Agent under the applicable Loan Documents.
“Material
Debt Instrument” means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged
and delivered to the Administrative Agent (or its bailee) pursuant to the Security Agreement.
“Material
Real Estate Asset” means any “fee-owned” Real Estate Asset acquired by any Loan Party after the Closing Date (other
than as part of the iStar Exchange or EAP Substitution) having a fair market value (as determined by the Borrower in good faith after
taking into account any liabilities with respect thereto that impact such fair market value) in excess of $12,500,000 as of the date
of acquisition thereof (provided that the aggregate fair market value of all properties acquired after the Closing Date and so excluded
on account of such dollar threshold (each determined at the time of such initial exclusion) shall not exceed $50,000,000).
“Maturity
Date” means (a) with respect to the Initial Revolving Facility, the Initial Revolving Credit Maturity Date, (b) with respect
to the Amendment No. 2 Term Loans (including any Amendment No. 3 Incremental Term Loans), the Initial Term Loan Maturity Date, (c) with
respect to any other Replacement Term Loans or any Replacement Revolving Facility, the final maturity date for such Replacement Term
Loans or Replacement Revolving Facility, as the case may be, as set forth in the applicable Refinancing Amendment, (d) with respect to
any Incremental Facility, the final maturity date set forth in the applicable Incremental Facility Amendment and (e) with respect to
any Extended Revolving Credit Commitment or Extended Term Loans, the final maturity date set forth in the applicable Extension Amendment.
“Maximum
Rate” has the meaning assigned to such term in Section 9.19.
“Merger
Sub 1” has the meaning assigned to such term in the Preamble to this Agreement.
“Merger
Sub 1 Merger” has the meaning assigned to such term in the Recitals to this Agreement.
“Merger
Sub 2” has the meaning assigned to such term in the Preamble to this Agreement.
“Merger Sub 2 Merger” has
the meaning assigned to such term in the Recitals to this Agreement.
“Mergers”
or “Merger” means the Merger Sub 1 Merger and/or the Merger Sub 2 Merger, as the context may require.
“MFN
Provision” has the meaning assigned to such term in Section 2.22(a)(v).
“Minimum
Equity Percentage” has the meaning assigned to such term in the Recitals to this Agreement.
“Minimum
Extension Condition” has the meaning assigned to such term in Section 2.23(b).
“Moody’s”
means Moody’s Investors Service, Inc.
“Mortgage”
means any mortgage, deed of trust, deed to secure debt or other agreement which conveys or evidences a Lien in favor of the Administrative
Agent, for the benefit of the Administrative Agent and the relevant Secured Parties, on any Material Real Estate Asset constituting Collateral.
“Mortgage
Policy” has the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement”.
“Multiemployer
Plan” means any employee benefit plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA, that
is subject to the provisions of Title IV of ERISA, and in respect of which the Borrower or any of its Restricted Subsidiaries, or any
of their respective ERISA Affiliates, makes or is obligated to make contributions or with respect to which any of them has any ongoing
obligation or liability, contingent or otherwise.
“Narrative
Report” means, with respect to the financial statements with respect to which it is delivered, a management discussion and
narrative report describing the operations of the Borrower and its Restricted Subsidiaries for the applicable Fiscal Quarter or Fiscal
Year and for the period from the beginning of the then-current Fiscal Year to the end of the period to which the relevant financial statements
relate.
“Net
Insurance/Condemnation Proceeds” means an amount equal to: (a) any Cash payments or proceeds (including Cash Equivalents) received
by the Borrower or any of its Restricted Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder
of any assets of the Borrower or any of its Restricted Subsidiaries or (ii) as a result of the taking of any assets of the Borrower or
any of its Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a
sale of any such assets to a purchaser with such power under threat of such a taking, minus (b) in respect of the Loan Parties or any
of their respective subsidiaries, Affiliates or direct or indirect equityholders (i) any actual out-of-pocket costs and expenses incurred
in connection with the adjustment, settlement or collection of any claims in respect thereof, (ii) payment of the outstanding principal
amount of, premium or penalty, if any, and interest and other amounts on any Indebtedness (other than the Loans, Indebtedness under any
Second Lien Facility and any Indebtedness secured by a Lien on the Collateral that is pari passu with or expressly subordinated
to the Lien on the Collateral securing the Secured Obligations) that is secured by a Lien on the assets in question and that is required
to be repaid or otherwise comes due or would be in default under the terms thereof as a result of such loss, taking or sale, (iii) in
the case of a taking, the reasonable out-of-pocket costs of putting any affected property in a safe and secure position, (iv) any selling
costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, accountants’ fees, investment
banking fees, survey costs, title insurance premiums, and related search and recording charges, deed or mortgage recording taxes, other
expenses and brokerage, consultant and other customary fees actually incurred in connection therewith and transfer and similar Taxes
and the Borrower’s good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or that
are or would be imposed on intercompany distributions with such proceeds)) in connection with any sale or taking of such assets as described
in clause (a) of this definition, (v) any amounts provided as a reserve in accordance with GAAP against any liabilities under
any indemnification obligation or purchase price adjustments associated with any sale or taking of such assets as referred to in clause
(a) of this definition (provided that to the extent and at the time any such amounts are released from such reserve, other
than to make a payment for which such amount was reserved, such amounts shall constitute Net Insurance/Condemnation Proceeds) and (vi)
in the case of any covered loss or taking from any non-Wholly-Owned Subsidiary, the pro rata portion thereof (calculated without regard
to this clause (vi)) attributable to minority interests and not available for distribution to or for the account of the Borrower
or a Wholly-Owned Subsidiary as a result thereof.
“Net
Proceeds” means (a) with respect to any Disposition (including any Prepayment Asset Sale), the Cash proceeds (including Cash
Equivalents and Cash proceeds subsequently received (as and when received) in respect of non-cash consideration initially received),
net of (with respect to any Loan Party or its subsidiaries, Affiliates or direct or indirect equity owners) (i) selling costs and out-of-pocket
expenses (including broker’s fees or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title
insurance premiums, and related search and recording charges, deed or mortgage recording taxes, other customary expenses and brokerage,
consultant and other customary fees actually incurred in connection therewith and transfer and similar Taxes and the Borrower’s
good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or that are or would be imposed on
intercompany distributions with such proceeds) in connection with such Disposition), (ii) amounts provided as a reserve in accordance
with GAAP against any liabilities under any indemnification obligation or purchase price adjustment associated with such Disposition
(provided that to the extent and at the time any such amounts are released from such reserve, other than to make a payment for
which such amount was reserved, such amounts shall constitute Net Proceeds), (iii) the principal amount, premium or penalty, if any,
interest and other amounts on any Indebtedness (other than the Loans, Indebtedness under any Second Lien Facility and any other Indebtedness
secured by a Lien on the Collateral that is pari passu with or expressly subordinated to the Lien on the Collateral securing the Secured
Obligations) which is secured by the asset sold in such Disposition and which is required to be repaid or otherwise comes due or would
be in default and is repaid (other than any such Indebtedness that is assumed by the purchaser of such asset), (iv) Cash escrows (until
released from escrow to the Borrower or any of its Restricted Subsidiaries) from the sale price for such Disposition and (v) in the case
of any Disposition by any non-Wholly-Owned Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to
this clause (v)) attributable to any minority interest and not available for distribution to or for the account of the Borrower
or a Wholly-Owned Subsidiary as a result thereof; and (b) with respect to any issuance or incurrence of Indebtedness or Capital Stock,
the Cash proceeds thereof, net of all Taxes and fees, commissions, costs, underwriting discounts and other fees and expenses incurred
in connection therewith.
“New
Holdings” means the Person that shall, immediately following the consummation of a Holdings Reorganization Transaction in accordance
with the provisions of the definition thereof, hold 100% of the Capital Stock of the Borrower.
“Non-Consenting
Lender” has the meaning assigned to such term in Section 2.19(b).
“Non-Debt
Fund Affiliate” means the Sponsor and any Affiliate of the Sponsor, other than any Debt Fund Affiliate.
“Notice
of Intent to Cure” has the meaning assigned to such term in Section 6.15(b).
“Obligations”
means all unpaid principal of and accrued and unpaid interest (including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, all LC Exposure,
all accrued and unpaid fees and all expenses, reimbursements, indemnities and all other advances to, debts, liabilities and obligations
of the Loan Parties to the Lenders or to any Lender, the Administrative Agent, any Issuing Bank or any indemnified party arising under
the Loan Documents in respect of any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute,
contingent, due or to become due, now existing or hereafter arising.
“Organizational
Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its
by-laws, (b) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with
respect to any general partnership, its partnership agreement, (d) with respect to any limited liability company, its articles of organization
or certificate of formation, and its operating agreement or limited liability company agreement and (e) with respect to any other form
of entity, such other organizational documents required by local Requirements of Law or customary under the jurisdiction in which such
entity is organized to document the formation and governance principles of such type of entity. In the event that any term or condition
of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily
certified by such governmental official.
“Other
Applicable Indebtedness” has the meaning assigned to such term in Section 2.11(b)(i).
“Other
Connection Taxes” means, with respect to any Lender or Administrative Agent, Taxes imposed as a result of a present or former
connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely from such recipient having
executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest
under, or engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or
Loan Document).
“Other
Taxes” means any and all present or future stamp, court or documentary taxes or any intangible, recording, filing or similar
taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than
an assignment made pursuant to Section 2.19). For the avoidance of doubt, Other Taxes do not include any Excluded Taxes.
“Outstanding
Amount” means (a) with respect to Term Loans, Revolving Loans and Swingline Loans on any date, the amount of the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Loans
and Swingline Loans, as the case may be, occurring on such date, (b) with respect to any Letters of Credit, the aggregate amount available
to be drawn under such Letters of Credit after giving effect to any changes in the aggregate amount available to be drawn under such
Letters of Credit or the issuance or expiry of any Letters of Credit, including as a result of any LC Disbursements and (c) with respect
to any LC Disbursements on any date, the amount of the aggregate outstanding amount of such LC Disbursements on such date after giving
effect to any disbursements with respect to any Letter of Credit occurring on such date and any other changes in the aggregate amount
of the LC Disbursements as of such date, including as a result of any reimbursements by the Borrower of unreimbursed LC Disbursements.
“Parent”
means A-B Parent LLC, a Delaware limited liability company.
“Parent
Company” means (a) Holdings and (b) any other Person or group of Persons that are Affiliates of the Sponsor (but in any event
not any portfolio company of the Sponsor), of which the Borrower is an indirect Subsidiary.
“Participant”
has the meaning assigned to such term in Section 9.05(c).
“Participant
Register” has the meaning assigned to such term in Section 9.05(c).
“Patent”
means the following: (a) any and all patents and patent applications; (b) all inventions described and claimed therein; (c) all reissues,
divisions, continuations, renewals, extensions and continuations in part thereof; (d) all income, royalties, damages, claims and payments
now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future
infringements thereof; (e) all rights to sue for past, present and future infringements thereof; and (f) all rights corresponding to
any of the foregoing.
“PBGC”
means the Pension Benefit Guaranty Corporation.
“Pension
Plan” means any employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that
is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, which the Borrower or any of its
Restricted Subsidiaries, or any of their respective ERISA Affiliates, maintains or contributes to or has an obligation to contribute
to, or otherwise has any liability for, contingent or otherwise.
“Perfection
Certificate” means a certificate substantially in the form of Exhibit E.
“Perfection
Requirements” means (a) the filing of appropriate financing statements with the office of the Secretary of State or other appropriate
office in the state of organization of each Loan Party, (b) the filing of Intellectual Property Security Agreements or other appropriate
assignments or notices with the U.S. Patent and Trademark Office and/or the U.S. Copyright Office, as applicable, (c) the proper recording
or filing, as applicable, of Mortgages and fixture filings with respect to any Material Real Estate Asset constituting Collateral, in
each case in favor of the Administrative Agent for the benefit of the Secured Parties, (d) the delivery to the Administrative Agent of
any stock certificate or promissory note to the extent required to be delivered by the applicable Loan Documents and (e) other filings,
recordings and registrations necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Administrative
Agent or to enforce the rights of the Administrative Agent and the Secured Parties under the Loan Documents.
“Permitted
Acquisition” means any acquisition by the Borrower or any of its Restricted Subsidiaries, whether by purchase, merger, amalgamation
or otherwise, of all or a substantial portion of the assets of, or any business line, unit or division or product line (including research
and development and related assets in respect of any product or facility) of, any Person or of a majority of the outstanding Capital
Stock of any Person (and, in any event, including any Investment in any Restricted Subsidiary which serves to increase the Borrower’s
or any Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary), in each case if (1) such Person is or
becomes a Restricted Subsidiary or (2) such Person, in one transaction or a series of related transactions, is amalgamated, merged or
consolidated with or into, or transfers or conveys all or a substantial portion of its assets (or such division, business line, unit
or product line or facility) to, or is liquidated into, the Borrower and/or any Restricted Subsidiary as a result of such transaction;
provided that (i) the target Person, assets, business or division in respect of such acquisition is a business permitted under
Section 5.16 and (ii) at the applicable time elected by the Borrower in accordance with Section 1.04(e), with respect to
such acquisition, no Event of Default under Section 7.01(a), (f) or (g) shall be continuing.
“Permitted
Earlier Maturity Indebtedness Exception” means, with respect to any Incremental Term Facility and any Incremental Equivalent
Debt permitted to be incurred hereunder, that up to $20,000,000 aggregate principal amount of such Indebtedness outstanding at any time
(the “Specified Debt”) may have a final maturity date that is earlier than, and a Weighted Average Life to Maturity
that is shorter than the remaining Weighted Average Life to maturity of, the Indebtedness with respect to which the Specified Debt is
otherwise required to have a later final maturity date or Weighted Average Life.
“Permitted
Equity” has the meaning assigned to such term in the Recitals to this Agreement.
“Permitted
Holders” means (a) the Investors, (b) the Shannon Holders and (c) any Person with which one or more Investors and/or the Shannon
Holders form a “group” (within the meaning of Section 14(d) of the Exchange Act as in effect on the date hereof) so long
as, in the case of this clause (c), the relevant Investors and /or the Shannon Holders collectively own more than 50% of the relevant
voting stock beneficially owned by the group.
“Permitted
Liens” means Liens permitted pursuant to Section 6.02.
“Permitted
Payee” means any future, current or former director, officer, member of management, manager, employee, independent contractor
or consultant (or any Immediate Family Member or transferee of any of the foregoing) of the Borrower (or any Parent Company or any subsidiary).
“Permitted
Reorganization” means any transaction or undertaking, including Investments, in connection with internal reorganizations and
or restructurings (including in connection with tax planning and corporate reorganizations), so long as, after giving effect thereto,
(a) the Loan Parties shall comply with the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest of the
Secured Parties in the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute
Collateral immediately prior to such Permitted Reorganization no longer constituting Collateral) as a result of such Permitted Reorganization.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or any other entity.
“Preferred
Capital Stock” means any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution or
winding up.
“Prepayment
Asset Sale” means any Disposition by the Borrower or its Restricted Subsidiaries made pursuant to Section 6.07(h).
“Primary
Obligor” has the meaning assigned to such term in the definition of “Guarantee”.
“Prime
Rate” means (a) the rate of interest publicly announced, from time to time, by the Administrative Agent at its principal office
in New York City as its “prime rate,” with the understanding that the “prime rate” is one of the Administrative
Agent’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are
calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal
publications as the Administrative Agent may designate or (b) if the Administrative Agent has no “prime rate,” the rate of
interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal
ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical
Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein,
any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve
Board (as reasonably determined by the Administrative Agent).
“Pro
Forma Basis” or “pro forma effect” means, with respect to any determination of the Total Leverage Ratio,
the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted EBITDA, Consolidated Net
Income or Consolidated Total Assets (including component definitions thereof) that each Subject Transaction shall be deemed to have occurred
as of the first day of the applicable Test Period (or, in the case of Consolidated Total Assets (or with respect to any determination
pertaining to the balance sheet, including the acquisition of Cash and Cash Equivalents in connection with an acquisition of a Person,
business line, unit, division or product line), as of the last day of such Test Period) with respect to any test or covenant for which
such calculation is being made and that:
(a)
(i) in the case of (A) any Disposition of all or substantially all of the Capital Stock of any Restricted Subsidiary or any division
and/or product line of the Borrower or any Restricted Subsidiary or (B) any designation of a Restricted Subsidiary as an Unrestricted
Subsidiary, income statement items (whether positive or negative) attributable to the property or Person subject to such Subject Transaction,
shall be excluded as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination
is being made and (ii) in the case of any Permitted Acquisition, Investment and/or designation of an Unrestricted Subsidiary as a Restricted
Subsidiary described in the definition of the term “Subject Transaction”, income statement items (whether positive or negative)
attributable to the property or Person subject to such Subject Transaction shall be included as of the first day of the applicable Test
Period with respect to any test or covenant for which the relevant determination is being made; provided that any pro forma adjustment
may be applied to any such test or covenant solely to the extent that such adjustment is consistent with, subject to the limitations
set forth in and without duplication with respect to the application of, the definition of “Consolidated Adjusted EBITDA”,
(b)
any Expected Cost Savings as a result of any Cost Savings Initiative shall be calculated on a pro forma basis as though such Expected
Costs Savings had been realized on the first day of the applicable Test Period and as if such Expected Cost Savings were realized in
full during the entirety of such period; provided that any pro forma adjustment may be applied to any such test or covenant solely to
the extent that such adjustment is consistent with, subject to the limitations set forth in and without duplication with respect to the
application of, the definition of “Consolidated Adjusted EBITDA”,
(c)
any retirement or repayment of Indebtedness (other than normal fluctuations in revolving Indebtedness incurred for working capital purposes)
shall be deemed to have occurred as of the first day of the applicable Test Period with respect to any test or covenant for which the
relevant determination is being made,
(d)
any Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in connection therewith shall be deemed to have occurred
as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being
made; provided that (x) if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest
for the applicable Test Period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect
to such Indebtedness at the relevant date of determination (taking into account any interest hedging arrangements applicable to such
Indebtedness), (y) interest on any obligation with respect to any Capital Lease shall be deemed to accrue at an interest rate determined
by a Responsible Officer of the Borrower in good faith to be the rate of interest implicit in such obligation in accordance with GAAP
and (z) interest on any Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar
rate, a Eurocurrency interbank offered rate or other rate shall be determined to have been based upon the rate actually chosen, or if
none, then based upon such optional rate chosen by the Borrower, and
(e)
the acquisition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total Assets, whether pursuant
to any Subject Transaction or any Person becoming a subsidiary or merging, amalgamating or consolidating with or into the Borrower or
any of its subsidiaries, or the Disposition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated
Total Assets described in the definition of “Subject Transaction” shall be deemed to have occurred as of the last day of
the applicable Test Period with respect to any test or covenant for which such calculation is being made.
In
the case of any calculation of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage
Ratio or Consolidated Total Assets for any event described above that occurs prior to the date on which financial statements have been
(or are required to be) delivered pursuant to Section 5.01(b) for the Fiscal Year ended on or about June 30, 2017, any such calculation
required to be made on a “Pro Forma Basis” shall use the consolidated financial statements of Holdings delivered to the Arrangers
for the Fiscal Quarter ended April 2, 2017. Notwithstanding anything to the contrary set forth in the immediately preceding paragraph,
for the avoidance of doubt, when calculating the First Lien Leverage Ratio for purposes of the definitions of “Applicable Rate”
and “Commitment Fee Rate” and for purposes of Section 6.15 (other than for the purpose of determining pro forma compliance
with Section 6.15 as a condition to taking any action under this Agreement), the events described in the immediately preceding
paragraph that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.
“Projections”
means the projections of the Borrower and its Subsidiaries included in the Information Memorandum (or a supplement thereto).
“Promissory
Note” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of
Exhibit G hereto, evidencing the aggregate outstanding principal amount of Loans of the Borrower to such Lender resulting from
the Loans made by such Lender.
“Public
Company Costs” means Charges associated with, or in anticipation of, or preparation for, compliance with the requirements of
the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and Charges relating to compliance with
the provisions of the Securities Act and the Exchange Act (and in each case, any similar Requirement of Law under any other applicable
jurisdiction), as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange
companies with listed equity or debt securities, directors’, compensation, fees and expense reimbursement, Charges relating to
investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance,
listing fees and all executive, legal and professional fees related to the foregoing.
“Published
LIBO Rate” means, with respect to any Interest Period when used in reference to any Loan or Borrowing, (a) the rate of
interest (rounded upwards, if necessary, to the nearest 1/100th) appearing on Reuters Screen LIBOR01 Page (or on any
successor or substitute page of such service, or any successor to such service as determined by Administrative Agent) as the London
interbank offered rate for deposits in Dollars for a term comparable to such Interest Period, at approximately 11:00 a.m. (London
time) on the date which is two Business Days prior to the commencement of such Interest Period (but if more than one rate is
specified on such page, the rate will be an arithmetic average of all such rates) and (b) if such rate is not available at such time
for any reason, then the “Published LIBO Rate” for such Interest Period shall be the interest rate per annum reasonably
determined by the Administrative Agent in good faith to be the rate per annum at which deposits in Dollars for delivery on the first
day of such Interest Period in immediately available funds in the approximate amount of the LIBO Rate Loan being made, continued or
converted by the Administrative Agent and with a term equivalent to such Interest Period would be offered to the Administrative
Agent by major banks in the London or other offshore interbank market for Dollars at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest Period; provided that if such rate as determined
above is at any time negative, the Published LIBO Rate at such time shall instead be zero.
“Qualified
Capital Stock” of any Person means any Capital Stock of such Person that is not Disqualified Capital Stock.
“Qualified
Receivables Facility” means any Receivables Facility that meets the following conditions: (a) the Borrower shall have determined
in good faith that such Receivables Facility (including financing terms, covenants, termination events and other provisions) is in the
aggregate economically fair and reasonable to the Borrower and its Restricted Subsidiaries; (b) all sales of Receivables Facility Assets
and related assets by the Borrower or any Restricted Subsidiary to the Receivables Subsidiary or any other Person are made at fair market
value (as determined in good faith by the Borrower); (c) the financing terms, covenants, termination events and other provisions thereof
shall be on market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings; and (d)
the obligations under such Receivables Facility are non-recourse (except for customary representations, warranties, covenants and indemnities
made in connection with such facilities) to the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary).
“Qualifying
Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Qualifying IPO”
means any transaction or series of related transactions that results in any of the common Capital Stock of Holdings, any Parent Company
or the Borrower being publicly traded on any U.S. national securities exchange or any analogous exchange or any recognized securities
exchange in Canada, the United Kingdom or any country in the European Union.
“Qualifying
Lender” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Ratio
Interest Expense” means, with respect to any Person for any period, (a) consolidated total cash interest expense of such Person
and its Restricted Subsidiaries for such period, (i) including the interest component of any payment under any Capital Lease (regardless
of whether accounted for as interest expense under GAAP) and (ii) excluding (A) amortization, accretion or accrual of deferred financing
fees, original issue discount, debt issuance costs, discounted liabilities, commissions, fees and expenses, (B) any expense arising from
any bridge, commitment, structuring and/or other financing fee (including fees and expenses associated with the Transactions, the Amendment
No. 1 Transactions, the Amendment No. 2 Transactions, the Amendment No. 3 Transactions and agency and trustee fees), (C) any expense
resulting from the discounting of Indebtedness in connection with the application of recapitalization accounting or, if applicable, acquisition
accounting, (D) fees and expenses associated with any Dispositions, acquisitions, Investments, issuances of Capital Stock or Indebtedness
(in each case, whether or not consummated), (E) costs associated with obtaining, or breakage costs in respect of, any Hedge Agreement
or any other derivative instrument other than any interest rate Hedge Agreement or interest rate derivative instrument with respect to
Indebtedness, (F) penalties and interest relating to Taxes, (G) any “additional interest” or “liquidated damages”
for failure to timely comply with registration rights obligations, (H) interest expense with respect to Indebtedness of any Parent Company
of such Person appearing on the balance sheet of such Person solely by reason of push-down accounting under GAAP, (I) any payments with
respect to make-whole, prepayment or repayment premiums or other breakage costs of any Indebtedness, (J) any interest expense attributable
to the exercise of appraisal rights or other rights of dissenting shareholders and the settlement of any claims or actions (whether actual,
contingent or potential) with respect thereto in connection with the Transactions or any acquisition or Investment permitted hereunder
and (K) for the avoidance of doubt, any non-cash interest expense attributable to any movement in the mark to market valuation of any
obligation under any Hedge Agreement or any other derivative instrument and/or any payment obligation arising under any Hedge Agreement
or derivative instrument other than any interest rate Hedge Agreement or interest rate derivative instrument with respect to Indebtedness
minus (b) cash interest income for such period. For purposes of this definition, (x) interest in respect of any Capital Lease
shall be deemed to accrue at an interest rate determined by such Person in good faith to be the rate of interest implicit in such Capital
Lease in accordance with GAAP and (y) for the avoidance of doubt, unless already included in the calculation of interest expense, interest
expense shall be calculated after giving effect to any payments made or received under any Hedge Agreement or any other derivative instrument
with respect to Indebtedness.
“Real
Estate Asset” means, at any time of determination, all right, title and interest of any Loan Party in and to any and all parcels
of or interests in real property owned, leased or subleased by a Loan Party (including, but not limited to, land, improvements and fixtures
thereon) of such Loan Party.
“Receivables
Facility” means any of one or more receivables financing facilities or securitization financing facilities as amended, supplemented,
modified, extended, renewed, restated or refunded from time to time, pursuant to which the Borrower or any of the Restricted Subsidiaries
sells or grants a security interest in its Receivables Facility Assets to either (a) a Person that is not a Restricted Subsidiary or
(b) a Restricted Subsidiary or Receivables Subsidiary that in turn funds such purchase by selling or granting a security interest in
its Receivables Facility Assets to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables
Subsidiary that in turn funds itself by borrowing from such a Person, in each case, that constitutes a Qualified Receivables Facility.
“Receivables
Facility Asset” means (a) any accounts receivable, revenue stream or other right of payment, real estate asset, mortgage receivable
or related asset and (b) contract rights, lockbox accounts and records with respect to such assets customarily transferred therewith,
in each case subject to a Receivables Facility.
“Receivables
Fees” means distributions or payments made directly or by means of discounts with respect to any Receivables Facility Asset
or participation interest therein issued or sold in connection with, and other fees and expenses paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Facility.
“Receivables
Subsidiary” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities,
and in each case engages only in activities reasonably related or incidental thereto or another Person formed for the purposes of engaging
in a Receivables Facility in which the Borrower or any subsidiary makes an Investment and to which the Borrower or any subsidiary transfers
Receivables Facility Assets.
“Refinancing”
has the meaning assigned to such term in Section 4.01(h).
“Refinancing
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent and the Borrower
executed by (a) Holdings and the Borrower, (b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion
of the Replacement Term Loans or the Replacement Revolving Facility, as applicable, being incurred pursuant thereto and in accordance
with Section 9.02(c).
“Refinancing
Indebtedness” has the meaning assigned to such term in Section 6.01(p).
“Refunding
Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).
“Register”
has the meaning assigned to such term in Section 9.05(b).
“Regulation
U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or
thereof.
“Regulation
X” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or
thereof.
“Related
Funds” means with respect to any Lender that is an Approved Fund, any other Approved Fund that is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
“Related
Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, managers,
officers, trustees, employees, partners, agents, advisors and other representatives of such Person and such Person’s Affiliates.
“Release”
means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment of any barrels, containers
or other closed receptacles containing any Hazardous Material).
“Replaced
Revolving Facility” has the meaning assigned to such term in Section 9.02(c).
“Replaced
Term Loans” has the meaning assigned to such term in Section 9.02(c).
“Replacement
Debt” means any Refinancing Indebtedness (whether borrowed in the form of secured or unsecured loans, issued in a public offering,
Rule 144A under the Securities Act or other private placement or bridge financing in lieu of the foregoing or otherwise) incurred in
respect of Indebtedness permitted under Section 6.01(a) (and any subsequent refinancing of such Replacement Debt).
“Replacement
Revolving Facility” has the meaning assigned to such term in Section 9.02(c).
“Replacement
Term Loans” has the meaning assigned to such term in Section 9.02(c).
“Reply
Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Reply Price”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Representation
and Warranty Insurance Policy” means the representation and warranty insurance policy obtained by the Sponsor in connection
with the Mergers.
“Representative”
has the meaning assigned to such term in Section 9.13.
“Repricing
Transaction” means each of (a) the optional prepayment (or mandatory prepayment pursuant to Section 2.11(b)(iii)), repayment,
refinancing, substitution or replacement of all or a portion of the Amendment No. 2 Term Loans substantially concurrently with the incurrence
by any Loan Party of any broadly syndicated term loans secured on a pari passu basis with the Amendment No. 2 Term Loans (including
any first-lien secured Replacement Term Loans) having an Effective Yield that is less than the Effective Yield applicable to the Amendment
No. 2 Term Loans so prepaid, repaid, refinanced, substituted or replaced and (b) any amendment, waiver or other modification to this
Agreement that would have the effect of reducing the Effective Yield applicable to the Amendment No. 2 Term Loans; provided that
the primary purpose (as determined by the Borrower in good faith) of such prepayment, repayment, refinancing, substitution, replacement,
amendment, waiver or other modification was to reduce the Effective Yield applicable to the Amendment No. 2 Term Loans; provided,
further, that in no event shall any such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification
in connection with a Change of Control, Qualifying IPO or Transformative Acquisition constitute a Repricing Transaction. Any determination
by the Administrative Agent of the Effective Yield for purposes of the definition shall be conclusive and binding on all Lenders, and
the Administrative Agent shall have no liability to any Person with respect to such determination absent bad faith, gross negligence
or willful misconduct.
“Required
Excess Cash Flow Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 4.00:1.00,
50%, (b) if the First Lien Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.50:1.00, 25% and (c) if the First Lien
Leverage Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies
to the determination of the amount of Excess Cash Flow that is required to be applied to prepay Subject Loans under Section 2.11(b)(i)
for any Excess Cash Flow Period, the First Lien Leverage Ratio shall be determined on the scheduled date of prepayment (after giving
pro forma effect to such prepayment and to any other repayment or prepayment at or prior to the time such Excess Cash Flow prepayment
is due).
“Required
Lenders” means, at any time, Lenders having Loans or unused Revolving Credit Commitments or Additional Commitments representing
more than 50% of the sum of the total Loans and such unused commitments at such time.
“Required
Net Proceeds Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 4.00:1.00,
100%, (b) if the First Lien Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.50:1.00, 50% and (c) if the First Lien
Leverage Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies
to the determination of the amount of Net Proceeds or Net Insurance/Condemnation Proceeds that are required to be applied to prepay Subject
Loans under Section 2.11(b)(ii) for any payment, the First Lien Leverage Ratio shall be determined on the date on which such proceeds
are received by the applicable Borrower or Restricted Subsidiary (giving pro forma effect to the subject Dispositions and/or casualty
events and the application of the relevant proceeds thereof).
“Required
Revolving Lenders” means, at any time, Lenders having Initial Revolving Loans, Additional Revolving Loans, unused Initial Revolving
Credit Commitments or unused Additional Revolving Credit Commitments representing more than 50% of the sum of the total Initial Revolving
Loans, Additional Revolving Loans and such unused Revolving Credit Commitments at such time.
“Requirements
of Law” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational
or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs,
injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof
by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having
the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its
property is subject.
“Responsible
Officer” of any Person means the chief executive officer, the president, the chief financial officer, the treasurer, any assistant
treasurer, any executive vice president, any senior vice president, any vice president or the chief operating officer of such Person
and any other individual or similar official thereof responsible for the administration of the obligations of such Person in respect
of this Agreement, and, as to any document delivered on the Closing Date, shall include any secretary or assistant secretary or any other
individual or similar official thereof with substantially equivalent responsibilities of a Loan Party and, solely for purposes of notices
given pursuant to Article 2, any other officer of the applicable Loan Party so designated by any of the foregoing officers in
a written notice to the Administrative Agent (including, for the avoidance of doubt, by electronic means). Any document delivered hereunder
that is signed by a Responsible Officer of any Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party, and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
“Responsible
Officer Certification” means, with respect to the financial statements for which such certification is required, the certification
of a Responsible Officer of the Borrower that such financial statements fairly present, in all material respects, in accordance with
GAAP, the consolidated financial condition of the Borrower as at the dates indicated and its consolidated income and cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end adjustments and, in the case of quarterly financial statements,
the absence of footnotes.
“Restricted
Amount” has the meaning set forth in Section 2.11(b)(iv).
“Restricted
Debt” means any Junior Indebtedness and any Junior Lien Indebtedness, in each case to the extent the outstanding principal
amount thereof is equal to or greater than the Threshold Amount.
“Restricted
Debt Payment” has the meaning set forth in Section 6.04(b).
“Restricted
Payment” means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of the Borrower,
except a dividend payable solely in shares of Qualified Capital Stock (or in options, warrants or other rights to purchase such Qualified
Capital Stock) to the holders of such class, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition
for value of any shares of any class of the Capital Stock of the Borrower and (c) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares of any class of the Capital Stock of the Borrower now or hereafter
outstanding. The amount of any Restricted Payment (other than Cash) shall be the fair market value, as determined in good faith by the
Borrower on the applicable date set forth in Section 1.04(e), of the assets or securities proposed to be transferred or issued
by the Borrower pursuant to such Restricted Payment.
“Restricted
Subsidiary” means, as to any Person, any subsidiary of such Person that is not an Unrestricted Subsidiary. Unless otherwise
specified, “Restricted Subsidiary” shall mean any Restricted Subsidiary of the Borrower.
“Return
Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Revolving Credit Commitment”
means any Initial Revolving Credit Commitment and any Additional Revolving Credit Commitment.
“Revolving
Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of such Lender’s
Initial Revolving Credit Exposure and Additional Revolving Credit Exposure.
“Revolving
Facility” means the Initial Revolving Facility and, if applicable, any Incremental Revolving Facility, any facility governing
any Extended Revolving Credit Commitment or Extended Revolving Loans and any Replacement Revolving Facility.
“Revolving
Facility Test Condition” means, as of any date of determination, without duplication, that the aggregate Outstanding Amount
of (a) all Revolving Loans (including Swingline Loans) as of such date, (b) LC Disbursements as of such date that have not been reimbursed
within three Business Days and (c) Letters of Credit (excluding (i) any Letter of Credit to the extent cash collateralized or back-stopped
and (ii) other Letters of Credit (or any portion thereof) in an aggregate face amount up to $15,000,000 (with only such Letter of Credit
amounts in excess of $15,000,000 being applied for purposes hereof)) exceeds an amount equal to 35% of the Total Revolving Credit Commitment.
“Revolving
Lender” means any Initial Revolving Lender and any Additional Revolving Lender. Unless the context otherwise requires, the
term “Revolving Lenders” shall include the Swingline Lender.
“Revolving
Loans” means any Initial Revolving Loans and any Additional Revolving Loans.
“S&P” means Standard &
Poor’s Financial Services LLC, a subsidiary of the McGraw-Hill Companies, Inc.
“Sale
and Lease-Back Transaction” has the meaning assigned to such term in Section 6.08.
“Sanctioned
Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the
time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office
of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State, (b)
any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons
described in the foregoing clause (a).
“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the Office of Foreign
Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State.
“Scheduled
Consideration” has the meaning assigned to such term in Section 2.11(b)(i).
“SEC”
means the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of its functions.
“Second
Lien Claimholders” has the meaning set forth in the Intercreditor Agreement.
“Second Lien Collateral Agent”
has the meaning set forth in the Intercreditor Agreement.
“Second
Lien Credit Agreement” means the Second Lien Credit Agreement, dated as of the Closing Date, among, inter alios, Holdings,
the Borrower and Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent and the lenders from time to time
party thereto.
“Second
Lien Facility” means the credit facility governed by the Second Lien Credit Agreement and one or more debt facilities or other
financing arrangements (including indentures) providing for loans, notes or other long-term indebtedness that replace or refinance such
facility or other financing arrangement, including any such replacement or refinancing facility or indenture or other financing arrangement
that increases or decreases the amount permitted to be borrowed thereunder or alters the maturity thereof and whether by the same or
any other agent, lender or group of lenders, and any amendments, supplements, modifications, extensions, renewals, restatements, amendments
and restatements or refundings thereof or any such indentures or facilities or other financing arrangement that replace or refinance
such credit facility (or any subsequent replacement thereof), in each case to the extent permitted or not restricted by this Agreement.
“Secured
Hedging Obligations” means all Hedging Obligations (other than any Excluded Swap Obligations) under each Hedge Agreement that
(a) is in effect on the Closing Date between any Loan Party and a counterparty that is the Administrative Agent, a Lender, an Arranger
or any Affiliate of the Administrative Agent, a Lender or an Arranger as of the Closing Date or (b) is entered into after the Closing
Date between any Loan Party and any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger
at the time such Hedge Agreement is entered into, for which such Loan Party agrees to provide security and in each case that has been
designated to the Administrative Agent in writing by the Borrower as being a Secured Hedging Obligation for purposes of the Loan Documents,
it being understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable
Loan Documents and (B) to agree to be bound by the provisions of Article 8, Sections 9.03 and 9.10 and the Intercreditor
Agreement and each other Acceptable Intercreditor Agreement as if it were a Lender.
“Secured
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Secured Debt as of such date to (b) Consolidated
Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “Secured Leverage
Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries; provided that solely for
purposes of calculating the Secured Leverage Ratio in connection with the incurrence of Incremental Equivalent Debt, clause (a) of this
definition shall also include Consolidated Total Debt as of such date that is secured by a Lien on any non-Collateral assets of the Borrower
or any Restricted Subsidiary.
“Secured
Obligations” means all Obligations, together with (a) all Banking Services Obligations and (b) all Secured Hedging Obligations;
provided that Banking Services Obligations and Secured Hedging Obligations shall cease to constitute Secured Obligations on and
after the Termination Date.
“Secured
Parties” means (i) the Lenders, the Swingline Lender and each Issuing Bank, (ii) the Administrative Agent, (iii) each counterparty
to a Hedge Agreement with a Loan Party the obligations under which constitute Secured Obligations, (iv) each provider of Banking Services
to any Loan Party the obligations under which constitute Secured Obligations, (v) the Arrangers and (vi) the beneficiaries of each indemnification
obligation undertaken by any Loan Party under any Loan Document.
“Securities”
means any stock, shares, units, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase
or acquire, any of the foregoing; provided that the term “Securities” shall not include any earn-out agreement or
obligation or any employee bonus or other incentive compensation plan or agreement.
“Securities
Act” means the Securities Act of 1933 and the rules and regulations of the SEC promulgated thereunder.
“Securitization
Repurchase Obligation” means any obligation of a seller (or any guaranty of such obligation) of assets subject to a Qualified
Receivables Facility to repurchase such assets arising as a result of a breach of a representation, warranty or covenant or otherwise,
including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset
or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to such seller.
“Security
Agreement” means the First Lien Pledge and Security Agreement, substantially in the form of Exhibit J, among the Loan
Parties and the Administrative Agent for the benefit of the Secured Parties.
“Series
A Preferred Stock” means the shares of preferred stock of Holdings, designated as “Series A Preferred Stock”, having
the terms set forth in the certificate of incorporation of the Target, as amended and restated in connection with the Merger Sub I Merger.
“Shannon
Holders” means (i) Thomas Shannon, (ii) Cobalt Recreation LLC, (iii) any Immediate Family Member of Thomas Shannon, (iv) a
trust, family-partnership or estate-planning vehicle or other legal entity substantially all the economic interests of which are held
by or for the benefit of Thomas Shannon and/or any of his Immediate Family Members and (v) any other Affiliate of Thomas Shannon or any
other Shannon Holder, including The Cobalt Group LLC.
“Shared
Incremental Amount” means, as of any date of determination, (a) the greater of (i) $105,000,000 and (ii) 75% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (b) (i) the aggregate principal amount of all
Incremental Facilities and/or Incremental Equivalent Debt originally incurred or issued in reliance on the Shared Incremental Amount
outstanding on such date and (ii) the aggregate principal amount of “Incremental Loans” and “Incremental Equivalent
Debt” (each as defined in the Second Lien Credit Agreement or any equivalent term under any documentation governing any Second
Lien Facility) originally incurred or issued in reliance on the Shared Incremental Amount outstanding on such date, in each case after
giving effect to any reclassification of any such Indebtedness as having been incurred under clause (e) of the definition of “Incremental
Cap” hereunder or clause (e) of the definition of “Incremental Cap” (as defined in the Second Lien Credit Agreement
or any equivalent term under any documentation governing any Second Lien Facility).
“Similar
Business” means any Person the majority of the revenues of which are derived from a business that would be permitted by Section
5.16 if the references to “Restricted Subsidiaries” in Section 5.16 were read to refer to such
Person.
“SLB
Property” means the real property interests (and Bowling Equipment and other tangible personal property located thereon) that
are subject to the iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“SPC”
has the meaning assigned to such term in Section 9.05(e).
“Specified
Acquisition Agreement Representations” means the representations and warranties made by or on behalf of the Target, its subsidiaries
or their respective businesses in the Acquisition Agreement which are material to the interests of the Lenders, but only to the extent
that Merger Sub (or its applicable affiliate) has the right to terminate its obligations under the Acquisition Agreement or to decline
to consummate the Acquisition as a result of a breach of such representations and warranties.
“Specified
Representations” means the representations and warranties set forth in Section 3.01(a)(i) (as it relates to
Holdings and the Borrower), Section 3.02 (as it relates to the due authorization, execution, delivery and performance of the
Loan Documents and the enforceability thereof), Section 3.03(b)(i) (limited to the execution, delivery and performance of the
Loan Documents, incurrence of the Indebtedness thereunder and the granting of Guarantees and Liens in respect thereof), Section
3.08, Section 3.12, Section 3.14 (as it relates to the creation, validity and perfection of the security interests
in the Collateral, subject to the last sentence of Section 4.01), Section 3.16 and Sections 3.17(a)(ii) and
(c).
“Sponsor”
means Atairos Group, Inc. and the funds, partnerships, investment vehicles or other co-investment vehicles or other entities managed,
advised or controlled by Atairos Group, Inc. or its Affiliates (but in any event excluding any portfolio company of any of the foregoing).
“Standard
Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary of the Borrower which the Borrower has determined in good faith to be customary in a Receivables Facility, including, without
limitation, those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Securitization Repurchase
Obligation shall be deemed to be a Standard Securitization Undertaking.
“Standby
Letter of Credit” means any Letter of Credit other than any Commercial Letter of Credit.
“Stated
Amount” means, with respect to any Letter of Credit, at any time, the maximum amount available to be drawn thereunder, in each
case determined (x) as if any future automatic increases in the maximum available amount provided for in any such Letter of Credit had
in fact occurred at such time and (y) without regard to whether any conditions to drawing could then be met but after giving effect to
all previous drawings made thereunder.
“Subject
Loans” means, as of any date of determination, (a) Initial Term Loans and (b) any Additional Term Loans that are subject to
ratable prepayment requirements in accordance with Section 2.11(b) on such date of repayment.
“Subject
Person” has the meaning assigned to such term in the definition of “Consolidated Net Income”.
“Subject
Proceeds” has the meaning assigned to such term in Section 2.11(b)(ii).
“Subject
Transaction” means, with respect to any Test Period, (a) the Transactions, (b) any Permitted Acquisition or any other acquisition,
whether by purchase, merger, amalgamation or otherwise, of all or substantially all of the assets of, or any business line, unit or division
of, any Person or any facility, or of a majority of the outstanding Capital Stock of any Person (but in any event including any Investment
in any Restricted Subsidiary which serves to increase the Borrower’s or any Restricted Subsidiary’s respective equity ownership
in such Restricted Subsidiary), in each case that is permitted by this Agreement, (c) any Disposition of all or substantially all of
the assets or Capital Stock of a subsidiary (or any business unit, line of business or division of the Borrower or a Restricted Subsidiary)
not prohibited by this Agreement, (d) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary
as a Restricted Subsidiary in accordance with Section 5.10 hereof, (e) any incurrence or repayment of Indebtedness (other than
revolving Indebtedness), (f) any Cost Savings Initiative and/or (g) any other event that by the terms of the Loan Documents requires
pro forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a pro forma basis.
“Subsidiary”
or “subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of the total voting power of stock or other ownership interests entitled
(without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or
other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof
is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or
a combination thereof; provided that in determining the percentage of ownership interests of any Person controlled by another
Person, no ownership interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.
Unless otherwise specified, “subsidiary” shall mean any subsidiary of the Borrower.
“Subsidiary
Guarantor” means (x) on the Closing Date, each subsidiary of the Borrower (other than any subsidiary that is an Excluded Subsidiary
on the Closing Date) and (y) thereafter, each subsidiary of the Borrower that becomes a guarantor of the Secured Obligations pursuant
to the terms of this Agreement, in each case, until such time as the relevant subsidiary is released from its obligations under the Loan
Guaranty in accordance with the terms and provisions hereof. Notwithstanding the foregoing, the Borrower may from time to time, upon
notice to the Administrative Agent (or in the case of a Foreign Subsidiary, the prior written consent of the Administrative Agent (not
to be unreasonably withheld or delayed)), elect to cause any subsidiary that would otherwise be an Excluded Subsidiary to become a Subsidiary
Guarantor hereunder (but shall have no obligation to do so), subject to the satisfaction of guarantee and collateral requirements consistent
with the Collateral and Guarantee Requirements or otherwise reasonably acceptable to the Borrower and the Administrative Agent (which
shall include, in the case of a Foreign Subsidiary, guarantee and collateral requirements customary under local law, including customary
local limitations).
“Successor
Borrower” has the meaning assigned to such term in Section 6.07(a).
“Swap
Obligations” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction
that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline
Exposure” means, at any time, the aggregate principal amount of Swingline Loans outstanding at such time. The Swingline Exposure
of any Revolving Lender at any time shall be equal to its Applicable Percentage of the aggregate Swingline Exposure at such time.
“Swingline
Lender” means JPM, in its capacity as lender of Swingline Loans hereunder, or any successor lender of Swingline Loans hereunder.
“Swingline
Loan” means any Loan made pursuant to Section 2.04.
“Target”
means Bowlmor AMF Corp., a Delaware corporation.
“Tax
Group” has the meaning assigned to such term in Section 6.04(a)(xv).
“Taxes”
means any and all present and future taxes (including “business activities” taxes), levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any
interest, additions to tax or penalties applicable thereto.
“Termination
Date” has the meaning assigned to such term in the lead-in to Article 5.
“Term
Facility” means the Term Loans provided to or for the benefit of the Borrower pursuant to the terms of this Agreement.
“Term
Lender” means a Person with an Initial Term Loan Commitment or outstanding Initial Term Loan or an Additional Term Loan Commitment
(including the Amendment No. 2 Term Loan Commitments and Amendment No. 3 Incremental Term Loan Commitments) or an outstanding Additional
Term Loan (including the Amendment No. 2 Term Loans which, for the avoidance of doubt, include the Amendment No. 3 Incremental Term Loans).
“Term
Loan” means the Initial Term Loans and, if applicable, any Additional Term Loans (including the Amendment No. 2 Term Loans
and Amendment No. 3 Incremental Term Loans).
“Test
Period” means, as of any date, (a) for purposes of determining actual compliance with Section 6.15(a), the period of
four consecutive Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as
applicable, have been delivered (or are required to have been delivered) and (b) for any other purpose, the period of four consecutive
Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable,
have been delivered (or are required to have been delivered) or, if earlier, are internally available; it being understood and agreed
that prior to the first delivery (or required delivery) of financial statements under Section 5.01(a), “Test Period”
means the period of four consecutive Fiscal Quarters most recently ended for which financial statements of Holdings and its consolidated
subsidiaries are available.
“Threshold
Amount” means $30,000,000.
“Total
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Total Debt outstanding as of such date
to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term
“Total Leverage Ratio” is used in this Agreement in each case for the Borrower and its Restricted Subsidiaries.
“Total
Revolving Credit Commitment” means, at any time, the aggregate amount of the Revolving Credit Commitments as in effect at such
time. The Total Revolving Credit Commitment as of the Closing Date is $50,000,000.
“Trademark”
means the following: (a) all trademarks (including service marks), common law marks, trade names, trade dress, and logos, slogans and
other indicia of origin under the laws of any jurisdiction in the world, and the registrations and applications for registration thereof
and the goodwill of the business symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages and
payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims and payments for past and
future infringements thereof; (d) all rights to sue for past, present and future infringements of the foregoing, including the right
to settle suits involving claims and demands for royalties owing; and (e) all domestic rights corresponding to any of the foregoing.
“Transaction
Costs” means fees, premiums, expenses and other transaction costs (including original issue discount or upfront fees) payable
or otherwise borne by any Parent Company and/or its subsidiaries in connection with the Transactions, the Amendment No. 1 Transactions,
the Amendment No. 2 Transactions and, in each case, the transactions contemplated thereby.
“Transactions”
means, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party
and the Borrowing of Loans hereunder, (b) the Acquisition, (c) the Equity Contribution, (d) the Refinancing, (e) the execution, delivery
and performance of, including the incurrence of Indebtedness under, the Second Lien Credit Agreement and (f) the payment of the Transaction
Costs.
“Transformative
Acquisition” means any acquisition or Investment by the Borrower or any Restricted Subsidiary that is either (a) not permitted
by the terms of this Agreement immediately prior to the consummation of such acquisition or Investment or (b) if permitted by the terms
of this Agreement immediately prior to the consummation of such acquisition or Investment, would not provide the Borrower and its Subsidiaries
with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation,
as determined by the Borrower acting in good faith.
“Treasury
Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).
“Treasury
Regulations” means the U.S. federal income tax regulations promulgated under the Code.
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate or the Alternate Base Rate.
“UCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required
to be applied in connection with the creation or perfection of security interests.
“Unrestricted
Cash Amount” means, as to any Person on any date of determination, the amount of (a) unrestricted Cash and Cash Equivalents
of such Person and its Restricted Subsidiaries and (b) Cash and Cash Equivalents of such Person and its Restricted Subsidiaries that
are restricted in favor of the Credit Facilities, any Second Lien Facility and/or other permitted pari passu or junior secured
Indebtedness (which may also include Cash and Cash Equivalents securing other Indebtedness that is secured by a Lien on Collateral along
with the Credit Facilities, any Second Lien Facility and/or any other permitted pari passu or junior secured Indebtedness), in
each case as determined in accordance with GAAP.
“Unrestricted
Subsidiary” means any subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary on the Closing Date
and listed on Schedule 5.10 hereto or after the Closing Date pursuant to Section 5.10.
“Unused
Revolving Credit Commitment” of any Lender, at any time, means the remainder of the Revolving Credit Commitment of such Lender
at such time, if any, less the sum of (a) the aggregate Outstanding Amount of Revolving Loans made by such Lender, (b) such Lender’s
LC Exposure at such time and (c) except for purposes of Section 2.12(a), such Lender’s Applicable Percentage of the aggregate
Outstanding Amount of Swingline Loans.
“U.S.”
or “United States” means the United States of America.
“USA
PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“U.S.
Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f).
“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a)
the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other
required scheduled payments of principal, including payment at final maturity, in respect thereof by (ii) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal
amount of such Indebtedness; provided that the effect of any prepayment made in respect of such Indebtedness shall be disregarded
in making such calculation.
“Wholly-Owned
Subsidiary” of any Person means a subsidiary of such Person 100% of the Capital Stock of which (other than directors’
qualifying shares or shares required by Requirements of Law to be owned by a resident of the relevant jurisdiction) are owned by such
Person or by one or more Wholly-Owned Subsidiaries of such Person.
“Write-Down
and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion
powers are described in the EU Bail-In Legislation Schedule.
Section
1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a “Term Loan”) or by Type (e.g., a “LIBO Rate Loan”) or by Class and Type (e.g.,
a “LIBO Rate Term Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Term Loan Borrowing”)
or by Type (e.g., a “LIBO Rate Borrowing”) or by Class and Type (e.g., a “LIBO Rate Term Loan Borrowing”).
Section
1.03. Terms Generally. (a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” The words “ordinary
course of business” or “ordinary course” shall, with respect to any Person, be deemed to refer to items or actions
that are consistent with industry practice of such Person’s business industry or such Person’s past practice (it being understood
that the sale of accounts receivable (and related assets) pursuant to supply-chain, factoring or reverse factoring arrangements entered
into by the Borrower and its Restricted Subsidiaries shall be deemed to be in the ordinary course of business so long as such accounts
receivable (and related assets) are sold for Cash in an amount not less than 95% of the face amount thereof). Unless the context requires
otherwise (i) any definition of or reference to any agreement, instrument or other document herein or in any Loan Document (including
any Loan Document, the Second Lien Credit Agreement and any Loan Document referred to therein) shall be construed as referring to such
agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified
or extended, replaced or refinanced (subject to any restrictions or qualifications on such amendments, restatements, amendment and restatements,
supplements or modifications or extensions, replacements or refinancings set forth herein), (ii) any reference to any Requirement of
Law in any Loan Document shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing, superseding
or interpreting such Requirement of Law, (iii) any reference herein or in any Loan Document to any Person shall be construed to include
such Person’s successors and permitted assigns, (iv) the words “herein,” “hereof” and “hereunder,”
and words of similar import, when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not
to any particular provision hereof, (v) all references herein or in any Loan Document to Articles, Sections, clauses, paragraphs, Exhibits
and Schedules shall be construed to refer to Articles, Sections, clauses and paragraphs of, and Exhibits and Schedules to, such Loan
Document, (vi) in the computation of periods of time in any Loan Document from a specified date to a later specified date, the word “from”
means “from and including”, the words “to” and “until” mean “to but excluding” and the
word “through” means “to and including” and (vii) the words “asset” and “property”, when
used in any Loan Document, shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including Cash, securities, accounts and contract rights. For the avoidance of doubt, all references to Amendment
No. 2 Loans herein, shall, from and after the Amendment No. 3 Effective Date (as applicable), include (and be deemed to include) Amendment
No. 3 Incremental Term Loans in order to result in equivalent treatment thereof.
(b)
For purposes of determining compliance at any time with Sections 6.01, 6.02, 6.04, 6.06 and
6.07, in the event that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment or Disposition, as applicable,
or portion thereof, at any time meets the criteria of more than one of the categories of transactions or items permitted pursuant to
any clause of such Sections 6.01 (other than Sections 6.01(a) (in the case of Indebtedness incurred on the Closing Date)
and (x)), 6.02 (other than Sections 6.02(a) and (t) (with respect to Section 6.01(x)), 6.04, 6.06
and 6.07 (each of the foregoing, a “Reclassifiable Item”), the Borrower, in its sole discretion, may, from
time to time, divide, classify or reclassify such Reclassifiable Item (or portion thereof) under one or more clauses of each such Section
and will only be required to include such Reclassifiable Item (or portion thereof) in any one category; provided that, upon delivery
of any financial statements pursuant to Section 5.01(a) or (b) following the initial incurrence or making of any such Reclassifiable
Item, if such Reclassifiable Item could, based on such financial statements, have been incurred in reliance on Section 6.01(z)
(in the case of Indebtedness and Liens) or any “ratio-based” basket (in the case of all other Reclassifiable Items), such
Reclassifiable Item shall automatically be reclassified as having been incurred or made under the applicable provisions of Section 6.01(z)
or such “ratio-based” basket, as applicable (in each case, subject to any other applicable provision of Section 6.01(z)
or such “ratio-based” basket, as applicable). It is understood and agreed that any Indebtedness, Lien, Restricted Payment,
Restricted Debt Payment, Investment and/or Disposition need not be permitted solely by reference to one category of permitted Indebtedness,
Lien, Restricted Payment, Restricted Debt Payment, Investment and/or Disposition under Sections 6.01, 6.02, 6.04,
6.06 or 6.07, respectively, but may instead be permitted in part under any combination thereof or under any other available
exception.
Section
1.04. Accounting Terms; GAAP.
(a)
(i) All financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time
to time and, except as otherwise expressly provided herein, all terms of an accounting or financial nature that are used in calculating
the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted
EBITDA, Consolidated Net Income or Consolidated Total Assets shall be construed and interpreted in accordance with GAAP, as in effect
from time to time; provided that (A) if any change to GAAP or in the application thereof (including the conversion to IFRS as
described below) is implemented after the date of delivery of the financial statements described in Section 3.04(a) and/or there
is any change in the functional currency reflected in the financial statements or (B) if the Borrower elects or is required to report
under IFRS, the Borrower or the Required Lenders may request to amend the relevant affected provisions hereof (whether or not the request
for such amendment is delivered before or after the relevant change or election) to eliminate the effect of such change or election,
as the case may be, on the operation of such provisions and (x) the Borrower and the Administrative Agent shall negotiate in good faith
to enter into an amendment of the relevant affected provisions (it being understood that no amendment or similar fee shall be payable
to the Administrative Agent or any Lender in connection therewith) to preserve the original intent thereof in light of the applicable
change or election, as the case may be and (y) the relevant affected provisions shall be interpreted on the basis of GAAP and the currency,
in each case, as in effect and applied immediately prior to the applicable change or election, as the case may be, until the request
for amendment has been withdrawn by the Borrower or the Required Lenders, as applicable, or this Agreement has been amended as contemplated
hereby. Any consent required from the Administrative Agent or any Required Lender with respect to the foregoing shall not be unreasonably
withheld, conditioned or delayed.
(ii)
All terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to
herein shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10-25 (previously referred
to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification, International Accounting Standard
or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or
any subsidiary at “fair value,” as defined therein, (ii) any treatment of Indebtedness in respect of convertible debt instruments
under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification, International Accounting Standard or
Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as
described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof and (iii) the application
of Accounting Standards Codification 480, 815, 805 and 718 (to the extent these pronouncements under Accounting Standards Codification
718 result in recording an equity award as a liability on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries
in the circumstance where, but for the application of the pronouncements, such award would have been classified as equity). If the Borrower
notifies the Administrative Agent that the Borrower (or its applicable Parent Company) is required to report under IFRS or has elected
to do so through an early adoption policy, “GAAP” shall mean international financial reporting standards pursuant to IFRS
(provided thereafter, the Borrower cannot elect to report under GAAP).
(b)
Notwithstanding anything to the contrary herein, but subject to Sections 1.04(d), (e) and (g), all financial ratios and tests
(including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio and the amount
of Consolidated Total Assets, Consolidated Net Income and Consolidated Adjusted EBITDA) contained in this Agreement that are calculated
with respect to any Test Period during which any Subject Transaction occurs shall be calculated with respect to such Test Period and
such Subject Transaction on a Pro Forma Basis. Further, if since the beginning of any such Test Period and on or prior to the date of
any required calculation of any financial ratio or test (x) any Subject Transaction has occurred or (y) any Person that subsequently
became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries
since the beginning of such Test Period has consummated any Subject Transaction, then, in each case, any applicable financial ratio or
test shall be calculated on a Pro Forma Basis for such Test Period as if such Subject Transaction had occurred at the beginning of the
applicable Test Period (or, in the case of Consolidated Total Assets (or with respect to any determination pertaining to the balance
sheet, including the acquisition of Cash and Cash Equivalents), as of the last day of such Test Period), it being understood, for the
avoidance of doubt, that solely for purposes of (x) calculating quarterly compliance with Section 6.15 and (y) calculating the
First Lien Leverage Ratio for purposes of the definitions of “Applicable Rate” and “Commitment Fee Rate”, in
each case, the date of the required calculation shall be the last day of the Test Period, and no Subject Transaction occurring thereafter
shall be taken into account.
(c)
Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Attributable Debt”,
“Capital Lease” or “Capital Lease Obligation”, in the event of an accounting change or a change in the application
of GAAP requiring all or certain leases to be capitalized or otherwise accounted for as liabilities on the balance sheet of the applicable
Person, unless the Borrower elects otherwise, only those leases (assuming for purposes hereof that such leases were in existence on the
date hereof) that would constitute Capital Leases (including leases that are classified as “Financing Leases” for purposes
of GAAP) in conformity with GAAP on the date hereof shall be considered Capital Leases, and all calculations and deliverables under this
Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith. Notwithstanding anything contained
in any Loan Document to the contrary, the leases relating to the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 and any Excluded
Property Sale/Leaseback Transaction shall be deemed not to be and shall not otherwise be classified as a Capital Lease (and the obligations
in respect thereof shall not be considered Indebtedness) for purposes of this Agreement and any other Loan Document.
(d)
For purposes of determining the permissibility of any action, change, transaction or event that by the terms of the Loan Documents requires
a calculation of any financial ratio or financial test (including the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured
Leverage Ratio, the Interest Coverage Ratio and the amount of Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated Total
Assets), subject to the succeeding clause (e), such financial ratio or test shall be calculated at the time such action is taken,
such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall
be deemed to have occurred solely as a result of a change in such financial ratio or financial test occurring after the time such action
is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(e)
Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma Basis), if the terms
of this Agreement require (i) compliance with any financial ratio or financial test (including, without limitation, Section 6.15(a)
hereof, any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage
Ratio test) and/or any cap expressed as a percentage of Consolidated Total Assets or Consolidated Adjusted EBITDA, (ii) accuracy of any
representation or warranty and/or the absence of a Default or Event of Default (or any type of default or event of default) or (iii)
compliance with any basket, as a condition to (A) the consummation of any transaction (including in connection with any acquisition or
similar Investment or the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of
any Restricted Debt Payment, in each case in connection with a Limited Condition Transaction, the determination of whether the relevant
condition is satisfied may be made, at the election of the Borrower, (1) in the case of any acquisition or similar Investment or any
Disposition and any transaction related thereto, at the time of (or on the basis of the financial statements for the most recently ended
Test Period at the time of) either (x) the execution of the definitive agreement with respect to such acquisition, Investment or Disposition
or (y) the consummation of such acquisition, Investment or Disposition, (2) in the case of any Restricted Payment, at the time of (or
on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted
Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the basis
of the financial statements for the most recently ended Test Period at the time of) (x) delivery of notice with respect to such Restricted
Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after giving effect to the relevant acquisition, Restricted
Payment and/or Restricted Debt Payment or other transaction on a Pro Forma Basis (including, in each case, giving effect to the relevant
transaction, any relevant Indebtedness (including the intended use of proceeds thereof) and, at the election of the Borrower, giving
pro forma effect to other prospective Limited Condition Transactions that are acquisitions or similar Investments for which definitive
agreements have been executed, and no Default or Event of Default shall be deemed to have occurred solely as a result of an adverse change
in such financial ratio or test occurring after the time such election is made (but any subsequent improvement in the applicable financial
ratio or test may be utilized by the Borrower or any Restricted Subsidiary). For the avoidance of doubt, if the Borrower shall have elected
the option set forth in clause (x) of any of the preceding clauses (1), (2) or (3) in respect of any transaction, then the Borrower shall
be permitted to consummate such transaction even if any applicable test or condition shall cease to be satisfied subsequent to the Borrower’s
election of such option. The provisions of this paragraph (e) shall also apply in respect of the incurrence of any Incremental Facility.
(f)
[Reserved].
(g)
Notwithstanding anything to the contrary herein, unless the Borrower otherwise notifies the Administrative Agent, with respect to any
amounts incurred under the Revolving Facility, any Additional Revolving Facility or any other permitted revolving facility or any amounts
incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement (including Section 6.01(x)
(as it relates to the incurrence of any “fixed” or similar amount incurred under any Second Lien Facility)) that does not
require compliance with a financial ratio or financial test (including any First Lien Leverage Ratio test, any Secured Leverage Ratio
test, any Total Leverage Ratio test and/or any Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”)
substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this
Agreement (including Section 6.01(x) (as it relates to the incurrence of any “incurrence based” or similar amount
incurred under any Second Lien Facility)) that requires compliance with a financial ratio or financial test (including any First Lien
Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage Ratio test) (any such
amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (A) the incurrence of the Incurrence-Based
Amount shall be calculated first without giving effect to any Fixed Amount but giving full pro forma effect to the use of proceeds of
such Fixed Amount and the related transactions and (B) the incurrence of the Fixed Amount shall be calculated thereafter. Unless the
Borrower elects otherwise, the Borrower shall be deemed to have used amounts under an Incurrence-Based Amount then available to the Borrower
prior to utilization of any amount under a Fixed Amount then available to the Borrower. For the avoidance of doubt, all Indebtedness
substantially concurrently incurred will be included for purposes of calculating compliance with Sections 6.04(a)(xiii), 6.04(b)(vii)
and 6.06(dd) (in each case, giving pro forma effect to the intended use of proceeds thereof).
(h)
The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall
be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(i)
The increase in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of
interest or a dividend in the form of additional Indebtedness, amortization of original issue discount and/or any increase in the amount
of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency will not be deemed
to be the granting of a Lien for purposes of Section 6.02.
(j)
For purposes of determining compliance with Section 6.01 or Section 6.02, if any Indebtedness or Lien is incurred in reliance
on a basket measured by reference to a percentage of Consolidated Adjusted EBITDA, and any refinancing or replacement thereof would cause
the percentage of Consolidated Adjusted EBITDA to be exceeded if calculated based on the Consolidated Adjusted EBITDA on the date of
such refinancing or replacement, such percentage of Consolidated Adjusted EBITDA will be deemed not to be exceeded so long as the principal
amount of such refinancing or replacement Indebtedness or other obligation does not exceed an amount sufficient to repay the principal
amount of such Indebtedness or other obligation being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest,
penalties and premiums (including tender, prepayment or repayment premiums) thereon plus underwriting discounts and other customary fees,
commissions and expenses (including upfront fees, original issue discount or initial yield payment) incurred in connection with such
refinancing or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under
Section 6.01.
(a)
Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a
specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).
Section
1.05. Effectuation of Transactions. Each of the representations and warranties contained in this Agreement (and all corresponding
definitions) is made after giving effect to the Transactions, unless the context otherwise requires.
Section
1.06. Timing of Payment and Performance. When payment of any obligation or the performance of any covenant, duty or obligation
is stated to be due or required on a day which is not a Business Day, the date of such payment (other than as described in the definition
of “Interest Period”) or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such extension.
Section
1.07. Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time
(daylight or standard, as applicable).
Section
1.08. Currency Equivalents Generally.
(a)
Notwithstanding anything to the contrary in clause (b) below, for purposes of any determination under Article 5, Article 6 (other
than Section 6.15 and the calculation of compliance with any financial ratio for purposes of taking any action hereunder) or Article
7 with respect to the amount of any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition, Sale
and Lease-Back Transaction, affiliate transaction or other transaction, event or circumstance, or any determination under any other provision
of this Agreement (any of the foregoing, a “relevant transaction”), in a currency other than Dollars, (i) the Dollar
equivalent amount of a relevant transaction in a currency other than Dollars shall be calculated based on the rate of exchange quoted
by the Bloomberg Foreign Exchange Rates & World Currencies Page (or any successor page thereto, or in the event such rate does not
appear on any Bloomberg Page, by reference to such other publicly available service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Borrower) for such foreign currency, as in effect at 11:00 a.m. (London time) on the date of such
relevant transaction (which, in the case of any Restricted Payment, Restricted Debt Payment, Investment, Disposition or incurrence of
Indebtedness, shall be determined as set forth in Section 1.04(e)); provided, that if any Indebtedness is incurred (and,
if applicable, associated Lien granted) to refinance or replace other Indebtedness denominated in a currency other than Dollars, and
the relevant refinancing or replacement would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the
relevant currency exchange rate in effect on the date of such refinancing or replacement, such Dollar- denominated restriction shall
be deemed not to have been exceeded so long as the principal amount of such refinancing or replacement Indebtedness (and, if applicable,
associated Lien granted) does not exceed an amount sufficient to repay the principal amount of such Indebtedness being refinanced or
replaced, except by an amount equal to (x) unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus
underwriting discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial
yield payment) incurred in connection with such refinancing or replacement, (y) any existing commitments unutilized thereunder and (z)
additional amounts permitted to be incurred under Section 6.01 and (ii) for the avoidance of doubt, no Default or Event of Default
shall be deemed to have occurred solely as a result of a change in the rate of currency exchange occurring after the time of any relevant
transaction so long as such relevant transaction was permitted at the time incurred, made, acquired, committed, entered or declared as
set forth in clause (i). For purposes of Section 6.15 and the calculation of compliance with any financial ratio for purposes
of taking any action hereunder (including for purposes of calculating compliance with the Incremental Cap) on any relevant date of determination,
amounts denominated in currencies other than Dollars shall be translated into Dollars at the applicable currency exchange rate used in
preparing the financial statements delivered pursuant to Sections 5.01(a) or (b) (or, prior to the first such delivery,
the financial statements referred to in Section 3.04), as applicable, for the relevant Test Period. Notwithstanding the foregoing
or anything to the contrary herein, to the extent that the Borrower would not be in compliance with Section 6.15(a) if any Indebtedness
denominated in a currency other than Dollars were to be translated into Dollars on the basis of the applicable currency exchange rate
used in preparing the financial statements delivered pursuant to Section 5.01(a) or (b), as applicable, for the relevant
Test Period, but would be in compliance with Section 6.15(a) if such Indebtedness that is denominated in a currency other than
in Dollars were instead translated into Dollars on the basis of the average relevant currency exchange rates over such Test Period (taking
into account the currency translation effects, determined in accordance with GAAP, of any Hedge Agreement permitted hereunder in respect
of currency exchange risks with respect to the applicable currency in effect on the date of determination for the Dollar equivalent amount
of such Indebtedness), then, solely for purposes of compliance with Section 6.15(a), the First Lien Leverage Ratio as of the last
day of such Test Period shall be calculated on the basis of such average relevant currency exchange rates.
(b)
Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time
to time specify with the Borrower’s consent to appropriately reflect a change in currency of any country and any relevant market
convention or practice relating to such change in currency.
Section
1.09. Cashless Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document,
to the extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental
Loans, Replacement Term Loans, Loans in connection with any Replacement Revolving Facility, Extended Term Loans, Extended Revolving Loans
or loans incurred under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected
by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply
with any requirement hereunder or any other Loan Document that such payment be made “in Dollars”, “in immediately available
funds”, “in Cash” or any other similar requirement.
Section
1.10. Alternative Currencies.
(a)
The Borrower may from time to time request that LIBO Rate Revolving Loans be made and/or Letters of Credit be issued in a currency other
than Dollars; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely
transferable and convertible into Dollars. In the case of any such request with respect to the making of LIBO Rate Revolving Loans, such
request shall be subject to the approval of the Revolving Lenders of the applicable Class that will provide such Loans, and in the case
of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the applicable
Issuing Banks, in each case as set forth in Section 9.02(b)(ii)(E).
(b)
Any such request shall be made to the Administrative Agent not later than 11:00 a.m., ten Business Days prior to the requested date of
the making of such Revolving Loan or issuance of such Letter of Credit (or such other time or date as may be agreed by the Administrative
Agent and, in the case of any such request pertaining to Letters of Credit, the applicable Issuing Banks, in its or their sole discretion).
In the case of any such request pertaining to LIBO Rate Revolving Loans, the Administrative Agent shall promptly notify each Revolving
Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the
applicable Issuings Bank thereof. Each applicable Revolving Lender (in the case of any such request pertaining to LIBO Rate Revolving
Loans) or each applicable Issuing Bank (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent,
not later than 11:00 a.m., five Business Days after receipt of such request whether it consents, in its sole discretion, to the making
of LIBO Rate Revolving Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(c)
Any failure by a Revolving Lender or Issuing Bank, as the case may be, to respond to such request within the time period specified in
the preceding paragraph shall be deemed to be a refusal by such Revolving Lender or Issuing Bank, as the case may be, to permit LIBO
Rate Revolving Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the
applicable Revolving Lenders consent to making LIBO Rate Revolving Loans or issuance of Letters of Credit in such requested currency,
the Administrative Agent shall so notify the Borrower and the Borrower and the Revolving Lenders shall amend this Agreement and the other
Loan Documents as necessary to accommodate such Borrowings and/or Letters of Credit (as applicable), in accordance with Section 9.02(b)(ii)(E).
If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.10, the
Administrative Agent shall promptly so notify the Borrower.
ARTICLE
2 THE CREDITS
Section
2.01. Commitments.
(a)
Subject to the terms and conditions set forth herein, (i) (x) each Initial Term Lender severally, and not jointly, agrees to make Initial
Term Loans to the Borrower on the Closing Date in Dollars in a principal amount not to exceed its Initial Term Loan Commitment as of
the Closing Date and (y) each Amendment No. 1 Incremental Term Lender severally, and not jointly, agrees to make Amendment No. 1 Incremental
Term Loans to the Borrower on the Amendment No. 1 Effective Date in a principal amount not to exceed its Initial Term Loan Commitment
as of the Amendment No. 1 Effective Date and (ii) each Revolving Lender severally, and not jointly, agrees to make Revolving Loans to
the Borrower in Dollars at any time and from time to time on and after the Closing Date, and until the earlier of the Initial Revolving
Credit Maturity Date and the termination of the Initial Revolving Credit Commitment of such Revolving Lender in accordance with the terms
hereof; provided that, after giving effect to any Borrowing of Initial Revolving Loans, the Outstanding Amount of such Revolving
Lender’s Initial Revolving Credit Exposure shall not exceed such Revolving Lender’s Initial Revolving Credit Commitment.
Subject to the terms and conditions set forth in Amendment No. 2 (x) each Converting Lender (as defined in Amendment No. 2) severally,
and not jointly, agrees to exchange its Existing Term Loans (as defined in Amendment No. 2) for a like principal amount of Amendment
No. 2 Term Loans on the Amendment No. 2 Effective Date (or such lesser amount allocated to such Lender by the Administrative Agent) and
(y) each Amendment No. 2 Term Lender severally, and not jointly, agrees to make Amendment No. 2 Term Loans to the Borrower on the Amendment
No. 2 Effective Date in a principal amount not to exceed its Amendment No. 2 Term Loan Commitment as of the Amendment No. 2 Effective
Date. Subject to the terms and conditions set forth herein, each Amendment No. 3 Incremental Term Lender severally, and not jointly,
agrees to make Amendment No. 3 Incremental Term Loans to the Borrower on the Amendment No. 3 Effective Date in a principal amount not
to exceed its Amendment No. 3 Incremental Term Loan Commitment as of the Amendment No. 3 Effective Date. Within the foregoing limits
and subject to the terms, conditions and limitations set forth herein, the Borrower may borrow, pay or prepay and reborrow Revolving
Loans. Amounts paid or prepaid in respect of the Initial Term Loans, Amendment No. 2 Term Loans or Amendment No. 3 Incremental Term Loans
may not be reborrowed.
(b)
Subject to the terms and conditions of this Agreement and any applicable Refinancing Amendment, Extension Amendment or Incremental Facility
Amendment, each Lender with an Additional Commitment of a given Class, severally and not jointly, agrees to make Additional Loans of
such Class to the Borrower, which Loans shall not exceed for any such Lender at the time of any incurrence thereof the Additional Commitment
of such Class of such Lender as set forth in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment.
Section
2.02. Loans and Borrowings.
(a)
Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the applicable Class. Each Swingline Loan shall be made in accordance
with the procedures set forth in Section 2.04.
(b)
Subject to Section 2.01 and Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or LIBO Rate Loans as
the Borrower may request in accordance herewith; provided that each Swingline Loan shall be an ABR Loan. Each Lender at its option
may make any LIBO Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided
that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms
of this Agreement, (ii) such LIBO Rate Loan shall be deemed to have been made and held by such Lender, and the obligation of the Borrower
to repay such LIBO Rate Loan shall nevertheless be to such Lender for the account of such domestic or foreign branch or Affiliate of
such Lender and (iii) in exercising such option, such Lender shall use reasonable efforts to minimize increased costs to the Borrower
resulting therefrom (which obligation of such Lender shall not require it to take, or refrain from taking, actions that it determines
would result in increased costs for which it will not be compensated hereunder or that it otherwise determines would be disadvantageous
to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section
2.15 shall apply); provided, further, that any such domestic or foreign branch or Affiliate of such Lender shall not be entitled
to any greater indemnification under Section 2.17 with respect to such LIBO Rate Loan than that to which the applicable Lender
was entitled on the date on which such Loan was made (except in connection with any indemnification entitlement arising as a result of
a Change in Law after the date on which such Loan was made).
(c)
At the commencement of each Interest Period for any LIBO Rate Borrowing, such Borrowing shall comprise an aggregate principal amount
that is an integral multiple of $100,000 and not less than $500,000. Each ABR Borrowing when made shall be in a minimum principal amount
of $100,000; provided that an ABR Revolving Loan Borrowing may be made in a lesser aggregate amount that is (x) equal to the entire
aggregate Unused Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at
any time be more than a total of 10 different Interest Periods in effect for LIBO Rate Borrowings at any time outstanding (or such greater
number of different Interest Periods as the Administrative Agent may agree from time to time).
(d)
Notwithstanding any other provision of this Agreement, the Borrower shall not, nor shall it be entitled to, request, or to elect to convert
or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date applicable to such
Loans.
Section
2.03. Requests for Borrowings. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of LIBO
Rate Loans shall be made upon irrevocable notice by the Borrower to the Administrative Agent (provided that notices in respect
of any Borrowings (x) to be made on the Closing Date may be conditioned on the closing of the Acquisition and (y) to be made in connection
with any acquisition, Investment or irrevocable repayment, redemption or refinancing of Indebtedness may be conditioned on the closing
of such acquisition, Investment or irrevocable repayment, redemption or refinancing of such Indebtedness). Each such notice must be in
writing or by telephone (and promptly confirmed in writing) and must be received by the Administrative Agent (by hand delivery, fax or
other electronic transmission (including “.pdf” or “.tif”)) not later than 12:00 p.m. (i) three Business Days
prior to the requested day of any Borrowing of, conversion to or continuation of LIBO Rate Loans (or 12:00 p.m. one Business Day in the
case of any Borrowing of LIBO Rate Loans to be made on the Closing Date) and (ii) on the requested date of any Borrowing of or conversion
to ABR Loans (other than Swingline Loans) (or, in each case, such later time as shall be acceptable to the Administrative Agent); provided,
however, that if the Borrower wishes to request LIBO Rate Loans having an Interest Period of other than one, two, three or six months
in duration as provided in the definition of “Interest Period,” (A) the applicable notice from the Borrower must be received
by the Administrative Agent not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion or
continuation (or such later time as is acceptable to the Administrative Agent), whereupon the Administrative Agent shall give prompt
notice to the appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to them and (B) not
later than 10:00 a.m. three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative
Agent shall notify the Borrower whether or not the requested Interest Period has been consented to by all the appropriate Lenders. Each
written notice (or confirmation of telephonic notice) with respect to a Borrowing by the Borrower pursuant to this Section 2.03
shall be delivered to the Administrative Agent in the form of a written Borrowing Request, appropriately completed and signed by a Responsible
Officer of the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with
Section 2.02:
(a)
the Class of such Borrowing;
(b)
the aggregate amount of the requested Borrowing;
(c)
the date of such Borrowing, which shall be a Business Day;
(d)
whether such Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing;
(e)
in the case of a LIBO Rate Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by
the definition of the term “Interest Period”; and
(f)
the location and number of the Borrower’s account or any other designated account(s) to which funds are to be disbursed (the
“Funding Account”).
If
no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested LIBO Rate Borrowing, then the Borrower shall be deemed to have selected an Interest Period of
one month’s duration. The Administrative Agent shall advise each Lender of the details thereof and of the amount of the Loan to
be made as part of the requested Borrowing (x) in the case of any ABR Borrowing, on the same Business Day of receipt of a Borrowing Request
in accordance with this Section or (y) in the case of any LIBO Rate Borrowing, no later than one Business Day following receipt of a
Borrowing Request in accordance with this Section.
Section
2.04. Swingline Loans.
(a)
Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to
time during the Availability Period, in an aggregate principal amount at any time outstanding not to exceed $10,000,000; provided
that (x) the Swingline Lender shall not be required to make any Swingline Loan to refinance an outstanding Swingline Loan and (y)
after giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall
not exceed the Total Revolving Credit Commitment. Each Swingline Loan shall be in a minimum principal amount of not less than $100,000
or such lesser amount as may be agreed by the Swingline Lender; provided that, notwithstanding the foregoing, a Swingline Loan
may be in an aggregate amount that is (x) equal to the entire unused balance of the aggregate Unused Revolving Credit Commitments or
(y) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Within the foregoing limits
and subject to the terms and conditions set forth herein, Swingline Loans may be borrowed, prepaid and reborrowed. To request a Swingline
Loan, the Borrower shall notify the Swingline Lender (with a copy to the Administrative Agent) of such request by telephone (confirmed
by facsimile), not later than 2:00 p.m. on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify
the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Swingline Lender shall make each Swingline
Loan available to the Borrower on the same Business Day by means of a credit to the Funding Account or otherwise in accordance with the
instructions of the Borrower (including, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided
in Section 2.05(e), by remittance to the applicable Issuing Bank).
(b)
The Swingline Lender may by written notice given to the Administrative Agent not later than 12:00 p.m. on any Business Day require the
Revolving Lenders to acquire participations on the second Business Day following receipt of such notice in all or a portion of the Swingline
Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly
upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such
Revolving Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of
the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.07 with respect to Revolving Loans made by such Revolving Lender (and Section 2.07 shall
apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this Section 2.04(b)), and the
Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative
Agent shall notify the Borrower of any participation in any Swingline Loan acquired pursuant to this Section 2.04(b), and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received
by the Swingline Lender from the Borrower (or other Person on behalf of the Borrower) in respect of any Swingline Loan after receipt
by the Swingline Lender of the proceeds of any sale of participations therein shall be promptly remitted by the Swingline Lender to the
Administrative Agent and any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent
to the Revolving Lenders that have made their payments pursuant to this Section 2.04(b) and to the Swingline Lender, as their
interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative
Agent, as the case may be, and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower
for any reason. The purchase of participations in any Swingline Loan pursuant to this Section 2.04(b) shall not relieve the Borrower
of any default in the payment thereof.
(c)
If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required
to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04 by the time specified in Section
2.04(b), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent),
on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment
is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate from time
to time in effect and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
A certificate of the Swingline Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (c) shall be conclusive absent manifest error.
Section
2.05. Letters of Credit.
(a) General.
(i)
Subject to the terms and conditions set forth herein, (ii) each Issuing Bank agrees, in each case in reliance upon the agreements of
the other Revolving Lenders set forth in this Section 2.05, (A) from time to time on any Business Day during the period from the
Closing Date to the fifth Business Day prior to the Initial Revolving Credit Maturity Date, upon the request of the Borrower, to issue
Letters of Credit issued on sight basis only for the account of the Borrower (or any Restricted Subsidiary; provided that the
Borrower will be the applicant) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.05(b),
and (B) to honor drafts under the Letters of Credit, and (iii) the Revolving Lenders severally agree to participate in the Letters
of Credit issued pursuant to Section 2.05(d). Notwithstanding anything to the contrary contained in this Agreement, no Issuing
Bank shall be required to issue Commercial Letters of Credit without its consent.
(ii)
No Issuing Bank shall have an obligation to issue any Letter of Credit if (x) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, (y) customary “know
your customer” requirements of such Issuing Bank with respect to the beneficiary of such Letter of Credit would be violated or
(z) any law applicable to such Issuing Bank or any directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over such Issuing Bank shall prohibit, or direct that such Issuing Bank refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular.
(b) Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit, the Borrower
shall deliver to the applicable Issuing Bank and the Administrative Agent, at least three Business Days in advance of the requested
date of issuance (or such shorter period as is acceptable to the applicable Issuing Bank or, in the case of any issuance to be made
on the Closing Date, one Business Day prior to the Closing Date), a request to issue a Letter of Credit, which shall specify that it
is being issued under this Agreement, in the form of Exhibit K attached hereto. To request an amendment, extension or renewal
of a Letter of Credit (other than any automatic extension of a Letter of Credit permitted under Section 2.05(c)), the Borrower shall
submit such a request to the applicable Issuing Bank selected by the Borrower (with a copy to the Administrative Agent) at least
three Business Days in advance of the requested date of amendment, extension or renewal (or such shorter period as is acceptable to
the applicable Issuing Bank), identifying the Letter of Credit to be amended, extended or renewed, and specifying the proposed date
(which shall be a Business Day) and other details of the amendment, extension or renewal. Requests for the issuance, amendment,
extension or renewal of any Letter of Credit must be accompanied by such other information as shall be necessary to issue, amend,
extend or renew such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of
credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. In the event of
any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement shall control. No Letter of Credit, letter of credit
application or other document entered into by the Borrower with the applicable Issuing Bank relating to any Letter of Credit shall
contain any representations or warranties, covenants or events of default not set forth in this Agreement (and to the extent
inconsistent herewith shall be rendered null and void or reformed automatically without further action by any Person to conform to
the terms of this Agreement), and all representations and warranties, covenants and events of default set forth therein shall
contain standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with those set forth in this
Agreement (and, to the extent inconsistent herewith, shall be deemed to automatically incorporate the applicable standards,
qualifications, thresholds and exceptions set forth herein without action by any Person). A Letter of Credit may be issued, amended,
extended or renewed only if (and on the issuance, amendment, extension or renewal of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance, amendment, extension or renewal, (A) the sum of (x) the
aggregate outstanding principal amount of all Revolving Loans and Swingline Loans plus (y) the aggregate amount of all LC
Exposures would not exceed the Total Revolving Credit Commitment and (B) the LC Exposure does not exceed the Letter of Credit
Sublimit (unless otherwise increased). In addition, no Issuing Bank shall be required to issue, amend, extend or renew any Letter of
Credit if the terms of such Letter of Credit extend beyond the Maturity Date applicable to the Revolving Credit Commitments of any
Class unless (1) the aggregate amount of the LC Exposure attributable to Letters of Credit expiring after such Maturity Date does
not exceed the aggregate amount of the Revolving Credit Commitments then in effect that are scheduled to remain in effect after such
Maturity Date, (2) all Revolving Lenders and such Issuing Bank shall have consented to such expiry date or (3) 100% of the
then-available face amount thereof is Cash collateralized or backstopped on or before the date that such Letter of Credit is issued,
amended, extended or renewed beyond such date. Promptly after the delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable Issuing Bank will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. Upon receipt of such Letter of
Credit or amendment, the Administrative Agent shall notify the Revolving Lenders, in writing, of such Letter of Credit or amendment,
and if so requested by a Revolving Lender, the Administrative Agent will provide such Revolving Lender with copies of such Letter of
Credit or amendment.
(c) Expiration
Date.
(i)
Except as set forth in Section 2.05(b) (above), no Standby Letter of Credit shall expire later than the earlier of (A) the date
that is one year after the date of the issuance of such Standby Letter of Credit (or such later date to which the relevant Issuing Bank
may agree) and (B) the Latest Revolving Loan Maturity Date; provided that, any Standby Letter of Credit may provide for the automatic
extension thereof for any number of additional periods each of up to one year in duration (none of which, in any event, shall extend
beyond the date referred to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized
or backstopped on or before the date that such Letter of Credit is extended beyond the date referred to in clause (B) above pursuant
to arrangements reasonably satisfactory to the relevant Issuing Bank).
(ii)
Except as set forth in Section 2.05(b) (above), no Commercial Letter of Credit shall expire later than the earlier to occur of
(A) one year after the issuance thereof (or such later date to which the relevant Issuing Bank may agree) and (B) the Latest Revolving
Loan Maturity Date; provided that any Commercial Letter of Credit may provide for the automatic extension thereof for any number
of additional periods each of up to one year in duration (none of which, in any event, shall extend beyond the date referred to in the
preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized or backstopped on or before
the date that such Letter of Credit is extended beyond the date referred to in clause (B) above pursuant to arrangements reasonably
satisfactory to the relevant Issuing Bank).
(d)
Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the applicable Issuing Bank or the Revolving Lenders, the applicable Issuing Bank hereby grants
to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit
equal to such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.
In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement
made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or
of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence
and continuance of a Default or Event of Default or reduction or termination of the Revolving Credit Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement.
(i)
If the applicable Issuing Bank makes any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement
by paying to the Administrative Agent (or, in the case of Commercial Letters of Credit, the applicable Issuing Bank) an amount equal
to such LC Disbursement not later than 1:00 p.m. on the second Business Day immediately following the date on which the Borrower receives
notice under paragraph (g) of this Section of such LC Disbursement (or, if such notice is received less than two hours prior to
the deadline for requesting ABR Borrowings pursuant to Section 2.03, on the third Business Day immediately following the date
on which the Borrower receives such notice); provided that the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 or 2.04 that such payment be financed with an ABR Revolving Loan or a Swingline
Loan and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting
Revolving Loan Borrowing or Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify
each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Revolving
Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.07 with
respect to Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations
of the Revolving Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by
it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders
have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as
their interests may appear.
(ii)
If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable Issuing Bank any amount
required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.05(e) by the time specified
therein, such Issuing Bank shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately
available to such Issuing Bank at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect
and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A certificate
of the applicable Issuing Bank submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (ii) shall be conclusive absent manifest error.
(f)
Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this
Section shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or
this Agreement, or any term or provision therein or herein, (ii) any draft or other document presented under any Letter of Credit proving
to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment
by the applicable Issuing Bank under any Letter of Credit against presentation of a draft or other document that does not comply with
the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing,
that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Revolving Lenders nor any Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any
Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation
of technical terms or any consequence arising from causes beyond the control of such Issuing Bank; provided that the foregoing
shall not be construed to excuse such Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered
by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence,
bad faith or willful misconduct on the part of applicable Issuing Bank (as finally determined by a court of competent jurisdiction),
such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g)
Disbursement Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by facsimile) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement
thereunder; provided that no failure to give or delay in giving such notice shall relieve the Borrower of its obligation to reimburse
such Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
(h)
Interim Interest. If any Issuing Bank makes any LC Disbursement, then, unless the Borrower reimburses such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement (or the date on which such LC
Disbursement is reimbursed with the proceeds of Loans, as applicable), at the rate per annum then applicable to Revolving Loans that
are ABR Loans; provided that if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e)
of this Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the
applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph
(e) of this Section to reimburse such Issuing Bank shall be for the account of such Revolving Lender to the extent of such payment.
(i) Replacement
of an Issuing Bank or Addition of New Issuing Banks.
Any
Issuing Bank may be replaced with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), the Borrower
and the successor Issuing Bank at any time by written agreement among the Borrower, the Administrative Agent and the successor Issuing
Bank. The Administrative Agent shall notify the Revolving Lenders of any such replacement of an Issuing Bank. At the time any such replacement
becomes effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b)(ii). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank,
or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of any Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under
this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional
Letters of Credit after such replacement. The Borrower may, at any time and from time to time with the consent of the Administrative
Agent (which consent shall not be unreasonably withheld or delayed) and the relevant Revolving Lender, designate one or more additional
Revolving Lenders to act as an issuing bank under the terms of this Agreement. Any Revolving Lender designated as an issuing bank pursuant
to this paragraph (i) shall be deemed to be an “Issuing Bank” (in addition to being a Revolving Lender) in respect
of Letters of Credit issued or to be issued by such Revolving Lender, and, with respect to such Letters of Credit, such term shall thereafter
apply to the other Issuing Bank and such Revolving Lender.
(j) Cash
Collateralization.
(i)
If any Event of Default exists and the Revolving Loans have been declared due and payable in accordance with Article 7 hereof,
then on the Business Day that the Borrower receives notice from the Administrative Agent at the direction of the Required Lenders demanding
the deposit of Cash collateral pursuant to this paragraph (j), upon such demand, the Borrower shall deposit, in an interest-bearing
account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders (the “LC
Collateral Account”), an amount in Cash equal to 100% of the LC Exposure as of such date (minus the amount then on deposit
in the LC Collateral Account); provided that the obligation to deposit such Cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event
of Default with respect to the Borrower described in Section 7.01(f) or (g).
(ii)
Any such deposit under clause (i) above shall be held by the Administrative Agent as collateral for the payment and performance
of the Secured Obligations in accordance with the provisions of this paragraph (j). The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account, and the Borrower hereby grants the Administrative
Agent, for the benefit of the Secured Parties, a First Priority security interest in the LC Collateral Account. Interest or profits,
if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the applicable Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of the Required Revolving Lenders) be applied to satisfy other Secured Obligations.
If the Borrower is required to provide an amount of Cash collateral hereunder as a result of the occurrence of an Event of Default, such
amount (together with all interest and other earnings with respect thereto, to the extent not applied as aforesaid) shall be returned
to the Borrower promptly but in no event later than three Business Days after such Event of Default has been cured or waived.
(k)
Existing Letters of Credit. Existing Letters of Credit shall be deemed Letters of Credit for all purposes under this Agreement,
without need for any further action by the Borrower or any other Person.
Section
2.06. [Reserved].
Section
2.07. Funding of Borrowings.
(a)
Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 1:00 p.m. to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an
amount equal to such Lender’s respective Applicable Percentage; provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to the Funding Account or as otherwise directed by the Borrower; provided that Revolving Loans made to
finance the reimbursement of any LC Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent
to the applicable Issuing Bank.
(b)
Unless the Administrative Agent has received notice from any Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In such event, if any Lender has not in fact made its share of
the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent,
at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable
to the Loans comprising such Borrowing at such time. If such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing and the Borrower’s obligation to repay the Administrative Agent
such corresponding amount pursuant to this Section 2.07(b) shall cease. If the Borrower pays such amount to the Administrative
Agent, the amount so paid shall constitute a repayment of such Borrowing by such amount. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower or any
other Loan Party may have against any Lender as a result of any default by such Lender hereunder.
Section
2.08. Type; Interest Elections.
(a)
Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a LIBO Rate Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert any Borrowing
to a Borrowing of a different Type or to continue such Borrowing and, in the case of a LIBO Rate Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the Lenders based upon their Applicable Percentages and the
Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Loans, which may
not be converted or continued.
(b)
To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election either in writing (by
hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) or by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting
from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)
to the Administrative Agent of a written Interest Election Request signed by a Responsible Officer of the Borrower.
(c)
Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(i)
the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii)
the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii)
whether the resulting Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing; and
(iv)
if the resulting Borrowing is a LIBO Rate Borrowing, the Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term “Interest Period”.
If
any such Interest Election Request requests a LIBO Rate Borrowing but does not specify an Interest Period, then the Borrower shall
be deemed to have selected an Interest Period of one month’s duration.
(d)
Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each applicable Lender of the details
thereof and of such Lender’s portion of each resulting Borrowing.
(e)
If the Borrower fails to deliver a timely Interest Election Request with respect to a LIBO Rate Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing shall be converted at the end of
such Interest Period to a LIBO Rate Borrowing with an Interest Period of one month. Notwithstanding any contrary provision hereof, if
an Event of Default exists and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long
as such Event of Default exists (i) no outstanding Borrowing may be converted to or continued as a LIBO Rate Borrowing and (ii) unless
repaid, each LIBO Rate Borrowing shall be converted to an ABR Borrowing at the end of the then-current Interest Period applicable thereto.
Section
2.09. Termination and Reduction of Commitments.
(a)
Unless previously terminated, (i) the Initial Term Loan Commitments on the Closing Date shall automatically terminate upon the
making of the Initial Term Loans on the Closing Date, (ii) the Initial Term Loan Commitments on the Amendment No. 1 Effective Date
shall automatically terminate upon the making of the Amendment No. 1 Incremental Term Loans on the Amendment No. 1 Effective Date,
(iii) the Amendment No. 2 Term Loan Commitments on the Amendment No. 2 Effective Date shall automatically terminate upon the making
of the Amendment No. 2 Term Loans on the Amendment No. 2 Effective Date, (iv) the Initial Revolving Credit Commitments shall
automatically terminate on the Initial Revolving Credit Maturity Date, (v) the Amendment No. 3 Incremental Term Loan Commitments on
the Amendment No. 3 Effective Date shall automatically terminate upon the making of the Amendment No. 3 Incremental Term Loans on
the Amendment No. 3 Effective Date, (vi) the Additional Term Loan Commitments of any Class shall automatically terminate upon the
making of the Additional Term Loans of such Class and, if any such Additional Term Loan Commitment is not drawn on the date that
such Additional Term Loan Commitment is required to be drawn pursuant to the applicable Refinancing Amendment, Extension Amendment
or Incremental Facility Amendment, the undrawn amount thereof shall terminate unless otherwise provided in the applicable
Refinancing Amendment, Extension Amendment or Incremental Facility Amendment and (vii) the Additional Revolving Credit Commitments
of any Class shall automatically terminate on the Maturity Date specified therefor in the applicable Refinancing Amendment,
Extension Amendment or Incremental Facility Amendment.
(b)
Upon delivering the notice required by Section 2.09(c), the Borrower may at any time terminate or from time to time reduce
the Revolving Credit Commitments of any Class; provided that (i) each reduction of the Revolving Credit Commitments of any
Class shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Credit Commitments of any Class if, after giving effect to such termination or reduction, as
applicable, and any concurrent prepayment of Revolving Loans and Swingline Loans, the aggregate amount of the Revolving Credit
Exposure attributable to the Revolving Credit Commitments of such Class would exceed the aggregate amount of the Revolving Credit
Commitments of such Class; provided that, after the establishment of any Additional Revolving Credit Commitment, any such
termination or reduction of the Revolving Credit Commitments of any Class shall be subject to the provisions set forth in Section
2.22, 2.23 and/or 9.02, as applicable.
(c)
The Borrower shall notify the Administrative Agent of any election to terminate or reduce any Class or Classes of Revolving Credit Commitments
under paragraph (b) of this Section (as selected by the Borrower) not later than 11:00 a.m. on or prior to the effective date
of such termination or reduction (or at least, not later than 11:00 a.m., three Business Days prior to the effective date of such termination
or reduction in the case of a termination or reduction involving a prepayment of LIBO Rate Borrowings (or such later date to which the
Administrative Agent may agree)), specifying such election and the effective date thereof. Promptly following receipt of any such notice,
the Administrative Agent shall advise the Revolving Lenders of each applicable Class or Classes of the contents thereof. Each notice
delivered by the Borrower pursuant to this Section shall be irrevocable; provided that any such notice may state that such notice
is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of
any Revolving Credit Commitment pursuant to this Section 2.09 shall be permanent. Upon any reduction of any Revolving Credit Commitment,
the Revolving Credit Commitment of each Revolving Lender of the relevant Class shall be reduced by such Revolving Lender’s Applicable
Percentage of such reduction amount.
Section
2.10. Repayment of Loans; Evidence of Debt.
(a)
The Borrower hereby unconditionally promises to repay the outstanding principal amount of the Amendment No. 2 Term Loans (including Amendment
No. 3 Incremental Term Loans) to the Administrative Agent for the account of each applicable Term Lender (i) commencing on December 31,
2019, on the last Business Day of each March, June, September and December prior to the Initial Term Loan Maturity Date (each such date
being referred to as a “Loan Installment Date”), in each case in an amount equal to $2,052,651.52 (as such payments
may be reduced from time to time as a result of the application of prepayments in accordance with Section 2.11 and purchases or
assignments in accordance with Section 9.05(g) or increased as a result of any increase in the amount of such Amendment No. 2
Term Loans pursuant to Section 2.22(a)) and (ii) on the Initial Term Loan Maturity Date, in an amount equal to the remainder of
the principal amount of the Amendment No. 2 Term Loans outstanding on such date, together in each case with accrued and unpaid interest
on the principal amount to be paid to but excluding the date of such payment. The Borrower shall repay the Additional Term Loans of any
Class in such scheduled amortization installments and on such date or dates as shall be specified therefor in the applicable Refinancing
Amendment, Extension Amendment or Incremental Facility Amendment (as such payments may be reduced from time to time as a result of the
application of prepayments in accordance with Section 2.11 and purchases or assignments in accordance with Section 9.05(g)
or increased as a result of any increase in the amount of such Additional Term Loans pursuant to Section 2.22(a)).
(b)
The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Revolving Lender the
then unpaid principal amount of each Revolving Loan on the Initial Revolving Credit Maturity Date and (ii) to the Swingline Lender
the then unpaid principal amount of each Swingline Loan on the earlier of (x) the 10th Business Day following the incurrence of such
Swingline Loan and (y) the Initial Revolving Credit Maturity Date. On the Initial Revolving Credit Maturity Date, the Borrower shall
(A) cancel and return all outstanding Letters of Credit (or alternatively, with respect to any outstanding Letter of Credit, furnish
to the Administrative Agent a Cash deposit (or if reasonably acceptable to the relevant Issuing Bank, a backup standby letter of
credit) equal to 100% of the LC Exposure (minus the amount then on deposit in the LC Collateral Account) as of such date) and
(B) make payment in full in Cash of all accrued and unpaid fees and all reimbursable expenses and other Obligations with respect to
the Revolving Facility then due, together with accrued and unpaid interest (if any) thereon.
(c)
Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(d)
The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become
due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders or the Issuing Bank and each Lender’s share or the Issuing Bank’s share thereof.
(e)
The entries made in the accounts maintained pursuant to paragraphs (c) or (d) of this Section shall be prima facie evidence
of the existence and amounts of the obligations recorded therein (absent manifest error); provided that the failure of any Lender
or the Administrative Agent to maintain such accounts or any manifest error therein shall not in any manner affect the obligation of
the Borrower to repay the Loans in accordance with the terms of this Agreement; provided, further, that in the event of any inconsistency
between the accounts maintained by the Administrative Agent pursuant to paragraph (d) of this Section and any Lender’s records,
the accounts of the Administrative Agent shall govern.
(f)
Any Lender may request that Loans made by it be evidenced by a Promissory Note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a Promissory Note payable to such Lender and its registered permitted assigns; it being understood and agreed
that such Lender (and/or its applicable permitted assign) shall be required to return such Promissory Note to the Borrower in accordance
with Section 9.05(b)(iii) and upon the occurrence of the Termination Date (or as promptly thereafter as practicable). If any Lender
loses the original copy of its Promissory Note, it shall execute an affidavit of loss containing a customary indemnification provision
that is reasonably satisfactory to the Borrower. The obligation of each Lender to execute an affidavit of loss containing a customary
indemnification provision that is reasonably satisfactory to the Borrower shall survive the Termination Date.
Section
2.11. Prepayment of Loans.
(a) Optional
Prepayments.
(i)
Upon prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from
time to time to prepay any Borrowing of Term Loans of one or more Classes (such Class or Classes to be selected by the Borrower in its
sole discretion) in whole or in part without premium or penalty (but subject to (A) in the case of Amendment No. 2 Term Loans only, Section
2.12(f) and (B) if applicable, Section 2.16). Each such prepayment shall be paid to the Lenders in accordance with their respective
Applicable Percentages of the relevant Class.
(ii)
Upon prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and
from time to time to prepay any Borrowing of Revolving Loans of any Class or any Borrowing of Swingline Loans, including any
Additional Revolving Loans, in whole or in part without premium or penalty (but subject to Section 2.16). Prepayments made
pursuant to this Section 2.11(a)(ii), first, shall be applied ratably to the Swingline Loans and to outstanding LC
Disbursements and second, shall be applied ratably to the outstanding Revolving Loans, including any Additional Revolving Loans of
the relevant Class.
(iii)
The Borrower shall notify the Administrative Agent (and, in the case of a prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed in writing) of any prepayment under this Section 2.11(a) (A) in the case of a prepayment of a LIBO Rate Borrowing,
not later than 1:00 p.m. three Business Days before the date of prepayment, (B) in the case of a prepayment of an ABR Borrowing, not
later than 1:00 p.m. on the date of prepayment or (C) in the case of a prepayment of a Swingline Loan, not later than 1:00 p.m. on the
date of prepayment (or, in each case, such later date or time to which the Administrative Agent may reasonably agree). Each such notice
shall be irrevocable (except as set forth in the proviso to this sentence) and shall specify the prepayment date and the principal amount
of each Borrowing or portion thereof to be prepaid; provided that a notice of prepayment delivered by the Borrower may state that
such notice is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Promptly following
receipt of any such notice relating to any Borrowing, the Administrative Agent shall advise the relevant Lenders of the contents thereof.
Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type and
Class as provided in Section 2.02(c) or such lesser amount that is then outstanding with respect to such Borrowing being repaid.
Each prepayment of Term Loans shall be applied to the Class of Term Loans as determined by the Borrower and specified in the applicable
prepayment notice, and each prepayment of Term Loans of such Class made pursuant to this Section 2.11(a) shall be applied against
the remaining scheduled installments of principal due in respect of the Term Loans of such Class in the manner specified by the Borrower
or, if not so specified on or prior to the date of such optional prepayment, in direct order of maturity.
(b) Mandatory
Prepayments.
(i)
No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower
are delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on or about June 30, 2019, the Borrower shall
prepay Subject Loans in accordance with clause (vi) below in an aggregate principal amount (the “ECF Prepayment Amount”)
equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess
Cash Flow Period then most recently ended (this clause (A), the “Base ECF Prepayment Amount”), minus (B) at
the option of the Borrower, to the extent occurring during such Excess Cash Flow Period (or occurring after such Excess Cash Flow Period
and prior to the date of the applicable Excess Cash Flow payment), and without duplication (including duplication of any amounts deducted
in any prior Excess Cash Flow Period), the following (collectively, the “ECF Deductions”):
(1)
the aggregate principal amount of any Initial Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid
pursuant to Section 2.11(a);
(2)
(x) the aggregate principal amount of any Incremental Equivalent Debt, Replacement Debt and/or any other Indebtedness permitted to
be incurred pursuant to Section 6.01 to the extent secured by Liens on the Collateral that are pari passu with the
Liens on the Collateral securing the Credit Facilities, voluntarily prepaid, repurchased, redeemed or otherwise retired and (y) the
aggregate principal amount of any loans under any Second Lien Facility (including any Incremental Loans and Additional Loans (as
defined in the Second Lien Credit Agreement or any other document governing any Second Lien Facility)) prepaid pursuant to Section
2.11(a) of the Second Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien
Facility) (to the extent the relevant voluntary prepayments are permitted by the terms of this Agreement) and the aggregate
principal amount of Incremental Equivalent Debt and/or Replacement Debt (as defined in the Second Lien Credit Agreement or any other
document governing any Second Lien Facility) secured on a pari passu basis with the Second Lien Facility voluntarily prepaid,
repurchased, redeemed or otherwise retired (or contractually committed to be prepaid, repurchased, redeemed or otherwise
retired);
(3)
(1) the amount of any reduction in the outstanding amount of any Initial Term Loans, Additional Term Loans, Incremental Equivalent Debt,
Replacement Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 6.01 to the extent secured by Liens
on the Collateral that are pari passu with the Liens on the Collateral securing the Credit Facilities, resulting from any purchase
or assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) (with
respect to Initial Term Loans and/or Additional Term Loans) and any equivalent provisions with respect to any Incremental Equivalent
Debt, Replacement Debt and/or such other Indebtedness and/or (2) to the extent permitted by the terms of this Agreement, the amount of
any reduction in the outstanding amount of any loans under the Second Lien Facility and/or any “Incremental Equivalent Debt”,
“Replacement Debt” and/or other Indebtedness permitted to be incurred thereunder to the extent secured by Liens on the Collateral
that are pari passu with the Liens on the Collateral securing the Second Lien Facility (including any reduction resulting from
any purchase or assignment made in accordance with Section 9.05(g) of the Second Lien Credit Agreement (or equivalent provision
under any other document governing any Second Lien Facility) (including in connection with any Dutch Auction (as defined in the Second
Lien Credit Agreement or any other document governing any Second Lien Facility)) and any equivalent provisions with respect to any such
“Incremental Equivalent Debt”, “Replacement Debt” and/or such other Indebtedness;
(4)
all Cash payments in respect of Capital Expenditures as would be reported in the Borrower’s consolidated statement of cash flows
and all Cash payments made to acquire IP Rights;
(5)
Cash payments by the Borrower and its Restricted Subsidiaries made (or committed) in respect of long-term liabilities (including for
purposes of clarity, the current portion of such long-term liabilities) of the Borrower and its Restricted Subsidiaries other than Indebtedness,
except to the extent such Cash payments were deducted in the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA for
such period;
(6)
Cash payments in respect of any Investment (including acquisitions) permitted by Section 6.06 or otherwise consented to by the
Required Lenders (other than Investments (x) in Cash or Cash Equivalents or (y) in the Borrower or any Loan Party) and/or any Restricted
Payment permitted by Section 6.04(a) or otherwise consented to by the Required Lenders;
(7)
the aggregate consideration (i) required to be paid in Cash by the Borrower or its Restricted Subsidiaries pursuant to binding contracts
entered into prior to or during such period relating to Capital Expenditures, acquisitions or other Investments permitted by Section
6.06 or otherwise consented to by the Required Lenders and/or Restricted Payments described in clause (6) above and/or (ii)
otherwise committed or budgeted to be made in connection with Capital Expenditures, acquisitions or Investments and/or Restricted Payments
described in clause (6) above (clauses (i) and (ii) of this clause (7), the “Scheduled Consideration”) (other
than Investments in (x) Cash and Cash Equivalents or (y) the Borrower or any Loan Party) to be consummated or made during the period
of four consecutive Fiscal Quarters of the Borrower following the end of such period; provided that to the extent the aggregate
amount actually utilized to finance such Capital Expenditures, acquisitions, Investments or Restricted Payments during such subsequent
period of four consecutive Fiscal Quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added
to the calculation of Excess Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters;
(8)
Cash expenditures in respect of any Hedge Agreement during such period to the extent (A) not otherwise deducted in the calculation of
Consolidated Net Income or Consolidated Adjusted EBITDA and (B) not financed with long-term funded Indebtedness (other than revolving
Indebtedness); and
(9)
the aggregate amount of expenditures actually made by the Borrower and/or any Restricted Subsidiary in Cash (including any expenditure
for the payment of fees or other Charges (or any amortization thereof for such period) in connection with any Disposition, incurrence
or repayment of Indebtedness, issuance of Capital Stock, refinancing transaction, amendment or modification of any debt instrument, including
this Agreement, and including, in each case, any such transaction consummated prior to, on or after the Closing Date, and Charges incurred
in connection therewith, whether or not such transaction was successful), in each case to the extent that such expenditures were (A)
not expensed and (B) not financed with long-term funded Indebtedness (other than revolving Indebtedness);
in
the case of each of clauses (1)-(9), (I) excluding any such payments, prepayments and expenditures made during such Fiscal
Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year, (II) in the
case of any prepayment of Revolving Loans and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction in
the relevant commitment, (III) to the extent that such payments, prepayments and expenditures were not financed with the proceeds of
other long-term funded Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries and (IV) in
each case under clause (3) above, based upon the actual amount of cash paid in connection with any relevant purchase or assignment; provided
that no prepayment under this Section 2.11(b)(i) shall be required unless the principal amount of Subject Loans required to
be prepaid exceeds $2,500,000 (and, in such case, only such amount in excess of $2,500,000 shall be required to be prepaid); provided, further, that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is also
required to prepay, repurchase or offer to prepay or repurchase any Indebtedness that is secured on a pari passu basis
(without regard to the control of remedies) with any Secured Obligation pursuant to the terms of the documentation governing such
Indebtedness (such Indebtedness required to be so prepaid or repurchased or offered to be so prepaid or repurchased, “Other
Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the
ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Subject
Loans and the relevant Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with
original issue discount) at such time) to the prepayment of the Subject Loans and to the prepayment of the relevant Other Applicable
Indebtedness, and the amount of prepayment of the Subject Loans that would have otherwise been required pursuant to this Section
2.11(b)(i) shall be reduced accordingly; it being understood that (1) the portion of such ECF Prepayment Amount allocated to the
Other Applicable Indebtedness shall not exceed the portion of such ECF Prepayment Amount required to be allocated to the Other
Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be
allocated to the Subject Loans in accordance with the terms hereof and (2) to the extent the holders of the Other Applicable
Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within
ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms
hereof.
(ii)
No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation
Proceeds, in each case, in excess of (x) $10,000,000 in any single transaction or series of related transactions and (y) $15,000,000
in any Fiscal Year, the Borrower shall apply an amount equal to the Required Net Proceeds Percentage of the Net Proceeds or Net Insurance/Condemnation
Proceeds received with respect thereto in excess of such thresholds (collectively, the “Subject Proceeds”) to prepay
the outstanding principal amount of Subject Loans in accordance with clause (vi) below; provided that (A) if prior to the
date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject
Proceeds in assets used or useful in the business of the Borrower or any of its subsidiaries (including permitted acquisitions or other
Investments, but excluding Cash or Cash Equivalents), then the Borrower shall not be required to make a mandatory prepayment under this
clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following
receipt thereof, or (y) the Borrower or any of its subsidiaries has contractually committed to so reinvest the Subject Proceeds during
such 18-month period and the Subject Proceeds are so reinvested within six months after the expiration of such 18-month period; provided,
however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall
promptly prepay the outstanding principal amount of Subject Loans with the Subject Proceeds not so reinvested as set forth above (without
regard to the immediately preceding proviso) and (B) if, at the time that any such prepayment would be required hereunder, the Borrower
or any of its Restricted Subsidiaries is required to repay or repurchase (or offer to repay or repurchase) any Other Applicable Indebtedness,
then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase
or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject
Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount)
at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall
not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof
(and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof),
and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii)
shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness
prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection)
be applied to prepay the Subject Loans in accordance with the terms hereof.
(iii)
In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness
by the Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, except
to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of the Amendment
No. 2 Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Amendment No. 2 Term Loans in accordance
with the requirements of Section 9.02(c)), the Borrower shall, substantially simultaneously with (and in any event not later than
two Business Days thereafter) the receipt of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount
equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Amendment No. 2 Term Loans in accordance
with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the
contrary, (A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections
2.11(b)(i), (ii) or (iii) above to the extent that the relevant Excess Cash Flow is generated by any Foreign Subsidiary, the
relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary, the relevant Net Insurance/Condemnation Proceeds are received
by any Foreign Subsidiary or the relevant Indebtedness is incurred by any Foreign Subsidiary (except to the extent the relevant Indebtedness
constitutes Refinancing Indebtedness incurred by any Foreign Subsidiary to refinance all or a portion of the Initial Term Loans or Additional
Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans
in accordance with the requirements of Section 9.02(c)), as the case may be, for so long as the Borrower determines in good faith
that the repatriation to the Borrower of any such amount would be prohibited or delayed (beyond the time period during which such prepayment
is otherwise required to be made pursuant to Section 2.11(b)(i), (ii) or (iii) above) under any Requirement of Law or conflict
with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a
material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such
Foreign Subsidiary (including on account of financial assistance, corporate benefit, thin capitalization, capital maintenance or similar
considerations); it being understood and agreed that (i) solely within 365 days following the end of the applicable Excess Cash Flow Period,
the event giving rise to the relevant Subject Proceeds or the receipt of proceeds from the respective incurrence of Indebtedness, the
Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation and (ii)
if the repatriation of the relevant affected Excess Cash Flow, Subject Proceeds or Indebtedness proceeds, as the case may be, is permitted
under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director,
or result in, or be reasonably expected to result in, a material risk of personal or criminal liability for the Persons described above,
in either case, within 365 days following the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject
Proceeds or the receipt of Net Proceeds in respect of any such Indebtedness, the relevant Foreign Subsidiary will promptly repatriate
the relevant Excess Cash Flow, Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, and the repatriated Excess
Cash Flow, Subject Proceeds or Net Proceeds in respect of Indebtedness, as the case may be, will be promptly (and in any event not later
than two Business Days after such repatriation) applied (net of additional Taxes payable or reserved against such Excess Cash Flow, such
Subject Proceeds or such Net Proceeds in respect of Indebtedness, as a result thereof, in each case by any Loan Party, such Loan Party’s
subsidiaries, and any Affiliates or indirect or direct equity owners of the foregoing) to the repayment of the Initial Term Loans and
Additional Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections 2.11(b)(i)
or (ii) to the extent that the relevant Excess Cash Flow is generated by any Joint Venture or the relevant Subject Proceeds or
Net Proceeds in respect of Indebtedness are received by any Joint Venture for so long as the Borrower determines in good faith that the
distribution to the Borrower of such Excess Cash Flow, Subject Proceeds or Net Proceeds in respect of Indebtedness would be prohibited
under the Organizational Documents (or any relevant shareholders’ or similar agreement) governing such Joint Venture; it being understood
that if the relevant prohibition ceases to exist within the 365-day period following the end of the applicable Excess Cash Flow Period,
the event giving rise to the relevant Subject Proceeds or the receipt of Net Proceeds in respect of any such Indebtedness, the relevant
Joint Venture will promptly distribute the relevant Excess Cash Flow, the relevant Subject Proceeds or the relevant Net Proceeds in respect
of Indebtedness, as the case may be, and the distributed Excess Cash Flow, Subject Proceeds or Net Proceeds in respect of Indebtedness,
as the case may be, will be promptly (and in any event not later than ten Business Days after such distribution) applied (net of additional
Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.11(b) to the
extent required herein (without regard to this clause (iv)) and (C) if the Borrower determines in good faith that the repatriation
to the Borrower of any amounts required to mandatorily prepay the Initial Term Loans and Additional Term Loans pursuant to Sections
2.11(b)(i), (ii) or (iii) above would result in material and adverse tax consequences, taking into account any foreign tax
credit or benefit actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as determined
by the Borrower in good faith, the amount the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i), (ii)
or (iii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation
of any Subject Proceeds, Excess Cash Flow or the Net Proceeds in respect of any such Indebtedness from the relevant Foreign Subsidiary
would no longer have a material and adverse tax consequence within the 365-day period following the event giving rise to the relevant
Subject Proceeds, the receipt of Net Proceeds in respect of any such Indebtedness or the end of the applicable Excess Cash Flow Period,
as the case may be, an amount equal to the Subject Proceeds, Excess Cash Flow or the Net Proceeds in respect of any such Indebtedness,
as applicable, not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the Initial Term
Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise required above (without regard to this clause (iv));
(v) Each Lender may elect, by notice to the Administrative Agent at
or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Initial Term Loans and Additional
Term Loans required to be made by the Borrower pursuant to this Section 2.11(b), to decline all (but not a portion) of its Applicable
Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), which Declined Proceeds may be retained
by the Borrower and used for any legal purpose permitted (or not prohibited) hereunder, including to increase the Available Amount; provided, further, that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the
extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance
all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred
to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Loans incurred to refinance all or a
portion of the Term Loans in accordance with the requirements of Section 9.02(c) and/or (z) Incremental Equivalent Debt incurred
to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.01(z). If any Lender fails to
deliver a notice to the Administrative Agent of its election to decline receipt of its Applicable Percentage of any mandatory prepayment
within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s
Applicable Percentage of the total amount of such mandatory prepayment of Initial Term Loans and Additional Term Loans.
(vi) Except
as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of
Initial Term Loans and Additional Term Loans pursuant to this Section 2.11(b) shall be applied ratably to each Class of Term
Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any
prepayment constituting (w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of the
Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p), (x) Incremental Loans incurred to refinance all or a
portion of the Term Loans pursuant to Section 2.22, (y) Replacement Loans incurred to refinance all or a portion of the Term
Loans in accordance with the requirements of Section 9.02(c) and/or (z) Incremental Equivalent Debt incurred to refinance all
or a portion of the Term Loans in accordance with the requirements of Section 6.01(z) shall, in each case be applied solely
to each applicable Class of refinanced or replaced Term Loans), (B) with respect to each Class of Initial Term Loans and Additional
Term Loans, all accepted prepayments under Section 2.11(b)(i), (ii) or (iii) shall be applied against the remaining
scheduled installments of principal due in respect of the Initial Term Loans and Additional Term Loans as directed by the Borrower
(or, in the absence of direction from the Borrower, to the remaining scheduled amortization payments in respect of the Initial Term
Loans and Additional Term Loans in direct order of maturity), and (C) each such prepayment shall be paid to the Term Lenders in
accordance with their respective Applicable Percentages. The amount of such mandatory prepayments shall be applied on a pro rata
basis to the then outstanding Initial Term Loans and Additional Term Loans being prepaid irrespective of whether such outstanding
Loans are ABR Loans or LIBO Rate Loans; provided that the amount thereof shall be applied first to ABR Loans to the full
extent thereof before application to the LIBO Rate Loans in a manner that minimizes the amount of any payments required to be made
by the Borrower pursuant to Section 2.16. Any prepayment of Amendment No. 2 Term Loans made on or prior to the date that is
six months after the Amendment No. 2 Effective Date pursuant to Section 2.11(b)(iii) as part of a Repricing Transaction shall
be accompanied by the fee set forth in Section 2.12(f).
(vii)
In the event that the Aggregate Revolving Credit Exposure exceeds the Total Revolving Credit Commitment then in effect, the Borrower
shall, within five Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Loans or Swingline Loans and/or
reduce LC Exposure in an aggregate amount sufficient to reduce such Aggregate Revolving Credit Exposure as of the date of such payment
to an amount not to exceed the Total Revolving Credit Commitment then in effect by taking any of the following actions as it shall determine
at its sole discretion: (A) prepayment of Revolving Loans or Swingline Loans or (B) with respect to the excess LC Exposure, deposit of
Cash in the LC Collateral Account or “backstopping” or replacement of the relevant Letters of Credit, in each case, in an
amount equal to 100% of such excess LC Exposure (minus the amount then on deposit in the LC Collateral Account).
(viii)
At the time of each prepayment required under Section 2.11(b)(i), (ii) or (iii), the Borrower shall deliver to the Administrative
Agent a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the amount
of such prepayment. Each such certificate shall specify the Borrowings being prepaid and the principal amount of each Borrowing (or portion
thereof) to be prepaid. Prepayments shall be accompanied by accrued interest as required by Section 2.13. All prepayments of Borrowings
under this Section 2.11(b) shall be subject to Section 2.16 and, except as set forth in the last sentence of clause (vi)
above, shall otherwise be without premium or penalty.
Section
2.12. Fees.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender of any Class (other than any Defaulting
Lender) a commitment fee, which shall accrue at a rate equal to the Commitment Fee Rate per annum applicable to the Revolving Credit
Commitment of such Class on the average daily amount of the Unused Revolving Credit Commitment of such Class of such Revolving
Lender during the period from and including the Closing Date to the date on which such Lender’s Revolving Credit Commitments
of such Class terminate. Accrued commitment fees shall be payable in arrears on the last Business Day of each March, June, September
and December for the quarterly period then ended (commencing on September 30, 2017, but in the case of the payment made on September
30, 2017, for the period from the Closing Date to such date) and on the date on which the Revolving Credit Commitments of the
applicable Class terminate. For purposes of calculating the commitment fees only, no portion of the Revolving Credit Commitments
shall be deemed utilized as a result of outstanding Swingline Loans.
(b)
The Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender of any Class (other than any Defaulting
Lender) a participation fee with respect to its participation in each Letter of Credit, which shall accrue at the Applicable Rate used
to determine the interest rate applicable to LIBO Rate Revolving Loans on the daily face amount of such Lender’s LC Exposure attributable
to its Revolving Credit Commitment of such Class in respect of such Letter of Credit (excluding any portion thereof attributable to unreimbursed
LC Disbursements), during the period from and including the Closing Date to the later of the date on which such Revolving Lender’s
Revolving Credit Commitment of such Class terminates and the date on which such Revolving Lender ceases to have any LC Exposure related
to its Revolving Credit Commitment of such Class in respect of such Letter of Credit (including any such Letter of Credit Exposure that
may exist following the termination of such Revolving Credit Commitments) and (ii) to each Issuing Bank, for its own account, a fronting
fee, in respect of each Letter of Credit issued by such Issuing Bank for the period from the date of issuance of such Letter of Credit
to the expiration date of such Letter of Credit (or if terminated on an earlier date, to the termination date of such Letter of Credit),
computed at a rate equal to the rate agreed by such Issuing Bank and the Borrower (but in any event not to exceed 0.125% per annum) of
the daily face amount of such Letter of Credit, as well as such Issuing Bank’s reasonable and customary fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting
fees accrued to but excluding the last Business Day of each March, June, September and December shall be payable in arrears for the quarterly
period then ended (or, in the case of the payment made on September 30, 2017, for the period from the Closing Date to such date) on the
last Business Day of such calendar quarter; provided that all such fees shall be payable on the date on which the Revolving Credit
Commitments of the applicable Class terminate, and any such fees accruing after the date on which the Revolving Credit Commitments of
the applicable Class terminate shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to this paragraph shall
be payable within 30 days after receipt of a written demand (accompanied by reasonable back-up documentation) therefor.
(c) [Reserved].
(d)
The Borrower agrees to pay to the Administrative Agent, for its own account, the fees in the amounts and at the times separately agreed
upon by the Borrower and the Administrative Agent in writing.
(e)
All fees payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Administrative Agent
(or to the applicable Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation
fees, to the Revolving Lenders. Fees paid shall not be refundable under any circumstances except as otherwise provided in the Fee Letter.
Fees payable hereunder shall accrue through and including the last day of the month immediately preceding the applicable fee payment
date.
(f)
In the event that, on or prior to the date that is six months after the Amendment No. 2 Effective Date, the Borrower (x) prepays, repays,
refinances, substitutes or replaces any Amendment No. 2 Term Loans in connection with a Repricing Transaction (including, for the avoidance
of doubt, any prepayment made pursuant to Section 2.11(b)(iii) that constitutes a Repricing Transaction) or (y) effects any amendment,
modification or waiver of, or consent under, this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative
Agent, for the ratable account of each of the applicable Amendment No. 2 Term Lenders, (I) in the case of clause (x), a premium
of 1.00% of the aggregate principal amount of the Amendment No. 2 Term Loans so prepaid, repaid, refinanced, substituted or replaced
and (II) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the Amendment No. 2 Term Loans that
are the subject of such Repricing Transaction outstanding immediately prior to such amendment. If, on or prior to the date that is six
months after the Amendment No. 2 Effective Date, all or any portion of the Amendment No. 2 Term Loans held by any Term Lender are prepaid,
repaid, refinanced, substituted or replaced pursuant to Section 2.19(b)(iv) as a result of, or in connection with, such Term Lender
not agreeing or otherwise consenting to any waiver, consent, modification or amendment referred to in clause (y) above (or otherwise
in connection with a Repricing Transaction), such prepayment, repayment, refinancing, substitution or replacement will be made at 101%
of the principal amount so prepaid, repaid, refinanced, substituted or replaced. All such amounts shall be due and payable on the date
of effectiveness of such Repricing Transaction.
(g)
Unless otherwise indicated herein, all computations of fees shall be made on the basis of a 360-day year and shall be payable for the
actual days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of the amount
of any fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section
2.13. Interest.
(a) The
Term Loans and Revolving Loans comprising each ABR Borrowing (including Swingline Loans) shall bear interest at the Alternate Base
Rate plus the Applicable Rate.
(b)
The Term Loans and Revolving Loans comprising each LIBO Rate Borrowing shall bear interest at the LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Rate.
(c) [Reserved].
(d)
Notwithstanding the foregoing, during the existence and continuance of any Event of Default under Section 7.01(a), if any principal
of or interest on any Amendment No. 2 Term Loan or Revolving Loan, any LC Disbursement or any fee payable by the Borrower hereunder is
not, in each case, paid or reimbursed when due, whether at stated maturity, upon acceleration or otherwise, the relevant overdue amount
shall bear interest, to the fullest extent permitted by applicable Requirements of Law, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal or interest of any Amendment No. 2 Term Loan, Revolving Loan or unreimbursed LC Disbursement,
2.00% plus the rate otherwise applicable to such Amendment No. 2 Term Loan, Revolving Loan or LC Disbursement as provided in the
preceding paragraphs of this Section or Section 2.05(h) or (ii) in the case of any other amount, 2.00% plus the rate applicable
to Revolving Loans that are ABR Loans as provided in paragraph (a) of this Section; provided that no amount shall be payable
pursuant to this Section 2.13(d) to any Defaulting Lender so long as such Lender is a Defaulting Lender; provided further
that no amounts shall accrue pursuant to this Section 2.13(d) on any overdue amount, reimbursement obligation in respect of any
LC Disbursement or other amount payable to a Defaulting Lender so long as such Lender is a Defaulting Lender.
(e) Accrued
interest on each Amendment No. 2 Term Loan, Revolving Loan or Swingline Loan shall be payable in arrears on each Interest Payment
Date for such Amendment No. 2 Term Loan, Revolving Loan or Swingline Loan and on the Maturity Date applicable to such Loan or upon
the termination of the Revolving Credit Commitments, as applicable; provided that (i) interest accrued pursuant to paragraph
(d) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Amendment No. 2 Term
Loan or Revolving Loan (other than a prepayment of an ABR Revolving Loan prior to the termination of the relevant revolving
Commitments), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any LIBO Rate Loan prior to the end of the current Interest Period therefor,
accrued interest on such Amendment No. 2 Term Loan or Revolving Loan shall be payable on the effective date of such conversion.
Accrued interest for any Class of Additional Revolving Loans or Additional Term Loans shall be payable as set forth in the
applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment.
(f)
All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed for ABR Loans based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or LIBO Rate shall
be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error. Interest shall accrue on
each Loan from the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan
or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall bear interest for one
day; provided further that, in the case of any ABR Loan, interest shall accrue through and including the last day of the month
preceding the applicable Interest Payment Date.
Section
2.14. Alternate Rate of Interest. If at least two Business Days prior to the commencement of any Interest Period for a
LIBO Rate Borrowing:
(a)
the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the LIBO Rate for such Interest Period; or
(b)
the Administrative Agent is advised by the Required Lenders that the LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;
then
the Administrative Agent shall promptly give notice thereof to the Borrower and the Lenders by telephone or facsimile as promptly as
practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the
conversion of any Borrowing to, or continuation of any Borrowing as, a LIBO Rate Borrowing shall be ineffective and such Borrowing shall
be converted to an ABR Borrowing on the last day of the Interest Period applicable thereto and (ii) if any Borrowing Request requests
a LIBO Rate Borrowing, such Borrowing shall be made as an ABR Borrowing.
Section
2.15. Increased Costs.
(a) If
any Change in Law:
(i)
imposes, modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve requirement reflected in the LIBO Rate) or Issuing Bank; or
(ii)
imposes on any Lender or Issuing Bank or the London interbank market any other condition affecting this Agreement or LIBO Rate Loans
made by any Lender or any Letter of Credit or participation therein;
and
the result of any of the foregoing is to increase the cost to the relevant Lender of making or maintaining any LIBO Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to such Lender or Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank
hereunder (whether of principal, interest or otherwise) in respect of any LIBO Rate Loan or Letter of Credit in an amount deemed by
such Lender or Issuing Bank to be material, then, within 30 days after the Borrower’s receipt of the certificate contemplated
by paragraph (c) of this Section, the Borrower will pay to such Lender or Issuing Bank, as applicable, such additional amount
or amounts as will compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered
(except that this provision shall not apply to any Taxes, which shall be dealt with exclusively pursuant to Section 2.17); provided
that the Borrower shall not be liable for such compensation if (x) the relevant Change in Law occurs on a date prior to the date
such Lender becomes a party hereto, (y) such Lender invokes Section 2.20 or (z) in the case of requests for reimbursement
under clause (ii) above resulting from a market disruption, (A) the relevant circumstances do not generally affect the
banking market or (B) the applicable request has not been made by Lenders constituting Required Lenders.
(b)
If any Lender or Issuing Bank determines that any Change in Law regarding liquidity or capital requirements has or would have the effect
of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing
Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank
or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law other than due to
Taxes, which shall be dealt with exclusively pursuant to Section 2.17 (taking into consideration such Lender’s or Issuing
Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy),
then within 30 days of receipt by the Borrower of the certificate contemplated by paragraph (c) of this Section the Borrower will
pay to such Lender or such Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or such Issuing
Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.
(c)
Any Lender or Issuing Bank requesting compensation under this Section 2.15 shall be required to deliver a certificate to the Borrower
that (i) sets forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as applicable,
as specified in paragraph (a) or (b) of this Section, (ii) sets forth in reasonable detail the manner in which such amount
or amounts were determined and (iii) certifies that such Lender or Issuing Bank is generally charging such amounts to similarly situated
borrowers, which certificate shall be conclusive absent manifest error.
(d)
Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more
than 180 days prior to the date that such Lender or Issuing Bank notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided, further, that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect thereof.
Section
2.16. Break Funding Payments. In the event of (a) the conversion or prepayment of any principal of any LIBO Rate Loan other than
on the last day of an Interest Period applicable thereto (whether voluntary, mandatory, automatic, by reason of acceleration or otherwise),
(b) the failure to borrow, convert, continue or prepay any LIBO Rate Loan on the date or in the amount specified in any notice delivered
pursuant hereto or (c) the assignment of any LIBO Rate Loan of any Lender other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall compensate
each Lender for the loss, cost and expense incurred by such Lender that is attributable to such event (other than loss of profit). In
the case of a LIBO Rate Loan, the loss, cost or expense of any Lender shall be the amount reasonably determined by such Lender to be
the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred,
at the LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan) over (ii) the amount of interest which would accrue on such principal amount for such period at the interest
rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in the applicable currency of a comparable
amount and period from other banks in the Eurodollar market; it being understood that such loss, cost or expense shall in any case exclude
any interest rate floor and all administrative, processing or similar fees. Any Lender requesting compensation under this Section
2.16 shall be required to deliver a certificate to the Borrower (i) setting forth any amount or amounts that such Lender is entitled
to receive pursuant to this Section, the basis therefor and, in reasonable detail, the manner in which such amount or amounts were determined
and (ii) certifying that such Lender is generally charging the relevant amounts to similarly situated borrowers, which certificate shall
be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days
after receipt thereof.
Section
2.17. Taxes.
(a)
Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and
without deduction for any Taxes, except as required by applicable Requirements of Law. If any applicable Requirement of Law requires
the deduction or withholding of any Tax from any such payment, then (i) if such Tax is an Indemnified Tax, the amount payable by the
applicable Loan Party shall be increased as necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, each Lender and each Issuing Bank (as applicable) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make such deductions and (iii) such
Loan Party shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements
of Law.
(b) In
addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable
Requirements of Law.
(c)
Each Loan Party shall indemnify the Administrative Agent, each Lender and each Issuing Bank within 30 days after receipt of the
certificate described in the succeeding sentence, for the full amount of any Indemnified Taxes payable or paid by the Administrative
Agent, such Lender or Issuing Bank, as applicable, on or with respect to any payment by or any payment on account of any obligation
of any Loan Party hereunder (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this
Section) and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority; provided, however that the Loan Parties shall not be
obligated to indemnify the Administrative Agent or such Lender or such Issuing Bank with respect to any penalties resulting from any
action or inaction of the Administrative Agent or such Lender or Issuing Bank; and provided further, that if such Loan Party
reasonably believes that such Taxes were not correctly or legally asserted, the Administrative Agent or such Lender or Issuing Bank,
as applicable, will use reasonable efforts to cooperate with such Loan Party to obtain a refund of such Taxes (which shall be repaid
to such Loan Party in accordance with Section 2.17(g)) so long as such efforts would not, in the sole determination of the
Administrative Agent or such Lender or Issuing Bank, result in any additional out- of-pocket costs or expenses not reimbursed by
such Loan Party or be otherwise materially disadvantageous to the Administrative Agent or such Lender or Issuing Bank, as
applicable. In connection with any request for reimbursement under this Section 2.17(c), the relevant Lender, Issuing Bank or
the Administrative Agent, as applicable, shall deliver a certificate to the Borrower (i) setting forth, in reasonable detail, the
basis and calculation of the amount of the relevant payment or liability and (ii) certifying that it is generally charging the
relevant amounts to similarly situated borrowers, which certificate shall be conclusive absent manifest error. Notwithstanding
anything to the contrary contained in this Section 2.17(c), the Borrower shall not be required to indemnify the
Administrative Agent or any Lender pursuant to this Section 2.17(c) for any amount to the extent the Administrative Agent or
such Lender fails to notify the Borrower of the relevant possible indemnification claim within 180 days after the Administrative
Agent or such Lender receives written notice from the applicable taxing authority of the specific tax assessment giving rise to such
indemnification claim.
(d)
Each Lender and each Issuing Bank shall severally indemnify the Administrative Agent, within 30 days after demand therefor, for (i) any
Indemnified Taxes on or with respect to any payment under any Loan Document that is attributable to such Lender or Issuing Bank (but
only to the extent that no Loan Party has already indemnified the Administrative Agent for such Indemnified Taxes and without limiting
the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s or Issuing Bank’s failure to comply
with the provisions of Section 9.05(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable
to such Lender or Issuing Bank, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document
and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender
or Issuing Bank by the Administrative Agent shall be conclusive absent manifest error. Each Lender and Issuing Bank hereby authorizes
the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or Issuing Bank under any Loan Document
or otherwise payable by the Administrative Agent to any Lender or Issuing Bank under any Loan Document or otherwise payable by the Administrative
Agent to any Lender or Issuing Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e)
As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority, such Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment that is reasonably satisfactory to the Administrative Agent.
(f) Status
of Lenders.
(i)
Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan
Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or
the Administrative Agent, such properly completed and executed documentation as the Borrower or the Administrative Agent may
reasonably request to permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any
Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by
applicable Requirements of Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or
the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting
requirements. Each Lender hereby authorizes the Administrative Agent to deliver to the Borrower and to any successor Administrative
Agent any documentation provided to the Administrative Agent pursuant to this Section 2.17(f).
(ii) Without
limiting the generality of the foregoing,
(A)
each Lender that is not a Foreign Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which
such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), two executed original copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding
tax;
(B)
each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever
of the following is applicable:
(1)
in the case of any Foreign Lender claiming the benefits of an income tax treaty to which the U.S. is a party (x) with respect to payments
of interest under any Loan Document, executed original copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction
of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other
applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal
withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed
original copies of IRS Form W-8ECI;
(3)
in the case of any Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x)
a certificate substantially in the form of Exhibit L-1 to the effect that such Foreign Lender is not a “bank” within
the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section
871(h)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S.
Tax Compliance Certificate”) and (y) executed original copies of IRS Form W-8BEN or W-8BEN-E; or
(4)
to the extent any Foreign Lender is not the beneficial owner, executed original copies of IRS Form W-8IMY, accompanied by IRS Form
W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit
L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such
Foreign Lender is a partnership and one or more partners of such Foreign Lender are claiming the portfolio interest exemption, such
Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such
partner;
(C)
each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed original
copies of any other form prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Requirements of Law
to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D)
if a payment made to any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law
and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation as is prescribed by applicable
Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested
by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations
under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount
to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made
to FATCA after the date of this Agreement.
Each
Lender agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update
such documentation or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g)
If the Administrative Agent or any Lender or Issuing Bank determines, in its sole discretion exercised in good faith, that it has
received a refund of any Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which such Loan
Party has paid additional amounts pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to
this Section 2.17), it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or
additional amounts paid, by such Loan Party under this Section 2.17 with respect to the Indemnified Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or Issuing Bank (including any Taxes imposed
with respect to such refund), and without interest (other than any interest paid by the relevant Governmental Authority with respect
to such refund); provided that such Loan Party, upon the request of the Administrative Agent, such Lender or Issuing Bank,
agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent, such Lender or Issuing Bank in the event the Administrative Agent,
such Lender or Issuing Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the
contrary in this paragraph (g), in no event will the Administrative Agent, any Lender or Issuing Bank be required to pay any
amount to any Loan Party pursuant to this paragraph (g) to the extent that the payment thereof would place the Administrative
Agent, Lender or Issuing Bank in a less favorable net after-Tax position than the position that the Administrative Agent or such
Lender or Issuing Bank would have been in if the Tax subject to indemnification had not been deducted, withheld or otherwise imposed
and the indemnification payments or additional amounts giving rise to such refund had never been paid. This Section shall not be
construed to require the Administrative Agent, any Lender or any Issuing Bank to make available its Tax returns (or any other
information relating to its Taxes which it deems confidential) to the relevant Loan Party or any other Person.
(h)
The Administrative Agent shall deliver to Borrower, on or before the date on which it becomes the Administrative Agent hereunder, either
(i) a duly executed original IRS Form W-9 (or any applicable successor form) certifying that the Administrative Agent is not subject
to backup withholding, or (ii) (A) a duly completed executed original IRS Form W-8ECI to establish that the Administrative Agent is not
subject to withholding Taxes under the Internal Revenue Code with respect to any amounts payable for the account of the Administrative
Agent under any of the Loan Documents and (B) a duly executed original IRS Form W-8IMY (or applicable successor form) certifying that
it is a U.S. branch that has agreed to be treated as a U.S. person for United States federal withholding Tax purposes with respect to
payments received by it from the Borrower for the account of others under the Loan Documents. The Administrative Agent shall promptly
notify the Borrower at any time it determines that it is no longer in a position to provide the certification described in the preceding
sentence. The Administrative Agent shall also, at the time or times prescribed by law and at such time or times reasonably requested
by the Borrower, provide the Borrower such documentation as prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i)
of the Code) and such additional documentation reasonably requested by the Borrower as may be necessary for the Borrower to comply with
its FATCA obligations, to determine whether the Administrative Agent has or has not complied with its FATCA obligations, and to determine
the amount, if any, to deduct and withhold from a payment to the Administrative Agent.
(i)
Survival. Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative
Agent or any assignment of rights by, or the replacement of, any Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all obligations under any Loan Document.
Section
2.18. Payments Generally; Allocation of Proceeds; Sharing of Payments.
(a)
Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to the time expressed hereunder or under such Loan Document (or, if no time is expressly required, by 2:00 p.m.) on
the date when due, in immediately available funds, without set-off (except as otherwise provided in Section 2.17) or
counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have
been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to
the Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except payments to be
made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16 or 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. Each Lender agrees that in computing such Lender’s portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round such Lender’s percentage of such Borrowing to the
next higher or lower whole dollar amount. Except as set forth in any amendment entered into pursuant to Section
9.02(b)(ii)(E) with respect to the making of Revolving Loans or Letters of Credit denominated in a currency other than Dollars,
all payments (including accrued interest) hereunder shall be made in Dollars. Any payment required to be made by the Administrative
Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time,
have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or
settlement system used by the Administrative Agent to make such payment.
(b)
Subject in all respects to the provisions of the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement,
all proceeds of Collateral received by the Administrative Agent at any time when an Event of Default exists, shall, upon election by
the Administrative Agent or at the direction of the Required Lenders, be applied, first, to the payment of all costs and expenses
then due incurred by the Administrative Agent in connection with any collection, sale or realization on Collateral or otherwise in connection
with this Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of
agents and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or under any other Loan Document on
behalf of any Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or
under any other Loan Document, second, on a pro rata basis, to pay any fees, indemnities or expense reimbursements then due to
the Administrative Agent (other than those covered in clause first above) or to the Swingline Lender or any Issuing Bank from the Borrower
constituting Secured Obligations, third, on a pro rata basis in accordance with the amounts of the Secured Obligations (other
than contingent indemnification obligations for which no claim has yet been made) owed to the Secured Parties on the date of any such
distribution, to the payment in full of the Secured Obligations (including, with respect to LC Exposure, an amount to be paid to the
Administrative Agent equal to 100% of the LC Exposure (minus the amount then on deposit in the LC Collateral Account) on such
date, to be held in the LC Collateral Account as Cash collateral for such Obligations); provided that if any Letter of Credit
expires undrawn, then any Cash collateral held to secure the related LC Exposure shall be applied in accordance with this Section
2.18(b), beginning with clause first above, fourth, as provided for under the Intercreditor Agreement or any other applicable
Acceptable Intercreditor Agreement, and fifth, to the Borrower or as the Borrower shall direct.
(c)
If any Lender obtains payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) in respect
of any principal of or interest on any of its Loans of any Class or participations in LC Disbursements or Swingline Loans held by it
resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans of such Class and
participations in LC Disbursements or Swingline Loans and accrued interest thereon than the proportion received by any other Lender
with Loans of such Class and participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater
proportion shall purchase (for Cash at face value) participations in the Loans of such Class and sub-participations in LC
Disbursements or Swingline Loans of other Lenders of such Class at such time outstanding to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Loans of such Class and participations in LC Disbursements or Swingline Loans; provided
that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not apply to (x) any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or (y) any payment obtained by any Lender as consideration for the assignment of or sale of a participation
in any of its Loans to any permitted assignee or participant, including any payment made or deemed made in connection with Sections
2.22, 2.23, 9.02(c) and/or Section 9.05. The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if
such Lender were a direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.18(c) and
will, in each case, notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section 2.18(c) shall from and after such purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent
as though the purchasing Lender were the original owner of the Obligations purchased.
(d)
Unless the Administrative Agent has received notice from the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of any Lender or any Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute
to the applicable Lender or Issuing Bank the amount due. In such event, if the Borrower has not in fact made such payment, then each
Lender or the applicable Issuing Bank severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e)
If any Lender fails to make any payment required to be made by it pursuant to Section 2.07(b) or Section 2.18(d), then
the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received
by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.
Section
2.19. Mitigation Obligations; Replacement of Lenders.
(a)
If any Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO Rate Loans
pursuant to Section 2.20, or the Borrower is required to pay any additional amount to or indemnify any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or its participation in any Letter of Credit affected by such event,
or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17,
as applicable, in the future or mitigate the impact of Section 2.20, as the case may be, and (ii) would not subject such Lender
to any material unreimbursed out-of-pocket cost or expense and would not otherwise be disadvantageous to such Lender in any material
respect. The Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b)
If (i) any Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO
Rate Loans pursuant to Section 2.20, (ii) the Borrower is required to pay any additional amount to or indemnify any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.17, (iii) any Lender is a Defaulting Lender or
(iv) in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender”, “each
Revolving Lender” or “each Lender directly affected thereby” (or any other Class or group of Lenders other than
the Required Lenders) with respect to which Required Lender or Required Revolving Lender consent (or the consent of Lenders holding
loans or commitments of such Class or lesser group representing more than 50% of the sum of the total loans and unused commitments
of such Class or lesser group at such time) has been obtained, as applicable, any Lender is a non-consenting Lender (each such
Lender, a “Non-Consenting Lender”), then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, (x) terminate the applicable Commitments and/or Additional Commitments of such Lender, and
repay all Obligations of the Borrower owing to such Lender relating to the applicable Loans and participations held by such Lender
as of such termination date under one or more Credit Facilities or Additional Credit Facilities as the Borrower may elect or (y)
replace such Lender by requiring such Lender to assign and delegate (and such Lender shall be obligated to assign and delegate),
without recourse (in accordance with and subject to the restrictions contained in Section 9.05), all of its interests, rights
and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be
another Lender, if any Lender accepts such assignment); provided that (A) such Lender shall have received payment of an
amount equal to the outstanding principal amount of its Loans and, if applicable, participations in LC Disbursements and Swingline
Loans, in each case of such Class of Loans, Commitments and/or Additional Commitments, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder with respect to such Class of Loans, Commitments and/or Additional Commitments, (B) in the
case of any assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section
2.17, such assignment will result in a reduction in such compensation or payments and (C) such assignment does not conflict with
applicable law. No Lender (other than a Defaulting Lender) shall be required to make any such assignment and delegation, and the
Borrower may not repay the Obligations of such Lender or terminate its Commitments or Additional Commitments, if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation
cease to apply. Each Lender agrees that if it is replaced pursuant to this Section 2.19, it shall execute and deliver to the
Administrative Agent an Assignment and Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent
any Promissory Note (if the assigning Lender’s Loans are evidenced by one or more Promissory Notes) subject to such Assignment
and Assumption (provided that the failure of any Lender replaced pursuant to this Section 2.19 to execute an
Assignment and Assumption or deliver any such Promissory Note shall not render such sale and purchase (and the corresponding
assignment) invalid), such assignment shall be recorded in the Register and any such Promissory Note shall be deemed cancelled. Each
Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Lender’s
attorney-in-fact, with full authority in the place and stead of such Lender and in the name of such Lender, from time to time in the
Administrative Agent’s discretion, with prior written notice to such Lender, to take any action and to execute any such
Assignment and Assumption or other instrument that the Administrative Agent may deem reasonably necessary to carry out the
provisions of this clause (b). To the extent that any Lender is replaced pursuant to Section 2.19(b)(iv) in connection
with a Repricing Transaction requiring payment of a fee pursuant to Section 2.12(f), the Borrower shall pay to each Lender
being replaced as a result of such Repricing Transaction the fee set forth in Section 2.12(f).
Section
2.20. Illegality. If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental
Authority has asserted after the Closing Date that it is unlawful, for such Lender or its applicable lending office to make,
maintain or fund Loans whose interest is determined by reference to the Published LIBO Rate, or to determine or charge interest
rates based upon the Published LIBO Rate, or any Governmental Authority has imposed material restrictions on the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such
Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue LIBO Rate Loans in
Dollars or to convert ABR Loans to LIBO Rate Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender
making or maintaining ABR Loans the interest rate on which is determined by reference to the Published LIBO Rate component of the
Alternate Base Rate, the interest rate on which ABR Loans of such Lender, shall, if necessary to avoid such illegality, be
determined by the Administrative Agent without reference to the Published LIBO Rate component of the Alternate Base Rate, in each
case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination
no longer exist (which notice such Lender agrees to give promptly). Upon receipt of such notice, (x) the Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or convert all of such Lender’s LIBO Rate Loans to ABR
Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the
Administrative Agent without reference to the Published LIBO Rate component of the Alternate Base Rate) either on the last day of
the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBO Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such LIBO Rate Loans (in which case the Borrower shall not be required to make
payments pursuant to Section 2.16 in connection with such payment) and (y) if such notice asserts the illegality of such
Lender determining or charging interest rates based upon the Published LIBO Rate, the Administrative Agent shall during the period
of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Published LIBO Rate component
thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to
determine or charge interest rates based upon the Published LIBO Rate. Upon any such prepayment or conversion, the Borrower shall
also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different lending office if such
designation will avoid the need for such notice and will not, in the determination of such Lender, otherwise be materially
disadvantageous to such Lender.
Section
2.21. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a)
Fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to Section 2.12(a) and,
subject to clause (d)(iv) below, on the participation of such Defaulting Lender in Letters of Credit pursuant to Section 2.12(b)
and pursuant to any other provisions of this Agreement or other Loan Document.
(b)
The Commitments, Loans and LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, each affected
Lender, the Required Lenders, Required Revolving Lenders or such other number of Lenders as may be required hereby or under any other
Loan Document have taken or may take any action hereunder (including any consent to any waiver, amendment or modification pursuant to
Section 9.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected
Lender which affects such Defaulting Lender disproportionately and adversely relative to other affected Lenders shall require the consent
of such Defaulting Lender.
(c)
Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.11, Section 2.15, Section 2.16, Section 2.17, Section
2.18, Article 7, Section 9.05 or otherwise, and including any amounts made available to the Administrative Agent by such
Defaulting Lender pursuant to Section 9.09), shall be applied at such time or times as may be determined by the
Administrative Agent and, where relevant, the Borrower as follows: first, to the payment of any amounts owing by such
Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts
owing by such Defaulting Lender to any applicable Issuing Bank and/or Swingline Lender hereunder; third, if so reasonably
determined by the Administrative Agent or reasonably requested by the applicable Issuing Bank, to be held as Cash collateral for
future funding obligations of such Defaulting Lender in respect of any participation in any Letter of Credit; fourth, so long
as no Default or Event of Default exists, as the Borrower may request, to the funding of any Loan in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement; fifth, if so determined by the
Administrative Agent or the Borrower, to be held in a deposit account and released in order to satisfy obligations of such
Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the non-Defaulting
Lenders, Issuing Banks or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any
non-Defaulting Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; seventh, to the payment of any amounts owing to the Borrower
as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result
of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Loan or LC Exposure in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such
Loan or LC Exposure was made or created, as applicable, at a time when the conditions set forth in Section 4.02 were
satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Exposure owed to, all non-Defaulting Lenders
on a pro rata basis prior to being applied to the payment of any Loans of, or LC Exposure owed to, such Defaulting Lender.
Any payments, prepayments or other amounts paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed
by any Defaulting Lender or to post Cash collateral pursuant to this Section 2.21(c) shall be deemed paid to and redirected
by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d) If
any Swingline Loans or LC Exposure exists at the time any Lender becomes a Defaulting Lender then:
(i)
all or any part of such Swingline Loans and LC Exposure shall be reallocated among the non-Defaulting Revolving Lenders in accordance
with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures
does not exceed the total of all non-Defaulting Revolving Lenders’ Revolving Credit Commitments;
(ii)
if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, without
prejudice to any other right or remedy available to it hereunder or under applicable Requirements of Law, within two Business Days
following notice by the Administrative Agent, Cash collateralize 100% of such Defaulting Lender’s LC Exposure and any
obligations of such Defaulting Lender to fund participations in any Swingline Loan (after giving effect to any partial reallocation
pursuant to paragraph (i) above and any Cash collateral provided by such Defaulting Lender or pursuant to Section
2.21(c) above) or make other arrangements reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank
and/or Swingline Lender with respect to such LC Exposure and/or Swingline Loans and obligations to fund participations. Cash
collateral (or the appropriate portion thereof) provided to reduce LC Exposure or other obligations shall be released promptly
following (A) the elimination of the applicable LC Exposure or other obligations giving rise thereto (including by the termination
of the Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section
2.19)) or (B) the Administrative Agent’s good faith determination that there exists excess Cash collateral (including as a
result of any subsequent reallocation of Swingline Loans and LC Exposure among non-Defaulting Lenders described in clause (i)
above);
(iii)
(A) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.21(d), then the fees payable to
the Revolving Lenders pursuant to Section 2.12(a) and (b), as the case may be, shall be adjusted to give effect to such
reallocation and (B) if the LC Exposure of any Defaulting Lender is Cash collateralized pursuant to this Section 2.21(d), then,
without prejudice to any rights or remedies of the applicable Issuing Bank, any Lender or any Borrower hereunder, no letter of credit
fees shall be payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure; and
(iv)
if any Defaulting Lender’s LC Exposure is not Cash collateralized, prepaid or reallocated pursuant to this Section 2.21(d),
then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Revolving Lender hereunder, all letter of
credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable
Issuing Bank until such Defaulting Lender’s LC Exposure is Cash collateralized or reallocated.
(e)
So long as any Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan, and no
Issuing Bank shall be required to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably satisfied
that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders, Cash collateral provided
pursuant to Section 2.21(c) and/or Cash collateral provided by the Borrower in accordance with Section 2.21(d), and participating
interests in any such or newly issued, extended or created Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting
Revolving Lenders in a manner consistent with Section 2.21(d)(i) (it being understood that Defaulting Lenders shall not participate
therein).
(f)
In the event that the Administrative Agent and the Borrower agree that any Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then the Applicable Percentage of Swingline Loans and LC Exposure of the Revolving Lenders
shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment, and on such date such Revolving Lender
shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) or participations in Revolving
Loans as the Administrative Agent shall determine as are necessary in order for such Revolving Lender to hold such Revolving Loans or
participations in accordance with its Applicable Percentage. Notwithstanding the fact that any Defaulting Lender has adequately remedied
all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender and (y) except to the extent otherwise expressly
agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Section
2.22. Incremental Credit Extensions.
(a)
The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment (i) add one or more new
tranches of term facilities and/or increase the principal amount of the Initial Term Loans or any Additional Term Loans by
requesting new term loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term
Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or
(ii) add one or more new tranches of revolving commitments and/or increase the Total Revolving Credit Commitment or any Additional
Revolving Credit Commitment (any such new tranche or increase, an “Incremental Revolving Facility” and, together
with any Incremental Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental
Facility”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental
Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i)
no Incremental Commitment may be less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii)
except as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental
Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being
agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii)
no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any
existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(iv)
any such Incremental Revolving Facility shall either (A) be subject to the same terms and conditions as any then-existing Revolving Facility
(and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental
Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving
Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the
lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders)
or (B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Initial Revolving Credit Maturity
Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment
and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the
Borrower) shall be substantially consistent with the Initial Revolving Loans or shall be reasonably satisfactory to the Administrative
Agent; provided, that if any financial maintenance covenant is added to any such Incremental Revolving Facility and such financial
maintenance covenant is more favorable to the lenders under such Incremental Revolving Facility than the Financial Covenant, either (x)
such financial maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving
Lenders shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the Borrower,
any applicable “equity cure” provisions with respect to any such financial maintenance covenant) (it being understood that
if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility,
no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other
provision is (1) also added for the benefit of any then- existing Revolving Facility or (2) only applicable after the applicable Latest
Revolving Loan Maturity Date),
(v)
the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and the
lender or lenders providing such Incremental Facility; provided that, in the case of any broadly-syndicated Dollar
denominated Incremental Term Facility that is (x) originally incurred in reliance on clause (a) or clause (e) of the
definition of “Incremental Cap” (but not any reclassification pursuant to clause (3) of the proviso therein) and
(y) scheduled to mature prior to the date that is one year after the Initial Term Loan Maturity Date, the Effective Yield applicable
thereto may not be more than 0.50% higher than the Effective Yield applicable to the Amendment No. 2 Term Loans unless the
Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the
Amendment No. 2 Term Loans is adjusted such that the Effective Yield on the Amendment No. 2 Term Loans is not more than 0.50% per
annum less than the Effective Yield with respect to such Incremental Facility (this proviso, the “MFN
Provision”); provided, further, that any increase in Effective Yield applicable to any Amendment No. 2 Term Loan
due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may, at the
election of the Borrower, be effected through an increase in the Alternate Base Rate floor or LIBO Rate floor applicable to such
Amendment No. 2 Term Loans or an increase in the interest rate margin applicable to such Incremental Loans; provided further
that the MFN Provision shall not apply to Incremental Term Facilities having an aggregate principal amount not exceeding $20,000,000
(as selected by the Borrower),
(vi)
the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date at the
time of the incurrence thereof; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity
date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or
otherwise replace such bridge loans shall be subject to the requirements of this clause (vi) and (ii) the Permitted Earlier Maturity
Indebtedness Exception (to the extent designated by the Borrower),
(vii)
the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life
to Maturity of the Amendment No. 2 Term Loans; provided, that the foregoing limitation shall not apply to (i) customary
bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other
Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause
(vii) or (ii) Permitted Earlier Maturity Indebtedness Exception (to the extent designated by the Borrower),
(viii)
subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined
by the Borrower and the lenders providing such Incremental Term Facility,
(ix)
subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined
by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x)
(A) each Incremental Facility shall rank pari passu with the Amendment No. 2 Term Loans (in the case of any Incremental Term Facility)
and pari passu with the Initial Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment
and security and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets
other than the Collateral,
(xi)
any Incremental Term Facility may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary
prepayment of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis, other
than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment of
Term Loans required pursuant to Section 2.11(b),
(xii)
no Event of Default under Section 7.01(a), (f) or (g) shall exist immediately prior to or after giving effect to the effectiveness of
such Incremental Facility (except in connection with any acquisition or other Investment or irrevocable notice of repayment or redemption
of Indebtedness, where no such Event of Default shall exist at the time as elected by the Borrower pursuant to Section 1.04(e)),
(xiii)
except as otherwise required or permitted in clauses (v) through (xi) above, all other terms of any Incremental Term Facility shall be
as agreed between the Borrower and the lenders providing such Incremental Term Facility,
(i)
the proceeds of any Incremental Facility may be used for working capital, Capital Expenditures and other general corporate purposes of
the Borrower and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments
and any other purpose not prohibited by the terms of the Loan Documents), and
(ii)
on the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans,
and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added
to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type
with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding
Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional
Term Loans, as applicable, of the same type with the same Interest Period of the respective Class.
(a)
Incremental Commitments may be provided by any existing Lender or by any other Eligible Assignee (any such other Eligible Assignee being
called an “Additional Lender”); provided that the Administrative Agent (and, in the case of any Incremental
Revolving Facility, the Swingline Lender and any Issuing Bank) shall have consented (such consent not to be unreasonably withheld, conditioned
or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section
9.05(b) for an assignment of Loans to such Additional Lender; provided; further, that any Additional Lender that is an Affiliated
Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental Commitments
and related Obligations had been obtained by such Lender by way of assignment.
(b)
Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent
and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the
Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each
Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(c)
As a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request,
the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements
and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Lender, an
administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative
Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative
Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental
Loans and (iv) upon its request, the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer
thereof:
(A)
certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental
Facility or Incremental Loans, and
(B)
to the extent applicable, certifying that the condition set forth in clause (a)(xii) above has been satisfied.
(d)
Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i)
if such Incremental Revolving Facility is implemented by increasing the amount of then-existing Total Revolving Credit Commitments (rather
than by establishing a new Class of Revolving Loans), (i) each Revolving Lender immediately prior to such increase will automatically
and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental
Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s
participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each deemed assignment
and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations
hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans shall be held on a pro rata basis on the basis
of their respective Revolving Credit Commitments (after giving effect to any increase in the Revolving Credit Commitment pursuant to
Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving
Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving
Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans,
in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of
Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any
increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing,
pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions
effected pursuant to this clause (i); and
(ii)
if such Incremental Revolving Facility is implemented pursuant to a request to add one or more new tranches of revolving commitments,
(1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on the existing Revolving Facilities
and such Incremental Revolving Facility, (B) repayments required upon the Maturity Date of the then-existing Revolving Facility and such
Incremental Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of commitments (subject
to clause (3) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Facility Commitments
shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving
Facility, (2) all swingline loans and/or letters of credit made or issued, as applicable, under such Incremental Revolving Facility shall
be participated on a pro rata basis by all Revolving Lenders and (3) the permanent repayment of Loans with respect to, and termination
of commitments under, such Incremental Revolving Facility shall be made on a pro rata basis with the then- existing Revolving
Facility and any other then outstanding Incremental Revolving Facility, except that the Borrower shall be permitted to permanently repay
and terminate commitments under such Incremental Revolving Facility on a greater than pro rata basis as compared with any other
revolving facility with a later Maturity Date than such revolving facility.
(e)
Effective on the date of effectiveness of each Incremental Revolving Facility, the maximum amount of LC Exposure and/or Swingline Loans,
as applicable, permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Borrower and the
relevant Issuing Bank and/or the Swingline Lender, as applicable.
(f)
The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment
to any other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Loans
or commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate
in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches,
in each case on terms consistent with this Section 2.22.
(g)
To the extent the provisions of clause (a)(xv) above require that Term Lenders making new Incremental Term Loans add such Incremental
Term Loans to the then outstanding borrowings of LIBO Rate Loans of the respective Class of Initial Term Loans or Additional Term Loans,
as applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the respective Class
and which will end on the last day of such Interest Period).
(h)
Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds
of any Incremental Facility are intended to be applied to finance an acquisition or other Investment and the lenders providing such Incremental
Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality
(including the making and accuracy of Specified Representations as conformed for such acquisition or other Investment).
(i) This
Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary.
Section
2.23. Extensions of Loans and Revolving Credit Commitments.
(a)
Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension
Offer”) made from time to time by the Borrower to all Lenders holding Loans of any Class or Commitments of any Class, in
each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Loans or Commitments of such
Class) and on the same terms to each such Lender, the Borrower is hereby permitted from time to time to consummate transactions with
any individual Lender who accepts the terms contained in the relevant Extension Offer to extend the Maturity Date of all or a
portion of such Lender’s Loans and/or Commitments of such Class and otherwise modify the terms of all or a portion of such
Loans and/or Commitments pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate or fees
payable in respect of such Loans and/or Commitments (and related outstandings) and/or modifying the amortization schedule, if any,
in respect of such Loans) (each, an “Extension”); it being understood that any Extended Term Loans shall
constitute a separate Class of Loans from the Class of Loans from which they were converted and any Extended Revolving Credit
Commitments shall constitute a separate Class of Revolving Credit Commitments from the Class of Revolving Credit Commitments from
which they were converted, so long as the following terms are satisfied:
(i)
except as to (x) interest rates, fees and final maturity (which shall, subject to the succeeding clause (iii)(y), be determined
by the Borrower and set forth in the relevant Extension Offer), (y) terms applicable to such Extended Revolving Credit Commitments or
Extended Revolving Loans that are more favorable to the lenders or the agent of such Extended Revolving Credit Commitments or Extended
Revolving Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents on or prior to the
effectiveness of such Extension for the benefit of the Revolving Lenders or, as applicable, the Administrative Agent pursuant to the
applicable Extension Amendment and (z) any terms or other provisions applicable only to periods after the Latest Revolving Loan Maturity
Date (in each case, as of the date of such Extension), the commitment of any Revolving Lender that agrees to an Extension (an “Extended
Revolving Credit Commitment”; and the Loans thereunder, “Extended Revolving Loans”), and the related outstandings,
shall be a revolving commitment (or related outstandings, as the case may be) with substantially consistent terms (or terms not less
favorable to existing Revolving Lenders) as the original Revolving Credit Commitments (and related outstandings) provided hereunder;
provided that to the extent any non-extended portion of the Revolving Facility or any Additional Revolving Facility then exists,
(1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on such revolving facilities (and related
outstandings), (B) repayments required upon the Maturity Date of such revolving facilities and (C) repayments made in connection with
any permanent repayment and termination of commitments (subject to clause (3) below)) of Extended Revolving Loans after the effective
date of such Extended Revolving Credit Commitments shall be made on a pro rata basis with such portion of the Revolving Facility
or the relevant Additional Revolving Facility, as applicable, (2) all swingline loans and/or letters of credit made or issued, as applicable,
under any Extended Revolving Credit Commitment shall be participated on a pro rata basis by all Revolving Lenders and (3) the
permanent repayment of Loans with respect to, and termination of commitments under, any such Extended Revolving Credit Commitment after
the effective date of such Extended Revolving Credit Commitments shall be made on a pro rata basis with such portion of the Revolving
Facility and/or any Additional Revolving Facility, except that the Borrower shall be permitted to permanently repay and terminate commitments
of any such revolving facility on a greater than pro rata basis (I) as compared to any other Revolving Facilities with a later
Maturity Date than such Revolving Facility and (II) to the extent refinanced or replaced with a Replacement Revolving Facility or Replacement
Debt;
(ii)
except as to (x) interest rates, fees, amortization, final maturity date, premiums, required prepayment dates and participation in prepayments
(which shall, subject to immediately succeeding clauses (iii)(x), (iv) and (v), be determined by the Borrower and set forth
in the relevant Extension Offer), (y) terms applicable to such Extended Term Loans that are more favorable to the lenders or the agent
of such Extended Term Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents on or
prior to the effectiveness of such Extension for the benefit of the Term Lenders or, as applicable, the Administrative Agent pursuant
to the applicable Extension Amendment and (z) any covenants or other provisions applicable only to periods after the Latest Term Loan
Maturity Date (in each case, as of the date of such Extension), the Term Loans of any Lender extended pursuant to any Extension (any
such extended Term Loans, the “Extended Term Loans”) shall have substantially consistent terms as the tranche of Term
Loans subject to the relevant Extension Offer;
(iii)
(x) the final maturity date of any Extended Term Loans shall be no earlier than the then applicable Latest Term Loan Maturity Date at
the time of extension and (y) no Extended Revolving Credit Commitments or Extended Revolving Loans shall have a final maturity date earlier
than (or require commitment reductions prior to) the then applicable Latest Revolving Loan Maturity Date;
(iv)
the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity
of the Term Loans or any other Extended Term Loans extended thereby;
(v)
subject to clauses (iii) and (iv) above, any Extended Term Loans may otherwise have an amortization schedule as determined
by the Borrower and the Lenders providing such Extended Term Loans;
(vi)
any Extended Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment
of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis other than in the
case of prepayment with proceeds of Indebtedness refinancing such Extended Term Loans) in any mandatory prepayment of Term Loans required
pursuant to Section 2.11(b);
(vii)
if the aggregate principal amount of Loans or commitments, as the case may be, in respect of which Lenders shall have accepted the relevant
Extension Offer exceeds the maximum aggregate principal amount of Loans or commitments, as the case may be, offered to be extended by
the Borrower pursuant to such Extension Offer, then the Loans or commitments, as the case may be, of such Lenders shall be extended ratably
up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) held by Lenders that
have accepted such Extension Offer;
(viii)
unless the Administrative Agent otherwise agrees, each Extension shall be in a minimum amount of $5,000,000;
(ix)
any applicable Minimum Extension Condition shall be satisfied or waived by the Borrower; and
(x) all
documentation in respect of such Extension shall be consistent with the foregoing.
(b)
With respect to any Extension consummated pursuant to this Section 2.23, (i) no such Extension shall constitute a voluntary
or mandatory prepayment for purposes of Section 2.11, (ii) the scheduled amortization payments (in so far as such schedule
affects payments due to Lenders participating in the relevant Class) set forth in Section 2.10 shall be adjusted to give
effect to such Extension of the relevant Class and (iii) except as set forth in clause (a)(viii) above, no Extension Offer is
required to be in any minimum amount or any minimum increment; provided that the Borrower may, at its election, specify as a
condition (a “Minimum Extension Condition”) to consummating such Extension that a minimum amount (to be
determined and specified in the relevant Extension Offer in the Borrower’s sole discretion and which may be waived by the
Borrower in its sole discretion) of Loans or commitments (as applicable) of any or all applicable Classes be tendered. The
Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.23 (including, for the
avoidance of doubt, any payment of any interest, fees or premium in respect of any tranche of Extended Term Loans and/or Extended
Revolving Credit Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of
any provision of this Agreement (including Sections 2.10, 2.11 or 2.18) or any other Loan Document that may otherwise
prohibit any Extension or any other transaction contemplated by this Section.
(c)
No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (A) the consent of each
Lender agreeing to such Extension with respect to one or more of its Loans and/or commitments under any Class (or a portion thereof),
(B) with respect to any Extension of the Revolving Credit Commitments, the consent of each Issuing Bank to the extent the commitment
to provide Letters of Credit is to be extended and (C) with respect to any Extension of the Revolving Credit Commitments, the consent
of the Swingline Lender to the extent the swingline facility is to be extended (in each case which consent shall not be unreasonably
withheld or delayed). All Extended Term Loans and Extended Revolving Credit Commitments and all obligations in respect thereof shall
constitute Secured Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on
a pari passu basis with all other Secured Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably
authorize the Administrative Agent to enter into such amendments to this Agreement and the other Loan Documents with the Borrower as
may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments so extended and such technical
amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with
the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.23.
(d)
In connection with any Extension, the Borrower shall provide the Administrative Agent at least ten Business Days’ (or such shorter
period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including regarding
timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such
Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish
the purposes of this Section 2.23.
ARTICLE
3 REPRESENTATIONS AND WARRANTIES
On
the dates and to the extent required pursuant to Section 4.01 or Section 4.02, as applicable, Holdings (solely with respect to Sections
3.01, 3.02, 3.03, 3.06, 3.07, 3.08, 3.09, 3.12, 3.13, 3.14, 3.16 and 3.17) and the Borrower hereby represent and warrant to
the Lenders that:
Section
3.01. Organization; Powers. Each of Holdings, the Borrower and each of its Restricted Subsidiaries (a) is (i) duly organized and
validly existing and (ii) in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of its jurisdiction
of organization, (b) has all requisite organizational power and authority to own its property and assets and to carry on its business
as now conducted and (c) is qualified to do business in, and is in good standing (to the extent such concept exists in the relevant jurisdiction)
in, every jurisdiction where its ownership, lease or operation of properties or conduct of its business requires such qualification;
except, in each case referred to in this Section 3.01 (other than clause (a)(i) and (b), in each case with respect to the
Borrower) where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
Section
3.02. Authorization; Enforceability. The execution, delivery and performance by each Loan Party of each of the Loan Documents
to which such Loan Party is a party are within such Loan Party’s corporate or other organizational power and have been duly authorized
by all necessary corporate or other organizational action of such Loan Party. Each Loan Document to which any Loan Party is a party has
been duly executed and delivered by such Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance
with its terms, subject to the Legal Reservations.
Section
3.03. Governmental Approvals; No Conflicts. The execution and delivery of the Loan Documents by each Loan Party party thereto
and the performance by such Loan Party thereof (a) do not require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) in connection
with the Perfection Requirements and (iii) such consents, approvals, registrations, filings, or other actions the failure to obtain or
make which would not be reasonably expected to have a Material Adverse Effect, (b) will not violate any (i) of such Loan Party’s
Organizational Documents or (ii) Requirements of Law applicable to such Loan Party which, in the case of this clause (b)(ii),
would reasonably be expected to have a Material Adverse Effect and (c) will not violate or result in a default under (i) the Second Lien
Credit Agreement or (ii) any other material Contractual Obligation in respect of Indebtedness having an aggregate principal amount exceeding
the Threshold Amount to which such Loan Party is a party which, in the case of this clause (c), would reasonably be expected to
result in a Material Adverse Effect.
Section
3.04. Financial Condition; No Material Adverse Effect.
(a)
After the Closing Date, the financial statements most recently provided pursuant to Section 5.01(a) or (b), as applicable,
present fairly, in all material respects, the financial position, results of operations and cash flows of the Borrower on a consolidated
basis as of such dates and for such periods in accordance with GAAP, (w) except as otherwise expressly noted therein, (x) subject, in
the case of financial statements provided pursuant to Section 5.01(a), to the absence of footnotes and normal year-end audit adjustments
and (y) except as may be necessary to reflect any differing entity and/or organizational structure prior to giving effect to the Transactions.
(b)
Since the Closing Date, there have been no events, developments or circumstances that have had, or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
Section
3.05. Properties.
(a) [Reserved.]
(b)
The Borrower and each of its Restricted Subsidiaries have good and valid fee simple title to or rights to purchase, or valid leasehold
interests in, or easements or other limited property interests in, all of their respective Real Estate Assets, free and clear of all
Liens except for Permitted Liens and have good title to their personal property and assets, in each case material to the business, except
(i) for defects in title that do not materially interfere with their ability to conduct their business as currently conducted or to utilize
such properties and assets for their intended purposes or (ii) where the failure to have such title or interest would not reasonably
be expected to have a Material Adverse Effect.
(c)
The Borrower and each of its Restricted Subsidiaries own or otherwise have a license or right to use all Patents, Trademarks, Copyrights
and other rights in works of authorship (including all copyrights embodied in software), domain names, trade secrets and all other intellectual
property rights (“IP Rights”) necessary to the conduct of the businesses of the Borrower and its Restricted Subsidiaries
as presently conducted, and, to the knowledge of the Borrower, such IP Rights do not infringe or misappropriate the IP Rights of any
third party, except to the extent such failure to own or license or have rights to use would not, or where such infringement or misappropriation
would not, reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section
3.06. Litigation and Environmental Matters. Except as set forth on Schedule 3.06:
(a)
there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge
of the Borrower, threatened in writing against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries which would
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect;
(b)
except for any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect,
(i) neither Holdings, the Borrower nor any of its Restricted Subsidiaries has received written notice of any claim with respect to any
Environmental Liability, knows of any basis for any Environmental Liability or, to the knowledge of the Borrower, has become subject
to any Environmental Liability and (ii) neither Holdings, the Borrower nor any of its Restricted Subsidiaries is in violation of any
Environmental Law or has not obtained, maintained, or complied with any permit, license or other approval required under any Environmental
Law; and
(c)
neither Holdings, the Borrower nor any of its Restricted Subsidiaries has treated, stored, transported, Released or disposed of any Hazardous
Material at or from any currently or formerly owned, leased or operated real estate or facility nor, to the knowledge of the Borrower,
has any Hazardous Material been Released from any third-party location relating to the Borrower’s or any of its Restricted Subsidiaries’
businesses, in each case in a manner that would reasonably be expected to have a Material Adverse Effect.
Section
3.07. Compliance with Laws. Each of Holdings, the Borrower and each of its Restricted Subsidiaries is in compliance with all Requirements
of Law applicable to it or its property, except, in each case where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, it being understood and agreed that this Section 3.07 shall not apply
to any law specifically referenced in Section 3.17.
Section
3.08. Investment Company Status. No Loan Party is required to be registered as an “investment company” under
the Investment Company Act of 1940.
Section
3.09. Taxes. Each of Holdings, the Borrower and each of its Restricted Subsidiaries has timely filed or caused to be filed all
Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it that
are due and payable, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which Holdings, the Borrower
or such Restricted Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent
that the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section
3.10. ERISA.
(a)
Each Pension Plan is in compliance in form and operation with its terms and with ERISA and the Code and all other applicable laws and
regulations, except where any failure to comply would not reasonably be expected to result in a Material Adverse Effect.
(b)
No ERISA Event has occurred in the five-year period prior to the date on which this representation is made or deemed made and is continuing
or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected
to occur, would reasonably be expected to result in a Material Adverse Effect.
Section
3.11. Disclosure.
(a)
As of the Closing Date, to the knowledge of the Borrower, all written factual information (other than the Projections, the model
delivered by the Sponsor to the Arrangers on June 4, 2017, other forward-looking or projected information, pro forma information and
information of a general economic or general industry nature (including any reports or memos prepared by third party consultants))
concerning Holdings, the Borrower and its Restricted Subsidiaries and the Transactions and that was included in the Information
Memorandum or otherwise prepared by or on behalf of the foregoing or the Sponsor or their respective representatives and made
available to any Initial Lender or the Administrative Agent in connection with the Transactions on or before the Closing Date (the
“Information”), when taken as a whole, did not, when furnished, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of
the circumstances under which such statements are made (after giving effect to all supplements and updates thereto from time to
time).
(b)
The Projections have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time furnished
(it being recognized that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies
many of which are beyond the Borrower’s control, that no assurance can be given that any particular financial projections (including
the Projections) will be realized, that actual results may differ from projected results and that such differences may be material).
Section
3.12. Solvency. As of the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date and
the incurrence of indebtedness and obligations on the Closing Date in connection with this Agreement and the Transactions, (i) the sum
of the debt (including contingent liabilities) of Holdings and its Subsidiaries, taken as a whole, does not exceed the fair value of
the assets of Holdings and its Subsidiaries, taken as a whole; (ii) the present fair saleable value of the assets of Holdings and its
Subsidiaries, taken as a whole, is not less than the amount that will be required to pay the probable liabilities (including contingent
liabilities) of Holdings and its Subsidiaries, taken as a whole, on their debts as they become absolute and matured; (iii) the capital
of Holdings and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of Holdings and its Subsidiaries,
taken as a whole, contemplated as of the Closing Date; and (iv) Holdings and its Subsidiaries, taken as a whole, do not intend to incur,
or believe that they will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debts
as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall
be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liability meets the criteria
for accrual under Statement of Financial Accounting Standards No. 5).
Section
3.13. Capitalization and Subsidiaries. Schedule 3.13 sets forth, in each case as of the Closing Date, (a) a correct and complete
list of the name of each subsidiary of Holdings and the ownership interest therein held by Holdings or its applicable subsidiary and
(b) the type of entity of Holdings and each of its subsidiaries.
Section
3.14. Security Interest in Collateral. Subject to the terms of the last paragraph of Section 4.01, the Legal
Reservations, the Perfection Requirements, the provisions, limitations and/or exceptions set forth in this Agreement and/or the
other relevant Loan Documents (including the Intercreditor Agreement or any other Acceptable Intercreditor Agreement), the
Collateral Documents create legal, valid and enforceable Liens on all of the Collateral in favor of the Administrative Agent, for
the benefit of itself and the other Secured Parties, and upon the satisfaction of the applicable Perfection Requirements, such Liens
constitute perfected Liens (with the priority such Liens are expressed to have within the relevant Collateral Documents) on the
Collateral (to the extent such Liens are required to be perfected under the terms of the Loan Documents) securing the Secured
Obligations, in each case as and to the extent set forth therein. For the avoidance of doubt, notwithstanding anything herein or in
any other Loan Document to the contrary, neither the Borrower nor any other Loan Party makes any representation or warranty (other
than any representation or warranty expressly made in such Loan Document) as to (A) the effects of perfection or non-perfection, the
priority or the enforceability of any pledge of or security interest in any Capital Stock of any Foreign Subsidiary, or as to the
rights and remedies of the Administrative Agent or any Lender with respect thereto, under foreign Requirements of Law, (B) the
enforcement of any security interest, or right or remedy with respect to any Collateral that may be limited or restricted by, or
require any consent, authorization approval or license under, any Requirement of Law, (C) on the Closing Date and until required
pursuant to Section 5.12 or the last paragraph of Section 4.01, as applicable, the pledge or creation of any security interest, or
the effects of perfection or non-perfection, the priority or enforceability of any pledge or security interest to the extent the
same is not required on the Closing Date pursuant to the final paragraph of Section 4.01 or (D) any Excluded Asset.
Section
3.15. Labor Disputes. As of the Closing Date, except as individually or in the aggregate would not reasonably be expected to have
a Material Adverse Effect: (a) there are no strikes, lockouts or slowdowns against the Borrower or any of its Restricted Subsidiaries
pending or, to the knowledge of the Borrower or any of its Restricted Subsidiaries, threatened in writing and (b) the hours worked by
and payments made to employees of the Borrower and its Restricted Subsidiaries have not been in violation of the Fair Labor Standards
Act or any other applicable Federal, state, local or foreign law dealing with such matters.
Section
3.16. Federal Reserve Regulations. No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any purpose that results in a violation of the provisions of
Regulation U and X.
Section
3.17. Sanctions and Anti-Corruption Laws.
(a)
(i) None of Holdings, the Borrower nor any of its Restricted Subsidiaries nor, to the knowledge of the Borrower, any director, officer,
agent, employee or controlled Affiliate of any of the foregoing is a Sanctioned Person; and (ii) the Borrower will not directly or, to
its knowledge, indirectly, use the proceeds of the Loans or otherwise make available such proceeds to any Sanctioned Person, for the
purpose of financing the activities of any Sanctioned Person, or in any Sanctioned Country, or in any other matter, in each case, that
would result in a violation by any Person party to this Agreement of Sanctions.
(b) Each
Loan Party is in compliance with applicable Sanctions in all material respects.
(c)
No part of the proceeds of any Loan or any Letter of Credit will be used, directly or, to the knowledge of the Borrower, indirectly,
for any payments to any governmental official or employee, political party, official of a political party, candidate for political office,
or any other person or entity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the U.S.
Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption law.
ARTICLE
4 CONDITIONS
Section
4.01. Closing Date. The obligations of (i) each Lender to make Loans and (ii) any Issuing Bank to issue Letters of Credit shall
not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a)
Credit Agreement and Loan Documents. The Administrative Agent (or its counsel) shall have received from each Loan Party party
thereto (i) a counterpart signed by each such Loan Party (or written evidence reasonably satisfactory to the Administrative Agent (which
may include a copy transmitted by facsimile or other electronic method) that such party has signed a counterpart) of (A) this Agreement,
(B) the Security Agreement, (C) the Loan Guaranty, (D) the Intercreditor Agreement and (E) any Promissory Note requested by a Lender
at least three Business Days prior to the Closing Date and (ii) a Borrowing Request as required by Section 2.03.
(b)
Legal Opinions. The Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders and each Issuing
Bank on the Closing Date, a customary written opinion of (i) Davis Polk & Wardwell LLP, in its capacity as special New York counsel
for Holdings, the Borrower and the Subsidiary Guarantors, (ii) DLA Piper LLP in its capacity as special Delaware counsel for Holdings,
the Borrower and the Subsidiary Guarantors and (iii) DLA Piper LLP in its capacity as special Virginia counsel for Holdings, the Borrower
and the Subsidiary Guarantors.
(c)
Financial Statements and Pro Forma Financial Statements. The Administrative Agent shall have received, (i) (x) audited consolidated
balance sheets of the Target and its consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive
loss, cash flows and stockholders’ equity of the Target and its consolidated subsidiaries for, the three most recently completed
fiscal years ended at least 110 days prior to the Closing Date and (y) an unaudited consolidated balance sheet of the Target and its
consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive loss, cash flows and stockholders’
equity of the Target and its consolidated subsidiaries for, each subsequent fiscal quarter (other than the fourth fiscal quarter of any
fiscal year) of the Target and its consolidated subsidiaries subsequent to the last fiscal year for which financial statements were delivered
pursuant to the preceding clause (x) and ended at least 46 days before the Closing Date (in the case of this clause (y), without footnotes)
and (ii) a unaudited pro forma consolidated balance sheet and related unaudited pro forma consolidated statement of income or operations
of the Target as of, and for the twelve-month period ending on, the last day of the most recently completed four-fiscal quarter period
ended at least 46 days (or 110 days, in case such four-fiscal quarter period is the end of the Target’s fiscal year) prior to the
Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such
balance sheet) or at the beginning of such period (in the case of such statement of income or operations), which need not be prepared
in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting (including
adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, (formerly SFAS 141R))
(it being understood that any purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations
determined by the Borrower). The Administrative Agent hereby acknowledges receipt of the financial statements referred to (i) in clause
(i)(x) above in respect of the fiscal years ended July 29, 2014, June 28, 2015 and July 3, 2016, (ii) in clause (i)(y) above in respect
of the fiscal quarters ended October 2, 2016, January 1, 2017 and April 2, 2017 and (iii) in clause (ii) above in respect of the pro
forma financial statements.
(d) Closing
Certificates; Certified Charters; Good Standing Certificates. The Administrative Agent (or its counsel) shall have received (i)
a certificate of each Loan Party, dated the Closing Date and executed by a secretary, assistant secretary or other senior officer
(as the case may be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or
written consents of its shareholders, board of directors, board of managers, members or other governing body authorizing the
execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, the borrowings
and issuance of Promissory Notes (if any) hereunder, and that such resolutions or written consents have not been modified, rescinded
or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the officers, managers,
directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which it is a party on the Closing
Date and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or
organization (or memorandum of association or other equivalent thereof) of such Loan Party certified by the relevant authority of
the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or operating, management, partnership
or similar agreement and (y) that such documents or agreements have not been amended (except as otherwise attached to such
certificate and certified therein as being the only amendments thereto as of such date) and (ii) a good standing (or equivalent)
certificate (if applicable) as of a recent date for such Loan Party from the relevant authority of its jurisdiction of
organization.
(e)
Representations and Warranties. (i) The Specified Acquisition Agreement Representations shall be true and correct in all material
respects as of the Closing Date solely to the extent required by the terms of the definition thereof and (ii) the Specified Representations
shall be true and correct in all material respects on and as of the Closing Date; provided that (A) in the case of any Specified
Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material
respects as of the respective date or for the respective period, as the case may be and (B) if any Specified Representation is qualified
by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the
definition thereof shall be the definition of “Closing Date Material Adverse Effect” for purposes of the making or deemed
making of such Specified Representation on, or as of, the Closing Date (or any date prior thereto).
(f)
Fees. Prior to or substantially concurrently with the funding of the Initial Term Loans hereunder, the Administrative Agent shall
have received (i) all fees required to be paid by the Borrower on the Closing Date pursuant to the Fee Letter and (ii) all expenses required
to be paid by the Borrower for which invoices have been presented at least three Business Days prior to the Closing Date (including the
reasonable fees and expenses of legal counsel for the Administrative Agent that are payable under the Commitment Letter entered into
between the Arrangers and the Borrower with respect to the Credit Facilities), in each case on or before the Closing Date, which amounts
may be offset against the proceeds of the Loans or may be paid from the proceeds of the Initial Loans.
(g) [Reserved.]
(h)
Refinancing. Prior to or substantially concurrently with the initial funding of the Loans hereunder, including by use of proceeds
thereof, the principal, accrued and unpaid interest, fees, premium, if any, and other amounts (other than (x) obligations not then due
and payable or that by their terms survive the termination of the Existing Credit Facilities and (y) the Existing Letters of Credit,
all of which, on the Closing Date will be deemed to be Letters of Credit issued hereunder) under the First Lien Credit Agreement dated
as of September 19, 2016 and the Second Lien Credit Agreement dated as of September 19, 2016 (in each case, as amended, supplemented
or otherwise modified from time to time prior to the Closing Date, the “Existing Credit Facilities”), will be repaid
in full and all commitments to extend credit under the Existing Credit Facilities will be terminated and any security interests and guarantees
in connection therewith shall be terminated and/or released (the “Refinancing”).
(i)
Equity Contribution. Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Equity Contribution
shall have been made substantially in the manner and at least in the amount set forth in the definition of Equity Contribution contained
herein (to the extent not otherwise applied to the Transactions).
(j) Solvency.
The Administrative Agent shall have received a certificate dated as of the Closing Date in substantially the form of Exhibit
M from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Target certifying as to
the matters set forth therein (or, at the option of Holdings, a third party opinion as to the solvency of the Target and its
subsidiaries on a consolidated basis in form and substance reasonably satisfactory to the Lead Arrangers issued by a nationally
recognized firm reasonably acceptable to the Lead Arrangers).
(k)
Perfection Certificate. Subject to the last paragraph of this Section 4.01, the Administrative Agent shall have received
a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of each Loan Party, together with all attachments
contemplated thereby.
(l)
Pledged Stock; Stock Powers; Pledged Notes. Subject to the last paragraph of this Section 4.01, the Administrative Agent
(or its bailee) shall have received (i) the certificates representing the Capital Stock required to be pledged pursuant to the Security
Agreement, together with an undated stock or similar power for each such certificate executed in blank by a duly authorized officer of
the pledgor thereof and (ii) each Material Debt Instrument (if any) required to be pledged pursuant to the Security Agreement endorsed
(without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(m) Filings
Registrations and Recordings. Subject to the last paragraph of this Section 4.01, each document (including any UCC
financing statement) required by any Collateral Document or under law to be filed, registered or recorded in order to create in
favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be
delivered pursuant to such Collateral Document, shall be in proper form for filing, registration or recordation.
(n)
Transactions. Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Acquisition shall be
consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications,
amendments, consents or waivers thereto, other than those modifications, amendments, consents or waivers by Merger Sub 1 or its Affiliates
that are materially adverse to the interests of the Lenders in their capacities as such, unless consented to in writing by the Arrangers
(such consent not to be unreasonably withheld, delayed or conditioned); it being understood and agreed that (a) any changes to, or waivers,
consents or approvals by Merger Sub 1 or its Affiliates in respect of, the definition of Closing Date Material Adverse Effect shall be
deemed materially adverse, (b) any reduction in the purchase price of less than 10% or in accordance with the Acquisition Agreement (including
pursuant to any working capital or purchase price adjustment provision set forth in the Acquisition Agreement) shall be deemed not to
be materially adverse, (c) any other reduction in the purchase price shall be deemed not to be materially adverse so long as such decrease
is allocated first to reduce the Equity Contribution to the Minimum Equity Percentage, with any excess then allocated to reduce the Equity
Contribution, the principal amount of the Term Loans and the second lien term loans under the Second Lien Facility on a pro rata, dollar-for-dollar
basis and (d) any increase in the purchase price shall be deemed not to be materially adverse so long as such increase is funded by an
increase in the Equity Contribution or amounts available to be drawn under the Revolving Facility on the Closing Date or such increase
is pursuant to any working capital or purchase price (or similar) adjustment provision set forth in the Acquisition Agreement.
(o)
Closing Date Material Adverse Effect. Since June 6, 2017, there shall have not been an event, change, effect or circumstance that,
individually or in the aggregate has had, or that would reasonably be expected to result in, a Closing Date Material Adverse Effect.
(p) USA
PATRIOT Act. No later than three Business Days in advance of the Closing Date, the Administrative Agent shall have received all
documentation and other information reasonably requested in writing by the Administrative Agent with respect to any Loan Party at
least ten Business Days in advance of the Closing Date, which documentation or other information is required by U.S. regulatory
authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA
PATRIOT Act.
For
purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding
the Loans hereunder, the Administrative Agent and each Lender that has executed this Agreement (or an Assignment and Assumption on the
Closing Date) shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required
hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may
be.
Notwithstanding
the foregoing, to the extent any Lien search or Collateral (including the creation or perfection of any security interest) is not or
cannot be provided on the Closing Date (other than, (i) a Lien on Collateral of any Loan Party that may be perfected by the filing of
a financing statement under the UCC (without need for any other action) and (ii) a pledge of the Capital Stock of the Borrower, the Subsidiary
Guarantors and each other wholly-owned Material Domestic Restricted Subsidiary to the extent certificated with respect to which a Lien
may be perfected on the Closing Date by the delivery of a stock or equivalent certificate, together with a related stock or equivalent
power executed in blank) after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense (and
with respect to the delivery of stock or equivalent certificates of relevant subsidiaries of the Target whose Capital Stock is required
to be pledged pursuant to the Security Agreement, only to the extent received after the Borrower’s use of commercially reasonable
efforts to do so), then the provision of any such Lien search and/or the provision and/or perfection of such Collateral shall not constitute
a condition precedent to the availability and initial funding of the Loans on the Closing Date but may, if required, instead be delivered
and/or perfected 90 days after the Closing Date pursuant to arrangements to be mutually agreed between the Borrower and the Administrative
Agent and subject to extensions as are reasonably agreed by the Administrative Agent.
Section
4.02. Each Credit Extension. After the Closing Date, the obligation of each Revolving Lender to make a Credit Extension (which,
for the avoidance of doubt (including for purposes of the last paragraph of this Section 4.02), shall not include (A) any Incremental
Loans advanced in connection with any acquisition, other Investment or irrevocable repayment or redemption of Indebtedness and/or (B)
any Credit Extension under any Incremental Facility Amendment, Refinancing Amendment and/or Extension Amendment, in each case to the
extent not otherwise required by the lenders in respect of thereof) is subject to the satisfaction of the following conditions:
(a)
(i) In the case of a Borrowing, the Administrative Agent shall have received a Borrowing Request as required by Section 2.03,
(ii) in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received
a notice requesting the issuance of such Letter of Credit as required by Section 2.05(b) or (iii) in the case of a Borrowing of
Swingline Loans, the Swingline Lender and the Administrative Agent shall have received a request as required by Section 2.04(a).
(b)
The representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and
correct in all material respects on and as of the date of any such Credit Extension with the same effect as though such
representations and warranties had been made on and as of the date of such Credit Extension; provided that to the extent that
any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects
as of such date or for such period; provided further that, during the Covenant Waiver Period, for purposes of this Section
4.02(b), as it pertains to the obligation of any Revolving Lender to make a Credit Extension, events and circumstances
surrounding, and/or any matters or impacts arising from, related to, or in connection with, the outbreak and spread of the novel
coronavirus known as COVID-19 shall not constitute, result in or otherwise have (or reasonably be expected to constitute, result in
or otherwise have) a Material Adverse Effect of the type described in clause (b)(i) of the definition thereof, and in each case
shall be disregarded.
(c) At
the time of and immediately after giving effect to the applicable Credit Extension, no Event of Default or Default shall have
occurred and be continuing.
Each
Credit Extension after the Closing Date shall be deemed to constitute a representation and warranty by the Borrower on the date thereof
as to the matters specified in paragraphs (b) and (c) of this Section.
ARTICLE
5 AFFIRMATIVE COVENANTS
From
the Closing Date until the date that all the Revolving Credit Commitments and all other Commitments have expired or terminated and the
principal of and interest on each Loan and all fees, expenses and other Obligations payable under any Loan Document (other than contingent
indemnification obligations for which no claim or demand has been made) have been paid in full in Cash and all Letters of Credit have
expired or have been terminated (or have been (x) collateralized or back-stopped by a letter of credit or otherwise in a manner reasonably
satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing Banks or (y) deemed reissued under another agreement
in a manner reasonably satisfactory to the Administrative Agent and the relevant Issuing Bank or Issuing Banks) and all LC Disbursements
have been reimbursed (such date, the “Termination Date”), Holdings (solely with respect to Sections 5.02 and
5.03) and the Borrower hereby covenant and agree with the Lenders that:
Section
5.01. Financial Statements and Other Reports. The Borrower will deliver to the Administrative Agent for delivery by
the Administrative Agent to each Lender:
(a)
Quarterly Financial Statements. As soon as available, and in any event within 45 days (or 90 days in the case of the first Fiscal
Quarter ending after the Closing Date and 75 days in the case of the second and third Fiscal Quarters ending after the Closing Date)
after the end of each of the first three Fiscal Quarters of each Fiscal Year, commencing with the Fiscal Quarter ending on or about September
30, 2017, (i) the unaudited consolidated balance sheet of Holdings as at the end of such Fiscal Quarter and the related unaudited consolidated
statements of income and cash flows of Holdings for such Fiscal Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter and setting forth, in reasonable detail, in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year, all in reasonable detail, together with a Responsible Officer Certification (which
may be included in the applicable Compliance Certificate) with respect thereto and (ii) a Narrative Report; provided that such
financial statements shall only be required to reflect Holdings’ good faith estimate of any purchase accounting adjustments relating
to (A) the Acquisition for any Fiscal Quarter prior to on or about June 30, 2018 and (B) any acquisition consummated after the Closing
Date until the Fiscal Quarter ending on or about June 30 of the Fiscal Year following the Fiscal Year in which the relevant acquisition
was consummated;
(b) Annual
Financial Statements. As soon as available, and in any event within 120 days (or, in the case of the Fiscal Year ending on or
about June 30, 2017, 150 days) after the end of each Fiscal Year ending after the Closing Date, (i) the consolidated balance sheet
of Holdings as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash
flows of Holdings for such Fiscal Year and, commencing after the completion of the second full Fiscal Year ended after the Closing
Date, setting forth, in reasonable detail, in comparative form the corresponding figures for the previous Fiscal Year and (ii) with
respect to such consolidated financial statements, (A) a report thereon of an independent certified public accountant of recognized
national standing or another accounting firm reasonably acceptable to the Administrative Agent (which report shall be unqualified as
to “going concern” and scope of audit (except for any such qualification pertaining to, or disclosure of an exception or
qualification resulting from, the maturity (or impending maturity) of any Credit Facility, any Second Lien Facility or any other
Indebtedness occurring within one year of the date of delivery of the relevant audit opinion, any breach or anticipated breach of
any financial covenant or the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary), and
shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial
position of Holdings as at the dates indicated and its income and cash flows for the periods indicated in conformity with GAAP and
(B) a Narrative Report;
(c) Compliance
Certificate; Unrestricted Subsidiaries. (i) Within 5 Business Days after the delivery of financial statements of Holdings
pursuant to Section 5.01(a) or 5.01(b) with respect to any Fiscal Quarter or Fiscal Year, as applicable, a duly
executed and completed Compliance Certificate and (ii) within 5 Business Days after the delivery of financial statements of Holdings
pursuant to Section 5.01(b), (A) a summary (which may be in footnote form) of the pro forma adjustments necessary to
eliminate the accounts of Unrestricted Subsidiaries (if any) from such financial statements and (B) a list identifying each
subsidiary of the Borrower as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such financial
statements or confirming that there is no change in such information since the later of the Closing Date and the most recent prior
delivery of such information;
(d) [Reserved];
(e)
Notice of Default or Event of Default. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) any Default
or Event of Default or (ii) the occurrence of any event or change that has caused or evidences or would reasonably be expected to cause
or evidence, either in any case or in the aggregate, a Material Adverse Effect, a reasonably detailed notice specifying the nature and
period of existence of such condition, event or change and what action the Borrower has taken, is taking and proposes to take with respect
thereto;
(f)
Notice of Litigation. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) the institution of any
Adverse Proceeding not previously disclosed in writing by the Borrower to the Administrative Agent or (ii) any material development in
any Adverse Proceeding that, in the case of either clauses (i) or (ii), would reasonably be expected to have a Material Adverse Effect,
written notice thereof by the Borrower together with such other non-privileged information as may be reasonably available to the Loan
Parties to enable the Lenders to evaluate such matters;
(g)
ERISA. Promptly upon any Responsible Officer of the Borrower becoming aware of the occurrence of any ERISA Event that would reasonably
be expected to have a Material Adverse Effect, a written notice specifying the nature thereof;
(h)
Financial Plan. Prior to a Qualifying IPO, together with the delivery of financial statements of the Borrower pursuant to Section
5.01(b) with respect to any Fiscal Year, commencing with the Fiscal Year ending on or about June 30, 2018, an operating budget for
the next Fiscal Year in a form as customarily prepared by management of the Borrower for its internal use or such other form as the Borrower
and Administrative Agent may reasonably agree;
(i) Information
Regarding Collateral. Promptly (and, in any event, within 45 days of the relevant change or such later date as the
Administrative Agent may agree) written notice of any change (i) in any Loan Party’s legal name, (ii) in any Loan
Party’s type of organization, (iii) in any Loan Party’s jurisdiction of organization or (iv) in any Loan Party’s
organizational identification number, in each case to the extent such information is necessary to enable the Administrative Agent to
perfect or maintain the perfection and priority of its security interest in the Collateral of the relevant Loan Party, together with
certified copies of the applicable Organizational Documents reflecting the relevant change;
(j)
Certain Reports. Promptly upon their becoming publicly available and without duplication of any obligations with respect to any
such information that is otherwise required to be delivered under the provisions of any Loan Document, copies of (i) following a Qualifying
IPO, all financial statements, material reports, material notices and proxy statements sent or made available generally by Holdings to
its security holders acting in such capacity and (ii) all material regular and periodic reports and all material registration statements
(other than on Form S-8 or a similar form) and prospectuses, if any, filed by the Borrower or any of its Restricted Subsidiaries with
any securities exchange or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters
relating to securities (other than amendments to any registration statement (to the extent such registration statement, in the form it
became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S-8 or
a similar form); provided that no such delivery shall be required hereunder with respect to any of the foregoing to the extent that such
are publicly available via EDGAR; and
(k)
Other Information. Such other certificates, reports and information (financial or otherwise) as the Administrative Agent may reasonably
request from time to time regarding the financial condition or business of the Borrower and its Restricted Subsidiaries; provided, however,
that none of Holdings, the Borrower or any Restricted Subsidiary shall be required to disclose or provide any information (i) that constitutes
non-financial trade secrets or non-financial proprietary information of Holdings, the Borrower or any of its subsidiaries or any of their
respective customers and/or suppliers, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or any of their
respective representatives) is prohibited by any applicable Requirement of Law, (iii) that is subject to attorney-client or similar privilege
or constitutes attorney work product or (iv) in respect of which Holdings, the Borrower or any Restricted Subsidiary owes confidentiality
obligations to any third party (provided such confidentiality obligations were not entered into solely in contemplation of the requirements
of this Section 5.01(k)); provided, further, that in the event the Borrower does not provide any certificate, report or
information requested pursuant to this clause (k) in reliance on the preceding proviso, the Borrower shall provide notice to the
Administrative Agent that such certificate, report or information is being withheld and the Borrower shall use commercially reasonable
efforts to describe, to the extent both feasible and permitted under applicable Requirements of Law or confidentiality obligations, or
without waiving such privilege, as applicable, the applicable certificate, report or information.
Documents
required to be delivered pursuant to this Section 5.01 may be delivered electronically and, if so delivered, shall be deemed
to have been delivered on the date (i) on which the Borrower (or a representative thereof) (x) posts such documents or (y) provides
a link thereto at the website address listed on Schedule 9.01 (as updated from time to time); provided that, other
than with respect to items required to be delivered pursuant to Section 5.01(j) above, the Borrower shall promptly notify
(which notice may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents on such website
and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents; (ii) on which
such documents are delivered by the Borrower to the Administrative Agent for posting on behalf of the Borrower on IntraLinks,
SyndTrak or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); (iii) on which such documents are faxed to the Administrative
Agent (or electronically mailed to an address provided by the Administrative Agent); or (iv) in respect of the items required to be
delivered pursuant to Section 5.01(j) above in respect of information filed by Holdings, the Borrower or any of its
Restricted Subsidiaries with any securities exchange or with the SEC or any analogous governmental or private regulatory authority
with jurisdiction over matters relating to securities (other than Form 10-Q Reports and Form 10-K Reports), on which such items have
been made available on the SEC website or the website of the relevant analogous governmental or private regulatory authority or
securities exchange.
Notwithstanding
the foregoing, the obligations in paragraphs (a), (b) and (h) of this Section 5.01 may be satisfied with respect
to any financial statements of Holdings by furnishing (A) the applicable financial statements of the Borrower (or any Parent Company)
or (B) the Borrower’s (or any Parent Company’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC or any
securities exchange, in each case, within the time periods specified in such paragraphs; provided that, with respect to each of
clauses (A) and (B), (i) to the extent such financial statements relate to any Parent Company, such financial statements
shall be accompanied by consolidating information (which consolidating information need not be audited) that summarizes in reasonable
detail the differences between the information relating to such Parent Company, on the one hand, and the information relating to the
Borrower or Holdings on a standalone basis, on the other hand, which consolidating information shall be certified by a Responsible Officer
of Holdings as having been fairly presented in all material respects and (ii) to the extent such statements are in lieu of statements
required to be provided under Section 5.01(b), such statements shall be accompanied by a report and opinion of an independent
registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative
Agent, which report and opinion shall satisfy the applicable requirements set forth in Section 5.01(b) as if the references to
“Holdings” or “the Borrower” (as applicable) therein were references to such Parent Company.
No
financial statement required to be delivered pursuant to Section 5.01(a) or (b) shall be required to include acquisition
accounting adjustments relating to the Transactions or any Permitted Acquisition or other Investment to the extent it is not practicable
to include any such adjustments in such financial statement.
Section
5.02. Existence. Except as otherwise permitted under Section 6.07 or as a result of the consummation of a Permitted Reorganization
or the consummation of a Holdings Reorganization Transaction, Holdings and the Borrower will, and the Borrower will cause each of its
Restricted Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights, franchises, licenses
and permits material to its business except, other than with respect to the preservation of the existence of the Borrower, to the extent
that the failure to do so would not reasonably be expected to result in a Material Adverse Effect; provided that neither Holdings
nor the Borrower nor any of the Borrower’s Restricted Subsidiaries shall be required to preserve any such existence (other than
with respect to the preservation of existence of the Borrower, except as otherwise permitted under Section 6.07 or as a result
of the consummation of a Permitted Reorganization), right, franchise, license or permit if a Responsible Officer of such Person or such
Person’s board of directors (or similar governing body) determines that the preservation thereof is no longer desirable in the
conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to
the Lenders.
Section
5.03. Payment of Taxes. Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, pay
all Taxes imposed upon it or any of its properties or assets or in respect of any of its income or businesses or franchises before any
penalty or fine accrues thereon; provided that no such Tax need be paid if (a) it is being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, so long as (i) adequate reserves or other appropriate provisions, as are required
in conformity with GAAP, have been made therefor and (ii) in the case of a Tax which has or may become a Lien against a material portion
of the Collateral, such contest proceedings conclusively operate to stay the sale of such portion of the Collateral to satisfy such Tax
or (b) failure to pay or discharge the same would not reasonably be expected to result in a Material Adverse Effect.
Section
5.04. Maintenance of Properties. The Borrower will, and will cause each of its Restricted Subsidiaries to, maintain or cause to
be maintained in good repair, working order and condition, ordinary wear and tear and casualty and condemnation excepted, all material
tangible property reasonably necessary to the normal conduct of business of the Borrower and its Restricted Subsidiaries and from time
to time will make or cause to be made all needed and appropriate repairs, renewals and replacements thereof except as expressly permitted
by this Agreement or where the failure to maintain such tangible properties or make such repairs, renewals or replacements would not
reasonably be expected to have a Material Adverse Effect.
Section
5.05. Insurance. Except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, the Borrower
will maintain or cause to be maintained, in each case, as determined by the Borrower in good faith, with financially sound and reputable
insurers, such insurance coverage with respect to liabilities, losses or damage in respect of the assets, properties and businesses of
the Borrower and its Restricted Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to self-insurance), with such deductibles, covering
such risks and otherwise on such terms and conditions as shall be customary for such Persons, including, but only if required by applicable
law or regulation, flood insurance with respect to each Flood Hazard Property, in each case in compliance with applicable Flood Insurance
Laws, in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing
or interpreting any of the foregoing, as amended or modified from time to time. Each such policy of insurance shall (i) name the Administrative
Agent on behalf of the Secured Parties as a loss payee and mortgagee or an additional insured, as applicable, thereunder as its interests
may appear and (ii) to the extent available from the relevant insurance carrier, in the case of each casualty insurance policy (excluding
any business interruption insurance policy), contain a loss payable clause or endorsement that names the Administrative Agent, on behalf
of the Secured Parties, as the loss payee thereunder and, to the extent available, provide for at least 30 days’ prior written
notice to the Administrative Agent of any modification or cancellation of such policy (or 10 days’ prior written notice in the
case of the failure to pay any premiums thereunder); provided that the Borrower shall have 45 days after the Closing Date (or
such later date as agreed by the Administrative Agent) to comply with the requirements of the foregoing clauses (i) and (ii) with respect
to policies in effect on the Closing Date.
Section
5.06. Inspections. The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any authorized representative
designated by the Administrative Agent to visit and inspect any of the properties of the Borrower and any of its Restricted Subsidiaries
at which the principal financial records and executive officers of the applicable Person are located, to inspect, copy and take extracts
from its and their respective financial and accounting records, and to discuss its and their respective affairs, finances and accounts
with its and their Responsible Officers and independent public accountants (subject to such accountants’ customary policies and
procedures) (provided that the Borrower (or any of its subsidiaries) may, if it so chooses, be present at or participate in any
such discussion), all upon reasonable notice and at reasonable times during normal business hours; provided that (x) only the
Administrative Agent on behalf of the Lenders may exercise the rights of the Administrative Agent and the Lenders under this Section
5.06, (y) the Administrative Agent shall not exercise such rights more often than one time during any calendar year and (z) only
one such time per calendar year shall be at the expense of the Borrower; provided, further, that when an Event of Default
exists, the Administrative Agent (or any of its representatives or independent contractors) may do any of the foregoing at the expense
of the Borrower at any time during normal business hours and upon reasonable advance notice; provided, further that notwithstanding
anything to the contrary herein, neither the Borrower nor any Restricted Subsidiary shall be required to disclose, permit the inspection,
examination or making of copies of or taking abstracts from, or discuss any document, information or other matter (i) that constitutes
non-financial trade secrets or non-financial proprietary information of the Borrower and its subsidiaries and/or any of its customers
and/or suppliers, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives
or contractors) is prohibited by applicable law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney
work product or (iv) in respect of which Holdings, the Borrower or any Restricted Subsidiary owes confidentiality obligations to any
third party (provided such confidentiality obligations were not entered into solely in contemplation of the requirements of this Section
5.06); provided, further, that in the event any of the circumstances described in the preceding proviso exist, the Borrower
shall provide notice to the Administrative Agent thereof and shall use commercially reasonable efforts to describe, to the extent both
feasible and permitted under applicable Requirements of Law or confidentiality obligations, or without waiving such privilege, as applicable,
the applicable document, information or other matter.
Section
5.07. Maintenance of Book and Records. The Borrower will, and will cause its Restricted Subsidiaries to, maintain proper books
of record and account containing entries of all material financial transactions and matters involving the assets and business of the
Borrower and its Restricted Subsidiaries that are full, true and correct in all material respects and permit the preparation of consolidated
financial statements in accordance with GAAP.
Section
5.08. Compliance with Laws. The Borrower will comply, and will cause each of its Restricted Subsidiaries to comply, with the requirements
of all applicable laws, rules, regulations and orders of any Governmental Authority (including ERISA and all Environmental Laws, Sanctions
and the U.S. Foreign Corrupt Practices Act of 1977), except to the extent the failure of the Borrower or the relevant Restricted Subsidiary
to comply would not reasonably be expected to have a Material Adverse Effect.
Section
5.09. Hazardous Materials Activity.
(a) The
Borrower will deliver to the Administrative Agent:
(i)
reasonably promptly following receipt by Borrower thereof, copies of all written environmental audits, investigations, analyses and reports
of any kind or character, whether prepared by personnel of the Borrower or any of its Restricted Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to any Environmental Liabilities or Hazardous Materials Activity that, in
each case could reasonably be expected to have a Material Adverse Effect;
(ii)
reasonably promptly following Borrower becoming aware of the occurrence thereof, written notice describing in reasonable detail (A) any
Release required to be reported by the Borrower or any of its Restricted Subsidiaries to any federal, state or local governmental or
regulatory agency under any applicable Environmental Law, (B) any remedial action taken by or on behalf of the Borrower or any of its
Restricted Subsidiaries in response to any Hazardous Materials Activity or Environmental Claim, or (C) any pending or threatened Environmental
Claim, that in the case of each of (A), (B) and (C) above, would reasonably be expected to have a Material Adverse Effect; and
(iii)
reasonably promptly following the sending or receipt thereof by the Borrower or any of its Restricted Subsidiaries, a copy of any and
all written communications with respect to any Release required to be reported by the Borrower or any of its Restricted Subsidiaries
to any federal, state or local governmental or regulatory agency or any Release required to be remediated pursuant to any Environmental
Law, that in each case would reasonably be expected to have a Material Adverse Effect.
(b)
The Borrower shall reasonably promptly take, and shall cause each of its Restricted Subsidiaries reasonably promptly to take, any and
all actions reasonably necessary to (i) cure any violation of Environmental Law by the Borrower or any of its Restricted Subsidiaries,
and, to the extent required by Environmental Law, address with appropriate corrective or remedial action any Release or threatened Release
of any Hazardous Material at or from any Facility, that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect and (ii) make an appropriate response to any Environmental Claim against the Borrower or any of its Restricted Subsidiaries
and discharge any obligations it may have to any Person thereunder, where failure to do so could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect; provided that it shall not be deemed to be a violation of this Section 5.09
if the Borrower or its Restricted Subsidiaries are in good faith contesting such violation or Environmental Claim in accordance with
applicable Environmental Law.
Section
5.10. Designation of Subsidiaries. The Borrower may at any time after the Closing Date designate (or re-designate) any subsidiary
as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) no subsidiary may be
designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of the Second Lien Credit Agreement
and (ii) as of the date of the designation thereof, no Unrestricted Subsidiary shall own any Capital Stock in any Restricted Subsidiary
of the Borrower (unless such Restricted Subsidiary is also designated as an Unrestricted Subsidiary simultaneously with the aforementioned
designation in accordance with the terms of this Section 5.10) or hold any Indebtedness of or any Lien on any property of the
Borrower or its Restricted Subsidiaries (unless the Borrower or such Restricted Subsidiary is permitted hereunder to incur such Indebtedness
or grant such Lien in favor of such Unrestricted Subsidiary). The designation of any subsidiary as an Unrestricted Subsidiary shall constitute
an Investment by the Borrower therein at the date of designation in an amount equal to the portion of the fair market value of the net
assets of such Restricted Subsidiary attributable to the Borrower’s equity interest therein as estimated by the Borrower in good
faith (and such designation shall only be permitted to the extent such Investment is permitted under Section 6.06). The designation
of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence or making, as applicable, at the time of designation
of any then-existing Investment, Indebtedness or Lien of such Restricted Subsidiary, as applicable; provided that upon a re-designation
of any Unrestricted Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have an Investment in the resulting
Restricted Subsidiary in an amount (if positive) equal to (a) the Borrower’s “Investment” in such Restricted Subsidiary
at the time of such re-designation less (b) the portion of the fair market value of the net assets of such Restricted Subsidiary attributable
to the Borrower’s equity therein at the time of such re-designation. As of the Closing Date, the subsidiaries listed on Schedule
5.10 hereto have been designated as Unrestricted Subsidiaries.
Section
5.11. Use of Proceeds. The Borrower shall use the proceeds of the Revolving Loans (a) on the Closing Date, (i) to replace,
backstop or cash collateralize Existing Letters of Credit, guarantees or performance or similar bonds or to issue Letters of Credit
and (ii) in an aggregate principal amount of up to $15,000,000 to pay Transaction Costs and expenses and for purchase price and
working capital adjustments, if any, under the Acquisition Agreement and to provide for ordinary course working capital needs and
general corporate purposes and (b) after the Closing Date, to finance the working capital needs and other general corporate purposes
of the Borrower and its subsidiaries (including for capital expenditures, acquisitions, working capital and/or purchase price
adjustments, the payment of transaction fees and expenses (in each case, including in connection with the Acquisition), other
Investments, Restricted Payments, Restricted Debt Payments and any other purpose not prohibited by the terms of the Loan Documents).
The Borrower shall use the proceeds of the Swingline Loans made after the Closing Date to finance the working capital needs and
other general corporate purposes of the Borrower and its subsidiaries and any other purpose not prohibited by the terms of the Loan
Documents. The Borrower shall use the proceeds of the Initial Term Loans (i) to effect all or a portion of the Refinancing, (ii) to
finance all or a portion of the Transactions, the Amendment No. 1 Transactions (including working capital and/or purchase price
adjustments and the payment of Transaction Costs) and (iii) for general corporate purposes. The Borrower shall use the proceeds of
the Amendment No. 2 Term Loans (x) to repay the Existing Term Loans (as defined in Amendment No. 2) and for the payment of fees and
expenses in connection therewith, together with the accrued and unpaid interest thereon, (y) to finance all or a portion of the
Amendment No. 2 Transactions (including the payment of Transaction Costs) and (z) for general corporate purposes. The Borrower shall
use the proceeds of the Amendment No. 3 Incremental Term Loans to finance all or a portion of the Amendment No. 3 Transactions
(including the payment of transaction costs) and, as further set forth below, for general corporate purposes (including any purpose
not otherwise prohibited hereunder). No part of the proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that would entail a violation of Regulation U. The Borrower shall use the proceeds of the Incremental Term Loans for working
capital, capital expenditures and other general corporate purposes of the Borrower and its subsidiaries (including for Restricted
Payments, Investments, Permitted Acquisitions and any other purpose not prohibited by the terms of the Loan Documents) (and, in the
case of the Amendment No. 1 Incremental Term Loans, the Amendment No. 2 Term Loans and the Amendment No. 3 Incremental Term Loans
(each, as applicable), to finance all or a portion of the Amendment No. 1 Transactions, the Amendment No. 2 Transactions and the
Amendment No. 3 Transactions, as applicable).
Section
5.12. Covenant to Guarantee Obligations and Give Security.
(a)
Upon (i) the formation or acquisition after the Closing Date of any Restricted Subsidiary that is a Domestic Subsidiary (subject to Section
6.06(hh)), (ii) the designation of any Unrestricted Subsidiary that is a Domestic Subsidiary as a Restricted Subsidiary, (iii) any Restricted
Subsidiary that is a Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary ceasing to be an Excluded
Subsidiary (including by election of the Borrower as set forth herein), (x) if the event giving rise to the obligation under this Section
5.12(a) occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the date on which financial statements are
required to be delivered pursuant to Section 5.01(a) for the Fiscal Quarter in which the relevant formation, acquisition, designation
or cessation occurred or (y) if the event giving rise to the obligation under this Section 5.12(a) occurs during the fourth Fiscal
Quarter of any Fiscal Year, on or before the date that is 60 days after the end of such Fiscal Quarter (or, in the cases of clauses
(x) and (y), such longer period as the Administrative Agent may reasonably agree), the Borrower shall (A) cause such Restricted
Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in clause (a) of the definition of “Collateral
and Guarantee Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary
(other than any Excluded Subsidiary) to deliver to the Administrative Agent a signed copy of a customary opinion of counsel for such
Restricted Subsidiary, addressed to the Administrative Agent and the other relevant Secured Parties.
(b)
Within 120 days (or such longer period as the Administrative Agent may reasonably agree) after the acquisition by any Loan Party of
any Material Real Estate Asset, other than any Excluded Asset, the Borrower shall cause such Loan Party to comply with the
requirements set forth in clause (b) of the definition of “Collateral and Guarantee Requirement”; it being
understood and agreed that, with respect to any Material Real Estate Asset (other than any Excluded Asset) owned by any Restricted
Subsidiary at the time such Restricted Subsidiary is required to become a Loan Party under Section 5.12(a) above, such
Material Real Estate Asset shall be deemed to have been acquired by such Restricted Subsidiary on the first day of the time period
within which such Restricted Subsidiary is required to become a Loan Party under Section 5.12(a).
Notwithstanding anything to
the contrary herein or in any other Loan Document, (i) the Administrative Agent may grant extensions of time (including after the
expiration of any relevant period, which apply retroactively) for the creation and perfection of security interests in, or obtaining
of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan
Guaranty by any Restricted Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the
Closing Date), and each Lender hereby consents to any such extension of time, (ii) any Lien required to be granted from time to time
pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations
set forth in the Collateral Documents, (iii) perfection by control shall not be required with respect to assets requiring perfection
through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts
(other than control of pledged Capital Stock and/or Material Debt Instruments, in each case, that constitute Collateral) and no
blocked account agreement, account control agreement or similar agreement shall be required, (iv) no Loan Party shall be required to
seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement,
(v) no Loan Party will be required to (1) take any action outside of the United States or grant or perfect any security interest in
any asset located outside of the U.S. or conduct any foreign lien search, (2) execute any foreign law guarantee, security agreement,
pledge agreement, mortgage, deed or charge or (3) make any foreign intellectual property filing, conduct any foreign intellectual
property search or prepare any foreign intellectual property schedule with respect to any assets of any Loan Party or enter into any
source code escrow arrangement or register any intellectual property, (vi) in no event will the Collateral include any Excluded
Assets, (vii) no action shall be required to perfect any Lien with respect to (x) any vehicle or other asset subject to a
certificate of title, or any retention of title, extended retention of title rights, or similar rights and/or (y) Letter-of-Credit
Rights, in each case to the extent that a security interest therein cannot be perfected by filing a Form UCC-1 (or similar)
“all assets” financing statement without the requirement to list any VIN, serial or other number and (viii) the
Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to
which the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its
operations and business in the ordinary course of business) of obtaining or perfecting such Lien (including any mortgage, stamp,
intangibles or other tax or expenses relating to such Lien) outweighs the benefit to the Lenders of the security afforded thereby as
reasonably determined by the Borrower and the Administrative Agent; provided that the foregoing shall not apply and shall not
operate to limit the obligation of the Loan Parties to provide security in foreign jurisdictions (subject to “agreed security
principles” to be negotiated in good faith between the Borrower and the Administrative Agent) if a Foreign Subsidiary becomes
a Guarantor.
Additionally,
(i) no action shall be required to create or perfect a Lien in any asset in respect of which the creation or perfection of a
security interest therein would (1) be prohibited by enforceable anti-assignment provisions set forth in any contract that is
permitted or otherwise not prohibited by the terms of this Agreement, (2) violate the terms of any contract relating to such asset
that is permitted or otherwise not prohibited by the terms of this Agreement, in each case, after giving effect to the applicable
anti- assignment provisions of the UCC or other applicable law or (3) trigger termination of any contract relating to such asset
that is permitted or otherwise not prohibited by the terms of this Agreement pursuant to any “change of control” or
similar provision, it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract
described in this clause (other than Excluded Assets) to the extent the assignment of such proceeds or receivables is expressly
deemed effective under the UCC or other applicable Requirements of Law notwithstanding the relevant prohibition, violation or
termination right, (ii) no Loan Party shall be required to create or perfect a security interest in any asset to the extent the
creation or perfection of a security interest in such asset would (A) be prohibited under any applicable Requirement of Law, after
giving effect to any applicable anti-assignment provision of the UCC or other applicable law and other than proceeds thereof (other
than Excluded Assets) to the extent that the assignment of such proceeds is effective under the UCC or other applicable Requirements
of Law notwithstanding such Requirement of Law, (B) require any governmental consent, approval, license or authorization (unless
such consent, approval, license or authorization has been obtained), after giving effect to any applicable anti-assignment provision
of the UCC or other applicable law and other than proceeds thereof (other than Excluded Assets) to the extent that the assignment of
such proceeds is effective under the UCC or other applicable Requirements of Law notwithstanding such consent or restriction and/or
(C) result in adverse tax consequences or adverse regulatory consequences to any Loan Party or any of its subsidiaries or Parent
Companies as determined by the Borrower in good faith following consultation with the Administrative Agent, (iii) any joinder or
supplement to any Loan Guaranty, any Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that
is required to become a Loan Party pursuant to Section 5.12(a) above may, with the consent of the Administrative Agent (not
to be unreasonably withheld or delayed), include such schedules (or updates to schedules) as may be necessary to qualify any
representation or warranty set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is
true and correct to the extent required thereby or by the terms of any other Loan Document; and (iv) (A) no Loan Party will be
required to take any action required under the Federal Assignment of Claims Act or any similar law and (B) no Secured Party will be
permitted to exercise any right of setoff in respect of any account maintained solely for the purpose of receiving and holding
government receivables.
Section
5.13. Maintenance of Ratings. The Borrower shall use commercially reasonable efforts to maintain public corporate credit facility
and public corporate family ratings in respect of Holdings from each of S&P and Moody’s; provided that in no event shall
the Borrower be required to maintain any specific rating with any such agency.
Section
5.14. Maintenance of Fiscal Year. The Borrower shall maintain its Fiscal Year-end as in effect on the Closing Date; provided that
the Borrower may, upon written notice to the Administrative Agent, change its Fiscal Year-end to another date, in which case the Borrower
and the Administrative Agent will, and are hereby authorized to (without requiring the consent of any other Person, including any Lender),
make any adjustments to this Agreement that are necessary to reflect such change in Fiscal Year.
Section
5.15. Further Assurances. Promptly upon reasonable request of the Administrative Agent and subject to the limitations
described in Section 5.12:
(a)
The Borrower will, and will cause each other Loan Party to, execute any and all further documents, financing statements, agreements,
instruments, certificates, notices and acknowledgments and take all such further actions (including the filing and recordation of financing
statements, fixture filings, Mortgages and/or amendments thereto and other documents), that may be required under any applicable law
and which the Administrative Agent may reasonably request to ensure the perfection and priority of the Liens created or intended to be
created under the Collateral Documents, all at the expense of the relevant Loan Parties. For the avoidance of doubt, in no event shall
any (x) Excluded Property or (y) property subject to a Sale and Lease-Back Transaction permitted hereunder be required to be made subject
to the Collateral Documents.
(b)
The Borrower will, and will cause each other Loan Party to, (i) correct any material defect or error that may be discovered in the execution,
acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral and (ii)
do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts (including
notices to third parties), deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from
time to time in order to ensure the creation and perfection of the Liens created under the Collateral Documents.
Section
5.16. Conduct of Business. The Borrower and its Restricted Subsidiaries shall engage only in those material lines of business
that consist of (a) the businesses engaged in by the Borrower or any Restricted Subsidiary on the Closing Date, reasonably related, similar,
incidental, complementary, ancillary, corollary, synergistic or related businesses or reasonable extensions, development or expansion
(or proposed to be engaged) of such businesses (including entertainment and amusement media and content business in connection therewith)
and (b) such other lines of business to which the Administrative Agent may consent.
Section
5.17. Annual Lender Call. Upon the request of the Administrative Agent following each delivery of financial statements pursuant
to Section 5.01(b) (commencing with respect to the financial statements delivered for the Fiscal Year ending on or about June
30, 2018), the Borrower shall participate in a conference call with Lenders arranged by the Administrative Agent to provide discussion
and analysis with respect to the financial condition and results of operations of the Borrower and its Restricted Subsidiaries at a time
at which the Borrower and the Administrative Agent mutually agree.
Section
5.18. Post-Closing Actions. Take the actions set forth on Schedule 5.18 within the time periods specified thereon (or by
such later time as the Administrative Agent may reasonably agree).
ARTICLE
6 NEGATIVE COVENANTS
From
the Closing Date and until the Termination Date has occurred, Holdings (solely with respect to Section 6.14) and the Borrower
covenant and agree with the Lenders that:
Section
6.01. Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the
Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b)
Indebtedness of the Borrower or any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary (or issued to any Parent
Company which is substantially contemporaneously transferred to the Borrower or any Restricted Subsidiary); provided that in the
case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to a Loan Party, the making of the corresponding
loan or advance shall have been permitted as an Investment pursuant to Section 6.06; provided, further, all such Indebtedness
of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan
Party on terms that are reasonably acceptable to the Administrative Agent;
(c)
Indebtedness of any Joint Venture or Indebtedness of the Borrower or any Restricted Subsidiary incurred on behalf of any Joint Venture
or any Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness of any Joint Venture in an aggregate outstanding principal
amount for all such Indebtedness not to exceed at any time the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the
last day of the most recently ended Test Period;
(d)
Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including
contingent earn-out or similar obligations), or payment obligations in respect of any non-compete, consulting or similar arrangements,
in each case incurred in connection with any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder
or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties,
letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or
any such Restricted Subsidiary pursuant to any such agreement;
(e)
Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations (including health, safety
and environmental obligations), bids, leases, governmental contracts, trade contracts, surety, indemnity, stay, customs, judgment, appeal,
performance, completion and/or return of money bonds or guaranties or other similar obligations incurred in the ordinary course of business
and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the
foregoing items;
(f)
Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, debit cards,
purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services
(including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services,
including Indebtedness arising from the financing by a bank or other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business), employee credit card programs, cash pooling services, foreign exchange
and currency management services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with
Cash management and Deposit Accounts, including Banking Services Obligations and incentive, supplier finance or similar programs;
(g)
(i) Guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers, franchisees, licensees, sublicensees
and cross-licensees in the ordinary course of business, (ii) Indebtedness (A) incurred in the ordinary course of business in respect
of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of property or services or progress
payments in connection with such property and services or (B) consisting of obligations under deferred purchase price or other similar
arrangements incurred in connection with Permitted Acquisitions or any other Investment expressly permitted hereunder and (iii) Indebtedness
in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse
receipts or similar facilities entered into in the ordinary course of business;
(h)
Guarantees (including any co-issuance) by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower
and/or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01
or other obligations not prohibited by this Agreement; provided that in the case of any such Guarantee by any Loan Party of the
obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i)
Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing (or anticipated), on the
Closing Date and, with respect to any such item of Indebtedness in an aggregate committed or principal amount in excess of $250,000,
described on Schedule 6.01;
(j)
Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of
such Indebtedness shall not exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period;
(k)
Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar
agreements entered into in the ordinary course of business;
(l)
Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay
obligations contained in supply arrangements in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory
in connection with customer financing arrangements in the ordinary course of business;
(m)
Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness (including
mortgage financing, industrial revenue bond, industrial development bond or similar financings) or to finance the construction, purchase,
repair, replacement or improvement of any fixed or capital asset, in an aggregate outstanding principal amount not to exceed the greater
of $65,000,000 and 49% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (excluding, for the
avoidance of doubt, the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Sale/Leaseback Transaction and iStar
Exchanges);
(n)
Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or other Investment
permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted
Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof and (ii)
either (A) the Borrower is in compliance with the applicable ratio set forth in clause (e) of the definition of Incremental Cap based
on whether such Indebtedness is secured by a pari passu lien on the Collateral or a junior Lien on the Collateral or is unsecured
or secured by Liens on assets not constituting Collateral (and for such purpose, such Indebtedness shall be deemed to have been incurred
to finance an acquisition or other Investment permitted hereunder), calculated on a Pro Forma Basis as of the last day of the most recently
ended Test Period or (B) the aggregate outstanding principal amount of such Indebtedness does not exceed the greater of $15,000,000 and
11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o)
Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company
or any Permitted Payee to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p)
the Borrower and its Restricted Subsidiaries may become and remain liable for any Indebtedness extending, refinancing, refunding or replacing
any Indebtedness permitted under clauses (a), (c), (i), (j), (m), (n), (r), (u), (v), (w), (y), (z), (dd), (gg), (ll) and
(mm) of this Section 6.01 (in any case, including any extending, refinancing, refunding or replacing Indebtedness incurred
in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided
that (i) the principal amount of such Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being extended,
refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender
premiums) thereon plus underwriting discounts and other customary fees, commissions and expenses (including upfront fees, original
issue discount or initial yield payments) incurred in connection with the relevant extension, refinancing, refunding or replacement,
(B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to
this Section 6.01 (provided that (1) any additional Indebtedness referred to in this clause (C) satisfies the other applicable
requirements of this Section 6.01(p) (with additional amounts incurred in reliance on this clause (C) constituting a utilization
of the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is
secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02), (ii) in the case of Refinancing
Indebtedness with respect to clauses (a) and (z) (other than (x) customary bridge loans with a maturity date of not longer
than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such
bridge loans shall be subject to the requirements of this clause (ii) and (y) Refinancing Indebtedness having an aggregate principal
amount outstanding not exceeding $20,000,000 (as selected by the Borrower)), such Refinancing Indebtedness has (A) a final maturity on
or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier
of (x) the Latest Term Loan Maturity Date at the time of the incurrence of such Refinancing Indebtedness and (y) the final maturity of
the Indebtedness being extended, refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, a Weighted
Average Life to Maturity equal to or greater than (x) the Weighted Average Life to Maturity of the Indebtedness being extended, refinanced,
refunded or replaced or (y) the Weighted Average Life to Maturity of the outstanding Term Loans at the time of the incurrence of such
Refinancing Indebtedness, (iii) with respect to any Refinancing Indebtedness with an original principal amount in excess of the Threshold
Amount, the terms thereof (excluding pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable,
subordination terms) and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a)
above, security) are not, taken as a whole (as determined by the Borrower in good faith), more favorable to the lenders providing
such Indebtedness than those applicable to the Indebtedness being extended, refinanced, refunded or replaced (other than any covenants
or any other terms or provisions (X) applicable only to periods after the Latest Maturity Date at the time of the incurrence of such
Refinancing Indebtedness, (Y) that are then-current market terms (as determined by the Borrower in good faith at the time of incurrence
or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (Z) solely in the case
of Refinancing Indebtedness in respect of Indebtedness incurred in reliance on clauses (a) and/or (z) of this Section
6.01, terms or other provisions which are conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable,
the Administrative Agent, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)), (iv) the
incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause of this Section 6.01
pursuant to which the Indebtedness being extended, refinanced, refunded or replaced was incurred (i.e., the incurrence of such Refinancing
Indebtedness shall not create availability under such relevant clause), (v) except in the case of Refinancing Indebtedness incurred in
respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Indebtedness, if secured, is secured
only by Permitted Liens at the time of such extension, refinancing, refunding or replacement (it being understood that secured Indebtedness
may be refinanced with unsecured Indebtedness), (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness
being extended, refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 (it being
understood that Holdings may not be the primary obligor of the applicable Refinancing Indebtedness if Holdings was not the primary obligor
on the relevant refinanced Indebtedness) and (C) if the Indebtedness being extended, refinanced, refunded or replaced was contractually
subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were contractually subordinated to such
Liens on the Collateral securing the Secured Obligations), such Indebtedness is contractually subordinated to the Obligations in right
of payment (or the Liens securing such Indebtedness are subordinated to the Liens on the relevant Collateral securing the Secured Obligations)
either (x) on terms not materially less favorable, taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens,
as applicable) being extended, refinanced, refunded or replaced, taken as a whole or (y) pursuant to an Acceptable Intercreditor Agreement,
(vi) except in the case of Refinancing Indebtedness with respect to clause (a) of this Section 6.01, as of the date of
the incurrence of such Indebtedness and after giving effect thereto, no payment or bankruptcy (with respect to the Borrower) Event of
Default exists and (vii) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a)
of this Section 6.01, (A) such Refinancing Indebtedness is pari passu or junior in right of payment and secured by the
Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided
that any such Refinancing Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Acceptable
Intercreditor Agreement, (B) if such Refinancing Indebtedness is secured, it is not secured by any assets other than the Collateral,
(C) if such Refinancing Indebtedness is Guaranteed, it shall not be Guaranteed by any Person other than a Loan Party and (D) such Refinancing
Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, it being understood and agreed that any such
Refinancing Indebtedness may participate (x) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and
(y) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi);
(a)
endorsement of instruments or other payment items for collection or deposit in the ordinary course of business;
(b)
Indebtedness in respect of any Additional Letter of Credit Facility in an aggregate principal or face amount at any time outstanding
not to exceed the greater of $40,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period;
(c) Indebtedness
of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(d) [reserved];
(e)
Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the greater
of $60,000,000 and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(f)
Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 100% of the
amount of any capital contributions or other proceeds received by the Borrower or any Restricted Subsidiary (i) from the issuance or
sale of its Qualified Capital Stock or (ii) in the form of any cash contribution, plus the fair market value, as determined by
the Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Borrower or any Restricted Subsidiary
from the issuance and sale by it or any Parent Company of its or such Parent Company’s Qualified Capital Stock or a contribution
to the Qualified Capital Stock of any Parent Company, Holdings, the Borrower or any Restricted Subsidiary (including through consolidation,
amalgamation or merger), in each case after the Closing Date, and in each case other than (A) any proceeds received from the sale of
Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries, (B) to the extent the relevant proceeds
have otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and (C) Cure Amounts and/or
any Available Excluded Contribution Amount;
(g)
Indebtedness arising under a Qualified Receivables Facility in an aggregate principal amount not to exceed the greater of $20,000,000
and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(h)
Indebtedness of the Borrower and/or any Restricted Subsidiary incurred in respect of (i) any Second Lien Facility and any
“Incremental Loans” and “Incremental Equivalent Debt” (each as defined in the Second Lien Credit Agreement
or any equivalent term under any Second Lien Facility) in an aggregate outstanding principal amount that does not exceed
$137,500,000 plus the aggregate outstanding principal amount of such “Incremental Loans” or “Incremental
Equivalent Debt” so long as the sum of the aggregate outstanding principal amount of any such “Incremental Loans”
or “Incremental Equivalent Debt” does not exceed the “Incremental Cap” (as applicable, and each as defined
in the Second Lien Credit Agreement as in effect on the Closing Date, including after giving effect to Sections 1.04(d) and 1.04(e)
thereof) and (ii) any refinancing, refunding or replacing of any Second Lien Facility or any such “Incremental Loans” or
“Incremental Equivalent Debt” after the Closing Date so long as (A) the aggregate outstanding principal amount of such
Indebtedness does not exceed an amount permitted to be incurred under the preceding clause (i), plus (1) an amount
equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon, (2) the amount of any underwriting
discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield
payments) incurred in connection with the relevant refinancing, (3) an amount equal to any existing commitments unutilized
thereunder and (4) any additional amounts permitted to be incurred pursuant to this Section 6.01 (with additional amounts
incurred in reliance on this clause (4) constituting a utilization of the relevant basket or exception pursuant to which such
additional amount is permitted), (B) such Indebtedness, if secured, is secured only by Liens permitted under Section 6.02(t),
(C) except with respect to revolving Indebtedness, the Weighted Average Life to Maturity of such Indebtedness is equal to or greater
than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced in reliance on this Section 6.01(x) at the
time of such refinancing (without giving effect to any prepayment thereof), (D) the final maturity date of such Indebtedness is
equal to or later than the final maturity date of the Indebtedness being refinanced in reliance on this Section 6.01(x) and (E) no
such Indebtedness is (1) guaranteed by any Person which is not a Loan Party or (2) secured by any assets other than the
Collateral;
(i) Indebtedness
of the Borrower and/or any Restricted Subsidiary incurred in connection with Sale and Lease-Back Transactions permitted pursuant to Section
6.08;
(j)
Incremental Equivalent Debt; provided that the aggregate principal amount of Incremental Equivalent Debt incurred by Restricted
Subsidiaries that are not Loan Parties shall not exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the
last day of the most recently ended Test Period;
(k)
Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments
with respect to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers’ compensation
claims (or reimbursement type obligations regarding workers’ compensation claims), unemployment insurance (including premiums related
thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits or property,
casualty or liability insurance or self-insurance;
(l)
Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current and former directors,
officers, employees, members of management, managers and consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary
in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions,
any Permitted Acquisition or any other Investment permitted hereby;
(m)
Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of any letter of credit or bank guarantee issued in favor of
any issuing bank or swingline lender to support any defaulting lender’s participation in letters of credit issued, or swingline
loans made, hereunder or under any Additional Letter of Credit Facility;
(n)
Indebtedness of the Borrower or any Restricted Subsidiary supported by any Letter of Credit issued hereunder or under any Additional
Letter of Credit Facility or any other letters of credit or bank guarantees permitted hereunder;
(o)
unfunded pension fund and other employee benefit plan obligations and liabilities incurred by the Borrower and/or any Restricted Subsidiary
in the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under Section
7.01(i);
(p) without
duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind interest),
accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Borrower and/or
any Restricted Subsidiary hereunder;
(q)
(i) to the extent constituting Indebtedness, obligations under the Acquisition Agreement and (ii) any Indebtedness permitted to remain
outstanding after the Closing Date pursuant to the Acquisition Agreement (excluding any Indebtedness required to be refinanced pursuant
to the Refinancing);
(r)
customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in
the ordinary course of business;
(s) [reserved];
(t)
(i) Indebtedness in connection with bankers’ acceptances, discounted bills of exchange or the discounting or factoring of receivables
for credit management purposes, in each case incurred or undertaken in the ordinary course of business on arm’s-length commercial
terms and (ii) the incurrence of Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights or the settlement
of any claims or actions (whether actual, contingent or potential) with respect to the Transactions or any other acquisition (by merger,
consolidation or amalgamation or otherwise) in accordance with the terms hereof;
(u)
obligations in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any subsidiary
of the Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed
in jurisdictions other than within the United States;
(v)
Indebtedness in an aggregate principal amount outstanding at any time not to exceed the Available RP Capacity Amount;
(w)
Indebtedness in respect of any Excluded Property Transaction or any transactions under any iStar Sale/Leaseback Documents; and
(x)
Guarantee obligations incurred in the ordinary course of business under repurchase agreements in connection with the financing of Bowling
Equipment sales.
For
the avoidance of doubt, the accrual of interest, the accretion of accreted value, the accretion or amortization of original issue discount,
the payment of interest in the form of additional Indebtedness and increases in the amount of Indebtedness outstanding solely as a result
of fluctuations in the exchange rate of currencies shall be deemed to be permitted Indebtedness for purposes of this Section.
Section
6.02. Liens. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, create, incur, assume or permit
or suffer to exist any Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any
income or profits therefrom, except:
(a) Liens
created pursuant to the Loan Documents securing the Secured Obligations (including Cash collateralization of Letters of Credit as
set forth in Section 2.05);
(b) Liens
for Taxes or other governmental charges which are not overdue for a period of more than 45 days or, if more than 45 days overdue (i)
are being contested in accordance with Section 5.03 or (ii) with respect to which the failure to make payment would not
reasonably be expected to have a Material Adverse Effect;
(c)
statutory or common law Liens (and rights of set-off) of landlords, sub landlords, construction contractors, banks, carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements of Law, in each case incurred in the
ordinary course of business (i) for amounts not yet overdue by more than 45 days, (ii) for amounts that are overdue by more than 45 days
(A) that are being contested in good faith by appropriate proceedings, so long as any reserves or other appropriate provisions required
by GAAP have been made for any such contested amounts or (B) with respect to which no filing or other action has been taken to enforce
such Lien or (iii) with respect to which the failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(d)
Liens incurred (i) in the ordinary course of business in connection with workers’ compensation, unemployment insurance, health,
disability or employee benefits and other types of social security laws and regulations, (ii) in the ordinary course of business to secure
the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade
contracts, indemnitees, performance, completion and return-of-money bonds and other similar obligations (including those to secure health,
safety and environmental obligations) (in each case, exclusive of obligations for the payment of borrowed money), (iii) pursuant to pledges
and deposits of Cash or Cash Equivalents in the ordinary course of business securing (x) any liability for reimbursement, premium or
indemnification obligations of insurance brokers or carriers providing property, casualty, liability or other insurance to Holdings,
the Borrower and its subsidiaries (including deductibles, self-insurance, co- payment, co-insurance and retentions) or (y) leases or
licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in respect of letters of credit, bank guaranties,
surety bonds, performance bonds or similar instruments posted with respect to the items described in clauses (i) through (iii)
above;
(e)
Liens consisting of easements, covenants, conditions, rights-of-way, restrictions, encroachments, servitudes for railways, sewers, drains,
gas and oil and other pipelines, gas and water mains, electric light and power and telecommunication, telephone or telegraph or cable
television conduits, poles, wires and cables and other similar protrusions or encumbrances and other minor defects or irregularities
in title, in each case (x) which do not, in the aggregate, materially interfere with the ordinary conduct of the business of the Borrower
and/or its Restricted Subsidiaries, taken as a whole, or materially interfere with the use of the affected property for its intended
purpose or (y) where the failure to have such title would not reasonably be expected to have a Material Adverse Effect;
(f)
Liens consisting of any (i) interest or title of a lessor, sub-lessor, licensor or sub- licensor under any lease, license or similar
arrangement of real estate or other property (including intellectual property) permitted hereunder, (ii) landlord lien permitted by the
terms of any lease, sub- lease, license, sub-license or similar arrangement, (iii) restriction or encumbrance to which the interest or
title of such lessor, sub-lessor, licensor or sub-licensor may be subject, (iv) subordination of the interest of the lessee, sub-lessee,
licensee or sub-licensee under such lease, sub-lease, license, sub-license or similar arrangement to any restriction or encumbrance referred
to in the preceding clause (iii) or (v) deposit of cash with the owner or lessor of premises leased and operated by the Borrower
or any Restricted Subsidiary in the ordinary course of business to secure the performance of obligations under the terms of the lease
for such premises;
(g)
Liens (i) solely on any Cash (or Cash Equivalent) earnest money deposits (including as part of any escrow arrangement) made by the Borrower
and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment
permitted hereunder (or to secure letters of credit, bank guarantees or similar instruments posted in respect thereof), (ii) on advances
of Cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Sections
6.06(b), (e), (f), (p), (q), (r), (u), (x), (y) or (dd) to be applied
against the purchase price for such Investment or (iii) consisting of (A) an agreement to Dispose of any property in a Disposition permitted
under Section 6.07 and/or (B) the pledge of Cash or Cash Equivalents as part of an escrow or similar arrangement required in any
Disposition permitted under Section 6.07;
(h)
precautionary or purported Liens evidenced by the filing of UCC financing statements or similar financing statements under applicable
Requirements of Law relating solely to (i) operating leases or consignment or bailee arrangements entered into in the ordinary course
of business, (ii) the sale of accounts receivable in the ordinary course of business for which a UCC financing statement or similar financing
statement under applicable Requirements of Law is required and/or (iii) the sale of Receivables Facility Assets and related assets in
connection with any Qualified Receivables Facility;
(i)
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the
importation of goods;
(j)
Liens in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority
to control or regulate the use of any dimensions of real property or any structure thereon, including Liens in connection with any condemnation
or eminent domain proceeding or compulsory purchase order;
(k)
Liens securing Indebtedness permitted pursuant to Section 6.01(p) (solely with respect to the permitted extension, refinancing,
refunding or replacement of Indebtedness permitted pursuant to Sections 6.01(a), (c), (i), (j), (m),
(n), (r), (u), (v), (w), (y), (z) and (gg)); provided that (i) no such Lien extends
to any asset not covered by the Lien securing the Indebtedness that is being refinanced other than (A) after-acquired property that is
affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.01 and (B)
proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood that such
extensions, refinancings, refundings or replacements of individual financings of the type permitted under Section 6.01(m) provided
by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) if the
Indebtedness being refinanced was subject to intercreditor arrangements in respect of Liens on Collateral, then any refinancing Indebtedness
in respect thereof secured by Liens on Collateral shall be subject to intercreditor arrangements not materially less favorable to the
Secured Parties, taken as a whole, than the intercreditor arrangements governing the Indebtedness that is refinanced or the intercreditor
arrangements governing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l)
Liens existing on, or contractually committed or contemplated as of, the Closing Date and, with respect to each such Lien securing Indebtedness
in an aggregate committed or principal amount in excess of $250,000, described on Schedule 6.02 and any modification, replacement,
refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired
property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section
6.01 and (B) proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood
that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross- collateralized to
other financings of such type provided by such lender or its affiliates) and (ii) any such modification, replacement, refinancing, renewal
or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 6.01;
(m)
Liens arising out of Sale and Lease-Back Transactions permitted under Section 6.08;
(n)
Liens securing Indebtedness permitted pursuant to Section 6.01(m); provided that any such Lien shall encumber only the asset acquired,
constructed, repaired, replaced or improved with the proceeds of such Indebtedness and proceeds and products thereof, replacements, accessions
or additions thereto and improvements thereon and customary security deposits with respect thereto (it being understood that individual
financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other financings
of such type provided by such lender or its affiliates);
(o)
Liens securing Indebtedness permitted pursuant to Section 6.01(n) on the relevant acquired assets or on the Capital Stock and
assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets
(other than the proceeds or products thereof, replacements, accessions or additions thereto and improvements thereon, it being understood
that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other
financings of such type provided by such lender or its affiliates) or (y) was created in contemplation of the applicable acquisition
of assets or Capital Stock;
(p)
(i) Liens that are contractual rights of set-off or netting relating to (A) the establishment of depositary relations with banks or other
financial institutions not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of the Borrower
and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business
of the Borrower and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of the Borrower
and/or any Restricted Subsidiary in the ordinary course of business and (D) commodity trading or other brokerage accounts incurred in
the ordinary course of business, (ii) Liens encumbering reasonable customary initial deposits and margin deposits, (iii) bankers Liens
and rights and remedies as to Deposit Accounts or similar accounts, (iv) Liens of a collection bank arising under Section 4-208 or Section
4-210 of the UCC on items in the ordinary course of business, (v) Liens (including rights of set-off) in favor of banking or other financial
institutions arising as a matter of Law or under customary general terms and conditions encumbering deposits or other funds maintained
with a financial institution and that are within the general parameters customary in the banking industry or arising pursuant to such
banking institution’s general terms and conditions and (vi) Liens on the proceeds of any Indebtedness permitted hereunder incurred
in connection with any transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms
to secure such Indebtedness pending the application of such proceeds to finance such transaction or on Cash or Cash Equivalents set aside
at the time of the incurrence of such Indebtedness to the extent such Cash or Cash Equivalents prefund the payment of interest or fees
on such Indebtedness and are held in escrow pending application for such purpose;
(q)
Liens on assets and Capital Stock of Restricted Subsidiaries that are not Loan Parties (including Capital Stock owned by such Persons)
securing Indebtedness or other obligations of Restricted Subsidiaries that are not Loan Parties permitted pursuant to Section 6.01
(or not prohibited under this Agreement);
(r)
Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement
or similar agreements entered into in the ordinary course of business of the Borrower and/or its Restricted Subsidiaries;
(s)
Liens disclosed in any Mortgage Policy delivered pursuant to Section 5.12 with respect to any Material Real Estate Asset,
provided such Liens do not, in the aggregate, materially interfere with the use of such Material Real Estate Asset, and any
replacement, extension or renewal of any such Lien; provided that no such replacement, extension or renewal Lien shall cover
any property other than the property that was subject to such Lien prior to such replacement, extension or renewal (and additions
thereto, improvements thereon and the proceeds thereof);
(t)
Liens securing Indebtedness incurred pursuant to Sections 6.01(x) and (z); provided that, if any such Lien is on Collateral,
the holders of such Indebtedness (or a representative thereof) shall be party to an Acceptable Intercreditor Agreement;
(u)
other Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed
the greater of $60,000,000 and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v)
(i) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating
to litigation being contested in good faith not constituting an Event of Default under Section 7.01(h) and (ii) any cash deposits
securing any settlement of litigation;
(w)
(i) leases, licenses, subleases, sublicenses or cross-licenses granted to others, (ii) assignments of IP Rights granted to a customer
of the Borrower or any Restricted Subsidiary in the ordinary course of business which do not secure any Indebtedness or (iii) the rights
reserved or vested in any Person (including any Governmental Authority) by the terms of any lease, license, franchise, grant or permit
held by the Borrower or any of the Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise,
grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(x)
Liens on Securities or other assets that are the subject of repurchase agreements constituting Investments permitted under Section
6.06 arising out of such repurchase transaction;
(y) Liens
securing obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted
under Sections 6.01(d), (e), (g), (aa) and (cc);
(z)
Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any assets or property
and bailee arrangements in the ordinary course of business and permitted by this Agreement or (ii) by operation of law under Article
2 of the UCC (or any similar Requirement of Law of any jurisdiction);
(aa)
Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan
Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 6.01
or Section 6.09;
(bb)
Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(cc)
Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect
of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or goods;
(dd)
Liens securing (i) obligations under Hedge Agreements in connection with any Derivative Transaction of the type described in Section
6.01(s), (ii) obligations of the type described in Section 6.01(f) and/or (iii) obligations of the type described in Section 6.01(r),
which Liens (A) in each case under this Section 6.02(dd), may be (but are not required to be) secured by all of the Collateral
so long as the Lien on the Collateral is subject to an Acceptable Intercreditor Agreement and (B) in the case of clause (iii)
(to the extent not secured as provided in clause (A)), may consist of pledges of Cash collateral in an amount not to exceed the
greater of $15,000,000 and 11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(ee)
(i) Liens on Capital Stock of Joint Ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such
Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect
to non-Wholly-Owned Subsidiaries;
(ff)
Liens on cash or Cash Equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
(gg)
Liens permitted to remain outstanding following the Closing Date pursuant to the terms of the Acquisition Agreement (including liens
on cash or Cash Equivalents backstopping any letters of credit existing on the Closing Date) and any replacements, refinancings or renewals
thereof, so long as no such replacement, refinancings or renewal thereof increases the amount of such Lien except as otherwise permitted
by this Section 6.02;
(hh)
Liens on assets not constituting Collateral (x) securing obligations in an aggregate outstanding principal amount not to exceed the greater
of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period or (y) so long as the
Obligations in respect of the Credit Facilities are secured on a ratable basis (without regard to the control of remedies) with or prior
to the obligations so secured for so long as such obligations are so secured (which Liens, in the case of this clause (y), shall be subject
to an Acceptable Intercreditor Agreement);
(ii) Liens
on Receivables Facility Assets incurred in connection with a Receivables Facility;
(jj)
undetermined or inchoate Liens, rights of distress and charges incidental to current operations that have not at such time been filed
or exercised, or which relate to obligations not due or payable or if due, the validity of such Liens are being contested in good faith
by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in
accordance with GAAP;
(kk)
with respect to any Foreign Subsidiary, Liens and privileges arising mandatorily by any Requirement of Law; provided such Liens and privileges
extend only to the assets or Capital Stock of such Foreign Subsidiary;
(ll)
ground leases or subleases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries
are located;
(mm) Liens
that are customary in the business of the Borrower and its Restricted Subsidiaries and that do not secure debt for borrowed
money;
(nn)
security given to a public or private utility or any Governmental Authority as required in the ordinary course of business;
(oo)
receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on
the related inventory and proceeds;
(pp) Liens
arising pursuant to Section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act or similar provision of
any applicable law;
(qq)
Liens in the nature of the right of setoff in favor of counterparties to contractual agreements with the Borrower or any Restricted Subsidiary
in the ordinary course of business;
(rr)
Liens granted pursuant to a security agreement between the Borrower or any Restricted Subsidiary and a licensee of IP Rights to secure
the damages, if any, incurred by such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization
or similar proceeding with respect to the Borrower or such Restricted Subsidiary;
(ss)
Liens arising solely in connection with rights of dissenting equity holders pursuant to any Requirement of Law in respect of the Transactions,
any Permitted Acquisition or other similar Investment;
(tt)
Liens arising under the iStar Sale/Leaseback Documents, the iStar Sale/Leaseback 2014 Documents, the iStar Exchange Documents or the
Excluded Property Transaction Documents, including options, whether or not then exercisable, to purchase Bowling Equipment of the Borrower
and/or one or more of its Subsidiaries, and letters of credit to secure the obligations of the Borrower or any applicable Restricted
Subsidiary thereunder;
(uu)
Liens on (x) any Excluded Property or (y) any other real property acquired after the Closing Date and not subject (or required to be
subject) to a Mortgage, provided that the aggregate amount of the obligations secured at any one time by such Liens pursuant to this
clause (y) does not exceed $50,000,000; and
(vv)
Liens deemed to exist in connection with repurchase obligations permitted to be incurred pursuant to Section 6.01(nn).
Section
6.03. No Further Negative Pledges. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries that are Loan
Parties to, enter into any agreement prohibiting in any material respect the creation or assumption of any Lien upon any of its properties
(other than Excluded Assets), whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to the Obligations,
except with respect to:
(a)
restrictions relating to any asset (or all of the assets) of and/or the Capital Stock of the Borrower and/or any Restricted Subsidiary
which are imposed pursuant to an agreement entered into in connection with any Disposition or other transfer, lease or license of such
asset (or assets) and/or all or a portion of the Capital Stock of the relevant Person that is permitted by this Agreement;
(b)
restrictions contained in the Loan Documents, any then extant Second Lien Facility, any Incremental Equivalent Debt, any Receivables
Facility (limited to the assets securing the Indebtedness arising thereunder) or any Additional Letter of Credit Facility (limited to
the assets securing the Indebtedness arising thereunder) (and clause (p) of Section 6.01 to the extent relating to any extension, refinancing,
refunding or replacement of any of the foregoing);
(c)
restrictions contained in any documentation governing any other Indebtedness permitted by Section 6.01 to the extent such
restrictions (1)(x) are, taken as a whole, in the good-faith judgment of the Borrower, not materially more restrictive as concerning
the Borrower or any Restricted Subsidiary than customary market terms for Indebtedness of such type or (y) are not materially more
restrictive, taken as a whole, than the restrictions contained in this Agreement (as determined by the Borrower in good faith) and
(2) will not materially impair the Borrower’s obligation or ability to make any payments required hereunder (as determined by
the Borrower in good faith);
(d)
restrictions by reason of customary provisions restricting assignments, subletting or other transfers (including the granting of any
Lien) contained in leases, subleases, licenses, sublicenses, asset sale agreements and other agreements entered into in the ordinary
course of business (provided that such restrictions are limited to the relevant leases, subleases, licenses, sublicenses, asset
sale or other agreements and/or the property or assets secured by such Liens or the property or assets subject to such leases, subleases,
licenses, sublicenses, asset sale or other agreements, as the case may be);
(e)
Permitted Liens and restrictions in the agreements relating thereto that limit the right of the Borrower or any of its Restricted Subsidiaries
to Dispose of or encumber the assets subject to such Liens;
(f)
provisions limiting the Disposition, distribution or encumbrance of assets or property in joint venture agreements, sale and lease-back
agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject
of such agreements (or the Persons the Capital Stock of which is the subject of such agreement (or any “shell company” parent
with respect thereto));
(g)
any encumbrance or restriction assumed in connection with an acquisition of the property or Capital Stock of any Person, so long as such
encumbrance or restriction relates solely to the Person and its subsidiaries (including the Capital Stock of the relevant Person or Persons)
and/or property so acquired (or to the Person or Persons (and its or their subsidiaries) bound thereby) and was not created solely in
connection with or in anticipation of such acquisition;
(h)
restrictions imposed by customary provisions in partnership agreements, limited liability company organizational governance documents,
joint venture agreements and other similar agreements that restrict the transfer of the assets of, or ownership interests in, the relevant
partnership, limited liability company, joint venture or any similar Person (or any “shell company” parent with respect thereto);
(i)
restrictions on Cash or other deposits permitted under Section 6.02 and/or 6.06 and any net worth requirements, including
such restrictions or requirements imposed by Persons under contracts entered into in the ordinary course of business or for whose benefit
such Cash or other deposits or net worth requirements exist;
(j) restrictions
(i) set forth in documents which exist on the Closing Date or (ii) which are contemplated as of the Closing Date and, in the case of
this clause (ii), as set forth on Schedule 6.03;
(k) restrictions
contained in documents governing Indebtedness of any Restricted Subsidiary that is not a Loan Party permitted hereunder;
(l) [reserved];
(m) provisions
restricting the granting of a security interest in IP Rights contained in licenses, sublicenses or cross-licenses by the Borrower
and its Restricted Subsidiaries of such IP Rights, which licenses, sublicenses and cross-licenses were entered into in the ordinary
course of business (in which case such restriction shall relate only to such IP Rights);
(n)
restrictions arising under or as a result of applicable Requirements of Law or the terms of any license, authorization, concession or
permit issued or granted by a Governmental Authority;
(o)
restrictions with respect to a Restricted Subsidiary that was previously an Unrestricted Subsidiary, pursuant to or by reason of an agreement
that such Restricted Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary;
provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and
any such restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets
and property of such Subsidiary;
(p)
customary restrictions imposed in connection with any Receivables Facility or similar transaction permitted hereunder;
(q)
restrictions contained in the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents as in effect on the date of this
Agreement, and restrictions contained in any iStar Exchange Documents or Excluded Property Transaction Documents; and
(r)
other restrictions or encumbrances imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing of the contracts, instruments or obligations referred to in clauses (a) through (q) above; provided
that no such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good
faith judgment of the Borrower, more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than those
in effect prior to the relevant amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Section
6.04. Restricted Payments; Certain Payments of Indebtedness.
(a) The
Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the
Borrower may make Restricted Payments to the extent necessary to permit any Parent Company:
(A)
to pay general operating and compliance costs and expenses (including corporate overhead, legal or similar expenses and customary salary,
bonus and other benefits payable to directors, officers, employees, members of management, managers and/or consultants of any Parent
Company), in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable
and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent
Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance
of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent
Company other than the Borrower and/or its subsidiaries), the Borrower and/or its subsidiaries;
(B)
to pay franchise, excise and similar Taxes, and other fees, Taxes and expenses, required to maintain the organizational existence of
such Parent Company;
(C)
to pay customary salary, bonus, long-term incentive, severance and other benefits (including payment to certain service providers of
the Borrower or its Subsidiaries pursuant to any equity plan (whether in the form of options, cash settled options or otherwise)) payable
to Permitted Payees, as well as applicable employment, social security or similar taxes in connection therewith, to the extent such salary,
bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Borrower and/or its subsidiaries,
in each case, so long as such Parent Company applies the amount of any such Restricted Payment for such purpose;
(D)
to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but
excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary
of any Parent Company other than the Borrower and/or its subsidiaries), the Borrower and its subsidiaries;
(E)
for the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the
portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than
the Borrower and/or its subsidiaries), the Borrower and its subsidiaries;
(F)
to pay (x) fees and expenses related to any debt and/or equity offerings (including refinancings), investments and/or acquisitions permitted
or not restricted by this Agreement (whether or not consummated, and including advisory, refinancing, subsequent transaction and exit
fees of any Parent Company of the Borrower) and expenses and indemnities of any trustee, agent, arranger, underwriter or similar role
and (y) after the consummation of an initial public offering or the issuance of debt securities, Public Company Costs; and
(G)
to finance any Investment permitted under Section 6.06 as if such Parent Company were subject to Section 6.06
(provided that (x) any Restricted Payment under this clause (a)(i)(G) shall be made substantially concurrently with
the closing or consummation of such Investment or at future times as may be scheduled at the time of such closing or consummation to
be made thereafter in connection therewith and (y) the relevant Parent Company shall, promptly following the closing or consummation
thereof or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection
therewith, cause (I) all property acquired to be contributed to the Borrower or one or more of its Restricted Subsidiaries or (II)
the merger, consolidation or amalgamation of the Person formed or acquired into the Borrower or one or more of its Restricted
Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if
undertaken as a direct Investment by the Borrower or the relevant Restricted Subsidiary);
(ii)
the Borrower may pay (or make Restricted Payments to allow any Parent Company to pay) for the repurchase, redemption, retirement or other
acquisition or retirement for value of Capital Stock of any Parent Company or any subsidiary held by any Permitted Payee:
(A)
in accordance with the terms of promissory notes issued pursuant to Section 6.01(o), so long as the aggregate amount of all Cash
payments made in respect of such promissory notes, together with the aggregate amount of Restricted Payments made pursuant to sub-clause
(D) of this clause (ii) below, (1) does not exceed the greater of $5,500,000 and 4% of Consolidated Adjusted EBITDA as of
the last day of the most recently ended Test Period (which amount shall, following a Qualifying IPO, increase to the greater of $7,500,000
and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period) in any Fiscal Year, which, if not used
in any Fiscal Year, may be carried forward to subsequent Fiscal Years (until so applied)) minus (2) any utilization of the Available
RP Capacity Amount in reliance on unused capacity under clause (D) below; plus
(B)
with the proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock of the Borrower or any
Parent Company (to the extent such proceeds are contributed to the Borrower or any Restricted Subsidiary in respect of Qualified Capital
Stock issued by the Borrower or such Restricted Subsidiary) (other than amounts constituting a Cure Amount or an Available Excluded Contribution
Amount); plus
(C)
with the net proceeds of any key-man life insurance policies; plus
(D)
with Cash and Cash Equivalents in an amount not to exceed, together with the aggregate amount of all cash payments made pursuant to sub-clause
(A) of this clause (ii) in respect of promissory notes issued pursuant to Section 6.01(o), (1) the greater
of $5,500,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (which amount shall, following
a Qualifying IPO, increase to the greater of $7,500,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently
ended Test Period) in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to subsequent Fiscal Years (until
so applied) minus (2) any utilization of the Available RP Capacity Amount in reliance on unused capacity under the immediately preceding
clause (1); plus
(E)
with the amount of any Cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of Capital
Stock of the Borrower or any Parent Company pursuant to any compensation arrangement, including any deferred compensation plan;
(iii)
the Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such
date that the Borrower elects to apply to this clause (iii)(A) plus (B) the portion, if any, of the Available Excluded Contribution
Amount on such date that the Borrower elects to apply to this clause (iii)(B) (plus, without duplication of amounts referred
to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing
Date, if the acquisition of such property or assets was financed with Available Excluded Contribution Amounts up to the amount of
such Available Excluded Contribution Amount, less any application thereof under Sections 6.04(b)(vi) or 6.06(r));
(i)
the Borrower may make Restricted Payments (i) to any Parent Company to enable such Parent Company to (A) make Cash payments in lieu of
the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable
for Capital Stock of such Parent Company, dividends, share splits, reverse share splits (or any combination thereof) and, mergers, consolidations,
amalgamations or other business combinations, and acquisitions and other Investments permitted hereunder and/or (B) honor any conversion
request by a holder of convertible Indebtedness, make any cash payments in lieu of fractional shares in connection with any conversion
and make payments on convertible Indebtedness in accordance with its terms and (ii) consisting of (A) payments made or expected to be
made in respect of withholding or similar Taxes payable by any Permitted Payee and/or (B) repurchases of Capital Stock in consideration
of the payments described in sub clause (A) above, including demand repurchases in connection with the exercise of stock options
and the issuance of restricted stock units or similar stock based awards;
(ii)
the Borrower may repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in connection with), or
make Restricted Payments to any Parent Company to enable it to repurchase, redeem, acquire or retire Capital Stock upon (or make provisions
for withholdings in connection with), the exercise of warrants, options or other securities convertible into or exchangeable for Capital
Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants,
options or other securities convertible into or exchangeable for Capital Stock as part of a “cashless” exercise;
(iii)
the Borrower may make Restricted Payments the proceeds of which are applied (i) on the Closing Date, solely to effect the consummation
of the Transactions and on or about the Amendment No. 1 Effective Date, solely to effect the consummation of the Amendment No. 1 Transactions,
(ii) on and after the Closing Date, to satisfy any payment obligations owing, or as otherwise required, under the Acquisition Agreement
(including payment of working capital and/or purchase price adjustments) and to pay Transaction Costs, in each case, with respect to
the Transactions, (iii) to satisfy obligations to direct or indirect holders of Capital Stock of the Borrower (immediately prior to giving
effect to the Transactions) in connection with, or as a result of, any working capital and/or purchase price adjustments, in each case,
with respect to the Transactions and (iv) to satisfy any settlement of claims or actions in connection with the Transactions or to satisfy
indemnity or other similar obligations in connection with the Transactions;
(iv)
following the consummation of the first Qualifying IPO, the Borrower may (or may make Restricted Payments to any Parent Company to enable
it to) make Restricted Payments with respect to any Capital Stock in an amount not to exceed (A) the greater of (x) an amount equal to
6.00% per annum of the net Cash proceeds received by or contributed to the Borrower from any Qualifying IPO and (y) an amount equal to
6.00% per annum of the Market Capitalization of the Borrower (or its direct or indirect Parent Company, as applicable) and its subsidiaries
minus (B) any utilization of the Available RP Capacity Amount in reliance on unused capacity under immediately preceding clause
(A);
(v)
the Borrower may make Restricted Payments to (i) redeem, repurchase, defease, discharge, retire or otherwise acquire any (A) Capital
Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any
Parent Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the
substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the
Borrower or any Parent Company to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted
Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends
on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to the Borrower or a
Restricted Subsidiary) of any Refunding Capital Stock;
(vi)
to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other
than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other
than Section 6.09(d));
(vii)
the Borrower may make additional Restricted Payments in an aggregate amount not to exceed (A) the greater of $20,000,000 and 15% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (B) any utilization of the Available RP Capacity Amount
in reliance on unused capacity under immediately preceding clause (A);
(viii)
the Borrower may pay any dividend or other distribution or consummate any redemption within 60 days after the date of the declaration
thereof or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration or notice,
the dividend, distribution or redemption contemplated by such declaration or redemption notice would have complied with the provisions
of this Section 6.04(a);
(ix)
the Borrower may make any Restricted Payment constituting the distribution or payment of Receivables Fees;
(x)
the Borrower may make additional Restricted Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total
Leverage Ratio would not exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default hereunder or
shall result therefrom;
(xi)
the Borrower may make additional Restricted Payments in an amount not to exceed the amount of proceeds received by the Borrower and/or
any Restricted Subsidiary under the Representation and Warranty Insurance Policy during the term of this Agreement;
(xii)
(A) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar
income tax group for U.S. federal and/or applicable state or local income tax purposes of which a direct or indirect parent of the
Borrower is the common parent (a “Tax Group”), or for which the Borrower is a disregarded entity for U.S. federal
income tax purposes wholly-owned by a corporate parent (a “Corporate Parent”), the Borrower and each of its Subsidiaries
may make Restricted Payments (including pursuant to any Tax sharing agreement entered into by the Borrower and any of its
Subsidiaries and Comcast Corporation, a Pennsylvania corporation or its Affiliates) the proceeds of which shall be used by such
common parent to pay the portion of any consolidated, combined or similar U.S. federal, state or local income Taxes of such Tax
Group, or by the Corporate Parent to pay the portion of the U.S. federal, state or local income Taxes of such Corporate Parent, or
any franchise taxes imposed in lieu thereof, for such taxable period that are attributable to the income of the Borrower and/or its
Subsidiaries, provided that such amount shall not be greater than the amount of such U.S. federal, state or local income taxes that
would be paid (for such taxable period) by the Borrower and its Subsidiaries if the Borrower and/or such Subsidiaries had been a stand-alone
corporate taxpayer (or stand-alone group of corporate taxpayers filing on a consolidated, combined or similar basis) for all taxable
years ending after the Closing Date (taking into account any net operating loss carryforwards attributable to the Borrower and its
Subsidiaries, as the case may be) and (B) without duplication of Restricted Payments made under Section 6.04(a)(xv)(A), for any
taxable period for which the Borrower is treated as a partnership for U.S. federal and/or applicable state or local income tax
purposes, the Borrower may make Restricted Payments to its equity owners at the times and in the amounts necessary to enable such
owners (and their direct or indirect owners) to pay their Tax obligations attributable to their direct or indirect ownership
interests in the Borrower in an aggregate amount equal to the product of (1) 50% (or such higher tax rate as shall be applicable to
a resident of New York City or California that indirectly owns an interest in the Borrower, taking into account the character of the
taxable income in question and the deductibility of state and local income taxes for U.S. federal income tax purposes) and (2) the
taxable income of the Borrower for such taxable year, less any cumulative taxable losses from prior taxable years to the extent that
such losses are of a character (ordinary or capital) that would permit such losses to be deducted by the direct or indirect owners
of the Borrower against the current taxable income of the Borrower allocable to such owners and have not previously been taken into
account in determining tax distributions;
(xiii)
the Borrower may make additional Restricted Payments constituting any part of a Permitted Reorganization or IPO Reorganization Transaction;
(xiv)
the Borrower may make a distribution, by dividend or otherwise, of the Capital Stock of, or debt owed to any Loan Party or any Restricted
Subsidiary by, any Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries, provided that
such Restricted Subsidiary owns no other material assets other than Capital Stock of one or more Unrestricted Subsidiaries); in each
case, other than Unrestricted Subsidiaries, the primary assets of which are Cash and/or Cash Equivalents; provided that any such
Capital Stock or debt that represents an Investment by the Borrower or any Restricted Subsidiary shall be deemed to continue to charge
(as utilization) the respective clause under Section 6.06 pursuant to which such Investment was made;
(xv)
the Borrower may make payments and distributions to satisfy dissenters’ rights (including in connection with, or as a result of,
the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) in respect thereof),
pursuant to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 6.07;
(xvi)
the Borrower may make a Restricted Payment in respect of payments made for the benefit of the Borrower or any Restricted Subsidiary to
the extent such payments could have been made by the Borrower or any Restricted Subsidiary because such payments (A) would not otherwise
be Restricted Payments and (B) would be permitted by Section 6.09; and
(xvii)
the Borrower may make a Restricted Payment in respect of required withholding or similar non-U.S. Taxes with respect to any Permitted
Payee and any repurchases of Capital Stock in consideration of such payments, including deemed repurchases in connection with the exercise
of stock options or the issuance of restricted stock units or similar stock based awards.
(a)
The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any prepayment in Cash on or in respect of principal
of or interest on any Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any Restricted Debt more than one year prior to the scheduled
maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i)
any refinancing, purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of any Restricted Debt made
by exchange for, or out of the proceeds of, Refinancing Indebtedness permitted by Section 6.01 and/or any extension, refinancing,
refunding or replacing Indebtedness permitted by Section 6.01(x);
(ii)
payments as part of, or to enable another Person to make, an “applicable high yield discount obligation” catch-up payment;
(iii)
payments of regularly scheduled principal and interest and payments of fees, expenses and indemnification obligations as and when due
(other than payments with respect to Junior Indebtedness that are prohibited by the subordination provisions thereof);
(iv)
additional Restricted Debt Payments in an aggregate amount not to exceed (A)(1) the greater of (x) $25,000,000 and (y) 19% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period minus (2) any utilization of the Available RDP Capacity
Amount in reliance on unused capacity under immediately preceding clause (A)(1) plus (B) the Available RP Capacity Amount;
(v)
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any
Restricted Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Borrower or any Restricted Subsidiary,
(B) Restricted Debt Payments as a result of the conversion of all or any portion of any Restricted Debt into Qualified Capital Stock
of the Borrower and/or any Restricted Subsidiary or Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind
interest with respect to any Restricted Debt that is permitted under Section 6.01;
(vi)
Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the
Borrower elects to apply to this clause (vi)(A) plus (B) the portion, if any, of the Available Excluded Contribution Amount
on such date that the Borrower elects to apply to this clause (vi)(B) (plus, without duplication of amounts previously
referred to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing
Date, if the acquisition of such property or assets was financed solely with Available Excluded Contribution Amounts up to the amount
of such Available Excluded Contribution Amount, less any application thereof under Sections 6.04(a)(iii) or 6.06(r));
(vii)
additional Restricted Debt Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total Leverage Ratio
would not exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default under Section 7.01(a)
or, with respect to the Borrower, Sections 7.01(f) or (g) or shall result therefrom;
(viii)
Restricted Debt Payments in respect of Restricted Debt permitted to be assumed pursuant to Section 6.01(n), provided that
any such Restricted Debt Payment shall be deemed an Investment and shall only be permitted to the extent there exists the ability to
make such Investment pursuant to Section 6.06 at such time; and
(ix)
Restricted Debt Payments made on or substantially concurrently with the Amendment No. 1 Effective Date to repay amounts outstanding under
the Second Lien Facility (and related fees and expenses).
Section
6.05. [Reserved].
Section
6.06. Investments. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make or own
any Investment in any other Person except:
(a)
Investments in assets that are Cash or Cash Equivalents, or investments that were Cash or Cash Equivalents at the time
made;
(b)
(i) Investments existing on the Closing Date in any subsidiary and any modification, replacement, renewal or extension thereof so long
as no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted
by this Section 6.06 and (ii) Investments made after the Closing Date among Holdings, the Borrower and/or one or more Restricted
Subsidiaries or in any Person that will, upon such Investment, become a Restricted Subsidiary;
(c)
Investments (i) constituting deposits, prepayments and/or other credits to suppliers or other trade counterparties, (ii) made in connection
with obtaining, maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors, suppliers,
licensors and licensees, in each case, in the ordinary course of business or, in the case of clause (iii), to the extent necessary
to maintain the ordinary course of supplies to the Borrower or any Restricted Subsidiary;
(d)
Investments in (i) any Unrestricted Subsidiary (including any Joint Venture that is an Unrestricted Subsidiary) in an aggregate
outstanding amount not to exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the
most recently ended Test Period and (ii) any Similar Business (including any Joint Venture engaged in a Similar Business) in an
aggregate outstanding amount not to exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of
the most recently ended Test Period; provided that if any Investment pursuant to this clause (d)(ii) is made in any Person that is
not a Restricted Subsidiary at the date of making of such Investment and such Person becomes a Restricted Subsidiary after such
date, such Investment shall thereafter be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been
made under this clause (d);
(e)
(i) Permitted Acquisitions and (ii) Investments in Restricted Subsidiaries that are not Loan Parties in amounts required to permit such
Restricted Subsidiaries to consummate Permitted Acquisitions;
(f)
(i) Investments existing on, or contractually committed to or contemplated as of, the Closing Date and, with respect to any such
Investment in excess of $250,000, described on Schedule 6.06 and (ii) any modification, replacement, renewal or
extension of any Investment described in clause (i) above so long as no such modification, renewal or extension thereof
increases the amount of such Investment except by the terms thereof or as otherwise permitted by this Section 6.06;
(g)
Investments received in lieu of Cash in connection with any Disposition permitted by Section 6.07 or any other disposition of
assets not constituting a Disposition;
(h)
loans or advances to Permitted Payees to the extent permitted by Requirements of Law, in connection with such Person’s
purchase of Capital Stock of any Parent Company, either (i) in an aggregate principal amount not to exceed the greater of $3,000,000
and 2% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period at any one time outstanding, (ii)
so long as the proceeds of such loan or advance are substantially contemporaneously contributed to the Borrower for the purchase of
such Capital Stock or (iii) so long as no Cash or Cash Equivalents are advanced in connection with such loan or advance;
(i)
Investments consisting of rebates and extensions of credit in the nature of accounts receivable or notes receivable arising from the
grant of trade credit in the ordinary course of business;
(j)
Investments consisting of (or resulting from) Indebtedness permitted under Section 6.01 (including guarantees thereof) (other
than Indebtedness permitted under Sections 6.01(b) and (h)), Permitted Liens, Restricted Payments permitted under Section
6.04 (other than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers,
consolidations, amalgamations, liquidations, windings up, dissolutions or Dispositions permitted by Section 6.07 (other than Section 6.07(a)(i) (if
made in reliance on subclause (ii)(y) of the proviso thereto), Section 6.07(b) (if made in reliance on clause
(ii) of the proviso thereto), Section 6.07(c)(ii) (if made in reliance on clause (B) therein) and Section
6.07(g));
(k)
Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements
with customers, vendors, suppliers, licensors, sublicensors, licensees and sublicensees;
(l)
Investments (including debt obligations and Capital Stock) received (i) in connection with the bankruptcy, work-out, reorganization or
recapitalization of any Person, (ii) in settlement or compromise of delinquent obligations of, or other disputes with or judgments against,
customers, trade-creditors, suppliers, licensees and other account debtors arising in the ordinary course of business, including pursuant
to any plan of reorganization or similar arrangement upon bankruptcy or insolvency of any customer, trade creditor, supplier or licensee,
(iii) in satisfaction of judgments against other Persons, (iv) as a result of foreclosure with respect to any secured Investment or other
transfer of title with respect to any secured Investment and/or (v) in settlement, compromise or resolution of litigation, arbitration
or other disputes;
(m)
loans and advances of payroll payments or other compensation to present or former employees, directors, members of management, officers,
managers or consultants of any Parent Company (to the extent such payments or other compensation relate to services provided to such
Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership or operations
of any subsidiary of any Parent Company other than the Borrower and/or its subsidiaries)), the Borrower and/or any subsidiary in the
ordinary course of business;
(n)
Investments to the extent that payment therefor is made solely with Capital Stock of any Parent Company or Capital Stock (other than
Disqualified Capital Stock) of the Borrower or any Restricted Subsidiary, in each case, to the extent not resulting in a Change of Control;
(o)
(i) Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or
consolidated or amalgamated with, the Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of an
Investment otherwise permitted by this Section 6.06 to the extent that such Investments were not made in contemplation of or
in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant
acquisition, merger, amalgamation or consolidation and (ii) any modification, replacement, renewal or extension of any Investment
permitted under clause (i) of this Section 6.06(o) so long as no such modification, replacement, renewal or
extension thereof increases the amount of such Investment except as otherwise permitted by this Section 6.06;
(p)
Investments made in connection with the Transactions and any Investments held by the Target or its Restricted Subsidiaries on the Closing
Date and permitted to remain (or not prohibited from remaining) outstanding after the Closing Date pursuant to the terms of the Acquisition
Agreement;
(q)
Investments made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate amount at any time
outstanding not to exceed:
(i)
the greater of $50,000,000 and 37% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period,
plus
(ii)
the Available RP Capacity Amount plus the Available RDP Capacity Amount, plus
(iii)
in the event that (A) the Borrower or any of its Restricted Subsidiaries makes any Investment after the Closing Date in any Person that
is not a Restricted Subsidiary and (B) such Person subsequently becomes a Restricted Subsidiary, an amount equal to 100% of the fair
market value of such Investment as of the date on which such Person becomes a Restricted Subsidiary;
(r)
Investments made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount
not to exceed (i) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (r)(i)
plus (ii) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply
to this clause (r)(ii) (plus, without duplication of amounts referred to in this clause (ii), in an amount equal to the
Net Proceeds from a Disposition of property or assets acquired after the Closing Date, if the acquisition of such property or assets
was financed with Available Excluded Contribution Amounts up to the amount of such Available Excluded Contribution Amount, less any application
thereof under Sections 6.04(a)(iii) or 6.04(b)(iv));
(s)
(i) Guarantees of leases or subleases (in each case other than Capital Leases) or of other obligations not constituting Indebtedness,
(ii) Guarantees of the lease obligations of suppliers, customers, franchisees and licensees of the Borrower and/or its Restricted Subsidiaries,
in each case, in the ordinary course of business and (iii) Investments consisting of Guarantees of any supplier’s obligations in
respect of commodity contracts, including Hedge Agreements, solely to the extent such commodities related to the materials or products
to be purchased by the Borrower or any Restricted Subsidiary;
(t)
(i) Investments in any Parent Company in amounts and for purposes for which Restricted Payments to such Parent Company are permitted
under Section 6.04(a); provided that any Investment made as provided above in lieu of any such Restricted Payment shall reduce
availability under the applicable Restricted Payment basket under Section 6.04(a) and (ii) Investments consisting of loans and
advances to any Parent Company in connection with the reimbursement of expenses incurred on behalf of the Borrower or any Restricted
Subsidiary in the ordinary course of business;
(u)
Investments made by any Restricted Subsidiary that is not a Loan Party with the proceeds received by such Restricted Subsidiary from
an Investment made by any Loan Party in such Restricted Subsidiary pursuant to this Section 6.06 (other than Investments made
pursuant to clause (ii) of Section 6.06(e));
(v)
Investments in subsidiaries in connection with reorganizations and/or restructurings, including any Permitted Reorganization and/or any
IPO Reorganization Transaction, and/or activities related to tax planning (including Investments in non-Cash or non-Cash Equivalents);
provided that, after giving effect to any such reorganization, restructuring and/or related activity, the security interest of the Administrative
Agent in the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute
Collateral immediately prior to such reorganization, restructuring or tax planning activities no longer constituting Collateral) as a
result of such reorganization, restructuring or tax planning activities;
(w)
Investments arising under or in connection with any Derivative Transaction of the type permitted under Section 6.01(s);
(x)
Investments made (i) in Joint Ventures, (ii) in connection with the creation, formation and/or acquisition of any Joint Venture or (iii)
in any Restricted Subsidiary to enable such Restricted Subsidiary to create, form and/or acquire any Joint Venture, in an aggregate outstanding
amount under this clause (x) not to exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day
of the most recently ended Test Period; provided that if any Investment pursuant to this clause (x) is made in any Person that is not
a Restricted Subsidiary at the date of making of such Investment and such Person becomes a Restricted Subsidiary after such date, such
Investment shall thereafter be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been made under this
clause (x);
(y)
Investments made in joint ventures as required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth
in joint venture agreements and similar binding arrangements in effect on the Closing Date or entered into after the Closing Date in
the ordinary course of business;
(z)
unfunded pension fund and other employee benefit plan obligations and liabilities to the extent that they are permitted to remain unfunded
under applicable Requirements of Law;
(aa)
Investments in Holdings, the Borrower and/or any subsidiary in connection with intercompany cash management arrangements and related
activities in the ordinary course of business;
(bb)
Investments made in connection with any nonqualified deferred compensation plan or arrangement for any Permitted Payee;
(cc)
any Investment made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted
Subsidiary (but for the avoidance of doubt, after such subsidiary was designated as an Unrestricted Subsidiary) so long as the relevant
Investment was not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary;
(dd)
additional Investments so long as, as measured at the time provided for in Section 1.04(e), on a Pro Forma
Basis, the Total Leverage Ratio does not exceed 4.25:1.00;
(ee)
Investments consisting of the licensing or contribution of IP Rights pursuant to joint marketing, collaborations or other similar
arrangements with other Persons;
(ff)
Investments in or relating to any Receivables Subsidiary that, in the good faith determination of the Borrower, are necessary or
advisable to effect a Receivables Facility or any repurchases in connection therewith (including Investments of funds held in
accounts permitted or required by the arrangements governing such Receivables Facility or any related Indebtedness);
(gg)
the conversion to Qualified Capital Stock of any Indebtedness owed by the Borrower or any Restricted Subsidiary and permitted
by Section 6.01;
(hh)
Restricted Subsidiaries of the Borrower may be established or created if the Borrower and such Restricted Subsidiary comply with the
requirements of Section 5.12, if applicable; provided that, in each case, to the extent such new Restricted Subsidiary
is created solely for the purpose of consummating a transaction pursuant to an acquisition or other Investment permitted by this Section
6.06, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any acquisition or Investment
consideration contributed to it contemporaneously with the closing of such transaction, such new Restricted Subsidiary shall not be required
to take the actions set forth in Section 5.12 until the respective acquisition is consummated (at which time the surviving entity
of the respective transaction shall be required to so comply in accordance with the provisions thereof);
(ii)
contributions in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners,
members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the
case of a bankruptcy of the Borrower or any of its Restricted Subsidiaries;
(jj)
Investments by Loan Parties in any Restricted Subsidiary that is not a Loan Party so long as such Investment is part of a series of simultaneous
Investments by the Borrower and the Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the intercompany
Investment being invested in one or more Loan Parties;
(kk)
Investments consisting of earnest money deposits required in connection with purchase agreements or other acquisitions or Investments
otherwise permitted under this Section 6.06 and any other pledges or deposits permitted by Section 6.02;
(ll)
Term Loans repurchased by Holdings, the Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance
with this Agreement and, to the extent permitted (or not prohibited) by Section 6.04(b), loans repurchased by the Borrower or
a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance with the terms of any other Indebtedness;
(mm)
Guarantee obligations of the Borrower or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations
issued, made or incurred for the benefit of any Restricted Subsidiary of the Borrower to the extent required by law or in connection
with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;
(nn)
purchases and acquisitions of inventory, supplies, materials, services, equipment or similar assets in the ordinary course of business;
and
(oo)
Investments pursuant to, in connection with, or made with the proceeds of any Excluded Property Transaction and/or any iStar
Exchange.
Section
6.07. Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted
Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves
(or suffer any liquidation or dissolution), or make any Disposition of assets having a fair market value in excess of $5,000,000, in
a single transaction or in a series of related transactions, and in excess of $10,000,000 in the aggregate for all such
transactions in any Fiscal Year, except:
(a)
any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary; provided
that (i) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (A) the Borrower shall be the continuing
or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation (including any immediate
and successive mergers, consolidations or amalgamations of entities) is not the Borrower (any such Person after giving effect to such
transaction or transactions, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or
existing under the law of the U.S., any state thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume
the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (3) except as the Administrative
Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed
and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being
understood and agreed that if the foregoing conditions under clauses (1) through (3) are satisfied, the Successor Borrower
will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (ii) in the case of any
such merger, consolidation or amalgamation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing
or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Subsidiary Guarantor
in a manner reasonably satisfactory to the Administrative Agent or (y) the relevant transaction shall be treated as an Investment and
otherwise be made in compliance with Section 6.06;
(b)
Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise);
provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value
(as determined by such Person in good faith) or (ii) treated as an Investment and otherwise be made in compliance with Section 6.06
(other than in reliance on clause (j) thereof);
(c)
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution
is in the best interests of the Borrower, is not materially disadvantageous to the Lenders, and the Borrower or any Restricted Subsidiary
receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation
or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such
distribution shall be treated as an Investment and shall otherwise be made in compliance with Section 6.06 (other than in reliance
on clause (j) thereof); (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect
(A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c))
or (B) any Investment permitted under Section 6.06; and (iii) the Borrower or any Restricted Subsidiary may be converted into
another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral,
taken as a whole;
(d)
(x) Dispositions of inventory or goods held for sale, equipment or other assets in the ordinary course of business (including on an intercompany
basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e)
Dispositions of surplus, obsolete, used or worn out property or other property that, in the good faith judgment of the Borrower, is (A)
no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable
or not commercially reasonable to maintain;
(f)
Dispositions of Cash and/or Cash Equivalents or other assets that were Cash and/or Cash Equivalents when the relevant original Investment
was made;
(g)
Dispositions, mergers, amalgamations, consolidations or conveyances that constitute (or are made in order to effectuate) Investments
permitted pursuant to Section 6.06 (other than Section 6.06(j)), Permitted Liens, Restricted Payments permitted by Section
6.04(a) (other than Section 6.04(a)(ix)) and Sale and Lease-Back Transactions permitted by Section
6.08;
(h)
Dispositions for fair market value; provided that with respect to (1) any single Disposition transaction with respect
to assets having a fair market value in excess of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last
day of the most recently ended Test Period or (2) any other Disposition transactions with respect to assets having a fair market
value in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended
Test Period, for all such transactions on an aggregate basis in any Fiscal Year, at least 75% of the consideration for such
Disposition, shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement,
(v) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the
Obligations or that are owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on
such Person’s most recent balance sheet (or in the notes thereto), or if the incurrence of such Indebtedness or other
liability took place after the date of such balance sheet, that would have been shown on such balance sheet or in the notes thereto,
as determined in good faith by the Borrower) that are (i) assumed by the transferee of any such assets and for which the Borrower
and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing or (ii) otherwise
cancelled or terminated in connection with such Disposition, (w) the amount of any trade-in value applied to the purchase price of
any replacement assets acquired in connection with such Disposition, (x) any Securities or other obligations or assets received by
the Borrower or any Restricted Subsidiary from such transferee (including earn-outs or similar obligations) that are converted by
such Person into Cash or Cash Equivalents, or by their terms are required to be satisfied for Cash or Cash Equivalents (to the
extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (y) any
Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with
all other Designated Non-Cash Consideration received pursuant to this clause (y) and clause (C)(z) of the proviso to Section
6.08 that is at that time outstanding, not in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of
the last day of the most recently ended Test Period, in each case shall be deemed to be Cash); provided, further, that the
Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section
2.11(b)(ii);
(i)
to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii)
the proceeds of the relevant Disposition are promptly (or within 180 days) applied to the purchase price of such replacement property;
(j)
Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture
or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(k)
Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness
thereof) or in connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(l)
Dispositions and/or terminations of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses (including the
provision of software under any open source license), the Dispositions or terminations of which (i) do not materially
interfere with the business of the Borrower and its Restricted Subsidiaries, (ii) relate to closed facilities or the discontinuation
of any product line or (iii) are made in the ordinary course of business;
(m)
(i) any termination of any lease, sublease, license or sub-license in the ordinary course of business (and any related Disposition of
improvements made to leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal
property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation
claims (including in tort) in the ordinary course of business;
(n)
Dispositions of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain or condemnation proceedings
(including in lieu thereof or any similar proceeding);
(o)
Dispositions or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property) with
respect to facilities that are temporarily not in use, held for sale or closed;
(p)
the Transactions and any Dispositions in connection with the Transactions;
(q)
Dispositions of non-core assets and sales of Real Estate Assets, in each case acquired in any acquisition or other Investment permitted
hereunder, (x) which Disposition or sale is required to obtain the approval of any anti-trust authority or (y) which, within 120 days
of the date of such acquisition or Investment, are designated in writing to the Administrative Agent as being held for sale and not for
the continued operation of the Borrower or any of its Restricted Subsidiaries or any of their respective businesses;
(r)
exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction),
of property or assets so long as any such exchange or swap is made for fair value (as determined by the Borrower in good faith) for like
property or assets or property, assets or services of greater value or usefulness to the business of the Borrower and its Restricted
Subsidiaries as a whole, as determined in good faith by the Borrower; provided that upon the consummation of any such exchange
or swap by any Loan Party, to the extent the property received does not constitute an Excluded Asset, the Administrative Agent has a
perfected Lien with the same priority as the Lien held on the property or assets so exchanged or swapped;
(s)
Dispositions of assets that do not constitute Collateral having a fair market value of not more than, in any Fiscal Year, the greater
of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(t)
(i) licensing and cross-licensing (including sub-licensing) arrangements involving any technology, intellectual property or IP Rights
of the Borrower or any Restricted Subsidiary in the ordinary course of business, (ii) Dispositions, abandonments, cancellations or lapses
of IP Rights or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the good faith determination
of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical
to maintain in light of its use and (iii) Dispositions of any technology, intellectual property or other IP Rights of the Borrower or
any Restricted Subsidiary involving their customers in the ordinary course of business;
(u)
terminations or unwinds of Derivative Transactions;
(v)
Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w)
Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for
directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted
Subsidiary;
(x)
Dispositions made to comply with any order or other directive of any Governmental Authority or any applicable Requirement of
Law;
(y)
any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary
in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z)
Dispositions constituting any part of a Permitted Reorganization and/or an IPO Reorganization Transaction;
(aa)
any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(bb)
other Dispositions involving assets having a fair market value of not more than, in any Fiscal Year, the greater of $15,000,000 and
11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, which amounts if not used in any
Fiscal Year may be carried forward to the next succeeding Fiscal Year (with such carried over amount deemed first applied in such
succeeding Fiscal Year), in any event not to exceed, in any Fiscal Year, the greater of $30,000,000 and 22% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period;
(cc)
Dispositions contemplated on the Closing Date and described on Schedule 6.07 hereto;
(dd)
Dispositions or discounts of accounts receivable, or participations therein, or other rights to payment and related assets in connection
with any Receivables Facility;
(ee)
the Borrower and the Restricted Subsidiaries may issue, sell or dispose of Capital Stock to directors, officers, managers or employees
for purposes of (i) satisfying requirements with respect to directors’ qualifying shares and shares issued to foreign nationals,
in each case as required by applicable Requirements of Law and (ii) satisfying applicable Requirements of Law with respect to Liquor
License Subsidiaries;
(ff)
the Borrower and the Restricted Subsidiaries may enter into any netting arrangement of accounts receivable between or among the Borrower
and its Restricted Subsidiaries or among Restricted Subsidiaries of the Borrower made in the ordinary course of business;
(gg)
[reserved];
(hh)
any merger, consolidation, liquidation, wind-up or dissolution by one or more Restricted Subsidiaries in order to effectuate an iStar
Exchange, Excluded Property Transaction or any Sale and Lease-Back Transaction permitted hereunder;
(ii)
the sale, lease, transfer or other Disposition of any Excluded Property or consummation of any iStar Exchange by the Borrower or any
Restricted Subsidiaries;
(jj)
Dispositions of Bowling Equipment pursuant to the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback 2014 Documents by the Borrower
or any Restricted Subsidiaries;
(kk)
Dispositions of the Closed Sites and Closed Centers (as defined in the iStar Sale/Leaseback Documents and the iStar
Sale/Leaseback II Documents);
(ll) one or more Foreign Asset Dispositions;
(mm)
Disposition of Site #288 known as Starlite Lanes and of any EAP (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback
2014 Documents);
(nn)
(i) Dispositions in the ordinary course of business of Bowling Equipment, bowling products and other equipment used in the operation
or maintenance of bowling centers and related accessories to Foreign Subsidiaries of the Borrower for use in bowling centers operated
by such Foreign Subsidiaries and (ii) Dispositions of bowling products to Foreign Subsidiaries for resale by such Foreign Subsidiaries,
in each case at a price at least equal to the cost to the Borrower or selling subsidiary of such Bowling Equipment, bowling products,
equipment used in the operation or maintenance of bowling centers or related accessories; and
(oo)
(i) Disposition, licenses or other transfers of patents and other IP Rights, together with the goodwill associated therewith, related
solely to bowling products and the amusement products business, (ii) the granting of a royalty-free perpetual license to use certain
“AMF” trademarks only in the field of bowling and amusement products, equipment and systems and certain services related
to the foregoing and (iii) the granting of a license concerning the Pinspash trademark.
To
the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party,
such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents (which Liens shall be automatically
released upon the consummation of such Disposition) and the Administrative Agent shall be authorized to take, and shall take, any actions
reasonably requested by the Borrower or otherwise deemed appropriate in order to effect the foregoing.
Section
6.08. Sale and Lease-Back Transactions. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to,
directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any
property (whether real, personal or mixed), whether now owned or hereafter acquired, which the Borrower or the relevant Restricted
Subsidiary (a) has sold or transferred or is to sell or to transfer to any other Person (other than the Borrower or any of its
Restricted Subsidiaries) and (b) intends to use for substantially the same purpose as the property which has been or is to be sold
or transferred by the Borrower or such Restricted Subsidiary to any Person (other than the Borrower or any of its Restricted
Subsidiaries) in connection with such lease (such a transaction described herein, a “Sale and Lease-Back
Transaction”); provided that any Sale and Lease-Back Transaction shall be permitted so long as either (A) the
resulting Indebtedness, if any, is permitted by Section 6.01(m) or Section 6.01(z), (B) such Sale and Leaseback
Transaction (i) was in existence on the Closing Date or (ii) is an iStar Sale/Leaseback (including pursuant to an iStar Exchange),
iStar Sale/Leaseback 2014 or Excluded Property Sale/Leaseback Transaction or (C) (1) such Sale and Lease- Back Transaction is made
in exchange for cash consideration (provided that for purposes of the foregoing cash consideration requirement, (v) the
amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the
Obligations or that are owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as
shown on such Person’s most recent balance sheet (or in the notes thereto), or, if the incurrence of such Indebtedness or
other liability took place after the date of such balance sheet, that would have been shown on such balance sheet or in the notes
thereto, as determined in good faith by the Borrower) that are (i) assumed by the transferee of any such assets and for which the
Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing or (ii)
otherwise cancelled or terminated in connection with the relevant Sale and Lease Back Transaction, (x) the amount of any trade-in
value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any Securities or
other obligations or assets received by the Borrower or any Restricted Subsidiary from such transferee (including earn-outs or
similar obligations) that are converted by such Person into Cash or Cash Equivalents, or by their terms are required to be satisfied
for Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the
applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of the relevant Sale and Lease Back
Transaction having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant
to this clause (z) and clause (y) of the proviso to Section 6.07(h) that is at that time outstanding, not in
excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period, in each case shall be deemed to be Cash), (2) the Borrower or its applicable Restricted Subsidiary would otherwise be
permitted to enter into, and remain liable under, the applicable underlying lease and (3) the aggregate fair market value of the
assets sold subject to all Sale and Lease-Back Transactions under this clause (C) shall not exceed the greater of $65,000,000
and 49% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period.
Section
6.09. Transactions with Affiliates. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into
any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) involving payment in
excess of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period
in any individual transaction with any of their respective Affiliates on terms that are substantially less favorable to the Borrower
or such Restricted Subsidiary, as the case may be (as determined by the Borrower in good faith), than those that might be obtained at
the time in a comparable arm’s-length transaction from a Person who is not an Affiliate; provided that the foregoing restriction
shall not apply to:
(a)
any transaction between or among Holdings, the Borrower and/or one or more Restricted Subsidiaries (or any entity that becomes a Restricted
Subsidiary as a result of such transaction) to the extent permitted or not restricted by this Agreement;
(b)
any issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body)
of any Parent Company or of the Borrower or any Restricted Subsidiary;
(c)
(i) any collective bargaining, employment, indemnification, expense reimbursement or severance agreement or compensatory (including profit
sharing) arrangement entered into by the Borrower or any of its Restricted Subsidiaries with any Permitted Payee, (ii) any subscription
agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with any Permitted
Payee and (iii) payments or other transactions pursuant to any management equity plan, employee compensation, benefit plan, stock option
plan or arrangement, equity holder arrangement, supplemental executive retirement benefit plan, any health, disability or similar insurance
plan, or any employment contract or arrangement which covers any Permitted Payee and payments pursuant thereto;
(d)
(i) transactions permitted by Sections 6.01(d), (o), (bb) and (ee), 6.04 and 6.06(h), (m), (o), (t), (v),
(x), (y), (z), (aa), (bb), (cc), (ff), (gg), (ii), (jj), (kk), (ll) and (mm), (ii) any Permitted Reorganization or IPO
Reorganization Transaction and (iii) issuances of Capital Stock and issuances and incurrences of Indebtedness not restricted by this
Agreement and payments pursuant thereto;
(e)
the existence of, or performance by the Borrower or any Restricted Subsidiary of its obligations under the terms of, any transaction
or agreement in existence on the Closing Date and any amendment, modification or extension thereof to the extent such amendment, modification
or extension, taken as a whole, is not (i) materially adverse to the Lenders or (ii) more disadvantageous to the Lenders than the relevant
transaction in existence on the Closing Date;
(f)
(i) so long as no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) (solely with respect to the Borrower in the
case of Section 7.01(f) and (g)) then exists or would result therefrom, the payment of management, monitoring, consulting,
advisory and similar fees to any Investor in an amount not to exceed in any Fiscal Year the greater of $3,000,000 and 1% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period, it being understood that (x) during any such Event of Default,
such fees may continue to accrue and become payable upon the waiver, termination or cure of such Event of Default and (y) any amount
not paid in any Fiscal Year may be carried forward and paid in subsequent Fiscal Years without limitation as to amount, but otherwise
subject to the requirements of this clause (f), (ii) customary termination fees payable to the Investors, (iii) customary compensation
to Affiliates in connection with financial advisory, financing, underwriting or placement services or in respect of other investment
banking activities and other transaction fees, which are approved, or made pursuant to arrangements approved, by the majority of the
members of the board of directors (or similar governing body) or a majority of disinterested members of the board of directors (or similar
governing body) of the Borrower in good faith and (iv) the payment of any indemnification obligations and expenses (and similar amounts)
owed to any Investor and any of their respective directors, officers, members of management, managers, employees and consultants, in
each case of clauses (i), (ii), (iii) and (iv) whether currently due or paid in respect of accruals from prior periods;
(g)
the Transactions, including the payment of Transaction Costs and payments required under the Acquisition Agreement;
(h)
any transaction or transactions approved by a majority of the disinterested members of the board of directors (or similar governing body)
of the Borrower at such time;
(i)
Guarantees permitted by Section 6.01 or Section 6.06;
(j)
loans and other transactions among the Loan Parties and their Subsidiaries, in each case to the extent permitted under this Article
6;
(k)
the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board of directors
(or similar governing body), officers, employees, members of management, managers, consultants and independent contractors of the Borrower
and/or any of its Restricted Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity
on behalf of any Parent Company, to the extent attributable to the operations of the Borrower or its subsidiaries;
(l)
transactions with customers, clients, suppliers, licensees, Joint Ventures, purchasers or sellers of goods or services or providers
of employees or other labor entered into in the ordinary course of business, which are (i) fair to the Borrower and/or its
applicable Restricted Subsidiary in the good faith determination of the board of directors (or similar governing body) of the
Borrower or the senior management thereof or (ii) on terms not substantially less favorable to the Borrower and/or its applicable
Restricted Subsidiary as might reasonably be obtained from a Person other than an Affiliate;
(m)
the payment of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to shareholders
under any shareholder agreement and the existence or performance by the Borrower or any Restricted Subsidiary of its obligations under
any such registration rights or shareholder agreement;
(n)
(i) any purchase by Holdings of the Capital Stock of (or contribution to the equity capital of) the Borrower and (ii) any intercompany
loans made by Holdings to the Borrower or any Restricted Subsidiary;
(o)
any transaction in respect of which the Borrower delivers to the Administrative Agent a letter addressed to the board of directors (or
equivalent governing body) of the Borrower from an accounting, appraisal or investment banking firm of nationally recognized standing
stating that such transaction is on terms that are not substantially less favorable to the Borrower or the applicable Restricted Subsidiary
than might be obtained at the time in a comparable arm’s length transaction from a Person who is not an Affiliate;
(p)
(i) Investments by Affiliates in Securities or other Indebtedness of the Borrower or any Restricted Subsidiary (and payment of reasonable
out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the Investment is being offered by the Borrower
or such Restricted Subsidiary generally to other investors on the same or more favorable terms and (ii) payments to Affiliates in respect
of Securities or other Indebtedness of the Borrower or any Restricted Subsidiary contemplated in the foregoing subclause (i) or that
were acquired from Persons other than the Borrower and the Restricted Subsidiaries, in each case, in accordance with the terms of such
Securities or other Indebtedness;
(q)
[reserved];
(r)
transactions undertaken in the ordinary course of business pursuant to membership in a purchasing consortium; and
(s)
any transaction in connection with the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Transaction
and/or any iStar Exchange.
Section
6.10. [Reserved].
Section
6.11. [Reserved].
Section
6.12. Amendments of or Waivers with Respect to Restricted Debt. The Borrower shall not, nor shall it permit any of its Restricted
Subsidiaries to, amend or otherwise modify the terms of any Restricted Debt (or the documentation governing any Restricted Debt) if the
effect of such amendment or modification, together with all other amendments or modifications made, is materially adverse to the interests
of the Lenders (in their capacities as such); provided that, for purposes of clarity, it is understood and agreed that the foregoing
limitation shall not otherwise prohibit any Refinancing Indebtedness or any other replacement, refinancing, amendment, supplement, modification,
extension, renewal, restatement or refunding of any Restricted Debt, in each case, that is permitted under this Agreement in respect
thereof.
Section
6.13. [Reserved].
Section
6.14. Permitted Activities of Holdings. Holdings shall not:
(a)
incur any Indebtedness for borrowed money other than (i) the Indebtedness permitted to be incurred by Holdings under the Loan Documents
and any Second Lien Facility or otherwise in connection with the Transactions, (ii) Guarantees of Indebtedness or other obligations of
the Borrower and/or any Restricted Subsidiary, which Indebtedness or other obligations are otherwise permitted hereunder, (iii) Indebtedness
owed to the Borrower or any Restricted Subsidiary otherwise permitted hereunder and (iv) any Indebtedness or other obligations arising
in respect of its Guarantee of the iStar Sale/Leaseback, iStar Sale/Leaseback 2014, any Excluded Property Transaction and any iStar Exchange;
(b)
create or suffer to exist any Lien on any property or asset now owned or hereafter acquired by it other than (i) the Liens created
under the Collateral Documents and, subject to the Intercreditor Agreement, the collateral documents relating to any Second Lien
Facility, in each case, to which it is a party, (ii) any other Lien created in connection with the Transactions, (iii) Permitted
Liens on the Collateral that are secured on a pari passu or junior basis with the Secured Obligations, so long as such
Permitted Liens secure Guarantees permitted under clause (a)(ii) above and the underlying Indebtedness subject to such
Guarantee is permitted to be secured on the same basis pursuant to Section 6.02 and (iv) Liens of the type
permitted under Section 6.02 (other than in respect of Indebtedness for borrowed money not referred to in clause
(a)(i) of this Section 6.13); or
(c)
engage in any material business activity or own any material assets other than (i) holding the Capital Stock of the Borrower and,
indirectly, any other subsidiary of the Borrower (and/or any Joint Venture of any thereof); (ii) performing its obligations under
the Loan Documents and any Second Lien Facility and other Indebtedness, Liens (including the granting of Liens) and Guarantees
permitted hereunder; (iii) issuing its own Capital Stock (including, for the avoidance of doubt, the making of any dividend or
distribution on account of, or any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value
of, any shares of any class of Capital Stock permitted hereunder); (iv) filing Tax reports and paying Taxes, including Tax
distributions made pursuant to Section 6.04(a)(xv) and other customary obligations in the ordinary course (and contesting any
Taxes); (v) preparing reports to Governmental Authorities and to its shareholders; (vi) holding director and shareholder meetings,
preparing organizational records and other organizational activities required to maintain its separate organizational structure or
to comply with applicable Requirements of Law; (vii) effecting any initial public offering of its Capital Stock; (viii) holding (A)
Cash, Cash Equivalents and other assets received in connection with permitted distributions or dividends received from, or permitted
Investments or permitted Dispositions made by, any of its subsidiaries or permitted contributions to the capital of, or proceeds
from the issuance of Capital Stock of, Holdings pending the application thereof and (B) the proceeds of Indebtedness permitted by Section
6.01; (ix) providing indemnification for its officers, directors, members of management, employees and advisors or consultants;
(x) participating in tax, accounting and other administrative matters; (xi) making payments of the type permitted under Section
6.09(f) and the performance of its obligations under any document, agreement and/or Investment contemplated by the Transactions,
the Amendment No. 1 Transactions, the Amendment No. 2 Transactions or otherwise not prohibited under this Agreement; (xii)
complying with applicable Requirements of Law (including with respect to the maintenance of its existence); (xiii) [reserved]; (xiv)
repurchases of Indebtedness through open market purchases and/or Dutch Auctions permitted hereunder; (xv) activities incidental to
Permitted Acquisitions or similar Investments consummated by the Borrower and/or any Restricted Subsidiaries, including the
formation of acquisition vehicle entities and intercompany loans and/or Investments incidental to such Permitted Acquisitions or
similar Investments; (xvi) consummating the Holdings Reorganization Transaction, any Permitted Reorganization or any IPO
Reorganization Transaction; (xvii) the maintenance of its legal existence (including the ability to incur and pay, as applicable,
fees, costs and expenses and taxes related to such maintenance), (xviii) activities incidental or reasonably related to any of the
foregoing and (xvii) any transaction expressly permitted pursuant to clauses (a), (b) and/or (d) of this Section
6.14; or
(d)
consolidate or amalgamate with, or merge with or into, or convey, sell or otherwise transfer all or substantially all of its assets to,
any Person; provided that, so long as no Event of Default exists or would result therefrom, (A) Holdings may consolidate or amalgamate
with, or merge with or into, any other Person (other than the Borrower and any of its subsidiaries) so long as (i) Holdings is the continuing
or surviving Person or (ii) if the Person formed by or surviving any such consolidation, amalgamation or merger is not Holdings, (x)
the successor Person expressly assumes all obligations of Holdings under this Agreement and the other Loan Documents to which Holdings
is a party pursuant to a supplement hereto and/or thereto in a form reasonably satisfactory to the Administrative Agent and (y) the Borrower
delivers a certificate of a Responsible Officer with respect to the satisfaction of the conditions set forth in clause (x) of
this clause (A)(ii) and (B) Holdings may (1) consummate the Holdings Reorganization Transaction and/or (2) otherwise convey,
sell or otherwise transfer all or substantially all of its assets to any other Person (other than the Borrower and any of its subsidiaries)
so long as (x) no Change of Control results therefrom, (y) the Person acquiring such assets expressly assumes all of the obligations
of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto and/or thereto
in a form reasonably satisfactory to the Administrative Agent and (z) the Borrower delivers a certificate of a Responsible Officer with
respect to the satisfaction of the conditions under clause (x) set forth in this clause (B); provided, further, that
(1) if the conditions set forth in the preceding proviso are satisfied, the successor to Holdings will succeed to, and be substituted
for, Holdings under this Agreement, (2) it is understood and agreed that Holdings may convert into another form of entity so long as
such conversion does not adversely affect the value of the Collateral pledged by Holdings, taken as a whole and (3) notwithstanding anything
to the contrary in this Section 6.14, nothing herein shall preclude Holdings from consummating any Permitted Reorganization or
IPO Reorganization Transaction.
Section
6.15. Financial Covenant.
(a)
First Lien Leverage Ratio. On the last day of any Test Period ending on or after the last day of the first full Fiscal Quarter
ending after the Closing Date on which the Revolving Facility Test Condition is then satisfied (other than any Test Period ending
during the Covenant Waiver Period, so long as the Borrower is in compliance with any then-applicable Covenant Waiver Conditions at
all times during the applicable portions of such Covenant Waiver Period (giving effect to any cure periods stated therein)), the
Borrower shall not permit the First Lien Leverage Ratio to be greater than 6.25:1.00, stepping-down to a First Lien Leverage Ratio
of 6.00:1.00 for the Fiscal Quarter ended on or about September 30, 2020 and thereafter (as applicable). For the avoidance of doubt,
if the Borrower ceases to be in compliance with any then-applicable Covenant Waiver Conditions at any time during the applicable
portions of such Covenant Waiver Period, then (A) the Financial Covenant will be deemed to have been applicable as of the last day
of the most recently ended Test Period (but solely to the extent the Revolving Facility Test Condition was otherwise satisfied on
such last day) and (B) accordingly, if the Borrower would not have been in compliance with the Financial Covenant as of the last day
of such Test Period, then, solely to the extent the Revolving Facility Test Condition was otherwise satisfied on such last day, and
subject to the rights and limitations set forth in Section 6.15(b), a breach of this Section 6.15(a) shall be deemed to have
occurred from such non-compliance with the Covenant Waiver Conditions (unless so cured).
Notwithstanding
the other provisions of this Agreement, from and after the termination of the Covenant Waiver Period, for purposes of calculating the
First Lien Leverage Ratio for purposes of this Section 6.15 and determining compliance with the Financial Covenant (if then tested):
(i)
for the first Test Period ending after termination of the Covenant Waiver Period, Consolidated Adjusted EBITDA shall be deemed to be
the product of (x) Consolidated Adjusted EBITDA for the most recently ended Fiscal Quarter for which financial statements under Section
5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have been delivered), multiplied by (y) the
Seasonal Adjustment Factor for such Fiscal Quarter;
(ii)
for the second Test Period ending after termination of the Covenant Waiver Period, Consolidated Adjusted EBITDA shall be deemed to be
the product of (x) Consolidated Adjusted EBITDA for the two most recently ended consecutive Fiscal Quarters for which financial statements
under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have been delivered), multiplied
by (y) the Seasonal Adjustment Factor for such Fiscal Quarters;
(iii)
for the third Test Period ending after termination of the Covenant Waiver Period, Consolidated Adjusted EBITDA shall be deemed to be
the product of (x) Consolidated Adjusted EBITDA for the three most recently ended consecutive Fiscal Quarters for which financial statements
under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have been delivered), multiplied
by (y) the Seasonal Adjustment Factor for such Fiscal Quarters; and
(iv)
for the avoidance of doubt, for the fourth Test Period ending after the Covenant Waiver Period and each Test Period ending thereafter,
Consolidated Adjusted EBITDA shall be Consolidated Adjusted EBITDA for the four consecutive Fiscal Quarters then most recently ended
for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have
been delivered);
provided
that for any Test Period set forth in clauses (i) through (iii) above the Borrower may elect (with any such election applying to each
subsequent Test Period) to have Consolidated Adjusted EBITDA be Consolidated Adjusted EBITDA for the four consecutive Fiscal Quarters
then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered
(or are required to have been delivered).
For
purposes of this Section 6.15 and Section 4.02(b), unless otherwise agreed in writing by the Borrower and the Required
Revolving Lenders (but without the consent of the Required Lenders or any other Lender), the applicable following terms have the meanings
specified below:
“Core
Liquidity” means, on any date of determination, the sum of (i) all Cash and Cash Equivalents (that would qualify as “Unrestricted
Cash Amount”) of the Borrower and its Restricted Subsidiaries as of such date, plus (ii) the entire aggregate Unused Revolving
Credit Commitments as of such date.
“Covenant
Waiver Conditions” means that, from and after the Amendment No. 4 Effective Date, each of the following shall be satisfied
at all times prior to the earlier to occur of (i) termination of the Covenant Waiver Period and (ii) Borrower’s delivery to the
Administrative Agent of a Covenant Waiver Termination Notice:
(a)
(i) the Borrower and its Restricted Subsidiaries shall maintain Total Liquidity of not less than $20,000,000 as of the end of each
Business Day; provided that if Total Liquidity is less than $20,000,000 as of the end of any Business Day, then
notwithstanding the foregoing, it shall not be a breach of (or failure to satisfy) the Covenant Waiver Conditions if (i) the
Borrower shall promptly thereafter notify the Administrative Agent in writing of such shortfall and (ii) on or prior to the seventh
Business Day following the date of such shortfall, the Borrower shall have received Cash proceeds of Capital
Stock or capital contributions or Subordinated Sponsor Debt (in each case, the terms and/or classification of which would satisfy
the following proviso of this paragraph (a))a borrowing
under the Incremental Liquidity Facility Credit Agreement in an amount equal to the greatest level of shortfall that
shall have occurred from and including the date of such applicable initial shortfall through the Business Day immediately prior to
such actual date of contribution or borrowing); provided further that if Core Liquidity is less than $10,000,000 as of the
end of any Business Day, then the Borrower shall promptly thereafter notify the Administrative Agent in writing of such shortfall,
and in connection therewith, either (x) Holdingsthe
Borrower shall promptly submit a request to drawborrow
an amount of Cash pursuant to the Sponsor Preferred Stock Subscription Agreement (and promptly
following receipt of the proceeds thereof, contribute such proceeds to the Borrower (which shall be on account of either (A) equity
issued by the Borrower in the form of common equity, Qualified Capital Stock or other equity (such other equity to be on terms
reasonably acceptable to the Administrative Agent) for Cash or (B) Cash contributions in respect of Qualified Capital Stock) (and
for the avoidance of doubt, any equity issued by Holdings (if any) in connection therewith shall be issued pursuant to the Sponsor
Preferred Stock Subscription Agreement or on terms not materially less favorable to Holdings than as provided therein (as determined
by the Borrower in good faith, or as otherwise may be reasonably acceptable to the Administrative Agent), it being understood that,
notwithstanding anything herein to the contrary, such equity may be in the form of Disqualified Capital Stock)) or (y) the Borrower
shall promptly borrow an amount of Sponsor Subordinated Debt, in each case of clause (x) and (y),Incremental
Liquidity Facility Credit Agreement such that Core Liquidity, calculated on a pro forma basis after giving effect to such contribution
or borrowing (as applicable), shall not be less than $20,000,000 on
such date of contribution orimmediately following the
funding of such borrowing (as applicable); provided that,
notwithstanding the foregoing, Holdingsthe
Borrower shall have no obligation to make any drawborrowing
pursuant to the Sponsor Preferred Stock SubscriptionIncremental
Liquidity Facility Credit Agreement if the conditions to any such drawborrowing
set forth therein are not satisfied at such time (and the equivalent conditions and limitations
shall be deemed to apply with respect to any borrowing of Sponsor Subordinated Debt);; provided
further that, for the avoidance of doubt, any such failure to drawborrow
under the Sponsor Preferred Stock Subscription Incremental
Liquidity Facility Credit Agreement or to borrow Sponsor Subordinated
Debt within 12 Business Days (or such later date as approved by the Administrative Agent) of delivery of a request
for such draw or borrowing promptly following the applicable written notice to the
Administrative Agent of any Core Liquidity shortfall (in each case, as applicable
to cause Core Liquidity to be not less than $20,000,000 on the applicable date) shall be a breach of the Covenant Waiver Conditions
and (iiiii)
the Borrower shall deliver to the Administrative Agent for delivery by the Administrative Agent to each Revolving Lender, within 15
days after the end of each calendar month ending after the Amendment No. 4 Effective Date, a computation of Total Liquidity as of
the end of each Business Day during such calendar month then ended (excluding Business Days occurring prior to the Amendment No. 4
Effective Date);
(b) (i)
Holdings shall not amend or otherwise modify the terms of the Sponsor
Preferred Stock Subscription Agreement and (ii) the Borrower shall not amend or modify the terms of any
Sponsor Subordinated Debt (if any), in each case of clause (i) and (ii)the
Incremental Liquidity Facility Credit Agreement, if the effect of such amendment or modification, together with all or
other such amendments or modifications made, is materially adverse to the interests of the Revolving Lenders (in their capacities as
such) (it being understood and agreed that, for the avoidance of doubt, (x) any election by Sponsor
or Holdings to fund the Investments provided for under the Sponsor Preferred Stock Subscription Agreement in portions, as opposed to
a single draw, (y) any (1) Refinancing Indebtedness or any other replacement, refinancing, amendment, supplement,
modification, extension, renewal, restatement or refunding of any Sponsor Subordinated Debt that is
otherwise permitted under thisIncremental Liquidity
Facility Credit Agreement and otherwise constitutes Sponsor Subordinated Debt and (2)
repayment of any Sponsor Subordinated Debt with the Cash proceeds of any equity of Holdings issued
pursuant to the Sponsor Preferred Stock Subscription Agreement (or with other Capital Stock having terms otherwise not
materially less favorable to the Revolving Lenders (in their capacities as such)), and (z) any
election by Holdings or the Borrower to terminate (or reduce commitments pursuant to) the Sponsor Preferred Stock Subscription
Agreement in an amount equivalent to the amount of any Sponsor Subordinated Debt actually funded to the Borrower, in each case of
clauses (x), (y) and/or (z),such debt not expressly
prohibited hereunder and/or any termination (in whole or in part) of such debt financing shall not be so materially
adverse); provided that, for the avoidance of doubt, it is acknowledged and agreed that none of the Administrative Agent or
any Required Revolving Lender (or any Person not a party thereto) are third party beneficiaries of the
Sponsor Preferred Stock SubscriptionIncremental Liquidity
Facility Credit Agreement or any definitive documentation relating to any Sponsor
Subordinated DebtIndebtedness
thereunder;
(c)
notwithstanding anything to the contrary in Sections 2.22, 6.01 or 9.02, during any period when the Revolving Facility Test
Condition is otherwise in effect, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness pursuant to Section 2.22,
Section 6.01(u) or Section 6.01(z) of this Agreement, for borrowed money (or evidenced by bonds, debentures, notes or similar
instruments) to the extent the same would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person
prepared in accordance with GAAP, in each case to the extent that such Indebtedness would be secured on a pari passu basis by a
first priority Lien on a material portion of the Collateral (any such Indebtedness, “Restricted First Lien Debt”)
(other than (i) any such Indebtedness (A) existing as of the Amendment No. 4 Effective Date or (B)(x) incurred pursuant to Section
2.22, Section 6.01(u) or Section 6.01(z) in an aggregate outstanding principal amount not to exceed the lesser of (1) $200,000,000
and (2) the Incremental Cap as in effect at the time of determination and (y) that is on terms not materially less favorable (in
each case, as determined by the Borrower in good faith) to the Borrower than the terms required by the Federal Reserve Bank of
Boston in respect of any loan made pursuant to the “Main Street Expanded Loan Facility” that have been authorized under
Section 13(3) of the Federal Reserve Act (as published prior to June 7, 2020) (an
“MSELF Loan”) (provided that notwithstanding the foregoing (1) the quantum, pricing, interest rates and other
interest terms (including cash pay interest), fees, prepayment penalties or other economic terms may be as agreed between the
Borrower or any of its Restricted Subsidiaries and each lender providing such Indebtedness (each in their sole discretion), (2) the
tenor of such Indebtedness may be shorter than four years so long as it is not shorter than 91 days following the then-existing
Latest Revolving Maturity Date at such time of incurrence and,
(3) any amortization may be as agreed between the Borrower or any of its Restricted Subsidiaries and each lender providing such
Indebtedness (each in their sole discretion) so long as the aggregate Weighted Average Life to Maturity (solely with respect to such
amortization component) of such Indebtedness is no shorter than the Weighted Average Life to Maturity (solely with respect to any
amortization component) pursuant to the “Main Street Expanded Loan Facility” that has been authorized under Section
13(3) of the Federal Reserve Act (as published prior to June 7, 2020) and (4) it is understood and
agreed that the terms of the Incremental Liquidity
Facility Credit Agreement (and such other definitive document relating thereto) are not materially
less favorable to the Borrower than the terms required by the Federal Reserve Bank of Boston in
respect of any MSELF Loan for all purposes hereof) or (ii) Refinancing Indebtedness in respect of any Indebtedness
existing as of the Amendment No. 4 Effective Date or referred to in the preceding clause (i)); provided that, notwithstanding
the foregoing, it shall also not be a breach or violation of the Covenant Waiver Conditions if the Borrower and/or any of its
Restricted Subsidiaries shall incur any other Restricted First Lien Debt on any date when the Revolving Facility Test Condition is
not then satisfied (and thereafter remain liable therefore), so long as such Restricted First Lien Debt does not have a stated final
maturity date that is earlier than 91 days after the then-existing Latest Revolving Maturity Date at such time of incurrence;
and
(d)
notwithstanding anything to the contrary in Section 6.04(a), the Borrower shall not pay or make, directly or indirectly, any Restricted
Payment (other than Restricted payments of the type permitted by Section 6.04(a)(i), (ii), (iv), (v), (vi),
(ix), (xi), (xii), (xiv), (xv), (xviii), (xix) or (xx)) (it being understood that
such limitations shall not, for the avoidance of doubt, apply to the usage of any portion of the Available RP Capacity Amount to (1)
make Investments pursuant to Section 6.06(q)(ii), (2) make Restricted Debt Payments pursuant to Section 6.04(b)(iv)(B)
or (3) incur Indebtedness pursuant to Section 6.01(ll)).
“Covenant
Waiver Period” means the period from and after the Amendment No. 4 Effective Date to and including the earliest of (i) the
day immediately preceding the last day of the Test Period ending on (or about) June 30, 2021March
31, 2022 and (ii) the day immediately preceding the last day of the Test Period during which the Borrower has delivered a
written notice to the Administrative Agent electing to terminate the Covenant Waiver Period (a “Covenant Waiver Termination
Notice”) (e.g., assuming Fiscal Quarters ending on calendar quarter-ends, if such Covenant Waiver Termination Notice is delivered
on October 1, 2020, then December 30, 2020, and the first reinstituted testing of the Financial Covenant would occur for the Fiscal Quarter
ending on December 31, 2020, but solely to the extent the Revolving Facility Test Conditions are satisfied on December 31, 2020).
“Covenant
Waiver Termination Notice” has the meaning assigned to such term in the definition of Covenant Waiver Period.
“Incremental
Liquidity Facility Credit Agreement” has the meaning assigned to such term in Amendment No. 5.
“Seasonal
Adjustment Factor” means, for any Fiscal Quarter or any period of consecutive Fiscal Quarters, as applicable, the product of
(i) one, divided by (ii) the Seasonal Adjustment Percentage for such Fiscal Quarter or the sum of the Seasonal Adjustment Percentages
for such Fiscal Quarters, as applicable.
“Seasonal
Adjustment Percentage” means (i) for the first Fiscal Quarter ending on (or about) March 31 after the end of the Covenant Waiver
Period, 43.0%, (ii) for the first Fiscal Quarter ending on (or about) June 30 after the end of the Covenant Waiver Period, 18.0%, (iii)
for the first Fiscal Quarter ending on (or about) September 30 after the end of the Covenant Waiver Period, 12.0% and (iv) for the first
Fiscal Quarter ending on (or about) December 31 after the end of the Covenant Waiver Period, 27.0%.
“Sponsor
Preferred Stock Subscription Agreement” means that certain Subscription Agreement dated
as of June 10, 2020 between Sponsor and Holdings (as in effect at any given time, including as
amended, waived or otherwise modified).
“Sponsor
Subordinated Debt” means unsecured Indebtedness incurred by the Borrower (which, for the avoidance of doubt, may be guaranteed
by other Loan Parties) from Sponsor on terms acceptable to each of the Borrower and Sponsor in their sole discretion; provided
that (i) the stated final maturity date of such Indebtedness shall be no earlier than 91 days after the then-existing Latest Revolving
Maturity Date at the time of such incurrence (other than any earlier maturity upon the occurrence of any change of control, Qualifying
IPO or any Disposition occurring prior to such 91 days following the Latest Revolving Maturity Date at the time such Sponsor Subordinated
Debt is incurred), (ii) interest on such Indebtedness shall accrue, at the Borrower’s election, as “payment in kind”
interest at all times during the Covenant Waiver Period (or for such longer period as the Borrower and the Sponsor may otherwise agree)
and (iii) such Indebtedness shall be contractually subordinated in right of payment to the payment in full of all Obligations under this
Agreement on terms and conditions reasonably satisfactory to the Administrative Agent.
“Total
Liquidity” means, on any date of determination, the sum of (i) Core Liquidity as of such date, plus (ii) all unused
commitments under the Sponsor Preferred Stock SubscriptionIncremental
Liquidity Facility Credit Agreement.
(b)
Financial Cure. Notwithstanding anything to the contrary in this Agreement (including Article 7), if the Borrower reasonably
expects to fail (or has failed) to comply with Section 6.15(a) above for any Fiscal Quarter, the Borrower shall have the right
(the “Cure Right”) (at any time during such Fiscal Quarter or thereafter until the date that is 10 Business Days after
the date on which financial statements for such Fiscal Quarter are required to be delivered pursuant to Section 5.01(a) or (b),
as applicable) to issue equity (which shall be common equity, Qualified Capital Stock or other equity (such other equity to be on terms
reasonably acceptable to the Administrative Agent)) for Cash or otherwise receive Cash contributions in respect of Qualified Capital
Stock (the “Cure Amount”), and thereupon the Borrower’s compliance with Section 6.15(a) shall be recalculated
giving effect to the following pro forma adjustment: Consolidated Adjusted EBITDA shall be increased (notwithstanding the absence of
a related addback in the definition of “Consolidated Adjusted EBITDA”), solely for the purpose of determining compliance
with Section 6.15(a) as of the end of such Fiscal Quarter and for applicable subsequent periods that include such Fiscal Quarter,
by an amount equal to the Cure Amount. If, after giving effect to the foregoing recalculation (but not, for the avoidance of doubt, except
as expressly set forth below, taking into account any immediate repayment of Indebtedness in connection therewith), the requirements
of Section 6.15(a) would be satisfied, then the requirements of Section 6.15(a) shall be deemed satisfied as of the end
of the relevant Fiscal Quarter with the same effect as though there had been no failure to comply therewith at such date, and the applicable
breach or default of Section 6.15(a) that had occurred (or would have occurred) shall be deemed cured for the purposes of this
Agreement. Notwithstanding anything herein to the contrary, (i) in each four consecutive Fiscal Quarter period there shall be at least
two Fiscal Quarters (which may, but are not required to be, consecutive) in which the Cure Right is not exercised, (ii) during the term
of this Agreement, the Cure Right shall not be exercised more than five times, (iii) the Cure Amount shall be no greater than the amount
required for the purpose of complying with Section 6.15(a) (or to be in pro forma compliance with any financial covenant with
respect to any other Indebtedness that is being cured), (iv) upon the Administrative Agent’s receipt of a written notice
from the Borrower that the Borrower intends to exercise the Cure Right (a “Notice of Intent to Cure”), until the 10th
Business Day following the date on which financial statements for the Fiscal Quarter to which such Notice of Intent to Cure relates are
required to be delivered pursuant to Section 5.01(a) or (b), as applicable, neither the Administrative Agent (nor any sub-agent
therefor) nor any Lender shall exercise any right to accelerate the Loans or terminate the Revolving Credit Commitments or any Additional
Commitments, and none of the Administrative Agent (nor any sub-agent therefor) nor any Lender or Secured Party shall exercise any right
to foreclose on or take possession of the Collateral or any other right or remedy under the Loan Documents, in each case solely on the
basis of the relevant Event of Default under Section 6.15(a), (v) during any Test Period in which any Cure Amount is included
in the calculation of Consolidated Adjusted EBITDA as a result of any exercise of the Cure Right, such Cure Amount shall be (A) counted
solely as an increase to Consolidated Adjusted EBITDA (and not as a reduction of Indebtedness (by netting or otherwise), except to the
extent that the proceeds of such Cure Amount are actually applied to repay Indebtedness, such reduction may be credited in any subsequent
Fiscal Quarter) for the purpose of determining compliance with Section 6.15(a) and (B) disregarded for all other purposes,
including the purpose of determining whether any financial ratio-based condition has been satisfied, the Applicable Rate or the Commitment
Fee Rate or the availability of any carve-out set forth in Article 6 of this Agreement and (vi) no Revolving Lender or Issuing
Bank shall be required to make any Revolving Loan or issue any Letter of Credit hereunder if an Event of Default under Section 6.15(a)
exists during the 10 Business Day period during which the Borrower may exercise a Cure Right above unless and until the Cure Amount
is actually received.
ARTICLE
7 EVENTS OF DEFAULT
Section
7.01. Events of Default. If any of the following events (each, an “Event of Default”) shall
occur:
(a)
Failure To Make Payments When Due. Failure by the Borrower to pay (i) any installment of principal of any Loan when due, whether
at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on
any Loan, any fee or other non-principal amount due hereunder within five Business Days after the date due.
(b)
Default in Other Agreements. (i) Failure by the Borrower or any of its Restricted Subsidiaries to pay when due any principal of
or interest on or any other amount payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in clause
(a) above) with an aggregate outstanding principal amount exceeding the Threshold Amount, in each case beyond the applicable notice
period and grace period, if any, provided therefor; or (ii) breach or default by the Borrower or any of its Restricted Subsidiaries with
respect to any other term of (A) one or more items of Indebtedness with an aggregate outstanding principal amount exceeding the Threshold
Amount or (B) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness (other than, for the
avoidance of doubt, with respect to Indebtedness consisting of Hedging Obligations, termination events or equivalent events pursuant
to the terms of the relevant Hedge Agreement which are not the result of any default thereunder by any Loan Party or any Restricted Subsidiary),
in each case beyond the applicable notice period and grace period, if any, provided therefor, if the effect of such breach or default
is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause,
such Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; provided that clause (ii) of this paragraph (b) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness if such sale or
transfer is permitted hereunder; provided, further, that (x) with respect to any breach or default referred to in clause (ii)
above with respect to a financial covenant in any such Indebtedness, such breach or default shall only constitute an Event of Default
hereunder if such breach or default has resulted in the acceleration of such Indebtedness and the termination of commitments thereunder
and (y) any failure described under clauses (i) or (ii) above is unremedied and is not waived by the holders of such Indebtedness
prior to any termination of the Commitments or acceleration of the Loans pursuant to this Article 7; or
(c) Breach
of Certain Covenants. Failure of any Loan Party, as required by the relevant provision, to perform or comply with any term or
condition contained in Section 5.01(e)(i) (provided that subsequent delivery of a notice of Default or Event of
Default shall cure such Event of Default for failure to provide notice, unless a Responsible Officer of Holdings or the Borrower had
actual knowledge that such Default or Event of Default had occurred and was continuing and should have reasonably known in the
course of his or her duties that failure to provide such notice would constitute an Event of Default), Section 5.02 (as it
applies to the preservation of the existence of the Borrower), or Article 6; provided that, notwithstanding this clause
(c), no breach or default by any Loan Party under Section 6.15(a) will constitute an Event of Default with respect to any
Term Loans unless and until the Required Revolving Lenders have accelerated the Revolving Loans and any Additional Revolving Loans,
terminated the commitments under the Revolving Facility and demanded repayment of, or otherwise accelerated, the Indebtedness or
other obligations under the Revolving Facility and have not rescinded such demand or acceleration (the “Financial Covenant
Standstill”); it being understood and agreed that any breach of Section 6.15(a) (or any other financial covenant)
is subject to cure as provided in Section 6.15(b), and no Event of Default shall arise under Section 6.15(a) until the
10th Business Day after the day on which financial statements are required to be delivered for the relevant Fiscal Quarter under Section
5.01(a) or (b), as applicable, and then only to the extent the Cure Amount has not been received on or prior to such
date; or
(d) Breach
of Representations, Etc. Any representation, warranty or certification made or deemed made by any Loan Party in any Loan
Document or in any certificate required to be delivered in connection herewith or therewith (including, for the avoidance of doubt,
any Perfection Certificate) (limited, on the Closing Date, solely to the Specified Representations and representations referred to
in any officer’s certificate delivered on the Closing Date that specifically refers to this Section 7.01(d)), shall be
untrue in any material respect as of the date made or deemed made and such untrue representation, warranty or certification shall
remain untrue for a period of 30 days after notice from the Administrative Agent to the Borrower (which notice shall only be given
at the direction of the Required Lenders); or
(e)
Other Defaults Under Loan Documents. Default by any Loan Party in the performance of or compliance with any term contained herein
or in any of the other Loan Documents, other than any such term referred to in any other Section of this Article 7, which default
has not been remedied or waived within 30 days after receipt by the Borrower of written notice thereof from the Administrative Agent;
or
(f)
Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) The entry by a court of competent jurisdiction of a decree or order
for relief in respect of Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) (any such
Person, a “Specified Person”) in an involuntary case under any Debtor Relief Law now or hereafter in effect, which
decree or order is not stayed; or any other similar relief shall be granted under any applicable federal, state or local law, which relief
is not stayed; or (ii) the commencement of an involuntary case against any Specified Person under any Debtor Relief Law; the entry by
a court having jurisdiction in the premises of a decree or order for the appointment of a receiver, receiver and manager, (preliminary)
insolvency receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over any Specified Person, or
over all or a substantial part of its property; or the involuntary appointment of an interim receiver, trustee or other custodian of
any Specified Person for all or a substantial part of its property, which remains, in any case under this clause (f), undismissed,
unvacated, unbonded or unstayed pending appeal for 60 consecutive days; or
(g)
Voluntary Bankruptcy; Appointment of Receiver, Etc. (i) The entry against any Specified Person of an order for relief, the commencement
by any Specified Person of a voluntary case under any Debtor Relief Law, or the consent by any Specified Person to the entry of an order
for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Law, or the
consent by any Specified Person to the appointment of or taking possession by a receiver, receiver and manager, trustee or other custodian
for all or a substantial part of its property; (ii) the making by any Specified Person of a general assignment for the benefit of creditors;
or (iii) the admission by any Specified Person in writing of their inability to pay their respective debts as such debts become due;
or
(h) Judgments
and Attachments. The entry or filing of one or more final money judgments, writs or warrants of attachment or similar process
against the Borrower or any of its Restricted Subsidiaries or any of their respective assets involving in the aggregate at any time
an amount in excess of the Threshold Amount (in either case to the extent not adequately covered by indemnity from a third party as
to which the indemnifying party has been notified and not denied its indemnification obligations, self- insurance (if applicable) or
insurance as to which the relevant third party insurance company has been notified and not denied coverage), which judgment, writ,
warrant or similar process remains unpaid, undischarged, unvacated, unbonded or unstayed pending appeal for a period of 60
consecutive days; or
(i)
Employee Benefit Plans. The occurrence of one or more ERISA Events, which individually or in the aggregate result in liability
of the Borrower or any of its Restricted Subsidiaries in an aggregate amount which would reasonably be expected to result in a Material
Adverse Effect; or
(j) Change
of Control. The occurrence of a Change of Control; or
(k)
Guaranties, Collateral Documents and Other Loan Documents. At any time after the execution and delivery thereof (i) any material
Loan Guaranty for any reason ceasing to be in full force and effect (other than in accordance with its terms or as a result of the occurrence
of the Termination Date) or being declared by a court of competent jurisdiction to be null and void or the repudiation in writing by
any Loan Party of its obligations thereunder (other than as a result of the discharge of such Loan Party in accordance with the terms
thereof), (ii) this Agreement or any material Collateral Document or any Lien on a material portion of the Collateral ceasing to be in
full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof, the occurrence
of the Termination Date or any other termination of such Collateral Document in accordance with the terms thereof) or being declared
by a court of competent jurisdiction to be null and void or (iii) other than in any bona fide, good faith dispute as to the scope of
Collateral or whether any Lien has been, or is required to be released, the contesting by any Loan Party of the validity or enforceability
of any material provision of any Loan Document (or any Lien on a material portion of the Collateral purported to be created by the Collateral
Documents) in writing or denial by any Loan Party in writing that it has any further liability (other than by reason of the occurrence
of the Termination Date or any other termination of any other Loan Document in accordance with the terms thereof), including with respect
to future advances by the Lenders, under any Loan Document to which it is a party; it being understood and agreed that the failure of
the Administrative Agent to maintain possession of any Collateral actually delivered to it or file any UCC (or equivalent) continuation
statement shall not result in an Event of Default under this clause (k); or
(l)
Subordination. The Obligations ceasing or the assertion in writing by any Loan Party that the Obligations cease to constitute
senior indebtedness under the subordination provisions of any document or instrument evidencing any permitted Junior Indebtedness in
excess of the Threshold Amount (in each case, to the extent required by such subordination provision) or any such subordination provision
being invalidated by a court of competent jurisdiction or otherwise ceasing, for any reason, to be valid, binding and enforceable obligations
of the parties thereto;
then,
and in every such Event of Default (other than (x) an Event of Default with respect to the Borrower described in clause (f)
or (g) of this Article or (y) any Event of Default arising under Section 6.15(a)), and at any time thereafter during
the continuance of such Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, by notice
to the Borrower, take any of the following actions, at the same or different times: (i) terminate the Revolving Credit Commitments,
and thereupon such Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole
(or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower and (iii) require that the Borrower deposit in the LC
Collateral Account an additional amount in Cash as reasonably requested by the Issuing Banks (not to exceed 100% of the relevant
face amount) of the then outstanding LC Exposure (minus the amount then on deposit in the LC Collateral Account); provided
that (A) upon the occurrence of an Event of Default with respect to the Borrower described in clause (f) or (g) of
this Article, any such Commitments shall automatically terminate and the principal of the Loans then outstanding, together with
accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, and the
obligation of the Borrower to Cash collateralize the outstanding Letters of Credit as aforesaid shall automatically become
effective, in each case without further action of the Administrative Agent or any Lender and (B) during the continuance of any Event
of Default arising under Section 6.15(a), after giving effect to the proviso to Section 7.01(c), (X) solely upon the
request of the Required Revolving Lenders (but not the Required Lenders or any other Lender or group of Lenders), the Administrative
Agent shall, by notice to the Borrower, (1) terminate the Revolving Credit Commitments, and thereupon such Revolving Credit
Commitments shall terminate immediately, (2) declare the Revolving Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Revolving Loans so declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder in respect of the Revolving Loans, shall become due and payable
immediately, without presentment, demand, protest or other notice in respect thereof of any kind, all of which are hereby waived by
the Borrower and (3) require that the Borrower deposit in the LC Collateral Account an additional amount in Cash as reasonably
requested by the Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC Exposure (minus
the amount then on deposit in the LC Collateral Account) and (Y) subject to the Financial Covenant Standstill, the Administrative
Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, declare the Loans then outstanding to be due
and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. Upon the occurrence and during the
continuance of an Event of Default, subject to the Intercreditor Agreement and any other applicable intercreditor agreement, the
Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the
Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC.
ARTICLE
8 THE ADMINISTRATIVE AGENT
Each
of the Lenders and the Issuing Banks, on behalf of itself and its applicable Affiliates and in their respective capacities as such and
as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints
JPM (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions
on its behalf, including execution of the other Loan Documents or any other documents with respect to the rights of the Secured Parties
and the Collateral as contemplated by this Agreement and the Loan Documents, and to exercise such powers as are delegated to the Administrative
Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
Each
of the Secured Parties hereby irrevocably appoints and authorizes the Administrative Agent (as collateral agent) to act as the agent
of (and to hold any security interest created by the Loan Documents for and on behalf of or on trust for) such Secured Party for purposes
of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together
with such powers and discretion as are reasonably incidental thereto. The Lenders agree that any such actions by the Administrative Agent
shall bind such Secured Party.
Any
Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include
each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business
with any Loan Party or any subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding
any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan
Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information
to them.
The
Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the
other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used
merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent
contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any
discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the
Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such
other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section
9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the
opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable
Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its
Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not
taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary,
under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful
misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set
forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any
Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan
Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of
any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the
Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article
4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof, provided, further that, the
foregoing paragraph is solely for the benefit of the Administrative Agent and not any Lender.
Each
Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or
under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have
under applicable law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code
or other similar Dispositions of Collateral. Notwithstanding the foregoing, however, except as otherwise expressly limited herein, a
Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that
would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of a proof of claim in a case
under the Bankruptcy Code.
Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured
Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan
Guaranty; it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative
Agent on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents
may be exercised solely by the Administrative Agent and (ii) in the event of a foreclosure by the Administrative Agent on any of the
Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy
Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply
all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent
at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral
at any such Disposition.
No
holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection
with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement.
Each
of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or
by entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes
and shall be deemed to authorize) the Administrative Agent, on behalf of all Secured Parties, to take any of the following actions upon
the instruction of the Required Lenders:
(a)
consent to the Disposition of all or any portion of the Collateral free and clear of the Liens securing the Secured Obligations in connection
with any Disposition pursuant to the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including
Section 363 thereof;
(b)
credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly
or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to
the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including under Section 363 thereof;
(c)
credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either
directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral
pursuant to the applicable provisions of the UCC (or other applicable Debtor Relief Law), including pursuant to Sections 9-610 or
9-620 of the UCC;
(d)
credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly
or through one or more acquisition vehicles), in connection with any foreclosure or other Disposition conducted in accordance with applicable
law following the occurrence of an Event of Default, including by power of sale, judicial action or otherwise; and/or
(e)
estimate the amount of any contingent or unliquidated Secured Obligations of such Lender or other Secured Party;
it
being understood that no Lender shall be required to fund any new amount in connection with any purchase of all or any portion of the
Collateral by the Administrative Agent pursuant to the foregoing clauses (b), (c) or (d) without its prior written consent.
Each
Secured Party agrees that the Administrative Agent is under no obligation to credit bid any part of the Secured Obligations or to purchase
or retain or acquire any portion of the Collateral; provided that, in connection with any credit bid or purchase described under
clauses (b), (c) or (d) of the preceding paragraph, the Secured Obligations owed to all of the Secured Parties (other than
with respect to contingent or unliquidated liabilities as set forth in the next succeeding paragraph) may be, and shall be, credit bid
by the Administrative Agent on a ratable basis. For the avoidance of doubt, nothing in this Article 8 shall limit any rights of Holdings
or its Subsidiaries under Section 363(k) of the Bankruptcy Code (or the corresponding provisions of any other applicable Debtor Relief
Law).
With
respect to each contingent or unliquidated claim that is a Secured Obligation, the Administrative Agent is hereby authorized by the Secured
Parties, but is not required, to estimate the amount thereof for purposes of any credit bid or purchase described in the second preceding
paragraph so long as the estimation of the amount or liquidation of such claim would not unduly delay the ability of the Administrative
Agent to credit bid the Secured Obligations or purchase the Collateral in the relevant Disposition. In the event that the Administrative
Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot
be estimated without unduly delaying the ability of the Administrative Agent to consummate any credit bid or purchase in accordance with
the second preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit
bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid.
Each
Secured Party whose Secured Obligations are credit bid under clauses (b), (c) or (d) of the third preceding paragraph shall
be entitled to receive interests in the Collateral or any other asset acquired in connection with such credit bid (or in the Capital
Stock of the acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in accordance with the
percentage obtained by dividing (x) the amount of the Secured Obligations of such Secured Party that were credit bid in such credit bid
or other Disposition by (y) the aggregate amount of all Secured Obligations that were credit bid in such credit bid or other Disposition.
In
addition, in case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any
Loan Party, each Secured Party agrees that the Administrative Agent (irrespective of whether the principal of any Loan or LC
Exposure is then due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans or LC Exposure
and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and
counsel and all other amounts to the extent due to the Lenders and the Administrative Agent under Sections 2.12 and 9.03) allowed
in such judicial proceeding; and
(ii)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.
Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and each Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative
Agent consents to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and
any other amount due to the Administrative Agent under Sections 2.12 and 9.03.
Nothing
contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or any Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or any Issuing
Bank in any such proceeding.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank,
the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received
notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
The
Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents
appointed by it. The Administrative Agent and any such sub- agent may perform any and all of their respective duties and exercise their
respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent and shall apply to their respective activities
in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent.
The
Administrative Agent may resign at any time by giving thirty days’ written notice to the Lenders, the Issuing Banks and the
Borrower. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or
the Borrower may, upon thirty days’ notice, remove the Administrative Agent. Upon receipt of any such notice of resignation or
delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be
unreasonably withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company or
other Person reasonably acceptable to the Borrower with offices in the U.S.; provided that during the existence and
continuation of an Event of Default under Section 7.01(a) or, with respect to the Borrower, Section 7.01(f) or (g),
no consent of the Borrower shall be required. If no successor shall have been appointed as provided above and accepted such
appointment within thirty days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent
receives notice of removal, then (a) in the case of a retirement, the retiring Administrative Agent may (but shall not be obligated
to), on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent meeting the qualifications set forth
above (including, for the avoidance of doubt, consent of the Borrower) or (b) in the case of a removal, the Borrower may, after
consulting with the Required Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided
that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no
qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no
qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective
in accordance with such notice and (i) the retiring or removed Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the
Administrative Agent in its capacity as collateral agent for the Secured Parties for perfection purposes, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is
appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with
the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable,
appoint a successor Administrative Agent, as provided for above in this Article 8. Upon the acceptance of its appointment as
Administrative Agent hereunder as a successor Administrative Agent, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to
indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged
from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between
the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed
Administrative Agent, its sub-agents and their respective Related Parties in respect of any action taken or omitted to be taken by
any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security
following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified
Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent.
Any
resignation or removal of the Administrative Agent hereunder shall also constitute its resignation as Issuing Bank and the Swingline
Lender effective as of the date of effectiveness of its resignation or removal as Administrative Agent as provided above; it being
understood that in the event of any such resignation, any Letter of Credit then outstanding shall remain outstanding (irrespective
of whether any amounts have been drawn at such time). In the event of any such resignation as an Issuing Bank or the Swingline
Lender, the Borrower shall be entitled to appoint any Revolving Lender that is willing to accept such appointment as successor
Issuing Bank or Swingline Lender hereunder. Upon the acceptance of any appointment as Issuing Bank or Swingline Lender hereunder by
a successor Issuing Bank or Swingline Lender, as applicable, such successor Issuing Bank or Swingline Lender, as applicable, shall
thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning Issuing Bank or Swingline
Lender, as applicable, and the resigning Issuing Bank and Swingline Lender, as applicable, shall be discharged from its duties and
obligations in such capacity hereunder. In the event the Swingline Lender resigns, the Borrower shall promptly repay all outstanding
Swingline Loans on the effective date of such resignation (which repayment may be effectuated with the proceeds of a
Borrowing).
Each
Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender or any of their respective Related Parties and based on such documents
and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under
or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Except
for notices, reports and other documents expressly required to be furnished to the Lenders and the Issuing Banks by the Administrative
Agent herein, the Administrative Agent shall not have any duty or responsibility to provide any Lender or any Issuing Bank with any credit
or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into the possession of the Administrative Agent or any of its
Related Parties.
Notwithstanding
anything to the contrary herein, the Arrangers shall not have any right, power, obligation, liability, responsibility or duty under this
Agreement, except in their respective capacities, as applicable, as the Administrative Agent, an Issuing Bank or a Lender hereunder.
Each
Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall:
(a)
release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the occurrence of the
Termination Date, (ii) that is sold or to be sold or transferred as part of or in connection with any Disposition permitted under the
Loan Documents to a Person that is not a Loan Party, (iii) that does not constitute (or ceases to constitute) Collateral, (iv) if the
property subject to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Loan Guaranty
otherwise in accordance with the Loan Documents, (v) as required under clause (d) below or (vi) if approved, authorized
or ratified in writing by the Required Lenders (or such other number or percentage of Lenders as shall be necessary under the relevant
circumstances as provided in Section 9.02) in accordance with Section 9.02;
(b)
without limiting Section 9.22, release any Subsidiary Guarantor from its obligations under the Loan Guaranty (i) if such
Person ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of
related transactions or any event or other circumstance permitted hereunder); provided, that the release of any Subsidiary
Guarantor from its obligations under the Loan Guaranty if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type
described in clause (a) of the definition thereof shall only be permitted if at the time such Guarantor becomes an Excluded
Subsidiary of such type, after giving pro forma effect to such release and the consummation of the transaction that causes such
Person to be an Excluded Subsidiary of such type, the Borrower is deemed to have made a new Investment in such Person for purposes
of Section 6.06 (as if such Person were then newly acquired) in an amount equal to the portion of the fair market value of the net
assets of such Person attributable to the Borrower’s equity interest therein as estimated by the Borrower in good faith and
such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f)) at such time and/or (ii) upon the occurrence of
the Termination Date;
(c)
subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien
on such property that is permitted by Sections 6.02(c), 6.02(d), 6.02(e), 6.02(g), 6.02(l), 6.02(m),
6.02(n), 6.02(o), 6.02(q), 6.02(r), 6.02(u), 6.02(v)(ii), 6.02(x), 6.02(y), 6.02(z)(i),
6.02(bb), 6.02(cc), 6.02(dd), 6.02(ee), 6.02(ff), 6.02(gg), 6.02(hh), 6.02(ii),6.02(ll),
6.02(tt) and 6.02(uu) (and any Refinancing Indebtedness in respect of any thereof to the extent such Refinancing Indebtedness
is permitted to be secured under Section 6.02(k)); and
(d)
enter into subordination, intercreditor, collateral trust and/or similar agreements (and any amendments thereof) with respect to Indebtedness
(including any Acceptable Intercreditor Agreement and any amendment thereto) that is (i) required or permitted to be subordinated hereunder
or pari passu with the Liens securing the Obligations and/or (ii) secured by Liens, and which Indebtedness contemplates an intercreditor,
subordination, collateral trust or similar agreement.
Upon
the request of the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority
to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under
the Loan Guaranty or its Lien on any Collateral pursuant to this Article 8. In each case as specified in this Article 8,
the Administrative Agent will (and each Lender and each Issuing Bank hereby authorizes the Administrative Agent to), at the Borrower’s
expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release
of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest
therein, or to release such Loan Party from its obligations under the Loan Guaranty, in each case in accordance with the terms of the
Loan Documents and this Article 8. The parties hereto acknowledge and agree that the Administrative Agent may rely conclusively
as to any of the matters described in this Section 9.02 and Section 9.22 (including as to its authority hereunder and thereunder)
on a certificate or similar instrument provided to it by any Loan Party without further inquiry or investigation, which certificate shall
be delivered to the Administrative Agent by the Loan Parties upon request.
The
Administrative Agent is authorized to enter into the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any other
intercreditor, subordination, collateral trust or similar agreement contemplated hereby with respect to any (a) Indebtedness (i) that
is (A) required or permitted to be subordinated hereunder or pari passu with the Liens securing the Obligations and/or (B) secured by
Liens and (ii) with respect to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor, subordination, collateral
trust or similar agreement (any such other intercreditor, subordination, collateral trust and/or similar agreement, an “Additional
Agreement”) and/or (b) Secured Hedging Obligations and/or Banking Services Obligations, whether or not constituting Indebtedness,
and each Secured Party acknowledges that the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any Additional
Agreement is binding upon them. Each Secured Party hereby (a) acknowledges that it has received a copy of the Intercreditor Agreement
and consents to the subordination of the Liens on the Collateral securing the Secured Obligations on the terms set forth in the Intercreditor
Agreement, (b) agrees that it will be bound by, and will not take any action contrary to, the provisions of the Intercreditor Agreement,
any other Acceptable Intercreditor Agreement or any Additional Agreement and (c) authorizes and instructs the Administrative Agent to
enter into the Intercreditor Agreement or any Additional Agreement (including any Acceptable Intercreditor Agreement) and to subject
the Liens on the Collateral securing the Secured Obligations to the provisions thereof. The foregoing provisions are intended as an inducement
to the Secured Parties to extend credit to the Borrower, and the Secured Parties are intended third-party beneficiaries of such provisions
and the provisions of the Intercreditor Agreement, any Acceptable Intercreditor Agreement and/or any other Additional Agreement.
To
the extent that the Administrative Agent (or any Affiliate thereof) is not reimbursed and indemnified by the Borrower in accordance with
the terms of this Agreement, the Lenders will reimburse and indemnify the Administrative Agent (and any Affiliate thereof) in proportion
to their respective Applicable Percentages (determined as if there were no Defaulting Lenders) for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent (or any Affiliate thereof) in performing its duties hereunder
or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided
that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
ARTICLE
9 MISCELLANEOUS
Section
9.01. Notices.
(a)
Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b)
below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by facsimile or email, as follows:
(i)
if to any Loan Party, to such Loan Party in the care of Holdings at:
Bowlmor AMF Corp.
222
West 44th Street
New
York, New York 10036
Telephone:
+ 1 212 777-2622
Attention:
Brett I. Parker
Email:
with
a copy to (which shall not constitute notice to any Loan Party):.
Atairos Group, Inc.
620
Fifth Avenue, Sixth Floor
New
York, New York 10020
Telephone:
+1 646 690-5223
Attention:
Rachael A.Wagner
Email:
(ii)
if to the Administrative Agent, at:
JPMorgan
Chase Bank, N.A.
500
Stanton Christiana Rd. NCC5 / 1st Floor
Newark,
Delaware 19713
Attention:
Loan & Agency Services Group-Jonathan Martin
Telephone:
+1 302-634-1964
Fax:
+1 302 634-3301
Email:
with
a copy to:
JPMorgan
Chase Bank, N.A.
500
Stanton Christiana Rd. NCC5 / 1st Floor
Newark,
Delaware 19713
Attention:
Loan & Agency Services Group-William
Telephone:
+1 302 634-1964
Fax:
+1 302 634-3301
Email:
(iii)
if to any Lender, to it at its address, facsimile number or email address set forth in its Administrative Questionnaire.
All
such notices and other communications (A) sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof or three Business
Days after dispatch if sent by certified or registered mail, in each case, delivered, sent or mailed (properly addressed) to the relevant
party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance
with this Section 9.01 or (B) sent by facsimile shall be deemed to have been given when sent and when receipt has been confirmed
by telephone; provided that notices and other communications sent by telecopier shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient, such notices or other communications shall be deemed to have been
given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic
communications to the extent provided in clause (b) below shall be effective as provided in such clause (b).
(b)
Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including e-mail
and Internet or Intranet websites) pursuant to procedures set forth herein or otherwise approved by the Administrative Agent. The Administrative
Agent or the Borrower (on behalf of any Loan Party) may, in its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures set forth herein or otherwise approved by it; provided that approval of such
procedures may be limited to particular notices or communications. All such notices and other communications (i) sent to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return
receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if not given during
the normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business
on the next Business Day for the recipient, and (ii) posted to an Internet or Intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described in the foregoing clause (b)(i) of notification that such
notice or communication is available and identifying the website address therefor.
(c)
Any party hereto may change its address or facsimile number or other notice information hereunder by notice to the other parties hereto;
it being understood and agreed that the Borrower may provide any such notice to the Administrative Agent as recipient on behalf of itself,
the Swingline Lender, each Issuing Bank and each Lender.
Section
9.02. Waivers; Amendments.
(a)
No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under any other
Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision
of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same is permitted
by this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is
given. Without limiting the generality of the foregoing, to the extent permitted by law, the making of a Loan or the issuance of any
Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent,
any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b)
Subject to clauses (A), (B), (C), (D) and (E) of this Section 9.02(b) and Sections 9.02(c) and (d) below,
neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified, except
(i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders (or the Administrative Agent with the consent of the Required Lenders) or (ii) in the case of any other Loan Document (other
than any waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the terms of such other
Loan Document), pursuant to an agreement or agreements in writing entered into by the Administrative Agent and each Loan Party that
is party thereto, with the consent of the Required Lenders; provided that, notwithstanding the foregoing:
(A)
except with the consent of each Lender directly and adversely affected thereby (but without requiring the consent of the Required Lenders),
no such agreement shall;
(1)
increase the Commitment or Additional Commitment of such Lender (other than with respect to any Incremental Facility pursuant to Section
2.22 in respect of which such Lender has agreed to be an Additional Lender); it being understood that no amendment, modification
or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory
prepayment or mandatory reduction of the Commitments or Additional Commitments shall constitute an increase of any Commitment or Additional
Commitment of such Lender;
(2)
reduce or forgive the principal amount of any Loan owed to such Lender or any amount due to such Lender on any Loan Installment Date
(other than, in each case, any waiver of, or consent to or departure from, any Default or Event of Default or any mandatory prepayment;
it being understood that no change in (i) the definition of “First Lien Leverage Ratio” or any other ratio used in the calculation
of any mandatory prepayment (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction or forgiveness
of any principal amount due hereunder);
(3)
(x) extend the scheduled final maturity of any Loan or (y) postpone any Loan Installment Date, any Interest Payment Date or the date
of any scheduled payment of any fee, in each case payable to such Lender hereunder (in each case, other than any extension for
administrative reasons agreed by the Administrative Agent) (other than, in each case, any waiver of, or consent or departure from,
any Default or Event of Default or any mandatory prepayment; it being understood that no change in the definition of “First
Lien Leverage Ratio” or any other ratio used in the calculation of any mandatory prepayment (including any component
definition thereof) shall constitute such an extension or postponement);
(4)
reduce the rate of interest (other than to waive any Default or Event of Default or obligation of the Borrower to pay interest at the
default rate of interest under Section 2.13(d), which shall only require the consent of the Required Lenders) or the amount of
any fee owed to such Lender; it being understood that no change in (i) the definition of “First Lien Leverage Ratio” or any
other ratio used in the calculation of the Applicable Rate or the Commitment Fee Rate, or in the calculation of any other interest or
fee due hereunder (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction in any rate of
interest or fee hereunder;
(5)
extend the expiry date of such Lender’s Commitment or Additional Commitment; it being understood that no amendment, modification
or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory
prepayment or mandatory reduction of the Commitments or Additional Commitments shall constitute an extension of any Commitment or Additional
Commitment of any Lender; and
(6)
waive, amend or modify the provisions of Section 2.18(b) of this Agreement in a manner that would by its terms alter the pro rata
sharing of payments required thereby (except in connection with any transaction permitted under Sections 2.22, 2.23, 9.02(c) and/or
9.05(g) or as otherwise provided in this Section 9.02); and
(B)
no such agreement shall:
(1)
change (x) any of the provisions of Section 9.02(a) or Section 9.02(b) or the definition of “Required Lenders”
to reduce any voting percentage required to waive, amend or modify any right thereunder or make any determination or grant any consent
thereunder, without the prior written consent of each Lender or (y) the definition of “Required Revolving Lenders” without
the prior written consent of each Revolving Lender (it being understood that neither the consent of the Required Lenders nor the consent
of any other Lender shall be required in connection with any change to the definition of “Required Revolving Lenders”);
(2)
release all or substantially all of the Collateral from the Lien granted pursuant to the Loan Documents (except as otherwise permitted
herein or in the other Loan Documents, including pursuant to Article 8 or Section 9.22 hereof or pursuant to any Acceptable
Intercreditor Agreement), without the prior written consent of each Lender; or
(3)
release all or substantially all of the value of the Guarantees under the Loan Guaranty (except as otherwise permitted herein or in
the other Loan Documents, including pursuant to Article 8 or Section 9.22 hereof), without the prior written consent of each
Lender;
(C)
solely with the consent of the Required Revolving Lenders (but without the consent of the Required Lenders or any other Lender), any
such agreement may (x) waive, amend or modify Section 6.15 (or the definition of “Core Liquidity”,
“Covenant Waiver Conditions, “Covenant Waiver Period”, “Covenant Waiver Termination Notice”,
“First Lien Leverage Ratio”, “Incremental Liquidity
Facility Credit Agreement”, “Seasonal Adjustment Factor”, “Seasonal Adjustment Percentage”, “Sponsor
Preferred Stock Subscription Agreement”, “Sponsor Subordinated Debt”, “Total
Liquidity” or any component definition of any of the foregoing, in each case, as any such definition is used solely for
purposes of Section 6.15) or waive any Default or Event of Default in respect of Section 6.15 (other than as permitted under clause
(y)), (y) waive, amend or modify any condition precedent set forth in Section 4.02 hereof as it pertains to any Revolving
Loan and/or Additional Revolving Loan and/or (z) waive any Default or Event of Default that results from any representation made or
deemed made by any Loan Party in any Loan Document in connection with any Credit Extension under the Revolving Facility being untrue
in any material respect as of the date made or deemed made;
(D)
solely with the consent of the relevant Issuing Bank and, in the case of clause (x), the Administrative Agent, any such agreement
may (x) increase or (y) decrease the Letter of Credit Sublimit; and
(E)
solely with the consent of the Borrower and applicable Class or Classes of Revolving Lenders and/or, if applicable, Issuing Banks, subject
to the provisions of Section 1.10, this Agreement may be amended or otherwise modified to permit the availability of Revolving
Loans and/or Letters of Credit denominated in a currency other than Dollars and to make technical changes to this Agreement and any other
Loan Document to accommodate the inclusion of any such new currency;
provided, further, that no such agreement shall (x) amend, modify or otherwise affect the rights or duties of the Administrative Agent,
any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, such Issuing Bank
or the Swingline Lender, as the case may be and (y) amend or modify the provisions of Section 2.05 (as it applies to any
Issuing Bank) or any letter of credit application or any bilateral agreement between the Borrower and any Issuing Bank regarding the
respective rights and obligations between the Borrower and such Issuing Bank in connection with the issuance (or deemed issuance) of
Letters of Credit hereunder, without the prior written consent of, with respect to Section 2.05, the Administrative Agent,
the Borrower and such Issuing Bank, or otherwise, the Borrower and such Issuing Bank. The Administrative Agent may also amend the
Commitment Schedule to reflect assignments entered into pursuant to Section 9.05, Commitment reductions or terminations
pursuant to Section 2.09, incurrences of Additional Commitments or Additional Loans pursuant to Sections 2.22, 2.23 or 9.02(c)
and reductions or terminations of any such Additional Commitments or Additional Loans. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that
the Commitment and any Additional Commitment of any Defaulting Lender may not be increased without the consent of such Defaulting
Lender (it being understood that any Commitment, Additional Commitment or Loan held or deemed held by any Defaulting Lender shall be
excluded from any vote hereunder that requires the consent of any Lender, except as expressly provided in Section 2.21(b)).
Notwithstanding the foregoing, but without limiting the provisions of Section 2.22(g), this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (i) to add one or
more additional credit facilities to this Agreement and to permit any extension of credit from time to time outstanding thereunder
and the accrued interest and fees in respect thereof to share ratably in the relevant benefits of this Agreement and the other Loan
Documents and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders
on substantially the same basis as the Lenders prior to such inclusion.
(c)
Notwithstanding the foregoing, this Agreement may be amended:
(i)
with the written consent of the Borrower and the Lenders providing the relevant Replacement Term Loans to permit the refinancing or replacement
of all or any portion of the outstanding Amendment No. 2 Term Loans or any then-existing Additional Term Loans under any applicable Class
(any such loans being refinanced or replaced, the “Replaced Term Loans”) with one or more replacement term loans hereunder
(“Replacement Term Loans”) pursuant to a Refinancing Amendment; provided that
(A)
the aggregate principal amount of any Replacement Term Loans shall not exceed the aggregate principal amount of the Replaced Term Loans
(plus (1) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any such additional amounts
are secured, the related Liens are permitted under Section 6.02 and plus (2) the amount of accrued interest, penalties
and premium (including any tender premium) thereon, any committed but undrawn amount and underwriting discounts, fees (including upfront
fees, original issue discount or initial yield payments), commissions and expenses associated therewith),
(B)
any Replacement Term Loans (other than customary bridge loans with a maturity date of not longer than one year; provided that
any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to
the requirements of this clause (B)) must have a final maturity date that is equal to or later than the final maturity date of,
and have a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Replaced Term Loans
at the time of the relevant refinancing, provided, that the foregoing limitation shall not apply to Replacement Term Loans having
an aggregate principal amount outstanding not exceeding $20,000,000 (as selected by the Borrower),
(C)
any Replacement Term Loans may be pari passu or junior in right of payment and pari passu (without regard to the control
of remedies) or junior with respect to the Collateral with the remaining portion of the Initial Term Loans or Additional Term Loans (provided
that if pari passu or junior as to payment or Collateral, such Replacement Term Loans shall be subject to an Acceptable Intercreditor
Agreement and may be, at the option of the Borrower, documented in a separate agreement or agreements), or be unsecured,
(D)
if any Replacement Term Loans are secured, such Replacement Term Loans may not be secured by any assets other than the
Collateral,
(E)
if any Replacement Term Loans are guaranteed, such Replacement Term Loans may not be guaranteed by any Person other than one or more
Loan Parties,
(F)
any Replacement Term Loans that are pari passu with the Amendment No. 2 Term Loans (including, for the avoidance of doubt,
the Amendment No. 3 Incremental Term Loans) in right of payment and security may participate (A) in any voluntary prepayment of
Term Loans as set forth in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans as set forth in Section
2.11(b)(vi),
(G)
any Replacement Term Loans shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F),
optional prepayment and redemption terms and, subject to preceding clause (B), an amortization schedule, as the Borrower
and the lenders providing such Replacement Term Loans may agree,
(H)
[reserved],
(I)
the covenants and events of default of any Replacement Term Loans (excluding pricing, interest, fees, rate floors, premiums, optional
prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be (i)
substantially identical to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders
providing such Replacement Term Loans than those applicable to the Replaced Term Loans (other than covenants or other provisions
applicable only to periods after the latest Maturity Date of such Replaced Term Loans (in each case, as of the date of incurrence
of such Replacement Term Loans)), (ii) then-current market terms (as determined by the Borrower in good faith at the time of incurrence
or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (iii) reasonably
acceptable to the Administrative Agent (it being agreed that covenants and events of default of any Replacement Term Loans that
are more favorable to the lenders or the agent of such Replacement Term Loans than those contained in the Loan Documents and are
then conformed (or added) to the Loan Documents pursuant to the applicable Refinancing Amendment shall thereafter be deemed satisfactory
to the Administrative Agent), and
(ii)
with the written consent of the Borrower and the Lenders providing the relevant Replacement Revolving Facility to permit the refinancing
or replacement of all or any portion of any Revolving Credit Commitment or any Additional Revolving Credit Commitment under the
applicable Class (any such Revolving Credit Commitment or Additional Revolving Credit Commitment being refinanced or replaced,
a “Replaced Revolving Facility”) with a replacement revolving facility hereunder (a “Replacement Revolving
Facility”) pursuant to a Refinancing Amendment; provided that:
(A)
the aggregate principal amount of any Replacement Revolving Facility shall not exceed the aggregate principal amount of the Replaced
Revolving Facility (plus (x) any additional amounts permitted to be incurred under Section 6.01 and, to the extent
any such additional amounts are secured, the related Liens are permitted under Section 6.02 and plus (y) the amount
of accrued interest, penalties and premium thereon, any committed but undrawn amounts and underwriting discounts, fees (including
upfront fees and original issue discount), commissions and expenses associated therewith),
(B)
no Replacement Revolving Facility (other than customary bridge loans with a maturity date of not longer than one year; provided
that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall
be subject to the requirements of this clause (B)) may have a final maturity date (or require commitment reductions) prior
to the final maturity date of the relevant Replaced Revolving Facility at the time of such refinancing,
(C)
any Replacement Revolving Facility may be pari passu or junior in right of payment and pari passu (without regard
to the control of remedies) or junior with respect to the Collateral with the remaining portion of the Revolving Credit Commitments
or any Additional Revolving Credit Commitments (provided that if pari passu or junior as to payment or Collateral,
such Replacement Revolving Facility shall be subject to an Acceptable Intercreditor Agreement and may be, at the option of the
Borrower, documented in a separate agreement or agreements), or be unsecured,
(D)
if any Replacement Revolving Facility is secured, it may not be secured by any assets other than the Collateral,
(E)
if any Replacement Revolving Facility is guaranteed, it may not be guaranteed by any Person other than one or more Loan Parties,
(F)
any Replacement Revolving Facility shall be subject to the “ratability” provisions applicable to Extended Revolving
Credit Commitments and Extended Revolving Loans set forth in the proviso to clause (i) of Section 2.23(a), mutatis
mutandis, to the same extent as if fully set forth in this Section 9.02(c)(ii),
(G)
any Replacement Revolving Facility shall have pricing (including interest, fees and premiums) and, subject to preceding clause
(F), optional prepayment and redemption terms as the Borrower and the lenders providing such Replacement Revolving Facility
may agree,
(H)
[reserved],
(I)
the covenants and events of default of any Replacement Revolving Facility (excluding pricing, interest, fees, rate floors, premiums,
optional prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall
be (i) substantially identical to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the
lenders providing such Replacement Revolving Facility than those applicable to the Replaced Revolving Facility (other than covenants
or other provisions applicable only to periods after the latest Maturity Date of such Replaced Revolving Facility (in each case,
as of the date of incurrence of the relevant Replacement Revolving Facility), (ii) then-current market terms (as determined by
the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for
the applicable type of Indebtedness or (iii) reasonably acceptable to the Administrative Agent (it being agreed that covenants
and events of default of any Replacement Revolving Facility that are more favorable to the lenders or the agent of such Replacement
Revolving Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents pursuant
to the applicable Refinancing Amendment shall be deemed satisfactory to the Administrative Agent); provided, that if any
financial maintenance covenant is added to any such Replacement Revolving Facility and such financial maintenance covenant is
more favorable to the lenders under such Replacement Revolving Facility than the Financial Covenant, either (x) such financial
maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders
shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the Borrower,
any applicable “equity cure” provisions with respect to any such financial maintenance covenant); and
(J)
the commitments in respect of the Replaced Revolving Facility shall be terminated, and all loans outstanding thereunder and all
fees thereunder and payable in connection therewith shall be paid in full, in each case on the date such Replacement Revolving
Facility is implemented;
provided, further, that, in respect of each of clauses (i) and (ii) of this clause (c), (x) any Non-Debt Fund Affiliate
and Debt Fund Affiliate shall be permitted (without Administrative Agent consent) to provide any Replacement Term Loans, it being
understood that in connection with such Replacement Term Loans, the relevant Non-Debt Fund Affiliate or Debt Fund Affiliate, as
applicable, shall be subject to the restrictions applicable to such Persons under Section 9.05 as if such Replacement Term
Loans were Term Loans and (y) any Debt Fund Affiliate (but not any Non-Debt Fund Affiliate) may provide (without Administrative
Agent consent) any Replacement Revolving Facility.
Each
party hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be amended by the Borrower,
the Administrative Agent and the lenders providing the relevant Replacement Term Loans or the Replacement Revolving Facility,
as applicable, to the extent (but only to the extent) necessary to reflect the existence and terms of such Replacement Term Loans
or Replacement Revolving Facility, as applicable, incurred or implemented pursuant thereto (including any amendment necessary
to treat the loans and commitments subject thereto as a separate “tranche” and “Class” of Loans and/or
commitments hereunder). It is understood that any Lender approached to provide all or a portion of any Replacement Term Loans
or any Replacement Revolving Facility may elect or decline, in its sole discretion, to provide such Replacement Term Loans or
Replacement Revolving Facility.
(d)
Notwithstanding anything to the contrary contained in this Section 9.02 or any other provision of this Agreement or any
provision of any other Loan Document, (i) the Borrower and the Administrative Agent may, without the input or consent of any Lender,
amend, supplement and/or waive any guaranty, collateral security agreement, pledge agreement and/or related document (if any)
executed in connection with this Agreement to (x) comply with any Requirements of Law or the advice of counsel or (y) cause any
such guaranty, collateral security agreement, pledge agreement or other document to be consistent with this Agreement and/or the
relevant other Loan Documents, (ii) the Borrower and the Administrative Agent may, without the input or consent of any other Lender
(other than the relevant Lenders (including Additional Lenders) providing Loans under such Sections), effect amendments to this
Agreement and the other Loan Documents as may be necessary in the reasonable opinion of the Borrower and the Administrative Agent
to (A) effect the provisions of Sections 2.22, 2.23, 5.12, 5.14, 5.15, 5.16 or 9.02(c), or any other provision specifying
that any waiver, amendment or modification may be made with the consent or approval of the Administrative Agent and/or (B) add
terms (including representations and warranties, conditions, prepayments, covenants or events of default), in connection with
the addition of any Loan or Commitment hereunder or the incurrence of any Incremental Equivalent Debt, any Replacement Term Loans,
any Replacement Revolving Facility, any Replacement Debt and/or any Refinancing Indebtedness incurred in reliance on Section
6.01(p) with respect to Indebtedness originally incurred in reliance on Section 6.01(z), that are favorable to the
then-existing Lenders, as reasonably determined by the Administrative Agent (it being understood that, where applicable, any such
amendment may be effectuated as part of an Incremental Facility Amendment and/or a Refinancing Amendment), (iii) if the Administrative
Agent and the Borrower have jointly identified any ambiguity, mistake, defect, inconsistency, obvious error or any error or omission
of a technical or administrative nature or any necessary or desirable technical change, in each case, in any provision of any
Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision solely to address such
matter as reasonably determined by them acting jointly without the input or consent of any Lender, (iv) the Administrative Agent
and the Borrower may amend, restate, amend and restate or otherwise modify the Intercreditor Agreement or any Acceptable Intercreditor
Agreement as provided therein or to give effect thereto or to carry out the purpose thereof without the input or consent of any
Lender and (v) any amendment, waiver or modification of any term or provision that directly affects Lenders under one or more
Classes and does not directly affect Lenders under one or more other Classes may be effected with the consent of Lenders owning
50% of the aggregate commitments or Loans of such directly affected Class in lieu of the consent of the Required Lenders.
(e)
Notwithstanding anything to the contrary contained in this Section 9.02, if the Revolving Lenders are to receive the benefit of
any additional or modified financial maintenance covenant as a result of the application of the provisions set forth in clause
(g) of the definition of “Incremental Equivalent Debt”, Section 2.22(a)(iv) or Section 9.02(c)(ii)(I),
then the Administrative Agent and the Borrower shall be permitted, without the need for consent by any other Person, to effectuate
such provisions by promptly entering into an amendment to this Agreement.
Section
9.03. Expenses; Indemnity.
(a)
Subject to Section 9.05(f), the Borrower shall pay, upon presentation of a summary statement, together with any supporting
documentation reasonably requested by the Borrower, (i) all reasonable and documented out-of-pocket expenses incurred by each
Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the
actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such
Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken
as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as Intralinks)
of the Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation,
including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions
contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was
requested by the Borrower) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent,
the Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees
and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside
counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to
all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in
connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made
and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under
this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth
such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request.
(b)
The Borrower shall indemnify each Arranger, the Administrative Agent, each Issuing Bank and each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the
actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as
a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole
and solely in the case of an actual or perceived conflict of interest after the affected Person notifies the Borrower of such
conflict, (x) one additional counsel to all similarly situated affected Indemnitees, taken as a whole, and (y) one additional
local counsel in any relevant material jurisdiction to all similarly situated affected Indemnitees, taken as a whole), incurred
by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the
Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective
obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby (except
for any Taxes, which shall be governed exclusively by Section 2.17), (ii) the use of the proceeds of the Loans or any Letter
of Credit or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing (including
any matters arising under Environmental Law), whether based on contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other
Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that any such loss, claim, damage or liability (i) is determined by a final and non-appealable judgment of a court
of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence,
bad faith or willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any such settlement
agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s or a Related Party
of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding
brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought
by or against the Administrative Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative Agent,
as an Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its subsidiaries.
Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b)
to such Indemnitee for any fees, expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance
with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after
receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement
of costs and expenses, after receipt by the Borrower of an invoice, setting forth such costs and expenses in reasonable detail,
together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply
with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities arising from any non-Tax claim.
(c)
The Borrower shall not be liable for any settlement or compromise of, or the consent to the ending of any judgment with respect
to, any proceeding effected without its consent (which consent shall not be unreasonably withheld, delayed or conditioned), but
if any proceeding is so settled, compromised or consented with the Borrower’s written consent, or if there is a final judgment
entered against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the
extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee
(which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened
proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes
an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii)
such settlement does not include any statement as to any admission of fault or culpability.
Section
9.04. Waiver of Claim. To the extent permitted by applicable law, no party to this Agreement shall assert, and each hereby
waives, any claim against any other party hereto or any Related Party thereof, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or any Letter of Credit or the
use of the proceeds thereof, except, in the case of any claim by any Indemnitee against the Borrower, to the extent such damages
would otherwise be subject to indemnification pursuant to the terms of Section 9.03.
Section
9.05. Successors and Assigns.
(a)
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and permitted assigns; provided that (i) except as provided under Section 6.07 and/or pursuant to any Permitted
Reorganization, the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with the terms
of this Section (any attempted assignment or transfer not complying with the terms of this Section shall be null and void and,
with respect to any attempted assignment or transfer to any Disqualified Institution, subject to Section 9.05(f)). Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective
successors and permitted assigns, Participants (to the extent provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Arrangers, the Administrative Agent, the Issuing Banks and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Successor Borrower permitted
pursuant to a transaction referred to in clause (i) of the proviso above, shall thereafter be deemed to be and become the “Borrower”
for all purposes hereunder, and such initial Borrower shall be released from its Obligations in respect of this Agreement and
the other Loan Documents.
(b)
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including all or a portion of any Loan or Additional Commitment
added pursuant to Sections 2.22, 2.23 or 9.02(c) at the time owing to it) with the prior written consent (not to be
unreasonably withheld or delayed) of:
(A)
the Borrower; provided that the Borrower shall be deemed to have consented to any assignment of Term Loans (other than any such
assignment to a Disqualified Institution or an affiliate thereof referred to in the last proviso of this clause (i) and identified to
the Administrative Agent as such) if it has not responded to a written request for its consent from the Administrative Agent within 15
Business Days after receiving such written request; provided, further, that no consent of the Borrower shall be required
(x) for any assignment of Initial Term Loans, Additional Term Loans, Initial Term Loan Commitments or Additional Term Loan Commitments
to another Lender, an Affiliate of any Lender or an Approved Fund or (y) during the continuance of an Event of Default under Section
7.01(a) or Sections 7.01(f) or (g) (solely with respect to the Borrower);
(B)
the Administrative Agent; provided, that no consent of the Administrative Agent shall be required for any assignment to
another Lender, any Affiliate of a Lender or any Approved Fund, or for any assignment to the Borrower and/or its Affiliates, which
otherwise complies with the terms of this Section 9.05; and
(C)
in the case of the Revolving Facility or any Additional Revolving Facility, each Issuing Bank and the Swingline Lender;
provided,
that notwithstanding the foregoing, the Borrower may withhold its consent to any assignment to any Person that is not expressly
a Disqualified Institution but is known by the Borrower to be an Affiliate of a Disqualified Institution without regard as to
whether such Person is identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name.
(ii)
Assignments shall be subject to the following additional conditions:
(A)
except in the case of any assignment to another Lender, any Affiliate of any Lender or any Approved Fund or any assignment of
the entire remaining amount of the relevant assigning Lender’s Loans or commitments of any Class, the principal amount of
Loans or commitments of the assigning Lender subject to the relevant assignment (determined as of the date on which the Assignment
Agreement with respect to such assignment is delivered to the Administrative Agent and determined on an aggregate basis in the
event of concurrent assignments to Related Funds or by Related Funds) shall not be less than (x) $1,000,000, in the case of Initial
Term Loans, Additional Term Loans, Initial Term Loan Commitments and Additional Term Loan Commitments and (y) $5,000,000 in the
case of Revolving Loans, Additional Revolving Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments unless
the Borrower and the Administrative Agent otherwise consent to a lesser amount, and in each case any assigned amount may exceed
such minimum amount in an integral multiple of $1,000,000 in excess thereof;
(B)
any partial assignment shall be made as an assignment of a proportionate part of all the relevant assigning Lender’s rights
and obligations under this Agreement;
(C)
the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement via an electronic
settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and
shall pay to the Administrative Agent a processing and recordation fee of $3,500; provided that (x) such fee may be waived
or reduced in the sole discretion of the Administrative Agent, (y) such fee shall not apply for any assignment to an Affiliated
Lender or Debt Fund Affiliate and (z) only one such fee shall be payable in the event of simultaneous assignments to or from two
or more Approved Funds;
(D)
the relevant Eligible Assignee, if it is not a Lender, shall deliver on or prior to the effective date of such assignment, to
the Administrative Agent and the Borrower (irrespective of whether an Event of Default under Section 7.01(a) or Sections
7.01(f) or (g) exists) (1) an Administrative Questionnaire and (2) any form required under Section 2.17; and
(E)
the assigning Lender shall, concurrently with its delivery of the same to the Administrative Agent, provide the Borrower with
a copy of its request for such assignment, which shall include the name of the prospective assignee (irrespective of whether an
Event of Default under Section 7.01(a) or Section 7.01(f) or Section 7.01(g) exists).
(iii)
Except as otherwise provided in Section 9.05(g), subject to the acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section, from and after the effective date specified in any Assignment Agreement, the Eligible Assignee thereunder shall
be a party hereto and, to the extent of the interest assigned pursuant to such Assignment Agreement, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be (A)
entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03 with respect to facts and circumstances occurring
on or prior to the effective date of such assignment and (B) subject to its obligations thereunder and under Section 9.13). If
any assignment by any Lender holding any Promissory Note is made after the issuance of such Promissory Note, the assigning Lender shall,
upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender such Promissory Note to the Administrative
Agent for cancellation, and, if requested by either the assignee or the assigning Lender, the Borrower shall issue and deliver a new
Promissory Note to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new commitments and/or
outstanding Loans of the assignee and/or the assigning Lender.
(iv)
The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of
each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders and their
respective successors and assigns, and the commitment of, and principal amount of and interest on the Loans and LC Disbursements
owing to, each Lender or Issuing Bank pursuant to the terms hereof from time to time (the “Register”). Failure
to make any such recordation, or any error in such recordation, shall not affect the Borrower’s obligations in respect of
such Loans and LC Disbursements. The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the
Administrative Agent, the Issuing Banks and the Lenders shall treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by
the Borrower, each Issuing Bank and each Lender (but only as to its own holdings), at any reasonable time and from time to time
upon reasonable prior notice.
(v)
Upon its receipt of a duly completed Assignment Agreement executed by an assigning Lender and an Eligible Assignee, the Eligible
Assignee’s completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2)
(unless the assignee is already a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section, if applicable, and any written consent to the relevant assignment required by paragraph (b) of this Section,
the Administrative Agent shall promptly accept such Assignment Agreement and record the information contained therein in the Register.
No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this
paragraph.
(vi)
By executing and delivering an Assignment Agreement, the assigning Lender and the Eligible Assignee thereunder shall be deemed
to confirm and agree with each other and the other parties hereto as follows: (A) such assigning Lender warrants that it is the
legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that the amount of its
commitments, and the outstanding balances of its Loans, in each case without giving effect to any assignment thereof which has
not become effective, are as set forth in such Assignment Agreement, (B) except as set forth in clause (A) above, such
assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statement, warranty or
representation made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto,
or the financial condition of the Borrower or any Restricted Subsidiary or the performance or observance by the Borrower or any
Restricted Subsidiary of any of its obligations under this Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto; (C) such assignee represents and warrants that it is an Eligible Assignee (and not a Disqualified Institution),
legally authorized to enter into such Assignment Agreement; (D) such assignee confirms that it has received a copy of this Agreement,
the Intercreditor Agreement and each other then-applicable Acceptable Intercreditor Agreement, together with copies of the financial
statements referred to in Section 4.01(c) or the most recent financial statements delivered pursuant to Section 5.01
and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment Agreement; (E) such assignee will independently and without reliance upon the Administrative Agent, the assigning
Lender or any other Lender and based on such documents and information as it deems appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (F) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative
Agent, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) such assignee agrees that
it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed
by it as a Lender.
(c)
(i) Any Lender may, without the consent of the Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender or any
other Lender, sell participations to any bank or other entity (other than to any Disqualified Institution or an Affiliate thereof
referred to in the last proviso of clause (b)(i) of this Section 9.05 and identified to the Administrative Agent
as such, any Defaulting Lender or any natural Person) (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its commitments and the Loans owing to it); provided
that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent,
the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. Any agreement or instrument pursuant to which any Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will
not, without the consent of the relevant Participant, agree to any amendment, modification or waiver described in (x) clause
(A) of the first proviso to Section 9.02(b) that directly and adversely affects the Loans or commitments in which such
Participant has an interest and (y) clauses (B)(1), (2) or (3) of the first proviso to Section 9.02(b). Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections
2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant
to paragraph (b) of this Section (it being understood that the documentation required under Section 2.17(f) shall
be delivered to the participating Lender, and if additional amounts are required to be paid pursuant to Section 2.17(a)
or Section 2.17(c), to the Borrower). To the extent permitted by applicable Requirements of Law, each Participant also
shall be entitled to the benefits of Section 9.09 as though it were a Lender; provided that such Participant agrees
to be subject to Section 2.18(c) as though it were a Lender.
(ii)
No Participant shall be entitled to receive any greater payment under Sections 2.15, 2.16 or 2.17 than the participating
Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written consent (in its sole discretion) expressly acknowledging such Participant
may receive a greater benefit. Any Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 2.17 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(f) as though it were a Lender and to deliver the tax forms required to
claim an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document and then only to the extent
of any amount to which such Lender would be entitled in the absence of any such participation (it being understood that the documentation
required under Section 2.17(f) shall be delivered to the participating Lender, and if additional amounts are required to be paid
pursuant to Section 2.17(a) or Section 2.17(c), to the Borrower).
Each
Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register
on which it enters the name and address of each Participant and their respective successors and assigns, and the principal amounts
and stated interest of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant
Register (including the identity of any Participant or any information relating to any Participant’s interest in any Commitment,
Loan, Letter of Credit or any other obligation under any Loan Document) to any Person except to the extent that such disclosure
is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section
5f.103-1(c) of the Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and
each Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for
all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent
(in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d)
(i) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (other
than to any Disqualified Institution, Defaulting Lender or any natural person) to secure obligations of such Lender, including
without limitation any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction
over such Lender, and this Section 9.05 shall not apply to any such pledge or assignment of a security interest; provided
that no such pledge or assignment of a security interest shall release any Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(i)
No Lender may at any time enter into a total return swap, total rate of return swap, credit default swap or other Derivative Instrument
under which any Loan or other Obligation hereunder is a reference obligation with any counterparty that is a Disqualified Institution,
in each case unless the terms of such Derivative Transaction do not allow for such Lender to provide Confidential Information
regarding Holdings or its subsidiaries to such counterparty and such Lender shall not agree to allow such counterparty (or its
Affiliates) to direct the vote of such Lender with respect to any matter regarding the Facilities (including in any bankruptcy
or other restructuring transaction).
(e)
Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special
purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part
of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) in no event may any Lender
grant any option to provide to the Borrower all or any part of any Loan that such Granting Lender would have otherwise been obligated
to make to the Borrower pursuant to this Agreement to any Disqualified Institution or Defaulting Lender. The making of any Loan by an
SPC hereunder shall utilize the Commitment or Additional Commitment of the Granting Lender to the same extent, and as if, such Loan were
made by such Granting Lender. Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including
its obligations under Section 2.15, 2.16 or 2.17) and no SPC shall be entitled to any greater amount under Section
2.15, 2.16 or 2.17 or any other provision of this Agreement or any other Loan Document that the Granting Lender would have
been entitled to receive, unless the grant to such SPC is made with the prior written consent of the Borrower (in its sole discretion),
expressly acknowledging that such SPC’s entitlement to benefits under Section 2.15, 2.16 or 2.17 is not limited
to what the Granting Lender would have been entitled to receive absent the grant to the SPC, (ii) no SPC shall be liable for any indemnity
or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender) and (iii) the Granting
Lender shall for all purposes including approval of any amendment, waiver or other modification of any provision of the Loan Documents,
remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the Requirements of Law of the U.S.
or any State thereof; provided that (i) such SPC’s Granting Lender is in compliance in all material respects with its obligations
to the Borrower hereunder and (ii) each Lender designating any SPC hereby agrees to indemnify, save and hold harmless each other party
hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such SPC during such
period of forbearance. In addition, notwithstanding anything to the contrary contained in this Section 9.05, any SPC may (i) with
notice to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guaranty or credit or liquidity
enhancement to such SPC.
(f)
(i) Any assignment or participation by a Lender without the Borrower’s consent (A) to any Disqualified Institution or any
Affiliate thereof or (B) to the extent the Borrower’s consent is required under this Section 9.05, to any other Person,
shall be null and void, and the Borrower shall be entitled to seek specific performance to unwind any such assignment or participation
and/or specifically enforce this Section 9.05(f) in addition to injunctive relief (without posting a bond or presenting
evidence of irreparable harm) or any other remedies available to the Borrower at law or in equity; it being understood and agreed
that Holdings, the Borrower and its subsidiaries will suffer irreparable harm if any Lender breaches any obligation under this
Section 9.05 as it relates to any assignment, participation or pledge of any Loan or Commitment to any Disqualified Institution
or any Affiliate thereof or any other Person to whom the Borrower’s consent is required but not obtained. Nothing in this
Section 9.05(f) shall be deemed to prejudice any right or remedy that Holdings or the Borrower may otherwise have at law
or equity or pursuant to Section 9.05(f)(ii) below;
(ii)
If any assignment or participation under this Section 9.05 is made to any Affiliate of any Disqualified Institution (other than
any Bona Fide Debt Fund that is not itself a Disqualified Institution) without the Borrower’s prior written consent (any such person,
a “Disqualified Person”), then the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified
Person and the Administrative Agent, (A) terminate any Commitment of such Disqualified Person and repay all obligations of the Borrower
owing to such Disqualified Person, (B) in the case of any outstanding Term Loans held by such Disqualified Person, purchase such Term
Loans by paying the lesser of (x) par and (y) the amount that such Disqualified Person paid to acquire such Term Loans, plus accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and/or (C) require such Disqualified Person to assign, without
recourse (in accordance with and subject to the restrictions contained in this Section 9.05), all of its interests, rights and
obligations under this Agreement to one or more Eligible Assignees and if such person does not execute and deliver to the Administrative
Agent a duly executed Assignment Agreement reflecting such assignment within five Business Days of the date on which the Eligible Assignee
executes and delivers such Assignment Agreement to such person, then such person shall be deemed to have executed and delivered such
Assignment Agreement without any action on its part; provided that (I) in the case of clauses (A) and (B), the Borrower
shall not be liable to the relevant Disqualified Person under Section 2.16 if any LIBO Rate Loan owing to such Disqualified Person
is repaid or purchased other than on the last day of the Interest Period relating thereto, (II) in the case of clause (C), the
relevant assignment shall otherwise comply with this Section 9.05 (except that (x) no registration and processing fee required
under this Section 9.05 shall be required with any assignment pursuant to this paragraph and (y) any Term Loan acquired by any
Affiliated Lender pursuant to this paragraph will not be included in calculating compliance with the Affiliated Lender Cap for a period
of 90 days following such transfer; provided that, to the extent the aggregate principal amount of Term Loans held by Affiliated
Lenders exceeds the Affiliated Lender Cap on the 91st day following such transfer, then such excess amount shall either be (x) contributed
to Holdings, the Borrower or any of its subsidiaries and retired and cancelled immediately upon such contribution or (y) automatically
cancelled)) and (III) in no event shall such Disqualified Person be entitled to receive amounts set forth in Section 2.13(d).
Further, any Disqualified Person identified by the Borrower to the Administrative Agent (A) shall not be permitted to (x) receive information
or reporting provided by any Loan Party, the Administrative Agent or any Lender and/or (y) attend and/or participate in conference calls
or meetings attended solely by the Lenders and the Administrative Agent, (B) (x) shall not for purposes of determining whether the Required
Lenders or the majority Lenders under any Class have (i) consented (or not consented) to any amendment, modification, waiver, consent
or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted
on any matter related to any Loan Document or (iii) directed or required the Administrative Agent or any Lender to undertake any action
(or refrain from taking any action) with respect to or under any Loan Document, have a right to consent (or not consent), otherwise act
or direct or require the Administrative Agent or any Lender to take (or refrain from taking) any such action; it being understood that
all Loans held by any Disqualified Person shall be deemed to be not outstanding for all purposes of calculating whether the Required
Lenders, majority Lenders under any Class or all Lenders have taken any action and (y) shall be deemed to vote in the same proportion
as Lenders that are not Disqualified Persons in any proceeding under any Debtor Relief Law commenced by or against the Borrower or any
other Loan Party and (C) shall not be entitled to receive the benefits of Section 9.03. For the sake of clarity, the provisions
in this Section 9.05(f) shall not apply to any Person that is an assignee of any Disqualified Person, if such assignee is not
a Disqualified Person;
(iii)
Upon the request of any Lender, the Administrative Agent may and the Borrower will make the list of Disqualified Institutions
(other than any Disqualified Institution that is a reasonably identifiable Affiliate of another Disqualified Institution on the
basis of such Person’s name) at the relevant time and such Lender may provide the list to any potential assignee for the
purpose of verifying whether such Person is a Disqualified Institution, in each case so long as such Lender and such potential
assignee agree to keep the list of Disqualified Institutions confidential in accordance with the terms hereof;
(iv)
The Borrower shall deliver the list of Disqualified Institutions and any updates, supplements or modifications thereto to JPMDQ_Contact@jpmorgan.com
and any such updates, supplements or modifications thereto shall only become effective 3 days after such notice. In the event
the list of Disqualified Institutions is not in accordance with the foregoing, it shall be deemed not received and not effective
(except with respect to any delivery on or prior to the Closing Date); and
(v)
Notwithstanding anything herein to the contrary, the Administrative Agent shall not be responsible or have any liability for,
or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified
Institutions.
(g)
Notwithstanding anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights
and obligations under this Agreement in respect of its Initial Term Loans or Additional Term Loans to an Affiliated Lender on
a non-pro rata basis (A) through Dutch Auctions, or similar transactions pursuant to procedures to be established by the
applicable “auction agent” that are consistent with this Section 9.05(g), in each case open to all Lenders
holding the relevant Initial Term Loans or such Additional Term Loans, as applicable, on a pro rata basis or (B) through
open market purchases, in each case with respect to clauses (A) and (B), without the consent of the Administrative
Agent; provided that:
(i)
any Initial Term Loans or Additional Term Loans acquired by Holdings, the Borrower or any of its subsidiaries shall, to the extent
permitted by applicable Requirements of Law, be retired and cancelled immediately upon the acquisition thereof; provided
that upon any such retirement and cancellation, the aggregate outstanding principal amount of the Initial Term Loans or Additional
Term Loans, as applicable, shall be deemed reduced by the full par value of the aggregate principal amount of the Initial Term
Loans or Additional Term Loans so retired and cancelled, and each principal repayment installment with respect to the Initial
Term Loans or Additional Term Loans pursuant to Section 2.10(a) shall be reduced on a pro rata basis by the full
par value of the aggregate principal amount of Initial Term Loans or Additional Term Loans so cancelled (as applicable);
(ii)
any Initial Term Loans or Additional Term Loans acquired by any Affiliated Lender may (but shall not be required to) be contributed
to Holdings, the Borrower or any of its subsidiaries or Parent Companies for purposes of cancelling such Indebtedness, and in
exchange thereof such Affiliated Lender may receive debt or equity securities of such entity or a direct or indirect parent entity
or subsidiary thereof that are otherwise permitted to be issued by such entity at such time, it being understood that (x) any
such Initial Term Loans or Additional Term Loans shall, to the extent permitted by applicable Requirements of Law, be retired
and cancelled immediately upon such contribution and (y) any such contribution shall be treated as a capital contribution that
builds the Available Amount pursuant to clause (iii) of the definition thereof by an amount equal to the fair market value
(as determined by the Borrower in good faith) of the Initial Term Loans or Additional Term Loans so contributed; provided
that if the fair Borrower, the fair market value shall be deemed to be the purchase price of such Initial Term Loans or Additional
Term Loans paid by such Affiliated Lender); provided that upon any such cancellation, the aggregate outstanding principal
amount of the Initial Term Loans or Additional Term Loans, as applicable, shall be deemed reduced, as of the date of such contribution,
by the full par value of the aggregate principal amount of the Initial Term Loans or Additional Term Loans so contributed and
cancelled, and each principal repayment installment with respect to the Initial Term Loans or Additional Term Loans pursuant to
Section 2.10(a) shall be reduced pro rata by the full par value of the aggregate principal amount of Initial Term
Loans or Additional Term Loans so contributed and cancelled;
(iii)
the relevant Affiliated Lender and assigning Lender shall have executed an Affiliated Lender Assignment and Assumption;
(iv)
after giving effect to such assignment and to all other assignments to all Affiliated Lenders, the aggregate principal amount
of all Initial Term Loans and Additional Term Loans then held by all Affiliated Lenders shall not exceed 25% of the aggregate
principal amount of the Initial Term Loans and Additional Term Loans then outstanding (after giving effect to any substantially
simultaneous cancellations thereof) (the “Affiliated Lender Cap”); provided that each party hereto acknowledges
and agrees that the Administrative Agent shall not be liable for any losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements of any kind or nature whatsoever incurred or suffered by any Person in connection with
any compliance or non-compliance with this clause (g)(iv) or any purported assignment exceeding the Affiliated Lender Cap
(it being understood and agreed that the Affiliated Lender Cap is intended to apply to any Loans made available to Affiliated
Lenders by means other than formal assignment (e.g., as a result of an acquisition of another Lender (other than any Debt Fund
Affiliate) by any Affiliated Lender or the provision of Additional Term Loans by any Affiliated Lender); provided, further,
that to the extent that any assignment to any Affiliated Lender would result in the aggregate principal amount of all Initial
Term Loans and Additional Term Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap (after giving effect to any
substantially simultaneous cancellations thereof), the assignment of the relevant excess amount shall be null and void;
(v)
in connection with any assignment effected pursuant to a Dutch Auction and/or open market purchase conducted by Holdings, the
Borrower or any of its Restricted Subsidiaries, (A) the relevant Person may not use the proceeds of any Revolving Loans or Additional
Revolving Loans to fund such assignment and (B) no Event of Default exists at the time of acceptance of bids for the Dutch Auction
or the confirmation of such open market purchase, as applicable;
(vi)
by its acquisition of Term Loans, each relevant Affiliated Lender shall be deemed to have acknowledged and agreed that:
(A)
the Term Loans held by such Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of
any Required Lender or other Lender vote (and the Term Loans held by such Affiliated Lender shall be deemed to be voted pro
rata along with the other Lenders that are not Affiliated Lenders); provided that (x) such Affiliated Lender shall
have the right to vote (and the Term Loans held by such Affiliated Lender shall not be so disregarded) with respect to any amendment,
modification, waiver, consent or other action that requires the vote of all Lenders or all Lenders directly and adversely affected
thereby, as the case may be, and (y) no amendment, modification, waiver, consent or other action shall (1) disproportionately
affect such Affiliated Lender in its capacity as a Lender as compared to other Lenders of the same Class that are not Affiliated
Lenders or (2) deprive any Affiliated Lender of its share of any payments which the Lenders are entitled to share on a pro
rata basis hereunder, in each case without the consent of such Affiliated Lender; and
(B)
such Affiliated Lender, solely in its capacity as an Affiliated Lender, will not be entitled to (i) attend (including by telephone)
or participate in any meeting or discussion (or portion thereof) among the Administrative Agent or any Lender or among Lenders
to which the Loan Parties or their representatives are not invited or (ii) receive any information or material prepared by the
Administrative Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders, except to
the extent such information or materials have been made available by the Administrative Agent or any Lender to any Loan Party
or its representatives (and in any case, other than the right to receive notices of Borrowings, prepayments and other administrative
notices in respect of its Initial Term Loans or Additional Term Loans required to be delivered to Lenders pursuant to Article
2); and
(vii)
neither the Sponsor nor any Affiliated Lender shall be required to represent or warrant that it is not in possession of material
non-public information with respect to Holdings, the Borrower and/or any subsidiary thereof and/or their respective securities
in connection with any assignment permitted by this Section 9.05(g).
Notwithstanding
anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under this
Agreement in respect of its Initial Term Loans, Additional Term Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments
to any Debt Fund Affiliate, and any Debt Fund Affiliate may, from time to time, purchase Initial Term Loans, Additional Term Loans, Revolving
Credit Commitments or Additional Revolving Credit Commitments (x) on a non-pro rata basis through Dutch Auctions or similar transactions
open to all applicable Lenders or (y) on a non-pro rata basis through open market purchases without the consent of the Administrative
Agent, in each case, notwithstanding the requirements set forth in subclauses (i) through (vii) of this clause (g);
provided that the Initial Term Loans, Additional Term Loans and unused commitments and other Loans of all Debt Fund Affiliates shall
not account for more than 49.9% of the amounts included in determining whether the Required Lenders or Required Revolving Lenders have
(A) consented to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or
any departure by any Loan Party therefrom or (B) directed or required the Administrative Agent or any Lender to undertake any action
(or refrain from taking any action) with respect to any Loan Document. Any Initial Term Loans or Additional Term Loans acquired by any
Debt Fund Affiliate may (but shall not be required to) be contributed to the Borrower or any of its subsidiaries or parent entities for
purposes of cancelling such Indebtedness and in exchange thereof such Debt Fund Affiliate may receive debt or equity securities of such
entity or a direct or indirect parent entity or subsidiary thereof that are otherwise permitted to be issued by such entity at such time
(it being understood that (x) any Initial Term Loans or Additional Term Loans so contributed shall, to the extent permitted by applicable
Requirements of Law, be retired and cancelled immediately upon contribution thereof and (y) any such contribution shall be treated as
a capital contribution that builds the Available Amount pursuant to clause (iii) of the definition thereof by an amount equal
to the fair market value (as determined by the Borrower in good faith) of the Initial Term Loans or Additional Term Loans so contributed;
provided that if the fair market value of such Initial Term Loans or Additional Term Loans cannot be determined by the Borrower,
the fair market value shall be deemed to be the purchase price of such Initial Term Loans or Additional Term Loans paid by such Debt
Fund Affiliate)); provided that upon any such cancellation, the aggregate outstanding principal amount of the Initial Term Loans
or Additional Term Loans shall be deemed reduced, as of the date of such contribution, by the full par value of the aggregate principal
amount of the Initial Term Loans or Additional Term Loans so contributed and cancelled, and each principal repayment installment with
respect to the Initial Term Loans or Additional Term Loans pursuant to Section 2.10(a) shall be reduced pro rata by the
full par value of the aggregate principal amount of Initial Term Loans or Additional Term Loans so contributed and cancelled.
(h)
Notwithstanding anything to the contrary herein, at the election of the Borrower, Revolving Loans and Revolving Credit Commitments
held by a Defaulting Lender may be assigned to an Affiliated Lender without the need for the consent of any other Person, with
the price of such assignment being the lower of (i) par plus accrued and unpaid interest and commitment fees thereon and (ii)
such lower amount as agreed by the applicable Defaulting Lender and such Affiliated Lender; provided that Revolving Lenders
that are not Defaulting Lenders shall have the right to repurchase such assigned Revolving Loans and Revolving Credit Commitments
from such Affiliated Lender, with the price of such assignment being the lower of (i) par plus accrued and unpaid interest and
commitment fees thereon and (ii) such lower amount as agreed by such Revolving Lender and such Affiliated Lender; provided
further that the provisions of clause (g)(vi) above shall apply with respect to such Revolving Loans or Revolving Credit
Commitments acquired and held by an Affiliated Lender, other than an Affiliated Lender that is a Debt Fund Affiliate, in which
case only the limitation set forth in the final paragraph of Section 9.05(g) shall apply.
Section
9.06. Survival. All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan
Documents and the making of any Loans and issuance of any Letter of Credit regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent may have had notice or knowledge of any Default or Event
of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force
and effect until the Termination Date. The provisions of Sections 2.15, 2.16, 2.17, 9.03 and 9.13 and Article
8 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of Credit and the Revolving Credit Commitment or any
Additional Commitment, the occurrence of the Termination Date or the termination of this Agreement or any provision hereof but
in each case, subject to the limitations set forth in this Agreement.
Section
9.07. Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute
a single contract. This Agreement, the other Loan Documents and the Fee Letter constitute the entire agreement among the parties
relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating
to the subject matter hereof. This Agreement shall become effective when it has been executed by Holdings, the Borrower and the
Administrative Agent and when the Administrative Agent has received counterparts hereof which, when taken together, bear the signatures
of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Delivery of an executed counterpart of a signature page to this Agreement by facsimile
or by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart
of this Agreement.
Section
9.08. Severability. To the extent permitted by applicable Requirements of Law, any provision of any Loan Document held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions
thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any
other jurisdiction.
Section
9.09. Right of Setoff. At any time when an Event of Default exists, upon the written consent of the Administrative Agent
and each Issuing Bank, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by
applicable Requirements of Law, to set off and apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other obligations (in any currency) at any time owing by the Administrative Agent, such Issuing Bank
or such Lender to or for the credit or the account of the Borrower or any Loan Party against any of and all the Secured Obligations
held by the Administrative Agent, such Issuing Bank or such Lender, irrespective of whether or not the Administrative Agent, such
Issuing Bank or such Lender shall have made any demand under the Loan Documents and although such obligations may be contingent
or unmatured or are owed to a branch or office of such Lender or Issuing Bank different than the branch or office holding such
deposit or obligation on such Indebtedness. Any applicable Lender or Issuing Bank shall promptly notify the Borrower and the Administrative
Agent of such set-off or application; provided that any failure to give or any delay in giving such notice shall not affect
the validity of any such set-off or application under this Section. The rights of each Lender, each Issuing Bank and the Administrative
Agent under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender, such
Issuing Bank or the Administrative Agent may have.
Section
9.10. Governing Law; Jurisdiction; Consent to Service of Process.
(a)
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY
OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER
LOAN DOCUMENTS), WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED, THAT (I) THE INTERPRETATION OF THE DEFINITION OF “CLOSING
DATE MATERIAL ADVERSE EFFECT” AND THE DETERMINATION OF WHETHER A CLOSING DATE MATERIAL ADVERSE EFFECT HAS OCCURRED, (II)
THE DETERMINATION OF THE ACCURACY OF ANY SPECIFIED ACQUISITION AGREEMENT REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY
THEREOF MERGER SUB 1 OR ITS APPLICABLE AFFILIATE HAS A RIGHT TO TERMINATE ITS OBLIGATIONS UNDER THE ACQUISITION AGREEMENT OR DECLINE
TO CONSUMMATE THE ACQUISITION AND (III) THE DETERMINATION OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE
TERMS OF THE ACQUISITION AGREEMENT AND, IN ANY CASE, ANY CLAIM OR DISPUTE ARISING OUT OF ANY SUCH INTERPRETATION OR DETERMINATION
OR ANY ASPECT THEREOF, SHALL IN EACH CASE BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
(b)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF
ANY U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT
THEREFROM) OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH ACTION OR PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT
PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, FEDERAL COURT; PROVIDED THAT WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THE ACQUISITION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY WHICH DOES NOT INVOLVE ANY CLAIMS
AGAINST THE ARRANGERS, THE ISSUING BANKS, THE LENDERS OR ANY INDEMNIFIED PERSON, THIS SENTENCE SHALL NOT OVERRIDE ANY JURISDICTION
PROVISION IN THE ACQUISITION AGREEMENT. EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED
MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS
BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE REQUIREMENTS OF LAW. EACH PARTY HERETO AGREES THAT THE ADMINISTRATIVE
AGENT RETAINS THE RIGHT TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION SOLELY IN CONNECTION
WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT.
(c)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
(d)
TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR
FORM OF MAIL) DIRECTED TO IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01. EACH PARTY HERETO HEREBY WAIVES
ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY LOAN DOCUMENT THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY APPLICABLE REQUIREMENTS OF LAW.
Section
9.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section
9.12. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only,
are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this
Agreement.
Section
9.13. Confidentiality. Each of the Administrative Agent, each Lender, each Issuing Bank and each Arranger agrees (and each Lender
agrees to cause its SPC, if any) to maintain the confidentiality of the Confidential Information (as defined below), except that Confidential
Information may be disclosed (a) to its and its Affiliates’ directors, officers, managers, employees, independent auditors, or
other experts and advisors, including accountants, legal counsel and other advisors (collectively, the “Representatives”)
on a confidential, “need to know” basis solely in connection with the transactions contemplated hereby and who are informed
of the confidential nature of the Confidential Information and are or have been advised of their obligation to keep the Confidential
Information of this type confidential; provided that such Person shall be responsible for its Affiliates’ and their Representatives’
compliance with this paragraph; provided, further, that unless the Borrower otherwise consents, no such disclosure shall
be made by the Administrative Agent, any Issuing Bank, any Arranger, any Lender or any Affiliate or Representative thereof to any Affiliate
or Representative of the Administrative Agent, any Issuing Bank, any Arranger, or any Lender that is a Disqualified Institution, (b)
upon the demand or request of any regulatory or governmental authority having jurisdiction over such Person or its Affiliates (in which
case such Person shall, except with respect to any audit or examination conducted by bank accountants or any Governmental Authority or
regulatory authority exercising examination or regulatory authority, to the extent permitted by applicable Requirements of Law, (i) inform
the Borrower promptly in advance thereof and (ii) ensure that any information so disclosed is accorded confidential treatment), (c) to
the extent compelled by legal process in, or reasonably necessary to, the defense of such legal, judicial or administrative proceeding,
in any legal, judicial or administrative proceeding or otherwise as required by applicable Requirements of Law (in which case such Person
shall (i) to the extent permitted by law, inform the Borrower promptly in advance thereof, (ii) ensure that any such information so disclosed
is accorded confidential treatment and (iii) allow the Borrower a reasonable opportunity to object to such disclosure in such proceeding),
(d) to any other party to this Agreement, (e) subject to an acknowledgment and agreement by the relevant recipient that the Confidential
Information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as otherwise reasonably
acceptable to the Borrower and the Administrative Agent, including as set forth in the Information Memorandum) in accordance with the
standard syndication process of the Arrangers or market standards for dissemination of the relevant type of information, which shall
in any event require “click through” or other affirmative action on the part of the recipient to access the Confidential
Information and acknowledge its confidentiality obligations in respect thereof, to (i) any Eligible Assignee of or Participant in, or
any prospective Eligible Assignee of or prospective Participant in, any of its rights or obligations under this Agreement, including
any SPC (in each case other than a Disqualified Institution), (ii) any pledgee referred to in Section 9.05, (iii) any actual or
prospective direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction (including any credit default
swap) or similar derivative product under which payments are to be made by reference to the Borrower and its Obligations, (iv) any actual
or prospective direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction (including any credit default
swap) or similar derivative product to which any Loan Party is a party and (v) subject to the Borrower’s prior approval of the
information to be disclosed (not to be unreasonably withheld or delayed), to Moody’s or S&P on a confidential basis in connection
with obtaining or maintaining ratings as required under Section 5.13, (f) with the prior written consent of the Borrower and (g)
to the extent the Confidential Information becomes publicly available other than as a result of a breach of this Section by such Person,
its Affiliates or their respective Representatives. For purposes of this Section, “Confidential Information” means
all information relating to Holdings, the Borrower and/or any of its subsidiaries and their respective businesses, the Sponsor, the Transactions,
the Amendment No. 1 Transactions, the Amendment No. 2 Transactions or the Amendment No. 3 Transactions (including any information obtained
by the Administrative Agent, any Issuing Bank, any Lender or any Arranger, or any of their respective Affiliates or Representatives,
based on a review of the books and records relating to Holdings, the Borrower and/or any of its subsidiaries and their respective Affiliates
from time to time, including prior to the date hereof) other than any such information that is publicly available to the Administrative
Agent or any Arranger, Issuing Bank, or Lender on a non-confidential basis prior to disclosure by Holdings, the Borrower or any of its
subsidiaries. For the avoidance of doubt, in no event shall any disclosure of any Confidential Information be made to Person that is
a Disqualified Institution at the time of disclosure.
Section
9.14. No Fiduciary Duty. Each of the Administrative Agent, the Arrangers, each Lender, each Issuing Bank and their respective
Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests
that conflict with those of the Loan Parties, their stockholders and/or their respective affiliates. Each Loan Party agrees that
nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary
or other implied duty between any Lender, on the one hand, and such Loan Party, its respective stockholders or its respective
affiliates, on the other. Each Loan Party acknowledges and agrees that: (i) the transactions contemplated by the Loan Documents
(including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between
the Lenders, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading
thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its respective stockholders
or its respective affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with
respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will
advise any Loan Party, its respective stockholders or its respective Affiliates on other matters) or any other obligation to any
Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal
and not as the agent or fiduciary of such Loan Party, its respective management, stockholders, creditors or any other Person.
Each Loan Party acknowledges and agrees that such Loan Party has consulted its own legal, tax and financial advisors to the extent
it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and
the process leading thereto.
Section
9.15. Several Obligations. The respective obligations of the Lenders hereunder are several and not joint and the failure
of any Lender to make any Loan, issue any Letter of Credit or perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder.
Section
9.16. USA PATRIOT Act. Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Loan
Parties that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that
identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will
allow such Lender to identify such Loan Party in accordance with the USA PATRIOT Act.
Section
9.17. Disclosure. Each Loan Party, each Issuing Bank and each Lender hereby acknowledges and agrees that the Administrative
Agent and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with any
of the Loan Parties and their respective Affiliates.
Section
9.18. Appointment for Perfection. Each Lender hereby appoints each other Lender and each Issuing Bank as its agent for
the purpose of perfecting Liens for the benefit of the Administrative Agent, the Issuing Banks and the Lenders, in assets which,
in accordance with Article 9 of the UCC or any other applicable Requirements of Law can be perfected only by possession. If any
Lender or Issuing Bank (other than the Administrative Agent) obtains possession of any Collateral, such Lender or such Issuing
Bank shall notify the Administrative Agent thereof; and, promptly upon the Administrative Agent’s request therefor shall
deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral in accordance with the Administrative
Agent’s instructions.
Section
9.19. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable
to any Loan or Letter of Credit, together with all fees, charges and other amounts which are treated as interest on such Loan
or Letter of Credit under applicable law (collectively, the “Applicable Charges”), shall exceed the maximum
lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender
or Issuing Bank holding such Loan or Letter of Credit in accordance with applicable Requirements of Law, the rate of interest
payable in respect of such Loan or Letter of Credit hereunder, together with all Applicable Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and Applicable Charges that would have been payable
in respect of such Loan or Letter of Credit but were not payable as a result of the operation of this Section shall be cumulated
and the interest and Applicable Charges payable to such Lender or Issuing Bank in respect of other Loans or Letters of Credit
or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon
at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender or Issuing Bank.
Section
9.20. Intercreditor Agreement. REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT. EACH LENDER AND ISSUING BANK HEREUNDER
AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND AUTHORIZES
AND INSTRUCTS THE ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS “FIRST LIEN CREDIT AGREEMENT COLLATERAL
AGENT” AND ON BEHALF OF SUCH LENDER OR ISSUING BANK. THE PROVISIONS OF THIS SECTION 9.20 ARE NOT INTENDED TO SUMMARIZE
ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AGREEMENT, THE FORM OF WHICH IS ATTACHED AS AN EXHIBIT TO THIS AGREEMENT. REFERENCE
MUST BE MADE TO THE INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER AND ISSUING BANK
IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND
NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER OR ISSUING BANK AS TO THE SUFFICIENCY
OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT. THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT
TO THE LENDERS UNDER THE SECOND LIEN CREDIT AGREEMENT TO EXTEND CREDIT THEREUNDER AND SUCH LENDERS ARE INTENDED THIRD PARTY BENEFICIARIES
OF SUCH PROVISIONS AND THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.
Section
9.21. Conflicts. Notwithstanding anything to the contrary contained herein or in any other Loan Document (but excluding
the Intercreditor Agreement), in the event of any conflict or inconsistency between this Agreement and any other Loan Document
(excluding the Intercreditor Agreement), the terms of this Agreement shall govern and control; provided that in the case
of any conflict or inconsistency between the Intercreditor Agreement and any other Loan Document, the terms of the Intercreditor
Agreement shall govern and control.
Section
9.22. Release of Guarantors. Notwithstanding anything in Section 9.02(b) to the contrary, (a) any Subsidiary Guarantor
shall automatically be released from its obligations hereunder (and its Loan Guaranty shall be automatically released) (i) upon
the consummation of any permitted transaction or series of related transactions if as a result thereof such Subsidiary Guarantor
ceases to be a Restricted Subsidiary (included by merger or dissolution) or becomes an Excluded Subsidiary as a result of a single
transaction or series of related transactions permitted hereunder; or (ii) upon the occurrence of the Termination Date, (b) any
Subsidiary Guarantor that qualifies as an “Excluded Subsidiary” shall be released from its obligations hereunder (and
its Loan Guaranty shall be automatically released) by the Administrative Agent promptly following the request therefor by the
Borrower and/or (c) the Person constituting Holdings immediately prior to the consummation of a Holdings Reorganization Transaction
whereby the existing “Holdings” is not intended to remain as such shall be automatically released from its obligations
hereunder (and its Loan Guaranty shall be automatically released) upon the consummation of such Holdings Reorganization Transaction;
provided, that the release of any Subsidiary Guarantor from its obligations under the Loan Guaranty if such Subsidiary
Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition thereof shall only be permitted
if at the time such Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect to such release and the
consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower is deemed to have
made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an amount equal
to the portion of the fair market value of the net assets of such Person attributable to the Borrower’s equity interest
therein as estimated by the Borrower in good faith and such Investment is permitted pursuant to Section 6.06 (other than Section
6.06(f)) at such time. In connection with any such release, the Administrative Agent shall, subject to receipt of an officer’s
certificate from the Borrower certifying that such transaction and release are permitted hereunder, promptly execute and deliver
to the relevant Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to
evidence termination or release. Any execution and delivery of documents pursuant to the preceding sentence of this Section
9.22 shall be without recourse to or warranty by the Administrative Agent.
Section
9.23. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in
any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges
that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured,
may be subject to the write-down and conversion powers of an EEA Resolution Authority and each party hereto agrees and consents
to, and acknowledges and agrees to be bound by:
(a)
the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)
the effects of any Bail-in Action on any such liability, including, if applicable:
(i)
a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or
other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement
or any other Loan Document; or
(iii)
the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA
Resolution Authority.
[Signature
Pages Follow]
Exhibit 10.16
EXECUTION VERSION
FIRST LIEN CREDIT AGREEMENT*
Dated as of September 25, 2020
among
KINGPIN INTERMEDIATE HOLDINGS
LLC,
as the Borrower,
BOWLERO CORP.,
as Holdings,
THE FINANCIAL INSTITUTIONS PARTY
HERETO,
as Lenders,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
and
JPMORGAN CHASE BANK, N.A.,
as Arranger
and Bookrunner
|
|
*
|
Certain exhibits and the schedules to this Exhibit have been
omitted in accordance with Regulation S-K Item 601(a)(5). The registrant agrees to furnish supplementally a copy of any omitted exhibit
or schedule to the SEC upon its request, however the registrant may request confidential treatment of omitted items.
|
TABLE OF CONTENTS
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|
|
Page
|
|
ARTICLE 1
|
DEFINITIONS
|
1
|
|
Section 1.01.
|
Defined Terms
|
1
|
|
Section 1.02.
|
Classification of Loans and Borrowings
|
64
|
|
Section 1.03.
|
Terms Generally
|
65
|
|
Section 1.04.
|
Accounting Terms; GAAP
|
66
|
|
Section 1.05.
|
Effectuation of Transactions
|
69
|
|
Section 1.06.
|
Timing of Payment and Performance
|
69
|
|
Section 1.07.
|
Times of Day
|
69
|
|
Section 1.08.
|
Currency Equivalents Generally
|
70
|
|
Section 1.09.
|
Cashless Rollovers
|
70
|
|
Section 1.10.
|
[Reserved]
|
71
|
|
Section 1.11.
|
Guarantees and Collateral
|
71
|
|
Section 1.12.
|
Interest Rates; LIBOR Notification
|
71
|
|
Section 1.13.
|
Divisions
|
72
|
|
ARTICLE 2
|
THE CREDITS
|
72
|
|
Section 2.01.
|
Commitments
|
72
|
|
Section 2.02.
|
Loans and Borrowings
|
72
|
|
Section 2.03.
|
Requests for Borrowings
|
73
|
|
Section 2.04.
|
[Reserved]
|
74
|
|
Section 2.05.
|
[Reserved]
|
74
|
|
Section 2.06.
|
[Reserved]
|
74
|
|
Section 2.07.
|
Funding of Borrowings
|
74
|
|
Section 2.08.
|
Type; Interest Elections
|
75
|
|
Section 2.09.
|
Termination and Reduction of Commitments
|
76
|
|
Section 2.10.
|
Repayment of Loans; Evidence of Debt
|
76
|
|
Section 2.11.
|
Prepayment of Loans
|
77
|
|
Section 2.12.
|
Fees
|
83
|
|
Section 2.13.
|
Interest
|
84
|
|
Section 2.14.
|
Alternate Rate of Interest
|
85
|
|
Section 2.15.
|
Increased Costs
|
86
|
|
Section 2.16.
|
Break Funding Payments
|
87
|
|
Section 2.17.
|
Taxes
|
88
|
|
Section 2.18.
|
Payments Generally; Allocation of Proceeds; Sharing of Payments
|
92
|
|
Section 2.19.
|
Mitigation Obligations; Replacement of Lenders.
|
93
|
|
Section 2.20.
|
Illegality
|
95
|
|
Section 2.21.
|
Defaulting Lenders
|
95
|
|
ARTICLE 3
|
REPRESENTATIONS AND WARRANTIES
|
96
|
|
Section 3.01.
|
Organization; Powers
|
96
|
|
Section 3.02.
|
Authorization; Enforceability
|
97
|
|
Section 3.03.
|
Governmental Approvals; No Conflicts
|
97
|
|
Section 3.04.
|
Financial Condition; No Material Adverse Effect
|
97
|
|
Section 3.05.
|
Properties
|
97
|
|
Section 3.06.
|
Litigation and Environmental Matters
|
98
|
|
Section 3.07.
|
Compliance with Laws
|
98
|
|
Section 3.08.
|
Investment Company Status
|
98
|
|
Section 3.09.
|
Taxes
|
98
|
|
Section 3.10.
|
ERISA
|
99
|
|
Section 3.11.
|
Disclosure
|
99
|
|
Section 3.12.
|
Solvency
|
99
|
|
Section 3.13.
|
Capitalization and Subsidiaries
|
99
|
|
Section 3.14.
|
Security Interest in Collateral
|
100
|
|
Section 3.15.
|
Labor Disputes
|
100
|
|
Section 3.16.
|
Federal Reserve Regulations
|
100
|
|
Section 3.17.
|
Sanctions and Anti-Corruption Laws
|
100
|
|
ARTICLE 4
|
CONDITIONS
|
101
|
|
Section 4.01.
|
Closing Date
|
101
|
|
Section 4.02.
|
Each Credit Extension
|
103
|
|
ARTICLE 5
|
AFFIRMATIVE COVENANTS
|
104
|
|
Section 5.01.
|
Financial Statements and Other Reports
|
104
|
|
Section 5.02.
|
Existence
|
107
|
|
Section 5.03.
|
Payment of Taxes
|
107
|
|
Section 5.04.
|
Maintenance of Properties
|
107
|
|
Section 5.05.
|
Insurance
|
108
|
|
Section 5.06.
|
Inspections
|
108
|
|
Section 5.07.
|
Maintenance of Book and Records
|
109
|
|
Section 5.08.
|
Compliance with Laws
|
109
|
|
Section 5.09.
|
Hazardous Materials Activity
|
109
|
|
Section 5.10.
|
Designation of Subsidiaries
|
110
|
|
Section 5.11.
|
Use of Proceeds
|
110
|
|
Section 5.12.
|
Covenant to Guarantee Obligations and Give Security
|
111
|
|
Section 5.13.
|
[Resreved]
|
113
|
|
Section 5.14.
|
Maintenance of Fiscal Year
|
113
|
|
Section 5.15.
|
Further Assurances
|
113
|
|
Section 5.16.
|
Conduct of Business
|
113
|
|
Section 5.17.
|
Annual Lender Call
|
113
|
|
Section 5.18.
|
Post-Closing Actions
|
113
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|
ARTICLE 6
|
NEGATIVE COVENANTS
|
114
|
|
Section 6.01.
|
Indebtedness
|
114
|
|
Section 6.02.
|
Liens
|
120
|
|
Section 6.03.
|
No Further Negative Pledges
|
126
|
|
Section 6.04.
|
Restricted Payments; Certain Payments of Indebtedness
|
128
|
|
Section 6.05.
|
[Reserved]
|
134
|
|
Section 6.06.
|
Investments
|
134
|
|
Section 6.07.
|
Fundamental Changes; Disposition of Assets
|
139
|
|
Section 6.08.
|
Sale and Lease-Back Transactions
|
144
|
|
Section 6.09.
|
Transactions with Affiliates
|
144
|
|
Section 6.10.
|
[Reserved]
|
146
|
|
Section 6.11.
|
[Reserved]
|
147
|
|
Section 6.12.
|
Amendments of or Waivers with Respect to Restricted Debt
|
147
|
|
Section 6.13.
|
[Reserved]
|
147
|
|
Section 6.14.
|
Permitted Activities of Holdings. Holdings shall not:
|
147
|
|
Section 6.15.
|
Financial Covenant
|
148
|
|
ARTICLE 7
|
EVENTS OF DEFAULT
|
153
|
|
Section 7.01.
|
Events of Default
|
153
|
|
ARTICLE 8
|
THE ADMINISTRATIVE AGENT
|
157
|
|
ARTICLE 9
|
MISCELLANEOUS
|
164
|
|
Section 9.01.
|
Notices
|
164
|
|
Section 9.02.
|
Waivers; Amendments
|
166
|
|
Section 9.03.
|
Expenses; Indemnity
|
170
|
|
Section 9.04.
|
Waiver of Claim
|
172
|
|
Section 9.05.
|
Successors and Assigns
|
172
|
|
Section 9.06.
|
Survival
|
179
|
|
Section 9.07.
|
Counterparts; Integration; Effectiveness
|
179
|
|
Section 9.08.
|
Severability
|
180
|
|
Section 9.09.
|
Right of Setoff
|
180
|
|
Section 9.10.
|
Governing Law; Jurisdiction; Consent to Service of Process
|
180
|
|
Section 9.11.
|
Waiver of Jury Trial
|
181
|
|
Section 9.12.
|
Headings
|
181
|
|
Section 9.13.
|
Confidentiality
|
182
|
|
Section 9.14.
|
No Fiduciary Duty
|
183
|
|
Section 9.15.
|
Several Obligations
|
183
|
|
Section 9.16.
|
USA PATRIOT Act
|
183
|
|
Section 9.17.
|
Disclosure
|
183
|
|
Section 9.18.
|
Appointment for Perfection
|
183
|
|
Section 9.19.
|
Interest Rate Limitation
|
183
|
|
Section 9.20.
|
Intercreditor Agreement
|
184
|
|
Section 9.21.
|
Conflicts
|
184
|
|
Section 9.22.
|
Release of Guarantors
|
184
|
|
Section 9.23.
|
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
185
|
|
Section 9.23.
|
Acknowledgement Regarding Any Supported QFCs
|
185
|
SCHEDULES:
|
Schedule 1.01(a)
|
–
|
Commitment Schedule
|
|
Schedule 1.01(b)
|
–
|
Existing Credit Facilities Excluded Properties
|
|
Schedule 1.01(c)
|
–
|
Excluded Properties
|
|
Schedule 1.01(d)
|
|
Liquor License Subsidiaries
|
|
Schedule 3.06
|
|
Litigation and Environmental Matters
|
|
Schedule 3.13
|
–
|
Subsidiaries
|
|
Schedule 5.10
|
–
|
Unrestricted Subsidiaries
|
|
Schedule 5.18
|
|
Post-Closing Actions
|
|
Schedule 6.01
|
–
|
Existing Indebtedness
|
|
Schedule 6.02
|
–
|
Existing Liens
|
|
Schedule 6.03
|
–
|
Negative Pledges
|
|
Schedule 6.06
|
–
|
Existing Investments
|
|
Schedule 6.07
|
–
|
Certain Dispositions
|
|
Schedule 9.01
|
–
|
Borrower’s Website Address for Electronic Delivery
|
EXHIBITS:
|
Exhibit A
|
–
|
Form of Assignment and Assumption
|
|
Exhibit B
|
–
|
Form of Borrowing Request
|
|
Exhibit C
|
–
|
Form of Compliance Certificate
|
|
Exhibit D
|
–
|
Form of Interest Election Request
|
|
Exhibit E
|
–
|
Form of Perfection Certificate
|
|
Exhibit F
|
–
|
[Reserved]
|
|
Exhibit G
|
–
|
Form of Promissory Note
|
|
Exhibit H-1
|
–
|
Form of Trademark Security Agreement
|
|
Exhibit H-2
|
–
|
Form of Patent Security Agreement
|
|
Exhibit H-3
|
–
|
Form of Copyright Security Agreement
|
|
Exhibit I
|
–
|
Form of Guaranty Agreement
|
|
Exhibit J
|
–
|
Form of Security Agreement
|
|
Exhibit K-1
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit K-2
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit K-3
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit K-4
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
|
|
Exhibit L
|
–
|
Form of Solvency Certificate
|
|
Exhibit M
|
–
|
Form of Intercreditor Agreement
|
FIRST LIEN CREDIT AGREEMENT
FIRST LIEN
CREDIT AGREEMENT, dated as of September 25, 2020 (as further amended, supplemented or otherwise modified from time to time in accordance
with the terms hereof, this “Agreement”), by and among Bowlero Corp., a Delaware corporation (“Bowlero”),
Kingpin Intermediate Holdings LLC, a Delaware limited liability company (“Kingpin Intermediate”), the Lenders from
time to time party hereto, JPMorgan Chase Bank, N.A. (“JPM”), in its capacities as administrative agent for the Lenders
and collateral agent for the Secured Parties (in such capacities, together with its successor and permitted assigns, the “Administrative
Agent”), with JPM as arranger and joint bookrunner (in such capacities, collectively, the “Arranger”).
RECITALS
A. The
Borrower has requested that the Lenders under this Agreement extend credit in the form of a Revolving Facility with an available amount
of $150,000,000.
B. The
Lenders are willing to make available the Revolving Facility, in each case on the terms and subject to the conditions set forth herein.
C. Accordingly, the parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
Section 1.01.
Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at
a rate determined by reference to the Alternate Base Rate.
“Acceptable
Intercreditor Agreement” means the Intercreditor Agreement, a Market Intercreditor Agreement, or another intercreditor agreement
that is reasonably satisfactory to the Administrative Agent (which may, if applicable, consist of a payment “waterfall”).
“ACH” means automated clearing house transfers.
“Acquisition
Agreement” means that certain Agreement and Plan of Merger, dated as of June 6, 2017, by and among, inter alios, A-B
Parent LLC, A-B Merger Sub I Inc., A-B Merger Sub II LLC, Bowlmor AMF Corp. and the other Persons party thereto.
“Acquisition Transactions”
means, collectively, (a) the execution, delivery and performance by the applicable loan parties of the loan documents to which they are
a party in connection with the Pari First Lien Credit Facility, (b) the consummation of the acquisition contemplated by the Acquisition
Agreement, (c) the equity contribution consummated in connection with the foregoing, (d) the refinancing consummated in connection with
the foregoing, (e) the execution delivery and performance of, including the incurrence of Indebtedness under, that certain Second Lien
Credit Agreement, dated as of July 3, 2017, among, inter alios, the loan parties party thereto, the lenders party thereto and
Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent and (f) the payment of the transaction costs in
connection with the foregoing.
“Additional Agreement” has the meaning
assigned to such term in Article 8.
“Additional Commitment”
means any commitment hereunder added pursuant to Section 9.02(c).
“Additional Credit Facilities” means any
credit facilities added pursuant to Section 9.02(c).
“Additional
Letter of Credit Facility” means any letter of credit facility established by the Borrower and/or any Restricted Subsidiary
to obtain letters of credit required by customers, suppliers or landlords or otherwise required in the ordinary course of business.
“Additional Loans” means any Additional
Revolving Loans.
“Additional
Revolving Credit Commitments” means any revolving credit commitment added pursuant to Section 9.02(c)(ii).
“Additional
Revolving Credit Exposure” means, with respect to any Person at any time, the aggregate outstanding principal amount at such
time of all Additional Revolving Loans of such Person attributable to its Additional Revolving Credit Commitment.
“Additional
Revolving Facility” means any revolving credit facility added pursuant to Section 9.02(c)(ii).
“Additional Revolving
Lender” means any Lender with an Additional Revolving Credit Commitment or any Additional Revolving Credit Exposure.
“Additional Revolving Loans” means any
revolving loan added pursuant to Section 9.02(c)(ii).
“Adjusted LIBO Rate”
means, with respect to any LIBO Rate Borrowing for any Interest Period, an interest rate per annum equal to (a) the LIBO Rate
for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“Administrative
Agent” has the meaning assigned to such term in the preamble to this Agreement.
“Administrative
Questionnaire” means an administrative questionnaire, in the form provided by the Administrative Agent.
“Adverse
Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Holdings, the Borrower or any of its Restricted Subsidiaries) at law or in equity,
or before or by any Governmental Authority, domestic or foreign, whether pending or, to the knowledge of Holdings, the Borrower or any
of its Restricted Subsidiaries, threatened in writing, against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries
or any property of Holdings, the Borrower or any of its Restricted Subsidiaries.
“Affected
Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with,
that Person. No Person shall be an “Affiliate” of Holdings or any subsidiary thereof solely because it is an unrelated
portfolio company of the Sponsor and none of the Administrative Agent, the Arranger, any Lender or any of their respective
Affiliates shall be considered an Affiliate of Holdings or any subsidiary thereof. For the avoidance of doubt, the parties hereto
agree that Comcast Corporation, a Pennsylvania corporation, is not an Affiliate of Holdings or the Borrower as of the Closing
Date.
“Aggregate
Revolving Credit Exposure” means, at any time, the aggregate amount of the Lenders’ Revolving Credit Exposures at such
time.
“Agreement”
has the meaning assigned to such term in the preamble to this First Lien Credit Agreement.
“Alternate
Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB
Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such
day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted
LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest
Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in
the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively. If the Alternate Base Rate is being used as an alternate rate
of interest pursuant to Section 2.14 (for the avoidance of doubt, only until any amendment has become effective pursuant to Section 2.14(b)),
then the Alternate Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c)
above.
“Amendment
No. 1 Transactions” means the entering into of that certain First Incremental Amendment to the Pari First Lien Credit Agreement,
dated as of March 28, 2019, among, inter alios, the loan parties party thereto, the lenders party thereto and the Pari First Lien
Agent, the repayment in full of all amounts outstanding under that certain Second Lien Credit Agreement, dated as of July 3, 2017, among,
inter alios, the loan parties party thereto, the lenders party thereto and Credit Suisse AG, Cayman Islands Branch, as administrative
agent and collateral agent, and the payment of all fees, expenses and other costs incurred in connection with the foregoing.
“Amendment
No. 2 Transactions” means the entering into of that certain Second Amendment to the Pari First Lien Credit Agreement, dated
as of July 5, 2018, among, inter alios, the loan parties party thereto, the lenders party thereto and the Pari First Lien Agent,
the incurrence of loans thereunder and the payment of all fees, expenses and other costs incurred in connection with the foregoing.
“Applicable Charges” has the meaning set
forth in Section 9.19.
“Applicable
Percentage” means, with respect to any Revolving Lender of any Class, the percentage of the aggregate amount of the Revolving
Credit Commitments of such Class represented by such Lender’s Revolving Credit Commitment of such Class; provided that for
purposes of Section 2.21 and otherwise herein, when there is a Defaulting Lender, such Defaulting Lender’s Revolving Credit
Commitment shall be disregarded for any relevant calculation. In the event that the Revolving Credit Commitments of any Class have expired
or been terminated, the Applicable Percentage of any Revolving Lender of such Class shall be determined on the basis of the Revolving
Credit Exposure of such Revolving Lender with respect to such Class, giving effect to any assignments and to any Revolving Lender’s
status as a Defaulting Lender at the time of determination.
“Applicable
Rate” means (i) in the case of ABR Loans, 2.00% per annum and (ii) in the case of LIBO Rate Loans, 3.00% per annum; provided
that the Applicable Rate shall be increased by 1.00% per annum at any time the Applicable Rate Ratings Condition is satisfied. The
Applicable Rate for any Class of Additional Revolving Loans shall be as set forth in the applicable Refinancing Amendment.
“Applicable
Rate Ratings Condition” means, at any time of determination, that Comcast Corporation fails to have a Rating of BBB-/Baa3 or
higher. The first Rating indicated is the S&P Rating and the second Rating indicated is the Moody’s Rating. In the event that
the S&P and Moody’s Ratings are not equivalent, the Applicable Rate Ratings Condition shall be based on the lower of the two.
If Comcast Corporation has only one Rating from either S&P or Moody’s, then that Rating shall apply.
“Arranger” has
the meaning assigned to such term in the preamble to this Agreement.
“Assignment Agreement” means, collectively, each
Assignment and Assumption.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.05), and accepted by the Administrative Agent in the form of Exhibit A or any other form
approved by the Administrative Agent and the Borrower.
“Attributable
Debt” means, at any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person (except in the footnotes thereto) prepared in accordance with GAAP, other than (a) Capital Lease Obligations
arising as a result of a modification of the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents to the extent such
modification is not prohibited hereunder (including the iStar Amendments), (b) Capital Lease Obligations arising as a result of the classification
of the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014 or any Excluded Property Sale/Leaseback Transaction as a Capital Lease and
(c) Capital Lease Obligations arising as a result of any Excluded Property Sale/Leaseback Transaction. For the avoidance of doubt, this
definition of “Attributable Debt” shall be subject in all respects to the provisions of Section 1.04(c).
“Available Amount” means, at any time,
an amount equal to, without duplication:
(a) the sum of:
(i) the
greater of $20,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; plus
(ii) the
CNI Growth Amount (provided that such amount shall not be available for any Restricted Payment pursuant to Section 6.04(a)(iii)(A) or
Restricted Debt Payment pursuant to Section 6.04(b)(vi)(A), in each case, if any Event of Default exists pursuant to Section 7.01(a) or,
with respect to the Borrower, Sections 7.01(f) or (g) at the time of determination pursuant to Section 1.04(e)); plus
(iii) the
amount of any capital contributions or other proceeds of any issuance of Capital Stock (other than any amounts (x) constituting a
Cure Amount or an Available Excluded Contribution Amount or proceeds of an issuance of Disqualified Capital Stock, (y) received from
the Borrower or any Restricted Subsidiary or (z) consisting of the proceeds of any loan or advance made pursuant to Section
6.06(h)(ii)) received as Cash equity by the Borrower or any of its Restricted Subsidiaries, plus the fair market value,
as determined by the Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Borrower
or any Restricted Subsidiary as a capital contribution or in return for any issuance of Capital Stock (other than any amounts (x)
constituting a Cure Amount or an Available Excluded Contribution Amount or proceeds of any issuance of Disqualified Capital Stock or
(y) received from the Borrower or any Restricted Subsidiary), in each case, during the period from and including the day immediately
following the Pari First Lien Closing Date through and including such time; plus
(iv) the
aggregate principal amount of any Indebtedness or Disqualified Capital Stock, in each case, of the Borrower or any Restricted Subsidiary
issued after the Pari First Lien Closing Date (other than Indebtedness or such Disqualified Capital Stock issued to the Borrower or any
Restricted Subsidiary), which has been converted into or exchanged for Capital Stock of the Borrower, any Restricted Subsidiary or any
Parent Company that does not constitute Disqualified Capital Stock, together with the fair market value of any Cash or Cash Equivalents
(as determined by the Borrower in good faith) and the fair market value (as determined by the Borrower in good faith) of any property
or assets received by the Borrower or such Restricted Subsidiary upon such exchange or conversion, in each case, during the period from
and including the day immediately following the Pari First Lien Closing Date through and including such time; plus
(v) the
net proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately following
the Pari First Lien Closing Date through and including such time in connection with the Disposition to any Person (other than the Borrower
or any Restricted Subsidiary) of any Investment made pursuant to Section 6.06(r)(i); plus
(vi) to
the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such
Investment, the proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately
following the Pari First Lien Closing Date through and including such time in connection with cash returns, cash profits, cash distributions
and similar cash amounts, including cash principal repayments of loans and interest payments on loans, in each case received in respect
of any Investment made after the Pari First Lien Closing Date pursuant to Section 6.06(r)(i) or, without duplication, otherwise
received by the Borrower or any Restricted Subsidiary from an Unrestricted Subsidiary (including any proceeds received on account of any
issuance of Capital Stock by any Unrestricted Subsidiary (other than solely on account of the issuance of Capital Stock to the Borrower
or any Restricted Subsidiary)); plus
(vii) an
amount equal to the sum of (A) the amount of any Investments by the Borrower or any Restricted Subsidiary pursuant to Section
6.06(r)(i) in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary, (B) the amount of any
Investments by the Borrower or any Restricted Subsidiary pursuant to Section 6.06(r)(i) in any Unrestricted Subsidiary that
has been merged, consolidated or amalgamated with or into, or is liquidated, wound up or dissolved into, the Borrower or any
Restricted Subsidiary and (C) the fair market value (as determined by the Borrower in good faith) of the property or assets of any
Unrestricted Subsidiary that have been transferred, conveyed or otherwise distributed to the Borrower or any Restricted Subsidiary,
in each case, during the period from and including the day immediately following the Pari First Lien Closing Date through and
including such time; plus
(viii) the amount of “Declined Proceeds” (or analogous term) with respect to (and as
defined in) the Pari First Lien Credit Agreement or any other Pari First Lien Facility; minus
(b) an
amount equal to the sum of (i) Restricted Payments made pursuant to Section 6.04(a)(iii)(A), plus (ii) Restricted Debt
Payments made pursuant to Section 6.04(b)(vi)(A), plus (iii) Investments made pursuant to Section 6.06(r)(i),
in each case, after the Pari First Lien Closing Date and prior to such time, or contemporaneously therewith.
“Available
Excluded Contribution Amount” means the aggregate amount of Cash or Cash Equivalents or the fair market value of other assets
or property (as determined by the Borrower in good faith, but excluding any Cure Amount and any amounts that are used to increase the
Available Amount) received by the Borrower or any of its Restricted Subsidiaries after the Pari First Lien Closing Date from:
(1) contributions
in respect of Qualified Capital Stock (other than any amounts or other assets received from the Borrower or any of its Restricted Subsidiaries),
and
(2) the sale
of Qualified Capital Stock of the Borrower or any of its Restricted Subsidiaries (other than (x) to the Borrower or any Restricted
Subsidiary of the Borrower, (y) pursuant to any management equity plan or stock option plan or any other management or employee
benefit plan or (z) with the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)),
in each case, designated as Available
Excluded Contribution Amounts pursuant to a certificate of a Responsible Officer on or promptly after the date the relevant capital contribution
is made or the relevant proceeds are received, as the case may be, and which are excluded from the calculation of the Available Amount.
“Available
RDP Capacity Amount” means the amount of Restricted Debt Payments that may be made at the time of determination pursuant to
Section 6.04(b)(iv)(A) minus the amount of the Available RDP Capacity Amount utilized by the Borrower or any Restricted Subsidiary
to make Investments pursuant to Section 6.06(q)(ii).
“Available RP
Capacity Amount” means the amount of Restricted Payments that may be made at the time of determination pursuant to Sections
6.04(a)(ii)(D), (a)(vii) and (a)(x) minus the aggregate amount of the Available RP Capacity Amount utilized by the
Borrower or any Restricted Subsidiary to (a) make Investments pursuant to Section 6.06(q)(ii), (b) make Restricted Debt
Payments pursuant to Section 6.04(b)(iv)(B) or (c) incur Indebtedness pursuant to Section 6.01(ll).
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of
any liability of an EEA Financial Institution.
“Bail-In
Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament
and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the
EU Bail-In Legislation Schedule.
“Bankruptcy
Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
“Benchmark
Replacement” means the sum of: (a) the alternate benchmark rate (which may be a SOFR-Based Rate) that has been selected by
the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or
the mechanism for determining such a rate by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market
convention for determining a rate of interest as a replacement to the LIBO Rate for dollar- denominated syndicated credit facilities
and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero,
the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement; provided further that any such Benchmark
Replacement shall be administratively feasible as determined by the Administrative Agent in its sole discretion.
“Benchmark
Replacement Adjustment” means the spread adjustment, or method for calculating or determining such spread adjustment, (which
may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration
to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the
replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body and/or (ii) any evolving
or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment,
for the replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement for dollar-denominated syndicated credit facilities
at such time.
“Benchmark
Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational
changes (including changes to the definition of “Alternate Base Rate,” the definition of “Interest Period,” timing
and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent, the
Credit Support Provider and the Borrower decide in their reasonable discretion may be appropriate to reflect the adoption and implementation
of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent
with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively
feasible or if the Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists,
in such other manner of administration as the Administrative Agent, the Credit Support Provider and the Borrower decide is reasonably
necessary in connection with the administration of this Agreement).
“Benchmark
Replacement Date” means the earlier to occur of the following events with respect to the LIBO Rate:
(1) in the case of clause (1) or (2) of the
definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of
information referenced therein and (b) the date on which the administrator of the LIBO Screen Rate permanently or indefinitely
ceases to provide the LIBO Screen Rate; or
(2) in
the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication
of information referenced therein.
“Benchmark
Transition Event” means the occurrence of one or more of the following events with respect to the LIBO Rate:
(1) a
public statement or publication of information by or on behalf of the administrator of the LIBO Screen Rate announcing that such administrator
has ceased or will cease to provide the LIBO Screen Rate, permanently or indefinitely, provided that, at the time of such statement or
publication, there is no successor administrator that will continue to provide the LIBO Screen Rate;
(2) a
public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Screen Rate, the U.S. Federal
Reserve System, an insolvency official with jurisdiction over the administrator for the LIBO Screen Rate, a resolution authority with
jurisdiction over the administrator for the LIBO Screen Rate or a court or an entity with similar insolvency or resolution authority over
the administrator for the LIBO Screen Rate, in each case which states that the administrator of the LIBO Screen Rate has ceased or will
cease to provide the LIBO Screen Rate permanently or indefinitely, provided that, at the time of such statement or publication, there
is no successor administrator that will continue to provide the LIBO Screen Rate; and/or
(3) a
public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Screen Rate announcing that
the LIBO Screen Rate is no longer representative.
“Benchmark
Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement
Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th
day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such
prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the
case of an Early Opt-in Election, the date specified by the Administrative Agent, the Credit Support Provider and the Borrower by notice
to the Lenders (if the Required Lenders do not object within three (3) Business Days of receipt of such notice).
“Benchmark
Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with
respect to the LIBO Rate and solely to the extent that the LIBO Rate has not been replaced with a Benchmark Replacement, the period (x)
beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the LIBO
Rate for all purposes hereunder in accordance with Section 2.14 and (y) ending at the time that a Benchmark Replacement has replaced the
LIBO Rate for all purposes hereunder pursuant to Section 2.14.
“Beneficial
Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership
Regulation.
“Beneficial Ownership Regulation” means
31 C.F.R. § 1010.230.
“BHC
Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with,
12 U.S.C. 1841(k)) of such party.
“Board” means the Board of Governors of
the Federal Reserve System of the U.S.
“Borrower”
means (a) initially, Kingpin Intermediate (prior to the consummation of a transaction described in clause (b) of this definition)
and (b) following the consummation of a transaction permitted hereunder that results in a Successor Borrower, such Successor Borrower.
“Borrowing”
means any Loans of the same Type and Class made, converted or continued on the same date and, in the case of LIBO Rate Loans, as to which
a single Interest Period is in effect.
“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03 and substantially in the form
attached hereto as Exhibit B or such other form that is reasonably acceptable to the Administrative Agent and the Borrower.
“Bowlero” has the meaning assigned to such
term in the preamble to this Agreement.
“Bowling Equipment”
means all pin setting machines (pinsetters/pinspotters), ball returns, settees, scoring systems (including front desk systems), lanes,
lane cleaning machines, bumpers, approaches, foul lights, gutters and masking units.
“Business
Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or
required by law to remain closed; provided that when used in connection with a LIBO Rate Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
“Call/Put
Agreement” means the Call/Put Agreement dated on or about the date hereof by and among the Credit Support Provider and the Administrative
Agent, in form and substance satisfactory to the Administrative Agent.
“Call Right” has the meaning set forth
in the Call/Put Agreement.
“Capital
Expenditures” means, as applied to any Person for any period, the aggregate amount, without duplication, of all expenditures
(whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases)
that in accordance with GAAP, are, or are required to be included as, capital expenditures on the consolidated statement of cash flows
for such Person for such period.
“Capital
Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP (but subject to Section 1.04(c)), is or should be accounted for as a capital lease on the balance
sheet of that Person.
“Capital
Lease Obligations” means, with respect to any Person, the amount of obligations attributable to any Capital Lease capitalized
as a liability on the balance sheet (excluding the footnotes thereto) of such Person in accordance with GAAP.
“Capital
Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but excluding
for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing.
“Captive
Insurance Subsidiary” means any Restricted Subsidiary of the Borrower that is subject to regulation as an insurance company
(or any Restricted Subsidiary thereof).
“Cash”
or “cash” means money, currency or a credit balance in any Deposit Account, in each case determined in accordance with
GAAP.
“Cash
Equivalents” means, as at any date of determination, (a) readily marketable securities (i) issued or directly and
unconditionally guaranteed or insured as to interest and principal by the U.S., U.K., Canada or a member state of the European Union
or any political subdivision thereof or (ii) issued by any agency or instrumentality of the U.S., U.K., Canada or a member state of
the European Union or any political subdivision thereof, the obligations of which are backed by the full faith and credit of the
U.S., U.K., Canada or a member state of the European Union or any political subdivision thereof, in each case maturing within two
years after such date and, in each case, including repurchase agreements and reverse repurchase agreements relating thereto; (b)
readily marketable direct obligations issued by any state of the U.S. or any political subdivision of any such state or any public
instrumentality thereof or by any foreign government, in each case maturing within two years after such date and having, at the time
of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither
S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized statistical
rating agency) and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (c) commercial paper
maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at
least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized statistical rating agency); (d) deposits, money market
deposits, time deposit accounts, certificates of deposit or bankers’ acceptances (or similar instruments) maturing within one
year after such date and issued or accepted by any Lender or “Lender” in respect of the Pari First Lien Facility
documented by the Pari First Lien Credit Agreement or by any bank organized under, or authorized to operate as a bank under, the
laws of the U.S., any state thereof or the District of Columbia or any political subdivision thereof or any foreign bank or its
branches or agencies and that has capital and surplus of not less than $75,000,000 and, in each case, repurchase agreements and
reverse repurchase agreements relating thereto; (e) securities with maturities of six months or less from the date of acquisition
backed by standby letters of credit issued by any commercial bank having capital and surplus of not less than $75,000,000; (f)
Indebtedness or Preferred Capital Stock issued by Persons with a rating of “BBB-” or higher from S&P or
“Baa3” or higher from Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating
of another nationally recognized statistical rating organization) with maturities of 12 months or less from the date of acquisition;
(g) bills of exchange issued in the U.S., U.K., Canada, a member state of the European Union or Japan eligible for rediscount at the
relevant central bank and accepted by a bank (or any dematerialized equivalent); (h) solely with respect to any Captive Insurance
Subsidiary, any investment that such Captive Insurance Subsidiary is not prohibited to make in accordance with applicable law; and
(i) shares or other interests of any investment company, money market mutual fund or other money market or enhanced high yield fund
that invests 95% or more of its assets in instruments of the types specified in clauses (a) through (h) above (which
investment company or fund may also hold Cash pending investment or distribution).
The term “Cash
Equivalents” shall also include (x) foreign currencies (in addition to Canadian dollars, Euros, Pound Sterling, Mexican Pesos, any
national currency of any member state of the European Union and any other currency held by the Borrower or any Restricted Subsidiary in
the ordinary course of business); provided that such amounts, if received by the Borrower or any Restricted Subsidiary, are converted
into Dollars, Canadian dollars, Euros, Pound Sterling, Mexican Pesos, any national currency of any member state of the European Union
or any other currency held by the Borrower or any Restricted Subsidiary in the ordinary course of business as promptly as practicable
(and in any event within ten Business Days following receipt thereof), (y) Investments of the type and maturity described in clauses
(a) through (i) above of foreign obligors, which Investments or obligors (or the parent companies thereof) have the ratings
described in such clauses or equivalent ratings from comparable foreign rating agencies and (z) other short-term Investments utilized
by Foreign Subsidiaries in accordance with normal investment practices for cash management in Investments analogous to the Investments
described in clauses (a) through (i) and in this paragraph.
“Change in Law” means (a)
the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender (or, for
purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the
Closing Date (other than any such request, guideline or directive to comply with any law, rule or regulation that was in effect on
the Closing Date). For purposes of this definition and Section 2.15, (x) the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in
implementation thereof and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or U.S. regulatory authorities, in
each case pursuant to Basel III, shall in each case described in clauses (a), (b) and (c) above, be deemed to
be a Change in Law, regardless of the date enacted, adopted, issued or implemented.
“Change of Control” means the earliest
to occur of:
(a) at
any time prior to a Qualifying IPO, the Permitted Holders ceasing to beneficially own, either directly or indirectly (within the meaning
of Rule 13d-3 and Rule 13d-5 under the Exchange Act as in effect on the Closing Date), Capital Stock representing more than 50% of the
total voting power of all of the outstanding voting Capital Stock of Holdings;
(b) at
any time on or after a Qualifying IPO, the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2)
of the Exchange Act as in effect on the Closing Date), including any group acting for the purpose of acquiring, holding or disposing of
Securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act as in effect on the Closing Date), but excluding (i) any Employee
Benefit Plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) one or more Permitted Holders
and (iii) any underwriter in connection with any Qualifying IPO, of Capital Stock of Holdings representing more than the greater of (x)
35% of the total voting power of all of the outstanding voting Capital Stock of Holdings and (y) the percentage of the total voting power
of all of the outstanding voting Capital Stock of Holdings collectively owned, directly or indirectly, beneficially by the Permitted Holders;
and
(c) the
Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of Holdings (other than during the pendency of any Holdings Reorganization
Transaction or Permitted Reorganization).
Notwithstanding the
preceding or any provision of Section 13d-3 of the Exchange Act as in effect on the Closing Date, (i) a Person or group shall not be
deemed to beneficially own Capital Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant
agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition
of the Capital Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more
Permitted Holders, the issued and outstanding Capital Stock of Holdings owned, directly or indirectly, by any Permitted Holders that
are part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes
of determining whether a Change of Control has occurred so long as one or more Permitted Holders hold in excess of 50% of the issued
and outstanding Capital Stock owned, directly or indirectly, by such group and (iii) a Person or group will not be deemed to
beneficially own the Capital Stock of another Person as a result of its ownership of the Capital Stock or other securities of such
other Person’s parent entity (or related contractual rights) unless (A) it owns 50% or more of the total voting power of the
Capital Stock entitled to vote for the election of directors or board of managers of such parent entity and (B) such directors or
managers elected by the Person or group have a majority of the aggregate votes on the board of directors (or similar body) of such
parent entity.
“Charge” means any fee, loss, charge, expense,
cost, accrual or reserve of any kind.
“Class”, when used in
reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial Revolving
Loans or Additional Revolving Loans of any series established as a separate “Class” pursuant to Section
9.02(c)(ii), (b) any Commitment, refers to whether such Commitment is an Initial Revolving Credit Commitment or an Additional
Revolving Credit Commitment of any series established as a separate “Class” pursuant to Section 9.02(c)(ii), (c)
any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class and (d) any Revolving Credit Exposure,
refers to whether such Revolving Credit Exposure is attributable to a Revolving Credit Commitment of a particular Class (or
Revolving Loans incurred under a Revolving Credit Commitment of a particular Class).
“Closing Date” means
the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02), which
date is September 25, 2020.
“CNI
Growth Amount” means, at any date of determination, an amount (which amount shall not be less than zero) equal to 50% of Consolidated
Net Income for the cumulative period from the first day of the Fiscal Quarter of the Borrower during which the Pari First Lien Closing
Date occurred to and including the last day of the most recently ended Fiscal Quarter of the Borrower prior to such date for which consolidated
financial statements of the Borrower are internally available (treated as one accounting period).
“Code” means the Internal Revenue Code
of 1986.
“Collateral”
means any and all property of any Loan Party subject to a Lien under any Collateral Document and any and all other property of any Loan
Party, now existing or hereafter acquired, that is or becomes subject to a Lien pursuant to any Collateral Document to secure the Obligations.
For the avoidance of doubt, in no event shall “Collateral” include any Excluded Assets.
“Collateral
and Guarantee Requirement” means, at any time, subject to (x) the applicable limitations set forth in this Agreement and/or
any other Loan Document (including any Acceptable Intercreditor Agreement) and (y) the time periods (and extensions thereof) set forth
in Section 5.12, the requirement that:
(a) the
Administrative Agent (or, in the case of clause (ii), the Pari First Lien Agent as its bailee) shall have received;
(i) (A)
a joinder to the Loan Guaranty in substantially the form attached as an exhibit thereto, (B) a supplement to the Security Agreement in
substantially the form attached as an exhibit thereto, (C) if the respective Restricted Subsidiary required to comply with the requirements
set forth in this definition pursuant to Section 5.12 owns registrations of or applications for U.S. Patents, U.S. Trademarks and/or
U.S. Copyrights that constitute Collateral, an Intellectual Property Security Agreement in substantially the form attached as an exhibit
hereto, (D) a completed Perfection Certificate, (E) Uniform Commercial Code financing statements in appropriate form for filing in such
jurisdictions as the Administrative Agent may reasonably request and (F) an executed joinder to the Intercreditor Agreement in substantially
the form attached as an exhibit thereto; and
(ii) each
item of Collateral required to be delivered in physical form on or prior to such time pursuant to the Collateral Documents.
(b) the Administrative Agent
shall have received with respect to any Material Real Estate Asset (other than an Excluded Asset) acquired after the Closing Date, a
Mortgage and any necessary UCC fixture filing in respect thereof, in each case together with, to the extent customary and appropriate
(as reasonably determined by the Administrative Agent and the Borrower):
(i) evidence
that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any corresponding UCC
or equivalent fixture filing are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent
may deem reasonably necessary in order to create a valid and subsisting Lien on such Material Real Estate Asset in favor of the Administrative
Agent for the benefit of the Secured Parties, (B) such Mortgage and any corresponding UCC or equivalent fixture filings have been duly
recorded or filed, as applicable and (C) all filing and recording taxes and fees have been paid or otherwise provided for in a manner
reasonably satisfactory to the Administrative Agent;
(ii) a
fully paid policy of lender’s title insurance (a “Mortgage Policy”) in an amount reasonably acceptable to the
Administrative Agent (not to exceed the fair market value of such Material Real Estate Asset (as determined by the Borrower in good faith))
issued by a nationally recognized title insurance company in the applicable jurisdiction that is reasonably acceptable to the Administrative
Agent, insuring the relevant Mortgage as having created a valid subsisting Lien on the real property described therein with the ranking
or the priority which it is expressed to have in such Mortgage, subject only to Permitted Liens, together with such endorsements, coinsurance
and reinsurance as the Administrative Agent may reasonably request to the extent the same are available in the applicable jurisdiction;
(iii) a
customary legal opinion of local counsel for the relevant Loan Party in the jurisdiction in which such Material Real Estate Asset is located
and, if applicable, in the jurisdiction of formation of the relevant Loan Party, in each case as the Administrative Agent may reasonably
request; and
(iv) (A)
appraisals (if required under the Financial Institutions Reform Recovery and Enforcement Act of 1989, as amended) and (B) “Life-of-Loan”
flood certifications under Regulation H (together with evidence of federal flood insurance for any such Flood Hazard Property); provided
that the Administrative Agent may in its reasonable discretion accept any existing appraisal so long as such existing appraisal satisfies
any applicable local law requirements and sufficient for the applicable title insurance company to issue the endorsements referenced in
clause (ii) above.
Notwithstanding
any provision of any Loan Document to the contrary, if any mortgage tax or similar tax or charge is owed on the entire amount of the Obligations
evidenced hereby in connection with the delivery of a mortgage or UCC fixture filing pursuant to clause (b) above, then, to the extent
permitted by, and in accordance with, applicable Requirements of Law, the amount of such mortgage tax or similar tax or charge shall be
calculated based on the lesser of (x) the amount of the Obligations allocated to the applicable Material Real Estate Asset and (y) the
fair market value of the applicable Material Real Estate Asset at the time the Mortgage is entered into and determined in a manner reasonably
acceptable to Administrative Agent and the Borrower. Notwithstanding anything herein to the contrary, no Mortgage will be executed and
delivered with respect to any Material Real Estate Asset pursuant to the foregoing until the Administrative Agent has received written
notice of such Mortgage at least 45 days prior to such execution and delivery and has confirmed receipt of satisfactory flood due diligence
and evidence of compliance with the applicable Flood Insurance Laws.
“Collateral
Documents” means, collectively, (i) the Security Agreement, (ii) each Mortgage (if any), (iii) each Intellectual Property Security
Agreement, (iv) each Perfection Certificate, (v) any supplement to any of the foregoing delivered to the Administrative Agent pursuant
to the definition of “Collateral and Guarantee Requirement” and (vi) each of the other instruments and documents pursuant
to which any Loan Party grants a Lien on any assets as security for payment of the Obligations.
“Commercial Tort Claim” has the meaning
set forth in Article 9 of the UCC.
“Commitment” means,
with respect to each Lender, such Lender’s Initial Revolving Credit Commitment and Additional Commitment, as applicable, in effect
as of such time.
“Commitment
Fee Rate” means, on any date (a) with respect to the Initial Revolving Credit Commitment, subject to the provisions of the last
paragraph hereof, 1.75% per annum and (b) with respect to Additional Revolving Credit Commitments of any Class, the rate or rates per
annum specified in the applicable Refinancing Amendment.
“Commitment Schedule” means the Schedule
attached hereto as Schedule 1.01(a).
“Commodity Exchange Act” means the Commodity
Exchange Act (7 U.S.C. § 1 et seq.).
“Company Competitor” means any competitor of the Borrower and/or any of its
subsidiaries.
“Compliance Certificate”
means a Compliance Certificate substantially in the form of Exhibit C.
“Compounded
SOFR” means the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate,
and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as a mechanism to determine
the interest amount payable prior to the end of each Interest Period) being established by the Administrative Agent in accordance with:
(1) the
rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining
compounded SOFR; provided that:
(2) if,
and to the extent that, the Administrative Agent determines that Compounded SOFR cannot be determined in accordance with clause (1) above,
then the rate, or methodology for this rate, and conventions for this rate that the Administrative Agent determines in its reasonable
discretion are substantially consistent with any evolving or then-prevailing market convention for determining compounded SOFR for dollar-denominated
syndicated credit facilities at such time;
provided,
further, that if the Administrative Agent decides that any such rate, methodology or convention determined in accordance with clause
(1) or clause (2) is not administratively feasible for the Administrative Agent, then Compounded SOFR will be deemed unable to be determined
for purposes of the definition of “Benchmark Replacement.”
“Confidential Information” has the meaning
assigned to such term in Section 9.13.
“Consolidated Adjusted
EBITDA” means, as to any Person for any period, an amount determined for such Person and its Restricted Subsidiaries on a consolidated
basis equal to the total of (a) Consolidated Net Income for such period plus (b) the sum, without duplication, of (to the extent
deducted in calculating Consolidated Net Income, other than in respect of clauses (x), (xi), (xii), (xiv),
(xix), (xx), (xxi) and (xxii) below) the amounts of:
(i) Consolidated Interest
Expense (including (A) fees and expenses paid to the Administrative Agent in connection with its services hereunder, (B) other bank,
administrative agency (or trustee) and financing fees (including rating agency fees and other fees in respect of any Pari First Lien
Facility), (C) costs of surety bonds in connection with financing activities (whether amortized or immediately expensed) and (D)
commissions, discounts and other fees and charges owed with respect to revolving commitments, letters of credit, bank guarantees,
bankers’ acceptances or any similar facilities or financing and hedging agreements);
(ii) (A)
Taxes paid and any provision for Taxes, including income, profits, capital, foreign, federal, state, local, franchise and similar Taxes,
property Taxes, foreign withholding Taxes and foreign unreimbursed value added Taxes (including penalties and interest related to any
such Tax or arising from any Tax examination, and including pursuant to any Tax sharing arrangement or as a result of any Tax distribution)
of such Person paid or accrued during the relevant period and (B) any payments to a Parent Company in respect of Taxes permitted to be
made hereunder;
(iii) (A)
depreciation, (B) amortization, (C) any impairment Charge (including any bad debt expense) and (D) any asset write-off and/or write-down;
(iv) any
non-cash Charge, including the excess of rent expense over actual Cash rent paid, including the benefit of lease incentives (in the case
of a charge) during such period due to the use of straight line rent for GAAP purposes (provided that if any such non-Cash Charge
represents an accrual or reserve for potential Cash items in any future period, such Person may determine not to add back such non-Cash
Charge in the then-current period);
(v) [reserved];
(vi) Receivables
Fees and the amount of loss or discount on the sale of Receivables Facility Assets and related assets to a Receivables Subsidiary in connection
with a Receivables Facility;
(vii) the
amount of management, monitoring, consulting, transaction, advisory, termination and similar fees and related indemnities and expenses
(including reimbursements), paid or accrued and payments made to any Investor (and/or its Affiliates or management companies) for any
financial advisory, consulting, financing, underwriting or placement services or in respect of other investment banking activities and
other transaction fees, and payments to outside directors of the Borrower or a Parent Company actually paid by or on behalf of, or accrued
by, such Person or any of its subsidiaries; provided that such payment is permitted under this Agreement;
(viii) [reserved];
(ix) the
amount of earn-out and other contingent consideration obligations (including to the extent accounted for as bonuses, compensation or
otherwise) incurred in connection with (A) the Transactions, (B) acquisitions and Investments completed prior to the Closing Date
(including the Acquisition Transactions) and (C) any acquisition or other Investment permitted by this Agreement, in each case,
which is paid or accrued during the applicable period;
(x) pro
forma “run rate” cost savings, operating expense reductions, operational improvements and cost synergies (collectively, “Expected
Cost Savings”) (net of actual amounts realized) (1) that are reasonably identifiable, factually supportable and projected by
the Borrower in good faith to result from actions that have been taken or with respect to which substantial steps have been taken or are
expected to be taken (in the good faith determination of such Person) or (2) that were identified to the Pari First Lien Agent prior to
the Pari First Lien Closing Date (including by inclusion in the Sponsor’s model and quality of earnings summaries delivered to the
arrangers for the Pari First Lien Credit Agreement on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case of
the quality of earnings summary)) related to (A) the Acquisition Transactions and (B) any permitted asset sale, acquisition (including
the commencement of activities constituting a business line), combination, Investment, Disposition (including the termination or discontinuance
of activities constituting a business line), operating improvement, restructuring, cost savings initiative, any similar initiative (including
the effect of increased pricing in customer contracts) and/or specified transaction, in each case prior to, on or after the Pari First
Lien Closing Date (any such operating improvement, restructuring, cost savings initiative or similar initiative or specified transaction,
a “Cost Saving Initiative”) (in each case, calculated on a Pro Forma Basis as though such Expected Cost Savings and/or
Cost Savings Initiative had been realized in full on the first day of such period); provided, that the results of such Expected
Cost Savings and/or Cost Saving Initiatives are projected by the Borrower in good faith to result from actions that have been taken or
with respect to which steps have been taken or are expected to be taken (in the good faith determination of the Borrower) within 24 months
after (i) with respect to the Acquisition Transactions, the Pari First Lien Closing Date and (ii) with respect to any Cost Savings Initiative,
the date of any such operating improvement, restructuring, cost savings initiative or similar initiative or specified transaction;
(xi) Charges attributable
to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings initiatives (including
Cost Saving Initiatives), cost rationalization programs, operating expense reductions and/or synergies and/or similar initiatives
and/or programs (including in connection with any integration, restructuring or transition, any reconstruction, decommissioning,
recommissioning or reconfiguration of fixed assets for alternative uses, any office or facility opening and/or pre-opening),
including the following: any inventory optimization program and/or any curtailment, any business optimization Charge, any
restructuring Charge (including any Charge relating to any tax restructuring), any Charge relating to the closure or consolidation
of any office or facility (including but not limited to rent termination costs, moving costs and legal costs), any systems
implementation Charge, any severance Charge, any one time compensation Charge, any Charge relating to entry into a new market, any
Charge relating to rights fee arrangements (including any early terminations thereof), any Charge relating to any strategic
initiative or contract, any signing Charge, any Charge relating to any entry into new markets and contracts (including, without
limitation, any renewals, extensions or other modifications thereof) or exiting a market or contract, any retention or completion
Charge or bonus, any recruiting Charge, any lease run-off Charge, any expansion and/or relocation Charge, any Charge associated with
any modification or curtailment to any pension and post-retirement employee benefit plan, any software or other intellectual
property development Charge, any Charge associated with new systems design, any implementation Charge, any transition Charge, any
Charge associated with improvements to IT or accounting functions, losses related to temporary decreases in work volume and expenses
related to maintaining underutilized personnel, any transition Charge, any Charge in connection with unused warehouse space, any
Charge relating to a new contract, any consulting Charge and/or any corporate development Charge; provided, that, in the case of any
such Charge, the results of any such action relating to such Charge are projected by the Borrower in good faith to be achieved
within 24 months of the undertaking thereof;
(xii) any
Charge with respect to any liability or casualty event, business interruption or any product recall, (i) so long as such Person has submitted
in good faith, and reasonably expects to receive payment in connection with, a claim for reimbursement of such amounts under its relevant
insurance policy within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to
the extent not so reimbursed within the next four Fiscal Quarters) or (ii) without duplication of amounts included in a prior period under
the preceding clause (i), to the extent such Charge is covered by insurance, indemnification or otherwise reimbursable by a third
party (whether or not then realized so long as the Borrower in good faith expects to receive proceeds arising out of such indemnification,
insurance or reimbursement obligation within the next four Fiscal Quarters) (it being understood that if the amount received in cash under
any such agreement in any period exceeds the amount of expense paid during such period, any excess amount received may be carried forward
and applied against any expense in any future period);
(xiii) unrealized
net losses in the fair market value of any arrangements under Hedge Agreements;
(xiv) the
amount of any Cash actually received by such Person (or the amount of the benefit of any netting arrangement resulting in reduced Cash
expenditures) during such period, and not included in Consolidated Net Income in any period, to the extent that any non-Cash gain relating
to such Cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA pursuant to clause (c)(i)
below for any previous period and not added back;
(xv) the
amount of any “bad debt” expense related to revenue earned prior to the Closing Date;
(xvi) any
net Charges included in the Borrower’s consolidated financial statements due to the application of Accounting Standards Codification
Topic 810 (“ASC 810”);
(xvii) the
amount of any non-controlling interest or minority interest Charge consisting of income attributable to minority equity interests of third
parties in any non- wholly owned Restricted Subsidiary;
(xviii) the
amount of any Charges (including facility operating losses) related to any de novo facility or any facility renovation, including any
construction, pre- opening/re-opening and start-up period prior to opening (or re-opening, as applicable), until such facility has been
open (or renovated) and operating for a period of 18 consecutive months;
(xix) the
amount of any earned or billed amounts or other revenue that is attributable to services performed during such period but is not included
in Consolidated Net Income for such period; it being understood that if such revenue is added back in calculating Consolidated Adjusted
EBITDA for such period, such revenue shall not be included in Consolidated Net Income in the period in which it is actually recognized;
(xx) any
other adjustments, exclusions and add-backs (x) reflected in the Sponsor’s model and quality of earnings summaries delivered to
the arrangers for the Pari First Lien Credit Agreement on or about June 4, 2017 (in the case of the model) and May 18, 2017 (in the case
of the quality of earnings summary) or (y) that are consistent with Regulation S-X;
(xxi) for
the first 18 months following the opening of a de novo facility, an amount annualized over the applicable period based on the greater
of (x) actual Consolidated Adjusted EBITDA attributable to such de novo facility for each month such de novo facility has been in operation
and (y) the 12-month average Consolidated Adjusted EBITDA for all similar facilities that have been in operation for a period of at least
18 months (as determined by the Borrower in good faith); provided that the aggregate amount added-back to Consolidated Adjusted
EBITDA solely pursuant to this clause (xxi) and clause (xxii) below (on an aggregate basis) shall not, for any period, exceed an amount
equal to 15% of Consolidated Adjusted EBITDA for such period, calculated prior to giving effect to such add-backs; and
(xxii) for
the first 18 months following the renovation of a facility, an amount annualized over the applicable period based on the greater of (x)
actual Consolidated Adjusted EBITDA attributable to performance gains for such facility for each month such facility has been in operation
post-renovation and (y) the 12-month average Consolidated Adjusted EBITDA attributable to performance gains for all similar facilities
that have been in operation for a period of at least 18 months (as determined by the Borrower in good faith); provided that the
aggregate amount added-back to Consolidated Adjusted EBITDA solely pursuant to clause (xxi) above and this clause (xxii) (on an aggregate
basis) shall not, for any period, exceed an amount equal to 15% of Consolidated Adjusted EBITDA for such period, calculated prior to giving
effect to such add-backs;
minus (c) to the extent such amounts increase Consolidated
Net Income:
(i) non-Cash
gains or income; provided that if any non-Cash gain or income represents an accrual or deferred income in respect of potential
Cash items in any future period, such Person may determine not to deduct such non-Cash gain or income in the current period;
(ii) unrealized
net gains in the fair market value of any arrangements under Hedge Agreements;
(iii) [reserved];
(iv) the
amount added back to Consolidated Adjusted EBITDA pursuant to clause (b)(xii) above (as described in such clause) to the extent
the relevant business interruption insurance proceeds were not received within the time period required by such clause;
(v) to
the extent that such Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause (b)(iv)
above, the cash payment in respect thereof in the relevant future period;
(vi) the
excess of actual Cash rent paid over rent expense during such period due to the use of straight line rent for GAAP purposes;
(vii) any
Consolidated Net Income included in the Borrower’s consolidated financial statements due to the application of ASC 810; and
(viii) the
amount of any non-controlling interest or minority interest gains from income attributable to minority equity interests of third parties
in any non-wholly owned Restricted Subsidiary;
(d) increased
or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards Codification
Topic 460 or any comparable regulation.
Notwithstanding
anything to the contrary herein, it is agreed that for the purpose of calculating the Total Leverage Ratio and the First Lien Leverage
Ratio and/or the amount of any basket based on a percentage of Consolidated Adjusted EBITDA for the four Fiscal Quarter period ended on
or about March 31, 2020, Consolidated Adjusted EBITDA for such four Fiscal Quarter period shall be deemed to be $190,188,000 (as adjusted
on a Pro Forma Basis, as applicable).
“Consolidated
First Lien Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total
Debt outstanding on such date that is secured by a first priority Lien on any asset or property of such Person or its Restricted Subsidiaries
that constitutes Collateral.
“Consolidated Interest
Expense” means, with respect to any Person for any period, the sum of (a) consolidated total interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including (without
duplication), amortization of any debt issuance cost and/or original issue discount, any premium paid to obtain payment, financial
assurance or similar bonds, any interest capitalized during construction, any non-cash interest payment, the interest component of
any deferred payment obligation, commissions, discounts, yield and other fees and charges (including any interest expense) related
to any Qualified Receivables Facility, the interest component of any payment under any Capital Lease (regardless of whether
accounted for as interest expense under GAAP), any commission, discount and/or other fee or charge owed with respect to any letter
of credit, bank guarantee and/or bankers’ acceptance or any similar facilities, any fee and/or expense paid to the
Administrative Agent in connection with its services hereunder, any other bank, administrative agency (or trustee) and/or financing
fee and any cost associated with any surety bond in connection with financing activities (whether amortized or immediately
expensed)), plus (b) any cash dividend paid or payable in respect of Disqualified Capital Stock during such period other than
to such Person or any Loan Party, plus (c) any net losses, obligations or payments arising from or under any Hedge Agreement
and/or other derivative financial instrument issued by such Person for the benefit of such Person or its subsidiaries, in each case
determined on a consolidated basis for such period. For purposes of this definition, interest in respect of any Capital Lease shall
be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capital
Lease in accordance with GAAP.
“Consolidated
Net Income” means, as to any Person (the “Subject Person”) for any period, the net income (or loss) of the
Subject Person and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined
in conformity with GAAP; provided that there shall be excluded, without duplication,
(a) (i)
any net income (loss) of any Person if such Person is not the Borrower or a Restricted Subsidiary, except that Consolidated Net Income
will be increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalent (or converted into Cash
or Cash Equivalents) by such Person to the Borrower or any other Restricted Subsidiary (subject, in the case of any such Restricted Subsidiary
that is not a Loan Party, to the limitations contained in clause (ii) below) and (ii) solely for the purpose of determining the amount
available for Restricted Payments under Section 6.04(a)(iii)(A) or the amount of Excess Cash Flow, any net income (loss) of any
Restricted Subsidiary (other than a Loan Party) if such Restricted Subsidiary is subject to restrictions on the payment of dividends or
the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Borrower or a Loan Party by operation of its
organizational documents or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable
thereto (other than (x) any restriction that has been waived or otherwise released and (y) any restriction set forth in the Loan Documents,
the documents relating to any Pari First Lien Facility, the documents relating to any “Incremental Equivalent Debt” (as defined
in the Pari First Lien Credit Agreement or any equivalent term under any Pari First Lien Facility) and the documents relating to any Replacement
Debt or Refinancing Indebtedness in respect of any of the foregoing), except that Consolidated Net Income will be increased by the amount
of dividends, distributions or other payments made in Cash or Cash Equivalents (or converted into Cash or Cash Equivalents) by the Restricted
Subsidiary (subject, in the case of a dividend, distribution or other payment to another Restricted Subsidiary, to the limitations in
this clause (ii));
(b) any
gain or Charge attributable to any asset Disposition (including asset retirement costs or sales or issuances of Capital Stock) or of returned
or surplus assets, in each case, outside the ordinary course of business (as determined in good faith by such Person);
(c) (i)
any gain or Charge from (A) any extraordinary item (as determined in good faith by such Person) and/or (B) any non-recurring or unusual
item (as determined in good faith by such Person) and/or (ii) any Charge associated with and/or payment of any legal settlement, fine,
judgment or order;
(d) (i)
any unrealized or realized net foreign currency translation or transaction gains or Charges impacting net income (including currency re-measurements
of Indebtedness, any net gains or Charges resulting from Hedge Agreements for currency exchange risk associated with the above or any
other currency related risk, any gains or Charges relating to translation of asset and liabilities denominated in a foreign currency and
those resulting from intercompany Indebtedness), (ii) any realized or unrealized gain or Charge in respect of (x) any obligation under
any Hedge Agreement as determined in accordance with GAAP and/or (y) any other derivative instrument pursuant to, in the case of this
clause (y), Financial Accounting Standards Board’s Accounting Standards Codification No. 815-Derivatives and Hedging and
(iii) unrealized gains or losses in respect of any Hedge Agreement and any ineffectiveness recognized in earnings related to qualifying
hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions,
in respect of Hedge Agreements;
(e) any net
gain or Charge with respect to (i) any disposed, abandoned, divested and/or discontinued asset, property or operation (other than,
at the option of the Borrower, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination
thereof), (ii) any disposal, abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the
option of the Borrower, relating to assets or properties held for sale or pending the divestiture or discontinuation thereof) and/or
(iii) any facility that has been closed during such period;
(f) any
net income or Charge (less all fees and expenses related thereto) attributable to (i) the early extinguishment or cancellation of Indebtedness
or (ii) any Derivative Transaction;
(g) (i)
any Charge incurred as a result of, in connection with or pursuant to (or incurred by a Parent Company to the extent permitted to be paid
by the Borrower hereunder) any management equity plan, profits interest or stock option plan or any other management or employee benefit
plan or agreement, pension plan (including a non-cash deemed finance Charge), any stock subscription or shareholders agreement or any
distributor equity plan or any similar equity plan or agreement (including any deferred compensation arrangement or trust), (ii) any Charge
incurred in connection with the rollover, acceleration or payout of Capital Stock held by management of any Parent Company, the Borrower
and/or any of its subsidiaries, in each case under this clause (ii), to the extent that any such cash Charge is funded with net
Cash proceeds contributed to the Subject Person as a capital contribution or as a result of the sale or issuance of Capital Stock (other
than Disqualified Capital Stock) of the Subject Person and (iii) the amount of payments made to optionholders of such Person or any Parent
Company in connection with, or as a result of, any distribution being made to equityholders of such Person or its Parent Companies, which
payments are being made to compensate such optionholders as though they were equityholders at the time of, and entitled to share in, such
distribution, in each case to the extent permitted hereunder;
(h) any
Charge that is established, adjusted and/or incurred, as applicable, (i) within 12 months after the Pari First Lien Closing Date
that is required to be established, adjusted or incurred, as applicable, as a result of the Acquisition Transactions in accordance
with GAAP, (ii) within 12 months after the closing of any other acquisition that is required to be established, adjusted or
incurred, as applicable, as a result of such acquisition in accordance with GAAP or (iii) as a result of any change in, or the
adoption or modification of, accounting principles or policies;
(i) any
(A) write-off or amortization made in such period of deferred financing costs and premiums paid or other expenses incurred directly in
connection with any early extinguishment of Indebtedness, (B) goodwill or other asset impairment charges, write-offs or write-downs and
(C) amortization of intangible assets (including amortization of goodwill, software, deferred or capitalized financing fees, debt issuance
costs, commissions and expenses and other intangible assets);
(j) (A) the
effects of adjustments (including the effects of such adjustments pushed down to the Subject Person and its subsidiaries) in
component amounts required or permitted by GAAP (including, without limitation, in the inventory, property and equipment, lease,
rights fee arrangements, software, goodwill, intangible asset, in-process research and development, deferred revenue, advanced
billing and debt line items thereof), resulting from the application of recapitalization accounting or acquisition accounting, as
the case may be, in relation to the Transactions or any consummated acquisition or similar Investment or the amortization or write-off of any amounts thereof (including any write-off of in process research and development) and/or (B) the cumulative effect of any
change in accounting principles or policies (effected by way of either a cumulative effect adjustment or as a retroactive
application, in each case, in accordance with GAAP) (except that, if the Borrower determines in good faith that the cumulative
effects thereof are not material to the interests of the Lenders, the effects of any change in any such principles or policies may
be included in any subsequent period after the Fiscal Quarter in which such change, adoption or modification was made);
(k) the
income or loss of any Person accrued prior to the date on which such Person became a Restricted Subsidiary of such Subject Person or is
merged into or consolidated with such Subject Person or any Restricted Subsidiary of such Subject Person or the date that such other Person’s
assets are acquired by such Subject Person or any Restricted Subsidiary of such Subject Person (except to the extent required for any
calculation of Consolidated Adjusted EBITDA on a Pro Forma Basis in accordance with Section 1.04);
(l) any
deferred Tax expense associated with any tax deduction or net operating loss arising as a result of the Transactions, or the release of
any valuation allowance related to any such item;
(m) [reserved];
(n) earn-out,
non-compete and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments thereof
and purchase price adjustments, including in respect of any acquisition consummated prior to the Pari First Lien Closing Date;
(o) [reserved];
(p) (A)
Transaction Costs, (B) any Charges incurred (1) in connection with any transaction (in each case, regardless of whether consummated),
whether or not permitted under this Agreement, including any issuance and/or incurrence of Indebtedness and/or any issuance and/or offering
of Capital Stock (including, in each case, by any Parent Company), any Investment, any acquisition, any Disposition, any recapitalization,
any merger, consolidation or amalgamation, becoming a standalone company, any option buyout or any repayment, redemption, refinancing,
amendment or modification of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums
and prepayment penalties) or any similar transaction, and/or (2) in connection with any Qualifying IPO (whether or not consummated), (C)
the amount of any Charges that are actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions
or similar agreements or insurance (it being understood that if the amount received in cash under any such agreement in any period exceeds
the amount of expense paid during such period, any excess amount received may be carried forward and applied against any expense in any
future period); provided that in respect of any reimbursable Charge that is added back in reliance on clause (C) above,
such relevant Person in good faith expects to receive reimbursement for such Charge within the next four Fiscal Quarters (with a deduction
in the applicable future period for any amount so added back to the extent not so reimbursed within the next four Fiscal Quarters) and/or
(D) Public Company Costs;
(q) non-cash
Charges incurred or accrued in connection with any single or one-time event (as determined in good faith by such Person), including
in connection with (A) the Transactions, the Acquisition Transactions, the Amendment No. 1 Transactions, the Amendment No. 2
Transactions and/or any acquisition consummated after the Pari First Lien Closing Date (including legal, accounting and other
professional fees and expenses incurred in connection with acquisitions and other Investments made prior to the Pari First Lien
Closing Date), (B) the closing, consolidation or reconfiguration of any facility during such period or (C) one-time consulting
costs;
(r) non-cash
compensation Charges and/or any other non-cash Charges arising from the granting of any stock, stock option or similar arrangement (including
any profits interest), the granting of any restricted stock, stock appreciation right and/or similar arrangement (including any repricing,
amendment, modification, substitution or change of any such stock option, restricted stock, stock appreciation right, profits interest
or similar arrangement or the vesting of any warrant); and
(s) to
the extent such amount would otherwise increase Consolidated Net Income, Taxes paid (including pursuant to any Tax sharing arrangement)
in cash (including, to the extent paid in cash, Taxes arising out of any tax examination) and Tax distributions made in cash during such
period.
In addition,
to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, Consolidated Net Income
will include the proceeds of business interruption insurance in an amount representing the earnings for the applicable period that such
proceeds are intended to replace (whether or not received so long as the Borrower in good faith expects to receive such proceeds within
the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent not so received
within the next four Fiscal Quarters)).
“Consolidated
Total Assets” means, as to any Person, at any date, all amounts that would, in conformity with GAAP, be set forth opposite the
caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person at such date.
“Consolidated
Total Debt” means, as to any Person at any date of determination, the aggregate principal amount of all third party debt for
borrowed money (including payments or disbursements pursuant to letters of credit issued under any Pari First Lien Facility that have
not been reimbursed within three Business Days and the outstanding principal balance of all Indebtedness of such Person represented by
notes, bonds and similar instruments), Attributable Debt and purchase money Indebtedness (but excluding, for the avoidance of doubt, undrawn
letters of credit), in each case of such Person; provided that “Consolidated Total Debt” shall be calculated (i) net
of the Unrestricted Cash Amount, (ii) to exclude any obligation, liability or indebtedness of such Person if, upon or prior to the maturity
thereof, such Person has irrevocably deposited with the proper Person in trust or escrow the necessary funds (or evidences of indebtedness)
for the payment, redemption or satisfaction of such obligation, liability or indebtedness, and thereafter such funds and evidences of
such obligation, liability or indebtedness or other security so deposited are not included in the calculation of the Unrestricted Cash
Amount, (iii) to exclude obligations under any Derivative Transaction, any Qualified Receivables Facility, or under any Indebtedness that
is non-recourse to the Borrower and its Restricted Subsidiaries and (iv) to exclude any iStar Exchange or Excluded Property Transaction.
“Consolidated
Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.
“Consolidated
Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by
which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of
the end of such period; provided that there shall be excluded (a) the effect of reclassification during such period between
current assets and long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior
period to give effect to such reclassification), (b) the effect of any Disposition of any Person, facility or line of business or
acquisition of any Person, facility or line of business during such period, (c) the effect of any fluctuations in the amount of
accrued and contingent obligations under any Hedge Agreement and (d) the application of purchase or recapitalization accounting.
“Contractual
Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties
is bound or to which it or any of its properties is subject.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Copyright”
means the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright whether published or unpublished,
copyright registrations and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages and payments
now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past or future
infringements for any of the foregoing; (d) the right to sue for past, present and future infringements of any of the foregoing; and (e)
all rights corresponding to any of the foregoing.
“Corresponding
Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding
business day adjustment) as the applicable tenor for the applicable Interest Period with respect to the LIBO Rate.
“Cost
Saving Initiative” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Covered Entity” means any of the following:
(i) a “covered entity” as that term
is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term
is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term
is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Credit Extension” means the making of
a Revolving Loan.
“Credit
Support Collateral” means any and all property of the Credit Support Provider subject to a Lien under the Credit Support Provider
Security Agreement.
“Credit
Support Documents” means (i) the Credit Support Provider Guaranty, (ii) the Credit Support Provider Security Agreement, (iii)
the Call/Put Agreement and (iv) such other agreements and documents executed and delivered by the Credit Support Provider in connection
with the foregoing documents and designated by the Borrower, the Credit Support Provider and the Administrative Agent as such from time
to time.
“Credit Support Provider” means Atairos
Group, Inc., a Cayman Islands exempted company.
“Credit
Support Provider Guaranty” means the Credit Support Provider Guaranty, dated on or about the date hereof, made by the Credit
Support Provider in favor of the Administrative Agent for the benefit of the Secured Parties.
“Credit
Support Provider Security Agreement” means the Credit Support Provider Security Agreement, dated on or about the date hereof,
by and among the Credit Support Provider, Atairos Management, L.P., and the Administrative Agent for the benefit of the Secured Parties,
in form and substance satisfactory to the Administrative Agent.
“Cure Amount” has the meaning assigned
to such term in Section 6.15(b).
“Cure Right” has the meaning assigned to
such term in Section 6.15(b).
“Current
Assets” means, at any date, all assets of the Borrower and its Restricted Subsidiaries which under GAAP would be classified
as current assets (excluding any (i) cash or Cash Equivalents (including cash and Cash Equivalents held on deposit for third parties by
the Borrower and/or any Restricted Subsidiary), (ii) permitted loans to third parties, (iii) deferred bank fees and derivative financial
instruments related to Indebtedness, (iv) the current portion of current and deferred Taxes and (v) assets held for sale or pension assets).
“Current Liabilities”
means, at any date, all liabilities of the Borrower and its Restricted Subsidiaries which under GAAP would be classified as current liabilities,
other than (i) current maturities of long term debt, (ii) outstanding revolving loans and letter of credit exposures, (iii) accruals
of Consolidated Interest Expense (excluding Consolidated Interest Expense that is due and unpaid), (iv) obligations in respect of derivative
financial instruments related to Indebtedness, (v) the current portion of current and deferred Taxes, (vi) liabilities in respect of
unpaid earnouts, (vii) accruals relating to restructuring reserves, (viii) liabilities in respect of funds of third parties on deposit
with the Borrower and/or any Restricted Subsidiary, (ix) the current portion of any Capital Lease, (x) any liabilities recorded in connection
with stock based awards, partnership interest based awards, awards of profits interests, deferred compensation awards and similar initiative
based compensation awards or arrangements and (xi) the current portion of any other long term liability for borrowed money.
“Debtor
Relief Laws” means the Bankruptcy Code of the U.S., and all other liquidation, conservatorship, bankruptcy, general assignment
for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the
U.S. or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default”
means any event or condition which upon notice, lapse of time or both would become an Event of Default.
“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
“Defaulting
Lender” means any Lender that has (a) defaulted in its obligations under this Agreement, including without limitation, to
make a Loan within two Business Days of the date required to be made by it hereunder, (b) notified the Administrative Agent or any
Loan Party in writing that it does not intend to satisfy any such obligation or has made a public statement to the effect that it
does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend credit
generally (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states
that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent,
together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied),
(c) failed, within two Business Days after the request of Administrative Agent or the Borrower, to confirm in writing that it will
comply with the terms of this Agreement relating to its obligations to fund prospective Loans; provided that such Lender
shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the
Administrative Agent, (d) become (or any parent company thereof has become) insolvent or been determined by any Governmental
Authority having regulatory authority over such Person or its assets, to be insolvent, or the assets or management of which has been
taken over by any Governmental Authority, (e) become (or any parent company thereof has become) the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment, unless in the case
of any Lender subject to this clause (e), the Borrower and the Administrative Agent shall each have determined that such
Lender intends, and has all approvals required to enable it (in form and substance satisfactory to each of the Borrower and the
Administrative Agent), to continue to perform its obligations as a Lender hereunder or (f) become (or any parent company thereof has
become) the subject of a Bail-In Action; provided that no Lender shall be deemed to be a Defaulting Lender solely by virtue
of the ownership or acquisition of any Capital Stock in such Lender or its parent by any Governmental Authority; provided that
such action does not result in or provide such Lender with immunity from the jurisdiction of courts within the U.S. or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject,
repudiate, disavow or disaffirm any contract or agreement to which such Lender is a party.
“Deposit
Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or
like organization, excluding, for the avoidance of doubt, any investment property (within the meaning of the UCC) or any account evidenced
by an instrument or negotiable certificate of deposit (within the meaning of the UCC).
“Derivative
Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement,
interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives rise to similar
credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction, including any cross-currency
interest-rate swap, any forward foreign-exchange contract, any currency option, and any other instrument linked to exchange rates that
gives rise to similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any equity-linked option,
any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d) any commodity
(including precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any forward commodity-linked
contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided, that, no phantom stock
or similar plan providing for payments only on account of services provided by current or former directors, officers, employees, members
of management, managers or consultants of the Borrower or its subsidiaries shall constitute a Derivative Transaction.
“Designated
Non-Cash Consideration” means the fair market value (as determined by the Borrower in good faith) of non-Cash consideration
received by the Borrower or any Restricted Subsidiary in connection with any Disposition pursuant to Section 6.07(h) and/or Section
6.08 that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting
forth the basis of such valuation (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection with
a subsequent sale or conversion of such Designated Non-Cash Consideration to Cash or Cash Equivalents).
“Disposition”
or “Dispose” means the sale, lease, sublease, or other disposition of any property of any Person. The fair market value
of any assets or other property Disposed of shall be determined by the Borrower in good faith.
“Disqualified
Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, prior to
91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such redemption is
in part, only such part coming into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued
shall constitute Disqualified Capital Stock), (b) is or becomes convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (i) debt securities or (ii) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time
on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued, (c) contains any mandatory repurchase
obligation or any other repurchase obligation at the option of the holder thereof (other than for Qualified Capital Stock), in whole or
in part, which may come into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being
understood that if any such repurchase obligation is in part, only such part coming into effect prior to 91 days following such Latest
Maturity Date at the time such Capital Stock is issued shall constitute Disqualified Capital Stock) or (d) provides for the scheduled
payments of dividends in Cash on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided
that any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the
holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer
thereof to redeem such Capital Stock upon the occurrence of any change of control, Qualifying IPO or any Disposition occurring prior to
91 days following the Latest Maturity Date at the time such Capital Stock is issued shall not constitute Disqualified Capital Stock if
such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior to the Termination
Date.
Notwithstanding the
preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees,
members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management,
managers or consultants, in each case in the ordinary course of business of Holdings, the Borrower or any Restricted Subsidiary,
such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer
thereof in order to satisfy applicable statutory or regulatory obligations and (B) no Capital Stock held by any Permitted Payee
shall be considered Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management
equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put
agreement, stockholder agreement or similar agreement that may be in effect from time to time.
Notwithstanding
the foregoing, in all cases both the Series A Preferred Stock and any preferred Capital Stock required by applicable Requirements of Law
to be issued in connection with obtaining liquor licenses shall be deemed not to be Disqualified Capital Stock hereunder.
“Disqualified Institution” means:
(a) (i)
any Person identified as such in writing to the Arranger on September 24, 2020 by way of email from the Sponsor (or its attorneys on
such date), (ii) any Person identified as such by the Borrower in writing after September 24, 2020 (and reasonably satisfactory) to
the Arranger (or if after the Closing Date, to the Administrative Agent in place of the Arranger), (iii) any Affiliate of any Person
described in clauses (i) or (ii) above that is clearly identifiable as an Affiliate of such Person on the basis of
such Affiliate’s name and (iv) any other Affiliate of any Person described in clauses (i) or (ii) above that is
identified by the Borrower in a written notice to the Arranger (if prior to the Closing Date) or the Administrative Agent (if after
the Closing Date) (each such person described in clauses (i) through (iv) above, a “Disqualified Lending
Institution”);
(b) (i)
any Person that is a Company Competitor and/or any Affiliate of any Company Competitor and is identified by the Borrower as such in writing
to the Arranger (if prior to the Closing Date) or the Administrative Agent (if after the Closing Date), (ii) any Affiliate of any Person
described in clause (i) above that is clearly identifiable as an Affiliate of such person on the basis of such Affiliate’s
name and (iii) any other Affiliate of any Person described in clause (i) above that is identified by the Borrower in a written
notice to the Arranger (if prior to the Closing Date) or to the Administrative Agent (if after the Closing Date); and
(c) any
Affiliate or Representative of any Arranger and/or any Initial Lender that is engaged as a principal primarily in private equity, mezzanine
financing or venture capital;
it being
understood and agreed that no written notice delivered pursuant to clauses (a)(ii), (a)(iv), (b)(i) and/or (b)(iii)
above shall apply retroactively to disqualify any Person that has previously acquired an assignment or participation interest in any Loans
if such Person was not a Disqualified Institution at the time of acquisition of such assignment or participation interest.
“Disqualified
Lending Institution” has the meaning assigned to such term in the definition of “Disqualified Institution”.
“Disregarded
Domestic Subsidiary” means any Domestic Subsidiary that has no material assets other than the Capital Stock and/or Indebtedness
of one or more Foreign Subsidiaries, IP Rights related to such Foreign Subsidiaries, Cash or Cash Equivalents, and other incidental assets
related thereto or that has no material assets other than Capital Stock and/or Indebtedness of one or more Disregarded Domestic Subsidiaries.
“Dollars” or “$”
refers to lawful money of the U.S.
“Domestic
Subsidiary” means any Restricted Subsidiary incorporated or organized under the laws of the U.S., any state thereof or the District
of Columbia.
“EAP
Substitution” has the meaning assigned to such term in the iStar Sale/Leaseback Documents.
“EAP Substitution
Property” means any property that is the subject of an EAP Substitution.
“Early Opt-in Election” means the
occurrence of:
(1) a determination by the
Administrative Agent, the Credit Support Provider and the Borrower that that dollar-denominated syndicated credit facilities being
executed at such time, or that include language similar to that contained in Section 2.14 are being executed or amended, as
applicable, to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate, and
(2) the election by the Administrative Agent,
the Credit Support Provider and the Borrower to declare that an Early Opt-in Election has occurred and the provision by the
Administrative Agent of written notice of such election to the Lenders, to which the Required Lenders do not object in writing
within three (3) Business Days of the receipt of such notice.
“EEA
Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA
Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA
Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ECF Prepayment Amount” has the meaning
assigned to such term in Section 2.11(b)(i).
“Eligible
Assignee” means (a) any Lender, (b) any commercial bank, insurance company, finance company, financial institution, any fund
that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), (c) any Affiliate
of any Lender or (d) the Credit Support Provider or any Affiliate thereof (excluding any portfolio company Affiliate); provided
that in any event, “Eligible Assignee” shall not include (i) any natural person or (ii) any Disqualified Institution or Defaulting
Lender.
“Employee
Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (regardless of whether such
plan is subject to ERISA) which is sponsored, maintained or contributed to by, or required to be contributed to by, Borrower or any of
its Subsidiaries.
“Environmental
Claim” means any written investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order
or other order, decree or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant
to or in connection with any actual or alleged violation of any Environmental Law; or (b) in connection with any actual or alleged Hazardous
Materials Activity.
“Environmental
Laws” means any and all applicable foreign or domestic, federal, state or local (or any subdivision thereof), statutes, ordinances,
orders, decrees, rules, regulations, judgments, Governmental Authorizations, or any other applicable binding requirements of Governmental
Authorities or the common law relating to (a) pollution or the protection of the environment or natural resources, human health and safety
(to the extent relating to the exposure to any hazardous material) or other environmental matters; or (b) any Hazardous Materials Activity
or any exposure of any Person to any hazardous material.
“Environmental
Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any Restricted Subsidiary directly or indirectly resulting from or based upon (a)
any actual or alleged violation of any Environmental Law, (b) any Hazardous Materials Activity, (c) exposure to any Hazardous Materials,
(d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other legally
binding arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity
Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof
to purchase or acquire any such equity interest, but excluding any debt securities convertible into any of the foregoing.
“ERISA” means the Employee Retirement Income
Security Act of 1974.
“ERISA Affiliate”
means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section
414(b) of the Code of which that Person is a member; and (b) any trade or business (whether or not incorporated) which is a member of
a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that Person is a member.
“ERISA
Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder
with respect to any Pension Plan (excluding those for which the 30- day notice period has been waived); (b) the failure to meet the minimum
funding standard of Section 412 of the Code with respect to any Pension Plan; (c) the filing of any request for or receipt of a minimum
funding waiver under Section 412 of the Code with respect to any Pension Plan; (d) engaging in a non- exempt prohibited transaction within
the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Pension Plan; (e) the provision by the administrator
of any Pension Plan pursuant to Section 4041(a)(2) or Section 302 of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (f) the withdrawal by the Borrower, any of its Restricted Subsidiaries or any of their
respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting
in liability to the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4063
or 4064 of ERISA; (g) the filing by the PBGC of judicial proceedings to terminate any Pension Plan; (h) the imposition of liability on
the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA
or by reason of the application of Section 4212(c) of ERISA; (i) a complete or partial withdrawal (within the meaning of Sections 4203
and 4205 of ERISA) of the Borrower, any of its Restricted Subsidiaries or any of their respective ERISA Affiliates from any Multiemployer
Plan if there is any potential liability therefor under Title IV of ERISA, or the receipt by the Borrower, any of its Restricted Subsidiaries
or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA,
or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; or (j) the incurrence of liability or the imposition
of a Lien pursuant to Section 436 or 430(k) of the Code or pursuant to ERISA with respect to any Pension Plan.
“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
person), as in effect from time to time.
“Event of Default” has the meaning assigned
to such term in Article 7.
“Excess Cash Flow” means, for any Excess
Cash Flow Period, an amount (if positive) equal to:
(a) the sum, without duplication, of the amounts for such period of the following:
(i) Consolidated
Adjusted EBITDA for such period without giving effect to clause (b)(x) of the definition thereof, plus
(ii) the Consolidated Working Capital Adjustment for such period, plus
(iii) cash
gains of the type described in clauses (b), (c), (d), (e) and (f) of the definition of “Consolidated
Net Income”, to the extent not otherwise included in calculating Consolidated Adjusted EBITDA (except to the extent such gains consist
of proceeds utilized in calculating Net Proceeds falling under paragraph (a) of the definition thereof or Net Insurance/Condemnation
Proceeds subject to Section 2.11(b)(ii)), plus
(iv) to
the extent not otherwise included in the calculation of Consolidated Adjusted EBITDA for such period, cash payments received by the Borrower
or any of its Restricted Subsidiaries with respect to amounts deducted from Excess Cash Flow in a prior period pursuant to clause (b)(vii)
below, minus
(b) the
sum, without duplication, of the amounts for such period (or, in the case of clauses (b)(i), (b)(iii), (b)(iv), (b)(x), (b)(xi), (b)(xiii)
and (b)(xiv), at the option of the Borrower, amounts after such period to the extent paid prior to the date of the applicable Excess Cash
Flow payment) of the following:
(i) the
aggregate principal amount of (i) all optional prepayments of Indebtedness (other than any (A) optional prepayment of Indebtedness that
is deducted in calculating the amount of any Excess Cash Flow payment in accordance with Section 2.11(b)(i) or (B) revolving Indebtedness
except to the extent any related commitment is permanently reduced in connection with such repayment), (ii) all mandatory prepayments
and scheduled repayments of Indebtedness and (iii) the aggregate amount of any premiums, make-whole or penalty payments actually paid
in Cash by the Borrower and/or any Restricted Subsidiary that are or were required to be made in connection with any prepayment of Indebtedness,
in each case, except to the extent financed with long- term funded Indebtedness (other than revolving Indebtedness), plus
(ii) [reserved], plus
(iii) Consolidated
Interest Expense to the extent paid or payable in Cash (including (A) fees and expenses paid to the Administrative Agent in connection
with its services hereunder, (B) other bank, administrative agency (or trustee) and financing fees (including rating agency fees and other
fees in respect of any Pari First Lien Facility), (C) costs of surety bonds in connection with financing activities (whether amortized
or immediately expensed) and (D) commissions, discounts and other fees and charges owed with respect to revolving commitments, letters
of credit, bank guarantees, bankers’ acceptances or any similar facilities or financing and Hedge Agreements), plus
(iv) Taxes
(including Taxes paid or payable pursuant to any Tax sharing arrangement or arrangements and/or any Tax distribution) paid or payable,
and provisions for Taxes, to the extent payable in Cash with respect to such Excess Cash Flow Period, plus
(v) [reserved], plus
(vi) any
foreign translation losses paid or payable in Cash (including any currency re-measurement of Indebtedness, any net gain or loss resulting
from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction
or any other currency-related risk) to the extent included in calculating Consolidated Adjusted EBITDA, plus
(vii) amounts
added back under (i) clauses (b)(xii), (b)(xiv), (b)(xix), (b)(xx), (b)(xxi) or (b)(xxii) of
the definition of “Consolidated Adjusted EBITDA” or (ii) the last paragraph of the definition of Consolidated Net Income with
respect to business interruption insurance, in each case to the extent such amounts have not yet been received by the Borrower or its
Restricted Subsidiaries, plus
(viii) an
amount equal to (A) all Charges either (1) excluded in calculating Consolidated Net Income or (2) added back in calculating Consolidated
Adjusted EBITDA, in each case, to the extent paid or payable in cash and (B) without duplication of amounts deducted in clause (c)(i)
of the definition of Consolidated Adjusted EBITDA, any non-cash item of gain or income included in calculating Consolidated Net Income,
plus
(ix) [reserved], plus
(x) to
the extent not expensed (or exceeding the amount expensed) during such period or not deducted (or exceeding the amount deducted) in calculating
Consolidated Net Income, the aggregate amount of Charges paid or payable in Cash by the Borrower and its Restricted Subsidiaries during
such period, other than to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness), plus
(xi) Cash
payments (other than in respect of Taxes, which are governed by clause (iv) above) made during such period for any liability the accrual
of which in a prior period did not reduce Consolidated Adjusted EBITDA and therefore increased Excess Cash Flow in such prior period (provided
there was no other deduction to Consolidated Adjusted EBITDA or Excess Cash Flow related to such payment), except to the extent financed
with long term funded Indebtedness (other than revolving Indebtedness), plus
(xii) [reserved], plus
(xiii) amounts
paid in Cash (except to the extent financed with long term funded Indebtedness (other than revolving Indebtedness)) during such period
on account of (A) items that were accounted for as non-Cash reductions of Consolidated Net Income or Consolidated Adjusted EBITDA in a
prior period and (B) reserves or amounts established in purchase accounting to the extent such reserves or amounts are added back to,
or not deducted from, Consolidated Net Income, plus
(xiv) the
amount of any payment of Cash made during such period to be amortized or expensed over a future period and recorded as a long-term asset,
plus
(xv) the
amount of any Tax obligation of the Borrower and/or any Restricted Subsidiary that is estimated in good faith by the Borrower as due and
payable (but is not currently due and payable) by the Borrower and/or any Restricted Subsidiary as a result of the repatriation of any
dividend or similar distribution of net income of any Foreign Subsidiary to the Borrower and/or any Restricted Subsidiary, plus
(xvi) to
the extent included in the calculation of Consolidated Adjusted EBITDA for such period, the amount of any insurance proceeds received
by the Borrower or any Restricted Subsidiary during such period under the Representation and Warranty Insurance Policy, plus
(xvii) the
aggregate amount of any extraordinary, unusual, special or non- recurring cash Charges paid or payable during such period (whether or
not incurred in such Excess Cash Flow Period) that were excluded in calculating Consolidated Adjusted EBITDA (including any component
definition used therein) for such period, plus
(xviii) to
the extent included in calculating Consolidated Adjusted EBITDA, the aggregate amounts received by the Borrower or any Restricted Subsidiary
pursuant to any iStar Exchange or Excluded Property Transaction.
“Excess Cash Flow Period”
means each full Fiscal Year of the Borrower (commencing with the Fiscal Year ending on or about June 30, 2020).
“Exchange Act” means
the Securities Exchange Act of 1934 and the rules and regulations of the SEC promulgated thereunder.
“Excluded Assets” means each of the following:
(a) any
asset (including any General Intangibles and any contract, instrument, lease, license, permit, agreement or other document, or any property
or other right subject thereto (including pursuant to a purchase money security interest, capital lease or similar arrangement or, in
the case of after-acquired property, pre-existing secured Indebtedness not incurred in anticipation of the acquisition by the Loan Party
of such property)) the grant or perfection of a security interest in which would (i) constitute a violation of a restriction in favor
of a third party (other than a Loan Party) or result in the abandonment, invalidation or unenforceability of any right or assets of the
relevant Loan Party, (ii) result in a breach, termination (or a right of termination) or default under any such contract, instrument,
lease, license, permit, agreement or other document (including pursuant to any “change of control” or similar provision) (there
being no requirement pursuant to any Loan Document to obtain any consent in respect thereof from any Person that is not also a Loan Party)
or (iii) permit any Person (other than any Loan Party) to amend any rights, benefits and/or obligations of the relevant Loan Party or
Restricted Subsidiary in respect of such relevant asset or permit such Person to require any Loan Party or any subsidiary of the Borrower
to take any action materially adverse to the interests of such subsidiary or Loan Party; provided, however, that any such
asset will only constitute an Excluded Asset under clause (i), clause (ii) or clause (iii) above to the extent such
violation or breach, termination (or right of termination), default or right to amend would not be rendered ineffective pursuant to Sections
9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable
Requirement of Law; provided, further, that any such asset shall cease to constitute an Excluded Asset at such time as the
condition causing such violation, breach, termination (or right of termination) or default or right to amend or require other actions
no longer exists and to the extent severable, the security interest granted under the applicable Collateral Document shall attach immediately
to any portion of such General Intangible or other right that does not result in any of the consequences specified in clauses (i)
through (iii) above,
(b) the
Capital Stock of any (i) Captive Insurance Subsidiary, (ii) Unrestricted Subsidiary, (iii) broker-dealer subsidiary, (iv) not-for-profit
subsidiary and/or (v) special purpose entity used for any securitization facility permitted hereunder or any Receivables Subsidiary,
(c) any (i)
foreign IP Rights and/or (ii) intent-to-use (or similar) Trademark application prior to the filing of a “Statement of
Use”, “Amendment to Allege Use” or similar filing with respect thereto, only to the extent, if any, that, and
solely during the period, in which, if any, the grant of a security interest therein may impair the validity or enforceability, or
result in the voiding of, such intent-to-use Trademark application or any registration issuing therefrom under applicable law,
(d) any asset
or property (including Capital Stock), the grant or perfection of a security interest in which would (A) require any governmental or
regulatory consent, approval, license or authorization (there being no requirement under any Loan Document to obtain the consent, approval,
license or authorization of any Governmental Authority or other Person (other than any Loan Party), including, without limitation, no
requirement to comply with the Federal Assignment of Claims Act or any similar statute), (B) be prohibited or restricted by applicable
Requirements of Law (including enforceable anti-assignment provisions of applicable Requirements of Law), except, in the case of this
clause (B), to the extent such prohibition would be rendered ineffective
under applicable anti-assignment provisions of the UCC of any relevant jurisdiction notwithstanding such prohibition, (C) trigger termination
of any contract pursuant to a “change of control” or similar provision or (D) result in adverse tax or regulatory consequences
to any Loan Party or any of its subsidiaries or Parent Companies as determined by the Borrower in good faith following consultation with
the Administrative Agent,
(e) (i) except
to the extent a security interest therein can be perfected by the filing of an “all-assets” UCC-1 financing statement, any
leasehold interest, (ii) any real property or real property interest that is not a Material Real Estate Asset, (iii) any real property
(including improvements) or real property interest (including improvements) that was leased by the Borrower or any of its Subsidiaries
and later deeded or conveyed to the Borrower or any other Loan Party, (iv) any real property (including improvements) or real property
interest (including improvements) owned by a Loan Party immediately prior to the Pari First Lien Closing Date and not required to be
subject to a mortgage or security interest pursuant to the terms hereof (including the real property (and improvements thereto) set forth
on Schedule 1.01(b) hereto) and (v) any Excluded Property,
(f) any
Capital Stock of any Person that is not a Wholly-Owned Restricted Subsidiary or that is an Immaterial Subsidiary,
(g) any Margin Stock,
(h) the
voting Capital Stock of any Foreign Subsidiary that is a “controlled foreign corporation” (as defined in Section 957(a) of
the Code) or Disregarded Domestic Subsidiary, other than 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary
or Disregarded Domestic Subsidiary, as applicable,
(i) any
Letter-of-Credit Right (other than to the extent a security interest in such Letter-of-Credit Right can be perfected by filing an “all-assets”
UCC financing statement, without need for any other action) and all Commercial Tort Claims,
(j) any
Cash or Cash Equivalents (other than Cash and Cash Equivalents representing (i) identifiable proceeds of other Collateral, a security
interest in which can be perfected through the filing of an “all-assets” UCC financing statement or which is perfected or
arises by law (including without limitation, the UCC), in each case without need for any action by any Loan Party or any Affiliate thereof
or (ii) held in the Funding Account),
(k) any Deposit Account
(other than the Funding Account) or commodity or securities account (including any securities entitlement and any related asset)
(except to the extent a security interest therein can be perfected through the filing of an “all assets” UCC financing
statement (without need for any other action); it being understood that Cash and Cash Equivalents representing identifiable proceeds
of other Collateral as referred to in the preceding clause (j) are not excluded hereby, and shall constitute Collateral (but any
other Cash or Cash Equivalents shall not constitute Collateral), but there shall be no requirement for any control agreement (or
similar agreement) other than in respect of the Funding Account),
(l) any
motor vehicle, airplane or other asset subject to a certificate of title (other than to the extent a security interest therein can be
perfected by filing an “all assets” UCC financing statement (without need for any other action) and without the requirement
to list any VIN, serial or similar number),
(m) any
governmental or regulatory license or state or local franchise, charter, consent, permit or authorization to the extent the granting of
a security interest therein is prohibited or restricted thereby or by applicable Requirements of Law; provided, however,
that any such asset will only constitute an Excluded Asset under this clause (m) to the extent such prohibition or restriction
would not be rendered ineffective pursuant to applicable anti-assignment provisions of the UCC of any relevant jurisdiction,
(n) Receivables
Facility Assets and related assets sold or otherwise transferred to a Receivables Subsidiary or otherwise pledged, transferred or sold
in connection with a Receivables Facility, factoring transaction or any similar arrangement permitted hereunder,
(o) any
asset with respect to which the Administrative Agent and the relevant Loan Party have determined in good faith that the cost, burden,
difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its operations and business in the
ordinary course of business) of obtaining or perfecting a security interest therein outweighs the benefit of a security interest to the
relevant Secured Parties afforded thereby, and
(p) any
league deposits to the extent identifiable as such pursuant to the ledgers maintained by the Loan Parties.
(q) subject
to the express written agreement of the Credit Support Provider, any other asset that the Pari First Lien Agent and the Borrower agree
is an “Excluded Asset” for purposes of any Pari First Lien Facility and any “Incremental Equivalent Debt” other
than this Revolving Facility (as defined in the Pari First Lien Credit Agreement or any equivalent term under any Pari First Lien Facility)
(other than in connection with the occurrence of the Pari First Lien Obligations Payment Date); provided that this clause (q) shall not
apply with respect to the Funding Account and/or any Cash, Cash Equivalents or other assets deposited therein or credited thereto.
Notwithstanding the foregoing or anything in
any Loan Document to the contrary, the Credit Support Collateral shall not constitute Excluded Assets and any exclusion or exception with
respect thereto shall only be as set forth in the Credit Support Documents.
“Excluded Property”
means any SLB Property, the properties (and improvements) set forth on Schedule 1.01(c) hereto, any EAP Substitution Property,
any other Real Estate Asset not required to be subject to a Mortgage in favor of the Administrative Agent and any other property purchased
with the proceeds of a Disposition of any of the foregoing.
“Excluded
Property Limited Recourse Financing” means any financing (other than a Sale and Lease-Back Transaction) with respect to an Excluded
Property that constitutes Limited Recourse Financing with respect to the Borrower or any Subsidiary.
“Excluded
Property Limited Recourse Financing Documents” means all definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the Pari First Lien Closing Date in connection
with any Excluded Property Limited Recourse Financing, in each case as the same may be amended, modified or supplemented from time to
time hereafter in accordance with the provisions thereof, and including all basic financing information and all other agreements, documents
and instruments relating to the Excluded Property Limited Recourse Financing and all exhibits and schedules to any of the foregoing.
“Excluded
Property Sale/Leaseback Transaction” means any Sale and Lease-Back Transaction with respect to one or more Excluded Properties
effected after the Pari First Lien Closing Date, including any amendment or modification of the iStar Sale/Leaseback or the iStar Sale/Leaseback
2014.
“Excluded
Property Sale/Leaseback Transaction Documents” means the definitive documentation, guarantees, agreements, certificates, instruments
and related ancillary documentation entered into by the Borrower or any Subsidiary after the Pari First Lien Closing Date in connection
with any Excluded Property Sale/Leaseback Transaction, in each case as the same may be amended, modified or supplemented from time to
time hereafter in accordance with the provisions thereof, and including all basic lease information and all other agreements, documents
and instruments relating to the Excluded Property Sale/Leaseback Transaction and all exhibits and schedules to any of the foregoing.
“Excluded
Property Transaction” means any Excluded Property Sale/Leaseback Transaction and any Excluded Property Limited Recourse Financing.
“Excluded
Property Transaction Documents” means the Excluded Property Sale/Leaseback Transaction Documents and any Excluded Property Limited
Recourse Financing Documents.
“Excluded Subsidiary” means:
(a) any Restricted Subsidiary that is not a Wholly-Owned Subsidiary,
(b) any Immaterial Subsidiary,
(c) any
Restricted Subsidiary that is prohibited or restricted by law, rule or regulation or contractual obligation from providing a Loan Guaranty
or that would require a governmental (including regulatory) or third party consent, approval, license or authorization to provide a Loan
Guaranty (including under any financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance
or similar legal principles) unless such consent has been received, it being understood that Holdings and its subsidiaries shall have
no obligation to obtain any such consent, approval, license or authorization,
(d) any not-for-profit subsidiary,
(e) any Captive Insurance Subsidiary or subsidiary that is a broker-dealer,
(f) any
special purpose entity (including a special purpose entity used for any permitted securitization or receivables facility or financing,
or established in connection with any iStar Exchange or Excluded Property Transaction) and any Receivables Subsidiary,
(g) any Foreign Subsidiary,
(h) (i)
any Disregarded Domestic Subsidiary or (ii) any Domestic Subsidiary that is a direct or indirect subsidiary of any Foreign Subsidiary
or any Disregarded Domestic Subsidiary,
(i) any Unrestricted Subsidiary,
(j) any
subsidiary acquired pursuant to a Permitted Acquisition or other Investment permitted by this Agreement that has assumed secured Indebtedness
not incurred in contemplation of such Permitted Acquisition or other Investment and any Restricted Subsidiary thereof that guarantees
such secured Indebtedness, in each case to the extent the terms of such secured Indebtedness prohibit such subsidiary from becoming a
Guarantor,
(k) [reserved],
(l) any
Restricted Subsidiary if the provision of a Loan Guaranty could reasonably be expected to result in adverse tax or regulatory consequences
to any Loan Party or any of its subsidiaries or Parent Companies as determined by the Borrower in good faith,
(m) any
other Restricted Subsidiary with respect to which, in the good faith judgment of the Administrative Agent and the Borrower, the burden
or cost of providing a Loan Guaranty outweighs the benefits afforded thereby, and
(n) any
other Restricted Subsidiary that the Pari First Lien Agent and the Borrower agree is an “Excluded Subsidiary” for purposes
of any Pari First Lien Facility and any “Incremental Equivalent Debt” (as defined in the Pari First Lien Credit Agreement
or any equivalent term under any Pari First Lien Facility) (other than in connection with the occurrence of the Pari First Lien Obligations
Payment Date).
“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or
on account of any obligation of any Loan Party hereunder, (a) Taxes imposed on (or measured by) its net income or franchise Taxes
(i) by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) any branch
profits taxes imposed by the U.S. or any similar tax imposed by any other jurisdiction described in clause (a), (c) in the
case of a Lender, any U.S. withholding tax that is imposed on amounts payable to such Lender at the time such Lender acquires an
interest in a Loan or Commitment (or designates a new lending office), except (i) pursuant to an assignment or designation of a new
lending office under Section 2.19 and (ii) to the extent that such Lender (or its assignor, if any) was entitled, at the time
of designation of a new lending office (or assignment), to receive additional amounts from any Loan Party with respect to such
withholding tax pursuant to Section 2.17, (d) any tax imposed as a result of a failure by the Administrative Agent or any
Lender to comply with Section 2.17(f) and (e) any withholding tax under FATCA.
“Expected Cost
Savings” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Facility”
means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or, except with respect
to Articles 5 and 6 hereof, heretofore owned, leased, operated or used by the Borrower or any of its Restricted Subsidiaries
or any of their respective predecessors or Affiliates.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreement entered into pursuant to Section 1471(b)(1) of the Code, and any law, regulation, rules, practice or other published administrative
guidance adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such section of the
Code.
“Federal Assignment
of Claims Act” means the Federal Assignment of Claims Act (41 U.S.C. § 15).
“Federal
Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s
federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York sets forth
on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as
the federal funds effective rate; provided that if such rate as determined above is at any time negative, the Federal Funds Effective
Rate at such time shall instead be zero.
“Fee
Letter” means that certain Amended and Restated Fee Letter, dated as of September 25, 2020, by and among, inter alios,
Borrower and the Arranger, as amended to date.
“Financial Covenant” means the covenant
in the first sentence of Section 6.15(a).
“First
Lien Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated First Lien Debt as of such date to
(b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “First
Lien Leverage Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries.
“Fiscal Quarter” means a fiscal quarter
of any Fiscal Year.
“Fiscal
Year” means the fiscal year of the Borrower ending on or about June 30 of each calendar year, as such fiscal year end may be
adjusted in accordance with the terms of this Agreement.
“Fixed Amounts” has the meaning assigned
to such term in Section 1.04(g).
“Flood
Hazard Property” means any Material Real Estate Asset subject to a Mortgage if any building included in such Material Real Estate
Asset is located in an area designated by the Federal Emergency Management Agency as having special flood hazards.
“Flood
Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of
1973, (iii) the National Flood Insurance Reform Act of 1994, (iv) the Flood Insurance Reform Act of 2004 and (v) the Biggert–Waters
Flood Insurance Reform Act of 2012, each as now or hereafter in effect or any successor statute thereto, and in each case, together with
all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing,
as amended or modified from time to time.
“Foreign
Asset Disposition” means a Disposition where the relevant asset is (A) the stock of or assets of a Foreign Subsidiary or (B)
one or more assets of the Borrower or any Restricted Subsidiary which are located outside the United States or any territory thereof.
“Foreign
Lender” means any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“Foreign Subsidiary” means any Restricted
Subsidiary that is not a Domestic Subsidiary.
“Funding Account” has the meaning assigned to such term in Section
2.03(f).
“GAAP” means generally
accepted accounting principles in the U.S. in effect and applicable to the accounting period in respect of which reference to GAAP is
made.
“General Intangibles” has the meaning set
forth in Article 9 of the UCC.
“Governmental
Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau,
court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the U.S.,
a foreign government or any political subdivision of either thereof.
“Governmental
Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental
Authority.
“Granting Lender” has the meaning assigned
to such term in Section 9.05(e).
“Guarantee”
of or by any Person (the “Guarantor”) means any obligation, contingent or otherwise, of the Guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “Primary
Obligor”) in any manner and including any obligation of the Guarantor (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner
of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other
monetary obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness
or monetary obligation, (e) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or
other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or
in part) or (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of any other
Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or any right, contingent or otherwise,
of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business, or customary and reasonable indemnity obligations
in effect on the Closing Date or entered into in connection with any acquisition, Disposition or other transaction permitted under this
Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made
or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person
in good faith.
“Hazardous
Materials” means any chemical, material, substance or waste, or any constituent thereof, which is prohibited, limited or regulated
by any Environmental Law due to its hazardous, toxic or similar characteristics, including any chemical, material, substance or waste
defined or listed as “hazardous” or “toxic” in any Environmental Law.
“Hazardous
Materials Activity” means the use, manufacture, possession, storage, holding, Release, threatened Release, discharge, placement,
generation, transportation, processing, treatment, abatement, removal, investigation, remediation, disposal, disposition or handling of
any Hazardous Material, and any corrective action or response action with respect to any of the foregoing.
“Hedge
Agreement” means any agreement with respect to any Derivative Transaction between any Loan Party or any Restricted Subsidiary
and any other Person.
“Hedging
Obligations” means, with respect to any Person, the obligations of such Person under any Hedge Agreement.
“Holdings”
means (a) initially, Bowlero (prior to the consummation of a transaction described in clause (b) of this definition) and (b) following
the consummation of a transaction permitted hereunder that results in a New Holdings, New Holdings.
“Holdings
Reorganization Transaction” means (a) the contribution by Holdings of 100% of the Capital Stock of the Borrower to a newly formed
domestic “shell” company owned or controlled by the Permitted Holders or (b) the merger or other consolidation of Holdings
with another Person that, after giving effect thereto, shall hold 100% of the Capital Stock of the Borrower, in each case, so long as,
contemporaneously therewith (as applicable) (i) New Holdings delivers to the Administrative Agent (or the Pari First Lien Agent as bailee
of the Administrative Agent) any new certificate issued (if any) to evidence the contributed Capital Stock of the Borrower and grants
a security interest in such Capital Stock in favor of the Administrative Agent pursuant to the Security Agreement or a joinder thereto
in a form reasonably satisfactory to the Administrative Agent and (ii) New Holdings assumes the Loan Guaranty provided by Holdings and
all other obligations of Holdings under this Agreement and each of the other Loan Documents to which Holdings is a party pursuant to a
supplement hereto or thereto that is reasonably acceptable to the Administrative Agent.
“IFRS”
means international accounting standards within the meaning of the IAS Regulation 1606/2002, as in effect from time to time (subject to
the provisions of Section 1.04), to the extent applicable to the relevant financial statements.
“Immaterial
Subsidiary” means, as of any date, any Restricted Subsidiary of the Borrower (a) that does not have assets in excess of
2.5% of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries and (b) that does not contribute Consolidated
Adjusted EBITDA in excess of 2.5% of the Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries, in each case,
as of the last day of the most recently ended Test Period; provided that, the Consolidated Total Assets and Consolidated
Adjusted EBITDA (as so determined) of all Immaterial Subsidiaries shall not exceed 5.0% of Consolidated Total Assets and 5.0% of
Consolidated Adjusted EBITDA, in each case, of the Borrower and its Restricted Subsidiaries as of the last day of the most recently
ended Test Period.
“Immediate Family
Member” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote
descendant, parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling or
step-siblings (and linear descendants either thereof), mother-in-law, father-in-law, son-in-law and daughter-in-law (including
adoptive relationships), any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any
of the foregoing individuals, any of the foregoing individual’s (including the initial individual) estate (or an executor or
administrator acting on its behalf), heirs or legatees or any private foundation or fund that is controlled by any of the foregoing
individuals or any donor-advised fund of which any such individual is the donor.
“Impacted Interest Period” has the
meaning assigned to it in the definition of “LIBO Rate.”
“Incurrence-Based Amounts” has the meaning assigned
to such term in Section 1.04(g).
“Indebtedness”
as applied to any Person means, without duplication, (a) all indebtedness of such Person for borrowed money; (b) the Attributable
Debt of such Person in respect of any Capital Lease of such Person; (c) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments to the extent the same would appear as a liability on a balance sheet (excluding the
footnotes thereto) of such Person prepared in accordance with GAAP; (d) any obligation of such Person owed for all or any part of
the deferred purchase price of property or services (excluding (w) any earn out obligation or purchase price adjustment until such
obligation (A) becomes a liability on the balance sheet of such Person (excluding the footnotes thereto) in accordance with GAAP and
(B) has not been paid within 30 days after becoming due and payable following expiration of any dispute resolution mechanics set
forth in the applicable agreement governing the applicable transaction, (x) any such obligations incurred under ERISA or under any
employee consulting agreements, (y) accrued expenses, trade accounts payable and accruals for payroll, in the ordinary course of
business (including on an intercompany basis) and (z) liabilities associated with customer prepayments and deposits), which purchase
price is (i) due more than six months from the date of incurrence of the obligation in respect thereof or (ii) evidenced by a note
or similar written instrument; (e) all Indebtedness of others secured by any Lien on any property or asset owned or held by such
Person regardless of whether the Indebtedness secured thereby has been assumed by such Person or is non-recourse to the credit of
such Person; (f) the face amount of any letter of credit issued for the account of such Person or as to which such Person is
otherwise liable for reimbursement of drawings; (g) the Guarantee by such Person of the Indebtedness of another; (h) all obligations
of such Person in respect of any Disqualified Capital Stock; and (i) all net obligations of such Person in respect of any Derivative
Transaction, including any Hedge Agreement, whether or not entered into for hedging or speculative purposes; provided that
(i) in no event shall obligations under any Derivative Transaction be deemed “Indebtedness” for any calculation of the
Total Leverage Ratio, the First Lien Leverage Ratio or any other financial ratio under this Agreement, (ii) in all cases
Indebtedness shall exclude any Excluded Property Limited Recourse Financing, (iii) the amount of Indebtedness of any Person for
purposes of clause (e) shall be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness (or
such lower amount of maximum liability as is expressly provided for under the documentation pursuant to which the respective Lien is
granted) and (B) the fair market value of the property encumbered thereby as determined by such Person in good faith and (iv) the
amount of any Limited Recourse Financing of any Person shall be deemed to be equal to the lesser of (A) the aggregate unpaid amount
of such Indebtedness (or such lower amount of maximum liability as is expressly provided for under the documentation pursuant to
which the respective Lien is granted) and (B) the fair market value of the property encumbered thereby as determined by such Person
in good faith.
For all purposes hereof,
the Indebtedness of any Person shall include the Indebtedness of any partnership or any Joint Venture (other than any Joint Venture
that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to
the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would
otherwise be included in the calculation of Consolidated Total Debt; provided that notwithstanding anything herein to the
contrary, the term “Indebtedness” shall not include, and shall be calculated without giving effect to, (x) the effects
of Accounting Standards Codification Topic 815 and related interpretations to the extent such effects would otherwise increase or
decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivatives created by the
terms of such Indebtedness (it being understood that any such amounts that would have constituted Indebtedness hereunder but for the
application of this proviso shall not be deemed an incurrence of Indebtedness hereunder), (y) the effects of Statement of Financial
Accounting Standards No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount
of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivative created by the terms of such
Indebtedness (it being understood that any such amounts that would have constituted Indebtedness hereunder but for the application
of this proviso shall not be deemed to be an incurrence of Indebtedness hereunder) and (z) Indebtedness of any Parent Company
appearing on the balance sheet of the Borrower or any of its Subsidiaries solely by reason of push down accounting under GAAP.
“Indemnified Taxes” means (a)
Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party
under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” has the meaning assigned to
such term in Section 9.03(b).
“Information” has the meaning set forth
in Section 3.11(a).
“Initial
Lenders” means the Arranger and the affiliates of the Arranger who are party to this Agreement as Lenders on the Closing Date.
“Initial
Revolving Credit Commitment” means, with respect to any Person, the commitment of such Person to make Initial Revolving
Loans hereunder as set forth on the Commitment Schedule, or in the Assignment Agreement pursuant to which such Lender assumed its
Initial Revolving Credit Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.09
or 2.19 or (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section
9.05. The aggregate amount of the Initial Revolving Credit Commitments as of the Closing Date is $150,000,000.
“Initial
Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of all
Initial Revolving Loans of such Lender attributable to its Initial Revolving Credit Commitment.
“Initial Revolving Credit Maturity Date”
means July 3, 2024.
“Initial
Revolving Facility” means the Initial Revolving Credit Commitments and the Initial Revolving Loans and other extensions of credit
thereunder.
“Initial
Revolving Lender” means any Person with an Initial Revolving Credit Commitment or any Initial Revolving Credit Exposure.
“Initial
Revolving Loan” means any revolving loan made by the Initial Revolving Lenders to the Borrower pursuant to Section 2.01(a)(ii).
“Intellectual
Property Security Agreement” means any agreement executed on or after the Closing Date confirming or effecting the grant
of any Lien on IP Rights owned by any Loan Party to the Administrative Agent, for the benefit of the Secured Parties, in accordance
with this Agreement, including any of the following: (a) a Trademark Security Agreement substantially in the form of Exhibit
H-1 hereto, (b) a Patent Security Agreement substantially in the form of Exhibit H-2 hereto or (c) a Copyright Security
Agreement substantially in the form of Exhibit H-3 hereto.
“Intercreditor Agreement”
means the Intercreditor Agreement substantially in the form of Exhibit M hereto, dated as of the Closing Date.
“Interest
Election Request” means a request by the Borrower in the form of Exhibit D hereto or another form reasonably acceptable
to the Administrative Agent to convert or continue a Borrowing in accordance with Section 2.08.
“Interest
Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December (commencing
with the last Business Day of December 2020) or the maturity date applicable to such Loan and (b) with respect to any LIBO Rate Loan,
the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a LIBO Rate Borrowing
with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing.
“Interest
Period” means with respect to any LIBO Rate Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or six months (or, to the extent available to all relevant
affected Lenders, twelve months or, to the extent acceptable to all applicable Lenders, a shorter period) thereafter, as the Borrower
may elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business
Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period)
shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation
of such Borrowing.
“Interpolated
Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as
the LIBO Screen Rate) reasonably determined by the Administrative Agent (which determination, as to any Lender, shall be conclusive and
binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen
Rate for the longest period for which the LIBO Screen Rate is available that is shorter than the Impacted Interest Period; and (b) the
LIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in
each case, at such time.
“Investment”
means (a) any purchase or other acquisition by the Borrower or any of its Restricted Subsidiaries of any of the Securities of any
other Person (other than any Loan Party), (b) the acquisition by purchase or otherwise (other than any purchase or other acquisition
of inventory, materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the
business, property or fixed assets of any other Person or any division or line of business or other business unit of any other
Person and (c) any loan, advance (other than any advance to any current or former employee, officer, director, member of management,
manager, consultant or independent contractor of the Borrower, any Restricted Subsidiary or any Parent Company for moving,
entertainment and travel expenses, drawing accounts and similar expenditures or payroll expenses or advances in the ordinary course
of business) or capital contribution by the Borrower or any of its Restricted Subsidiaries to any other Person. Subject to Section
5.10, the amount of any Investment shall be the original cost of such Investment, plus the cost of any addition thereto
that otherwise constitutes an Investment, without any adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect thereto, but giving effect to any repayments of principal in the case of any Investment in the form of a
loan and any return of capital or return on Investment in the case of any equity Investment (whether as a distribution, dividend,
redemption or sale).
“Investors”
means (a) the Sponsor, (b) the Management Investors and (c) other investors identified to the Administrative Agent in writing that, directly
or indirectly, beneficially own Capital Stock in Holdings on the Closing Date.
“IP Rights” has the meaning assigned to
such term in Section 3.05(c).
“IPO
Reorganization Transaction” means any transaction taken in connection with and reasonably related to consummating a Qualifying
IPO by the Borrower or any Parent Company thereof so long as, after giving effect thereto, (a) the Loan Parties are in compliance with
the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest of the Secured Parties in the Collateral
and the Credit Support Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute
Collateral or Credit Support Collateral immediately prior to such IPO Reorganization Transaction no longer constituting Collateral or
Credit Support Collateral) as a result of such IPO Reorganization Transaction.
“IRS” means the U.S. Internal Revenue Service.
“iStar Amendments”
means the iStar I Eighth Amendment, the iStar II Eighth Amendment and the iStar 2014 Amendment, individually or collectively (as the context
may require).
“iStar
I Eighth Amendment” means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers I LP,
and solely with respect to the Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and AMF Bowling
Centers, Inc., as tenant.
“iStar
II Eighth Amendment” means that certain Eighth Lease Amendment dated as of June 29, 2017 between iStar Bowling Centers II LP,
as landlord, and AMF Bowling Centers, Inc., as tenant.
“iStar
2014 Amendment” means that certain lease amendment that is expected to be the “First Lease Amendment” in respect
of the iStar Sale/Leaseback 2014 Documents, which is anticipated to include (among other things) certain changes generally consistent
with the iStar I Eighth Amendment and iStar II Eighth Amendment, to be entered into between BW Bowling Properties LP, and solely with
respect to the Site (as defined in subparagraph 34(n)(v) therein) located in Pennsylvania, BW Bowling Properties LLC, as landlord, and
Leiserv, LLC and Brunswick Centres, Inc., as tenant.
“iStar
Exchange” means those transactions described in Section 11 of each of the iStar I Eighth Amendment and the iStar II Eighth Amendment.
“iStar
Exchange Documents” means the agreements and other documents governing any iStar Exchange transaction, as more particularly
described in each of the iStar I Eighth Amendment and the iStar II Eighth Amendment.
“iStar
Sale/Leaseback” means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback Documents.
“iStar
Sale/Leaseback 2014” means the Sale and Lease-Back Transactions effected pursuant to the iStar Sale/Leaseback 2014 Documents.
“iStar
Sale/Leaseback 2014 Documents” means (i) the Lease Agreement, dated as of September 18, 2014, by and among BW Bowling Properties
LP, BW Bowling Properties Canada Inc. and BW Bowling Properties LLC (collectively as landlord) and Leiserv, LLC and Brunswick Centres,
Inc. (jointly and severally, as tenant) and (ii) the Guaranty dated as of September 18, 2014 by Holdings in favor of BW Bowling Properties
LP, BW Bowling Properties Canada Inc. and BW Bowling Properties LLC, in each case as the same may be amended, modified or supplemented
through the date hereof and from time to time hereafter in accordance with the provisions thereof, and including all basic lease information
and all other agreements, documents and instruments relating to the iStar Sale/Leaseback 2014 and all exhibits and schedules to any of
the foregoing.
“iStar
Sale/Leaseback Documents” means (I) (a) the Lease I Agreement dated as of February 27, 2004 between iStar Bowling Centers
I LP, and solely with respect to the Site (as defined therein) located in Puerto Rico, iStar Bowling Centers PR LP, as landlord, and
AMF Bowling Centers, Inc., as tenant, as amended by (i) that certain First Lease Amendment dated as of June 30, 2004, intending to
be effective as of February 27, 2004, (ii) that certain Second Lease Amendment dated as of February 3, 2005, intending to be
effective as of February 27, 2004, (iii) that certain Third Lease Amendment dated as of June 18, 2008, intending to be effective as
of March 30, 2008, (iv) that certain Fourth Lease Amendment dated and intended to be effective as of July 1, 2013, (v) that certain
Fifth Lease Amendment dated and intended to be effective as of September 25, 2013, (vi) that certain Sixth Lease Amendment dated and
intended to be effective as of October 3, 2014, (vii) that certain Amended and Restated Seventh Lease Amendment dated and intended
to be effective as of September 9, 2016, and (viii) the iStar I Eighth Amendment, (b) the Guaranty dated as of July 1, 2013 by
Holdings in favor of iStar Bowling Centers I LP, and (II) (a) the Lease II Agreement dated as of February 27, 2004 between iStar
Bowling Centers II LP, as landlord, and AMF Bowling Centers, Inc., as tenant, as amended by (i) that certain First Lease Amendment
dated as of June 30, 2004, intending to be effective as of February 27, 2004, (ii) that certain Second Lease Amendment dated as of
February 3, 2005, intending to be effective as of February 27, 2004, (iii) that certain Third Lease Amendment dated as of June 18,
2008, intending to be effective as of March 30, 2008, (iv) that certain Fourth Lease Amendment dated and intended to be effective as
of July 1, 2013, (v) that certain Fifth Lease Amendment dated and intended to be effective as of September 25, 2013, (vi) that
certain Sixth Lease Amendment dated and intended to be effective as of October 3, 2014, (vii) that certain Amended and Restated
Seventh Lease Amendment dated and intended to be effective as of February 23, 2017, and (viii) the iStar II Eighth Amendment, and
(b) the Guaranty dated as of July 1, 2013 by Holdings in favor of iStar Bowling Centers II LP, in each case as the same may be
amended, modified or supplemented through the date hereof and from time to time hereafter in accordance with the provisions thereof,
and including all basic lease information and all other agreements, documents and instruments relating to the iStar Sale/Leaseback
and all exhibits and schedules to any of the foregoing.
“Joint
Venture” means the Thousand Oaks Company, a Texas corporation, and any other joint venture, in the form of a corporation, limited
liability company, business trust, joint venture, association, company or partnership, entered into by the Borrower or any of its Subsidiaries
which (i) is engaged in a line of business in accordance with Section 5.16 and (ii) is formed or organized in a manner that limits
the exposure of the Borrower and its Subsidiaries for the liabilities thereof to (A) the Investments of the Borrower and its Subsidiaries
therein permitted under Section 6.06 and (B) any Indebtedness of any Joint Venture or any Guarantee by the Borrower or any of its Subsidiaries
in respect of such Indebtedness, which Indebtedness or Guarantee are permitted at the time under Section 6.01.
“Junior
Indebtedness” means any Indebtedness for borrowed money (other than Indebtedness among Holdings, the Borrower and/or its subsidiaries)
of the Borrower or any of its Restricted Subsidiaries that is a Loan Party that is expressly subordinated in right of payment to the Obligations.
“Junior
Lien Indebtedness” means any Indebtedness for borrowed money that is secured by a security interest on the Collateral (other
than Indebtedness among Holdings, the Borrower and/or its subsidiaries) that is expressly junior or subordinated to the Lien securing
the Revolving Facility with respect to the Collateral.
“Kingpin
Intermediate” has the meaning assigned to such term in the preamble to this Agreement.
“Latest
Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment
hereunder at such time, including the latest maturity or expiration date of any Revolving Loan, Additional Revolving Loan, Initial Revolving
Credit Commitment or Additional Commitment.
“Latest
Revolving Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any
revolving loan or revolving credit commitment hereunder at such time, including the latest maturity or expiration date of any Revolving
Loan, any Additional Revolving Loan, the Revolving Credit Commitment or any Additional Revolving Credit Commitment.
“Legal Reservations”
means the application of relevant Debtor Relief Laws, general principles of equity and/or principles of good faith and fair dealing.
“Lenders”
means the Revolving Lenders, any Additional Revolving Lender, any lender with an Additional Commitment or an outstanding Additional Loan
and any other Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to be a party
hereto pursuant to an Assignment Agreement.
“Letter-of-Credit Right” has the meaning
set forth in Article 9 of the UCC.
“LIBO
Rate” means, with respect to any LIBO Rate Borrowing for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available
at such time for such Interest Period (an “Impacted Interest Period”) then the LIBO Rate shall be the Interpolated
Rate; provided that, solely with respect to the Initial Revolving Loans, in no event shall the LIBO Rate be less than 0.00% per
annum.
“LIBO
Screen Rate” means, for any day and time, with respect to any LIBO Rate Borrowing for any Interest Period, the London interbank
offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for
U.S. Dollars for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the
Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute
page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from
time to time as selected by the Administrative Agent in its reasonable discretion)).
“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capital Lease
having substantially the same economic effect as any of the foregoing), in each case, in the nature of security; provided that
in no event shall an operating lease in and of itself be deemed to constitute a Lien.
“Limited
Condition Transaction” means any acquisition, Investment, Disposition, Restricted Payment or Restricted Debt Payment permitted
by this Agreement, in each case whose consummation is not conditioned on the availability of, or on obtaining, third-party financing.
“Limited
Recourse Financing” means, with respect to any Person, Indebtedness to the extent: (i) such Person, subject to customary exceptions
for nonrecourse Indebtedness financing, shall not have personal liability with respect to the Indebtedness and the lender thereunder shall
only seek recourse for satisfaction of the Indebtedness against the property or collateral secured thereunder; and (ii) no default with
respect thereto would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Loans or Loans under
any Pari First Lien Facility) of such Person to declare a default on such other Indebtedness or cause the payment thereof to be accelerated
or payable prior to its stated maturity.
“Liquor
License Subsidiaries” means (i) as of the Closing Date, each of the Subsidiaries listed on Schedule 1.01(d) hereto and
(ii) thereafter, any other Restricted Subsidiary of the Borrower established solely for the purpose of satisfying applicable requirements
of local law with respect to the ownership and use of liquor licenses and which has entered into or has a bona fide intent to enter into
(A) a lease pursuant to which such Restricted Subsidiary leases, as lessee, from Holdings or one or more of its Subsidiaries (other than
another Liquor License Subsidiary) snack bar and related space at one or more bowling centers and (B) a management services agreement
with a Loan Party, pursuant to which such Loan Party provides employees, management and related services to such Subsidiary.
“Loan
Documents” means this Agreement, any Promissory Note, each Loan Guaranty, the Collateral Documents, the Intercreditor Agreement,
any Acceptable Intercreditor Agreement and any other document or instrument designated by the Borrower and the Administrative Agent as
a “Loan Document”, including any Refinancing Amendment or any other amendment hereto or thereto. Any reference in this Agreement
or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto.
“Loan
Guaranty” means (a) the Guaranty Agreement, substantially in the form of Exhibit I hereto, executed by each Loan Party
party thereto and the Administrative Agent for the benefit of the Secured Parties and (b) each other guaranty agreement executed by any
Person pursuant to Section 5.12 in substantially the form attached as Exhibit I hereto or another form that is otherwise
reasonably satisfactory to the Administrative Agent and the Borrower.
“Loan Installment Date” has the meaning
assigned to such term in Section 2.10(a).
“Loan Parties”
means Holdings, the Borrower and each Subsidiary Guarantor.
“Loans” means any Revolving Loan or any Additional Revolving
Loan.
“Management
Investors” means the officers, directors, managers, employees and members of management of (i) the Borrower, (ii) any Parent
Company and/or (iii) any subsidiary of the Borrower and the Immediate Family Members of any of the foregoing.
“Margin Stock” has
the meaning assigned to such term in Regulation U.
“Market
Capitalization” means, at any date of determination pursuant to Section 1.04(e), the amount equal to (a) the total
number of then issued and outstanding shares of common Capital Stock of the Borrower or any Parent Company multiplied by (b)
the arithmetic mean of the closing prices per share of such common Capital Stock on the principal securities exchange on which such
common Capital Stock are traded for the 30 consecutive trading days immediately preceding such date.
“Market
Intercreditor Agreement” means an intercreditor or subordination agreement or arrangement the terms of which are either (a)(i)
consistent with market terms governing intercreditor arrangements for the sharing or subordination of liens or arrangements relating to
the distribution of payments, as applicable, at the time the applicable agreement or arrangement is proposed to be established in light
of the type of Indebtedness subject thereto or (ii) taken as a whole, not materially less favorable to the Lenders than the terms of any
Acceptable Intercreditor Agreement governing similar priorities that is then in effect, in each case as determined by the Borrower in
good faith or (b) in the event a “Market Intercreditor Agreement” has been entered into after the Closing Date meeting the
requirement of the preceding clause (a), the terms of which are, taken as a whole, not materially less favorable to the Lenders than the
terms of such Market Intercreditor Agreement to the extent such agreement governs similar priorities. For all purposes hereunder, the
Intercreditor Agreement entered into on the Closing Date shall be, and shall be deemed to be, a Market Intercreditor Agreement.
“Material
Adverse Effect” means a material adverse effect on (i) the business, financial condition or results of operations, in each case,
of the Borrower and its Restricted Subsidiaries, taken as a whole or (ii) the material rights and remedies (taken as a whole) of the Administrative
Agent under the applicable Loan Documents.
“Material
Debt Instrument” means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged
and delivered to the Administrative Agent (or its bailee) pursuant to the Security Agreement.
“Material
Real Estate Asset” means any “fee-owned” Real Estate Asset acquired by any Loan Party after the Pari First Lien
Closing Date (other than as part of the iStar Exchange or EAP Substitution) having a fair market value (as determined by the Borrower
in good faith after taking into account any liabilities with respect thereto that impact such fair market value) in excess of $12,500,000
as of the date of acquisition thereof (provided that the aggregate fair market value of all properties acquired after the Pari First Lien
Closing Date and so excluded on account of such dollar threshold (each determined at the time of such initial exclusion) shall not exceed
$50,000,000).
“Maturity
Date” means (a) with respect to the Initial Revolving Facility, the Initial Revolving Credit Maturity Date and (b) with respect
to any other Replacement Revolving Facility, the final maturity date for such Replacement Revolving Facility, as set forth in the applicable
Refinancing Amendment.
“Maximum Rate” has the meaning assigned
to such term in Section 9.19.
“Moody’s” means Moody’s Investors
Service, Inc.
“Mortgage”
means any mortgage, deed of trust, deed to secure debt or other agreement which conveys or evidences a Lien in favor of the Administrative
Agent, for the benefit of the Administrative Agent and the relevant Secured Parties, on any Material Real Estate Asset constituting Collateral.
“Mortgage
Policy” has the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement”.
“Multiemployer
Plan” means any employee benefit plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA,
that is subject to the provisions of Title IV of ERISA, and in respect of which the Borrower or any of its Restricted Subsidiaries,
or any of their respective ERISA Affiliates, makes or is obligated to make contributions or with respect to which any of them has
any ongoing obligation or liability, contingent or otherwise.
“Narrative
Report” means, with respect to the financial statements with respect to which it is delivered, a management discussion and narrative
report describing the operations of the Borrower and its Restricted Subsidiaries for the applicable Fiscal Quarter or Fiscal Year and
for the period from the beginning of the then-current Fiscal Year to the end of the period to which the relevant financial statements
relate.
“Net
Insurance/Condemnation Proceeds” means an amount equal to: (a) any Cash payments or proceeds (including Cash Equivalents) received
by the Borrower or any of its Restricted Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder
of any assets of the Borrower or any of its Restricted Subsidiaries or (ii) as a result of the taking of any assets of the Borrower or
any of its Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a
sale of any such assets to a purchaser with such power under threat of such a taking, minus (b) in respect of the Loan Parties or any
of their respective subsidiaries, Affiliates or direct or indirect equityholders (i) any actual out-of-pocket costs and expenses incurred
in connection with the adjustment, settlement or collection of any claims in respect thereof, (ii) payment of the outstanding principal
amount of, premium or penalty, if any, and interest and other amounts on any Indebtedness (other than the Loans, Indebtedness under any
Pari First Lien Facility and any Indebtedness secured by a Lien on the Collateral that is pari passu with or expressly subordinated
to the Lien on the Collateral securing the Obligations) that is secured by a Lien on the assets in question and that is required to be
repaid or otherwise comes due or would be in default under the terms thereof as a result of such loss, taking or sale, (iii) in the case
of a taking, the reasonable out-of-pocket costs of putting any affected property in a safe and secure position, (iv) any selling costs
and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, accountants’ fees, investment banking
fees, survey costs, title insurance premiums, and related search and recording charges, deed or mortgage recording taxes, other expenses
and brokerage, consultant and other customary fees actually incurred in connection therewith and transfer and similar Taxes and the Borrower’s
good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or that are or would be imposed on
intercompany distributions with such proceeds)) in connection with any sale or taking of such assets as described in clause (a)
of this definition, (v) any amounts provided as a reserve in accordance with GAAP against any liabilities under any indemnification obligation
or purchase price adjustments associated with any sale or taking of such assets as referred to in clause (a) of this definition
(provided that to the extent and at the time any such amounts are released from such reserve, other than to make a payment for
which such amount was reserved, such amounts shall constitute Net Insurance/Condemnation Proceeds) and (vi) in the case of any covered
loss or taking from any non-Wholly-Owned Subsidiary, the pro rata portion thereof (calculated without regard to this clause (vi))
attributable to minority interests and not available for distribution to or for the account of the Borrower or a Wholly-Owned Subsidiary
as a result thereof.
“Net
Proceeds” means (a) with respect to any Disposition (including any Prepayment Asset Sale), the Cash proceeds (including
Cash Equivalents and Cash proceeds subsequently received (as and when received) in respect of non-cash consideration initially
received), net of (with respect to any Loan Party or its subsidiaries, Affiliates or direct or indirect equity owners) (i) selling
costs and out-of-pocket expenses (including broker’s fees or commissions, legal fees, accountants’ fees, investment
banking fees, survey costs, title insurance premiums, and related search and recording charges, deed or mortgage recording taxes,
other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith and transfer
and similar Taxes and the Borrower’s good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing
arrangements or that are or would be imposed on intercompany distributions with such proceeds) in connection with such Disposition),
(ii) amounts provided as a reserve in accordance with GAAP against any liabilities under any indemnification obligation or purchase
price adjustment associated with such Disposition (provided that to the extent and at the time any such amounts are released
from such reserve, other than to make a payment for which such amount was reserved, such amounts shall constitute Net Proceeds),
(iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness (other than the Loans,
Indebtedness under any Pari First Lien Facility and any other Indebtedness secured by a Lien on the Collateral that is pari passu
with or expressly subordinated to the Lien on the Collateral securing the Obligations) which is secured by the asset sold in such
Disposition and which is required to be repaid or otherwise comes due or would be in default and is repaid (other than any such
Indebtedness that is assumed by the purchaser of such asset), (iv) Cash escrows (until released from escrow to the Borrower or any
of its Restricted Subsidiaries) from the sale price for such Disposition and (v) in the case of any Disposition by any
non-Wholly-Owned Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (v))
attributable to any minority interest and not available for distribution to or for the account of the Borrower or a Wholly-Owned
Subsidiary as a result thereof; and (b) with respect to any issuance or incurrence of Indebtedness or Capital Stock, the Cash
proceeds thereof, net of all Taxes and fees, commissions, costs, underwriting discounts and other fees and expenses incurred in
connection therewith.
“New Holdings”
means the Person that shall, immediately following the consummation of a Holdings Reorganization Transaction in accordance with the provisions
of the definition thereof, hold 100% of the Capital Stock of the Borrower.
“Non-Consenting Lender” has the meaning
assigned to such term in Section 2.19(b).
“Notice of Intent to Cure” has the meaning
assigned to such term in Section 6.15(b).
“NYFRB” means the Federal Reserve Bank
of New York.
“NYFRB’s
Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“NYFRB Rate”
means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate
in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if
none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds
transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing
selected by it; provided, further, that if any of the aforesaid rates as
so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Obligations”
means all unpaid principal of and accrued and unpaid interest (including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, all accrued and
unpaid fees and all expenses, reimbursements, indemnities and all other advances to, debts, liabilities and obligations of the Loan Parties
to the Lenders or to any Lender, the Administrative Agent or any indemnified party arising under the Loan Documents, whether direct or
indirect (including those acquired by assumption), absolute, contingent, due or to become due, now existing or hereafter arising.
“Organizational
Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its
by-laws, (b) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with
respect to any general partnership, its partnership agreement, (d) with respect to any limited liability company, its articles of
organization or certificate of formation, and its operating agreement or limited liability company agreement and (e) with respect to
any other form of entity, such other organizational documents required by local Requirements of Law or customary under the
jurisdiction in which such entity is organized to document the formation and governance principles of such type of entity. In the
event that any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be certified
by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only
be to a document of a type customarily certified by such governmental official.
“Other Applicable Indebtedness” has the
meaning assigned to such term in Section 2.11(b)(i).
“Other
Connection Taxes” means, with respect to any Lender or Administrative Agent, Taxes imposed as a result of a present or former
connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely from such recipient having
executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest
under, or engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan
Document).
“Other
Taxes” means any and all present or future stamp, court or documentary taxes or any intangible, recording, filing or similar
taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than
an assignment made pursuant to Section 2.19). For the avoidance of doubt, Other Taxes do not include any Excluded Taxes.
“Outstanding
Amount” means with respect to Revolving Loans on any date, the amount of the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Revolving Loans, as the case may be, occurring on such date.
“Overnight
Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings
by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the
NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Parent
Company” means (a) Holdings and (b) any other Person or group of Persons that are Affiliates of the Sponsor (but in any event
not any portfolio company of the Sponsor), of which the Borrower is an indirect Subsidiary.
“Pari
First Lien Agent” means the administrative agent (or other person performing an equivalent role) under any Pari First Lien Facility
and/or, as applicable, any “Incremental Equivalent Debt” other than this Revolving Facility (as defined in the Pari First
Lien Credit Agreement or any equivalent term under any Pari First Lien Facility), in each case, from time to time.
“Pari First Lien Closing Date” means July
3, 2017.
“Pari
First Lien Credit Agreement” means the First Lien Credit Agreement, dated as of July 3, 2017, among, inter alios, Holdings,
the Borrower and JPMorgan Chase Bank, N.A., as administrative agent and collateral agent and the lenders from time to time party thereto.
“Pari First Lien
Facility” means the credit facilities governed by the Pari First Lien Credit Agreement and one or more debt facilities or
other financing arrangements (including indentures) providing for loans, notes or other long-term indebtedness that replace or
refinance such credit facilities or other financing arrangements, including (i) any such replacement or refinancing facility or
indenture or other financing arrangement that increases or decreases the amount permitted to be borrowed thereunder or alters the
maturity thereof and whether by the same or any other agent, lender or group of lenders, and any amendments, supplements,
modifications, extensions, renewals, restatements, amendments and restatements or refundings thereof or any such indentures or
credit facilities or other financing arrangements that replace or refinance such credit facility (or any subsequent replacement
thereof), in each case to the extent permitted or not restricted by this Agreement or the Pari First Lien Facility and (ii) any
letters of credit issued or provided or deemed to be issued or provided thereunder and any other Pari First Lien Obligations.
“Pari
First Lien Obligations” means (i) the “Secured Obligations” as defined in the Pari First Lien Credit Agreement (or
any equivalent term under any Pari First Lien Facility), (ii) all unpaid principal and accrued and unpaid interest and fees owing with
respect to any “Incremental Equivalent Debt” other than the Obligations (as defined in the Pari First Lien Credit Agreement
or any equivalent term under any Pari First Lien Facility) and (iii) all unpaid principal and accrued and unpaid interest and fees owing
with respect to any refinancing Indebtedness in respect of any or all of the foregoing.
“Pari
First Lien Obligations Payment Date” means the “Termination Date” as defined in the Pari First Lien Credit Agreement
and, if applicable, the equivalent term under any document governing any other Pari First Lien Obligations.
“Participant” has the meaning assigned
to such term in Section 9.05(c).
“Participant Register” has the meaning
assigned to such term in Section 9.05(c).
“Patent”
means the following: (a) any and all patents and patent applications; (b) all inventions described and claimed therein; (c) all reissues,
divisions, continuations, renewals, extensions and continuations in part thereof; (d) all income, royalties, damages, claims and payments
now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future
infringements thereof; (e) all rights to sue for past, present and future infringements thereof; and (f) all rights corresponding to any
of the foregoing.
“PBGC” means the Pension Benefit Guaranty
Corporation.
“Pension
Plan” means any employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that is
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, which the Borrower or any of its Restricted
Subsidiaries, or any of their respective ERISA Affiliates, maintains or contributes to or has an obligation to contribute to, or otherwise
has any liability for, contingent or otherwise.
“Perfection Certificate” means a certificate
substantially in the form of Exhibit E.
“Perfection
Requirements” means (a) the filing of appropriate financing statements with the office of the Secretary of State or other
appropriate office in the state of organization of each Loan Party, (b) the filing of Intellectual Property Security Agreements or
other appropriate assignments or notices with the U.S. Patent and Trademark Office and/or the U.S. Copyright Office, as applicable,
(c) the proper recording or filing, as applicable, of Mortgages and fixture filings with respect to any Material Real Estate Asset
constituting Collateral, in each case in favor of the Administrative Agent for the benefit of the Secured Parties, (d) the delivery
to the Administrative Agent (or the Pari First Lien Agent as bailee of the Administrative Agent) of any stock certificate or
promissory note to the extent required to be delivered by the applicable Loan Documents and (e) other filings, recordings and
registrations necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Administrative Agent or
to enforce the rights of the Administrative Agent and the Secured Parties under the Loan Documents.
“Permitted
Acquisition” means any acquisition by the Borrower or any of its Restricted Subsidiaries, whether by purchase, merger, amalgamation
or otherwise, of all or a substantial portion of the assets of, or any business line, unit or division or product line (including research
and development and related assets in respect of any product or facility) of, any Person or of a majority of the outstanding Capital Stock
of any Person (and, in any event, including any Investment in any Restricted Subsidiary which serves to increase the Borrower’s
or any Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary), in each case if (1) such Person is or
becomes a Restricted Subsidiary or (2) such Person, in one transaction or a series of related transactions, is amalgamated, merged or
consolidated with or into, or transfers or conveys all or a substantial portion of its assets (or such division, business line, unit or
product line or facility) to, or is liquidated into, the Borrower and/or any Restricted Subsidiary as a result of such transaction; provided
that (i) the target Person, assets, business or division in respect of such acquisition is a business permitted under Section 5.16
and (ii) at the applicable time elected by the Borrower in accordance with Section 1.04(e), with respect to such acquisition, no
Event of Default under Section 7.01(a), (f) or (g) shall be continuing.
“Permitted
Holders” means (a) the Investors, (b) the Shannon Holders and (c) any Person with which one or more Investors and/or the Shannon
Holders form a “group” (within the meaning of Section 14(d) of the Exchange Act as in effect on the date hereof) so long as,
in the case of this clause (c), the relevant Investors and /or the Shannon Holders collectively own more than 50% of the relevant
voting stock beneficially owned by the group.
“Permitted Liens” means Liens permitted
pursuant to Section 6.02.
“Permitted
Payee” means any future, current or former director, officer, member of management, manager, employee, independent contractor
or consultant (or any Immediate Family Member or transferee of any of the foregoing) of the Borrower (or any Parent Company or any subsidiary).
“Permitted
Reorganization” means any transaction or undertaking, including Investments, in connection with internal reorganizations and
or restructurings (including in connection with tax planning and corporate reorganizations), so long as, after giving effect thereto,
(a) the Loan Parties shall comply with the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest of the
Secured Parties in the Collateral or the Credit Support Collateral, taken as a whole, is not materially impaired (including by a material
portion of the assets that constitute Collateral or Credit Support Collateral immediately prior to such Permitted Reorganization no longer
constituting Collateral or Credit Support Collateral) as a result of such Permitted Reorganization.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or any other entity.
“Preferred
Capital Stock” means any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution or
winding up.
“Prepayment
Asset Sale” means any Disposition by the Borrower or its Restricted Subsidiaries made pursuant to Section 6.07(h).
“Primary Obligor” has the meaning assigned
to such term in the definition of “Guarantee”.
“Prime
Rate” means (a) the rate of interest publicly announced, from time to time, by the Administrative Agent at its principal office
in New York City as its “prime rate,” with the understanding that the “prime rate” is one of the Administrative
Agent’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are
calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal
publications as the Administrative Agent may designate or (b) if the Administrative Agent has no “prime rate,” the rate of
interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases
to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release
H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar
rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably
determined by the Administrative Agent).
“Pro
Forma Basis” or “pro forma effect” means, with respect to any determination of the Total Leverage Ratio,
the First Lien Leverage Ratio, Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated Total Assets (including component
definitions thereof) that each Subject Transaction shall be deemed to have occurred as of the first day of the applicable Test Period
(or, in the case of Consolidated Total Assets (or with respect to any determination pertaining to the balance sheet, including the acquisition
of Cash and Cash Equivalents in connection with an acquisition of a Person, business line, unit, division or product line), as of the
last day of such Test Period) with respect to any test or covenant for which such calculation is being made and that:
(a) (i)
in the case of (A) any Disposition of all or substantially all of the Capital Stock of any Restricted Subsidiary or any division and/or
product line of the Borrower or any Restricted Subsidiary or (B) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary,
income statement items (whether positive or negative) attributable to the property or Person subject to such Subject Transaction, shall
be excluded as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination
is being made and (ii) in the case of any Permitted Acquisition, Investment and/or designation of an Unrestricted Subsidiary as a Restricted
Subsidiary described in the definition of the term “Subject Transaction”, income statement items (whether positive or negative)
attributable to the property or Person subject to such Subject Transaction shall be included as of the first day of the applicable Test
Period with respect to any test or covenant for which the relevant determination is being made; provided that any pro forma adjustment
may be applied to any such test or covenant solely to the extent that such adjustment is consistent with, subject to the limitations set
forth in and without duplication with respect to the application of, the definition of “Consolidated Adjusted EBITDA”,
(b) any
Expected Cost Savings as a result of any Cost Savings Initiative shall be calculated on a pro forma basis as though such Expected Costs
Savings had been realized on the first day of the applicable Test Period and as if such Expected Cost Savings were realized in full during
the entirety of such period; provided that any pro forma adjustment may be applied to any such test or covenant solely to the extent that
such adjustment is consistent with, subject to the limitations set forth in and without duplication with respect to the application of,
the definition of “Consolidated Adjusted EBITDA”,
(c) any
retirement or repayment of Indebtedness (other than normal fluctuations in revolving Indebtedness incurred for working capital purposes)
shall be deemed to have occurred as of the first day of the applicable Test Period with respect to any test or covenant for which the
relevant determination is being made,
(d) any
Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in connection therewith shall be deemed to have occurred as
of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being made;
provided that (x) if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest
for the applicable Test Period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect
to such Indebtedness at the relevant date of determination (taking into account any interest hedging arrangements applicable to such Indebtedness),
(y) interest on any obligation with respect to any Capital Lease shall be deemed to accrue at an interest rate determined by a Responsible
Officer of the Borrower in good faith to be the rate of interest implicit in such obligation in accordance with GAAP and (z) interest
on any Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a Eurocurrency
interbank offered rate or other rate shall be determined to have been based upon the rate actually chosen, or if none, then based upon
such optional rate chosen by the Borrower, and
(e) the
acquisition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total Assets, whether pursuant to
any Subject Transaction or any Person becoming a subsidiary or merging, amalgamating or consolidating with or into the Borrower or any
of its subsidiaries, or the Disposition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total
Assets described in the definition of “Subject Transaction” shall be deemed to have occurred as of the last day of the applicable
Test Period with respect to any test or covenant for which such calculation is being made.
In the case of any
calculation of the Total Leverage Ratio, the First Lien Leverage Ratio or Consolidated Total Assets for any event described above
that occurs prior to the date on which financial statements have been (or are required to be) delivered pursuant to Section 5.01(b)
for the Fiscal Year ended on or about June 30, 2020, any such calculation required to be made on a “Pro Forma Basis”
shall use the consolidated financial statements of Holdings delivered to the Arranger for the Fiscal Quarter ended on or about March
31, 2020. Notwithstanding anything to the contrary set forth in the immediately preceding paragraph, for the avoidance of doubt,
when calculating the First Lien Leverage Ratio for purposes of Section 6.15 (other than for the purpose of determining pro
forma compliance with Section 6.15 as a condition to taking any action under this Agreement), the events described in the
immediately preceding paragraph that occurred subsequent to the end of the applicable Test Period shall not be given pro forma
effect.
“Promissory
Note” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of
Exhibit G hereto, evidencing the aggregate outstanding principal amount of Loans of the Borrower to such Lender resulting from
the Loans made by such Lender.
“Public
Company Costs” means Charges associated with, or in anticipation of, or preparation for, compliance with the requirements of
the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and Charges relating to compliance with
the provisions of the Securities Act and the Exchange Act (and in each case, any similar Requirement of Law under any other applicable
jurisdiction), as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange
companies with listed equity or debt securities, directors’, compensation, fees and expense reimbursement, Charges relating to investor
relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance, listing fees
and all executive, legal and professional fees related to the foregoing.
“Published
LIBO Rate” means, with respect to any Interest Period when used in reference to any Loan or Borrowing, (a) the rate of interest
(rounded upwards, if necessary, to the nearest 1/100th) appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute
page of such service, or any successor to such service as determined by Administrative Agent) as the London interbank offered rate for
deposits in Dollars for a term comparable to such Interest Period, at approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to the commencement of such Interest Period (but if more than one rate is specified on such page, the rate will be
an arithmetic average of all such rates) and (b) if such rate is not available at such time for any reason, then the “Published
LIBO Rate” for such Interest Period shall be the interest rate per annum reasonably determined by the Administrative Agent in good
faith to be the rate per annum at which deposits in Dollars for delivery on the first day of such Interest Period in immediately available
funds in the approximate amount of the LIBO Rate Loan being made, continued or converted by the Administrative Agent and with a term equivalent
to such Interest Period would be offered to the Administrative Agent by major banks in the London or other offshore interbank market for
Dollars at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period;
provided that if such rate as determined above is at any time negative, the Published LIBO Rate at such time shall instead be zero.
“Put Right” has the meaning set forth in
the Call/Put Agreement.
“Qualified
Capital Stock” of any Person means any Capital Stock of such Person that is not Disqualified Capital Stock.
“Qualified
Receivables Facility” means any Receivables Facility that meets the following conditions: (a) the Borrower shall have determined
in good faith that such Receivables Facility (including financing terms, covenants, termination events and other provisions) is in the
aggregate economically fair and reasonable to the Borrower and its Restricted Subsidiaries; (b) all sales of Receivables Facility Assets
and related assets by the Borrower or any Restricted Subsidiary to the Receivables Subsidiary or any other Person are made at fair market
value (as determined in good faith by the Borrower); (c) the financing terms, covenants, termination events and other provisions thereof
shall be on market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings; and (d) the
obligations under such Receivables Facility are non-recourse (except for customary representations, warranties, covenants and indemnities
made in connection with such facilities) to the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary).
“Qualifying
IPO” means any transaction or series of related transactions that results in any of the common Capital Stock of Holdings, any
Parent Company or the Borrower being publicly traded on any
U.S. national securities exchange or any analogous exchange
or any recognized securities exchange in Canada, the United Kingdom or any country in the European Union.
“Rating”
means, for any Person, its senior unsecured non-credit-enhanced long-term debt rating (or equivalent thereof), from S&P or Moody’s.
A “Rating” shall be determined from the most recent public announcement of such Rating or any publicly announced changes thereto.
“Real
Estate Asset” means, at any time of determination, all right, title and interest of any Loan Party in and to any and all parcels
of or interests in real property owned, leased or subleased by a Loan Party (including, but not limited to, land, improvements and fixtures
thereon) of such Loan Party.
“Receivables
Facility” means any of one or more receivables financing facilities or securitization financing facilities as amended,
supplemented, modified, extended, renewed, restated or refunded from time to time, pursuant to which the Borrower or any of the
Restricted Subsidiaries sells or grants a security interest in its Receivables Facility Assets to either (a) a Person that is not a
Restricted Subsidiary or (b) a Restricted Subsidiary or Receivables Subsidiary that in turn funds such purchase by selling or
granting a security interest in its Receivables Facility Assets to a Person that is not a Restricted Subsidiary or by borrowing from
such a Person or from another Receivables Subsidiary that in turn funds itself by borrowing from such a Person, in each case, that
constitutes a Qualified Receivables Facility.
“Receivables
Facility Asset” means (a) any accounts receivable, revenue stream or other right of payment, real estate asset, mortgage receivable
or related asset and (b) contract rights, lockbox accounts and records with respect to such assets customarily transferred therewith,
in each case subject to a Receivables Facility.
“Receivables
Fees” means distributions or payments made directly or by means of discounts with respect to any Receivables Facility Asset
or participation interest therein issued or sold in connection with, and other fees and expenses paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Facility.
“Receivables
Subsidiary” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities,
and in each case engages only in activities reasonably related or incidental thereto or another Person formed for the purposes of engaging
in a Receivables Facility in which the Borrower or any subsidiary makes an Investment and to which the Borrower or any subsidiary transfers
Receivables Facility Assets.
“Refinancing
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent and the Borrower
executed by (a) Holdings and the Borrower, (b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion
of the Replacement Revolving Facility, as applicable, being incurred pursuant thereto and in accordance with Section 9.02(c).
“Refinancing Indebtedness” has the meaning
assigned to such term in Section 6.01(p).
“Refunding Capital Stock” has the meaning
assigned to such term in Section 6.04(a)(viii).
“Register” has the meaning assigned to
such term in Section 9.05(b).
“Regulation
U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or
thereof.
“Regulation
X” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or
thereof.
“Related
Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, managers,
officers, trustees, employees, partners, agents, advisors and other representatives of such Person and such Person’s Affiliates.
“Release”
means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment of any barrels, containers
or other closed receptacles containing any Hazardous Material).
“Relevant
Governmental Body” means the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal
Reserve Board and/or the NYFRB or, in each case, any successor thereto.
“Replaced Revolving Facility” has the meaning
assigned to such term in Section 9.02(c).
“Replacement
Debt” means any Refinancing Indebtedness (whether borrowed in the form of secured or unsecured loans, issued in a public offering,
Rule 144A under the Securities Act or other private placement or bridge financing in lieu of the foregoing or otherwise) incurred in respect
of Indebtedness permitted under Section 6.01(a) (and any subsequent refinancing of such Replacement Debt).
“Replacement Revolving Facility” has the
meaning assigned to such term in Section 9.02(c).
“Representation
and Warranty Insurance Policy” means the representation and warranty insurance policy obtained by the Sponsor in connection
with the transactions contemplated by the Acquisition Agreement.
“Representative” has the meaning assigned
to such term in Section 9.13.
“Required
Excess Cash Flow Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 4.00:1.00,
50%, (b) if the First Lien Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.50:1.00, 25% and (c) if the First Lien
Leverage Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies
to the determination of the amount of Excess Cash Flow that is required to be applied to prepay Subject Loans under Section 2.11(b)(i)
for any Excess Cash Flow Period, the First Lien Leverage Ratio shall be determined on the scheduled date of prepayment (after giving pro
forma effect to such prepayment and to any other repayment or prepayment at or prior to the time such Excess Cash Flow prepayment is due).
“Required
Lenders” means, at any time, Lenders having Loans or unused Revolving Credit Commitments or Additional Commitments representing
more than 50% of the sum of the total Loans and such unused commitments at such time.
“Required
Net Proceeds Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 4.00:1.00,
100%, (b) if the First Lien Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.50:1.00, 50% and (c) if the First Lien
Leverage Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies
to the determination of the amount of Net Proceeds or Net Insurance/Condemnation Proceeds that are required to be applied to prepay Subject
Loans under Section 2.11(b)(ii) for any payment, the First Lien Leverage Ratio shall be determined on the date on which such proceeds
are received by the applicable Borrower or Restricted Subsidiary (giving pro forma effect to the subject Dispositions and/or casualty
events and the application of the relevant proceeds thereof).
“Requirements
of Law” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational
or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs,
injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof
by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having the
force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property
is subject.
“Resolution
Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible
Officer” of any Person means the chief executive officer, the president, the chief financial officer, the treasurer, any assistant
treasurer, any executive vice president, any senior vice president, any vice president or the chief operating officer of such Person and
any other individual or similar official thereof responsible for the administration of the obligations of such Person in respect of this
Agreement, and, as to any document delivered on the Closing Date, shall include any secretary or assistant secretary or any other individual
or similar official thereof with substantially equivalent responsibilities of a Loan Party and, solely for purposes of notices given pursuant
to Article 2, any other officer of the applicable Loan Party so designated by any of the foregoing officers in a written notice
to the Administrative Agent (including, for the avoidance of doubt, by electronic means). Any document delivered hereunder that is signed
by a Responsible Officer of any Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership
and/or other action on the part of such Loan Party, and such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
“Responsible
Officer Certification” means, with respect to the financial statements for which such certification is required, the certification
of a Responsible Officer of the Borrower that such financial statements fairly present, in all material respects, in accordance with GAAP,
the consolidated financial condition of the Borrower as at the dates indicated and its consolidated income and cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end adjustments and, in the case of quarterly financial statements,
the absence of footnotes.
“Restricted Amount” has the meaning set
forth in Section 2.11(b)(iv).
“Restricted
Debt” means any Junior Indebtedness and any Junior Lien Indebtedness, in each case to the extent the outstanding principal amount
thereof is equal to or greater than the Threshold Amount.
“Restricted Debt Payment” has the meaning
set forth in Section 6.04(b).
“Restricted
Payment” means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of the Borrower,
except a dividend payable solely in shares of Qualified Capital Stock (or in options, warrants or other rights to purchase such Qualified
Capital Stock) to the holders of such class, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition
for value of any shares of any class of the Capital Stock of the Borrower and (c) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares of any class of the Capital Stock of the Borrower now or hereafter
outstanding. The amount of any Restricted Payment (other than Cash) shall be the fair market value, as determined in good faith by the
Borrower on the applicable date set forth in Section 1.04(e), of the assets or securities proposed to be transferred or issued
by the Borrower pursuant to such Restricted Payment.
“Restricted
Subsidiary” means, as to any Person, any subsidiary of such Person that is not an Unrestricted Subsidiary. Unless otherwise
specified, “Restricted Subsidiary” shall mean any Restricted Subsidiary of the Borrower.
“Revolving
Credit Commitment” means any Initial Revolving Credit Commitment and any Additional Revolving Credit Commitment.
“Revolving
Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of such Lender’s
Initial Revolving Credit Exposure and Additional Revolving Credit Exposure.
“Revolving Facility”
means the Initial Revolving Facility and, if applicable, any Replacement Revolving Facility.
“Revolving Facility Test Condition”
has the meaning set forth in the Pari First Lien Credit Agreement.
“Revolving Lender” means any Initial
Revolving Lender and any Additional Revolving Lender.
“Revolving Loans” means any Initial Revolving Loans and any Additional
Revolving Loans.
“S&P”
means Standard & Poor’s Financial Services LLC, a subsidiary of the McGraw-Hill Companies, Inc.
“Sale and Lease-Back Transaction” has the
meaning assigned to such term in Section 6.08.
“Sanctioned
Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time
of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office
of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State, (b)
any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons
described in the foregoing clause (a).
“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the Office of Foreign
Assets Control of the U.S. Department of the Treasury, the U.S. Department of Commerce or the U.S. Department of State.
“Scheduled Consideration” has the meaning
assigned to such term in Section 2.11(b)(i).
“SEC”
means the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of its functions.
“Secured Parties” means (i) the Lenders, (ii)
the Administrative Agent, (iii) the Arranger and (iv) the beneficiaries of each indemnification obligation undertaken by any Loan
Party under any Loan Document.
“Securities”
means any stock, shares, units, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares
or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing; provided that the term “Securities” shall not include any earn-out agreement or obligation or
any employee bonus or other incentive compensation plan or agreement.
“Securities
Act” means the Securities Act of 1933 and the rules and regulations of the SEC promulgated thereunder.
“Securitization
Repurchase Obligation” means any obligation of a seller (or any guaranty of such obligation) of assets subject to a Qualified
Receivables Facility to repurchase such assets arising as a result of a breach of a representation, warranty or covenant or otherwise,
including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset
or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to such seller.
“Security
Agreement” means the First Lien Pledge and Security Agreement, substantially in the form of Exhibit J, among the Loan
Parties and the Administrative Agent for the benefit of the Secured Parties.
“Series
A Preferred Stock” means the shares of preferred stock of Holdings, designated as “Series A Preferred Stock”, having
the terms set forth in the certificate of incorporation of Bowlero.
“Shannon
Holders” means (i) Thomas Shannon, (ii) Cobalt Recreation LLC, (iii) any Immediate Family Member of Thomas Shannon, (iv) a trust,
family-partnership or estate-planning vehicle or other legal entity substantially all the economic interests of which are held by or for
the benefit of Thomas Shannon and/or any of his Immediate Family Members and (v) any other Affiliate of Thomas Shannon or any other Shannon
Holder, including The Cobalt Group LLC.
“Similar Business”
means any Person the majority of the revenues of which are derived from a business that would be permitted by Section 5.16 if
the references to “Restricted Subsidiaries” in Section 5.16 were read to refer to such Person.
“SLB
Property” means the real property interests (and Bowling Equipment and other tangible personal property located thereon) that
are subject to the iStar Sale/Leaseback or the iStar Sale/Leaseback 2014.
“SOFR”
with respect to any day means the secured overnight financing rate published for such day by the NYFRB, as the administrator of the benchmark
(or a successor administrator), on the NYFRB’s Website.
“SOFR-Based Rate” means SOFR, Compounded
SOFR or Term SOFR.
“SPC” has the meaning assigned to such term in Section 9.05(e).
“Sponsor”
means Atairos Group, Inc. and the funds, partnerships, investment vehicles or other co-investment vehicles or other entities
managed, advised or controlled by Atairos Group, Inc. or its Affiliates (but in any event excluding any portfolio company of any of
the foregoing).
“Standard
Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary of the Borrower which the Borrower has determined in good faith to be customary in a Receivables Facility, including, without
limitation, those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Securitization Repurchase
Obligation shall be deemed to be a Standard Securitization Undertaking.
“Statutory
Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Federal Reserve Board to which the Administrative Agent is subject
with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in
Regulation D). Such reserve percentage shall include those imposed pursuant to Regulation D. LIBO Rate Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Subject
Loans” means, as of any date of determination, (a) Revolving Loans and (b) any Additional Revolving Loans that are subject to
ratable prepayment requirements in accordance with Section 2.11(b) on such date of repayment.
“Subject Person”
has the meaning assigned to such term in the definition of “Consolidated Net Income”.
“Subject Proceeds” has the meaning assigned
to such term in Section 2.11(b)(ii).
“Subject
Transaction” means, with respect to any Test Period, (a) the Transactions, (b) any Permitted Acquisition or any other acquisition,
whether by purchase, merger, amalgamation or otherwise, of all or substantially all of the assets of, or any business line, unit or division
of, any Person or any facility, or of a majority of the outstanding Capital Stock of any Person (but in any event including any Investment
in any Restricted Subsidiary which serves to increase the Borrower’s or any Restricted Subsidiary’s respective equity ownership
in such Restricted Subsidiary), in each case that is permitted by this Agreement, (c) any Disposition of all or substantially all of the
assets or Capital Stock of a subsidiary (or any business unit, line of business or division of the Borrower or a Restricted Subsidiary)
not prohibited by this Agreement, (d) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary
as a Restricted Subsidiary in accordance with Section 5.10 hereof, (e) any incurrence or repayment of Indebtedness (other than
revolving Indebtedness), (f) any Cost Savings Initiative and/or (g) any other event that by the terms of the Loan Documents requires pro
forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a pro forma basis.
“Subsidiary”
or “subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of the total voting power of stock or other ownership interests entitled
(without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or
other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is
at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or a combination
thereof; provided that in determining the percentage of ownership interests of any Person controlled by another Person, no ownership
interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding. Unless otherwise specified,
“subsidiary” shall mean any subsidiary of the Borrower.
“Subsidiary
Guarantor” means (x) on the Closing Date, each subsidiary of the Borrower (other than any subsidiary that is an Excluded
Subsidiary on the Closing Date) and (y) thereafter, each subsidiary of the Borrower that becomes a guarantor of the Obligations
pursuant to the terms of this Agreement, in each case, until such time as the relevant subsidiary is released from its obligations
under the Loan Guaranty in accordance with the terms and provisions hereof. Notwithstanding the foregoing, the Borrower may from
time to time, upon notice to the Administrative Agent (or in the case of a Foreign Subsidiary, the prior written consent of the
Administrative Agent (not to be unreasonably withheld or delayed)), elect to cause any subsidiary that would otherwise be an
Excluded Subsidiary to become a Subsidiary Guarantor hereunder (but shall have no obligation to do so), subject to the satisfaction
of guarantee and collateral requirements consistent with the Collateral and Guarantee Requirements or otherwise reasonably
acceptable to the Borrower and the Administrative Agent (which shall include, in the case of a Foreign Subsidiary, guarantee and
collateral requirements customary under local law, including customary local limitations).
“Successor Borrower” has the meaning assigned
to such term in Section 6.07(a).
“Swap
Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination
of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided
by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.
“Tax Group” has the meaning assigned to
such term in Section 6.04(a)(xv).
“Taxes”
means any and all present and future taxes (including “business activities” taxes), levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions
to tax or penalties applicable thereto.
“Term
SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Termination Date” has the meaning assigned
to such term in the lead-in to Article 5.
“Test
Period” means, as of any date, (a) for purposes of determining actual compliance with Section 6.15(a), the period of
four consecutive Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as
applicable, have been delivered (or are required to have been delivered) and (b) for any other purpose, the period of four consecutive
Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable,
have been delivered (or are required to have been delivered) or, if earlier, are internally available; it being understood and agreed
that prior to the first delivery (or required delivery) of financial statements under Section 5.01(a), “Test Period”
means the period of four consecutive Fiscal Quarters most recently ended for which financial statements of Holdings and its consolidated
subsidiaries are available.
“Threshold Amount” means $30,000,000.
“Total
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Total Debt outstanding as of such date
to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term
“Total Leverage Ratio” is used in this Agreement in each case for the Borrower and its Restricted Subsidiaries.
“Total
Revolving Credit Commitment” means, at any time, the aggregate amount of the Revolving Credit Commitments as in effect at such
time. The Total Revolving Credit Commitment as of the Closing Date is $150,000,000.
“Trademark”
means the following: (a) all trademarks (including service marks), common law marks, trade names, trade dress, and logos, slogans
and other indicia of origin under the laws of any jurisdiction in the world, and the registrations and applications for registration
thereof and the goodwill of the business symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties,
damages and payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims and
payments for past and future infringements thereof; (d) all rights to sue for past, present and future infringements of the
foregoing, including the right to settle suits involving claims and demands for royalties owing; and (e) all domestic rights
corresponding to any of the foregoing.
“Transaction
Costs” means fees, premiums, expenses and other transaction costs (including original issue discount or upfront fees) payable
or otherwise borne by any Parent Company and/or its subsidiaries in connection with the Transactions and the transactions contemplated
thereby.
“Transactions”
means, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party
and the Borrowing of Loans hereunder, (b) the execution, delivery and performance by the Credit Support Provider of the Credit Support
Documents and (c) the payment of the Transaction Costs.
“Treasury Capital Stock” has the meaning
assigned to such term in Section 6.04(a)(viii).
“Treasury Regulations”
means the U.S. federal income tax regulations promulgated under the Code.
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate or the Alternate Base Rate.
“UCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required
to be applied in connection with the creation or perfection of security interests.
“UK
Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to
time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as
amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and
investment firms, and certain affiliates of such credit institutions or investment firms.
“UK
Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution
of any UK Financial Institution.
“Unadjusted
Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment; provided that,
if the Unadjusted Benchmark Replacement as so determined would be less than zero, the Unadjusted Benchmark Replacement will be deemed
to be zero for the purposes of this Agreement.
“Unrestricted
Cash Amount” means, as to any Person on any date of determination, the amount of (a) unrestricted Cash and Cash
Equivalents of such Person and its Restricted Subsidiaries and (b) Cash and Cash Equivalents of such Person and its Restricted
Subsidiaries that are restricted in favor of the Revolving Facility, any Pari First Lien Facility and/or other permitted pari
passu or junior secured Indebtedness (which may also include Cash and Cash Equivalents securing other Indebtedness that is
secured by a Lien on Collateral along with the Revolving Facility, any Pari First Lien Facility and/or any other permitted pari
passu or junior secured Indebtedness), in each case as determined in accordance with GAAP.
“Unrestricted
Subsidiary” means any subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary on the Closing Date
and listed on Schedule 5.10 hereto or after the Closing Date pursuant to Section 5.10.
“Unused
Revolving Credit Commitment” of any Lender, at any time, means the remainder of the Revolving Credit Commitment of such Lender
at such time, if any, less the aggregate Outstanding Amount of Revolving Loans made by such Lender.
“U.S.” or “United States”
means the United States of America.
“USA
PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“U.S. Tax Compliance Certificate” has the
meaning assigned to such term in Section 2.17(f).
“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a)
the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other
required scheduled payments of principal, including payment at final maturity, in respect thereof by (ii) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount
of such Indebtedness; provided that the effect of any prepayment made in respect of such Indebtedness shall be disregarded in making
such calculation.
“Wholly-Owned
Subsidiary” of any Person means a subsidiary of such Person 100% of the Capital Stock of which (other than directors’
qualifying shares or shares required by Requirements of Law to be owned by a resident of the relevant jurisdiction) are owned by such
Person or by one or more Wholly-Owned Subsidiaries of such Person.
“Write-Down
and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion
powers are described in the EU Bail-In Legislation Schedule.
Section 1.02.
Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g.,
a “Revolving Loan”) or by Type (e.g., a “LIBO Rate Loan”) or by Class and Type (e.g., a “LIBO
Rate Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving Loan Borrowing”)
or by Type (e.g., a “LIBO Rate Borrowing”) or by Class and Type (e.g., a “LIBO Rate Revolving Loan Borrowing”).
Section 1.03. Terms
Generally. (a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words
“include,” “includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning and effect as the word
“shall.” The words “ordinary course of business” or “ordinary course” shall, with respect to any
Person, be deemed to refer to items or actions that are consistent with industry practice of such Person’s business industry
or such Person’s past practice (it being understood that the sale of accounts receivable (and related assets) pursuant to
supply-chain, factoring or reverse factoring arrangements entered into by the Borrower and its Restricted Subsidiaries shall be
deemed to be in the ordinary course of business so long as such accounts receivable (and related assets) are sold for Cash in an
amount not less than 95% of the face amount thereof). Unless the context requires otherwise (i) any definition of or reference to
any agreement, instrument or other document herein or in any Loan Document or Credit Support Document (including any Loan Document,
the Pari First Lien Credit Agreement and any Loan Document referred to therein) shall be construed as referring to such agreement,
instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified or
extended, replaced or refinanced (subject to any restrictions or qualifications on such amendments, restatements, amendment and
restatements, supplements or modifications or extensions, replacements or refinancings set forth herein), (ii) any reference to any
Requirement of Law in any Loan Document or Credit Support Document shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing, superseding or interpreting such Requirement of Law, (iii) any reference herein
or in any Loan Document or Credit Support Document to any Person shall be construed to include such Person’s successors and
permitted assigns, (iv) the words “herein,” “hereof” and “hereunder,” and words of similar
import, when used in any Loan Document or Credit Support Document, shall be construed to refer to such Loan Document or Credit
Support Document in its entirety and not to any particular provision hereof, (v) all references herein or in any Loan Document or
Credit Support Document to Articles, Sections, clauses, paragraphs, Exhibits and Schedules shall be construed to refer to Articles,
Sections, clauses and paragraphs of, and Exhibits and Schedules to, such Loan Document or Credit Support Document, (vi) in the
computation of periods of time in any Loan Document or Credit Support Document from a specified date to a later specified date, the
word “from” means “from and including”, the words “to” and “until” mean “to
but excluding” and the word “through” means “to and including” and (vii) the words “asset”
and “property”, when used in any Loan Document or Credit Support Document, shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including Cash, securities, accounts and
contract rights.
(a) For purposes of
determining compliance at any time with Sections 6.01, 6.02, 6.04, 6.06 and 6.07, in the event
that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment or Disposition, as applicable, or portion
thereof, at any time meets the criteria of more than one of the categories of transactions or items permitted pursuant to any clause
of such Sections 6.01 (other than Sections 6.01(a) (in the case of Indebtedness incurred on the Closing Date) and (x)), 6.02
(other than Sections 6.02(a) and (t) (with respect to Section 6.01(x)), 6.04, 6.06 and 6.07
(each of the foregoing, a “Reclassifiable Item”), the Borrower, in its sole discretion, may, from time to time,
divide, classify or reclassify such Reclassifiable Item (or portion thereof) under one or more clauses of each such Section and will
only be required to include such Reclassifiable Item (or portion thereof) in any one category; provided that, upon delivery
of any financial statements pursuant to Section 5.01(a) or (b) following the initial incurrence or making of any such
Reclassifiable Item, if such Reclassifiable Item could, based on such financial statements, have been incurred in reliance on any
“ratio-based” basket (in the case of all Reclassifiable Items), such Reclassifiable Item shall automatically be
reclassified as having been incurred or made under such “ratio-based” basket (subject to any such
“ratio-based” basket). It is understood and agreed that any Indebtedness, Lien, Restricted Payment, Restricted Debt
Payment, Investment and/or Disposition need not be permitted solely by reference to one category of permitted Indebtedness, Lien,
Restricted Payment, Restricted Debt Payment, Investment and/or Disposition under Sections 6.01, 6.02, 6.04, 6.06
or 6.07, respectively, but may instead be permitted in part under any combination thereof or under any other available
exception.
(b) For purposes of
determining compliance at any time with Sections 6.01, 6.02, 6.04, 6.06 and 6.07, if any action
taken on or after the Pari First Lien Closing Date and prior to the Closing Date either contributed to or constituted usage of a
“builder” basket, “ratio-based” basket or “dollar” basket, in each case, that is set forth in
the Pari First Lien Credit Agreement, then such action shall be deemed to have also contributed to or constituted usage of, in an
equivalent amount, the corresponding “builder” basket, “ratio-based” basket or “dollar” basket,
in each case, that is set forth in this Agreement (giving effect to applicable provisions concerning reclassification and refreshing
of baskets).
Section 1.04. Accounting Terms; GAAP.
(a) (i)
All financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time to
time and, except as otherwise expressly provided herein, all terms of an accounting or financial nature that are used in calculating the
Total Leverage Ratio, the First Lien Leverage Ratio, Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated Total Assets
shall be construed and interpreted in accordance with GAAP, as in effect from time to time; provided that (A) if any change to
GAAP or in the application thereof (including the conversion to IFRS as described below) is implemented after the date of delivery of
the financial statements described in Section 3.04(a) and/or there is any change in the functional currency reflected in the financial
statements or (B) if the Borrower elects or is required to report under IFRS, the Borrower or the Required Lenders may request to amend
the relevant affected provisions hereof (whether or not the request for such amendment is delivered before or after the relevant change
or election) to eliminate the effect of such change or election, as the case may be, on the operation of such provisions and (x) the Borrower
and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (it being understood
that no amendment or similar fee shall be payable to the Administrative Agent or any Lender in connection therewith) to preserve the original
intent thereof in light of the applicable change or election, as the case may be and (y) the relevant affected provisions shall be interpreted
on the basis of GAAP and the currency, in each case, as in effect and applied immediately prior to the applicable change or election,
as the case may be, until the request for amendment has been withdrawn by the Borrower or the Required Lenders, as applicable, or this
Agreement has been amended as contemplated hereby. Any consent required from the Administrative Agent or any Required Lender with respect
to the foregoing shall not be unreasonably withheld, conditioned or delayed.
(ii) All
terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein
shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10-25 (previously referred to as
Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification, International Accounting Standard or
Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any
subsidiary at “fair value,” as defined therein, (ii) any treatment of Indebtedness in respect of convertible debt instruments
under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification, International Accounting Standard or Financial
Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein,
and such Indebtedness shall at all times be valued at the full stated principal amount thereof and (iii) the application of Accounting
Standards Codification 480, 815, 805 and 718 (to the extent these pronouncements under Accounting Standards Codification 718 result in
recording an equity award as a liability on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries in the circumstance
where, but for the application of the pronouncements, such award would have been classified as equity). If the Borrower notifies the Administrative
Agent that the Borrower (or its applicable Parent Company) is required to report under IFRS or has elected to do so through an early adoption
policy, “GAAP” shall mean international financial reporting standards pursuant to IFRS (provided thereafter, the Borrower
cannot elect to report under GAAP).
(b) Notwithstanding anything
to the contrary herein, but subject to Sections 1.04(d), (e) and (g),
all financial ratios and tests (including the Total Leverage Ratio, the First Lien Leverage Ratio and the amount of Consolidated Total
Assets, Consolidated Net Income and Consolidated Adjusted EBITDA) contained in this Agreement that are calculated with respect to any
Test Period during which any Subject Transaction occurs shall be calculated with respect to such Test Period and such Subject Transaction
on a Pro Forma Basis. Further, if since the beginning of any such Test Period and on or prior to the date of any required calculation
of any financial ratio or test (x) any Subject Transaction has occurred or (y) any Person that subsequently became a Restricted Subsidiary
or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such
Test Period has consummated any Subject Transaction, then, in each case, any applicable financial ratio or test shall be calculated on
a Pro Forma Basis for such Test Period as if such Subject Transaction had occurred at the beginning of the applicable Test Period (or,
in the case of Consolidated Total Assets (or with respect to any determination pertaining to the balance sheet, including the acquisition
of Cash and Cash Equivalents), as of the last day of such Test Period), it being understood, for the avoidance of doubt, that solely
for purposes of calculating quarterly compliance with Section 6.15 the date of the required calculation shall be the last day
of the Test Period, and no Subject Transaction occurring thereafter shall be taken into account.
(c) Notwithstanding
anything to the contrary contained in paragraph (a) above or in the definition of “Attributable Debt”, “Capital
Lease” or “Capital Lease Obligation”, in the event of an accounting change or a change in the application of GAAP requiring
all or certain leases to be capitalized or otherwise accounted for as liabilities on the balance sheet of the applicable Person, unless
the Borrower elects otherwise, only those leases (assuming for purposes hereof that such leases were in existence on the Pari First Lien
Closing Date) that would constitute Capital Leases (including leases that are classified as “Financing Leases” for purposes
of GAAP) in conformity with GAAP on the Pari First Lien Closing Date shall be considered Capital Leases, and all calculations and deliverables
under this Agreement or any other Loan Document or Credit Support Document shall be made or delivered, as applicable, in accordance therewith.
Notwithstanding anything contained in any Loan Document to the contrary, the leases relating to the iStar Sale/Leaseback, the iStar Sale/Leaseback
2014 and any Excluded Property Sale/Leaseback Transaction shall be deemed not to be and shall not otherwise be classified as a Capital
Lease (and the obligations in respect thereof shall not be considered Indebtedness) for purposes of this Agreement and any other Loan
Document.
(d) For
purposes of determining the permissibility of any action, change, transaction or event that by the terms of the Loan Documents or Credit
Support Document requires a calculation of any financial ratio or financial test (including the Total Leverage Ratio, the First Lien Leverage
Ratio and the amount of Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated Total Assets), subject to the succeeding
clause (e), such financial ratio or test shall be calculated at the time such action is taken, such change is made, such transaction
is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as
a result of a change in such financial ratio or financial test occurring after the time such action is taken, such change is made, such
transaction is consummated or such event occurs, as the case may be.
(e) Notwithstanding anything
to the contrary herein (including in connection with any calculation made on a Pro Forma Basis), if the terms of this Agreement
require (i) compliance with any financial ratio or financial test (including, without limitation, Section 6.15(a) hereof, any
First Lien Leverage Ratio test and/or any Total Leverage Ratio test) and/or any cap expressed as a percentage of Consolidated Total
Assets or Consolidated Adjusted EBITDA, (ii) accuracy of any representation or warranty and/or the absence of a Default or Event of
Default (or any type of default or event of default) or (iii) compliance with any basket, as a condition to (A) the consummation of
any transaction (including in connection with any acquisition or similar Investment or the assumption or incurrence of
Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of any Restricted Debt Payment, in each case in
connection with a Limited Condition Transaction, the determination of whether the relevant condition is satisfied may be made, at
the election of the Borrower, (1) in the case of any acquisition or similar Investment or any Disposition and any transaction
related thereto, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of)
either (x) the execution of the definitive agreement with respect to such acquisition, Investment or Disposition or (y) the
consummation of such acquisition, Investment or Disposition, (2) in the case of any Restricted Payment, at the time of (or on the
basis of the financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted
Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment, at the time of (or on the
basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of notice with respect to
such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after giving effect to the relevant
acquisition, Restricted Payment and/or Restricted Debt Payment or other transaction on a Pro Forma Basis (including, in each case,
giving effect to the relevant transaction, any relevant Indebtedness (including the intended use of proceeds thereof) and, at the
election of the Borrower, giving pro forma effect to other prospective Limited Condition Transactions that are acquisitions or
similar Investments for which definitive agreements have been executed, and no Default or Event of Default shall be deemed to have
occurred solely as a result of an adverse change in such financial ratio or test occurring after the time such election is made (but
any subsequent improvement in the applicable financial ratio or test may be utilized by the Borrower or any Restricted Subsidiary).
For the avoidance of doubt, if the Borrower shall have elected the option set forth in clause (x) of any of the preceding clauses
(1), (2) or (3) in respect of any transaction, then the Borrower shall be permitted to consummate such transaction even if any
applicable test or condition shall cease to be satisfied subsequent to the Borrower’s election of such option.
(f) [Reserved].
(g) Notwithstanding
anything to the contrary herein, unless the Borrower otherwise notifies the Administrative Agent, with respect to any amounts incurred
under the Revolving Facility, any Additional Revolving Facility or any other permitted revolving facility or any amounts incurred or transactions
entered into (or consummated) in reliance on a provision of this Agreement (including Section 6.01(x) (as it relates to the incurrence
of any “fixed” or similar amount incurred under any Pari First Lien Facility)) that does not require compliance with a financial
ratio or financial test (including any First Lien Leverage Ratio test and/or any Total Leverage Ratio test) (any such amounts, the “Fixed
Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on
a provision of this Agreement (including Section 6.01(x) (as it relates to the incurrence of any “incurrence based”
or similar amount incurred under any Pari First Lien Facility)) that requires compliance with a financial ratio or financial test (including
any First Lien Leverage Ratio test and/or any Total Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”),
it is understood and agreed that (A) the incurrence of the Incurrence-Based Amount shall be calculated first without giving effect to
any Fixed Amount but giving full pro forma effect to the use of proceeds of such Fixed Amount and the related transactions and (B) the
incurrence of the Fixed Amount shall be calculated thereafter. Unless the Borrower elects otherwise, the Borrower shall be deemed to have
used amounts under an Incurrence-Based Amount then available to the Borrower prior to utilization of any amount under a Fixed Amount then
available to the Borrower. For the avoidance of doubt, all Indebtedness substantially concurrently incurred will be included for purposes
of calculating compliance with Sections 6.04(a)(xiii), 6.04(b)(vii) and 6.06(dd) (in each case, giving pro forma
effect to the intended use of proceeds thereof).
(h) The
principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the
principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
(i) The
increase in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of interest
or a dividend in the form of additional Indebtedness, amortization of original issue discount and/or any increase in the amount of Indebtedness
outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency will not be deemed to be the granting
of a Lien for purposes of Section 6.02.
(j) For
purposes of determining compliance with Section 6.01 or Section 6.02, if any Indebtedness or Lien is incurred in reliance
on a basket measured by reference to a percentage of Consolidated Adjusted EBITDA, and any refinancing or replacement thereof would cause
the percentage of Consolidated Adjusted EBITDA to be exceeded if calculated based on the Consolidated Adjusted EBITDA on the date of such
refinancing or replacement, such percentage of Consolidated Adjusted EBITDA will be deemed not to be exceeded so long as the principal
amount of such refinancing or replacement Indebtedness or other obligation does not exceed an amount sufficient to repay the principal
amount of such Indebtedness or other obligation being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest,
penalties and premiums (including tender, prepayment or repayment premiums) thereon plus underwriting discounts and other customary fees,
commissions and expenses (including upfront fees, original issue discount or initial yield payment) incurred in connection with such refinancing
or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under Section
6.01.
(k) Any
financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific
action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying
the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number).
Section 1.05.
Effectuation of Transactions. Each of the representations and warranties contained in this Agreement (and all corresponding definitions)
is made after giving effect to the Transactions, unless the context otherwise requires.
Section 1.06.
Timing of Payment and Performance. When payment of any obligation or the performance of any covenant, duty or obligation is stated
to be due or required on a day which is not a Business Day, the date of such payment (other than as described in the definition of “Interest
Period”) or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension.
Section 1.07.
Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight
or standard, as applicable).
Section 1.08. Currency Equivalents Generally.
(a) Notwithstanding anything
to the contrary in clause (b) below, for purposes of any determination under Article 5, Article 6 (other than Section
6.15 and the calculation of compliance with any financial ratio for purposes of taking any action hereunder) or Article 7
with respect to the amount of any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition, Sale and
Lease-Back Transaction, affiliate transaction or other transaction, event or circumstance, or any determination under any other
provision of this Agreement (any of the foregoing, a “relevant transaction”), in a currency other than Dollars,
(i) the Dollar equivalent amount of a relevant transaction in a currency other than Dollars shall be calculated based on the rate of
exchange quoted by the Bloomberg Foreign Exchange Rates & World Currencies Page (or any successor page thereto, or in the event
such rate does not appear on any Bloomberg Page, by reference to such other publicly available service for displaying exchange rates
as may be agreed upon by the Administrative Agent and the Borrower) for such foreign currency, as in effect at 11:00 a.m. (London
time) on the date of such relevant transaction (which, in the case of any Restricted Payment, Restricted Debt Payment, Investment,
Disposition or incurrence of Indebtedness, shall be determined as set forth in Section 1.04(e)); provided, that if any
Indebtedness is incurred (and, if applicable, associated Lien granted) to refinance or replace other Indebtedness denominated in a
currency other than Dollars, and the relevant refinancing or replacement would cause the applicable Dollar-denominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing or replacement, such
Dollar- denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing or
replacement Indebtedness (and, if applicable, associated Lien granted) does not exceed an amount sufficient to repay the principal
amount of such Indebtedness being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest, penalties and
premiums (including tender premiums) thereon plus underwriting discounts and other customary fees, commissions and expenses
(including upfront fees, original issue discount or initial yield payment) incurred in connection with such refinancing or
replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under Section
6.01 and (ii) for the avoidance of doubt, no Default or Event of Default shall be deemed to have occurred solely as a result of
a change in the rate of currency exchange occurring after the time of any relevant transaction so long as such relevant transaction
was permitted at the time incurred, made, acquired, committed, entered or declared as set forth in clause (i). For purposes
of Section 6.15 and the calculation of compliance with any financial ratio for purposes of taking any action hereunder on any
relevant date of determination, amounts denominated in currencies other than Dollars shall be translated into Dollars at the
applicable currency exchange rate used in preparing the financial statements delivered pursuant to Sections 5.01(a) or (b)
(or, prior to the first such delivery, the financial statements referred to in Section 3.04), as applicable, for the relevant
Test Period. Notwithstanding the foregoing or anything to the contrary herein, to the extent that the Borrower would not be in
compliance with Section 6.15(a) if any Indebtedness denominated in a currency other than Dollars were to be translated into
Dollars on the basis of the applicable currency exchange rate used in preparing the financial statements delivered pursuant to Section
5.01(a) or (b), as applicable, for the relevant Test Period, but would be in compliance with Section 6.15(a) if
such Indebtedness that is denominated in a currency other than in Dollars were instead translated into Dollars on the basis of the
average relevant currency exchange rates over such Test Period (taking into account the currency translation effects, determined in
accordance with GAAP, of any Hedge Agreement permitted hereunder in respect of currency exchange risks with respect to the
applicable currency in effect on the date of determination for the Dollar equivalent amount of such Indebtedness), then, solely for
purposes of compliance with Section 6.15(a), the First Lien Leverage Ratio as of the last day of such Test Period shall be
calculated on the basis of such average relevant currency exchange rates.
(b) Each
provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time
specify with the Borrower’s consent to appropriately reflect a change in currency of any country and any relevant market convention
or practice relating to such change in currency.
Section 1.09.
Cashless Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the
extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Loans in connection
with any Replacement Revolving Facility or loans incurred under a new credit facility, in each case, to the extent such extension, replacement,
renewal or refinancing is effected by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing
shall be deemed to comply with any requirement hereunder or any other Loan Document that such payment be made “in Dollars”,
“in immediately available funds”, “in Cash” or any other similar requirement.
Section 1.10. [Reserved].
Section 1.11.
Guarantees and Collateral. Notwithstanding any provision of any Loan Document to the contrary, but subject to the second to last
sentence of this Section 1.11, until the Pari First Lien Obligations Payment Date, for purposes of any determination relating to
any Loan Guaranty or any Collateral that secures both the Pari First Lien Obligations and the Obligations hereunder (including any determination
with respect to any waiver or extension or any opportunity to request that is permitted or required under the definition of “Collateral
and Guarantee Requirement,” under this Agreement or under any other Loan Document) as to which the Administrative Agent is granted
discretion hereunder or under any other Loan Document, the determination of the Pari First Lien Agent (or the agent for the holders of
any applicable Pari First Lien Obligations) under the analogous provision of the corresponding Loan Document (as defined in the Pari First
Lien Credit Agreement (or any equivalent term under any Pari First Lien Facilities)) (or the documentation governing the other applicable
Pari First Lien Obligations) shall be deemed to be the determination of the Administrative Agent with respect thereto. Additionally, for
purposes of actions to be taken at the “request” or “reasonable request” of the Administrative Agent with respect
to any Loan Guaranty or Collateral, until the Pari First Lien Obligations Payment Date, such actions shall only be required to be taken
by Holdings or any of its subsidiaries if such action has also been requested to be taken by the Pari First Lien Agent, and the Administrative
Agent and Lenders hereunder shall be deemed to have accepted the Pari First Lien Agent’s determination; provided that (i) the foregoing
exceptions shall not apply where such action to be taken or determination made is otherwise requested by the Credit Support Provider or
an Affiliate thereof (whether as Lender or Credit Support Provider) and (ii) notwithstanding the foregoing, this Section 1.11 shall not
apply to any Credit Support Collateral or any guaranty provided under any Credit Support Documents, as to which all determinations, requests
and decisions shall be made by the Administrative Agent.
Section 1.12.
Interest Rates; LIBOR Notification. The interest rate on LIBO Rate Loans is determined by reference to the LIBO Rate, which is
derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing
banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority
announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark
Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA
setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may
no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on LIBO Rate
Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative
reference rates to be used in place of the London interbank offered rate. Upon the occurrence of a Benchmark Transition Event or an Early
Opt-in Election, Section 2.14(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent will promptly
notify the Borrower, pursuant to Section 2.14(d), of any change to the reference rate upon which the interest rate on LIBO Rate Loans
is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect
to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of
“LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without
limitation, (i) any such alternative, successor or replacement rate implemented pursuant to Section 2.14(b), whether upon the occurrence
of a Benchmark Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes
pursuant to Section 2.14(c)), including without limitation, whether the composition or characteristics of any such alternative, successor
or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same
volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.
Section 1.13.
Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or
any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes
the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person
to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired
on the first date of its existence by the holders of its Equity Interests at such time.
ARTICLE 2 THE CREDITS
Section 2.01. Commitments.
(a) Subject
to the terms and conditions set forth herein, including as set forth in Section 4.02(b), each Revolving Lender severally, and not jointly,
agrees to make Revolving Loans to the Borrower in Dollars at any time and from time to time on and after the Closing Date, and until the
earlier of the Initial Revolving Credit Maturity Date and the termination of the Initial Revolving Credit Commitment of such Revolving
Lender in accordance with the terms hereof; provided that, after giving effect to any Borrowing of Initial Revolving Loans, the
Outstanding Amount of such Revolving Lender’s Initial Revolving Credit Exposure shall not exceed such Revolving Lender’s Initial
Revolving Credit Commitment; provided further that, for the avoidance of doubt, the parties acknowledge that all Borrowings (after
the Closing Date) are subject to the consent of Atairos Group, Inc. in its sole and absolute discretion.
(b) Subject
to the terms and conditions of this Agreement and any applicable Refinancing Amendment, each Lender with an Additional Commitment of a
given Class, severally and not jointly, agrees to make Additional Loans of such Class to the Borrower, which Loans shall not exceed for
any such Lender at the time of any incurrence thereof the Additional Commitment of such Class of such Lender as set forth in the applicable
Refinancing Amendment.
Section 2.02. Loans and Borrowings.
(a) Each
Loan shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance with
their respective Commitments of the applicable Class.
(b) Subject to Section
2.01 and Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or LIBO Rate Loans as the Borrower may
request in accordance herewith. Each Lender at its option may make any LIBO Rate Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of
the Borrower to repay such Loan in accordance with the terms of this Agreement, (ii) such LIBO Rate Loan shall be deemed to have
been made and held by such Lender, and the obligation of the Borrower to repay such LIBO Rate Loan shall nevertheless be to such
Lender for the account of such domestic or foreign branch or Affiliate of such Lender and (iii) in exercising such option, such
Lender shall use reasonable efforts to minimize increased costs to the Borrower resulting therefrom (which obligation of such Lender
shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will
not be compensated hereunder or that it otherwise determines would be disadvantageous to it and in the event of such request for
costs for which compensation is provided under this Agreement, the provisions of Section 2.15 shall apply); provided, further,
that any such domestic or foreign branch or Affiliate of such Lender shall not be entitled to any greater indemnification under Section
2.17 with respect to such LIBO Rate Loan than that to which the applicable Lender was entitled on the date on which such Loan
was made (except in connection with any indemnification entitlement arising as a result of a Change in Law after the date on which
such Loan was made).
(c) At the commencement of
each Interest Period for any LIBO Rate Borrowing, such Borrowing shall comprise an aggregate principal amount that is an integral
multiple of $100,000 and not less than $500,000. Each ABR Borrowing when made shall be in a minimum principal amount of $100,000; provided
that an ABR Revolving Loan Borrowing may be made in a lesser aggregate amount that is equal to the entire aggregate Unused Revolving
Credit Commitments. Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall
not at any time be more than a total of 10 different Interest Periods in effect for LIBO Rate Borrowings at any time outstanding (or
such greater number of different Interest Periods as the Administrative Agent may agree from time to time).
(d) Notwithstanding
any other provision of this Agreement, the Borrower shall not, nor shall it be entitled to, request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date applicable to such Loans.
Section 2.03. Requests
for Borrowings. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of LIBO Rate Loans
shall be made upon irrevocable notice by the Borrower to the Administrative Agent (provided that notices in respect of any
Borrowings (x) to be made on the Closing Date may be conditioned on the closing of the Transactions and (y) to be made in connection
with any acquisition, Investment or irrevocable repayment, redemption or refinancing of Indebtedness may be conditioned on the
closing of such acquisition, Investment or irrevocable repayment, redemption or refinancing of such Indebtedness). Each such notice
must be in writing or by telephone (and promptly confirmed in writing) and must be received by the Administrative Agent (by hand
delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) not later than 12:00 p.m. (i)
three Business Days prior to the requested day of any Borrowing of, conversion to or continuation of LIBO Rate Loans (or 12:00 p.m.
one Business Day in the case of any Borrowing of LIBO Rate Loans to be made on the Closing Date) and (ii) on the requested date of
any Borrowing of or conversion to ABR Loans (or, in each case, such later time as shall be acceptable to the Administrative Agent); provided, however,
that if the Borrower wishes to request LIBO Rate Loans having an Interest Period of other than one, two, three or six months in
duration as provided in the definition of “Interest Period,” (A) the applicable notice from the Borrower must be
received by the Administrative Agent not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing,
conversion or continuation (or such later time as is acceptable to the Administrative Agent), whereupon the Administrative Agent
shall give prompt notice to the appropriate Lenders of such request and determine whether the requested Interest Period is
acceptable to them and (B) not later than 10:00 a.m. three Business Days before the requested date of such Borrowing, conversion or
continuation, the Administrative Agent shall notify the Borrower whether or not the requested Interest Period has been consented to
by all the appropriate Lenders. Each written notice (or confirmation of telephonic notice) with respect to a Borrowing by the
Borrower pursuant to this Section 2.03 shall be delivered to the Administrative Agent in the form of a written Borrowing
Request, appropriately completed and signed by a Responsible Officer of the Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:
(a) the Class of such Borrowing;
(b) the aggregate amount of the requested Borrowing;
(c) the date of such Borrowing, which shall be a Business Day;
(d) whether such Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing;
(e) in
the case of a LIBO Rate Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition
of the term “Interest Period”; and
(f) the
location and number of the Borrower’s account to which funds are to be disbursed, which such account shall be a segregated account
that holds only the proceeds of Loans (the “Funding Account”).
If no election as to the Type of
Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any
requested LIBO Rate Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The
Administrative Agent shall advise each Lender of the details thereof and of the amount of the Loan to be made as part of the requested
Borrowing (x) in the case of any ABR Borrowing, on the same Business Day of receipt of a Borrowing Request in accordance with this Section
or (y) in the case of any LIBO Rate Borrowing, no later than one Business Day following receipt of a Borrowing Request in accordance with
this Section.
Section 2.04. [Reserved].
Section 2.05. [Reserved].
Section 2.06. [Reserved].
Section 2.07. Funding of Borrowings.
(a) Each
Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by
1:00 p.m. to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an amount
equal to such Lender’s respective Applicable Percentage. The Administrative Agent will make such Loans available to the Borrower
by promptly crediting the amounts so received, in like funds, to the Funding Account or as otherwise directed by the Borrower.
(b) Unless the
Administrative Agent has received notice from any Lender prior to the proposed date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In such event, if any Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to
pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to the Loans comprising such Borrowing at such time. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing and the Borrower’s
obligation to repay the Administrative Agent such corresponding amount pursuant to this Section 2.07(b) shall cease. If the
Borrower pays such amount to the Administrative Agent, the amount so paid shall constitute a repayment of such Borrowing by such
amount. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any
rights which the Administrative Agent or the Borrower or any other Loan Party may have against any Lender as a result of any default
by such Lender hereunder.
Section 2.08. Type; Interest Elections.
(a) Each
Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a LIBO Rate Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert any Borrowing to
a Borrowing of a different Type or to continue such Borrowing and, in the case of a LIBO Rate Borrowing, may elect Interest Periods therefor,
all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders based upon their Applicable Percentages and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To
make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election either in writing (by hand
delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) or by telephone by the time that
a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and
shall be confirmed promptly by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)
to the Administrative Agent of a written Interest Election Request signed by a Responsible Officer of the Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing; and
(iv) if
the resulting Borrowing is a LIBO Rate Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a LIBO
Rate Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s
duration.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent shall advise each applicable Lender of the details thereof
and of such Lender’s portion of each resulting Borrowing.
(e) If the Borrower fails to
deliver a timely Interest Election Request with respect to a LIBO Rate Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing shall be converted at the end of such Interest
Period to a LIBO Rate Borrowing with an Interest Period of one month. Notwithstanding any contrary provision hereof, if an Event of
Default exists and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as such
Event of Default exists (i) no outstanding Borrowing may be converted to or continued as a LIBO Rate Borrowing and (ii) unless
repaid, each LIBO Rate Borrowing shall be converted to an ABR Borrowing at the end of the then-current Interest Period applicable
thereto.
Section 2.09. Termination and Reduction of Commitments.
(a) Unless
previously terminated, (i) the Initial Revolving Credit Commitments shall automatically terminate on the Initial Revolving Credit Maturity
Date and (ii) the Additional Revolving Credit Commitments of any Class shall automatically terminate on the Maturity Date specified therefor
in the applicable Refinancing Amendment.
(b) Upon
delivering the notice required by Section 2.09(c), the Borrower may at any time terminate or from time to time reduce the Revolving
Credit Commitments of any Class; provided that (i) each reduction of the Revolving Credit Commitments of any Class shall be in
an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or reduce
the Revolving Credit Commitments of any Class if, after giving effect to such termination or reduction, as applicable, and any concurrent
prepayment of Revolving Loans, the aggregate amount of the Revolving Credit Exposure attributable to the Revolving Credit Commitments
of such Class would exceed the aggregate amount of the Revolving Credit Commitments of such Class; provided that, after the establishment
of any Additional Revolving Credit Commitment, any such termination or reduction of the Revolving Credit Commitments of any Class shall
be subject to the provisions set forth in Section 9.02, as applicable.
(c) The
Borrower shall notify the Administrative Agent of any election to terminate or reduce any Class or Classes of Revolving Credit Commitments
under paragraph (b) of this Section (as selected by the Borrower) not later than 11:00 a.m. on or prior to the effective date of
such termination or reduction (or at least, not later than 11:00 a.m., three Business Days prior to the effective date of such termination
or reduction in the case of a termination or reduction involving a prepayment of LIBO Rate Borrowings (or such later date to which the
Administrative Agent may agree)), specifying such election and the effective date thereof. Promptly following receipt of any such notice,
the Administrative Agent shall advise the Revolving Lenders of each applicable Class or Classes of the contents thereof. Each notice delivered
by the Borrower pursuant to this Section shall be irrevocable; provided that any such notice may state that such notice is conditioned
upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of any Revolving Credit
Commitment pursuant to this Section 2.09 shall be permanent. Upon any reduction of any Revolving Credit Commitment, the Revolving
Credit Commitment of each Revolving Lender of the relevant Class shall be reduced by such Revolving Lender’s Applicable Percentage
of such reduction amount.
Section 2.10. Repayment of Loans; Evidence of Debt.
(a) [Reserved].
(b) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of each Revolving Lender the then unpaid principal
amount of each Revolving Loan on the Initial Revolving Credit Maturity Date. On the Initial Revolving Credit Maturity Date, the
Borrower shall make payment in full in Cash of all accrued and unpaid fees and all reimbursable expenses and other Obligations with
respect to the Revolving Facility then due, together with accrued and unpaid interest (if any) thereon.
(c) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from
time to time hereunder.
(d) The
Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for
the account of the Lenders and each Lender’s share thereof.
(e) The entries made in the
accounts maintained pursuant to paragraphs (c) or (d) of this Section shall be prima facie evidence of the existence
and amounts of the obligations recorded therein (absent manifest error); provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any manifest error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement; provided, further, that in the event of
any inconsistency between the accounts maintained by the Administrative Agent pursuant to paragraph (d) of this Section and
any Lender’s records, the accounts of the Administrative Agent shall govern.
(f) Any Lender
may request that Loans made by it be evidenced by a Promissory Note. In such event, the Borrower shall prepare, execute and deliver to
such Lender a Promissory Note payable to such Lender and its registered permitted assigns; it being understood and agreed that such Lender
(and/or its applicable permitted assign) shall be required to return such Promissory Note to the Borrower in accordance with Section
9.05(b)(iii) and upon the occurrence of the Termination Date (or as promptly thereafter as practicable). If any Lender loses the original
copy of its Promissory Note, it shall execute an affidavit of loss containing a customary indemnification provision that is reasonably
satisfactory to the Borrower. The obligation of each Lender to execute an affidavit of loss containing a customary indemnification provision
that is reasonably satisfactory to the Borrower shall survive the Termination Date.
Section 2.11. Prepayment of Loans.
(a) Optional Prepayments.
(i) [Reserved].
(ii) Upon
prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from time
to time to prepay any Borrowing of Revolving Loans of any Class, including any Additional Revolving Loans, in whole or in part without
premium or penalty (but subject to Section 2.16). Prepayments made pursuant to this Section 2.11(a)(ii) shall be applied
ratably to the outstanding Revolving Loans, including any Additional Revolving Loans of the relevant Class.
(iii) The
Borrower shall notify the Administrative Agent by telephone (confirmed in writing) of any prepayment under this Section
2.11(a) (A) in the case of a prepayment of a LIBO Rate Borrowing, not later than 1:00 p.m. three Business Days before the date
of prepayment or (B) in the case of a prepayment of an ABR Borrowing, not later than 1:00 p.m. on the date of prepayment. Each such
notice shall be irrevocable (except as set forth in the proviso to this sentence) and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided that a notice of prepayment delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of other transactions, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Promptly following receipt of any such notice relating to any Borrowing, the Administrative Agent shall advise the
relevant Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in
the case of a Borrowing of the same Type and Class as provided in Section 2.02(c) or such lesser amount that is then
outstanding with respect to such Borrowing being repaid.
(b) Mandatory Prepayments.
(i) No
later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower are
delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on or about June 30, 2020, the Borrower shall prepay
Subject Loans in accordance with clause (vi) below in an aggregate principal amount (the “ECF Prepayment Amount”)
equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess
Cash Flow Period then most recently ended, minus (B) at the option of the Borrower, to the extent occurring during such Excess
Cash Flow Period (or occurring after such Excess Cash Flow Period and prior to the date of the applicable Excess Cash Flow payment), and
without duplication (including duplication of any amounts deducted in any prior Excess Cash Flow Period), the following:
(1) the aggregate
principal amount of any Revolving Loans or Additional Revolving Loans prepaid pursuant to Section 2.11(a);
(2) (x) the aggregate principal amount of any
Replacement Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 6.01 to the extent secured by
Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Revolving Facility, voluntarily
prepaid, repurchased, redeemed or otherwise retired and (y) the aggregate principal amount of any loans under any Pari First Lien
Facility (including any Incremental Loans and Additional Loans (as defined in the Pari First Lien Credit Agreement or any other
document governing any Pari First Lien Facility)) prepaid pursuant to Section 2.11(a) of the Pari First Lien Credit Agreement
(or equivalent provision under any other document governing any Pari First Lien Facility) (to the extent the relevant voluntary
prepayments are permitted by the terms of this Agreement) and the aggregate principal amount of “Incremental Equivalent
Debt” (without duplication of clause (1) above) and/or Replacement Debt (as defined in the Pari First Lien Credit Agreement or
any other document governing any Pari First Lien Facility) secured on a pari passu basis with the Pari First Lien Facility
voluntarily prepaid, repurchased, redeemed or otherwise retired (or contractually committed to be prepaid, repurchased, redeemed or
otherwise retired);
(3) to the
extent permitted by the terms of this Agreement, the amount of any reduction in the outstanding amount of any loans under the Pari
First Lien Facility and/or any “Incremental Equivalent Debt” (without duplication of clause (1) above),
“Replacement Debt” and/or other Indebtedness permitted to be incurred thereunder to the extent secured by Liens on the
Collateral that are pari passu with the Liens on the Collateral securing the Pari First Lien Facility (including any
reduction resulting from any purchase or assignment made in accordance with Section 9.05(g) of the Pari First Lien Credit
Agreement (or equivalent provision under any other document governing any Pari First Lien Facility (including any Dutch Auction (as
defined in the Pari First Lien Credit Agreement or any other document governing any Pari First Lien Facility)) and any equivalent
provisions with respect to any such “Incremental Equivalent Debt”, “Replacement Debt” and/or such other
Indebtedness;
(4) all
Cash payments in respect of Capital Expenditures as would be reported in the Borrower’s consolidated statement of cash flows and
all Cash payments made to acquire IP Rights;
(5) Cash
payments by the Borrower and its Restricted Subsidiaries made (or committed) in respect of long-term liabilities (including for purposes
of clarity, the current portion of such long-term liabilities) of the Borrower and its Restricted Subsidiaries other than Indebtedness,
except to the extent such Cash payments were deducted in the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA for
such period;
(6) Cash payments in respect of any Investment
(including acquisitions) permitted by Section 6.06 or otherwise consented to by the Required Lenders (other than Investments
(x) in Cash or Cash Equivalents or (y) in the Borrower or any Loan Party) and/or any Restricted Payment permitted by Section
6.04(a) or otherwise consented to by the Required Lenders;
(7) the
aggregate consideration (i) required to be paid in Cash by the Borrower or its Restricted Subsidiaries pursuant to binding contracts entered
into prior to or during such period relating to Capital Expenditures, acquisitions or other Investments permitted by Section 6.06
or otherwise consented to by the Required Lenders and/or Restricted Payments described in clause (6) above and/or (ii) otherwise
committed or budgeted to be made in connection with Capital Expenditures, acquisitions or Investments and/or Restricted Payments described
in clause (6) above (clauses (i) and (ii) of this clause (7), the “Scheduled Consideration”) (other than Investments
in (x) Cash and Cash Equivalents or (y) the Borrower or any Loan Party) to be consummated or made during the period of four consecutive
Fiscal Quarters of the Borrower following the end of such period; provided that to the extent the aggregate amount actually utilized
to finance such Capital Expenditures, acquisitions, Investments or Restricted Payments during such subsequent period of four consecutive
Fiscal Quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added to the calculation of Excess
Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters;
(8) Cash expenditures in respect of any Hedge Agreement during such period
to the extent (A) not otherwise deducted in the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA and (B) not financed
with long-term funded Indebtedness (other than revolving Indebtedness); and
(9) the aggregate
amount of expenditures actually made by the Borrower and/or any Restricted Subsidiary in Cash (including any expenditure for the payment
of fees or other Charges (or any amortization thereof for such period) in connection with any Disposition, incurrence or repayment of
Indebtedness, issuance of Capital Stock, refinancing transaction, amendment or modification of any debt instrument, including this Agreement,
and including, in each case, any such transaction consummated prior to, on or after the Closing Date, and Charges incurred in connection
therewith, whether or not such transaction was successful), in each case to the extent that such expenditures were (A) not expensed and
(B) not financed with long-term funded Indebtedness (other than revolving Indebtedness);
in the case of each of clauses (1)-(9),
(I) excluding any such payments, prepayments and expenditures made during such Fiscal Year that reduced the amount required to be prepaid
pursuant to this Section 2.11(b)(i) in the prior Fiscal Year, (II) in the case of any prepayment of Revolving Loans and/or Additional
Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment, (III) to the extent that such payments,
prepayments and expenditures were not financed with the proceeds of other long-term funded Indebtedness (other than revolving Indebtedness)
of the Borrower or its Restricted Subsidiaries and (IV) in each case under clause (3) above, based upon the actual amount of cash paid
in connection with any relevant purchase or assignment; provided that no prepayment under this Section 2.11(b)(i) shall
be required unless the principal amount of Subject Loans required to be prepaid exceeds $2,500,000 (and, in such case, only such amount
in excess of $2,500,000 shall be required to be prepaid); provided, further, that if at the time that any such prepayment
would be required, the Borrower (or any Restricted Subsidiary) is also required to prepay, repurchase or offer to prepay or repurchase
any Indebtedness that is secured on a pari passu basis (without regard to the control of remedies) with any Obligations pursuant
to the terms of the documentation governing such Indebtedness (such Indebtedness required to be so prepaid or repurchased or offered
to be so prepaid or repurchased, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then
the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding
principal amount of the Subject Loans and the relevant Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness
is issued with original issue discount) at such time) to the prepayment of the Subject Loans and to the prepayment of the relevant Other
Applicable Indebtedness, and the amount of prepayment of the Subject Loans that would have otherwise been required pursuant to this Section
2.11(b)(i) shall be reduced accordingly; it being understood that (1) the portion of such ECF Prepayment Amount allocated to the
Other Applicable Indebtedness shall not exceed the portion of such ECF Prepayment Amount required to be allocated to the Other Applicable
Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the
Subject Loans in accordance with the terms hereof, (2) to the extent the holders of the Other Applicable Indebtedness decline to have
such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date
of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and (3) to the extent the outstanding principal
amount of the Subject Loans is zero at such time, the ECF Prepayment Amount may be allocated entirely to the Other Applicable Indebtedness.
(ii) No
later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net
Insurance/Condemnation Proceeds, in each case, in excess of (x) $10,000,000 in any single transaction or series of related
transactions and (y) $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to the Required Net Proceeds
Percentage of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds
(collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Subject Loans in accordance
with clause (vi) below; provided that (A) if prior to the date any such prepayment is required to be made, the
Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the
business of the Borrower or any of its subsidiaries (including permitted acquisitions or other Investments, but excluding Cash or
Cash Equivalents), then the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect
of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y)
the Borrower or any of its subsidiaries has contractually committed to so reinvest the Subject Proceeds during such 18-month period
and the Subject Proceeds are so reinvested within six months after the expiration of such 18-month period; provided, however,
that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall
promptly prepay the outstanding principal amount of Subject Loans with the Subject Proceeds not so reinvested as set forth above
(without regard to the immediately preceding proviso) and (B) if, at the time that any such prepayment would be required hereunder,
the Borrower or any of its Restricted Subsidiaries is required to repay or repurchase (or offer to repay or repurchase) any Other
Applicable Indebtedness, then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the
Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate
outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable
Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds
allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the
Other Applicable Indebtedness pursuant to the terms thereof (and the remaining amount, if any, of the Subject Proceeds shall be
allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that
would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly, (2) to the extent the
holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall
promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in
accordance with the terms hereof and (3) to the extent the outstanding principal amount of the Subject Loans is zero at such time,
the Subject Proceeds may be allocated entirely to the Other Applicable Indebtedness.
(iii) (A)
In the event that at the end of any Business Day following the date that is nine months after the Closing Date, (x) the Borrower was in
compliance with the Financial Covenant as of the last day of the most recently ended Test Period (whether or not (1) the Revolving Facility
Test Condition was then satisfied and/or (2) the Covenant Waiver Period was then in effect), (y) there are Subject Loans outstanding and
(z) the sum of (1) Cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries plus (2) the amount of unused “Revolving
Credit Commitments” (as defined in the Pari First Lien Credit Agreement) is in excess of $100,000,000, then the Borrower shall promptly
(and in any event within two Business Days) apply such amounts in excess of $100,000,000 to prepay the Subject Loans in accordance with
clause (vi) below. (B) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance
or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted
under Section 6.01, except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all
or a portion of the Revolving Loans, Additional Revolving Loans, Revolving Credit Commitments or Additional Revolving Credit Commitments
pursuant to Section 6.01(p) or Replacement Revolving Facility incurred to refinance Revolving Loans, Additional Revolving Loans,
Revolving Credit Commitments or Additional Revolving Credit Commitments in accordance with the requirements of Section 9.02(c)),
the Borrower shall, substantially simultaneously with (and in any event not later than two Business Days thereafter) the receipt of such
Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the
outstanding principal amount of the relevant subject in accordance with clause (vi) below.
(iv)
Notwithstanding anything in this Section 2.11(b) to the contrary, (A) the Borrower shall not be required to prepay any amount
that would otherwise be required to be paid pursuant to Sections 2.11(b)(i), (ii) or (iii) above to the extent
that the relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any
Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be,
for so long as the Borrower determines in good faith that the repatriation to the Borrower of any such amount would be prohibited or
delayed (beyond the time period during which such prepayment is otherwise required to be made pursuant to Section 2.11(b)(i), (ii)
or (iii) above) under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s
directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any
officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (including on account of
financial assistance, corporate benefit, thin capitalization, capital maintenance or similar considerations); it being understood
and agreed that (i) solely within 365 days following the end of the applicable Excess Cash Flow Period or the event giving rise to
the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of
Law to permit such repatriation and (ii) if the repatriation of the relevant affected Excess Cash Flow or Subject Proceeds, as the
case may be, is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the
fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal or criminal
liability for the Persons described above, in either case, within 365 days following the end of the applicable Excess Cash Flow
Period or the event giving rise to the relevant Subject Proceeds, the relevant Foreign Subsidiary will promptly repatriate the
relevant Excess Cash Flow or Subject Proceeds, as the case may be, and the repatriated Excess Cash Flow, or Subject Proceeds, as the
case may be, will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional
Taxes payable or reserved against such Excess Cash Flow or such Subject Proceeds, as a result thereof, in each case by any Loan
Party, such Loan Party’s subsidiaries, and any Affiliates or indirect or direct equity owners of the foregoing) to the
repayment of Subject Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause
(iv), (B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections
2.11(b)(i), (ii) or (iii) to the extent that the relevant Excess Cash Flow is generated by any Joint Venture or the
relevant Subject Proceeds are received by any Joint Venture for so long as the Borrower determines in good faith that the
distribution to the Borrower of such Excess Cash Flow or Subject Proceeds would be prohibited under the Organizational Documents (or
any relevant shareholders’ or similar agreement) governing such Joint Venture; it being understood that if the relevant
prohibition ceases to exist within the 365-day period following the end of the applicable Excess Cash Flow Period or the event
giving rise to the relevant Subject Proceeds, the relevant Joint Venture will promptly distribute the relevant Excess Cash Flow or
the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds, as the case may be,
will be promptly (and in any event not later than ten Business Days after such distribution) applied (net of additional Taxes
payable or reserved against as a result thereof) to the repayment of the Loans pursuant to this Section 2.11(b) to the extent
required herein (without regard to this clause (iv)) and (C) if the Borrower determines in good faith that the repatriation
to the Borrower of any amounts required to mandatorily prepay the Subject Loans pursuant to Sections 2.11(b)(i), (ii)
or (iii) above would result in material and adverse tax consequences, taking into account any foreign tax credit or benefit
actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as determined by the
Borrower in good faith, the amount the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i), (ii)
or (iii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the
repatriation of any Subject Proceeds or Excess Cash Flow from the relevant Foreign Subsidiary would no longer have a material and
adverse tax consequence within the 365-day period following the event giving rise to the relevant Subject Proceeds or the end of the
applicable Excess Cash Flow Period, as the case may be, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable,
not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of Subject Loans pursuant to Section
2.11(b) as otherwise required above (without regard to this clause (iv));
(v) [Reserved].
(vi) Except
as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Revolving Loan, (A) each prepayment
of Subject Loans pursuant to this Section 2.11(b) shall be applied ratably to each Class of Revolving Loans (based upon the then
outstanding principal amounts of the respective Classes of Revolving Loans), (B) [reserved], and (C) each such prepayment shall be paid
to the Revolving Lenders in accordance with their respective Applicable Percentages. The amount of such mandatory prepayments shall be
applied on a pro rata basis to the then outstanding Subject Loans being prepaid irrespective of whether such outstanding Loans are ABR
Loans or LIBO Rate Loans; provided that the amount thereof shall be applied first to ABR Loans to the full extent thereof before
application to the LIBO Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant
to Section 2.16.
(vii) In
the event that the Aggregate Revolving Credit Exposure exceeds the Total Revolving Credit Commitment then in effect, the Borrower shall,
within five Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Loans in an aggregate amount sufficient
to reduce such Aggregate Revolving Credit Exposure as of the date of such payment to an amount not to exceed the Total Revolving Credit
Commitment then in effect by prepaying the Revolving Loans.
(viii) At
the time of each prepayment required under Section 2.11(b)(i), (ii) or (iii), the Borrower shall deliver to the Administrative
Agent a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the amount of
such prepayment. Each such certificate shall specify the Borrowings being prepaid and the principal amount of each Borrowing (or portion
thereof) to be prepaid. Prepayments shall be accompanied by accrued interest as required by Section 2.13. All prepayments of Borrowings
under this Section 2.11(b) shall be subject to Section 2.16 and, except as set forth in the last sentence of clause (vi)
above, shall otherwise be without premium or penalty.
Section 2.12. Fees.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender of any Class (other than any Defaulting Lender)
a commitment fee, which shall accrue at a rate equal to the Commitment Fee Rate per annum applicable to the Revolving Credit Commitment
of such Class on the average daily amount of the Unused Revolving Credit Commitment of such Class of such Revolving Lender during the
period from and including the Closing Date to the date on which such Lender’s Revolving Credit Commitments of such Class terminate.
Accrued commitment fees shall be payable in arrears on the last Business Day of each March, June, September and December for the quarterly
period then ended (commencing on December 31, 2020, but in the case of the payment made on December 31, 2020, for the period from the
Closing Date to such date) and on the date on which the Revolving Credit Commitments of the applicable Class terminate.
(b) [Reserved].
(c) [Reserved].
(d) The
Borrower agrees to pay to the Administrative Agent, for its own account, the fees in the amounts and at the times separately agreed upon
by the Borrower and the Administrative Agent in writing.
(e) All
fees payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Administrative Agent for
distribution, in the case of commitment fees and participation fees, to the Revolving Lenders. Fees paid shall not be refundable under
any circumstances except as otherwise provided in the Fee Letter. Fees payable hereunder shall accrue through and including the last day
of the month immediately preceding the applicable fee payment date.
(f) [Reserved].
(g) Unless
otherwise indicated herein, all computations of fees shall be made on the basis of a 360-day year and shall be payable for the actual
days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of the amount of any
fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section 2.13. Interest.
(a) The
Revolving Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The
Revolving Loans comprising each LIBO Rate Borrowing shall bear interest at the LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(c) [Reserved].
(d) Notwithstanding the foregoing,
during the existence and continuance of any Event of Default under Section 7.01(a), if any principal of or interest on any Revolving
Loan or any fee payable by the Borrower hereunder is not, in each case, paid or reimbursed when due, whether at stated maturity, upon
acceleration or otherwise, the relevant overdue amount shall bear interest, to the fullest extent permitted by applicable Requirements
of Law, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal or interest of any Revolving
Loan, 2.00% plus the rate otherwise applicable to such Revolving Loan as provided in the preceding paragraphs of this Section
or Section 2.05(h) or (ii) in the case of any other amount, 2.00% plus the rate applicable to Revolving Loans that are
ABR Loans as provided in paragraph (a) of this Section; provided that no amount shall be payable pursuant to this Section
2.13(d) to any Defaulting Lender so long as such Lender is a Defaulting Lender; provided further
that no amounts shall accrue pursuant to this Section 2.13(d) on any overdue amount or other amount payable to a Defaulting
Lender so long as such Lender is a Defaulting Lender.
(e) Accrued interest on each
Revolving Loan shall be payable in arrears on each Interest Payment Date for such Revolving Loan and on the Maturity Date applicable
to such Loan or upon the termination of the Revolving Credit Commitments, as applicable; provided that (i) interest accrued
pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any
Revolving Loan (other than a prepayment of an ABR Revolving Loan prior to the termination of the relevant revolving Commitments),
accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any LIBO Rate Loan prior to the end of the current Interest Period therefor, accrued interest on such
Revolving Loan shall be payable on the effective date of such conversion. Accrued interest for any Class of Additional Revolving
Loans shall be payable as set forth in the applicable Refinancing Amendment.
(f) All interest hereunder shall
be computed on the basis of a year of 360 days, except that interest computed for ABR Loans based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate Base Rate or LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error. Interest shall accrue on each Loan from the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided
that any Loan that is repaid on the same day on which it is made shall bear interest for one day; provided further
that, in the case of any ABR Loan, interest shall accrue through and including the last day of the month preceding the applicable
Interest Payment Date.
Section 2.14. Alternate
Rate of Interest. (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.14, if prior to the commencement of any
Interest Period for a LIBO Rate Borrowing:
(i) the
Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable (including because the LIBO Screen Rate is not available
or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at
such time; or
(ii) the
Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan)
included in such Borrowing for such Interest Period;
then the Administrative Agent shall give
notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (A) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any
Revolving Borrowing as, a LIBO Rate Borrowing shall be ineffective and (B) if any Borrowing Request requests a LIBO Rate Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that if the circumstances giving rise to such notice
affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.
(b) Notwithstanding
anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in
Election, as applicable, the Administrative Agent and the Borrower (with the prior written consent of the Credit Support Provider) may
amend this Agreement to replace the LIBO Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition
Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment
to all Lenders and the Borrower, so long as the Administrative Agent has not received, by such time, written notice of objection to such
proposed amendment from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment containing
any SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein. Any such
amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have
delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of LIBO Rate with
a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.
(c) In
connection with the implementation of a Benchmark Replacement, the Administrative Agent and the Borrower (with the prior written consent
of the Credit Support Provider) will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding
anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes
will become effective without any further action or consent of any other party to this Agreement.
(d) The
Administrative Agent will promptly notify the Borrower, the Credit Support Provider and the Lenders of (i) any occurrence of a Benchmark
Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness
of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination,
decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.14, including any determination
with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision
to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion
and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.14.
(e) Upon
the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) any Interest Election Request that
requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a LIBO Rate Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a LIBO Rate Borrowing, such Borrowing shall be made as an ABR Borrowing.
Section 2.15. Increased Costs.
(a) If any Change in Law:
(i) imposes,
modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement reflected in the LIBO Rate); or
(ii) imposes
on any Lender or the London interbank market any other condition affecting this Agreement or LIBO Rate Loans made by any Lender or any
participation therein;
and the result of any of the foregoing
is to increase the cost to the relevant Lender of making or maintaining any LIBO Rate Loan (or of maintaining its obligation to make any
such Loan) or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise)
in respect of any LIBO Rate Loan in an amount deemed by such Lender to be material, then, within 30 days after the Borrower’s receipt
of the certificate contemplated by paragraph (c) of this Section, the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or reduction suffered (except that this provision shall not
apply to any Taxes, which shall be dealt with exclusively pursuant to Section 2.17); provided that the Borrower shall not
be liable for such compensation if (x) the relevant Change in Law occurs on a date prior to the date such Lender becomes a party hereto,
(y) such Lender invokes Section 2.20 or (z) in the case of requests for reimbursement under clause (ii) above resulting
from a market disruption, (A) the relevant circumstances do not generally affect the banking market or (B) the applicable request has
not been made by Lenders constituting Required Lenders.
(b) If
any Lender determines that any Change in Law regarding liquidity or capital requirements has or would have the effect of reducing the
rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this
Agreement or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved
but for such Change in Law other than due to Taxes, which shall be dealt with exclusively pursuant to Section 2.17 (taking into
consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy),
then within 30 days of receipt by the Borrower of the certificate contemplated by paragraph (c) of this Section the Borrower will
pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such
reduction suffered.
(c) Any
Lender requesting compensation under this Section 2.15 shall be required to deliver a certificate to the Borrower that (i) sets
forth the amount or amounts necessary to compensate such Lender or its holding company, as applicable, as specified in paragraph (a)
or (b) of this Section, (ii) sets forth in reasonable detail the manner in which such amount or amounts were determined and (iii)
certifies that such Lender is generally charging such amounts to similarly situated borrowers, which certificate shall be conclusive absent
manifest error.
(d) Failure
or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s
right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower of the Change
in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided,
further, that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
Section 2.16. Break
Funding Payments. In the event of (a) the conversion or prepayment of any principal of any LIBO Rate Loan other than on the last
day of an Interest Period applicable thereto (whether voluntary, mandatory, automatic, by reason of acceleration or otherwise), (b)
the failure to borrow, convert, continue or prepay any LIBO Rate Loan on the date or in the amount specified in any notice delivered
pursuant hereto or (c) the assignment of any LIBO Rate Loan of any Lender other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense incurred by such Lender that is attributable to such event (other than
loss of profit). In the case of a LIBO Rate Loan, the loss, cost or expense of any Lender shall be the amount reasonably determined
by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the LIBO Rate that would have been applicable to such Loan, for the period from the date of such
event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Loan) over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such
period, for deposits in the applicable currency of a comparable amount and period from other banks in the Eurodollar market; it
being understood that such loss, cost or expense shall in any case exclude any interest rate floor and all administrative,
processing or similar fees. Any Lender requesting compensation under this Section 2.16 shall be required to deliver a
certificate to the Borrower (i) setting forth any amount or amounts that such Lender is entitled to receive pursuant to this
Section, the basis therefor and, in reasonable detail, the manner in which such amount or amounts were determined and (ii)
certifying that such Lender is generally charging the relevant amounts to similarly situated borrowers, which certificate shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days
after receipt thereof.
Section 2.17. Taxes.
(a) Any
and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and without
deduction for any Taxes, except as required by applicable Requirements of Law. If any applicable Requirement of Law requires the deduction
or withholding of any Tax from any such payment, then (i) if such Tax is an Indemnified Tax, the amount payable by the applicable Loan
Party shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, each Lender (as applicable) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Loan Party shall make such deductions and (iii) such Loan Party shall timely pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable Requirements of Law.
(b) In
addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements
of Law.
(c) Each
Loan Party shall indemnify the Administrative Agent and each Lender within 30 days after receipt of the certificate described in the succeeding
sentence, for the full amount of any Indemnified Taxes payable or paid by the Administrative Agent or such Lender, as applicable, on or
with respect to any payment by or any payment on account of any obligation of any Loan Party hereunder (including Indemnified Taxes imposed
or asserted on or attributable to amounts payable under this Section) and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided,
however that the Loan Parties shall not be obligated to indemnify the Administrative Agent or such Lender with respect to any penalties
resulting from any action or inaction of the Administrative Agent or such Lender; and provided further, that if such Loan Party
reasonably believes that such Taxes were not correctly or legally asserted, the Administrative Agent or such Lender, as applicable, will
use reasonable efforts to cooperate with such Loan Party to obtain a refund of such Taxes (which shall be repaid to such Loan Party in
accordance with Section 2.17(g)) so long as such efforts would not, in the sole determination of the Administrative Agent or such
Lender, result in any additional out-of-pocket costs or expenses not reimbursed by such Loan Party or be otherwise materially disadvantageous
to the Administrative Agent or such Lender, as applicable. In connection with any request for reimbursement under this Section 2.17(c),
the relevant Lender or the Administrative Agent, as applicable, shall deliver a certificate to the Borrower (i) setting forth, in reasonable
detail, the basis and calculation of the amount of the relevant payment or liability and (ii) certifying that it is generally charging
the relevant amounts to similarly situated borrowers, which certificate shall be conclusive absent manifest error. Notwithstanding anything
to the contrary contained in this Section 2.17(c), the Borrower shall not be required to indemnify the Administrative Agent or
any Lender pursuant to this Section 2.17(c) for any amount to the extent the Administrative Agent or such Lender fails to notify
the Borrower of the relevant possible indemnification claim within 180 days after the Administrative Agent or such Lender receives written
notice from the applicable taxing authority of the specific tax assessment giving rise to such indemnification claim.
(d) Each Lender shall
severally indemnify the Administrative Agent, within 30 days after demand therefor, for (i) any Indemnified Taxes on or with respect
to any payment under any Loan Document that is attributable to such Lender (but only to the extent that no Loan Party has already
indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so),
(ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.05(c) relating to the
maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender that are payable or paid by the
Administrative Agent in connection with any Loan Document and any reasonable expenses arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest
error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such
Lender under any Loan Document or otherwise payable by the Administrative Agent to any Lender under any Loan Document or otherwise
payable by the Administrative Agent to any Lender from any other source against any amount due to the Administrative Agent under
this clause (d).
(e) As
soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority, such Loan Party shall deliver to the Administrative
Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment that is reasonably satisfactory to the Administrative Agent.
(f) Status of Lenders.
(i) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation as the Borrower or the Administrative Agent may reasonably request to permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by
the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or
not such Lender is subject to backup withholding or information reporting requirements. Each Lender hereby authorizes the Administrative
Agent to deliver to the Borrower and to any successor Administrative Agent any documentation provided to the Administrative Agent pursuant
to this Section 2.17(f).
(ii) Without limiting the generality of the foregoing,
(A) each
Lender that is not a Foreign Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative
Agent), two executed original copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) each
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following
is applicable:
(1) in the
case of any Foreign Lender claiming the benefits of an income tax treaty to which the U.S. is a party (x) with respect to payments
of interest under any Loan Document, executed original copies of IRS Form W- 8BEN or W-8BEN-E establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to
any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of,
U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax
treaty;
(2) executed original copies of IRS Form W-8ECI;
(3) in
the case of any Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit K-1 to the effect that such Foreign Lender is not a “bank” within the meaning
of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B)
of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance
Certificate”) and (y) executed original copies of IRS Form W-8BEN or W- 8BEN-E; or
(4) to
the extent any Foreign Lender is not the beneficial owner, executed original copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI,
IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit K-2 or Exhibit K-3,
IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such Foreign Lender
is a partnership and one or more partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may
provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit K-4 on behalf of each such partner;
(C) each
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed original copies of
any other form prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in U.S. federal withholding
Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Requirements of Law to permit the
Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a
payment made to any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b)
of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed
by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation as is
prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional
documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the
Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such
Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of
this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any documentation
it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such documentation or promptly notify
the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g) If
the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any
Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which such Loan Party has paid additional amounts
pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it shall pay over
such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under
this Section 2.17 with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative
Agent or such Lender (including any Taxes imposed with respect to such refund), and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund); provided that such Loan Party, upon the request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender
is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g),
in no event will the Administrative Agent or any Lender be required to pay any amount to any Loan Party pursuant to this paragraph
(g) to the extent that the payment thereof would place the Administrative Agent or Lender in a less favorable net after-Tax position
than the position that the Administrative Agent or such Lender would have been in if the Tax subject to indemnification had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This
Section shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information
relating to its Taxes which it deems confidential) to the relevant Loan Party or any other Person.
(h) The Administrative Agent
shall deliver to Borrower, on or before the date on which it becomes the Administrative Agent hereunder, either (i) a duly executed
original IRS Form W-9 (or any applicable successor form) certifying that the Administrative Agent is not subject to backup
withholding, or (ii) (A) a duly completed executed original IRS Form W-8ECI to establish that the Administrative Agent is not
subject to withholding Taxes under the Internal Revenue Code with respect to any amounts payable for the account of the
Administrative Agent under any of the Loan Documents and (B) a duly executed original IRS Form W-8IMY (or applicable successor form)
certifying that it is a U.S. branch that has agreed to be treated as a U.S. person for United States federal withholding Tax
purposes with respect to payments received by it from the Borrower for the account of others under the Loan Documents. The
Administrative Agent shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide the
certification described in the preceding sentence. The Administrative Agent shall also, at the time or times prescribed by law and
at such time or times reasonably requested by the Borrower, provide the Borrower such documentation as prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the
Borrower as may be necessary for the Borrower to comply with its FATCA obligations, to determine whether the Administrative Agent
has or has not complied with its FATCA obligations, and to determine the amount, if any, to deduct and withhold from a payment to
the Administrative Agent.
(i) Survival.
Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent
or any assignment of rights by, or the replacement of, any Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all obligations under any Loan Document.
Section 2.18. Payments Generally; Allocation of Proceeds;
Sharing of Payments.
(a) Unless
otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or
of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to the time expressed hereunder or under
such Loan Document (or, if no time is expressly required, by 2:00 p.m.) on the date when due, in immediately available funds, without
set-off (except as otherwise provided in Section 2.17) or counterclaim. Any amounts received after such time on any date may, in
the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated to the Borrower by
the Administrative Agent, except that payments pursuant to Sections 2.15, 2.16 or 2.17 and 9.03 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of
any other Person to the appropriate recipient promptly following receipt thereof. Each Lender agrees that in computing such Lender’s
portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round such Lender’s percentage of
such Borrowing to the next higher or lower whole dollar amount. Except as set forth in any amendment entered into pursuant to Section
9.02(b)(ii)(E) with respect to the making of Revolving Loans denominated in a currency other than Dollars, all payments (including
accrued interest) hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed
to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make
such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative
Agent to make such payment.
(b) Subject
in all respects to the provisions of the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement (in each case
with respect to Collateral, but not Credit Support Collateral), all proceeds of Collateral or Credit Support Collateral received by the
Administrative Agent at any time when an Event of Default exists, shall, upon election by the Administrative Agent or at the direction
of the Required Lenders, be applied, first, to the payment of all costs and expenses then due incurred by the Administrative Agent
in connection with any collection, sale or realization on Collateral or Credit Support Collateral or otherwise in connection with this
Agreement, any other Loan Document, any Credit Support Document or any of the Obligations, including all court costs and the fees and
expenses of agents and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or under any other Loan
Document or any Credit Support Document on behalf of any Loan Party or the Credit Support Provider and any other costs or expenses incurred
in connection with the exercise of any right or remedy hereunder or under any other Loan Document or Credit Support Document, second,
on a pro rata basis, to pay any fees, indemnities or expense reimbursements then due to the Administrative Agent (other than those covered
in clause first above) from the Borrower constituting Obligations, third, on a pro rata basis in accordance with the amounts of
the Obligations (other than contingent indemnification obligations for which no claim has yet been made) owed to the Secured Parties on
the date of any such distribution, to the payment in full of the Obligations, beginning with clause first above, fourth, solely
with respect to Collateral, as provided for under the Intercreditor Agreement or any other applicable Acceptable Intercreditor Agreement,
and fifth, solely with respect to Collateral, to the Borrower or as the Borrower shall direct.
(c) If any Lender obtains
payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) in respect of any principal of
or interest on any of its Loans of any Class held by it resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans of such Class and accrued interest thereon than the proportion received by any other Lender with Loans
of such Class, then the Lender receiving such greater proportion shall purchase (for Cash at face value) participations in the Loans
of such Class of other Lenders of such Class at such time outstanding to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Loans of such Class; provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to
the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not apply to (x) any payment made by
the Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by any Lender as
consideration for the assignment of or sale of a participation in any of its Loans to any permitted assignee or participant,
including any payment made or deemed made in connection with Section 9.02(c) and/or Section 9.05. The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so under applicable Requirements of Law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest
error) of participations purchased under this Section 2.18(c) and will, in each case, notify the Lenders following any such
purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.18(c) shall from and after
such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with
respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of
the Obligations purchased.
(d) Unless
the Administrative Agent has received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent
for the account of any Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower
has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lender
the amount due. In such event, if the Borrower has not in fact made such payment, then each Lender severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e) If
any Lender fails to make any payment required to be made by it pursuant to Section 2.07(b) or Section 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by
the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.
Section 2.19. Mitigation Obligations; Replacement of
Lenders.
(a) If any Lender requests
compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO Rate Loans pursuant to Section
2.20, or the Borrower is required to pay any additional amount to or indemnify any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder affected by such event, or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as applicable, in the future or mitigate
the impact of Section 2.20, as the case may be, and (ii) would not subject such Lender to any material unreimbursed
out-of-pocket cost or expense and would not otherwise be disadvantageous to such Lender in any material respect. The Borrower hereby
agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in connection with any such designation or
assignment.
(b) If (i) any
Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain LIBO Rate Loans pursuant
to Section 2.20, (ii) the Borrower is required to pay any additional amount to or indemnify any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 2.17, (iii) any Lender is a Defaulting Lender or (iv) in connection with any
proposed amendment, waiver or consent requiring the consent of “each Lender”, “each Revolving Lender” or “each
Lender directly affected thereby” (or any other Class or group of Lenders other than the Required Lenders) with respect to which
Required Lender consent (or the consent of Lenders holding loans or commitments of such Class or lesser group representing more than 50%
of the sum of the total loans and unused commitments of such Class or lesser group at such time) has been obtained, as applicable, any
Lender is a non-consenting Lender (each such Lender, a “Non-Consenting Lender”), then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, (x) terminate the applicable Commitments and/or Additional
Commitments of such Lender, and repay all Obligations of the Borrower owing to such Lender relating to the applicable Loans and participations
held by such Lender as of such termination date under the Revolving Facility or one or more Additional Credit Facilities as the Borrower
may elect or (y) replace such Lender by requiring such Lender to assign and delegate (and such Lender shall be obligated to assign and
delegate), without recourse (in accordance with and subject to the restrictions contained in Section 9.05), all of its interests,
rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be
another Lender, if any Lender accepts such assignment); provided that (A) such Lender shall have received payment of an amount
equal to the outstanding principal amount of its Loans, in each case of such Class of Loans, Commitments and/or Additional Commitments,
accrued interest thereon, accrued fees and all other amounts payable to it hereunder with respect to such Class of Loans, Commitments
and/or Additional Commitments, (B) in the case of any assignment resulting from a claim for compensation under Section 2.15 or
payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments
and (C) such assignment does not conflict with applicable law. No Lender (other than a Defaulting Lender) shall be required to make any
such assignment and delegation, and the Borrower may not repay the Obligations of such Lender or terminate its Commitments or Additional
Commitments, if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply. Each Lender agrees that if it is replaced pursuant to this Section 2.19, it shall
execute and deliver to the Administrative Agent an Assignment and Assumption to evidence such sale and purchase and shall deliver to the
Administrative Agent any Promissory Note (if the assigning Lender’s Loans are evidenced by one or more Promissory Notes) subject
to such Assignment and Assumption (provided that the failure of any Lender replaced pursuant to this Section 2.19 to execute
an Assignment and Assumption or deliver any such Promissory Note shall not render such sale and purchase (and the corresponding assignment)
invalid), such assignment shall be recorded in the Register and any such Promissory Note shall be deemed cancelled. Each Lender hereby
irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Lender’s attorney-in-fact,
with full authority in the place and stead of such Lender and in the name of such Lender, from time to time in the Administrative Agent’s
discretion, with prior written notice to such Lender, to take any action and to execute any such Assignment and Assumption or other instrument
that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (b).
Section 2.20. Illegality.
If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted after
the Closing Date that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest
is determined by reference to the Published LIBO Rate, or to determine or charge interest rates based upon the Published LIBO Rate, or
any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits
of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent,
(i) any obligation of such Lender to make or continue LIBO Rate Loans in Dollars or to convert ABR Loans to LIBO Rate Loans shall be suspended
and (ii) if such notice asserts the illegality of such Lender making or maintaining ABR Loans the interest rate on which is determined
by reference to the Published LIBO Rate component of the Alternate Base Rate, the interest rate on which ABR Loans of such Lender, shall,
if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Published LIBO Rate component
of the Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving
rise to such determination no longer exist (which notice such Lender agrees to give promptly). Upon receipt of such notice, (x) the Borrower
shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or convert all of such Lender’s LIBO Rate
Loans to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by
the Administrative Agent without reference to the Published LIBO Rate component of the Alternate Base Rate) either on the last day of
the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBO Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such LIBO Rate Loans (in which case the Borrower shall not be required to make payments pursuant
to Section 2.16 in connection with such payment) and (y) if such notice asserts the illegality of such Lender determining or charging
interest rates based upon the Published LIBO Rate, the Administrative Agent shall during the period of such suspension compute the Alternate
Base Rate applicable to such Lender without reference to the Published LIBO Rate component thereof until the Administrative Agent is advised
in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Published
LIBO Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
Each Lender agrees to designate a different lending office if such designation will avoid the need for such notice and will not, in the
determination of such Lender, otherwise be materially disadvantageous to such Lender.
Section 2.21. Defaulting
Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following
provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Fees shall
cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to Section 2.12(a) and pursuant to
any other provisions of this Agreement or other Loan Document.
(b) The Commitments
and Loans of such Defaulting Lender shall not be included in determining whether all Lenders, each affected Lender, the Required Lenders
or such other number of Lenders as may be required hereby or under any other Loan Document have taken or may take any action hereunder
(including any consent to any waiver, amendment or modification pursuant to Section 9.02); provided that any waiver, amendment
or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender disproportionately and
adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.
(c) Any payment of principal,
interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting Lender (whether voluntary or mandatory,
at maturity, pursuant to Section 2.11, Section 2.15, Section 2.16, Section 2.17, Section 2.18, Article
7, Section 9.05 or otherwise, and including any amounts made available to the Administrative Agent by such Defaulting Lender
pursuant to Section 9.09), shall be applied at such time or times as may be determined by the Administrative Agent and, where
relevant, the Borrower as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative
Agent hereunder; second, so long as no Default or Event of Default exists, as the Borrower may request, to the funding of any
Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; third, if
so determined by the Administrative Agent or the Borrower, to be held in a deposit account and released in order to satisfy obligations
of such Defaulting Lender to fund Loans under this Agreement; fourth, to the payment of any amounts owing to the non-Defaulting
Lenders as a result of any judgment of a court of competent jurisdiction obtained by any non-Defaulting Lender against such Defaulting
Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, to the payment of
any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such
Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to
such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment
of the principal amount of any Loan in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such
Loan was made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied
solely to pay the Loans of all non- Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans
of such Defaulting Lender. Any payments, prepayments or other amounts paid or payable to any Defaulting Lender that are applied (or held)
to pay amounts owed by any Defaulting Lender or to post Cash collateral pursuant to this Section 2.21(c) shall be deemed paid
to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d) [Reserved].
(e) [Reserved].
(f) In the event
that the Administrative Agent and the Borrower agree that any Defaulting Lender has adequately remedied all matters that caused such Lender
to be a Defaulting Lender, then on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving
Lenders or participations in Revolving Loans as the Administrative Agent shall determine as are necessary in order for such Revolving
Lender to hold such Revolving Loans or participations in accordance with its Applicable Percentage. Notwithstanding the fact that any
Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender
and (y) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender
will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
On the dates and
to the extent required pursuant to Section 4.01 or Section 4.02, as applicable, Holdings (solely with respect to Sections 3.01,
3.02, 3.03, 3.06, 3.07, 3.08, 3.09, 3.12, 3.13, 3.14, 3.16 and 3.17)
and the Borrower hereby represent and warrant to the Lenders that:
Section 3.01. Organization;
Powers. Each of Holdings, the Borrower and each of its Restricted Subsidiaries (a) is (i) duly organized and validly existing and
(ii) in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of its jurisdiction of organization,
(b) has all requisite organizational power and authority to own its property and assets and to carry on its business as now conducted
and (c) is qualified to do business in, and is in good standing (to the extent such concept exists in the relevant jurisdiction) in,
every jurisdiction where its ownership, lease or operation of properties or conduct of its business requires such qualification; except,
in each case referred to in this Section 3.01 (other than clause (a)(i) and (b), in each case with respect to the Borrower)
where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section 3.02. Authorization;
Enforceability. The execution, delivery and performance by each Loan Party of each of the Loan Documents to which such Loan Party
is a party are within such Loan Party’s corporate or other organizational power and have been duly authorized by all necessary corporate
or other organizational action of such Loan Party. Each Loan Document to which any Loan Party is a party has been duly executed and delivered
by such Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject
to the Legal Reservations.
Section 3.03. Governmental
Approvals; No Conflicts. The execution and delivery of the Loan Documents by each Loan Party party thereto and the performance by
such Loan Party thereof (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental
Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) in connection with the Perfection Requirements
and (iii) such consents, approvals, registrations, filings, or other actions the failure to obtain or make which would not be reasonably
expected to have a Material Adverse Effect, (b) will not violate any (i) of such Loan Party’s Organizational Documents or (ii) Requirements
of Law applicable to such Loan Party which, in the case of this clause (b)(ii), would reasonably be expected to have a Material
Adverse Effect and (c) will not violate or result in a default under (i) the Pari First Lien Credit Agreement or (ii) any other material
Contractual Obligation in respect of Indebtedness having an aggregate principal amount exceeding the Threshold Amount to which such Loan
Party is a party which, in the case of this clause (c), would reasonably be expected to result in a Material Adverse Effect.
Section 3.04. Financial Condition; No Material Adverse
Effect.
(a) After the Closing
Date, the financial statements most recently provided pursuant to Section 5.01(a) or (b), as applicable, present fairly,
in all material respects, the financial position, results of operations and cash flows of the Borrower on a consolidated basis as of such
dates and for such periods in accordance with GAAP, (w) except as otherwise expressly noted therein, (x) subject, in the case of financial
statements provided pursuant to Section 5.01(a), to the absence of footnotes and normal year-end audit adjustments and (y) except
as may be necessary to reflect any differing entity and/or organizational structure prior to giving effect to the Transactions.
(b) Since the Closing
Date, there have been no events, developments or circumstances that have had, or would reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.
Section 3.05. Properties.
(a) [Reserved.]
(b) The Borrower and each of
its Restricted Subsidiaries have good and valid fee simple title to or rights to purchase, or valid leasehold interests in, or easements
or other limited property interests in, all of their respective Real Estate Assets, free and clear of all Liens except for Permitted
Liens and have good title to their personal property and assets, in each case material to the business, except (i) for defects in title
that do not materially interfere with their ability to conduct their business as currently conducted or to utilize such properties and
assets for their intended purposes or (ii) where the failure to have such title or interest would not reasonably be expected to have
a Material Adverse Effect.
(c) The Borrower
and each of its Restricted Subsidiaries own or otherwise have a license or right to use all Patents, Trademarks, Copyrights and other
rights in works of authorship (including all copyrights embodied in software), domain names, trade secrets and all other intellectual
property rights (“IP Rights”) necessary to the conduct of the businesses of the Borrower and its Restricted Subsidiaries
as presently conducted, and, to the knowledge of the Borrower, such IP Rights do not infringe or misappropriate the IP Rights of any third
party, except to the extent such failure to own or license or have rights to use would not, or where such infringement or misappropriation
would not, reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.06. Litigation and Environmental Matters.
Except as set forth on Schedule 3.06:
(a) there are no
actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower,
threatened in writing against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries which would reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect;
(b) except for
any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, (i) neither
Holdings, the Borrower nor any of its Restricted Subsidiaries has received written notice of any claim with respect to any Environmental
Liability, knows of any basis for any Environmental Liability or, to the knowledge of the Borrower, has become subject to any Environmental
Liability and (ii) neither Holdings, the Borrower nor any of its Restricted Subsidiaries is in violation of any Environmental Law or has
not obtained, maintained, or complied with any permit, license or other approval required under any Environmental Law; and
(c) neither Holdings,
the Borrower nor any of its Restricted Subsidiaries has treated, stored, transported, Released or disposed of any Hazardous Material at
or from any currently or formerly owned, leased or operated real estate or facility nor, to the knowledge of the Borrower, has any Hazardous
Material been Released from any third-party location relating to the Borrower’s or any of its Restricted Subsidiaries’ businesses,
in each case in a manner that would reasonably be expected to have a Material Adverse Effect.
Section 3.07. Compliance
with Laws. Each of Holdings, the Borrower and each of its Restricted Subsidiaries is in compliance with all Requirements of Law applicable
to it or its property, except, in each case where the failure to do so, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect, it being understood and agreed that this Section 3.07 shall not apply to any law specifically
referenced in Section 3.17.
Section 3.08. Investment
Company Status. No Loan Party is required to be registered as an “investment company” under the Investment Company Act
of 1940.
Section 3.09. Taxes.
Each of Holdings, the Borrower and each of its Restricted Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it that are due and payable, except
(a) Taxes that are being contested in good faith by appropriate proceedings and for which Holdings, the Borrower or such Restricted Subsidiary,
as applicable, has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent that the failure to do so, individually
or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section 3.10. ERISA.
(a) Each Pension
Plan is in compliance in form and operation with its terms and with ERISA and the Code and all other applicable laws and regulations,
except where any failure to comply would not reasonably be expected to result in a Material Adverse Effect.
(b) No ERISA Event
has occurred in the five-year period prior to the date on which this representation is made or deemed made and is continuing or is reasonably
expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would
reasonably be expected to result in a Material Adverse Effect.
Section 3.11. Disclosure.
(a) As of the Closing Date, to the knowledge of the Borrower, all written factual information (other than forward-looking or projected
information, pro forma information and information of a general economic or general industry nature (including any reports or memos prepared
by third party consultants)) concerning Holdings, the Borrower and its Restricted Subsidiaries, the Credit Support Provider and the Transactions
and that was prepared by or on behalf of the foregoing or the Sponsor or their respective representatives and made available to any Initial
Lender or the Administrative Agent in connection with the Transactions on or before the Closing Date (the “Information”),
when taken as a whole, did not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements
are made (after giving effect to all supplements and updates thereto from time to time).
(b) As of the Closing
Date, to the best knowledge of the Borrower, the information included in the Beneficial Ownership Certification provided on or prior to
the Closing Date to any Lender in connection with this Agreement is true and correct in all respects.
Section 3.12. Solvency.
As of the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date and the incurrence of indebtedness
and obligations on the Closing Date in connection with this Agreement and the Transactions, (i) the sum of the debt (including contingent
liabilities) of Holdings and its Subsidiaries, taken as a whole, does not exceed the fair value of the assets of Holdings and its Subsidiaries,
taken as a whole; (ii) the present fair saleable value of the assets of Holdings and its Subsidiaries, taken as a whole, is not less than
the amount that will be required to pay the probable liabilities (including contingent liabilities) of Holdings and its Subsidiaries,
taken as a whole, on their debts as they become absolute and matured; (iii) the capital of Holdings and its Subsidiaries, taken as a whole,
is not unreasonably small in relation to the business of Holdings and its Subsidiaries, taken as a whole, contemplated as of the Closing
Date; and (iv) Holdings and its Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts (including
current obligations and contingent liabilities) beyond their ability to pay such debts as they mature in the ordinary course of business.
For the purposes hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the
facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability
(irrespective of whether such contingent liability meets the criteria for accrual under Statement of Financial Accounting Standards No.
5).
Section 3.13. Capitalization
and Subsidiaries. Schedule 3.13 sets forth, in each case as of the Closing Date, (a) a correct and complete list of the name
of each subsidiary of Holdings and the ownership interest therein held by Holdings or its applicable subsidiary and (b) the type of entity
of Holdings and each of its subsidiaries.
Section 3.14. Security
Interest in Collateral. Subject to the Legal Reservations, the Perfection Requirements, the provisions, limitations and/or exceptions
set forth in this Agreement and/or the other relevant Loan Documents (including the Intercreditor Agreement or any other Acceptable Intercreditor
Agreement), the Collateral Documents create legal, valid and enforceable Liens on all of the Collateral in favor of the Administrative
Agent, for the benefit of itself and the other Secured Parties, and upon the satisfaction of the applicable Perfection Requirements, such
Liens constitute perfected Liens (with the priority such Liens are expressed to have within the relevant Collateral Documents) on the
Collateral (to the extent such Liens are required to be perfected under the terms of the Loan Documents) securing the Obligations, in
each case as and to the extent set forth therein. For the avoidance of doubt, notwithstanding anything herein or in any other Loan Document
to the contrary, neither the Borrower nor any other Loan Party makes any representation or warranty (other than any representation or
warranty expressly made in such Loan Document) as to (A) the effects of perfection or non-perfection, the priority or the enforceability
of any pledge of or security interest in any Capital Stock of any Foreign Subsidiary, or as to the rights and remedies of the Administrative
Agent or any Lender with respect thereto, under foreign Requirements of Law, (B) the enforcement of any security interest, or right or
remedy with respect to any Collateral that may be limited or restricted by, or require any consent, authorization approval or license
under, any Requirement of Law, (C) on the Closing Date and until required pursuant to Section 5.12, as applicable, the pledge or creation
of any security interest, or the effects of perfection or non-perfection, the priority or enforceability of any pledge or security interest
to the extent the same is not required on the Closing Date pursuant to the final paragraph of Section 4.01 or (D) any Excluded Asset.
Section 3.15. Labor
Disputes. As of the Closing Date, except as individually or in the aggregate would not reasonably be expected to have a Material Adverse
Effect: (a) there are no strikes, lockouts or slowdowns against the Borrower or any of its Restricted Subsidiaries pending or, to the
knowledge of the Borrower or any of its Restricted Subsidiaries, threatened in writing and (b) the hours worked by and payments made to
employees of the Borrower and its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters.
Section 3.16. Federal
Reserve Regulations. No part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally
or ultimately, for any purpose that results in a violation of the provisions of Regulation U and X.
Section 3.17. Sanctions and Anti-Corruption Laws.
(a) (i) None of
Holdings, the Borrower nor any of its Restricted Subsidiaries nor, to the knowledge of the Borrower, any director, officer, agent, employee
or controlled Affiliate of any of the foregoing is a Sanctioned Person; and (ii) the Borrower will not directly or, to its knowledge,
indirectly, use the proceeds of the Loans or otherwise make available such proceeds to any Sanctioned Person, for the purpose of financing
the activities of any Sanctioned Person, or in any Sanctioned Country, or in any other matter, in each case, that would result in a violation
by any Person party to this Agreement of Sanctions.
(b) Each Loan Party is in compliance
with applicable Sanctions in all material respects.
(c) No part of
the proceeds of any Loan will be used, directly or, to the knowledge of the Borrower, indirectly, for any payments to any governmental
official or employee, political party, official of a political party, candidate for political office, or any other person or entity, in
order to obtain, retain or direct business or obtain any improper advantage, in violation of the U.S. Foreign Corrupt Practices Act of
1977 or any other applicable anti-corruption law.
ARTICLE 4 CONDITIONS
Section 4.01. Closing
Date. The obligations of each Lender to make Loans shall not become effective until the date on which each of the following conditions
is satisfied (or waived in accordance with Section 9.02):
(a) Credit Agreement and
Loan Documents. The Administrative Agent (or its counsel) shall have received from each Loan Party party thereto (i) a counterpart
signed by each such Loan Party (or written evidence reasonably satisfactory to the Administrative Agent (which may include a copy transmitted
by facsimile or other electronic method) that such party has signed a counterpart) of (A) this Agreement, (B) the Security Agreement,
(C) the Loan Guaranty, (D) the Intercreditor Agreement, (E) the Credit Support Documents and (F) any Promissory Note requested by a Lender
at least three Business Days prior to the Closing Date and (ii) a Borrowing Request as required by Section 2.03.
(b) Legal Opinions.
The Administrative Agent (or its counsel) shall have received, on behalf of itself and the Lenders on the Closing Date, a customary written
opinion of (i) Proskauer Rose LLP, in its capacity as special New York counsel for Holdings, the Borrower and the Subsidiary Guarantors,
(ii) Proskauer Rose LLP in its capacity as special Delaware counsel for Holdings, the Borrower and the Subsidiary Guarantors, (iii) McGuire
Woods LLP in its capacity as special Virginia counsel for Holdings, the Borrower and the Subsidiary Guarantors, (iv) Davis Polk &
Wardwell LLP in its capacity as special New York counsel for the Credit Support Provider and (v) Walkers in its capacity as Cayman Islands
counsel for the Credit Support Provider.
(c) [Reserved].
(d) Closing
Certificates; Certified Charters; Good Standing Certificates. The Administrative Agent (or its counsel) shall have received (i) a
certificate of each Loan Party and the Credit Support Provider, dated the Closing Date and executed by a secretary, assistant secretary
or other senior officer (as the case may be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the
resolutions or written consents of its shareholders, board of directors, board of managers, members or other governing body authorizing
the execution, delivery and performance of the Loan Documents or Credit Support Documents to which it is a party and, in the case of the
Borrower, the borrowings and issuance of Promissory Notes (if any) hereunder, and that such resolutions or written consents have not been
modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the officers,
managers, directors or authorized signatories of such Loan Party or the Credit Support Provider authorized to sign the Loan Documents
to which it is a party or the Credit Support Documents, as applicable, on the Closing Date and (C) certify (x) that attached thereto is
a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent
thereof) of such Loan Party or the Credit Support Provider certified by the relevant authority of the jurisdiction of organization of
such Loan Party or the Credit Support Provider and a true and correct copy of its by-laws or operating, management, partnership or similar
agreement and (y) that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified
therein as being the only amendments thereto as of such date) and (ii) a good standing (or equivalent) certificate (if applicable) as
of a recent date for such Loan Party or the Credit Support Provider from the relevant authority of its jurisdiction of organization.
(e) Representations and
Warranties. The representations and warranties set forth in Article 3 hereof, in each other Loan Document and in each Credit
Support Document shall be true and correct in all material respects on and as of the Closing Date; provided that in the case of
any such representation and warranty which expressly relates to a given date or period, such representation and warranty shall be true
and correct in all material respects as of the respective date or for the respective period, as the case may be; provided further
that, for purposes of this Section 4.01(e), events and circumstances surrounding, and/or any matters or impacts arising from,
related to, or in connection with, the outbreak and spread of the novel coronavirus known as COVID-19 shall not constitute, result in
or otherwise have (or reasonably be expected to constitute, result in or otherwise have) a Material Adverse Effect of the type described
in clause (i) of the definition thereof, and in each case shall be disregarded.
(f) Fees.
Prior to or substantially concurrently with the funding of the Loans hereunder, (i) the Administrative Agent shall have received all fees
required to be paid by the Borrower on the Closing Date pursuant to the Fee Letter and (ii) the Administrative Agent and Credit Support
Provider shall have received payment for all expenses required to be paid by the Borrower for which invoices have been presented at least
two Business Days prior to the Closing Date (including the reasonable fees and expenses of legal counsel for the Administrative Agent),
in each case on or before the Closing Date, which amounts may be offset against the proceeds of the Loans or may be paid from the proceeds
of the Initial Revolving Loans.
(g) Credit Support
Documents. The Administrative Agent (or its counsel) shall have received from the Credit Support Provider and each other party to
the Credit Support Documents a counterpart signed by the Credit Support Provider or such other party (or written evidence reasonably satisfactory
to the Administrative Agent (which may include a copy transmitted by facsimile or other electronic method) that such party has signed
a counterpart) of each Credit Support Document.
(h) [Reserved].
(i) [Reserved].
(j) Solvency.
The Administrative Agent shall have received a certificate dated as of the Closing Date in substantially the form of Exhibit L
from the chief financial officer (or other officer with reasonably equivalent responsibilities) of Holdings certifying as to the matters
set forth therein (or, at the option of Holdings, a third party opinion as to the solvency of Holdings and its subsidiaries on a consolidated
basis in form and substance reasonably satisfactory to the Arranger issued by a nationally recognized firm reasonably acceptable to the
Arranger).
(k) Perfection
Certificate. The Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by
a Responsible Officer of each Loan Party, together with all attachments contemplated thereby.
(l) Pledged
Stock; Stock Powers; Pledged Notes. Subject to the provisions of the Intercreditor Agreement, the Administrative Agent (or the Pari
First Lien Agent as its bailee) shall have received (i) the certificates representing the Capital Stock required to be pledged pursuant
to the Security Agreement, together with an undated stock or similar power for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof and (ii) each Material Debt Instrument (if any) required to be pledged pursuant to the Security Agreement
endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(m) Filings
Registrations and Recordings. Each document (including any UCC financing statement) required by any Collateral Document or any Credit
Support Document or under law to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit
of the Secured Parties, a perfected Lien on the Collateral or Credit Support Collateral required to be delivered pursuant to such Collateral
Document or Credit Support Document, shall be in proper form for filing, registration or recordation.
(n) [Reserved].
(o) [Reserved].
(p) USA PATRIOT Act.
No later than three Business Days in advance of the Closing Date, the Administrative Agent shall have received (i) all documentation
and other information reasonably requested in writing by the Administrative Agent with respect to any Loan Party at least ten Business
Days in advance of the Closing Date, which documentation or other information is required by U.S. regulatory authorities under applicable
“know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent
the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to
the Closing Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Closing Date, a Beneficial
Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon
the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall
be deemed to be satisfied).
For purposes of
determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding the Loans
hereunder, the Administrative Agent and each Lender that has executed this Agreement (or an Assignment and Assumption on the Closing Date)
shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder
to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be.
Section 4.02. Each
Credit Extension. After the Closing Date, the obligation of each Revolving Lender to make a Credit Extension is subject to the satisfaction
(or, except in the case of clause (a) below, waiver in accordance with Section 9.02) of the following conditions:
(a) In the case
of a Borrowing, the Administrative Agent shall have received a Borrowing Request as required by Section 2.03, which Borrowing Request
shall include a signed written acknowledgment from Atairos Group, Inc. that (x) Atairos Group, Inc. has approved such Borrowing (which
approval, the parties agree and acknowledge, shall be in its sole and absolute discretion), and (y) certifying as to the aggregate amount
of Available Capital Commitments under the Shareholders Agreement (each, as defined in the Credit Support Provider Security Agreement)
as of the date of such Borrowing.
(b) The representations
and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents and the representations and warranties of
the Credit Support Provider as set forth in the Credit Support Documents shall, in each case, be true and correct in all material respects
on and as of the date of any such Credit Extension with the same effect as though such representations and warranties had been made on
and as of the date of such Credit Extension; provided that to the extent that any representation and warranty specifically refers
to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided further
that, during the Covenant Waiver Period, for purposes of this Section 4.02(b), as it pertains to the obligation of any Revolving
Lender to make a Credit Extension, events and circumstances surrounding, and/or any matters or impacts arising from, related to, or in
connection with, the outbreak and spread of the novel coronavirus known as COVID-19 shall not constitute, result in or otherwise have
(or reasonably be expected to constitute, result in or otherwise have) a Material Adverse Effect of the type described in clause (b)(i)
of the definition thereof, and in each case shall be disregarded.
(c) At the time of and immediately
after giving effect to the applicable Credit Extension, no Event of Default or Default shall have occurred and be continuing and no “Pledgor
Default” under and as defined in the Credit Support Provider Security Agreement shall have occurred and be continuing.
Each Credit Extension
after the Closing Date shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters
specified in paragraphs (b) and (c) of this Section.
ARTICLE 5 AFFIRMATIVE COVENANTS
From the Closing
Date until the date that all the Revolving Credit Commitments and all other Commitments have expired or terminated and the principal of
and interest on each Loan and all fees, expenses and other Obligations payable under any Loan Document (other than contingent indemnification
obligations for which no claim or demand has been made) have been paid in full in Cash (such date, the “Termination Date”),
Holdings (solely with respect to Sections 5.02 and 5.03) and the Borrower hereby covenant and agree with the Lenders that:
Section 5.01. Financial
Statements and Other Reports. The Borrower will deliver to the Administrative Agent for delivery by the Administrative Agent to each
Lender:
(a) Quarterly Financial
Statements. As soon as available, and in any event within 45 days after the end of each of the first three Fiscal Quarters of each
Fiscal Year ending after the Closing Date, (i) the unaudited consolidated balance sheet of Holdings as at the end of such Fiscal Quarter
and the related unaudited consolidated statements of income and cash flows of Holdings for such Fiscal Quarter and for the period from
the beginning of the then current Fiscal Year to the end of such Fiscal Quarter and setting forth, in reasonable detail, in comparative
form the corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail, together with a Responsible
Officer Certification (which may be included in the applicable Compliance Certificate) with respect thereto and (ii) a Narrative Report;
provided that such financial statements shall only be required to reflect Holdings’ good faith estimate of any purchase
accounting adjustments relating to any acquisition consummated after the Closing Date until the Fiscal Quarter ending on or about June
30 of the Fiscal Year following the Fiscal Year in which the relevant acquisition was consummated;
(b) Annual Financial Statements.
As soon as available, and in any event within 120 days after the end of each Fiscal Year (commencing with the Fiscal Year ending June
30, 2020), (i) the consolidated balance sheet of Holdings as at the end of such Fiscal Year and the related consolidated statements of
income, stockholders’ equity and cash flows of Holdings for such Fiscal Year and, commencing after the completion of the second
full Fiscal Year ended after the Closing Date, setting forth, in reasonable detail, in comparative form the corresponding figures for
the previous Fiscal Year and (ii) with respect to such consolidated financial statements, (A) a report thereon of an independent certified
public accountant of recognized national standing or another accounting firm reasonably acceptable to the Administrative Agent (which
report shall be unqualified as to “going concern” and scope of audit (except for any such qualification pertaining to, or
disclosure of an exception or qualification resulting from, the maturity (or impending maturity) of the Revolving Facility, any Pari
First Lien Facility or any other Indebtedness occurring within one year of the date of delivery of the relevant audit opinion, any breach
or anticipated breach of any financial covenant or the activities, operations, financial results, assets or liabilities of any Unrestricted
Subsidiary), and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial
position of Holdings as at the dates indicated and its income and cash flows for the periods indicated in conformity with GAAP and (B)
a Narrative Report;
(c) Compliance
Certificate; Unrestricted Subsidiaries. (i) Within 5 Business Days after the delivery of financial statements of Holdings pursuant
to Section 5.01(a) or 5.01(b) with respect to any Fiscal Quarter or Fiscal Year, as applicable, a duly executed and completed
Compliance Certificate and (ii) within 5 Business Days after the delivery of financial statements of Holdings pursuant to Section 5.01(b),
(A) a summary (which may be in footnote form) of the pro forma adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries
(if any) from such financial statements and (B) a list identifying each subsidiary of the Borrower as a Restricted Subsidiary or an Unrestricted
Subsidiary as of the date of delivery of such financial statements or confirming that there is no change in such information since the
later of the Closing Date and the most recent prior delivery of such information;
(d) [Reserved];
(e) Notice of
Default or Event of Default. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) any Default or Event
of Default or (ii) the occurrence of any event or change that has caused or evidences or would reasonably be expected to cause or evidence,
either in any case or in the aggregate, a Material Adverse Effect, a reasonably detailed notice specifying the nature and period of existence
of such condition, event or change and what action the Borrower has taken, is taking and proposes to take with respect thereto;
(f) Notice of
Litigation. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) the institution of any Adverse Proceeding
not previously disclosed in writing by the Borrower to the Administrative Agent or (ii) any material development in any Adverse Proceeding
that, in the case of either clauses (i) or (ii), would reasonably be expected to have a Material Adverse Effect, written notice thereof
by the Borrower together with such other non-privileged information as may be reasonably available to the Loan Parties to enable the Lenders
to evaluate such matters;
(g) ERISA.
Promptly upon any Responsible Officer of the Borrower becoming aware of the occurrence of any ERISA Event that would reasonably be expected
to have a Material Adverse Effect, a written notice specifying the nature thereof;
(h) Financial
Plan. Prior to a Qualifying IPO, together with the delivery of financial statements of the Borrower pursuant to Section 5.01(b)
with respect to any Fiscal Year, commencing with the Fiscal Year ending on or about June 30, 2021, an operating budget for the next Fiscal
Year in a form as customarily prepared by management of the Borrower for its internal use or such other form as the Borrower and Administrative
Agent may reasonably agree;
(i) Information
Regarding Collateral. Promptly (and, in any event, within 45 days of the relevant change or such later date as the Administrative
Agent may agree) written notice of any change (i) in any Loan Party’s legal name, (ii) in any Loan Party’s type of organization,
(iii) in any Loan Party’s jurisdiction of organization or (iv) in any Loan Party’s organizational identification number, in
each case to the extent such information is necessary to enable the Administrative Agent to perfect or maintain the perfection and priority
of its security interest in the Collateral of the relevant Loan Party, together with certified copies of the applicable Organizational
Documents reflecting the relevant change;
(j) Certain Reports.
Promptly upon their becoming publicly available and without duplication of any obligations with respect to any such information that
is otherwise required to be delivered under the provisions of any Loan Document, copies of (i) following a Qualifying IPO, all financial
statements, material reports, material notices and proxy statements sent or made available generally by Holdings to its security holders
acting in such capacity and (ii) all material regular and periodic reports and all material registration statements (other than on Form
S-8 or a similar form) and prospectuses, if any, filed by the Borrower or any of its Restricted Subsidiaries with any securities exchange
or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (other
than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered),
exhibits to any registration statement and, if applicable, any registration statement on Form S-8 or a similar form); provided that no
such delivery shall be required hereunder with respect to any of the foregoing to the extent that such are publicly available via EDGAR;
and
(k) Other Information.
(x) Such other certificates, reports and information (financial or otherwise) as the Administrative Agent may reasonably request from
time to time regarding the financial condition or business of the Borrower and its Restricted Subsidiaries and (y) information and documentation
reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer”
and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation; provided, however,
that none of Holdings, the Borrower or any Restricted Subsidiary shall be required to disclose or provide any information (i) that constitutes
non-financial trade secrets or non-financial proprietary information of Holdings, the Borrower or any of its subsidiaries or any of their
respective customers and/or suppliers, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or any of their
respective representatives) is prohibited by any applicable Requirement of Law, (iii) that is subject to attorney-client or similar privilege
or constitutes attorney work product or (iv) in respect of which Holdings, the Borrower or any Restricted Subsidiary owes confidentiality
obligations to any third party (provided such confidentiality obligations were not entered into solely in contemplation of the requirements
of this Section 5.01(k)); provided, further, that in the event the Borrower does not provide any certificate, report or
information requested pursuant to this clause (k) in reliance on the preceding proviso, the Borrower shall provide notice to the
Administrative Agent that such certificate, report or information is being withheld and the Borrower shall use commercially reasonable
efforts to describe, to the extent both feasible and permitted under applicable Requirements of Law or confidentiality obligations, or
without waiving such privilege, as applicable, the applicable certificate, report or information.
Documents required
to be delivered pursuant to this Section 5.01 may be delivered electronically and, if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower (or a representative thereof) (x) posts such documents or (y) provides a link thereto
at the website address listed on Schedule 9.01 (as updated from time to time); provided that, other than with respect to
items required to be delivered pursuant to Section 5.01(j) above, the Borrower shall promptly notify (which notice may be by facsimile
or electronic mail) the Administrative Agent of the posting of any such documents on such website and provide to the Administrative Agent
by electronic mail electronic versions (i.e., soft copies) of such documents; (ii) on which such documents are delivered by the Borrower
to the Administrative Agent for posting on behalf of the Borrower on IntraLinks, SyndTrak or another relevant website, if any, to which
each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative
Agent); (iii) on which such documents are faxed to the Administrative Agent (or electronically mailed to an address provided by the Administrative
Agent); or (iv) in respect of the items required to be delivered pursuant to Section 5.01(j) above in respect of information filed
by Holdings, the Borrower or any of its Restricted Subsidiaries with any securities exchange or with the SEC or any analogous governmental
or private regulatory authority with jurisdiction over matters relating to securities (other than Form 10-Q Reports and Form 10-K Reports),
on which such items have been made available on the SEC website or the website of the relevant analogous governmental or private regulatory
authority or securities exchange.
Notwithstanding the foregoing,
the obligations in paragraphs (a), (b) and (h) of this Section 5.01 may be satisfied with respect to any
financial statements of Holdings by furnishing (A) the applicable financial statements of the Borrower (or any Parent Company) or (B)
the Borrower’s (or any Parent Company’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC or any securities
exchange, in each case, within the time periods specified in such paragraphs; provided that, with respect to each of clauses
(A) and (B), (i) to the extent such financial statements relate to any Parent Company, such financial statements shall be
accompanied by consolidating information (which consolidating information need not be audited) that summarizes in reasonable detail the
differences between the information relating to such Parent Company, on the one hand, and the information relating to the Borrower or
Holdings on a standalone basis, on the other hand, which consolidating information shall be certified by a Responsible Officer of Holdings
as having been fairly presented in all material respects and (ii) to the extent such statements are in lieu of statements required to
be provided under Section 5.01(b), such statements shall be accompanied by a report and opinion of an independent registered public
accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which
report and opinion shall satisfy the applicable requirements set forth in Section 5.01(b) as if the references to “Holdings”
or “the Borrower” (as applicable) therein were references to such Parent Company.
No financial statement
required to be delivered pursuant to Section 5.01(a) or (b) shall be required to include acquisition accounting adjustments
relating to the Transactions or any Permitted Acquisition or other Investment to the extent it is not practicable to include any such
adjustments in such financial statement.
Section 5.02. Existence.
Except as otherwise permitted under Section 6.07 or as a result of the consummation of a Permitted Reorganization or the consummation
of a Holdings Reorganization Transaction, Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries
to, at all times preserve and keep in full force and effect its existence and all rights, franchises, licenses and permits material to
its business except, other than with respect to the preservation of the existence of the Borrower, to the extent that the failure to do
so would not reasonably be expected to result in a Material Adverse Effect; provided that neither Holdings nor the Borrower nor
any of the Borrower’s Restricted Subsidiaries shall be required to preserve any such existence (other than with respect to the preservation
of existence of the Borrower, except as otherwise permitted under Section 6.07 or as a result of the consummation of a Permitted
Reorganization), right, franchise, license or permit if a Responsible Officer of such Person or such Person’s board of directors
(or similar governing body) determines that the preservation thereof is no longer desirable in the conduct of the business of such Person,
and that the loss thereof is not disadvantageous in any material respect to such Person or to the Lenders.
Section 5.03. Payment
of Taxes. Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, pay all Taxes imposed
upon it or any of its properties or assets or in respect of any of its income or businesses or franchises before any penalty or fine
accrues thereon; provided that no such Tax need be paid if (a) it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as (i) adequate reserves or other appropriate provisions, as are required in conformity
with GAAP, have been made therefor and (ii) in the case of a Tax which has or may become a Lien against a material portion of the Collateral,
such contest proceedings conclusively operate to stay the sale of such portion of the Collateral to satisfy such Tax or (b) failure to
pay or discharge the same would not reasonably be expected to result in a Material Adverse Effect.
Section 5.04. Maintenance
of Properties. The Borrower will, and will cause each of its Restricted Subsidiaries to, maintain or cause to be maintained in good
repair, working order and condition, ordinary wear and tear and casualty and condemnation excepted, all material tangible property reasonably
necessary to the normal conduct of business of the Borrower and its Restricted Subsidiaries and from time to time will make or cause
to be made all needed and appropriate repairs, renewals and replacements thereof except as expressly permitted by this Agreement or where
the failure to maintain such tangible properties or make such repairs, renewals or replacements would not reasonably be expected to have
a Material Adverse Effect.
Section 5.05. Insurance.
Except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, the Borrower will maintain or cause
to be maintained, in each case, as determined by the Borrower in good faith, with financially sound and reputable insurers, such insurance
coverage with respect to liabilities, losses or damage in respect of the assets, properties and businesses of the Borrower and its Restricted
Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in similar
businesses, in each case in such amounts (giving effect to self-insurance), with such deductibles, covering such risks and otherwise on
such terms and conditions as shall be customary for such Persons, including, but only if required by applicable law or regulation, flood
insurance with respect to each Flood Hazard Property, in each case in compliance with applicable Flood Insurance Laws, in each case, together
with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the
foregoing, as amended or modified from time to time. Each such policy of insurance shall (i) name the Administrative Agent on behalf of
the Secured Parties as a loss payee and mortgagee or an additional insured, as applicable, thereunder as its interests may appear and
(ii) to the extent available from the relevant insurance carrier, in the case of each casualty insurance policy (excluding any business
interruption insurance policy), contain a loss payable clause or endorsement that names the Administrative Agent, on behalf of the Secured
Parties, as the loss payee thereunder and, to the extent available, provide for at least 30 days’ prior written notice to the Administrative
Agent of any modification or cancellation of such policy (or 10 days’ prior written notice in the case of the failure to pay any
premiums thereunder); provided that the Borrower shall have 45 days after the Closing Date (or such later date as agreed by the
Administrative Agent) to comply with the requirements of the foregoing clauses (i) and (ii) with respect to policies in effect on the
Closing Date.
Section 5.06. Inspections.
The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any authorized representative designated by the
Administrative Agent to visit and inspect any of the properties of the Borrower and any of its Restricted Subsidiaries at which the
principal financial records and executive officers of the applicable Person are located, to inspect, copy and take extracts from its
and their respective financial and accounting records, and to discuss its and their respective affairs, finances and accounts with
its and their Responsible Officers and independent public accountants (subject to such accountants’ customary policies and
procedures) (provided that the Borrower (or any of its subsidiaries) may, if it so chooses, be present at or participate in
any such discussion), all upon reasonable notice and at reasonable times during normal business hours; provided that (x) only
the Administrative Agent on behalf of the Lenders may exercise the rights of the Administrative Agent and the Lenders under this Section
5.06, (y) the Administrative Agent shall not exercise such rights more often than one time during any calendar year and (z) only
one such time per calendar year shall be at the expense of the Borrower; provided, further, that when an Event of
Default exists, the Administrative Agent (or any of its representatives or independent contractors) may do any of the foregoing at
the expense of the Borrower at any time during normal business hours and upon reasonable advance notice; provided, further
that notwithstanding anything to the contrary herein, neither the Borrower nor any Restricted Subsidiary shall be required to
disclose, permit the inspection, examination or making of copies of or taking abstracts from, or discuss any document, information
or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information of the Borrower and its
subsidiaries and/or any of its customers and/or suppliers, (ii) in respect of which disclosure to the Administrative Agent or any
Lender (or any of their respective representatives or contractors) is prohibited by applicable law, (iii) that is subject to
attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which Holdings, the Borrower or any
Restricted Subsidiary owes confidentiality obligations to any third party (provided such confidentiality obligations were not
entered into solely in contemplation of the requirements of this Section 5.06); provided, further, that in the event
any of the circumstances described in the preceding proviso exist, the Borrower shall provide notice to the Administrative Agent
thereof and shall use commercially reasonable efforts to describe, to the extent both feasible and permitted under applicable
Requirements of Law or confidentiality obligations, or without waiving such privilege, as applicable, the applicable document,
information or other matter.
Section 5.07. Maintenance
of Book and Records. The Borrower will, and will cause its Restricted Subsidiaries to, maintain proper books of record and account
containing entries of all material financial transactions and matters involving the assets and business of the Borrower and its Restricted
Subsidiaries that are full, true and correct in all material respects and permit the preparation of consolidated financial statements
in accordance with GAAP.
Section 5.08. Compliance
with Laws. The Borrower will comply, and will cause each of its Restricted Subsidiaries to comply, with the requirements of all applicable
laws, rules, regulations and orders of any Governmental Authority (including ERISA and all Environmental Laws, Sanctions and the U.S.
Foreign Corrupt Practices Act of 1977), except to the extent the failure of the Borrower or the relevant Restricted Subsidiary to comply
would not reasonably be expected to have a Material Adverse Effect.
Section 5.09. Hazardous Materials Activity.
(a) The Borrower will deliver to the
Administrative Agent:
(i) reasonably promptly
following receipt by Borrower thereof, copies of all written environmental audits, investigations, analyses and reports of any kind or
character, whether prepared by personnel of the Borrower or any of its Restricted Subsidiaries or by independent consultants, governmental
authorities or any other Persons, with respect to any Environmental Liabilities or Hazardous Materials Activity that, in each case could
reasonably be expected to have a Material Adverse Effect;
(ii) reasonably promptly
following Borrower becoming aware of the occurrence thereof, written notice describing in reasonable detail (A) any Release required to
be reported by the Borrower or any of its Restricted Subsidiaries to any federal, state or local governmental or regulatory agency under
any applicable Environmental Law, (B) any remedial action taken by or on behalf of the Borrower or any of its Restricted Subsidiaries
in response to any Hazardous Materials Activity or Environmental Claim, or (C) any pending or threatened Environmental Claim, that in
the case of each of (A), (B) and (C) above, would reasonably be expected to have a Material Adverse Effect; and
(iii) reasonably promptly
following the sending or receipt thereof by the Borrower or any of its Restricted Subsidiaries, a copy of any and all written communications
with respect to any Release required to be reported by the Borrower or any of its Restricted Subsidiaries to any federal, state or local
governmental or regulatory agency or any Release required to be remediated pursuant to any Environmental Law, that in each case would
reasonably be expected to have a Material Adverse Effect.
(b) The Borrower shall
reasonably promptly take, and shall cause each of its Restricted Subsidiaries reasonably promptly to take, any and all actions
reasonably necessary to (i) cure any violation of Environmental Law by the Borrower or any of its Restricted Subsidiaries, and, to
the extent required by Environmental Law, address with appropriate corrective or remedial action any Release or threatened Release
of any Hazardous Material at or from any Facility, that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect and (ii) make an appropriate response to any Environmental Claim against the Borrower or any of its
Restricted Subsidiaries and discharge any obligations it may have to any Person thereunder, where failure to do so could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect; provided that it shall not be deemed to be
a violation of this Section 5.09 if the Borrower or its Restricted Subsidiaries are in good faith contesting such violation
or Environmental Claim in accordance with applicable Environmental Law.
Section 5.10. Designation
of Subsidiaries. The Borrower may at any time after the Closing Date designate (or re-designate) any subsidiary as an Unrestricted
Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) no subsidiary may be designated as an
Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of any Pari First Lien Credit Agreement or any Incremental
Equivalent Debt under the Pari First Lien Credit Agreement and (ii) as of the date of the designation thereof, no Unrestricted Subsidiary
shall own any Capital Stock in any Restricted Subsidiary of the Borrower (unless such Restricted Subsidiary is also designated as an
Unrestricted Subsidiary simultaneously with the aforementioned designation in accordance with the terms of this Section 5.10)
or hold any Indebtedness of or any Lien on any property of the Borrower or its Restricted Subsidiaries (unless the Borrower or such Restricted
Subsidiary is permitted hereunder to incur such Indebtedness or grant such Lien in favor of such Unrestricted Subsidiary). The designation
of any subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower therein at the date of designation in
an amount equal to the portion of the fair market value of the net assets of such Restricted Subsidiary attributable to the Borrower’s
equity interest therein as estimated by the Borrower in good faith (and such designation shall only be permitted to the extent such Investment
is permitted under Section 6.06). The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the
incurrence or making, as applicable, at the time of designation of any then-existing Investment, Indebtedness or Lien of such Restricted
Subsidiary, as applicable; provided that upon a re- designation of any Unrestricted Subsidiary as a Restricted Subsidiary, the
Borrower shall be deemed to continue to have an Investment in the resulting Restricted Subsidiary in an amount (if positive) equal to
(a) the Borrower’s “Investment” in such Restricted Subsidiary at the time of such re-designation less (b) the portion
of the fair market value of the net assets of such Restricted Subsidiary attributable to the Borrower’s equity therein at the time
of such re-designation. As of the Closing Date, the subsidiaries listed on Schedule 5.10 hereto have been designated as Unrestricted
Subsidiaries.
Section 5.11. Use of Proceeds.
The Borrower shall use the proceeds of the Revolving Loans (a) on the Closing Date, in an aggregate principal amount of up to $45,000,000
to pay Transaction Costs and expenses and to provide for ordinary course working capital needs and general corporate purposes and (b)
after the Closing Date, to finance the working capital needs and other general corporate purposes of the Borrower and its subsidiaries
(including for capital expenditures, acquisitions, other Investments, Restricted Payments, Restricted Debt Payments and any other purpose
not prohibited by the terms of the Loan Documents). No part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that would entail a violation of Regulation U. Notwithstanding the foregoing, all proceeds of the Revolving Loans shall
be deposited and held solely in the Funding Account and the Borrower shall not, nor shall it permit any of its Subsidiaries to, withdraw
any funds from the Funding Account unless, immediately prior to such withdrawal, the amount of Cash and Cash Equivalents of the Borrower
and its Restricted Subsidiaries (less the amounts on deposit in the Funding Account at such time) does not exceed $25,000,000 and then
only in an amount such that the Cash and Cash Equivalents of the Borrower, when taken together with the amount so withdrawn, will not
exceed $25,000,000 immediately after giving effect thereto.
Section 5.12. Covenant to Guarantee Obligations and Give
Security.
(a) Upon (i) the
formation or acquisition after the Closing Date of any Restricted Subsidiary that is a Domestic Subsidiary (subject to Section 6.06(hh)),
(ii) the designation of any Unrestricted Subsidiary that is a Domestic Subsidiary as a Restricted Subsidiary, (iii) any Restricted Subsidiary
that is a Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary ceasing to be an Excluded Subsidiary
(including by election of the Borrower as set forth herein), (x) if the event giving rise to the obligation under this Section 5.12(a)
occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the date on which financial statements are required to
be delivered pursuant to Section 5.01(a) for the Fiscal Quarter in which the relevant formation, acquisition, designation or cessation
occurred or (y) if the event giving rise to the obligation under this Section 5.12(a) occurs during the fourth Fiscal Quarter of
any Fiscal Year, on or before the date that is 60 days after the end of such Fiscal Quarter (or, in the cases of clauses (x) and
(y), such longer period as the Administrative Agent may reasonably agree), the Borrower shall (A) cause such Restricted Subsidiary
(other than any Excluded Subsidiary) to comply with the requirements set forth in clause (a) of the definition of “Collateral
and Guarantee Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary
(other than any Excluded Subsidiary) to deliver to the Administrative Agent a signed copy of a customary opinion of counsel for such Restricted
Subsidiary, addressed to the Administrative Agent and the other relevant Secured Parties.
(b) Within 120
days (or such longer period as the Administrative Agent may reasonably agree) after the acquisition by any Loan Party of any Material
Real Estate Asset, other than any Excluded Asset, the Borrower shall cause such Loan Party to comply with the requirements set forth in
clause (b) of the definition of “Collateral and Guarantee Requirement”; it being understood and agreed that, with respect
to any Material Real Estate Asset (other than any Excluded Asset) owned by any Restricted Subsidiary at the time such Restricted Subsidiary
is required to become a Loan Party under Section 5.12(a) above, such Material Real Estate Asset shall be deemed to have been acquired
by such Restricted Subsidiary on the first day of the time period within which such Restricted Subsidiary is required to become a Loan
Party under Section 5.12(a).
Notwithstanding anything to the
contrary herein or in any other Loan Document, (i) the Administrative Agent may grant extensions of time (including after the expiration
of any relevant period, which apply retroactively) for the creation and perfection of security interests in, or obtaining of title insurance,
legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guaranty by any Restricted
Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date), and each Lender
hereby consents to any such extension of time, (ii) any Lien required to be granted from time to time pursuant to the definition of “Collateral
and Guarantee Requirement” shall be subject to the exceptions and limitations set forth in the Collateral Documents, (iii) other
than with respect to the Funding Account), perfection by control shall not be required with respect to assets requiring perfection through
control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than
control (including by the Pari First Lien Agent as bailee) of pledged Capital Stock and/or Material Debt Instruments, in each case, that
constitute Collateral) and no blocked account agreement, account control agreement or similar agreement shall be required, (iv) no Loan
Party shall be required to seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar
letter or agreement, (v) no Loan Party will be required to (1) take any action outside of the United States or grant or perfect any security
interest in any asset located outside of the U.S. or conduct any foreign lien search, (2) execute any foreign law guarantee, security
agreement, pledge agreement, mortgage, deed or charge or (3) make any foreign intellectual property filing, conduct any foreign intellectual
property search or prepare any foreign intellectual property schedule with respect to any assets of any Loan Party or enter into any
source code escrow arrangement or register any intellectual property, (vi) in no event will the Collateral include any Excluded Assets,
(vii) no action shall be required to perfect any Lien with respect to (x) any vehicle or other asset subject to a certificate of title,
or any retention of title, extended retention of title rights, or similar rights and/or (y) Letter-of-Credit Rights, in each case to
the extent that a security interest therein cannot be perfected by filing a Form UCC-1 (or similar) “all assets” financing
statement without the requirement to list any VIN, serial or other number and (viii) the Administrative Agent shall not require the taking
of a Lien on, or require the perfection of any Lien granted in, those assets as to which the cost, burden, difficulty or consequence
(including any effect on the ability of the relevant Loan Party to conduct its operations and business in the ordinary course of business)
of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other tax or expenses relating to such Lien) outweighs
the benefit to the Lenders of the security afforded thereby as reasonably determined by the Borrower and the Administrative Agent; provided
that the foregoing shall not apply and shall not operate to limit the obligation of the Loan Parties to provide security in foreign jurisdictions
(subject to “agreed security principles” to be negotiated in good faith between the Borrower and the Administrative Agent)
if a Foreign Subsidiary becomes a Guarantor.
Additionally, (i) no action shall be
required to create or perfect a Lien in any asset in respect of which the creation or perfection of a security interest therein would
(1) be prohibited by enforceable anti-assignment provisions set forth in any contract that is permitted or otherwise not prohibited by
the terms of this Agreement, (2) violate the terms of any contract relating to such asset that is permitted or otherwise not prohibited
by the terms of this Agreement, in each case, after giving effect to the applicable anti- assignment provisions of the UCC or other applicable
law or (3) trigger termination of any contract relating to such asset that is permitted or otherwise not prohibited by the terms of this
Agreement pursuant to any “change of control” or similar provision, it being understood that the Collateral shall include
any proceeds and/or receivables arising out of any contract described in this clause (other than Excluded Assets) to the extent the assignment
of such proceeds or receivables is expressly deemed effective under the UCC or other applicable Requirements of Law notwithstanding the
relevant prohibition, violation or termination right, (ii) no Loan Party shall be required to create or perfect a security interest in
any asset to the extent the creation or perfection of a security interest in such asset would (A) be prohibited under any applicable Requirement
of Law, after giving effect to any applicable anti-assignment provision of the UCC or other applicable law and other than proceeds thereof
(other than Excluded Assets) to the extent that the assignment of such proceeds is effective under the UCC or other applicable Requirements
of Law notwithstanding such Requirement of Law, (B) require any governmental consent, approval, license or authorization (unless such
consent, approval, license or authorization has been obtained), after giving effect to any applicable anti-assignment provision of the
UCC or other applicable law and other than proceeds thereof (other than Excluded Assets) to the extent that the assignment of such proceeds
is effective under the UCC or other applicable Requirements of Law notwithstanding such consent or restriction and/or (C) result in adverse
tax consequences or adverse regulatory consequences to any Loan Party or any of its subsidiaries or Parent Companies as determined by
the Borrower in good faith following consultation with the Administrative Agent, (iii) any joinder or supplement to any Loan Guaranty,
any Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that is required to become a Loan Party pursuant
to Section 5.12(a) above may, with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), include
such schedules (or updates to schedules) as may be necessary to qualify any representation or warranty set forth in any Loan Document
to the extent necessary to ensure that such representation or warranty is true and correct to the extent required thereby or by the terms
of any other Loan Document; and (iv) (A) no Loan Party will be required to take any action required under the Federal Assignment of Claims
Act or any similar law and (B) no Secured Party will be permitted to exercise any right of setoff in respect of any account maintained
solely for the purpose of receiving and holding government receivables.
Notwithstanding the foregoing or anything
in any Loan Document to the contrary, nothing in the preceding two paragraphs shall limit the requirements as set forth in the Credit
Support Documents.
Section 5.13. [Reserved].
Section 5.14. Maintenance
of Fiscal Year. The Borrower shall maintain its Fiscal Year-end as in effect on the Closing Date; provided that the Borrower may,
upon written notice to the Administrative Agent, change its Fiscal Year-end to another date, in which case the Borrower and the Administrative
Agent will, and are hereby authorized to (without requiring the consent of any other Person, including any Lender), make any adjustments
to this Agreement that are necessary to reflect such change in Fiscal Year.
Section 5.15. Further
Assurances. Promptly upon reasonable request of the Administrative Agent and subject to the limitations described in Section 5.12:
(a) The Borrower
will, and will cause each other Loan Party to, execute any and all further documents, financing statements, agreements, instruments, certificates,
notices and acknowledgments and take all such further actions (including the filing and recordation of financing statements, fixture filings,
Mortgages and/or amendments thereto and other documents), that may be required under any applicable law and which the Administrative Agent
may reasonably request to ensure the perfection and priority of the Liens created or intended to be created under the Collateral Documents,
all at the expense of the relevant Loan Parties. For the avoidance of doubt, in no event shall any (x) Excluded Property or (y) property
subject to a Sale and Lease-Back Transaction permitted hereunder be required to be made subject to the Collateral Documents.
(b) The Borrower
will, and will cause each other Loan Party to, (i) correct any material defect or error that may be discovered in the execution, acknowledgment,
filing or recordation of any Collateral Document or other document or instrument relating to any Collateral and (ii) do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any and all such further acts (including notices to third parties),
deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from time to time in order to
ensure the creation and perfection of the Liens created under the Collateral Documents.
Section 5.16. Conduct
of Business. The Borrower and its Restricted Subsidiaries shall engage only in those material lines of business that consist of (a)
the businesses engaged in by the Borrower or any Restricted Subsidiary on the Closing Date, reasonably related, similar, incidental, complementary,
ancillary, corollary, synergistic or related businesses or reasonable extensions, development or expansion (or proposed to be engaged)
of such businesses (including entertainment and amusement media and content business in connection therewith) and (b) such other lines
of business to which the Administrative Agent may consent.
Section 5.17. Annual
Lender Call. Upon the request of the Administrative Agent following each delivery of financial statements pursuant to Section 5.01(b)
(commencing with respect to the financial statements delivered for the Fiscal Year ending on or about June 30, 2021), the Borrower shall
participate in a conference call with Lenders arranged by the Administrative Agent to provide discussion and analysis with respect to
the financial condition and results of operations of the Borrower and its Restricted Subsidiaries at a time at which the Borrower and
the Administrative Agent mutually agree.
Section 5.18. Post-Closing
Actions. Take the actions set forth on Schedule 5.18 within the time periods specified thereon (or by such later time as the
Administrative Agent may reasonably agree).
ARTICLE 6 NEGATIVE COVENANTS
Effective from
the Closing Date and until the Termination Date has occurred, Holdings (solely with respect to Section 6.14) and the Borrower covenant
and agree with the Lenders that:
Section 6.01. Indebtedness.
The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise
become or remain liable with respect to any Indebtedness, except:
(a) the Obligations (including any
Additional Revolving Loans);
(b) Indebtedness
of the Borrower or any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary (or issued to any Parent Company which
is substantially contemporaneously transferred to the Borrower or any Restricted Subsidiary); provided that in the case of any
Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to a Loan Party, the making of the corresponding loan or advance
shall have been permitted as an Investment pursuant to Section 6.06; provided, further, all such Indebtedness of
any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party
on terms that are reasonably acceptable to the Administrative Agent;
(c) Indebtedness
of any Joint Venture or Indebtedness of the Borrower or any Restricted Subsidiary incurred on behalf of any Joint Venture or any Guarantees
by the Borrower or any Restricted Subsidiary of Indebtedness of any Joint Venture in an aggregate outstanding principal amount for all
such Indebtedness not to exceed at any time the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the
most recently ended Test Period;
(d) Indebtedness
arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out
or similar obligations), or payment obligations in respect of any non-compete, consulting or similar arrangements, in each case incurred
in connection with any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder or consummated prior to
the Pari First Lien Closing Date or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties, letters of
credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted
Subsidiary pursuant to any such agreement;
(e) Indebtedness
of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations (including health, safety and environmental
obligations), bids, leases, governmental contracts, trade contracts, surety, indemnity, stay, customs, judgment, appeal, performance,
completion and/or return of money bonds or guaranties or other similar obligations incurred in the ordinary course of business and (ii)
in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing
items;
(f) Indebtedness
of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, debit cards, purchasing cards,
treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository,
overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services, including Indebtedness
arising from the financing by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business), employee credit card programs, cash pooling services, foreign exchange and currency management
services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit
Accounts, including incentive, supplier finance or similar programs;
(g) (i) Guarantees by the Borrower
and/or any Restricted Subsidiary of the obligations of suppliers, customers, franchisees, licensees, sublicensees and cross-licensees
in the ordinary course of business, (ii) Indebtedness (A) incurred in the ordinary course of business in respect of obligations of the
Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of property or services or progress payments in connection
with such property and services or (B) consisting of obligations under deferred purchase price or other similar arrangements incurred
in connection with Permitted Acquisitions or any other Investment expressly permitted hereunder and (iii) Indebtedness in respect of
letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or
similar facilities entered into in the ordinary course of business;
(h) Guarantees
(including any co-issuance) by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower and/or
any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other
obligations not prohibited by this Agreement; provided that in the case of any such Guarantee by any Loan Party of the obligations
of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness
of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing (or anticipated), on the Pari First Lien
Closing Date and, with respect to any such item of Indebtedness in an aggregate committed or principal amount in excess of $250,000, described
on Schedule 6.01;
(j) Indebtedness of Restricted
Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not
exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness
of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements
entered into in the ordinary course of business;
(l) Indebtedness
of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations
contained in supply arrangements in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection
with customer financing arrangements in the ordinary course of business;
(m) Indebtedness
of the Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness (including mortgage financing,
industrial revenue bond, industrial development bond or similar financings) or to finance the construction, purchase, repair, replacement
or improvement of any fixed or capital asset, in an aggregate outstanding principal amount not to exceed the greater of $65,000,000 and
49% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (excluding, for the avoidance of doubt,
the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Sale/Leaseback Transaction and iStar Exchanges);
(n) Indebtedness of any Person
that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or other Investment permitted hereunder
after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary
or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof and (ii) either
(A) the Borrower is in compliance with the applicable ratio set forth in clause (e) of the definition of “Incremental Cap”
(as defined and set forth in the Pari First Lien Credit Agreement as in effect on the Closing Date) based on whether such Indebtedness
is secured by a pari passu lien on the Collateral or a junior Lien on the Collateral or is unsecured or secured by Liens on assets
not constituting Collateral (and for such purpose, such Indebtedness shall be deemed to have been incurred to finance an acquisition
or other Investment permitted hereunder), calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period or
(B) the aggregate outstanding principal amount of such Indebtedness does not exceed the greater of $15,000,000 and 11% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o) Indebtedness
consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any Permitted
Payee to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) the Borrower and its Restricted
Subsidiaries may become and remain liable for any Indebtedness extending, refinancing, refunding or replacing any Indebtedness permitted
under clauses (a), (c), (i), (j), (m), (n), (r), (u), (v), (w),
(y), (dd), (gg), (ll) and (mm) of this Section 6.01 (in any case, including any extending,
refinancing, refunding or replacing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any
subsequent Refinancing Indebtedness in respect thereof; provided that (i) the principal amount of such Refinancing Indebtedness
does not exceed the principal amount of the Indebtedness being extended, refinanced, refunded or replaced, except by (A) an amount equal
to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts and other customary
fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with
the relevant extension, refinancing, refunding or replacement, (B) an amount equal to any existing commitments unutilized thereunder
and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (1) any additional Indebtedness
referred to in this clause (C) satisfies the other applicable requirements of this Section 6.01(p) (with additional amounts incurred
in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional
amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable
requirements of Section 6.02), (ii) in the case of Refinancing Indebtedness with respect to clause (a) (other than (x)
customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness
which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii) and (y)
Refinancing Indebtedness having an aggregate principal amount outstanding not exceeding $20,000,000 (as selected by the Borrower)), such
Refinancing Indebtedness has (A) a final maturity on or later than (and, in the case of revolving Indebtedness, does not require mandatory
commitment reductions, if any, prior to) the earlier of (x) the Latest Maturity Date at the time of the incurrence of such Refinancing
Indebtedness and (y) the final maturity of the Indebtedness being extended, refinanced, refunded or replaced and (B) other than with
respect to revolving Indebtedness, a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of the Indebtedness being extended, refinanced, refunded or replaced, (iii) with respect to any Refinancing Indebtedness with an original
principal amount in excess of the Threshold Amount, the terms thereof (excluding pricing, fees, premiums, rate floors, optional prepayment
or redemption terms (and, if applicable, subordination terms) and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness
permitted under clause (a) above, security) are not, taken as a whole (as determined by the Borrower in good faith), more favorable
to the lenders providing such Indebtedness than those applicable to the Indebtedness being extended, refinanced, refunded or replaced
(other than any covenants or any other terms or provisions (X) applicable only to periods after the Latest Maturity Date at the time
of the incurrence of such Refinancing Indebtedness, (Y) that are then-current market terms (as determined by the Borrower in good faith
at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness
or (Z) solely in the case of Refinancing Indebtedness in respect of Indebtedness incurred in reliance on clauses (a) and/or (z) of this Section 6.01, terms or other provisions which are conformed (or added) to the Loan Documents for the benefit of the
Lenders or, as applicable, the Administrative Agent, pursuant to an amendment to this Agreement effectuated in reliance on Section
9.02(d)(ii)), (iv) the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause
of this Section 6.01 pursuant to which the Indebtedness being extended, refinanced, refunded or replaced was incurred (i.e., the
incurrence of such Refinancing Indebtedness shall not create availability under such relevant clause), (v) except in the case of Refinancing
Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Indebtedness,
if secured, is secured only by Permitted Liens at the time of such extension, refinancing, refunding or replacement (it being understood
that secured Indebtedness may be refinanced with unsecured Indebtedness), (B) such Indebtedness is incurred by the obligor or obligors
in respect of the Indebtedness being extended, refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to
Section 6.01 (it being understood that Holdings may not be the primary obligor of the applicable Refinancing Indebtedness if Holdings
was not the primary obligor on the relevant refinanced Indebtedness) and (C) if the Indebtedness being extended, refinanced, refunded
or replaced was contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were contractually
subordinated to such Liens on the Collateral securing the Obligations), such Indebtedness is contractually subordinated to the Obligations
in right of payment (or the Liens securing such Indebtedness are subordinated to the Liens on the relevant Collateral securing the Obligations)
either (x) on terms not materially less favorable, taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens,
as applicable) being extended, refinanced, refunded or replaced, taken as a whole or (y) pursuant to an Acceptable Intercreditor Agreement,
(vi) except in the case of Refinancing Indebtedness with respect to clause (a) of this Section 6.01, as of the date of
the incurrence of such Indebtedness and after giving effect thereto, no payment or bankruptcy (with respect to the Borrower) Event of
Default exists and (vii) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a)
of this Section 6.01, (A) such Refinancing Indebtedness is pari passu or junior in right of payment and secured by the
Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided
that any such Refinancing Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Acceptable
Intercreditor Agreement, (B) if such Refinancing Indebtedness is secured, it is not secured by any assets other than the Collateral,
(C) if such Refinancing Indebtedness is Guaranteed, it shall not be Guaranteed by any Person other than a Loan Party and (D) such Refinancing
Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, it being understood and agreed that any such
Refinancing Indebtedness may participate in any mandatory prepayment as set forth in Section 2.11(b)(vi);
(q) endorsement
of instruments or other payment items for collection or deposit in the ordinary course of business;
(r) Indebtedness
in respect of any Additional Letter of Credit Facility in an aggregate principal or face amount at any time outstanding not to exceed
the greater of $40,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(s) Indebtedness
of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) [reserved];
(u) Indebtedness
of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the greater of $60,000,000
and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v) Indebtedness of the Borrower
and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 100% of the amount of any capital contributions
or other proceeds received by the Borrower or any Restricted Subsidiary (i) from the issuance or sale of its Qualified Capital Stock
or (ii) in the form of any cash contribution, plus the fair market value, as determined by the Borrower in good faith, of Cash
Equivalents, marketable securities or other property received by the Borrower or any Restricted Subsidiary from the issuance and sale
by it or any Parent Company of its or such Parent Company’s Qualified Capital Stock or a contribution to the Qualified Capital
Stock of any Parent Company, Holdings, the Borrower or any Restricted Subsidiary (including through consolidation, amalgamation or merger),
in each case after the Pari First Lien Closing Date, and in each case other than (A) any proceeds received from the sale of Capital Stock
to, or contributions from, the Borrower or any of its Restricted Subsidiaries, (B) to the extent the relevant proceeds have otherwise
been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and (C) Cure Amounts and/or any Available
Excluded Contribution Amount;
(w) Indebtedness
arising under a Qualified Receivables Facility in an aggregate principal amount not to exceed the greater of $20,000,000 and 15% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period;
(x) Indebtedness
of the Borrower and/or any Restricted Subsidiary incurred in respect of (i) any Pari First Lien Facility and any “Incremental Loans”
and “Incremental Equivalent Debt” (each as defined in the Pari First Lien Credit Agreement or any equivalent term under any
Pari First Lien Facility) in an aggregate outstanding principal amount that does not exceed $856,692,045.44 plus the aggregate
outstanding principal amount of such “Incremental Loans” or “Incremental Equivalent Debt” so long as the sum of
the aggregate outstanding principal amount of any such “Incremental Loans” or “Incremental Equivalent Debt” does
not exceed the “Incremental Cap” (as applicable, and each as defined and as set forth in the Pari First Lien Credit Agreement
as in effect on the Closing Date, including after giving effect to Sections 1.04(d) and 1.04(e) thereof) and (ii) any refinancing,
refunding or replacing of any Pari First Lien Facility or any such “Incremental Loans” or “Incremental Equivalent Debt”
after the Closing Date so long as (A) the aggregate outstanding principal amount of such Indebtedness does not exceed an amount permitted
to be incurred under the preceding clause (i), plus (1) an amount equal to unpaid accrued interest, penalties and premiums
(including tender premiums) thereon, (2) the amount of any underwriting discounts and other customary fees, commissions and expenses (including
upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, (3) an amount equal
to any existing commitments unutilized thereunder and (4) any additional amounts permitted to be incurred pursuant to this Section
6.01 (with additional amounts incurred in reliance on this clause (4) constituting a utilization of the relevant basket or
exception pursuant to which such additional amount is permitted), (B) such Indebtedness, if secured, is secured only by Liens permitted
under Section 6.02(t), (C) except with respect to revolving Indebtedness, the Weighted Average Life to Maturity of such Indebtedness
is equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced in reliance on this Section
6.01(x) at the time of such refinancing (without giving effect to any prepayment thereof), (D) the final maturity date of such Indebtedness
is equal to or later than the final maturity date of the Indebtedness being refinanced in reliance on this Section 6.01(x) and (E) no
such Indebtedness is (1) guaranteed by any Person which is not a Loan Party or (2) secured by any assets other than the Collateral; provided
that amounts incurred under this Section 6.01(x) shall be without duplication of amounts permitted under Section 6.01(a);
(y) Indebtedness
of the Borrower and/or any Restricted Subsidiary incurred in connection with Sale and Lease-Back Transactions permitted pursuant to Section
6.08;
(z) [reserved];
(aa) Indebtedness (including
obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to
such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers’ compensation claims (or reimbursement
type obligations regarding workers’ compensation claims), unemployment insurance (including premiums related thereto), other types
of social security, pension obligations, vacation pay, health, disability or other employee benefits or property, casualty or liability
insurance or self-insurance;
(bb) Indebtedness of the Borrower
and/or any Restricted Subsidiary representing (i) deferred compensation to current and former directors, officers, employees, members
of management, managers and consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary in the ordinary course of
business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition
or any other Investment permitted hereby;
(cc) Indebtedness
of the Borrower and/or any Restricted Subsidiary in respect of any letter of credit or bank guarantee issued in favor of any issuing bank
or swingline lender to support any defaulting lender’s participation in letters of credit issued, or swingline loans made, hereunder
or under any Additional Letter of Credit Facility;
(dd) Indebtedness
of the Borrower or any Restricted Subsidiary supported by any letter of credit issued under any Pari First Lien Facility, any Additional
Letter of Credit Facility or any other letters of credit or bank guarantees permitted hereunder;
(ee) unfunded pension
fund and other employee benefit plan obligations and liabilities incurred by the Borrower and/or any Restricted Subsidiary in the ordinary
course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under Section 7.01(i);
(ff) without duplication
of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind interest), accretion
or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Borrower and/or any Restricted
Subsidiary hereunder;
(gg) (i) to the
extent constituting Indebtedness, obligations under the Acquisition Agreement and (ii) any Indebtedness permitted to remain outstanding
pursuant to the Acquisition Agreement after the closing of the transactions contemplated by the Acquisition Agreement;
(hh) customer deposits
and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course
of business;
(ii) [reserved];
(jj) (i) Indebtedness
in connection with bankers’ acceptances, discounted bills of exchange or the discounting or factoring of receivables for credit
management purposes, in each case incurred or undertaken in the ordinary course of business on arm’s-length commercial terms and
(ii) the incurrence of Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights or the settlement of
any claims or actions (whether actual, contingent or potential) with respect to the Transactions or any other acquisition (by merger,
consolidation or amalgamation or otherwise) in accordance with the terms hereof;
(kk) obligations
in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any subsidiary of the
Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions
other than within the United States;
(ll) Indebtedness
in an aggregate principal amount outstanding at any time not to exceed the Available RP Capacity Amount;
(mm) Indebtedness in respect of any
Excluded Property Transaction or any transactions under any iStar Sale/Leaseback Documents; and
(nn) Guarantee obligations incurred
in the ordinary course of business under repurchase agreements in connection with the financing of Bowling Equipment sales.
For the avoidance
of doubt, the accrual of interest, the accretion of accreted value, the accretion or amortization of original issue discount, the payment
of interest in the form of additional Indebtedness and increases in the amount of Indebtedness outstanding solely as a result of fluctuations
in the exchange rate of currencies shall be deemed to be permitted Indebtedness for purposes of this Section.
Section 6.02. Liens.
The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, create, incur, assume or permit or suffer to exist
any Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any income or profits
therefrom, except:
(a) Liens created pursuant to the
Loan Documents securing the Obligations;
(b) Liens for Taxes
or other governmental charges which are not overdue for a period of more than 45 days or, if more than 45 days overdue (i) are being contested
in accordance with Section 5.03 or (ii) with respect to which the failure to make payment would not reasonably be expected to have
a Material Adverse Effect;
(c) statutory or
common law Liens (and rights of set-off) of landlords, sub landlords, construction contractors, banks, carriers, warehousemen, mechanics,
repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements of Law, in each case incurred in the ordinary course
of business (i) for amounts not yet overdue by more than 45 days, (ii) for amounts that are overdue by more than 45 days (A) that are
being contested in good faith by appropriate proceedings, so long as any reserves or other appropriate provisions required by GAAP have
been made for any such contested amounts or (B) with respect to which no filing or other action has been taken to enforce such Lien or
(iii) with respect to which the failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(d) Liens incurred (i) in the
ordinary course of business in connection with workers’ compensation, unemployment insurance, health, disability or employee benefits
and other types of social security laws and regulations, (ii) in the ordinary course of business to secure the performance of tenders,
statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, indemnitees, performance,
completion and return-of-money bonds and other similar obligations (including those to secure health, safety and environmental obligations)
(in each case, exclusive of obligations for the payment of borrowed money), (iii) pursuant to pledges and deposits of Cash or Cash Equivalents
in the ordinary course of business securing (x) any liability for reimbursement, premium or indemnification obligations of insurance
brokers or carriers providing property, casualty, liability or other insurance to Holdings, the Borrower and its subsidiaries (including
deductibles, self-insurance, co- payment, co-insurance and retentions) or (y) leases or licenses of property otherwise permitted by this
Agreement and (iv) to secure obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar
instruments posted with respect to the items described in clauses (i) through (iii) above;
(e) Liens consisting of easements,
covenants, conditions, rights-of-way, restrictions, encroachments, servitudes for railways, sewers, drains, gas and oil and other pipelines,
gas and water mains, electric light and power and telecommunication, telephone or telegraph or cable television conduits, poles, wires
and cables and other similar protrusions or encumbrances and other minor defects or irregularities in title, in each case (x) which do
not, in the aggregate, materially interfere with the ordinary conduct of the business of the Borrower and/or its Restricted Subsidiaries,
taken as a whole, or materially interfere with the use of the affected property for its intended purpose or (y) where the failure to
have such title would not reasonably be expected to have a Material Adverse Effect;
(f) Liens consisting
of any (i) interest or title of a lessor, sub-lessor, licensor or sub- licensor under any lease, license or similar arrangement of real
estate or other property (including intellectual property) permitted hereunder, (ii) landlord lien permitted by the terms of any lease,
sub- lease, license, sub-license or similar arrangement, (iii) restriction or encumbrance to which the interest or title of such lessor,
sub-lessor, licensor or sub-licensor may be subject, (iv) subordination of the interest of the lessee, sub-lessee, licensee or sub-licensee
under such lease, sub-lease, license, sub-license or similar arrangement to any restriction or encumbrance referred to in the preceding
clause (iii) or (v) deposit of cash with the owner or lessor of premises leased and operated by the Borrower or any Restricted
Subsidiary in the ordinary course of business to secure the performance of obligations under the terms of the lease for such premises;
(g) Liens (i) solely on any
Cash (or Cash Equivalent) earnest money deposits (including as part of any escrow arrangement) made by the Borrower and/or any of its
Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder
(or to secure letters of credit, bank guarantees or similar instruments posted in respect thereof), (ii) on advances of Cash or Cash
Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Sections 6.06(b),
(e), (f), (p), (q), (r), (u), (x), (y) or (dd) to be applied against the purchase price for such Investment or (iii) consisting of (A) an agreement to Dispose of
any property in a Disposition permitted under Section 6.07 and/or (B) the pledge of Cash or Cash Equivalents as part of an escrow
or similar arrangement required in any Disposition permitted under Section 6.07;
(h) precautionary or
purported Liens evidenced by the filing of UCC financing statements or similar financing statements under applicable Requirements of
Law relating solely to (i) operating leases or consignment or bailee arrangements entered into in the ordinary course of business,
(ii) the sale of accounts receivable in the ordinary course of business for which a UCC financing statement or similar financing
statement under applicable Requirements of Law is required and/or (iii) the sale of Receivables Facility Assets and related assets
in connection with any Qualified Receivables Facility;
(i) Liens in favor
of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of
goods;
(j) Liens in connection
with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority to control or regulate
the use of any dimensions of real property or any structure thereon, including Liens in connection with any condemnation or eminent domain
proceeding or compulsory purchase order;
(k) Liens securing Indebtedness
permitted pursuant to Section 6.01(p) (solely with respect to the permitted extension, refinancing, refunding or replacement of
Indebtedness permitted pursuant to Sections 6.01(a), (c), (i), (j), (m), (n), (r), (u),
(v), (w), (y) and (gg)); provided that (i) no such Lien extends to any asset not covered by the Lien securing
the Indebtedness that is being refinanced other than (A) after-acquired property that is affixed or incorporated into the property covered
by such Lien or financed by Indebtedness permitted under Section 6.01 and (B) proceeds and products thereof, replacements, accessions
or additions thereto and improvements thereon (it being understood that such extensions, refinancings, refundings or replacements of
individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other
financings of such type provided by such lender or its affiliates) and (ii) if the Indebtedness being refinanced was subject to intercreditor
arrangements in respect of Liens on Collateral, then any refinancing Indebtedness in respect thereof secured by Liens on Collateral shall
be subject to intercreditor arrangements not materially less favorable to the Secured Parties, taken as a whole, than the intercreditor
arrangements governing the Indebtedness that is refinanced or the intercreditor arrangements governing the relevant refinancing Indebtedness
shall be set forth in an Acceptable Intercreditor Agreement;
(l) Liens existing on, or
contractually committed or contemplated as of, the Pari First Lien Closing Date and, with respect to each such Lien securing
Indebtedness in an aggregate committed or principal amount in excess of $250,000, described on Schedule 6.02 and any
modification, replacement, refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any
additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or
financed by Indebtedness permitted under Section 6.01 and (B) proceeds and products thereof, replacements, accessions or
additions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section
6.01(m) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its
affiliates) and (ii) any such modification, replacement, refinancing, renewal or extension of the obligations secured or benefited
by such Liens, if constituting Indebtedness, is permitted by Section 6.01;
(m) Liens arising out of Sale
and Lease-Back Transactions permitted under Section 6.08;
(n) Liens securing
Indebtedness permitted pursuant to Section 6.01(m); provided that any such Lien shall encumber only the asset acquired,
constructed, repaired, replaced or improved with the proceeds of such Indebtedness and proceeds and products thereof, replacements, accessions
or additions thereto and improvements thereon and customary security deposits with respect thereto (it being understood that individual
financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other financings of
such type provided by such lender or its affiliates);
(o) Liens securing Indebtedness
permitted pursuant to Section 6.01(n) on the relevant acquired assets or on the Capital Stock and assets of the relevant newly
acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other than the proceeds
or products thereof, replacements, accessions or additions thereto and improvements thereon, it being understood that individual financings
of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other financings of such type
provided by such lender or its affiliates) or (y) was created in contemplation of the applicable acquisition of assets or Capital Stock;
(p) (i) Liens that are contractual
rights of set-off or netting relating to (A) the establishment of depositary relations with banks or other financial institutions not
granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of the Borrower and/or any Restricted Subsidiary
to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and/or any Restricted
Subsidiary, (C) purchase orders and other agreements entered into with customers of the Borrower and/or any Restricted Subsidiary in
the ordinary course of business and (D) commodity trading or other brokerage accounts incurred in the ordinary course of business, (ii)
Liens encumbering reasonable customary initial deposits and margin deposits, (iii) bankers Liens and rights and remedies as to Deposit
Accounts or similar accounts, (iv) Liens of a collection bank arising under Section 4-208 or Section 4-210 of the UCC on items in the
ordinary course of business, (v) Liens (including rights of set-off) in favor of banking or other financial institutions arising as a
matter of law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution
and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s
general terms and conditions and (vi) Liens on the proceeds of any Indebtedness permitted hereunder incurred in connection with any transaction
permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending
the application of such proceeds to finance such transaction or on Cash or Cash Equivalents set aside at the time of the incurrence of
such Indebtedness to the extent such Cash or Cash Equivalents prefund the payment of interest or fees on such Indebtedness and are held
in escrow pending application for such purpose;
(q) Liens on assets
and Capital Stock of Restricted Subsidiaries that are not Loan Parties (including Capital Stock owned by such Persons) securing Indebtedness
or other obligations of Restricted Subsidiaries that are not Loan Parties permitted pursuant to Section 6.01 (or not prohibited
under this Agreement);
(r) Liens securing
obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements
entered into in the ordinary course of business of the Borrower and/or its Restricted Subsidiaries;
(s) Liens disclosed
in any Mortgage Policy delivered pursuant to Section 5.12 with respect to any Material Real Estate Asset, provided such Liens do
not, in the aggregate, materially interfere with the use of such Material Real Estate Asset, and any replacement, extension or renewal
of any such Lien; provided that no such replacement, extension or renewal Lien shall cover any property other than the property
that was subject to such Lien prior to such replacement, extension or renewal (and additions thereto, improvements thereon and the proceeds
thereof);
(t) Liens securing
Indebtedness incurred pursuant to Section 6.01(x); provided that, if any such Lien is on Collateral, the holders of such
Indebtedness (or a representative thereof) shall be party to an Acceptable Intercreditor Agreement;
(u) other Liens
on assets securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed the greater
of $60,000,000 and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v) (i) Liens on
assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating to litigation
being contested in good faith not constituting an Event of Default under Section 7.01(h) and (ii) any cash deposits securing any
settlement of litigation;
(w) (i) leases,
licenses, subleases, sublicenses or cross-licenses granted to others, (ii) assignments of IP Rights granted to a customer of the Borrower
or any Restricted Subsidiary in the ordinary course of business which do not secure any Indebtedness or (iii) the rights reserved or
vested in any Person (including any Governmental Authority) by the terms of any lease, license, franchise, grant or permit held by the
Borrower or any of the Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant or
permit, or to require annual or periodic payments as a condition to the continuance thereof;
(x) Liens on Securities
or other assets that are the subject of repurchase agreements constituting Investments permitted under Section 6.06 arising out
of such repurchase transaction;
(y) Liens securing obligations
in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted under Sections
6.01(d), (e), (g), (aa) and (cc);
(z) Liens arising (i) out of conditional sale, title retention, consignment
or similar arrangements for the sale of any assets or property and bailee arrangements in the ordinary course of business and permitted
by this Agreement or (ii) by operation of law under Article 2 of the UCC (or any similar Requirement of Law of any jurisdiction);
(aa) Liens (i)
in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in
the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 6.01 or Section
6.09;
(bb) Liens on insurance
policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(cc) Liens on specific
items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of documentary
letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment
or storage of such inventory or goods;
(dd) Liens securing
(i) obligations under Hedge Agreements in connection with any Derivative Transaction of the type described in Section 6.01(s),
(ii) obligations of the type described in Section 6.01(f) and/or (iii) obligations of the type described in Section 6.01(r), which
Liens (A) in each case under this Section 6.02(dd), may be (but are not required to be) secured by all of the Collateral so long
as the Lien on the Collateral is subject to an Acceptable Intercreditor Agreement and (B) in the case of clause (iii) (to the extent
not secured as provided in clause (A)), may consist of pledges of Cash collateral in an amount not to exceed the greater of $15,000,000
and 11% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(ee) (i) Liens
on Capital Stock of Joint Ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons and
(ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned
Subsidiaries;
(ff) Liens on cash
or Cash Equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
(gg) Liens permitted
to remain outstanding following the Pari First Lien Closing Date pursuant to the terms of the Acquisition Agreement (including liens on
cash or Cash Equivalents backstopping any letters of credit existing on the Closing Date) and any replacements, refinancings or renewals
thereof, so long as no such replacement, refinancings or renewal thereof increases the amount of such Lien except as otherwise permitted
by this Section 6.02;
(hh) Liens on assets
not constituting Collateral (x) securing obligations in an aggregate outstanding principal amount not to exceed the greater of $25,000,000
and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period or (y) so long as the Obligations in
respect of the Revolving Facility are secured on a ratable basis (without regard to the control of remedies) with or prior to the obligations
so secured for so long as such obligations are so secured (which Liens, in the case of this clause (y), shall be subject to an Acceptable
Intercreditor Agreement);
(ii) Liens on Receivables Facility
Assets incurred in connection with a Receivables Facility;
(jj) undetermined
or inchoate Liens, rights of distress and charges incidental to current operations that have not at such time been filed or exercised,
or which relate to obligations not due or payable or if due, the validity of such Liens are being contested in good faith by appropriate
actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with
GAAP;
(kk) with respect
to any Foreign Subsidiary, Liens and privileges arising mandatorily by any Requirement of Law; provided such Liens and privileges extend
only to the assets or Capital Stock of such Foreign Subsidiary;
(ll) ground leases
or subleases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries are
located;
(mm) Liens that
are customary in the business of the Borrower and its Restricted Subsidiaries and that do not secure debt for borrowed money;
(nn) security given
to a public or private utility or any Governmental Authority as required in the ordinary course of business;
(oo) receipt of
progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on the related
inventory and proceeds;
(pp) Liens arising
pursuant to Section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act or similar provision of any applicable
law;
(qq) Liens in the
nature of the right of setoff in favor of counterparties to contractual agreements with the Borrower or any Restricted Subsidiary in the
ordinary course of business;
(rr) Liens granted
pursuant to a security agreement between the Borrower or any Restricted Subsidiary and a licensee of IP Rights to secure the damages,
if any, incurred by such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization or similar
proceeding with respect to the Borrower or such Restricted Subsidiary;
(ss) Liens arising
solely in connection with rights of dissenting equity holders pursuant to any Requirement of Law in respect of the Transactions, any Permitted
Acquisition or other similar Investment;
(tt) Liens arising
under the iStar Sale/Leaseback Documents, the iStar Sale/Leaseback 2014 Documents, the iStar Exchange Documents or the Excluded Property
Transaction Documents, including options, whether or not then exercisable, to purchase Bowling Equipment of the Borrower and/or one or
more of its Subsidiaries, and letters of credit to secure the obligations of the Borrower or any applicable Restricted Subsidiary thereunder;
(uu) Liens on (x)
any Excluded Property or (y) any other real property acquired after the Pari First Lien Closing Date and not subject (or required to be
subject) to a Mortgage, provided that the aggregate amount of the obligations secured at any one time by such Liens pursuant to this clause
(y) does not exceed $50,000,000; and
(vv) Liens deemed to exist in connection
with repurchase obligations permitted to be incurred pursuant to Section 6.01(nn).
Section 6.03. No
Further Negative Pledges. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries that are Loan Parties to,
enter into any agreement prohibiting in any material respect the creation or assumption of any Lien upon any of its properties (other
than Excluded Assets), whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to the Obligations,
except with respect to:
(a) restrictions
relating to any asset (or all of the assets) of and/or the Capital Stock of the Borrower and/or any Restricted Subsidiary which are imposed
pursuant to an agreement entered into in connection with any Disposition or other transfer, lease or license of such asset (or assets)
and/or all or a portion of the Capital Stock of the relevant Person that is permitted by this Agreement;
(b) restrictions
contained in the Loan Documents, any then extant Pari First Lien Facility, any “Incremental Equivalent Debt” (as defined in
the Pari First Lien Credit Agreement as in effect on the Closing Date), any Receivables Facility (limited to the assets securing the Indebtedness
arising thereunder) or any Additional Letter of Credit Facility (limited to the assets securing the Indebtedness arising thereunder) (and
clause (p) of Section 6.01 to the extent relating to any extension, refinancing, refunding or replacement of any of the foregoing);
(c) restrictions
contained in any documentation governing any other Indebtedness permitted by Section 6.01 to the extent such restrictions (1)(x)
are, taken as a whole, in the good-faith judgment of the Borrower, not materially more restrictive as concerning the Borrower or any Restricted
Subsidiary than customary market terms for Indebtedness of such type or (y) are not materially more restrictive, taken as a whole, than
the restrictions contained in this Agreement (as determined by the Borrower in good faith) and (2) will not materially impair the Borrower’s
obligation or ability to make any payments required hereunder (as determined by the Borrower in good faith);
(d) restrictions
by reason of customary provisions restricting assignments, subletting or other transfers (including the granting of any Lien) contained
in leases, subleases, licenses, sublicenses, asset sale agreements and other agreements entered into in the ordinary course of business
(provided that such restrictions are limited to the relevant leases, subleases, licenses, sublicenses, asset sale or other agreements
and/or the property or assets secured by such Liens or the property or assets subject to such leases, subleases, licenses, sublicenses,
asset sale or other agreements, as the case may be);
(e) Permitted Liens
and restrictions in the agreements relating thereto that limit the right of the Borrower or any of its Restricted Subsidiaries to Dispose
of or encumber the assets subject to such Liens;
(f) provisions
limiting the Disposition, distribution or encumbrance of assets or property in joint venture agreements, sale and lease-back agreements,
stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements
(or the Persons the Capital Stock of which is the subject of such agreement (or any “shell company” parent with respect thereto));
(g) any encumbrance
or restriction assumed in connection with an acquisition of the property or Capital Stock of any Person, so long as such encumbrance or
restriction relates solely to the Person and its subsidiaries (including the Capital Stock of the relevant Person or Persons) and/or property
so acquired (or to the Person or Persons (and its or their subsidiaries) bound thereby) and was not created solely in connection with
or in anticipation of such acquisition;
(h) restrictions imposed
by customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture
agreements and other similar agreements that restrict the transfer of the assets of, or ownership interests in, the relevant
partnership, limited liability company, joint venture or any similar Person (or any “shell company” parent with respect
thereto);
(i) restrictions
on Cash or other deposits permitted under Section 6.02 and/or 6.06 and any net worth requirements, including such restrictions
or requirements imposed by Persons under contracts entered into in the ordinary course of business or for whose benefit such Cash or other
deposits or net worth requirements exist;
(j) restrictions
(i) set forth in documents which existed on the Pari First Lien Closing Date or (ii) which are contemplated as of the Closing Date and,
in the case of this clause (ii), as set forth on Schedule 6.03;
(k) restrictions
contained in documents governing Indebtedness of any Restricted Subsidiary that is not a Loan Party permitted hereunder;
(l) [reserved];
(m) provisions
restricting the granting of a security interest in IP Rights contained in licenses, sublicenses or cross-licenses by the Borrower and
its Restricted Subsidiaries of such IP Rights, which licenses, sublicenses and cross-licenses were entered into in the ordinary course
of business (in which case such restriction shall relate only to such IP Rights);
(n) restrictions
arising under or as a result of applicable Requirements of Law or the terms of any license, authorization, concession or permit issued
or granted by a Governmental Authority;
(o) restrictions
with respect to a Restricted Subsidiary that was previously an Unrestricted Subsidiary, pursuant to or by reason of an agreement that
such Restricted Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted Subsidiary; provided
that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such restriction
does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other than the assets and property of such
Subsidiary;
(p) customary restrictions
imposed in connection with any Receivables Facility or similar transaction permitted hereunder;
(q) restrictions
contained in the iStar Sale/Leaseback Documents or the iStar Sale/Leaseback 2014 Documents as in effect on the date of this Agreement,
and restrictions contained in any iStar Exchange Documents or Excluded Property Transaction Documents; and
(r) other restrictions
or encumbrances imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing
of the contracts, instruments or obligations referred to in clauses (a) through (q) above; provided that no such
amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment
of the Borrower, more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than those in effect prior
to the relevant amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Section 6.04. Restricted Payments; Certain Payments of
Indebtedness.
(a) The Borrower shall not pay or make,
directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments
to the extent necessary to permit any Parent Company:
(A) to pay general
operating and compliance costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other
benefits payable to directors, officers, employees, members of management, managers and/or consultants of any Parent Company), in each
case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification
claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company, in each case, to
the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance of doubt, the portion of
any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other than the Borrower
and/or its subsidiaries), the Borrower and/or its subsidiaries;
(B) to pay franchise,
excise and similar Taxes, and other fees, Taxes and expenses, required to maintain the organizational existence of such Parent Company;
(C) to pay customary
salary, bonus, long-term incentive, severance and other benefits (including payment to certain service providers of the Borrower or its
Subsidiaries pursuant to any equity plan (whether in the form of options, cash settled options or otherwise)) payable to Permitted Payees,
as well as applicable employment, social security or similar taxes in connection therewith, to the extent such salary, bonuses, severance
and other benefits are attributable and reasonably allocated to the operations of the Borrower and/or its subsidiaries, in each case,
so long as such Parent Company applies the amount of any such Restricted Payment for such purpose;
(D) to pay audit
and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but excluding, for
the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary of any
Parent Company other than the Borrower and/or its subsidiaries), the Borrower and its subsidiaries;
(E) for the
payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion
of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Borrower
and/or its subsidiaries), the Borrower and its subsidiaries;
(F) to pay (x)
fees and expenses related to any debt and/or equity offerings (including refinancings), investments and/or acquisitions permitted or
not restricted by this Agreement (whether or not consummated, and including advisory, refinancing, subsequent transaction and exit
fees of any Parent Company of the Borrower) and expenses and indemnities of any trustee, agent, arranger, underwriter or similar
role and (y) after the consummation of an initial public offering or the issuance of debt securities, Public Company Costs; and
(G) to finance
any Investment permitted under Section 6.06 as if such Parent Company were subject to Section 6.06 (provided that
(x) any Restricted Payment under this clause (a)(i)(G) shall be made substantially concurrently with the closing or consummation
of such Investment or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection
therewith and (y) the relevant Parent Company shall, promptly following the closing or consummation thereof or at future times as may
be scheduled at the time of such closing or consummation to be made thereafter in connection therewith, cause (I) all property acquired
to be contributed to the Borrower or one or more of its Restricted Subsidiaries or (II) the merger, consolidation or amalgamation of the
Person formed or acquired into the Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment in compliance
with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Borrower or the relevant Restricted
Subsidiary);
(ii) the Borrower may
pay (or make Restricted Payments to allow any Parent Company to pay) for the repurchase, redemption, retirement or other acquisition or
retirement for value of Capital Stock of any Parent Company or any subsidiary held by any Permitted Payee:
(A) in accordance
with the terms of promissory notes issued pursuant to Section 6.01(o), so long as the aggregate amount of all Cash payments made
in respect of such promissory notes, together with the aggregate amount of Restricted Payments made pursuant to sub-clause (D)
of this clause (ii) below, (1) does not exceed the greater of $5,500,000 and 4% of Consolidated Adjusted EBITDA as of the last
day of the most recently ended Test Period (which amount shall, following a Qualifying IPO, increase to the greater of $7,500,000 and
6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period) in any Fiscal Year, which, if not used in
any Fiscal Year, may be carried forward to subsequent Fiscal Years (until so applied) minus (2) any utilization of the Available
RP Capacity Amount in reliance on unused capacity under clause (D) below; plus
(B) with the
proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock of the Borrower or any Parent Company
(to the extent such proceeds are contributed to the Borrower or any Restricted Subsidiary in respect of Qualified Capital Stock issued
by the Borrower or such Restricted Subsidiary) (other than amounts constituting a Cure Amount or an Available Excluded Contribution Amount);
plus
(C) with the net proceeds of any
key-man life insurance policies; plus
(D) with Cash and
Cash Equivalents in an amount not to exceed, together with the aggregate amount of all cash payments made pursuant to sub-clause
(A) of this clause (ii) in respect of promissory notes issued pursuant to Section 6.01(o), (1) the greater of
$5,500,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (which amount shall,
following a Qualifying IPO, increase to the greater of $7,500,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the
most recently ended Test Period) in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to subsequent
Fiscal Years (until so applied) minus (2) any utilization of the Available RP Capacity Amount in reliance on unused capacity under
the immediately preceding clause (1); plus
(E) with the
amount of any Cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of Capital Stock of
the Borrower or any Parent Company pursuant to any compensation arrangement, including any deferred compensation plan;
(iii) the Borrower
may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that
the Borrower elects to apply to this clause (iii)(A) plus (B) the portion, if any, of the Available Excluded Contribution
Amount on such date that the Borrower elects to apply to this clause (iii)(B) (plus, without duplication of amounts referred
to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Pari
First Lien Closing Date, if the acquisition of such property or assets was financed with Available Excluded Contribution Amounts up to
the amount of such Available Excluded Contribution Amount, less any application thereof under Sections 6.04(b)(vi) or 6.06(r));
(iv) the Borrower may
make Restricted Payments (i) to any Parent Company to enable such Parent Company to (A) make Cash payments in lieu of the issuance of
fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital
Stock of such Parent Company, dividends, share splits, reverse share splits (or any combination thereof) and, mergers, consolidations,
amalgamations or other business combinations, and acquisitions and other Investments permitted hereunder and/or (B) honor any conversion
request by a holder of convertible Indebtedness, make any cash payments in lieu of fractional shares in connection with any conversion
and make payments on convertible Indebtedness in accordance with its terms and (ii) consisting of (A) payments made or expected to be
made in respect of withholding or similar Taxes payable by any Permitted Payee and/or (B) repurchases of Capital Stock in consideration
of the payments described in sub clause (A) above, including demand repurchases in connection with the exercise of stock options
and the issuance of restricted stock units or similar stock based awards;
(v) the Borrower may
repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in connection with), or make Restricted
Payments to any Parent Company to enable it to repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings
in connection with), the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock if such
Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other
securities convertible into or exchangeable for Capital Stock as part of a “cashless” exercise;
(vi) the Borrower may
make Restricted Payments the proceeds of which are applied (i) on and after the Closing Date, to satisfy any payment obligations owing,
or as otherwise required, under the Acquisition Agreement (including payment of working capital and/or purchase price adjustments) and
to pay Transaction Costs, in each case, with respect to the Transactions and (ii) to satisfy any settlement of claims or actions in connection
with the Transactions or to satisfy indemnity or other similar obligations in connection with the Transactions;
(vii) following the
consummation of the first Qualifying IPO, the Borrower may (or may make Restricted Payments to any Parent Company to enable it to) make
Restricted Payments with respect to any Capital Stock in an amount not to exceed (A) the greater of (x) an amount equal to 6.00% per annum
of the net Cash proceeds received by or contributed to the Borrower from any Qualifying IPO and (y) an amount equal to 6.00% per annum
of the Market Capitalization of the Borrower (or its direct or indirect Parent Company, as applicable) and its subsidiaries minus (B)
any utilization of the Available RP Capacity Amount in reliance on unused capacity under immediately preceding clause (A);
(viii) the Borrower
may make Restricted Payments to (i) redeem, repurchase, defease, discharge, retire or otherwise acquire any (A) Capital Stock (“Treasury
Capital Stock”) of the Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company, in the case of
each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than
to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower or any Parent Company to the extent any
such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding
Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent
sale or issuance (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock;
(ix) to the extent
constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections
6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Section 6.09(d));
(x) the Borrower may
make additional Restricted Payments in an aggregate amount not to exceed (A) the greater of $20,000,000 and 15% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period minus (B) any utilization of the Available RP Capacity Amount in reliance
on unused capacity under immediately preceding clause (A);
(xi) the Borrower may
pay any dividend or other distribution or consummate any redemption within 60 days after the date of the declaration thereof or the provision
of a redemption notice with respect thereto, as the case may be, if at the date of such declaration or notice, the dividend, distribution
or redemption contemplated by such declaration or redemption notice would have complied with the provisions of this Section 6.04(a);
(xii) the Borrower
may make any Restricted Payment constituting the distribution or payment of Receivables Fees;
(xiii) the Borrower
may make additional Restricted Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total Leverage Ratio
would not exceed 4.00:1.00, calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default hereunder or shall result therefrom;
(xiv) the Borrower
may make additional Restricted Payments in an amount not to exceed the amount of proceeds received by the Borrower and/or any Restricted
Subsidiary under the Representation and Warranty Insurance Policy during the term of this Agreement;
(xv) (A) for any
taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income tax group
for U.S. federal and/or applicable state or local income tax purposes of which a direct or indirect parent of the Borrower is the common
parent (a “Tax Group”), or for which the Borrower is a disregarded entity for U.S. federal income tax purposes wholly-owned
by a corporate parent (a “Corporate Parent”), the Borrower and each of its Subsidiaries may make Restricted Payments (including
pursuant to any Tax sharing agreement entered into by the Borrower and any of its Subsidiaries and Comcast Corporation, a Pennsylvania
corporation or its Affiliates) the proceeds of which shall be used by such common parent to pay the portion of any consolidated, combined
or similar U.S. federal, state or local income Taxes of such Tax Group, or by the Corporate Parent to pay the portion of the U.S. federal,
state or local income Taxes of such Corporate Parent, or any franchise taxes imposed in lieu thereof, for such taxable period that are
attributable to the income of the Borrower and/or its Subsidiaries, provided that such amount shall not be greater than the amount of
such U.S. federal, state or local income taxes that would be paid (for such taxable period) by the Borrower and its Subsidiaries if the
Borrower and/or such Subsidiaries had been a stand-alone corporate taxpayer (or stand-alone group of corporate taxpayers filing on a
consolidated, combined or similar basis) for all taxable years ending after the Closing Date (taking into account any net operating loss
carryforwards attributable to the Borrower and its Subsidiaries, as the case may be) and (B) without duplication of Restricted Payments
made under Section 6.04(a)(xv)(A), for any taxable period for which the Borrower is treated as a partnership for U.S. federal and/or
applicable state or local income tax purposes, the Borrower may make Restricted Payments to its equity owners at the times and in the
amounts necessary to enable such owners (and their direct or indirect owners) to pay their Tax obligations attributable to their direct
or indirect ownership interests in the Borrower in an aggregate amount equal to the product of (1) 50% (or such higher tax rate as shall
be applicable to a resident of New York City or California that indirectly owns an interest in the Borrower, taking into account the
character of the taxable income in question and the deductibility of state and local income taxes for U.S. federal income tax purposes)
and (2) the taxable income of the Borrower for such taxable year, less any cumulative taxable losses from prior taxable years to the
extent that such losses are of a character (ordinary or capital) that would permit such losses to be deducted by the direct or indirect
owners of the Borrower against the current taxable income of the Borrower allocable to such owners and have not previously been taken
into account in determining tax distributions;
(xvi) the Borrower
may make additional Restricted Payments constituting any part of a Permitted Reorganization or IPO Reorganization Transaction;
(xvii) the Borrower
may make a distribution, by dividend or otherwise, of the Capital Stock of, or debt owed to any Loan Party or any Restricted Subsidiary
by, any Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries, provided that such Restricted
Subsidiary owns no other material assets other than Capital Stock of one or more Unrestricted Subsidiaries); in each case, other than
Unrestricted Subsidiaries, the primary assets of which are Cash and/or Cash Equivalents; provided that any such Capital Stock or
debt that represents an Investment by the Borrower or any Restricted Subsidiary shall be deemed to continue to charge (as utilization)
the respective clause under Section 6.06 pursuant to which such Investment was made;
(xviii) the Borrower
may make payments and distributions to satisfy dissenters’ rights (including in connection with, or as a result of, the exercise
of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) in respect thereof), pursuant
to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 6.07;
(xix) the Borrower may make a Restricted
Payment in respect of payments made for the benefit of the Borrower or any Restricted Subsidiary to the extent such payments could have
been made by the Borrower or any Restricted Subsidiary because such payments (A) would not otherwise be Restricted Payments and (B) would
be permitted by Section 6.09; and
(xx) the Borrower may
make a Restricted Payment in respect of required withholding or similar non-U.S. Taxes with respect to any Permitted Payee and any repurchases
of Capital Stock in consideration of such payments, including deemed repurchases in connection with the exercise of stock options or the
issuance of restricted stock units or similar stock based awards.
(b) The Borrower
shall not, nor shall it permit any Restricted Subsidiary to, make any prepayment in Cash on or in respect of principal of or interest
on any Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted
Debt Payments”), except:
(i) any refinancing,
purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of any Restricted Debt made by exchange for,
or out of the proceeds of, Refinancing Indebtedness permitted by Section 6.01 and/or any extension, refinancing, refunding or replacing
Indebtedness permitted by Section 6.01(x);
(ii) payments as part
of, or to enable another Person to make, an “applicable high yield discount obligation” catch-up payment;
(iii) payments of regularly
scheduled principal and interest and payments of fees, expenses and indemnification obligations as and when due (other than payments with
respect to Junior Indebtedness that are prohibited by the subordination provisions thereof);
(iv) additional Restricted
Debt Payments in an aggregate amount not to exceed (A)(1) the greater of (x) $25,000,000 and (y) 19% of Consolidated Adjusted EBITDA as
of the last day of the most recently ended Test Period minus (2) any utilization of the Available RDP Capacity Amount in reliance
on unused capacity under immediately preceding clause (A)(1) plus (B) the Available RP Capacity Amount;
(v) (A) Restricted
Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any Restricted Subsidiary
and/or any capital contribution in respect of Qualified Capital Stock of the Borrower or any Restricted Subsidiary, (B) Restricted Debt
Payments as a result of the conversion of all or any portion of any Restricted Debt into Qualified Capital Stock of the Borrower and/or
any Restricted Subsidiary or Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with
respect to any Restricted Debt that is permitted under Section 6.01;
(vi) Restricted Debt
Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to
apply to this clause (vi)(A) plus (B) the portion, if any, of the Available Excluded Contribution Amount on such date that
the Borrower elects to apply to this clause (vi)(B) (plus, without duplication of amounts previously referred to in this
clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Pari First Lien Closing
Date, if the acquisition of such property or assets was financed solely with Available Excluded Contribution Amounts up to the amount
of such Available Excluded Contribution Amount, less any application thereof under Sections 6.04(a)(iii) or 6.06(r));
(vii) additional Restricted
Debt Payments so long as, as measured at the time provided for in Section 1.04(e), (i) the Total Leverage Ratio would not exceed 4.00:1.00,
calculated on a Pro Forma Basis and (ii) there shall exist no Event of Default under Section 7.01(a) or, with respect to the Borrower,
Sections 7.01(f) or (g) or shall result therefrom; and
(viii) Restricted Debt
Payments in respect of Restricted Debt permitted to be assumed pursuant to Section 6.01(n), provided that any such Restricted Debt
Payment shall be deemed an Investment and shall only be permitted to the extent there exists the ability to make such Investment pursuant
to Section 6.06 at such time.
(c) The Borrower
shall not, nor shall it permit Holdings or any Restricted Subsidiary to, make any voluntary prepayment on or in respect of principal of
or interest on any Pari First Lien Obligation.
Section 6.05. [Reserved].
Section 6.06. Investments. The
Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make or own any Investment in any other Person except:
(a) Investments
in assets that are Cash or Cash Equivalents, or investments that were Cash or Cash Equivalents at the time made;
(b) (i) Investments
existing on the Closing Date in any subsidiary and any modification, replacement, renewal or extension thereof so long as no such modification,
replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted by this Section 6.06
and (ii) Investments made after the Closing Date among Holdings, the Borrower and/or one or more Restricted Subsidiaries or in any Person
that will, upon such Investment, become a Restricted Subsidiary;
(c) Investments
(i) constituting deposits, prepayments and/or other credits to suppliers or other trade counterparties, (ii) made in connection with obtaining,
maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors, suppliers, licensors
and licensees, in each case, in the ordinary course of business or, in the case of clause (iii), to the extent necessary to maintain
the ordinary course of supplies to the Borrower or any Restricted Subsidiary;
(d) Investments in (i) any
Unrestricted Subsidiary (including any Joint Venture that is an Unrestricted Subsidiary) in an aggregate outstanding amount not to
exceed the greater of $25,000,000 and 19% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period
and (ii) any Similar Business (including any Joint Venture engaged in a Similar Business) in an aggregate outstanding amount not to
exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
provided that if any Investment pursuant to this clause (d)(ii) is made in any Person that is not a Restricted Subsidiary at the
date of making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter
be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been made under this clause (d);
(e) (i) Permitted
Acquisitions and (ii) Investments in Restricted Subsidiaries that are not Loan Parties in amounts required to permit such Restricted Subsidiaries
to consummate Permitted Acquisitions;
(f) (i) Investments
existing on, or contractually committed to or contemplated as of, the Pari First Lien Closing Date and, with respect to any such Investment
in excess of $250,000, described on Schedule 6.06 and (ii) any modification, replacement, renewal or extension of any Investment
described in clause (i) above so long as no such modification, renewal or extension thereof increases the amount of such Investment
except by the terms thereof or as otherwise permitted by this Section 6.06;
(g) Investments received in lieu of
Cash in connection with any Disposition permitted by Section 6.07 or any other disposition of assets not constituting a Disposition;
(h) loans or advances
to Permitted Payees to the extent permitted by Requirements of Law, in connection with such Person’s purchase of Capital Stock of
any Parent Company, either (i) in an aggregate principal amount not to exceed the greater of $3,000,000 and 2% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period at any one time outstanding, (ii) so long as the proceeds of such loan
or advance are substantially contemporaneously contributed to the Borrower for the purchase of such Capital Stock or (iii) so long as
no Cash or Cash Equivalents are advanced in connection with such loan or advance;
(i) Investments
consisting of rebates and extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business;
(j) Investments
consisting of (or resulting from) Indebtedness permitted under Section 6.01 (including guarantees thereof) (other than Indebtedness
permitted under Sections 6.01(b) and (h)), Permitted Liens, Restricted Payments permitted under Section 6.04 (other
than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers, consolidations, amalgamations,
liquidations, windings up, dissolutions or Dispositions permitted by Section 6.07 (other than Section 6.07(a)(i) (if made
in reliance on subclause (ii)(y) of the proviso thereto), Section 6.07(b) (if made in reliance on clause (ii) of
the proviso thereto), Section 6.07(c)(ii) (if made in reliance on clause (B) therein) and Section 6.07(g));
(k) Investments
in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers,
vendors, suppliers, licensors, sublicensors, licensees and sublicensees;
(l) Investments
(including debt obligations and Capital Stock) received (i) in connection with the bankruptcy, work-out, reorganization or recapitalization
of any Person, (ii) in settlement or compromise of delinquent obligations of, or other disputes with or judgments against, customers,
trade-creditors, suppliers, licensees and other account debtors arising in the ordinary course of business, including pursuant to any
plan of reorganization or similar arrangement upon bankruptcy or insolvency of any customer, trade creditor, supplier or licensee, (iii)
in satisfaction of judgments against other Persons, (iv) as a result of foreclosure with respect to any secured Investment or other transfer
of title with respect to any secured Investment and/or (v) in settlement, compromise or resolution of litigation, arbitration or other
disputes;
(m) loans and advances
of payroll payments or other compensation to present or former employees, directors, members of management, officers, managers or consultants
of any Parent Company (to the extent such payments or other compensation relate to services provided to such Parent Company (but excluding,
for the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership or operations of any subsidiary of any
Parent Company other than the Borrower and/or its subsidiaries)), the Borrower and/or any subsidiary in the ordinary course of business;
(n) Investments
to the extent that payment therefor is made solely with Capital Stock of any Parent Company or Capital Stock (other than Disqualified
Capital Stock) of the Borrower or any Restricted Subsidiary, in each case, to the extent not resulting in a Change of Control;
(o) (i) Investments
of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated or amalgamated
with, the Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise permitted by this
Section 6.06 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger,
amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation or consolidation and
(ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of this Section 6.06(o)
so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise
permitted by this Section 6.06;
(p) Investments
made in connection with the Transactions and any Investments held by the target that was acquired in connection with the transactions
contemplated by the Acquisition Agreement (or its Restricted Subsidiaries) and permitted to remain (or not prohibited from remaining)
outstanding pursuant to the terms of the Acquisition Agreement after the Pari First Lien Closing Date;
(q) Investments
made after the Pari First Lien Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate amount at any time
outstanding not to exceed:
(i) the greater of $50,000,000 and 37% of
Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, plus
(ii) the Available RP Capacity Amount
plus the Available RDP Capacity Amount, plus
(iii) in the event
that (A) the Borrower or any of its Restricted Subsidiaries makes any Investment after the Pari First Lien Closing Date in any Person
that is not a Restricted Subsidiary and (B) such Person subsequently becomes a Restricted Subsidiary, an amount equal to 100% of the fair
market value of such Investment as of the date on which such Person becomes a Restricted Subsidiary;
(r) Investments
made after the Pari First Lien Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount
not to exceed (i) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (r)(i)
plus (ii) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to
this clause (r)(ii) (plus, without duplication of amounts referred to in this clause (ii), in an amount equal to the Net
Proceeds from a Disposition of property or assets acquired after the Pari First Lien Closing Date, if the acquisition of such property
or assets was financed with Available Excluded Contribution Amounts up to the amount of such Available Excluded Contribution Amount, less
any application thereof under Sections 6.04(a)(iii) or 6.04(b)(iv));
(s) (i) Guarantees
of leases or subleases (in each case other than Capital Leases) or of other obligations not constituting Indebtedness, (ii) Guarantees
of the lease obligations of suppliers, customers, franchisees and licensees of the Borrower and/or its Restricted Subsidiaries, in each
case, in the ordinary course of business and (iii) Investments consisting of Guarantees of any supplier’s obligations in respect
of commodity contracts, including Hedge Agreements, solely to the extent such commodities related to the materials or products to be purchased
by the Borrower or any Restricted Subsidiary;
(t) (i) Investments
in any Parent Company in amounts and for purposes for which Restricted Payments to such Parent Company are permitted under Section
6.04(a); provided that any Investment made as provided above in lieu of any such Restricted Payment shall reduce availability under
the applicable Restricted Payment basket under Section 6.04(a) and (ii) Investments consisting of loans and advances to any Parent
Company in connection with the reimbursement of expenses incurred on behalf of the Borrower or any Restricted Subsidiary in the ordinary
course of business;
(u) Investments
made by any Restricted Subsidiary that is not a Loan Party with the proceeds received by such Restricted Subsidiary from an Investment
made by any Loan Party in such Restricted Subsidiary pursuant to this Section 6.06 (other than Investments made pursuant to clause
(ii) of Section 6.06(e));
(v) Investments
in subsidiaries in connection with reorganizations and/or restructurings, including any Permitted Reorganization and/or any IPO Reorganization
Transaction, and/or activities related to tax planning (including Investments in non-Cash or non-Cash Equivalents); provided that, after
giving effect to any such reorganization, restructuring and/or related activity, the security interest of the Administrative Agent in
the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral
immediately prior to such reorganization, restructuring or tax planning activities no longer constituting Collateral) as a result of such
reorganization, restructuring or tax planning activities;
(w) Investments
arising under or in connection with any Derivative Transaction of the type permitted under Section 6.01(s);
(x) Investments
made (i) in Joint Ventures, (ii) in connection with the creation, formation and/or acquisition of any Joint Venture or (iii) in any Restricted
Subsidiary to enable such Restricted Subsidiary to create, form and/or acquire any Joint Venture, in an aggregate outstanding amount under
this clause (x) not to exceed the greater of $35,000,000 and 26% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period; provided that if any Investment pursuant to this clause (x) is made in any Person that is not a Restricted
Subsidiary at the date of making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall
thereafter be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been made under this clause (x);
(y) Investments
made in joint ventures as required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in joint
venture agreements and similar binding arrangements in effect on the Pari First Lien Closing Date or entered into after the Pari First
Lien Closing Date in the ordinary course of business;
(z) unfunded pension
fund and other employee benefit plan obligations and liabilities to the extent that they are permitted to remain unfunded under applicable
Requirements of Law;
(aa) Investments
in Holdings, the Borrower and/or any subsidiary in connection with intercompany cash management arrangements and related activities in
the ordinary course of business;
(bb) Investments
made in connection with any nonqualified deferred compensation plan or arrangement for any Permitted Payee;
(cc) any Investment made by
any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted Subsidiary (but for
the avoidance of doubt, after such subsidiary was designated as an Unrestricted Subsidiary) so long as the relevant Investment was not
made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary;
(dd) additional Investments so long
as, as measured at the time provided for in Section 1.04(e), on a Pro Forma Basis, the Total Leverage Ratio does not exceed 4.25:1.00;
(ee) Investments
consisting of the licensing or contribution of IP Rights pursuant to joint marketing, collaborations or other similar arrangements with
other Persons;
(ff) Investments
in or relating to any Receivables Subsidiary that, in the good faith determination of the Borrower, are necessary or advisable to effect
a Receivables Facility or any repurchases in connection therewith (including Investments of funds held in accounts permitted or required
by the arrangements governing such Receivables Facility or any related Indebtedness);
(gg) the conversion
to Qualified Capital Stock of any Indebtedness owed by the Borrower or any Restricted Subsidiary and permitted by Section 6.01;
(hh) Restricted Subsidiaries
of the Borrower may be established or created if the Borrower and such Restricted Subsidiary comply with the requirements of Section
5.12, if applicable; provided that, in each case, to the extent such new Restricted Subsidiary is created solely for the purpose
of consummating a transaction pursuant to an acquisition or other Investment permitted by this Section 6.06, and such new Restricted
Subsidiary at no time holds any assets or liabilities other than any acquisition or Investment consideration contributed to it contemporaneously
with the closing of such transaction, such new Restricted Subsidiary shall not be required to take the actions set forth in Section
5.12 until the respective acquisition is consummated (at which time the surviving entity of the respective transaction shall be required
to so comply in accordance with the provisions thereof);
(ii) contributions
in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners, members,
consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a
bankruptcy of the Borrower or any of its Restricted Subsidiaries;
(jj) Investments
by Loan Parties in any Restricted Subsidiary that is not a Loan Party so long as such Investment is part of a series of simultaneous Investments
by the Borrower and the Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the intercompany Investment
being invested in one or more Loan Parties;
(kk) Investments
consisting of earnest money deposits required in connection with purchase agreements or other acquisitions or Investments otherwise permitted
under this Section 6.06 and any other pledges or deposits permitted by Section 6.02;
(ll) to the extent
permitted (or not prohibited) by Section 6.04(b), loans repurchased by the Borrower or a Restricted Subsidiary pursuant to and
subject to immediate cancellation in accordance with the terms of any other Indebtedness;
(mm) Guarantee
obligations of the Borrower or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations issued, made
or incurred for the benefit of any Restricted Subsidiary of the Borrower to the extent required by law or in connection with any statutory
filing or the delivery of audit opinions performed in jurisdictions other than within the United States;
(nn) purchases and acquisitions of inventory,
supplies, materials, services, equipment or similar assets in the ordinary course of business; and
(oo) Investments pursuant to, in connection
with, or made with the proceeds of any Excluded Property Transaction and/or any iStar Exchange.
Section 6.07. Fundamental
Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any
transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution),
or make any Disposition of assets having a fair market value in excess of $5,000,000, in a single transaction or in a series of related
transactions, and in excess of $10,000,000 in the aggregate for all such transactions in any Fiscal Year, except:
(a) any Restricted
Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary; provided that
(i) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (A) the Borrower shall be the continuing
or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation (including any immediate
and successive mergers, consolidations or amalgamations of entities) is not the Borrower (any such Person after giving effect to such
transaction or transactions, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or
existing under the law of the U.S., any state thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume the
Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (3) except as the Administrative Agent
may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and
delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood
and agreed that if the foregoing conditions under clauses (1) through (3) are satisfied, the Successor Borrower will succeed
to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (ii) in the case of any such merger, consolidation
or amalgamation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing or surviving Person
or the continuing or surviving Person shall expressly assume the guarantee obligations of the Subsidiary Guarantor in a manner reasonably
satisfactory to the Administrative Agent or (y) the relevant transaction shall be treated as an Investment and otherwise be made in compliance
with Section 6.06;
(b) Dispositions
(including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided
that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (as determined by
such Person in good faith) or (ii) treated as an Investment and otherwise be made in compliance with Section 6.06 (other than in
reliance on clause (j) thereof);
(c) (i) the liquidation
or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower, is not materially disadvantageous to the Lenders, and the Borrower or any Restricted Subsidiary receives any
assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution
of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall
be treated as an Investment and shall otherwise be made in compliance with Section 6.06 (other than in reliance on clause (j)
thereof); (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition
otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B)
any Investment permitted under Section 6.06; and (iii) the Borrower or any Restricted Subsidiary may be converted into another
form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, taken
as a whole;
(d) (x) Dispositions
of inventory or goods held for sale, equipment or other assets in the ordinary course of business (including on an intercompany basis)
and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions
of surplus, obsolete, used or worn out property or other property that, in the good faith judgment of the Borrower, is (A) no longer useful
in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable or not commercially
reasonable to maintain;
(f) Dispositions
of Cash and/or Cash Equivalents or other assets that were Cash and/or Cash Equivalents when the relevant original Investment was made;
(g) Dispositions,
mergers, amalgamations, consolidations or conveyances that constitute (or are made in order to effectuate) Investments permitted pursuant
to Section 6.06 (other than Section 6.06(j)), Permitted Liens, Restricted Payments permitted by Section 6.04(a) (other
than Section 6.04(a)(ix)) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market
value; provided that with respect to (1) any single Disposition transaction with respect to assets having a fair market value
in excess of the greater of $5,000,000 and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period
or (2) any other Disposition transactions with respect to assets having a fair market value in excess of the greater of $10,000,000 and
7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, for all such transactions on an aggregate
basis in any Fiscal Year, at least 75% of the consideration for such Disposition, shall consist of Cash or Cash Equivalents (provided
that for purposes of the 75% Cash consideration requirement, (v) the amount of any Indebtedness or other liabilities (other than
Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Borrower or any Restricted Subsidiary)
of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet (or in the notes thereto), or
if the incurrence of such Indebtedness or other liability took place after the date of such balance sheet, that would have been shown
on such balance sheet or in the notes thereto, as determined in good faith by the Borrower) that are (i) assumed by the transferee of
any such assets and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors
in writing or (ii) otherwise cancelled or terminated in connection with such Disposition, (w) the amount of any trade-in value applied
to the purchase price of any replacement assets acquired in connection with such Disposition, (x) any Securities or other obligations
or assets received by the Borrower or any Restricted Subsidiary from such transferee (including earn-outs or similar obligations) that
are converted by such Person into Cash or Cash Equivalents, or by their terms are required to be satisfied for Cash or Cash Equivalents
(to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (y)
any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with
all other Designated Non-Cash Consideration received pursuant to this clause (y) and clause (C)(z) of the proviso to Section
6.08 that is at that time outstanding, not in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the
last day of the most recently ended Test Period, in each case shall be deemed to be Cash); provided, further, that the
Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent
that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds
of the relevant Disposition are promptly (or within 180 days) applied to the purchase price of such replacement property;
(j) Dispositions
of Investments in Joint Ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture or similar
parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(k) Dispositions
of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in
connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(l) Dispositions
and/or terminations of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses (including the provision of software
under any open source license), the Dispositions or terminations of which (i) do not materially interfere with the business of the Borrower
and its Restricted Subsidiaries, (ii) relate to closed facilities or the discontinuation of any product line or (iii) are made in the
ordinary course of business;
(m) (i) any termination
of any lease, sublease, license or sub-license in the ordinary course of business (and any related Disposition of improvements made to
leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal property and (iii)
any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including
in tort) in the ordinary course of business;
(n) Dispositions
of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain or condemnation proceedings (including
in lieu thereof or any similar proceeding);
(o) Dispositions
or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property) with respect to facilities
that are temporarily not in use, held for sale or closed;
(p) the Transactions and any Dispositions
in connection with the Transactions;
(q) Dispositions
of non-core assets and sales of Real Estate Assets, in each case acquired in any acquisition or other Investment permitted hereunder,
(x) which Disposition or sale is required to obtain the approval of any anti-trust authority or (y) which, within 120 days of the date
of such acquisition or Investment, are designated in writing to the Administrative Agent as being held for sale and not for the continued
operation of the Borrower or any of its Restricted Subsidiaries or any of their respective businesses;
(r) exchanges or
swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property
or assets so long as any such exchange or swap is made for fair value (as determined by the Borrower in good faith) for like property
or assets or property, assets or services of greater value or usefulness to the business of the Borrower and its Restricted Subsidiaries
as a whole, as determined in good faith by the Borrower; provided that upon the consummation of any such exchange or swap by any
Loan Party, to the extent the property received does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with
the same priority as the Lien held on the property or assets so exchanged or swapped;
(s) Dispositions
of assets that do not constitute Collateral having a fair market value of not more than, in any Fiscal Year, the greater of $10,000,000
and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(t) (i) licensing
and cross-licensing (including sub-licensing) arrangements involving any technology, intellectual property or IP Rights of the Borrower
or any Restricted Subsidiary in the ordinary course of business, (ii) Dispositions, abandonments, cancellations or lapses of IP Rights
or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the good faith determination of
the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical
to maintain in light of its use and (iii) Dispositions of any technology, intellectual property or other IP Rights of the Borrower or
any Restricted Subsidiary involving their customers in the ordinary course of business;
(u) terminations or unwinds of Derivative
Transactions;
(v) Dispositions
of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) Dispositions
of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers,
employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions
made to comply with any order or other directive of any Governmental Authority or any applicable Requirement of Law;
(y) any merger,
consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another
jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) Dispositions
constituting any part of a Permitted Reorganization and/or an IPO Reorganization Transaction;
(aa) any sale of
motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(bb) other Dispositions
involving assets having a fair market value of not more than, in any Fiscal Year, the greater of $15,000,000 and 11% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period, which amounts if not used in any Fiscal Year may be carried forward
to the next succeeding Fiscal Year (with such carried over amount deemed first applied in such succeeding Fiscal Year), in any event not
to exceed, in any Fiscal Year, the greater of $30,000,000 and 22% of Consolidated Adjusted EBITDA as of the last day of the most recently
ended Test Period;
(cc) Dispositions
contemplated on the Pari First Lien Closing Date and described on Schedule 6.07 hereto;
(dd) Dispositions
or discounts of accounts receivable, or participations therein, or other rights to payment and related assets in connection with any Receivables
Facility;
(ee) the Borrower
and the Restricted Subsidiaries may issue, sell or dispose of Capital Stock to directors, officers, managers or employees for purposes
of (i) satisfying requirements with respect to directors’ qualifying shares and shares issued to foreign nationals, in each case
as required by applicable Requirements of Law and (ii) satisfying applicable Requirements of Law with respect to Liquor License Subsidiaries;
(ff) the Borrower
and the Restricted Subsidiaries may enter into any netting arrangement of accounts receivable between or among the Borrower and its Restricted
Subsidiaries or among Restricted Subsidiaries of the Borrower made in the ordinary course of business;
(gg) [reserved];
(hh) any merger,
consolidation, liquidation, wind-up or dissolution by one or more Restricted Subsidiaries in order to effectuate an iStar Exchange, Excluded
Property Transaction or any Sale and Lease-Back Transaction permitted hereunder;
(ii) the sale, lease, transfer or other
Disposition of any Excluded Property or consummation of any iStar Exchange by the Borrower or any Restricted Subsidiaries;
(jj) Dispositions
of Bowling Equipment pursuant to the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback 2014 Documents by the Borrower or any
Restricted Subsidiaries;
(kk) Dispositions
of the Closed Sites and Closed Centers (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback II Documents);
(ll) one or more Foreign Asset Dispositions;
(mm) Disposition
of Site #288 known as Starlite Lanes and of any EAP (as defined in the iStar Sale/Leaseback Documents and the iStar Sale/Leaseback 2014
Documents);
(nn) (i) Dispositions
in the ordinary course of business of Bowling Equipment, bowling products and other equipment used in the operation or maintenance of
bowling centers and related accessories to Foreign Subsidiaries of the Borrower for use in bowling centers operated by such Foreign Subsidiaries
and (ii) Dispositions of bowling products to Foreign Subsidiaries for resale by such Foreign Subsidiaries, in each case at a price at
least equal to the cost to the Borrower or selling subsidiary of such Bowling Equipment, bowling products, equipment used in the operation
or maintenance of bowling centers or related accessories; and
(oo) (i) Disposition,
licenses or other transfers of patents and other IP Rights, together with the goodwill associated therewith, related solely to bowling
products and the amusement products business, (ii) the granting of a royalty-free perpetual license to use certain “AMF” trademarks
only in the field of bowling and amusement products, equipment and systems and certain services related to the foregoing and (iii) the
granting of a license concerning the Pinspash trademark.
To the extent that
any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral
shall automatically be sold free and clear of the Liens created by the Loan Documents (which Liens shall be automatically released upon
the consummation of such Disposition) and the Administrative Agent shall be authorized to take, and shall take, any actions reasonably
requested by the Borrower or otherwise deemed appropriate in order to effect the foregoing.
Section 6.08. Sale and
Lease-Back Transactions. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly,
become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal
or mixed), whether now owned or hereafter acquired, which the Borrower or the relevant Restricted Subsidiary (a) has sold or transferred
or is to sell or to transfer to any other Person (other than the Borrower or any of its Restricted Subsidiaries) and (b) intends to use
for substantially the same purpose as the property which has been or is to be sold or transferred by the Borrower or such Restricted
Subsidiary to any Person (other than the Borrower or any of its Restricted Subsidiaries) in connection with such lease (such a transaction
described herein, a “Sale and Lease-Back Transaction”); provided that any Sale and Lease-Back Transaction shall
be permitted so long as either (A) the resulting Indebtedness, if any, is permitted by Section 6.01(m) hereof or Section 6.01(z)
of the Pari First Lien Credit Agreement (as in effect on the date hereof), (B) such Sale and Lease-Back Transaction (i) was in existence
on the Pari First Lien Closing Date or (ii) is an iStar Sale/Leaseback (including pursuant to an iStar Exchange), iStar Sale/Leaseback
2014 or Excluded Property Sale/Leaseback Transaction or (C) (1) such Sale and Lease-Back Transaction is made in exchange for cash consideration
(provided that for purposes of the foregoing cash consideration requirement, (w) the amount of any Indebtedness or other liabilities
(other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Borrower or any Restricted
Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet (or in the notes
thereto), or, if the incurrence of such Indebtedness or other liability took place after the date of such balance sheet, that would have
been shown on such balance sheet or in the notes thereto, as determined in good faith by the Borrower) that are (i) assumed by the transferee
of any such assets and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant
creditors in writing or (ii) otherwise cancelled or terminated in connection with the relevant Sale and Lease Back Transaction, (x) the
amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y)
any Securities or other obligations or assets received by the Borrower or any Restricted Subsidiary from such transferee (including earn-outs
or similar obligations) that are converted by such Person into Cash or Cash Equivalents, or by their terms are required to be satisfied
for Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable
Disposition and (z) any Designated Non-Cash Consideration received in respect of the relevant Sale and Lease Back Transaction having
an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z)
and clause (y) of the proviso to Section 6.07(h) that is at that time outstanding, not in excess of the greater of
$10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case shall be deemed
to be Cash), (2) the Borrower or its applicable Restricted Subsidiary would otherwise be permitted to enter into, and remain liable under,
the applicable underlying lease and (3) the aggregate fair market value of the assets sold subject to all Sale and Lease-Back Transactions
under this clause (C) shall not exceed the greater of $65,000,000 and 49% of Consolidated Adjusted EBITDA as of the last day of
the most recently ended Test Period.
Section 6.09. Transactions
with Affiliates. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any service) involving payment in excess of the greater of $5,000,000
and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in any individual transaction with any
of their respective Affiliates on terms that are substantially less favorable to the Borrower or such Restricted Subsidiary, as the case
may be (as determined by the Borrower in good faith), than those that might be obtained at the time in a comparable arm’s-length
transaction from a Person who is not an Affiliate; provided that the foregoing restriction shall not apply to:
(a) any transaction
between or among Holdings, the Borrower and/or one or more Restricted Subsidiaries (or any entity that becomes a Restricted Subsidiary
as a result of such transaction) to the extent permitted or not restricted by this Agreement;
(b) any issuance, sale or
grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body) of any
Parent Company or of the Borrower or any Restricted Subsidiary;
(c) (i) any collective
bargaining, employment, indemnification, expense reimbursement or severance agreement or compensatory (including profit sharing) arrangement
entered into by the Borrower or any of its Restricted Subsidiaries with any Permitted Payee, (ii) any subscription agreement or similar
agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with any Permitted Payee and (iii)
payments or other transactions pursuant to any management equity plan, employee compensation, benefit plan, stock option plan or arrangement,
equity holder arrangement, supplemental executive retirement benefit plan, any health, disability or similar insurance plan, or any employment
contract or arrangement which covers any Permitted Payee and payments pursuant thereto;
(d) (i) transactions
permitted by Sections 6.01(d), (o), (bb) and (ee), 6.04 and 6.06(h), (m), (o),
(t), (v), (x), (y), (aa), (bb), (cc), (ff), (gg), (ii), (jj),
(kk), (ll) and (mm), (ii) any Permitted Reorganization or IPO Reorganization Transaction and (iii) issuances of Capital
Stock and issuances and incurrences of Indebtedness not restricted by this Agreement and payments pursuant thereto;
(e) the existence
of, or performance by the Borrower or any Restricted Subsidiary of its obligations under the terms of, any transaction or agreement in
existence on the Closing Date and any amendment, modification or extension thereof to the extent such amendment, modification or extension,
taken as a whole, is not (i) materially adverse to the Lenders or (ii) more disadvantageous to the Lenders than the relevant transaction
in existence on the Closing Date;
(f) (i) so long as no Event
of Default under Sections 7.01(a), 7.01(f) or 7.01(g) (solely with respect to the Borrower in the case of Section
7.01(f) and (g)) then exists or would result therefrom, the payment of management, monitoring, consulting, advisory and similar
fees to any Investor in an amount not to exceed in any Fiscal Year the greater of $3,000,000 and 1% of Consolidated Adjusted EBITDA as
of the last day of the most recently ended Test Period, it being understood that (x) during any such Event of Default, such fees may
continue to accrue and become payable upon the waiver, termination or cure of such Event of Default and (y) any amount not paid in any
Fiscal Year may be carried forward and paid in subsequent Fiscal Years without limitation as to amount, but otherwise subject to the
requirements of this clause (f), (ii) customary termination fees payable to the Investors, (iii) customary compensation to Affiliates
in connection with financial advisory, financing, underwriting or placement services or in respect of other investment banking activities
and other transaction fees, which are approved, or made pursuant to arrangements approved, by the majority of the members of the board
of directors (or similar governing body) or a majority of disinterested members of the board of directors (or similar governing body)
of the Borrower in good faith and (iv) the payment of any indemnification obligations and expenses (and similar amounts) owed to any
Investor and any of their respective directors, officers, members of management, managers, employees and consultants, in each case of
clauses (i), (ii), (iii) and (iv) whether currently due or paid in respect of accruals from prior periods;
(g) the Transactions,
including the payment of Transaction Costs, and payments and other transactions required under the Acquisition Agreement;
(h) any transaction
or transactions approved by a majority of the disinterested members of the board of directors (or similar governing body) of the Borrower
at such time;
(i) Guarantees permitted by Section
6.01 or Section 6.06;
(j) loans and other transactions among
the Loan Parties and their Subsidiaries, in each case to the extent permitted under this Article 6;
(k) the payment
of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board of directors (or
similar governing body), officers, employees, members of management, managers, consultants and independent contractors of the Borrower
and/or any of its Restricted Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity
on behalf of any Parent Company, to the extent attributable to the operations of the Borrower or its subsidiaries;
(l) transactions
with customers, clients, suppliers, licensees, Joint Ventures, purchasers or sellers of goods or services or providers of employees or
other labor entered into in the ordinary course of business, which are (i) fair to the Borrower and/or its applicable Restricted Subsidiary
in the good faith determination of the board of directors (or similar governing body) of the Borrower or the senior management thereof
or (ii) on terms not substantially less favorable to the Borrower and/or its applicable Restricted Subsidiary as might reasonably be obtained
from a Person other than an Affiliate;
(m) the payment
of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to shareholders under
any shareholder agreement and the existence or performance by the Borrower or any Restricted Subsidiary of its obligations under any such
registration rights or shareholder agreement;
(n) (i) any purchase
by Holdings of the Capital Stock of (or contribution to the equity capital of) the Borrower and (ii) any intercompany loans made by Holdings
to the Borrower or any Restricted Subsidiary;
(o) any transaction
in respect of which the Borrower delivers to the Administrative Agent a letter addressed to the board of directors (or equivalent governing
body) of the Borrower from an accounting, appraisal or investment banking firm of nationally recognized standing stating that such transaction
is on terms that are not substantially less favorable to the Borrower or the applicable Restricted Subsidiary than might be obtained at
the time in a comparable arm’s length transaction from a Person who is not an Affiliate;
(p) (i) Investments
by Affiliates in Securities or other Indebtedness of the Borrower or any Restricted Subsidiary (and payment of reasonable out-of-pocket
expenses incurred by such Affiliates in connection therewith) so long as the Investment is being offered by the Borrower or such Restricted
Subsidiary generally to other investors on the same or more favorable terms and (ii) payments to Affiliates in respect of Securities or
other Indebtedness of the Borrower or any Restricted Subsidiary contemplated in the foregoing subclause (i) or that were acquired from
Persons other than the Borrower and the Restricted Subsidiaries, in each case, in accordance with the terms of such Securities or other
Indebtedness;
(q) [reserved];
(r) transactions
undertaken in the ordinary course of business pursuant to membership in a purchasing consortium; and
(s) any transaction
in connection with the iStar Sale/Leaseback, the iStar Sale/Leaseback 2014, any Excluded Property Transaction and/or any iStar Exchange.
Section 6.10. [Reserved].
Section 6.11. [Reserved].
Section 6.12. Amendments
of or Waivers with Respect to Restricted Debt. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to,
amend or otherwise modify the terms of any Restricted Debt (or the documentation governing any Restricted Debt) if the effect of such
amendment or modification, together with all other amendments or modifications made, is materially adverse to the interests of the Lenders
(in their capacities as such); provided that, for purposes of clarity, it is understood and agreed that the foregoing limitation
shall not otherwise prohibit any Refinancing Indebtedness or any other replacement, refinancing, amendment, supplement, modification,
extension, renewal, restatement or refunding of any Restricted Debt, in each case, that is permitted under this Agreement in respect thereof.
Section 6.13. [Reserved].
Section 6.14. Permitted Activities of Holdings. Holdings
shall not:
(a) incur any Indebtedness
for borrowed money other than (i) the Indebtedness permitted to be incurred by Holdings under the Loan Documents and any Pari First Lien
Facility or otherwise in connection with the Transactions, (ii) Guarantees of Indebtedness or other obligations of the Borrower and/or
any Restricted Subsidiary, which Indebtedness or other obligations are otherwise permitted hereunder, (iii) Indebtedness owed to the Borrower
or any Restricted Subsidiary otherwise permitted hereunder and (iv) any Indebtedness or other obligations arising in respect of its Guarantee
of the iStar Sale/Leaseback, iStar Sale/Leaseback 2014, any Excluded Property Transaction and any iStar Exchange;
(b) create or suffer
to exist any Lien on any property or asset now owned or hereafter acquired by it other than (i) the Liens created under the Collateral
Documents and, subject to the Intercreditor Agreement, the collateral documents relating to any Pari First Lien Facility, in each case,
to which it is a party, (ii) any other Lien created in connection with the Transactions, (iii) Permitted Liens on the Collateral that
are secured on a pari passu or junior basis with the Obligations, so long as such Permitted Liens secure Guarantees permitted under
clause (a)(ii) above and the underlying Indebtedness subject to such Guarantee is permitted to be secured on the same basis pursuant
to Section 6.02 and (iv) Liens of the type permitted under Section 6.02 (other than in respect of Indebtedness for borrowed
money not referred to in clause (a)(i) of this Section 6.13); or
(c) engage in any material
business activity or own any material assets other than (i) holding the Capital Stock of the Borrower and, indirectly, any other
subsidiary of the Borrower (and/or any Joint Venture of any thereof); (ii) performing its obligations under the Loan Documents and
any Pari First Lien Facility and other Indebtedness, Liens (including the granting of Liens) and Guarantees permitted hereunder;
(iii) issuing its own Capital Stock (including, for the avoidance of doubt, the making of any dividend or distribution on account
of, or any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value of, any shares of any
class of Capital Stock permitted hereunder); (iv) filing Tax reports and paying Taxes, including Tax distributions made pursuant to Section
6.04(a)(xv) and other customary obligations in the ordinary course (and contesting any Taxes); (v) preparing reports to
Governmental Authorities and to its shareholders; (vi) holding director and shareholder meetings, preparing organizational records
and other organizational activities required to maintain its separate organizational structure or to comply with applicable
Requirements of Law; (vii) effecting any initial public offering of its Capital Stock; (viii) holding (A) Cash, Cash Equivalents and
other assets received in connection with permitted distributions or dividends received from, or permitted Investments or permitted
Dispositions made by, any of its subsidiaries or permitted contributions to the capital of, or proceeds from the issuance of Capital
Stock of, Holdings pending the application thereof and (B) the proceeds of Indebtedness permitted by Section 6.01; (ix)
providing indemnification for its officers, directors, members of management, employees and advisors or consultants; (x)
participating in tax, accounting and other administrative matters; (xi) making payments of the type permitted under Section
6.09(f) and the performance of its obligations under any document, agreement and/or Investment contemplated by the Transactions
or otherwise not prohibited under this Agreement; (xii) complying with applicable Requirements of Law (including with respect to the
maintenance of its existence); (xiii) [reserved]; (xiv) repurchases of Indebtedness through open market purchases and/or
“Dutch auctions” permitted hereunder; (xv) activities incidental to Permitted Acquisitions or similar Investments
consummated by the Borrower and/or any Restricted Subsidiaries, including the formation of acquisition vehicle entities and
intercompany loans and/or Investments incidental to such Permitted Acquisitions or similar Investments; (xvi) consummating the
Holdings Reorganization Transaction, any Permitted Reorganization or any IPO Reorganization Transaction; (xvii) the maintenance of
its legal existence (including the ability to incur and pay, as applicable, fees, costs and expenses and taxes related to such
maintenance), (xviii) activities incidental or reasonably related to any of the foregoing and (xix) any transaction expressly
permitted pursuant to clauses (a), (b) and/or (d) of this Section 6.14; or
(d) consolidate
or amalgamate with, or merge with or into, or convey, sell or otherwise transfer all or substantially all of its assets to, any Person;
provided that, so long as no Event of Default exists or would result therefrom, (A) Holdings may consolidate or amalgamate with,
or merge with or into, any other Person (other than the Borrower and any of its subsidiaries) so long as (i) Holdings is the continuing
or surviving Person or (ii) if the Person formed by or surviving any such consolidation, amalgamation or merger is not Holdings, (x) the
successor Person expressly assumes all obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is
a party pursuant to a supplement hereto and/or thereto in a form reasonably satisfactory to the Administrative Agent and (y) the Borrower
delivers a certificate of a Responsible Officer with respect to the satisfaction of the conditions set forth in clause (x) of this
clause (A)(ii) and (B) Holdings may (1) consummate the Holdings Reorganization Transaction and/or (2) otherwise convey,
sell or otherwise transfer all or substantially all of its assets to any other Person (other than the Borrower and any of its subsidiaries)
so long as (x) no Change of Control results therefrom, (y) the Person acquiring such assets expressly assumes all of the obligations of
Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto and/or thereto
in a form reasonably satisfactory to the Administrative Agent and (z) the Borrower delivers a certificate of a Responsible Officer with
respect to the satisfaction of the conditions under clause (x) set forth in this clause (B); provided, further, that
(1) if the conditions set forth in the preceding proviso are satisfied, the successor to Holdings will succeed to, and be substituted
for, Holdings under this Agreement, (2) it is understood and agreed that Holdings may convert into another form of entity so long as such
conversion does not adversely affect the value of the Collateral pledged by Holdings, taken as a whole and (3) notwithstanding anything
to the contrary in this Section 6.14, nothing herein shall preclude Holdings from consummating any Permitted Reorganization or
IPO Reorganization Transaction.
Section 6.15. Financial Covenant.
(a) First Lien Leverage
Ratio. Following the exercise of the Call Right or the Put Right under the Call/Put Agreement, on the last day of any Test Period
ending on or after the last day of the first full Fiscal Quarter ending after the Closing Date on which the Revolving Facility Test Condition
is then satisfied (other than any Test Period ending during the Covenant Waiver Period, so long as the Borrower is in compliance with
any then-applicable Covenant Waiver Conditions at all times during the applicable portions of such Covenant Waiver Period (giving effect
to any cure periods stated therein)), the Borrower shall not permit the First Lien Leverage Ratio to be greater than 6.25:1.00, stepping-down
to a First Lien Leverage Ratio of 6.00:1.00 for the Fiscal Quarter ended on or about September 30, 2020 and thereafter (as applicable).
For the avoidance of doubt, if the Borrower ceases to be in compliance with any then-applicable Covenant Waiver Conditions at any time
during the applicable portions of such Covenant Waiver Period, then (A) the Financial Covenant will be deemed to have been applicable
as of the last day of the most recently ended Test Period (but solely to the extent the Revolving Facility Test Condition was otherwise
satisfied on such last day) and (B) accordingly, if the Borrower would not have been in compliance with the Financial Covenant as of
the last day of such Test Period, then, solely to the extent the Revolving Facility Test Condition was otherwise satisfied on such last
day, and subject to the rights and limitations set forth in Section 6.15(b), a breach of this Section 6.15(a) shall be deemed
to have occurred from such non-compliance with the Covenant Waiver Conditions (unless so cured).
Notwithstanding
the other provisions of this Agreement, from and after the termination of the Covenant Waiver Period, for purposes of calculating the
First Lien Leverage Ratio for purposes of this Section 6.15 and determining compliance with the Financial Covenant (if then tested):
(i) for the first Test
Period ending after termination of the Covenant Waiver Period, Consolidated Adjusted EBITDA shall be deemed to be the product of (x) Consolidated
Adjusted EBITDA for the most recently ended Fiscal Quarter for which financial statements under Section 5.01(a) or Section 5.01(b), as
applicable, have been delivered (or are required to have been delivered), multiplied by (y) the Seasonal Adjustment Factor for
such Fiscal Quarter;
(ii) for the second
Test Period ending after termination of the Covenant Waiver Period, Consolidated Adjusted EBITDA shall be deemed to be the product of
(x) Consolidated Adjusted EBITDA for the two most recently ended consecutive Fiscal Quarters for which financial statements under Section
5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have been delivered), multiplied by (y) the
Seasonal Adjustment Factor for such Fiscal Quarters;
(iii) for the third
Test Period ending after termination of the Covenant Waiver Period, Consolidated Adjusted EBITDA shall be deemed to be the product of
(x) Consolidated Adjusted EBITDA for the three most recently ended consecutive Fiscal Quarters for which financial statements under Section
5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have been delivered), multiplied by (y) the
Seasonal Adjustment Factor for such Fiscal Quarters; and
(iv) for the avoidance
of doubt, for the fourth Test Period ending after the Covenant Waiver Period and each Test Period ending thereafter, Consolidated Adjusted
EBITDA shall be Consolidated Adjusted EBITDA for the four consecutive Fiscal Quarters then most recently ended for which financial statements
under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have been delivered);
provided that for any Test Period
set forth in clauses (i) through (iii) above the Borrower may elect (with any such election applying to each subsequent Test Period) to
have Consolidated Adjusted EBITDA be Consolidated Adjusted EBITDA for the four consecutive Fiscal Quarters then most recently ended for
which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have been
delivered).
For purposes of
this Section 6.15 and Section 4.02(b), unless otherwise agreed in writing by the Borrower and the Required Lenders, the
applicable following terms have the meanings specified below:
“Core
Liquidity” means, on any date of determination, the sum of (i) all Cash and Cash Equivalents (that would qualify as “Unrestricted
Cash Amount”) of the Borrower and its Restricted Subsidiaries as of such date, plus (ii) the entire aggregate Unused Revolving
Credit Commitments as of such date.
“Covenant
Waiver Conditions” means that, from and after the Closing Date, each of the following shall be satisfied at all times prior
to the earlier to occur of (i) termination of the Covenant Waiver Period, (ii) delivery of a Covenant Waiver Termination Notice (as defined
in the Pari First Lien Credit Agreement) to the Pari First Lien Agent and (iii) Borrower’s delivery to the Administrative Agent
of a Covenant Waiver Termination Notice:
(a) (i) the Borrower and
its Restricted Subsidiaries shall maintain Total Liquidity of not less than $20,000,000 as of the end of each Business Day; provided that
if Total Liquidity is less than $20,000,000 as of the end of any Business Day, then notwithstanding the foregoing, it shall not be a
breach of (or failure to satisfy) the Covenant Waiver Conditions if (i) the Borrower shall promptly thereafter notify the
Administrative Agent in writing of such shortfall and (ii) on or prior to the seventh Business Day following the date of such
shortfall, the Borrower shall have received Cash proceeds of Capital Stock or capital contributions or Sponsor Subordinated Debt (in
each case, the terms and/or classification of which would satisfy the following proviso of this paragraph (a)) in an amount equal to
the greatest level of shortfall that shall have occurred from and including the date of such applicable initial shortfall through
the Business Day immediately prior to such actual date of contribution or borrowing; provided further that if Core Liquidity
is less than $10,000,000 as of the end of any Business Day, then the Borrower shall promptly thereafter notify the Administrative
Agent in writing of such shortfall, and in connection therewith, the Borrower shall promptly submit a request for a Borrowing
hereunder in an amount such that Core Liquidity, calculated on a pro forma basis after giving effect to such Borrowing, shall not be
less than $20,000,000 immediately following the funding of such Borrowing; provided that, notwithstanding the foregoing, the
Borrower shall have no obligation to make any Borrowing hereunder if the conditions to any such Borrowing set forth in Section 4.02
are not satisfied at such time; provided further that, for the avoidance of doubt, any such failure to make a Borrowing
hereunder within 12 Business Days (or such later date as approved by the Administrative Agent) of delivery of a Borrowing Request
for such Borrowing promptly following the applicable written notice to the Administrative Agent of any Core Liquidity shortfall (as
applicable to cause Core Liquidity to be not less than $20,000,000 on the applicable date) shall be a breach of the Covenant Waiver
Conditions and (iii) the Borrower shall deliver to the Administrative Agent for delivery by the Administrative Agent to each
Revolving Lender, within 15 days after the end of each calendar month ending after the Closing Date, a computation of Total
Liquidity as of the end of each Business Day during such calendar month then ended (excluding Business Days occurring prior to the
Closing Date);
(b) [reserved];
(c) notwithstanding anything
to the contrary in Sections 6.01 or 9.02, during any period when the Revolving Facility Test Condition is otherwise in effect, the Borrower
shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become
or remain liable with respect to any Indebtedness pursuant to Section 6.01(u) or Incremental Equivalent Debt under Section 6.01(x) of
this Agreement, for borrowed money (or evidenced by bonds, debentures, notes or similar instruments) to the extent the same would appear
as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP, in each case to
the extent that such Indebtedness would be secured on a pari passu basis by a first priority Lien on a material portion of the Collateral
(any such Indebtedness, “Restricted First Lien Debt”) (other than (i) any such Indebtedness (A) existing as of the
Closing Date or (B)(x) incurred pursuant to Section 6.01(u) or Section 6.01(x) in an aggregate outstanding principal amount not to exceed
the lesser of (1) $200,000,000 and (2) the “Incremental Cap” (as defined and as set forth in the Pari First Lien Credit Agreement
as in effect on the Closing Date) as in effect at the time of determination and (y) that is on terms not materially less favorable (in
each case, as determined by the Borrower in good faith) to the Borrower than the terms required by the Federal Reserve Bank of Boston
in respect of any loan made pursuant to the “Main Street Expanded Loan Facility” that have been authorized under Section
13(3) of the Federal Reserve Act (as published prior to June 7, 2020) (provided that notwithstanding the foregoing (1) the quantum, pricing,
interest rates and other interest terms (including cash pay interest), fees, prepayment penalties or other economic terms may be as agreed
between the Borrower or any of its Restricted Subsidiaries and each lender providing such Indebtedness (each in their sole discretion),
(2) the tenor of such Indebtedness may be shorter than four years so long as it is not shorter than 91 days following the then-existing
Latest Maturity Date at such time of incurrence and (3) any amortization may be as agreed between the Borrower or any of its Restricted
Subsidiaries and each lender providing such Indebtedness (each in their sole discretion) so long as the aggregate Weighted Average Life
to Maturity (solely with respect to such amortization component) of such Indebtedness is no shorter than the Weighted Average Life to
Maturity (solely with respect to any amortization component) pursuant to the “Main Street Expanded Loan Facility” that has
been authorized under Section 13(3) of the Federal Reserve Act (as published prior to June 7, 2020)) or (ii) Refinancing Indebtedness
in respect of any Indebtedness existing as of the Closing Date or referred to in the preceding clause (i)); provided that, notwithstanding
the foregoing, it shall also not be a breach or violation of the Covenant Waiver Conditions if the Borrower and/or any of its Restricted
Subsidiaries shall incur any other Restricted First Lien Debt on any date when the Revolving Facility Test Condition is not then satisfied
(and thereafter remain liable therefore), so long as such Restricted First Lien Debt does not have a stated final maturity date that
is earlier than 91 days after the then-existing Latest Maturity Date at such time of incurrence; and
(d) notwithstanding
anything to the contrary in Section 6.04(a), the Borrower shall not pay or make, directly or indirectly, any Restricted Payment
(other than Restricted payments of the type permitted by Section 6.04(a)(i), (ii), (iv), (v), (vi),
(ix), (xi), (xii), (xiv), (xv), (xviii), (xix) or (xx)) (it being understood that
such limitations shall not, for the avoidance of doubt, apply to the usage of any portion of the Available RP Capacity Amount to (1) make
Investments pursuant to Section 6.06(q)(ii), (2) make Restricted Debt Payments pursuant to Section 6.04(b)(iv)(B) or (3)
incur Indebtedness pursuant to Section 6.01(ll)).
“Covenant
Waiver Period” means the period from and after the Closing Date to and including the earliest of (i) the day immediately preceding
the last day of the Test Period ending on (or about) June 30, 2021 and (ii) the day immediately preceding the last day of the Test Period
during which the Borrower has delivered a written notice to the Administrative Agent electing to terminate the Covenant Waiver Period
(a “Covenant Waiver Termination Notice”) (e.g., assuming Fiscal Quarters ending on calendar quarter-ends, if such Covenant
Waiver Termination Notice is delivered on October 1, 2020, then December 30, 2020, and the first reinstituted testing of the Financial
Covenant would occur for the Fiscal Quarter ending on December 31, 2020, but solely to the extent the Revolving Facility Test Conditions
are satisfied on December 31, 2020).
“Covenant
Waiver Termination Notice” has the meaning assigned to such term in the definition of Covenant Waiver Period.
“Seasonal
Adjustment Factor” means, for any Fiscal Quarter or any period of consecutive Fiscal Quarters, as applicable, the product of
(i) one, divided by (ii) the Seasonal Adjustment Percentage for such Fiscal Quarter or the sum of the Seasonal Adjustment Percentages
for such Fiscal Quarters, as applicable.
“Seasonal
Adjustment Percentage” means (i) for the first Fiscal Quarter ending on (or about) March 31 after the end of the Covenant Waiver
Period, 43.0%, (ii) for the first Fiscal Quarter ending on (or about) June 30 after the end of the Covenant Waiver Period, 18.0%, (iii)
for the first Fiscal Quarter ending on (or about) September 30 after the end of the Covenant Waiver Period, 12.0% and (iv) for the first
Fiscal Quarter ending on (or about) December 31 after the end of the Covenant Waiver Period, 27.0%.
“Sponsor
Subordinated Debt” means unsecured Indebtedness incurred by the Borrower (which, for the avoidance of doubt, may be guaranteed
by other Loan Parties) from Sponsor on terms acceptable to each of the Borrower and Sponsor in their sole discretion; provided that
(i) the stated final maturity date of such Indebtedness shall be no earlier than 91 days after the then-existing Latest Maturity Date
at the time of such incurrence (other than any earlier maturity upon the occurrence of any change of control, Qualifying IPO or any Disposition
occurring prior to such 91 days following the Latest Maturity Date at the time such Sponsor Subordinated Debt is incurred), (ii) interest
on such Indebtedness shall accrue, at the Borrower’s election, as “payment in kind” interest at all times during the
Covenant Waiver Period (or for such longer period as the Borrower and the Sponsor may otherwise agree) and (iii) such Indebtedness shall
be contractually subordinated in right of payment to the payment in full of all Obligations under this Agreement on terms and conditions
reasonably satisfactory to the Administrative Agent.
“Total
Liquidity” means, on any date of determination, the sum of (i) Core Liquidity as of such date, plus (ii) all unused Revolving
Credit Commitments.
(b) Financial Cure.
Notwithstanding anything to the contrary in this Agreement (including Article 7), if the Borrower reasonably expects to fail (or
has failed) to comply with Section 6.15(a) above for any Fiscal Quarter, the Borrower shall have the right (the “Cure
Right”) (at any time during such Fiscal Quarter or thereafter until the date that is 10 Business Days after the date on which
financial statements for such Fiscal Quarter are required to be delivered pursuant to Section 5.01(a) or (b), as applicable)
to issue equity (which shall be common equity, Qualified Capital Stock or other equity (such other equity to be on terms reasonably acceptable
to the Administrative Agent)) for Cash or otherwise receive Cash contributions in respect of Qualified Capital Stock (the “Cure
Amount”), and thereupon the Borrower’s compliance with Section 6.15(a) shall be recalculated giving effect to
the following pro forma adjustment: Consolidated Adjusted EBITDA shall be increased (notwithstanding the absence of a related addback
in the definition of “Consolidated Adjusted EBITDA”), solely for the purpose of determining compliance with Section 6.15(a)
as of the end of such Fiscal Quarter and for applicable subsequent periods that include such Fiscal Quarter, by an amount equal to
the Cure Amount. If, after giving effect to the foregoing recalculation (but not, for the avoidance of doubt, except as expressly set
forth below, taking into account any immediate repayment of Indebtedness in connection therewith), the requirements of Section 6.15(a)
would be satisfied, then the requirements of Section 6.15(a) shall be deemed satisfied as of the end of the relevant Fiscal
Quarter with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default
of Section 6.15(a) that had occurred (or would have occurred) shall be deemed cured for the purposes of this Agreement. Notwithstanding
anything herein to the contrary, (i) in each four consecutive Fiscal Quarter period there shall be at least two Fiscal Quarters (which
may, but are not required to be, consecutive) in which the Cure Right is not exercised, (ii) during the term of this Agreement, the Cure
Right shall not be exercised more than five times, (iii) the Cure Amount shall be no greater than the amount required for the purpose
of complying with Section 6.15(a) (or to be in pro forma compliance with any financial covenant with respect to any other Indebtedness
that is being cured), (iv) upon the Administrative Agent’s receipt of a written notice from the Borrower that the Borrower
intends to exercise the Cure Right (a “Notice of Intent to Cure”), until the 10th Business Day following the date
on which financial statements for the Fiscal Quarter to which such Notice of Intent to Cure relates are required to be delivered pursuant
to Section 5.01(a) or (b), as applicable, neither the Administrative Agent (nor any sub-agent therefor) nor any Lender
shall exercise any right to accelerate the Loans or terminate the Revolving Credit Commitments or any Additional Commitments, and none
of the Administrative Agent (nor any sub-agent therefor) nor any Lender or Secured Party shall exercise any right to foreclose on or
take possession of the Collateral or any other right or remedy under the Loan Documents, in each case solely on the basis of the relevant
Event of Default under Section 6.15(a), (v) during any Test Period in which any Cure Amount is included in the calculation of
Consolidated Adjusted EBITDA as a result of any exercise of the Cure Right, such Cure Amount shall be (A) counted solely as an increase
to Consolidated Adjusted EBITDA (and not as a reduction of Indebtedness (by netting or otherwise), except to the extent that the proceeds
of such Cure Amount are actually applied to repay Indebtedness, such reduction may be credited in any subsequent Fiscal Quarter) for
the purpose of determining compliance with Section 6.15(a) and (B) disregarded for all other purposes, including the purpose
of determining whether any financial ratio-based condition has been satisfied or the availability of any carve-out set forth in Article
6 of this Agreement and (vi) no Revolving Lender shall be required to make any Revolving Loan hereunder if an Event of Default under
Section 6.15(a) exists during the 10 Business Day period during which the Borrower may exercise a Cure Right above unless and
until the Cure Amount is actually received.
ARTICLE 7 EVENTS OF DEFAULT
Section 7.01. Events of Default.
If any of the following events (each, an “Event of Default”) shall occur:
(a) Failure
To Make Payments When Due. Failure by the Borrower to pay (i) any installment of principal of any Loan when due, whether at stated
maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on any Loan,
any fee or other non-principal amount due hereunder within five Business Days after the date due.
(b) Default in Other Agreements.
(i) Failure by the Borrower or any of its Restricted Subsidiaries to pay when due any principal of or interest on or any other amount
payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in clause (a) above) with an aggregate
outstanding principal amount exceeding the Threshold Amount, in each case beyond the applicable notice period and grace period, if any,
provided therefor; or (ii) breach or default by the Borrower or any of its Restricted Subsidiaries with respect to any other term of
(A) one or more items of Indebtedness with an aggregate outstanding principal amount exceeding the Threshold Amount or (B) any loan agreement,
mortgage, indenture or other agreement relating to such item(s) of Indebtedness (other than, for the avoidance of doubt, with respect
to Indebtedness consisting of Hedging Obligations, termination events or equivalent events pursuant to the terms of the relevant Hedge
Agreement which are not the result of any default thereunder by any Loan Party or any Restricted Subsidiary), in each case beyond the
applicable notice period and grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit
the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, such Indebtedness to
become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation,
as the case may be; provided that clause (ii) of this paragraph (b) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness if such sale or transfer is permitted
hereunder; provided, further, that (x) with respect to any breach or default referred to in clause (ii) above with
respect to a financial covenant in any such Indebtedness, such breach or default shall only constitute an Event of Default hereunder
if such breach or default has resulted in the acceleration of such Indebtedness and the termination of commitments thereunder and (y)
any failure described under clauses (i) or (ii) above is unremedied and is not waived by the holders of such Indebtedness
prior to any termination of the Commitments or acceleration of the Loans pursuant to this Article 7; or
(c) Breach of Certain Covenants.
Failure of any Loan Party, as required by the relevant provision, to perform or comply with any term or condition contained in Section
5.01(e)(i) (provided that subsequent delivery of a notice of Default or Event of Default shall cure such Event of Default
for failure to provide notice, unless a Responsible Officer of Holdings or the Borrower had actual knowledge that such Default or Event
of Default had occurred and was continuing and should have reasonably known in the course of his or her duties that failure to provide
such notice would constitute an Event of Default), Section 5.02 (as it applies to the preservation of the existence of the Borrower),
or Article 6; it being understood and agreed that any breach of Section 6.15(a) (or any other financial covenant) is subject
to cure as provided in Section 6.15(b), and no Event of Default shall arise under Section 6.15(a) until the 10th Business
Day after the day on which financial statements are required to be delivered for the relevant Fiscal Quarter under Section 5.01(a)
or (b), as applicable, and then only to the extent the Cure Amount has not been received on or prior to such date; or
(d) Breach of
Representations, Etc. Any representation, warranty or certification made or deemed made by any Loan Party in any Loan Document or
in any certificate required to be delivered in connection herewith or therewith (including, for the avoidance of doubt, any Perfection
Certificate) shall be untrue in any material respect as of the date made or deemed made and such untrue representation, warranty or certification
shall remain untrue for a period of 30 days after notice from the Administrative Agent to the Borrower (which notice shall only be given
at the direction of the Required Lenders); or
(e) Other Defaults
Under Loan Documents. Default by any Loan Party in the performance of or compliance with any term contained herein or in any of the
other Loan Documents, other than any such term referred to in any other Section of this Article 7, which default has not been remedied
or waived within 30 days after receipt by the Borrower of written notice thereof from the Administrative Agent; or
(f) Involuntary
Bankruptcy; Appointment of Receiver, Etc. (i) The entry by a court of competent jurisdiction of a decree or order for relief in respect
of Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) (any such Person, a “Specified
Person”) in an involuntary case under any Debtor Relief Law now or hereafter in effect, which decree or order is not stayed;
or any other similar relief shall be granted under any applicable federal, state or local law, which relief is not stayed; or (ii) the
commencement of an involuntary case against any Specified Person under any Debtor Relief Law; the entry by a court having jurisdiction
in the premises of a decree or order for the appointment of a receiver, receiver and manager, (preliminary) insolvency receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over any Specified Person, or over all or a substantial part of
its property; or the involuntary appointment of an interim receiver, trustee or other custodian of any Specified Person for all or a substantial
part of its property, which remains, in any case under this clause (f), undismissed, unvacated, unbonded or unstayed pending appeal
for 60 consecutive days; or
(g) Voluntary
Bankruptcy; Appointment of Receiver, Etc. (i) The entry against any Specified Person of an order for relief, the commencement by any
Specified Person of a voluntary case under any Debtor Relief Law, or the consent by any Specified Person to the entry of an order for
relief in an involuntary case or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Law, or the consent
by any Specified Person to the appointment of or taking possession by a receiver, receiver and manager, trustee or other custodian for
all or a substantial part of its property; (ii) the making by any Specified Person of a general assignment for the benefit of creditors;
or (iii) the admission by any Specified Person in writing of their inability to pay their respective debts as such debts become due; or
(h) Judgments
and Attachments. The entry or filing of one or more final money judgments, writs or warrants of attachment or similar process against
the Borrower or any of its Restricted Subsidiaries or any of their respective assets involving in the aggregate at any time an amount
in excess of the Threshold Amount (in either case to the extent not adequately covered by indemnity from a third party as to which the
indemnifying party has been notified and not denied its indemnification obligations, self- insurance (if applicable) or insurance as to
which the relevant third party insurance company has been notified and not denied coverage), which judgment, writ, warrant or similar
process remains unpaid, undischarged, unvacated, unbonded or unstayed pending appeal for a period of 60 consecutive days; or
(i) Employee
Benefit Plans. The occurrence of one or more ERISA Events, which individually or in the aggregate result in liability of the Borrower
or any of its Restricted Subsidiaries in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect;
or
(j) Change of Control. The
occurrence of a Change of Control; or
(k) Guaranties,
Collateral Documents and Other Loan Documents. At any time after the execution and delivery thereof (i) any material Loan Guaranty
for any reason ceasing to be in full force and effect (other than in accordance with its terms or as a result of the occurrence of the
Termination Date) or being declared by a court of competent jurisdiction to be null and void or the repudiation in writing by any Loan
Party of its obligations thereunder (other than as a result of the discharge of such Loan Party in accordance with the terms thereof),
(ii) this Agreement or any material Collateral Document or any Lien on a material portion of the Collateral ceasing to be in full force
and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof, the occurrence of the Termination
Date or any other termination of such Collateral Document in accordance with the terms thereof) or being declared by a court of competent
jurisdiction to be null and void or (iii) other than in any bona fide, good faith dispute as to the scope of Collateral or whether any
Lien has been, or is required to be released, the contesting by any Loan Party of the validity or enforceability of any material provision
of any Loan Document (or any Lien on a material portion of the Collateral purported to be created by the Collateral Documents) in writing
or denial by any Loan Party in writing that it has any further liability (other than by reason of the occurrence of the Termination Date
or any other termination of any other Loan Document in accordance with the terms thereof), including with respect to future advances by
the Lenders, under any Loan Document to which it is a party; it being understood and agreed that the failure of the Administrative Agent
to maintain possession of any Collateral actually delivered to it or file any UCC (or equivalent) continuation statement shall not result
in an Event of Default under this clause (k); or
(l) Subordination.
The Obligations ceasing or the assertion in writing by any Loan Party that the Obligations cease to constitute senior indebtedness under
the subordination provisions of any document or instrument evidencing any permitted Junior Indebtedness in excess of the Threshold Amount
(in each case, to the extent required by such subordination provision) or any such subordination provision being invalidated by a court
of competent jurisdiction or otherwise ceasing, for any reason, to be valid, binding and enforceable obligations of the parties thereto;
or
(m) Credit Support Documents.
Subject to the exceptions, qualifications and grace or cure periods set forth therein, (i) each of the “Pledgor Events of Default”
set forth in Section 10 of the Credit Support Provider Security Agreement and (ii) any other breach or default by the Credit Support
Provider in the performance of or compliance with any term contained in any of the Credit Support Documents; provided that no
event under this clause (m) (other than a Pledgor Event of Default under Section 10(g), (h) or (j), which shall constitute an immediate
Event of Default hereunder) shall be deemed to be an “Event of Default” hereunder if, within two Business Days after the
receipt by the Credit Support Provider of written notice by the Administrative Agent of such “Pledgor Event of Default”,
default or other breach (following applicable grace or cure periods), either (x) the Credit Support Provider shall have given irrevocable
notice of its intent to exercise the Call Right in full and purchase and assume all Loans, Commitments and other Obligations in accordance
with the Call/Put Agreement, (y) if the Administrative Agent elects in its sole discretion, the Administrative Agent shall have given
written notice of its exercise of the Put Right in full and the Credit Support Provider shall become bound to purchase and assume all
Loans, Commitments and other Obligations in accordance with the Call/Put Agreement or (z) the Credit Support Provider shall have given
irrevocable written notice of its intent to repay the Obligations in full in cash (including by applying all amounts on deposit in the
Pledgor Collateral Account to repay such Obligations in full). If the Credit Support Provider exercises its Call Right in accordance
with clause (x) above, the Administrative Agent exercises its Put Right in accordance with clause (y) above, or the Credit Support Provider
elects to repay the Obligations in full in accordance with clause (z) above, the event described in this clause (m) shall not constitute
an “Event of Default” hereunder for thirteen (13) Business Days from the date written notice of such Call Right, Put Right
or repayment, as applicable, was delivered by the Credit Support Provider or the Administrative Agent, as applicable, so long as the
Credit Support Provider has initiated a Drawdown by delivering Drawdown Notice to the Pledgor Shareholders in an amount sufficient to
repay the Obligations in full in accordance with the Call/Put Agreement and, in each case, has provided a copy of such Drawdown Notice
to the Administrative Agent prior to the end of such two (2) Business Day period.
then, and in every such Event of Default
(other than (x) an Event of Default with respect to the Borrower described in clause (f) or (g) of this Article or (y) any
Event of Default arising under Section 6.15(a)), and at any time thereafter during the continuance of such Event of Default, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take any of the following actions,
at the same or different times: (i) terminate the Revolving Credit Commitments, and thereupon such Commitments shall terminate immediately
and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to
be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and all fees and other Obligations, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; provided that (A) upon
the occurrence of an Event of Default with respect to the Borrower described in clause (f) or (g) of this Article, any such
Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and
all fees and other Obligations, shall automatically become due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower, in each case without further action of the Administrative Agent or any Lender and
(B) during the continuance of any Event of Default arising under Section 6.15(a), after giving effect to the proviso to Section
7.01(c), (X) solely upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, (1) terminate
the Revolving Credit Commitments, and thereupon such Revolving Credit Commitments shall terminate immediately and (2) declare the Revolving
Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of the Revolving Loans so declared to be due and payable, together
with accrued interest thereon and all fees and other Obligations, shall become due and payable immediately, without presentment, demand,
protest or other notice in respect thereof of any kind, all of which are hereby waived by the Borrower and (Y) the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the Borrower, declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other
Obligations, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower. Upon the occurrence and during the continuance of an Event of Default, subject to the Intercreditor
Agreement and any other applicable intercreditor agreement, the Administrative Agent may, and at the request of the Required Lenders shall,
exercise any rights and remedies provided to the Administrative Agent under the Loan Documents, under the Credit Support Documents or
at law or equity, including demanding payment under any Loan Guaranty and/or the Credit Support Provider Guaranty, and all remedies provided
under the UCC; provided that, notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative
Agent shall not take any enforcement action against the Collateral unless the Credit Support Provider has failed to satisfy its guarantee
obligations or obligations in respect of the Put/Call Agreement (as applicable) pursuant to the Credit Support Documents in accordance
with the requirements of Section 11(b) of the Credit Support Provider Security Agreement.
ARTICLE 8 THE ADMINISTRATIVE AGENT
Each of the Lenders,
on behalf of itself and its applicable Affiliates and in their respective capacities as such and as Secured Parties, as applicable, hereby
irrevocably appoints JPM (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent
to take such actions on its behalf, including execution of the other Loan Documents or Credit Support Documents or any other documents
with respect to the rights of the Secured Parties and the Collateral or the Credit Support Collateral as contemplated by this Agreement
and the Loan Documents and Credit Support Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms
of the Loan Documents and Credit Support Documents, together with such actions and powers as are reasonably incidental thereto.
Each of the Secured
Parties hereby irrevocably appoints and authorizes the Administrative Agent (as collateral agent) to act as the agent of (and to hold
any security interest created by the Loan Documents and Credit Support Documents for and on behalf of or on trust for) such Secured Party
for purposes of acquiring, holding and enforcing any and all Liens on Collateral or Credit Support Collateral granted by the Loan Parties
or the Credit Support Provider to secure any of the Obligations, together with such powers and discretion as are reasonably incidental
thereto. The Lenders agree that any such actions by the Administrative Agent shall bind such Secured Party.
Any Person serving
as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving
as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to,
act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Loan Party or
the Credit Support Provider or any subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent
hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information
regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of
such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information
to them.
The Administrative Agent
shall not have any duties or obligations except those expressly set forth in the Loan Documents and Credit Support Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan
Documents and Credit Support Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used
merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting
parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except
discretionary rights and powers that are expressly contemplated by the Loan Documents or the Credit Support Documents and which the Administrative
Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability
or that is contrary to any Loan Document or Credit Support Document or applicable Requirements of Law, and (c) except as expressly set
forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to Holdings, the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained
by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable
to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good
faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence
or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly
set forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower, Credit Support Provider or any Lender, and the Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with any Loan Document or Credit Support Document, (ii) the contents of any certificate, report or other document delivered
hereunder or in connection with any Loan Document or Credit Support Document, (iii) the performance or observance of any covenant, agreement
or other term or condition set forth in any Loan Document or Credit Support Document or the occurrence of any Default or Event of Default,
(iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or Credit Support Document or any other agreement,
instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or Credit Support Collateral or the existence,
value or sufficiency of the Collateral or Credit Support Collateral, (vi) the satisfaction of any condition set forth in Article 4
or elsewhere in any Loan Document or Credit Support Document, other than to confirm receipt of items expressly required to be delivered
to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof, provided, further that,
the foregoing paragraph is solely for the benefit of the Administrative Agent and not any Lender.
Each Lender agrees
that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other
Loan Document or Credit Support Document, accelerate the Obligations under any Loan Document or Credit Support Document, or exercise any
right that it might otherwise have under applicable law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section
363 of the Bankruptcy Code or other similar Dispositions of Collateral or Credit Support Collateral. Notwithstanding the foregoing, however,
except as otherwise expressly limited herein, a Lender may take action to preserve or enforce its rights against a Loan Party or the Credit
Support Provider where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations
held by such Lender, including the filing of a proof of claim in a case under the Bankruptcy Code.
Notwithstanding anything
to the contrary contained herein or in any of the other Loan Documents or Credit Support Documents, the Borrower, the Administrative
Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral
or Credit Support Collateral or to enforce the Loan Guaranty or the Credit Support Provider Guaranty; it being understood and agreed
that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the Secured Parties in
accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents and Credit Support Documents may
be exercised solely by the Administrative Agent and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral
or Credit Support Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section
363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, shall be entitled,
for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral or Credit
Support Collateral sold at any such sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase
price for any Collateral or Credit Support Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative
Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral or Credit Support Collateral at any such
Disposition.
Each of the Lenders hereby irrevocably
authorizes the Administrative Agent, on behalf of all Secured Parties, to take any of the following actions upon the instruction of the
Required Lenders:
(a) consent to
the Disposition of all or any portion of the Collateral or Credit Support Collateral free and clear of the Liens securing the Obligations
in connection with any Disposition pursuant to the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law),
including Section 363 thereof;
(b) credit bid
all or any portion of the Obligations, or purchase all or any portion of the Collateral or Credit Support Collateral (in each case, either
directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral or Credit
Support Collateral pursuant to the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including under
Section 363 thereof;
(c) credit bid
all or any portion of the Obligations, or purchase all or any portion of the Collateral or Credit Support Collateral (in each case, either
directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral or Credit
Support Collateral pursuant to the applicable provisions of the UCC (or other applicable Debtor Relief Law), including pursuant to Sections
9-610 or 9-620 of the UCC;
(d) credit bid
all or any portion of the Obligations, or purchase all or any portion of the Collateral or Credit Support Collateral (in each case, either
directly or through one or more acquisition vehicles), in connection with any foreclosure or other Disposition conducted in accordance
with applicable law following the occurrence of an Event of Default, including by power of sale, judicial action or otherwise; and/or
(e) estimate the
amount of any contingent or unliquidated Obligations of such Lender or other Secured Party;
it being understood that no Lender shall
be required to fund any new amount in connection with any purchase of all or any portion of the Collateral or Credit Support Collateral
by the Administrative Agent pursuant to the foregoing clauses (b), (c) or (d) without its prior written consent.
Each Secured Party agrees
that the Administrative Agent is under no obligation to credit bid any part of the Obligations or to purchase or retain or acquire any
portion of the Collateral or Credit Support Collateral; provided that, in connection with any credit bid or purchase described
under clauses (b), (c) or (d) of the preceding paragraph, the Obligations owed to all of the Secured Parties (other
than with respect to contingent or unliquidated liabilities as set forth in the next succeeding paragraph) may be, and shall be, credit
bid by the Administrative Agent on a ratable basis. For the avoidance of doubt, nothing in this Article 8 shall limit any rights of Holdings
or its Subsidiaries under Section 363(k) of the Bankruptcy Code (or the corresponding provisions of any other applicable Debtor Relief
Law).
With respect to each contingent
or unliquidated claim that is an Obligation, the Administrative Agent is hereby authorized by the Secured Parties, but is not required,
to estimate the amount thereof for purposes of any credit bid or purchase described in the second preceding paragraph so long as the
estimation of the amount or liquidation of such claim would not unduly delay the ability of the Administrative Agent to credit bid the
Obligations or purchase the Collateral or Credit Support Collateral in the relevant Disposition. In the event that the Administrative
Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot
be estimated without unduly delaying the ability of the Administrative Agent to consummate any credit bid or purchase in accordance with
the second preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit
bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral or Credit Support Collateral purchased
by means of such credit bid.
Each Secured Party
whose Obligations are credit bid under clauses (b), (c) or (d) of the third preceding paragraph shall be entitled
to receive interests in the Collateral or Credit Support Collateral or any other asset acquired in connection with such credit bid (or
in the Capital Stock of the acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in accordance
with the percentage obtained by dividing (x) the amount of the Obligations of such Secured Party that were credit bid in such credit bid
or other Disposition by (y) the aggregate amount of all Obligations that were credit bid in such credit bid or other Disposition.
In addition, in
case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party or the
Credit Support Provider, each Secured Party agrees that the Administrative Agent (irrespective of whether the principal of any Loan is
then due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove
a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are
owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective agents and counsel and all other amounts to the extent due to the Lenders and the Administrative
Agent under Sections 2.12 and 9.03) allowed in such judicial proceeding; and
(ii) to collect and
receive any monies or other property payable or deliverable on any such claims and to distribute the same.
Any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent consents to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any other amount due to the Administrative Agent under Sections
2.12 and 9.03.
Nothing contained
herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its
terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to
such Lender unless the Administrative Agent has received notice to the contrary from such Lender prior to the making of such Loan. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
The Administrative
Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it.
The Administrative Agent and any such sub- agent may perform any and all of their respective duties and exercise their respective rights
and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and
to the Related Parties of the Administrative Agent and any such sub-agent and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent.
The Administrative Agent
may resign at any time by giving thirty days’ written notice to the Lenders and the Borrower. If the Administrative Agent is a
Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon thirty days’
notice, remove the Administrative Agent. Upon receipt of any such notice of resignation or delivery of any such notice of removal,
the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint
a successor Administrative Agent which shall be a commercial bank or trust company or other Person reasonably acceptable to the
Borrower with offices in the U.S.; provided that during the existence and continuation of an Event of Default under Section
7.01(a) or, with respect to the Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be required.
If, in any case, no successor shall have been appointed as provided above and accepted such appointment within thirty days after the
retiring Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in
the case of a retirement, the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a
successor Administrative Agent meeting the qualifications set forth above (including, for the avoidance of doubt, consent of the
Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required Lenders, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the
Administrative Agent notifies the Borrower and the Lenders that no qualifying Person has accepted such appointment or (y) in the
case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each
case, such resignation or removal shall nonetheless become effective in accordance with such notice and (i) the retiring or removed
Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and Credit
Support Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral
agent for the Secured Parties for perfection purposes, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations
required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly (and each Lender
will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the
Borrower, as applicable, appoint a successor Administrative Agent, as provided for above in this Article 8. Immediately upon
the exercise by the Credit Support Provider of the Call Right, or the exercise by the Administrative Agent of the Put Right (as
defined in the Call Agreement, and in each case the payment in full of the Exit Price (as defined in the Call Agreement), the
Administrative Agent shall be automatically removed and the Credit Support Provider (or its designee) shall be automatically
appointed as the successor Administrative Agent (and shall be deemed to have automatically accepted such appointment); provided that
the outgoing Administrative Agent shall remain as sub-agent of the Credit Support Provider (entitled to all rights and
indemnifications hereunder as such) for a reasonable period of time for purposes of ensuring any assignment or transition of Liens
and/or Collateral to the Credit Support Provider as “Administrative Agent”. Upon the acceptance of its appointment as
Administrative Agent hereunder as a successor Administrative Agent, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to
indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged
from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between
the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed
Administrative Agent, its sub-agents and their respective Related Parties in respect of any action taken or omitted to be taken by
any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security
following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified
Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent.
Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any
of their respective Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue
to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any Credit Support
Document or related agreement or any document furnished hereunder or thereunder. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent herein, the Administrative Agent shall not have any duty or responsibility
to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Loan Parties or the Credit Support Provider or any of their respective Affiliates which may
come into the possession of the Administrative Agent or any of its Related Parties.
Notwithstanding
anything to the contrary herein, the Arranger shall not have any right, power, obligation, liability, responsibility or duty under this
Agreement, except in their respective capacities, as applicable, as the Administrative Agent or a Lender hereunder.
Each Secured Party
irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall:
(a) release any Lien on any
property granted to or held by the Administrative Agent under any Loan Document or Credit Support Document (i) upon the occurrence of
the Termination Date, (ii) that is sold or to be sold or transferred as part of or in connection with any Disposition permitted under
the Loan Documents and Credit Support Documents to a Person that is not a Loan Party, (iii) that does not constitute (or ceases to constitute)
Collateral, (iv) if the property subject to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor
from its Loan Guaranty otherwise in accordance with the Loan Documents, (v) as required under clause (d) below, (vi) in
accordance with the Intercreditor Agreement or any other then-applicable Acceptable Intercreditor Agreement or (vii) if approved,
authorized or ratified in writing by the Required Lenders (or such other number or percentage of Lenders as shall be necessary under
the relevant circumstances as provided in Section 9.02) in accordance with Section 9.02;
(b) without limiting
Section 9.22, release any Subsidiary Guarantor from its obligations under the Loan Guaranty (i) if such Person ceases to be a Restricted
Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions or any event or other
circumstance permitted hereunder); provided, that the release of any Subsidiary Guarantor from its obligations under the Loan Guaranty
if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition thereof shall only be
permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect to such release and
the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower is deemed to have
made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an amount equal to the
portion of the fair market value of the net assets of such Person attributable to the Borrower’s equity interest therein as estimated
by the Borrower in good faith and such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f)) at such time and/or
(ii) upon the occurrence of the Termination Date;
(c) subordinate
any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property
that is permitted by Sections 6.02(c), 6.02(d), 6.02(e), 6.02(g), 6.02(l), 6.02(m), 6.02(n),
6.02(o), 6.02(q), 6.02(r), 6.02(u), 6.02(v)(ii), 6.02(x), 6.02(y), 6.02(z)(i),
6.02(bb), 6.02(cc), 6.02(dd), 6.02(ee), 6.02(ff), 6.02(gg), 6.02(hh), 6.02(ii),
6.02(ll), 6.02(tt) and 6.02(uu) (and any Refinancing Indebtedness in respect of any thereof to the extent such Refinancing
Indebtedness is permitted to be secured under Section 6.02(k)); and
(d) enter into
subordination, intercreditor, collateral trust and/or similar agreements (and any amendments thereof) with respect to Indebtedness (including
any Acceptable Intercreditor Agreement and any amendment thereto) that is (i) required or permitted to be subordinated hereunder or pari
passu with the Liens securing the Obligations and/or (ii) secured by Liens, and which Indebtedness contemplates an intercreditor,
subordination, collateral trust or similar agreement.
Upon the request
of the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release
or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Loan
Guaranty or its Lien on any Collateral pursuant to this Article 8. In each case as specified in this Article 8, the Administrative
Agent will (and each Lender hereby authorizes the Administrative Agent to), at the Borrower’s expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from
the assignment and security interest granted under the Collateral Documents or to subordinate its interest therein, or to release such
Loan Party from its obligations under the Loan Guaranty, in each case in accordance with the terms of the Loan Documents and this Article
8. The parties hereto acknowledge and agree that the Administrative Agent may rely conclusively as to any of the matters described
in this Section 9.02 and Section 9.22 (including as to its authority hereunder and thereunder) on a certificate or similar
instrument provided to it by any Loan Party without further inquiry or investigation, which certificate shall be delivered to the Administrative
Agent by the Loan Parties upon request.
The Administrative Agent
is authorized to enter into the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any other intercreditor, subordination,
collateral trust or similar agreement contemplated hereby with respect to any Indebtedness (i) that is (A) required or permitted to be
subordinated hereunder or pari passu with the Liens securing the Obligations and/or (B) secured by Liens and (ii) with respect to which
Indebtedness and/or Liens, this Agreement contemplates an intercreditor, subordination, collateral trust or similar agreement (any such
other intercreditor, subordination, collateral trust and/or similar agreement, an “Additional Agreement”), and each
Secured Party acknowledges that the Intercreditor Agreement, any other Acceptable Intercreditor Agreement and any Additional Agreement
is binding upon them. Each Secured Party hereby (a) acknowledges that it has received a copy of the Intercreditor Agreement and consents
to the subordination of the Liens on the Collateral securing the Obligations on the terms set forth in the Intercreditor Agreement, (b)
agrees that it will be bound by, and will not take any action contrary to, the provisions of the Intercreditor Agreement, any other Acceptable
Intercreditor Agreement or any Additional Agreement and (c) authorizes and instructs the Administrative Agent to enter into the Intercreditor
Agreement or any Additional Agreement (including any Acceptable Intercreditor Agreement) and to subject the Liens on the Collateral securing
the Obligations to the provisions thereof. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit
to the Borrower, and the Secured Parties are intended third-party beneficiaries of such provisions and the provisions of the Intercreditor
Agreement, any Acceptable Intercreditor Agreement and/or any other Additional Agreement.
To the extent that
the Administrative Agent (or any Affiliate thereof) is not reimbursed and indemnified by the Borrower in accordance with the terms of
this Agreement, the Lenders will reimburse and indemnify the Administrative Agent (and any Affiliate thereof) in proportion to their respective
Applicable Percentages (determined as if there were no Defaulting Lenders) for and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by the Administrative Agent (or any Affiliate thereof) in performing its duties hereunder or under any other
Loan Document or Credit Support Document or in any way relating to or arising out of this Agreement or any other Loan Document or Credit
Support Document; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or such affiliate’s)
gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non- appealable decision).
ARTICLE 9 MISCELLANEOUS
Section 9.01. Notices.
(a) Except in the
case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by facsimile or email, as follows:
(i) if to any Loan
Party, to such Loan Party in the care of Holdings at:
Bowlero Corp.
222 West 44th Street
New York, New York 10036
Telephone: + 1 212 777-2622
Attention:
Brett I. Parker
Email:
with a copy to (which shall not constitute notice to any Loan
Party):
Atairos Group, Inc.
620 Fifth Avenue, Sixth Floor
New York, New York 10020
Telephone: +1 646 690-5223
Attention:
Rachael A.Wagner
Email:
(ii) if to the Administrative
Agent, at:
JPMorgan Chase Bank, N.A.
JPMorgan Loan Service
500 Stanton Christiana Road
NCC 5, 1st
Floor
Newark, DE 19713
Fax: 1 (302) 634-3301
Email: US_PE_Fund_Financing@jpmorgan.com
Attention: Loan and Agency Services Group/DE Custom Business
with a copy to:
JPMorgan Chase Bank, N.A.
383 Madison Avenue, 5th Floor,
New
York, NY 10179
Fax: 917-849-1663
Email: US_PE_Fund_Financing@jpmorgan.com
Attention: Jeffrey
Davidovitch
(iii) if to any Lender, to it at its address,
facsimile number or email address set forth in its Administrative Questionnaire.
All such notices and other communications
(A) sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when delivered
in person or by courier service and signed for against receipt thereof or three Business Days after dispatch if sent by certified or registered
mail, in each case, delivered, sent or mailed (properly addressed) to the relevant party as provided in this Section 9.01 or in
accordance with the latest unrevoked direction from such party given in accordance with this Section 9.01 or (B) sent by facsimile
shall be deemed to have been given when sent and when receipt has been confirmed by telephone; provided that notices and other
communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours
for the recipient, such notices or other communications shall be deemed to have been given at the opening of business on the next Business
Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in clause
(b) below shall be effective as provided in such clause (b).
(b) Notices and other communications
to the Lenders hereunder may be delivered or furnished by electronic communications (including e-mail and Internet or Intranet websites)
pursuant to procedures set forth herein or otherwise approved by the Administrative Agent. The Administrative Agent or the Borrower (on
behalf of any Loan Party) may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures set forth herein or otherwise approved by it; provided that approval of such procedures may be limited
to particular notices or communications. All such notices and other communications (i) sent to an e-mail address shall be deemed received
upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement); provided that if not given during the normal business
hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business on the next Business
Day for the recipient, and (ii) posted to an Internet or Intranet website shall be deemed received upon the deemed receipt by the intended
recipient at its e-mail address as described in the foregoing clause (b)(i) of notification that such notice or communication
is available and identifying the website address therefor.
(c) Any party hereto
may change its address or facsimile number or other notice information hereunder by notice to the other parties hereto; it being understood
and agreed that the Borrower may provide any such notice to the Administrative Agent as recipient on behalf of itself and each Lender.
Section 9.02. Waivers; Amendments.
(a) No failure
or delay by the Administrative Agent or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps
to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the Lenders hereunder and under any other Loan Document are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure
by any Loan Party therefrom shall in any event be effective unless the same is permitted by this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which it is given. Without limiting the generality of the foregoing,
to the extent permitted by law, the making of a Loan shall not be construed as a waiver of any Default or Event of Default, regardless
of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time.
(b) Subject to
Section 2.14(b) and (c) and clauses (A), (B), (C) and (D) of this Section 9.02(b) and Sections
9.02(c) and (d) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived,
amended or modified, except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders (or the Administrative Agent with the consent of the Required Lenders), with the consent of the Credit Support
Provider or (ii) in the case of any other Loan Document (other than any waiver, amendment or modification to effectuate any modification
thereto expressly contemplated by the terms of such other Loan Document), pursuant to an agreement or agreements in writing entered into
by the Administrative Agent and each Loan Party that is party thereto, with the consent of the Required Lenders and the Credit Support
Provider; provided that, notwithstanding the foregoing:
(A) except with
the consent of each Lender directly and adversely affected thereby (but without requiring the consent of the Required Lenders) and the
Credit Support Provider, no such agreement shall;
(1) increase the
Commitment or Additional Commitment of such Lender; it being understood that no amendment, modification or waiver of, or consent to departure
from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment or mandatory reduction
of the Commitments or Additional Commitments shall constitute an increase of any Commitment or Additional Commitment of such Lender;
(2) reduce or forgive
the principal amount of any Loan owed to such Lender or any amount due to such Lender on any Loan Installment Date (other than, in each
case, any waiver of, or consent to or departure from, any Default or Event of Default or any mandatory prepayment;
(3) (x) extend
the scheduled final maturity of any Loan or (y) postpone any Loan Installment Date, any Interest Payment Date or the date of any scheduled
payment of any fee, in each case payable to such Lender hereunder (in each case, other than any extension for administrative reasons
agreed by the Administrative Agent) (other than, in each case, any waiver of, or consent or departure from, any Default or Event of Default
or any mandatory prepayment; it being understood that no change in the definition of “First Lien Leverage Ratio” or any other
ratio used in the calculation of any mandatory prepayment (including any component definition thereof) shall constitute such an extension
or postponement);
(4) reduce the
rate of interest (other than to waive any Default or Event of Default or obligation of the Borrower to pay interest at the default rate
of interest under Section 2.13(d), which shall only require the consent of the Required Lenders) or the amount of any fee owed
to such Lender;
(5) extend the
expiry date of such Lender’s Commitment or Additional Commitment; it being understood that no amendment, modification or waiver
of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment
or mandatory reduction of the Commitments or Additional Commitments shall constitute an extension of any Commitment or Additional Commitment
of any Lender; and
(6) waive, amend
or modify the provisions of Section 2.18(b) of this Agreement in a manner that would by its terms alter the pro rata sharing of payments
required thereby (except in connection with any transaction permitted under Section 9.02(c) and/or 9.05(g) or as otherwise provided in
this Section 9.02); and
(B) no such agreement shall:
(1) change any
of the provisions of Section 9.02(a) or Section 9.02(b) or the definition of “Required Lenders” to reduce any
voting percentage required to waive, amend or modify any right thereunder or make any determination or grant any consent thereunder, without
the prior written consent of each Lender and the Credit Support Provider;
(2) release all
or substantially all of the Collateral from the Lien granted pursuant to the Loan Documents (except as otherwise permitted herein or in
the other Loan Documents, including pursuant to Article 8 or Section 9.22 hereof or pursuant to any Acceptable Intercreditor
Agreement), without the prior written consent of each Lender and the Credit Support Provider; or
(3) release all or
substantially all of the value of the Guarantees under the Loan Guaranty (except as otherwise permitted herein or in the other Loan Documents,
including pursuant to Article 8 or Section 9.22 hereof), without the prior written consent of each Lender and the Credit Support
Provider;
(C) solely with the
consent of the Required Lenders and the Credit Support Provider, any such agreement may (x) waive, amend or modify Section 6.15
(or the definition of “Core Liquidity”, “Covenant Waiver Conditions,” “Covenant Waiver Period”, “Covenant
Waiver Termination Notice”, “First Lien Leverage Ratio”, “Seasonal Adjustment Factor”, “Seasonal
Adjustment Percentage”, “Total Liquidity” or any component definition of any of the foregoing, in each case, as any
such definition is used solely for purposes of Section 6.15) or waive any Default or Event of Default in respect of Section 6.15
(other than as permitted under clause (y)), (y) waive, amend or modify any condition precedent set forth in Section 4.02
hereof as it pertains to any Revolving Loan and/or Additional Revolving Loan and/or (z) waive any Default or Event of Default that results
from any representation made or deemed made by any Loan Party in any Loan Document in connection with any Credit Extension under the
Revolving Facility being untrue in any material respect as of the date made or deemed made; and
(D) the condition
to each Credit Extension after the Closing Date set forth in Section 4.02(d) shall not be waived by the Administrative Agent, the
Required Lenders or any other Person without the prior written consent of the Credit Support Provider;
provided,
further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder
without the prior written consent of the Administrative Agent.
The Administrative
Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.05, Commitment reductions
or terminations pursuant to Section 2.09, incurrences of Additional Commitments or Additional Loans pursuant to Section 9.02(c)
and reductions or terminations of any such Additional Commitments or Additional Loans. Notwithstanding anything to the contrary herein,
no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment
and any Additional Commitment of any Defaulting Lender may not be increased without the consent of such Defaulting Lender (it being understood
that any Commitment, Additional Commitment or Loan held or deemed held by any Defaulting Lender shall be excluded from any vote hereunder
that requires the consent of any Lender, except as expressly provided in Section 2.21(b)). Notwithstanding the foregoing, this
Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, the Borrower
and the Credit Support Provider (i) to add one or more additional credit facilities to this Agreement and to permit any extension of credit
from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the relevant benefits
of this Agreement and the other Loan Documents and (ii) to include appropriately the Lenders holding such credit facilities in any determination
of the Required Lenders on substantially the same basis as the Lenders prior to such inclusion.
(c) Notwithstanding the foregoing,
this Agreement may be amended:
(i) [reserved], and
(ii) with the written
consent of the Borrower, the Lenders providing the relevant Replacement Revolving Facility and the Credit Support Provider to permit the
refinancing or replacement of all or any portion of any Revolving Credit Commitment or any Additional Revolving Credit Commitment under
the applicable Class (any such Revolving Credit Commitment or Additional Revolving Credit Commitment being refinanced or replaced, a “Replaced
Revolving Facility”) with a replacement revolving facility hereunder (a “Replacement Revolving Facility”)
pursuant to a Refinancing Amendment; provided that:
(A) the aggregate
principal amount of any Replacement Revolving Facility shall not exceed the aggregate principal amount of the Replaced Revolving Facility
(plus (x) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any such additional amounts
are secured, the related Liens are permitted under Section 6.02 and plus (y) the amount of accrued interest, penalties and
premium thereon, any committed but undrawn amounts and underwriting discounts, fees (including upfront fees and original issue discount),
commissions and expenses associated therewith),
(B) no Replacement
Revolving Facility (other than customary bridge loans with a maturity date of not longer than one year; provided that any loans,
notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements
of this clause (B)) may have a final maturity date (or require commitment reductions) prior to the final maturity date of the relevant
Replaced Revolving Facility at the time of such refinancing,
(C) any Replacement
Revolving Facility may be pari passu or junior in right of payment and pari passu (without regard to the control of remedies)
or junior with respect to the Collateral with the remaining portion of the Revolving Credit Commitments or any Additional Revolving Credit
Commitments (provided that if pari passu or junior as to payment or Collateral, such Replacement Revolving Facility shall
be subject to an Acceptable Intercreditor Agreement and may be, at the option of the Borrower, documented in a separate agreement or agreements),
or be unsecured,
(D) if any Replacement
Revolving Facility is secured, it may not be secured by any assets other than the Collateral,
(E) if any Replacement
Revolving Facility is guaranteed, it may not be guaranteed by any Person other than one or more Loan Parties,
(F) to the extent any
non-replaced portion of the Revolving Facility or any Additional Revolving Facility then exists, (1) the borrowing and repayment (except
for (x) payments of interest and fees at different rates on such revolving facilities (and related outstandings), (y) repayments required
upon the Maturity Date of such revolving facilities and (z) repayments made in connection with any permanent repayment and termination
of commitments (subject to clause (3) below)) in respect of any Replacement Revolving Facility after the effective date of such
Replacement Revolving Facility shall be made on a pro rata basis with such portion of the Revolving Facility or the relevant Additional
Revolving Facility, as applicable, (2) [reserved] and (3) the permanent repayment of Loans with respect to, and termination of commitments
under, any Replacement Revolving Facility after the effective date of such Replacement Revolving Facility shall be made on a pro rata
basis with such portion of the Revolving Facility and/or any Additional Revolving Facility, except that the Borrower shall be permitted
to permanently repay and terminate commitments of any such revolving facility on a greater than pro rata basis (I) as compared
to any other Revolving Facilities with a later Maturity Date than such Revolving Facility and (II) to the extent refinanced or replaced
with a Replacement Revolving Facility or Replacement Debt,
(G) any Replacement
Revolving Facility shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F), optional prepayment
and redemption terms as the Borrower and the lenders providing such Replacement Revolving Facility may agree,
(H) [reserved],
(I) the covenants
and events of default of any Replacement Revolving Facility (excluding pricing, interest, fees, rate floors, premiums, optional
prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be (i)
substantially identical to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders
providing such Replacement Revolving Facility than those applicable to the Replaced Revolving Facility (other than covenants or
other provisions applicable only to periods after the latest Maturity Date of such Replaced Revolving Facility (in each case, as of
the date of incurrence of the relevant Replacement Revolving Facility), (ii) then-current market terms (as determined by the
Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the
applicable type of Indebtedness or (iii) reasonably acceptable to the Administrative Agent (it being agreed that covenants and
events of default of any Replacement Revolving Facility that are more favorable to the lenders or the agent of such Replacement
Revolving Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents pursuant to
the applicable Refinancing Amendment shall be deemed satisfactory to the Administrative Agent); provided, that if any
financial maintenance covenant is added to any such Replacement Revolving Facility and such financial maintenance covenant is more
favorable to the lenders under such Replacement Revolving Facility than the Financial Covenant, either (x) such financial
maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders
shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the
Borrower, any applicable “equity cure” provisions with respect to any such financial maintenance covenant); and
(J) the commitments
in respect of the Replaced Revolving Facility shall be terminated, and all loans outstanding thereunder and all fees thereunder and payable
in connection therewith shall be paid in full, in each case on the date such Replacement Revolving Facility is implemented.
Each party hereto hereby
agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall (with the consent of the Credit Support
Provider) be amended by the Borrower, the Administrative Agent and the lenders providing the relevant Replacement Revolving
Facility, as applicable, to the extent (but only to the extent) necessary to reflect the existence and terms of such Replacement
Revolving Facility, as applicable, incurred or implemented pursuant thereto (including any amendment necessary to treat the loans
and commitments subject thereto as a separate “tranche” and “Class” of Loans and/or commitments hereunder).
It is understood that any Lender approached to provide all or a portion of any Replacement Revolving Facility may elect or decline,
in its sole discretion, to provide such Replacement Revolving Facility.
(d) Notwithstanding
anything to the contrary contained in this Section 9.02 or any other provision of this Agreement or any provision of any other
Loan Document, (i) the Borrower and the Administrative Agent may, with the consent of the Credit Support Provider but without the input
or consent of any Lender, amend, supplement and/or waive any guaranty, collateral security agreement, pledge agreement and/or related
document (if any) executed in connection with this Agreement to (x) comply with any Requirements of Law or the advice of counsel or (y)
cause any such guaranty, collateral security agreement, pledge agreement or other document to be consistent with this Agreement and/or
the relevant other Loan Documents, (ii) the Borrower, the Credit Support Provider and the Administrative Agent may, without the input
or consent of any other Lender (other than the relevant Lenders providing Loans under such Sections), effect amendments to this Agreement
and the other Loan Documents as may be necessary in the reasonable opinion of the Borrower and the Administrative Agent to effect the
provisions of Sections 5.12, 5.14, 5.15, 5.16 or 9.02(c), or any other provision specifying that any
waiver, amendment or modification may be made with the consent or approval of the Administrative Agent, (iii) if the Administrative Agent,
the Credit Support Provider and the Borrower have jointly identified any ambiguity, mistake, defect, inconsistency, obvious error or any
error or omission of a technical or administrative nature or any necessary or desirable technical change, in each case, in any provision
of any Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision solely to address such
matter as reasonably determined by them acting jointly without the input or consent of any Lender, (iv) the Administrative Agent, the
Credit Support Provider and the Borrower may amend, restate, amend and restate or otherwise modify the Intercreditor Agreement or any
Acceptable Intercreditor Agreement as provided therein or to give effect thereto or to carry out the purpose thereof without the input
or consent of any Lender and (v) any amendment, waiver or modification of any term or provision that directly affects Lenders under one
or more Classes and does not directly affect Lenders under one or more other Classes may be effected with the consent of Lenders owning
50% of the aggregate commitments or Loans of such directly affected Class in lieu of the consent of the Required Lenders.
(e) Notwithstanding
anything to the contrary contained in this Section 9.02, if the Revolving Lenders are to receive the benefit of any additional or modified
financial maintenance covenant as a result of the application of the provisions set forth in Section 9.02(c)(ii)(I), then the Administrative
Agent and the Borrower shall be permitted, without the need for consent by any other Person, to effectuate such provisions by promptly
entering into an amendment to this Agreement.
Section 9.03. Expenses; Indemnity.
(a) Subject to Section 9.05(f),
the Borrower shall pay, upon presentation of a summary statement, together with any supporting documentation reasonably requested by
the Borrower, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent, Credit Support
Provider and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented
out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary,
of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the preparation,
execution, delivery and administration of the Loan Documents, the Credit Support Documents and any related documentation, including in
connection with any amendment, modification or waiver of any provision of any Loan Document or Credit Support Document (whether or not
the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or
waiver was requested by the Borrower) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent,
the Arranger, Credit Support Provider or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and
expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel
to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons,
taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan
Documents or the Credit Support Documents, including their respective rights under this Section, or in connection with the Loans made
hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable
by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with
backup documentation supporting the relevant reimbursement request.
(b) The Borrower
shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each
such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees,
disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in
any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest
after the affected Person notifies the Borrower of such conflict, (x) one additional counsel to all similarly situated affected Indemnitees,
taken as a whole, and (y) one additional local counsel in any relevant material jurisdiction to all similarly situated affected Indemnitees,
taken as a whole), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution
or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their
respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby (except
for any Taxes, which shall be governed exclusively by Section 2.17), (ii) the use of the proceeds of the Loans or (iii) any actual
or prospective claim, litigation, investigation or proceeding relating to any of the foregoing (including any matters arising under Environmental
Law), whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless
of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates);
provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage or liability
(i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement
referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Party
or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability
has resulted from such Person’s or a Related Party of such Person’s material breach of the Loan Documents or (ii) arises out
of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation,
investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative
Agent or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its subsidiaries. Each Indemnitee
shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee
for any fees, expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof.
All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a
written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after
receipt by the Borrower of an invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation
supporting the relevant reimbursement request. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes
that represent losses, claims, damages or liabilities arising from any non-Tax claim.
(c) The Borrower
shall not be liable for any settlement or compromise of, or the consent to the ending of any judgment with respect to, any proceeding
effected without its consent (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is so settled,
compromised or consented with the Borrower’s written consent, or if there is a final judgment entered against any Indemnitee in
any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above.
The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld,
conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought
hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims
that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or
culpability.
Section 9.04. Waiver
of Claim. To the extent permitted by applicable law, no party to this Agreement shall assert, and each hereby waives, any claim against
any other party hereto or any Related Party thereof, on any theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof, except, in the case of any claim by any Indemnitee
against the Borrower, to the extent such damages would otherwise be subject to indemnification pursuant to the terms of Section 9.03.
Section 9.05. Successors and Assigns.
(a) The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns;
provided that (i) except as provided under Section 6.07 and/or pursuant to any Permitted Reorganization, the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted assignment or transfer
not complying with the terms of this Section shall be null and void and, with respect to any attempted assignment or transfer to any Disqualified
Institution, subject to Section 9.05(f)). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and permitted assigns, Participants (to the extent provided in paragraph
(c) of this Section), the Credit Support Provider and, to the extent expressly contemplated hereby, the Related Parties of each of
the Arranger, the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
Any Successor Borrower permitted pursuant to a transaction referred to in clause (i) of the proviso above, shall thereafter be deemed
to be and become the “Borrower” for all purposes hereunder, and such initial Borrower shall be released from its Obligations
in respect of this Agreement and the other Loan Documents.
(b) (i) Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may assign all or a portion of its rights and obligations under
this Agreement (including all or a portion of any Loan or Additional Commitment added pursuant to Section 9.02(c) at the time owing
to it) to (1) Credit Support Provider (or any Affiliate of Credit Support Provider expressly identified by Credit Support Provider at
such time of assignment) pursuant to and in accordance with the Credit Support Documents (or as otherwise agreed by the Administrative
Agent and the Credit Support Provider) or (2) one or more Eligible Assignees with, in the case of this clause (2), the prior written consent
(not to be unreasonably withheld or delayed) of:
(A) the Borrower;
provided that no consent of the Borrower shall be required during the continuance of (x) an Event of Default under Section 7.01(a)
or Sections 7.01(f) or (g) (solely with respect to the Borrower) or (y) the continuance of a Pledgor Event of Default under
Section 10(a) or Section 10(g) or (h) under the Credit Support Provider Security Agreement;
(B) the Credit
Support Provider; provided that no consent of the Credit Support Provider shall be required during the continuance of a Pledgor
Event of Default under Section 10(a) or Section 10(g) or (h) under the Credit Support Provider Security Agreement;
and
(C) the Administrative
Agent; provided, that no consent of the Administrative Agent shall be required for any assignment to another Lender, any Affiliate
of a Lender, which otherwise complies with the terms of this Section 9.05;
provided, that notwithstanding
the foregoing, the Borrower may withhold its consent to any assignment to any Person that is not expressly a Disqualified Institution
but is known by the Borrower to be an Affiliate of a Disqualified Institution without regard as to whether such Person is identifiable
as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name.
(ii) Assignments shall be subject
to the following additional conditions:
(A) except in
the case of any assignment to another Lender, any Affiliate of any Lender or any assignment of the entire remaining amount of the relevant
assigning Lender’s Loans or commitments of any Class, the principal amount of Loans or commitments of the assigning Lender subject
to the relevant assignment (determined as of the date on which the Assignment Agreement with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $5,000,000 in the case of Revolving Loans, Additional Revolving Loans, Revolving Credit
Commitments or Additional Revolving Credit Commitments unless the Borrower and the Administrative Agent otherwise consent to a lesser
amount, and in each case any assigned amount may exceed such minimum amount in an integral multiple of $1,000,000 in excess thereof;
(B) any partial
assignment shall be made as an assignment of a proportionate part of all the relevant assigning Lender’s rights and obligations
under this Agreement;
(C) the parties
to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement via an electronic settlement system acceptable
to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and shall pay to the Administrative Agent
a processing and recordation fee of $3,500; provided that (x) such fee may be waived or reduced in the sole discretion of the Administrative
Agent and (y) such fee shall not apply for any assignment to Credit Support Provider (or any Affiliate of Credit Support Provider expressly
identified by Credit Support Provider) pursuant to and in accordance with the Credit Support Documents;
(D) the relevant
Eligible Assignee, if it is not a Lender, shall deliver on or prior to the effective date of such assignment, to the Administrative
Agent and the Borrower (irrespective of whether an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g)
exists) (1) an Administrative Questionnaire and (2) any form required under Section 2.17; and
(E) Except with
respect to any assignment to the Credit Support Provider (or an Affiliate thereof) the assigning Lender shall, concurrently with its delivery
of the same to the Administrative Agent, provide the Borrower with a copy of its request for such assignment, which shall include the
name of the prospective assignee (irrespective of whether an Event of Default under Section 7.01(a) or Section 7.01(f) or Section 7.01(g)
exists).
(iii) Except as otherwise
provided in Section 9.05(g), subject to the acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section,
from and after the effective date specified in any Assignment Agreement, the Eligible Assignee thereunder shall be a party hereto and,
to the extent of the interest assigned pursuant to such Assignment Agreement, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment Agreement, be released from its obligations
under this Agreement (and, in the case of an Assignment Agreement covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be (A) entitled to the benefits of Sections
2.15, 2.16, 2.17 and 9.03 with respect to facts and circumstances occurring on or prior to the effective date
of such assignment and (B) subject to its obligations thereunder and under Section 9.13). If any assignment by any Lender holding
any Promissory Note is made after the issuance of such Promissory Note, the assigning Lender shall, upon the effectiveness of such assignment
or as promptly thereafter as practicable, surrender such Promissory Note to the Administrative Agent for cancellation, and, if requested
by either the assignee or the assigning Lender, the Borrower shall issue and deliver a new Promissory Note to such assignee and/or to
such assigning Lender, with appropriate insertions, to reflect the new commitments and/or outstanding Loans of the assignee and/or the
assigning Lender.
(iv) The Administrative
Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment Agreement delivered
to it and a register for the recordation of the names and addresses of the Lenders and their respective successors and assigns, and the
commitment of, and principal amount of and interest on the Loans owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”). Failure to make any such recordation, or any error in such recordation, shall not affect the Borrower’s
obligations in respect of such Loans. The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative
Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and each Lender (but only as to its
own holdings), at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt
of a duly completed Assignment Agreement executed by an assigning Lender and an Eligible Assignee, the Eligible Assignee’s completed
Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the assignee is already a
Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and any written
consent to the relevant assignment required by paragraph (b) of this Section, the Administrative Agent shall promptly accept such
Assignment Agreement and record the information contained therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this paragraph.
(vi) By executing and
delivering an Assignment Agreement, the assigning Lender and the Eligible Assignee thereunder shall be deemed to confirm and agree with
each other and the other parties hereto as follows: (A) such assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that the amount of its commitments, and the outstanding balances
of its Loans, in each case without giving effect to any assignment thereof which has not become effective, are as set forth in such Assignment
Agreement, (B) except as set forth in clause (A) above, such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or Credit Support Document
or any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any Restricted Subsidiary
or the performance or observance by the Borrower or any Restricted Subsidiary of any of its obligations under this Agreement, any other
Loan Document or Credit Support Document or any other instrument or document furnished pursuant hereto; (C) such assignee represents and
warrants that it is an Eligible Assignee (and not a Disqualified Institution), legally authorized to enter into such Assignment Agreement;
(D) such assignee confirms that it has received a copy of this Agreement, the Intercreditor Agreement and each other then-applicable Acceptable
Intercreditor Agreement, together with copies of the financial statements referred to in Section 4.01(c) or the most recent financial
statements delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment Agreement; (E) such assignee will independently and without reliance upon
the Administrative Agent, the assigning Lender or any other Lender and based on such documents and information as it deems appropriate
at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (F) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as
are delegated to the Administrative Agent, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G)
such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(c) (i) Any Lender may, without
the consent of the Borrower, the Administrative Agent or any other Lender, but only with the consent (not to be unreasonably withheld
or delayed) of the Credit Support Provider, sell participations to any bank or other entity (other than to any Disqualified Institution
or an Affiliate thereof referred to in the last proviso of clause (b)(i) of this Section 9.05 and identified to the Administrative
Agent as such, any Defaulting Lender or any natural Person) (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its commitments and the Loans owing to it); provided
that no consent of the Credit Support Provider shall be required during the existence of a Pledgor Event of Default under Section
10(a) or Section 10(g) or (h) under the Credit Support Provider Security Agreement; provided further that (A)
such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any
agreement or instrument pursuant to which any Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without the consent of the relevant Participant, agree to
any amendment, modification or waiver described in (x) clause (A) of the first proviso to Section 9.02(b) that directly
and adversely affects the Loans or commitments in which such Participant has an interest and (y) clauses (B)(1), (2) or
(3) of the first proviso to Section 9.02(b). Subject to paragraph (c)(ii) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section (it being understood that the documentation
required under Section 2.17(f) shall be delivered to the participating Lender, and if additional amounts are required to be paid
pursuant to Section 2.17(a) or Section 2.17(c), to the Borrower). To the extent permitted by applicable Requirements of
Law, each Participant also shall be entitled to the benefits of Section 9.09 as though it were a Lender; provided that
such Participant agrees to be subject to Section 2.18(c) as though it were a Lender.
(i) No Participant
shall be entitled to receive any greater payment under Sections 2.15, 2.16 or 2.17 than the participating Lender
would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent (in its sole discretion) expressly acknowledging such Participant
may receive a greater benefit. Any Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 2.17 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(f) as though it were a Lender and to deliver the tax forms required to
claim an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document or Credit Support Document
and then only to the extent of any amount to which such Lender would be entitled in the absence of any such participation (it being understood
that the documentation required under Section 2.17(f) shall be delivered to the participating Lender, and if additional amounts
are required to be paid pursuant to Section 2.17(a) or Section 2.17(c), to the Borrower).
Each Lender that
sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it
enters the name and address of each Participant and their respective successors and assigns, and the principal amounts and stated interest
of each Participant’s interest in the Loans or other obligations under the Loan Documents and Credit Support Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register
(including the identity of any Participant or any information relating to any Participant’s interest in any Commitment, Loan or
any other obligation under any Loan Document or Credit Support Document) to any Person except to the extent that such disclosure is necessary
to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the Treasury Regulations.
The entries in the Participant Register shall be conclusive absent manifest error, and each Lender shall treat each Person whose name
is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice
to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility
for maintaining a Participant Register.
(d) (i) Any Lender
may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (other than to any Disqualified
Institution, Defaulting Lender or any natural person) to secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over such Lender, and this Section
9.05 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release any Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(ii) No Lender may
at any time enter into a total return swap, total rate of return swap, credit default swap or other derivative instrument under which
any Loan or other Obligation hereunder is a reference obligation with any counterparty that is a Disqualified Institution, in each case
unless the terms of such Derivative Transaction do not allow for such Lender to provide Confidential Information regarding Holdings or
its subsidiaries to such counterparty and such Lender shall not agree to allow such counterparty (or its Affiliates) to direct the vote
of such Lender with respect to any matter regarding the Facilities (including in any bankruptcy or other restructuring transaction).
(e) Notwithstanding anything
to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle
(an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and
the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC
to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) in no event may any Lender grant any option to provide
to the Borrower all or any part of any Loan that such Granting Lender would have otherwise been obligated to make to the Borrower pursuant
to this Agreement to any Disqualified Institution or Defaulting Lender. The making of any Loan by an SPC hereunder shall utilize the
Commitment or Additional Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.
Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs
or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Section
2.15, 2.16 or 2.17) and no SPC shall be entitled to any greater amount under Section 2.15, 2.16 or 2.17
or any other provision of this Agreement or any other Loan Document than the Granting Lender would have been entitled to receive,
unless the grant to such SPC is made with the prior written consent of the Borrower (in its sole discretion), expressly acknowledging
that such SPC’s entitlement to benefits under Section 2.15, 2.16 or 2.17 is not limited to what the Granting
Lender would have been entitled to receive absent the grant to the SPC, (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the Granting Lender) and (iii) the Granting Lender shall for
all purposes including approval of any amendment, waiver or other modification of any provision of the Loan Documents, remain the Lender
of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper
or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the Requirements of Law of the U.S. or any State
thereof; provided that (i) such SPC’s Granting Lender is in compliance in all material respects with its obligations to
the Borrower hereunder and (ii) each Lender designating any SPC hereby agrees to indemnify, save and hold harmless each other party hereto
for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such SPC during such period
of forbearance. In addition, notwithstanding anything to the contrary contained in this Section 9.05, any SPC may (i) with notice
to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guaranty or credit or liquidity
enhancement to such SPC.
(f) (i) Any assignment or participation
by a Lender without the Borrower’s and the Credit Support Provider’s consent (A) to any Disqualified Institution or any Affiliate
thereof or (B) to the extent the Borrower’s or the Credit Support Provider’s consent, as applicable, is required under this
Section 9.05, to any other Person, shall be null and void, and the Borrower and the Credit Support Provider shall be entitled
to seek specific performance to unwind any such assignment or participation and/or specifically enforce this Section 9.05(f) in
addition to injunctive relief (without posting a bond or presenting evidence of irreparable harm) or any other remedies available to
the Borrower at law or in equity; it being understood and agreed that the Credit Support Provider, Holdings, the Borrower and its subsidiaries
will suffer irreparable harm if any Lender breaches any obligation under this Section 9.05 as it relates to any assignment, participation
or pledge of any Loan or Commitment to any Disqualified Institution or any Affiliate thereof or any other Person to whom the Borrower’s
consent is required but not obtained. Nothing in this Section 9.05(f) shall be deemed to prejudice any right or remedy that the
Credit Support Provider, Holdings or the Borrower may otherwise have at law or equity or pursuant to Section 9.05(f)(ii) below;
(i) If any
assignment or participation under this Section 9.05 is made without the Credit Support Provider’s prior written consent
(such assignee and/or participant, a “Disqualified Person”), then the Borrower may (and, at the direction of the
Credit Support Provider, shall), at its sole expense and effort, upon notice to the applicable Disqualified Person and the
Administrative Agent, (A) terminate any Commitment of such Disqualified Person and repay all obligations of the Borrower owing to
such Disqualified Person, (B) [reserved] and/or (C) require such Disqualified Person to assign, without recourse (in
accordance with and subject to the restrictions contained in this Section 9.05), all of its interests, rights and obligations
under this Agreement to one or more Eligible Assignees and if such person does not execute and deliver to the Administrative Agent a
duly executed Assignment Agreement reflecting such assignment within five Business Days of the date on which the Eligible Assignee
executes and delivers such Assignment Agreement to such person, then such person shall be deemed to have executed and delivered such
Assignment Agreement without any action on its part; provided that (I) in the case of clauses (A) and (B), the
Borrower shall not be liable to the relevant Disqualified Person under Section 2.16 if any LIBO Rate Loan owing to such
Disqualified Person is repaid or purchased other than on the last day of the Interest Period relating thereto, (II) in the case of clause
(C), the relevant assignment shall otherwise comply with this Section 9.05 (except that no registration and processing
fee required under this Section 9.05 shall be required with any assignment pursuant to this paragraph) and (III) in no event
shall such Disqualified Person be entitled to receive amounts set forth in Section 2.13(d). Further, any Disqualified Person
identified by the Borrower to the Administrative Agent (A) shall not be permitted to (x) receive information or reporting provided
by any Loan Party, any Credit Support Provider, the Administrative Agent or any Lender and/or (y) attend and/or participate in
conference calls or meetings attended solely by the Lenders and the Administrative Agent, (B) (x) shall not for purposes of
determining whether the Required Lenders or the majority Lenders under any Class have (i) consented (or not consented) to any
amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by
any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required the
Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan
Document, have a right to consent (or not consent), otherwise act or direct or require the Administrative Agent or any Lender to
take (or refrain from taking) any such action; it being understood that all Loans held by any Disqualified Person shall be deemed to
be not outstanding for all purposes of calculating whether the Required Lenders, majority Lenders under any Class or all Lenders
have taken any action and (y) shall be deemed to vote in the same proportion as Lenders that are not Disqualified Persons in any
proceeding under any Debtor Relief Law commenced by or against the Borrower or any other Loan Party and (C) shall not be entitled to
receive the benefits of Section 9.03. For the sake of clarity, the provisions in this Section 9.05(f) shall not apply
to any Person that is an assignee of any Disqualified Person, if such assignee is not a Disqualified Person;
(ii) Upon the request
of any Lender, the Administrative Agent may and the Borrower will make the list of Disqualified Institutions (other than any Disqualified
Institution that is a reasonably identifiable Affiliate of another Disqualified Institution on the basis of such Person’s name)
at the relevant time and such Lender may provide the list to any potential assignee for the purpose of verifying whether such Person is
a Disqualified Institution, in each case so long as such Lender and such potential assignee agree to keep the list of Disqualified Institutions
confidential in accordance with the terms hereof;
(iii) The Borrower
shall deliver the list of Disqualified Institutions and any updates, supplements or modifications thereto to JPMDQ_Contact@jpmorgan.com
and any such updates, supplements or modifications thereto shall only become effective 3 days after such notice. In the event the list
of Disqualified Institutions is not in accordance with the foregoing, it shall be deemed not received and not effective (except with respect
to any delivery on or prior to the Closing Date); and
(iv) Notwithstanding
anything herein to the contrary, the Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain,
inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions.
(g) Any such Persons
who, pursuant to this Section 9.05, is involved in an assignment of participation shall be required to enter into a confidentiality
agreement with substantially the same terms as the Confidentiality Agreement referred to in the Credit Support Provide Security Agreement
(irrespective of any expiry date contained therein) (or such other terms as may be reasonably acceptable to the Credit Support Provider),
immediately upon such assignment or participation.
Section 9.06. Survival.
All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents, or by the Credit Support Parties
in the Credit Support Documents, and in the certificates or other instruments delivered in connection with or pursuant to this Agreement
or any other Loan Document or any Credit Support Document shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of the Loan Documents and the making of any Loans regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative Agent may have had notice or knowledge of any Default or
Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force
and effect until the Termination Date. The provisions of Sections 2.15, 2.16, 2.17, 9.03 and 9.13
and Article 8 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of Revolving Credit Commitment or any Additional Commitment, the occurrence
of the Termination Date or the termination of this Agreement or any provision hereof but in each case, subject to the limitations set
forth in this Agreement.
Section 9.07. Counterparts;
Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the other Loan Documents, the Credit Support Documents and the Fee Letter constitute the entire agreement among the
parties to such agreements relating to the subject matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. This Agreement shall become effective when it has been executed by Holdings,
the Borrower and the Administrative Agent and when the Administrative Agent has received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. Delivery of an executed counterpart of a signature page to
this Agreement by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a
manually executed counterpart of this Agreement.
Section 9.08. Severability.
To the extent permitted by applicable Requirements of Law, any provision of any Loan Document held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 9.09. Right
of Setoff. At any time when an Event of Default exists, upon the written consent of the Administrative Agent, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by applicable Requirements of Law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations (in any currency)
at any time owing by the Administrative Agent or such Lender to or for the credit or the account of the Borrower or any Loan Party against
any of and all the Obligations held by the Administrative Agent or such Lender, irrespective of whether or not the Administrative Agent
or such Lender shall have made any demand under the Loan Documents and although such obligations may be contingent or unmatured or are
owed to a branch or office of such Lender different than the branch or office holding such deposit or obligation on such Indebtedness.
Any applicable Lender shall promptly notify the Borrower and the Administrative Agent of such set-off or application; provided
that any failure to give or any delay in giving such notice shall not affect the validity of any such set-off or application under this
Section. The rights of each Lender and the Administrative Agent under this Section are in addition to other rights and remedies (including
other rights of setoff) which such Lender or the Administrative Agent may have.
Section 9.10. Governing Law; Jurisdiction; Consent to Service
of Process.
(a) THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING
UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS), WHETHER
IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
(b) EACH PARTY HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR
NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY
APPLICABLE REQUIREMENTS OF LAW, FEDERAL COURT. EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY
REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE REQUIREMENTS OF LAW. EACH
PARTY HERETO AGREES THAT THE ADMINISTRATIVE AGENT RETAINS THE RIGHT TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY
OTHER JURISDICTION SOLELY IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT.
(c) EACH PARTY
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
(d) TO THE EXTENT
PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON
IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL) DIRECTED TO
IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01. EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION TO SUCH SERVICE OF
PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY LOAN
DOCUMENT THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT
OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE REQUIREMENTS OF LAW.
Section 9.11. Waiver
of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY)
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
Section 9.12. Headings.
Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement
and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Section 9.13. Confidentiality.
Each of the Administrative Agent, each Lender and each Arranger agrees (and each Lender agrees to cause its SPC, if any) to maintain
the confidentiality of the Confidential Information (as defined below), except that Confidential Information may be disclosed (a) to
its and its Affiliates’ directors, officers, managers, employees, independent auditors, or other experts and advisors, including
accountants, legal counsel and other advisors (collectively, the “Representatives”) on a confidential, “need
to know” basis solely in connection with the transactions contemplated hereby and who are informed of the confidential nature of
the Confidential Information and are or have been advised of their obligation to keep the Confidential Information of this type confidential;
provided that such Person shall be responsible for its Affiliates’ and their Representatives’ compliance with this
paragraph; provided, further, that unless the Borrower otherwise consents, no such disclosure shall be made by the Administrative
Agent, any Arranger, any Lender or any Affiliate or Representative thereof to any Affiliate or Representative of the Administrative Agent,
any Arranger, or any Lender that is a Disqualified Institution, (b) upon the demand or request of any regulatory or governmental authority
having jurisdiction over such Person or its Affiliates (in which case such Person shall, except with respect to any audit or examination
conducted by bank accountants or any Governmental Authority or regulatory authority exercising examination or regulatory authority, to
the extent permitted by applicable Requirements of Law, (i) inform the Borrower promptly in advance thereof and (ii) ensure that any
information so disclosed is accorded confidential treatment), (c) to the extent compelled by legal process in, or reasonably necessary
to, the defense of such legal, judicial or administrative proceeding, in any legal, judicial or administrative proceeding or otherwise
as required by applicable Requirements of Law (in which case such Person shall (i) to the extent permitted by law, inform the Borrower
promptly in advance thereof, (ii) ensure that any such information so disclosed is accorded confidential treatment and (iii) allow the
Borrower a reasonable opportunity to object to such disclosure in such proceeding), (d) to any other party to this Agreement, (e) subject
to an acknowledgment and agreement by the relevant recipient that the Confidential Information is being disseminated on a confidential
basis (on substantially the terms set forth in this paragraph or as otherwise reasonably acceptable to the Borrower and the Administrative
Agent) in accordance with the standard syndication process of the Arranger or market standards for dissemination of the relevant type
of information, which shall in any event require “click through” or other affirmative action on the part of the recipient
to access the Confidential Information and acknowledge its confidentiality obligations in respect thereof, to (i) any Eligible Assignee
of or Participant in, or any prospective Eligible Assignee of or prospective Participant in, any of its rights or obligations under this
Agreement, including any SPC (in each case other than a Disqualified Institution), (ii) any pledgee referred to in Section 9.05,
(iii) any actual or prospective direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction (including
any credit default swap) or similar derivative product under which payments are to be made by reference to the Borrower and its Obligations,
(iv) any actual or prospective direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction (including
any credit default swap) or similar derivative product to which any Loan Party is a party and (v) subject to the Borrower’s prior
approval of the information to be disclosed (not to be unreasonably withheld or delayed), to Moody’s or S&P on a confidential
basis in connection with obtaining or maintaining ratings as required under Section 5.13, (f) with the prior written consent
of the Borrower and (g) to the extent the Confidential Information becomes publicly available other than as a result of a breach of this
Section by such Person, its Affiliates or their respective Representatives. For purposes of this Section, “Confidential Information”
means all information relating to Holdings, the Borrower and/or any of its subsidiaries and their respective businesses, the Sponsor
or the Transactions (including any information obtained by the Administrative Agent, any Lender or any Arranger, or any of their respective
Affiliates or Representatives, based on a review of the books and records relating to Holdings, the Borrower and/or any of its subsidiaries
and their respective Affiliates from time to time, including prior to the date hereof) other than any such information that is publicly
available to the Administrative Agent or any Arranger or Lender on a non-confidential basis prior to disclosure by Holdings, the Borrower
or any of its subsidiaries. For the avoidance of doubt, in no event shall any disclosure of any Confidential Information be made to Person
that is a Disqualified Institution at the time of disclosure.
Section 9.14. No Fiduciary
Duty. Each of the Administrative Agent, the Arranger, each Lender and their respective Affiliates (collectively, solely for purposes
of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Loan Parties, their
stockholders and/or their respective affiliates. Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed
to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such
Loan Party, its respective stockholders or its respective affiliates, on the other. Each Loan Party acknowledges and agrees that: (i)
the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-
length commercial transactions between the Lenders, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith
and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its
respective stockholders or its respective affiliates with respect to the transactions contemplated hereby (or the exercise of rights
or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising
or will advise any Loan Party, its respective stockholders or its respective Affiliates on other matters) or any other obligation to
any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and
not as the agent or fiduciary of such Loan Party, its respective management, stockholders, creditors or any other Person. Each Loan Party
acknowledges and agrees that such Loan Party has consulted its own legal, tax and financial advisors to the extent it deemed appropriate
and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.
Section 9.15. Several
Obligations. The respective obligations of the Lenders hereunder are several and not joint and the failure of any Lender to make any
Loan or perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder.
Section 9.16. USA
PATRIOT Act. Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Loan Parties that pursuant
to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party
in accordance with the USA PATRIOT Act.
Section 9.17. Disclosure.
Each Loan Party and each Lender hereby acknowledges and agrees that the Administrative Agent and/or its Affiliates from time to time may
hold investments in, make other loans to or have other relationships with any of the Loan Parties and their respective Affiliates.
Section 9.18. Appointment
for Perfection. Each Lender hereby appoints each other Lender as its agent for the purpose of perfecting Liens for the benefit of
the Administrative Agent and the Lenders, in assets which, in accordance with Article 9 of the UCC or any other applicable Requirements
of Law can be perfected only by possession. If any Lender (other than the Administrative Agent) obtains possession of any Collateral or
Credit Support Collateral, such Lender shall notify the Administrative Agent thereof; and, promptly upon the Administrative Agent’s
request therefor shall deliver such Collateral or Credit Support Collateral to the Administrative Agent or otherwise deal with such Collateral
or Credit Support Collateral in accordance with the Administrative Agent’s instructions.
Section 9.19. Interest
Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively, the “Applicable
Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with applicable Requirements of Law, the rate of interest payable
in respect of such Loan hereunder, together with all Applicable Charges payable in respect thereof, shall be limited to the Maximum Rate
and, to the extent lawful, the interest and Applicable Charges that would have been payable in respect of such Loan but were not payable
as a result of the operation of this Section shall be cumulated and the interest and Applicable Charges payable to such Lender in respect
of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
Section 9.20. Intercreditor
Agreement. REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT. EACH LENDER HEREUNDER AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO
ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND AUTHORIZES AND INSTRUCTS THE ADMINISTRATIVE AGENT TO ENTER INTO
THE INTERCREDITOR AGREEMENT AS “FIRST LIEN CREDIT AGREEMENT COLLATERAL AGENT” AND ON BEHALF OF SUCH LENDER. THE PROVISIONS
OF THIS SECTION 9.20 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AGREEMENT, THE FORM OF WHICH IS
ATTACHED AS AN EXHIBIT TO THIS AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS
THEREOF. EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS
THEREOF, AND NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY OR
ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT. THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE
LENDERS UNDER THE PARI FIRST LIEN CREDIT AGREEMENT TO EXTEND CREDIT THEREUNDER AND SUCH LENDERS ARE INTENDED THIRD PARTY BENEFICIARIES
OF SUCH PROVISIONS AND THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.
Section 9.21. Conflicts.
Notwithstanding anything to the contrary contained herein or in any other Loan Document (but excluding the Intercreditor Agreement), in
the event of any conflict or inconsistency between this Agreement and any other Loan Document (excluding the Intercreditor Agreement),
the terms of this Agreement shall govern and control; provided that in the case of any conflict or inconsistency between the Intercreditor
Agreement and any other Loan Document, the terms of the Intercreditor Agreement shall govern and control.
Section 9.22. Release
of Guarantors. Notwithstanding anything in Section 9.02(b) to the contrary, (a) any Subsidiary Guarantor shall automatically
be released from its obligations hereunder (and its Loan Guaranty shall be automatically released) (i) upon the consummation of any permitted
transaction or series of related transactions if as a result thereof such Subsidiary Guarantor ceases to be a Restricted Subsidiary (included
by merger or dissolution) or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions permitted
hereunder or (ii) upon the occurrence of the Termination Date, (b) any Subsidiary Guarantor that qualifies as an “Excluded Subsidiary”
shall be released from its obligations hereunder (and its Loan Guaranty shall be automatically released) by the Administrative Agent
promptly following the request therefor by the Borrower and/or (c) the Person constituting Holdings immediately prior to the consummation
of a Holdings Reorganization Transaction whereby the existing “Holdings” is not intended to remain as such shall be automatically
released from its obligations hereunder (and its Loan Guaranty shall be automatically released) upon the consummation of such Holdings
Reorganization Transaction; provided, that the release of any Subsidiary Guarantor from its obligations under the Loan Guaranty
if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type described in clause (a) of the definition thereof shall only
be permitted if at the time such Guarantor becomes an Excluded Subsidiary of such type, after giving pro forma effect to such release
and the consummation of the transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower is deemed to
have made a new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly acquired) in an amount equal
to the portion of the fair market value of the net assets of such Person attributable to the Borrower’s equity interest therein
as estimated by the Borrower in good faith and such Investment is permitted pursuant to Section 6.06 (other than Section 6.06(f)) at
such time. In connection with any such release, the Administrative Agent shall, subject to receipt of an officer’s certificate
from the Borrower certifying that such transaction and release are permitted hereunder, promptly execute and deliver to the relevant
Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence termination or
release. Any execution and delivery of documents pursuant to the preceding sentence of this Section 9.22 shall be without recourse
to or warranty by the Administrative Agent.
Section 9.23. Acknowledgement
and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any
other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected
Financial Institution arising under any Loan Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution
Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application
of any Write-Down and Conversion Powers by an the applicable Resolution Authority to any such liabilities arising hereunder which may
be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action
on any such liability, including, if applicable:
(i) a reduction in full or in part
or cancellation of any such liability;
(ii) a conversion of
all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent
entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership
will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation
of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
Section 9.24. Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap
Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each
such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution
power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall
Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special
Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable
notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New
York and/or of the United States or any other state of the United States):
In the event a Covered Entity
that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special
Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in
or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support)
from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime
if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws
of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes
subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to
such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents
were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood
and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered
Party with respect to a Supported QFC or any QFC Credit Support.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
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BOWLERO CORP., as Holdings
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By:
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/s/ Brett I. Parker
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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KINGPIN INTERMEDIATE HOLDINGS LLC, as the Borrower
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By:
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/s/ Brett I. Parker
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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Signature Page to First Lien Credit Agreement
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JPMORGAN CHASE BANK, N.A., as Administrative Agent and as a Lender
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By:
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/s/ Colin J. Doherty
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Name:
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Colin J. Doherty
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Title:
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Executive Director
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Signature Page to First Lien Credit Agreement
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ASSUMPTION
This Assignment
and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into
by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).
Capitalized terms used but not defined herein shall have the meanings given to them in the First Lien Credit Agreement identified below,
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex I attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein
in full.
For an agreed
consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes
from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the First Lien Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below, (i) all of the Assignor’s rights and obligations in its
capacity as a Lender under the First Lien Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under
the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes
of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the First Lien Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause
(i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as the “Assigned Interest”). In the case where the Assigned Interest covers all of the Assignor’s
rights and obligations under the First Lien Credit Agreement, the Assignor shall cease to be a party thereto but shall continue to be
entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03 of the First Lien Credit Agreement with respect
to facts and circumstances occurring on or prior to the Effective Date and subject to its obligations hereunder and under Section 9.13
of the First Lien Credit Agreement. Such sale and assignment is (i) subject to acceptance and recording thereof in the Register by the
Administrative Agent pursuant to Section 9.05(b)(v) of the First Lien Credit Agreement, (ii) without recourse to the Assignor and
(iii) except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1. Assignor: [●]
2. Assignee: [●]
[and is an Affiliate of [identify Lender]1]
3. Borrower: Kingpin Intermediate Holdings LLC
4. Administrative Agent: JPMorgan Chase Bank, N.A., as administrative agent under the First Lien Credit Agreement
5. First Lien Credit Agreement: That
certain First Lien Credit Agreement dated as of September 25, 2020 (as amended, restated, amended and restated, supplemented or otherwise
modified and in effect on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings
LLC, a Delaware limited liability company (the “Borrower”), Bowlero Corp., a Delaware corporation (“Holdings”),
the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities as administrative agent for the Lenders and
collateral agent for the Secured Parties.
6. Assigned Interest:
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Aggregate Amount of Commitment/Loans
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Class of Loans Assigned
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Amount of Commitment/Loans Assigned2
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Percentage Assigned of Commitment/Loans under Relevant Class3
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CUSIP Number
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$
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$
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%
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$
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$
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%
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$
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$
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%
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Effective Date: [●][●],
20[●] [TO BE INSERTED BY THE ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR].
7. THE
PARTIES HERETO ACKNOWLEDGE THAT ANY ASSIGNMENT TO ANY DISQUALIFIED INSTITUTION WITHOUT OBTAINING THE REQUIRED CONSENT OF THE BORROWER
OR, TO THE EXTENT THE BORROWER’S CONSENT IS REQUIRED UNDER SECTION 9.05 OF THE FIRST LIEN CREDIT AGREEMENT, TO ANY OTHER
PERSON, SHALL BE NULL AND VOID, AND THE BORROWER SHALL BE ENTITLED TO PURSUE THE REMEDIES DESCRIBED IN SECTION 9.05 OF THE FIRST
LIEN CREDIT AGREEMENT, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE TO UNWIND ANY SUCH ASSIGNMENT IN ADDITION TO INJUNCTIVE RELIEF
OR ANY OTHER REMEDIES AVAILABLE TO THE BORROWER AT LAW OR IN EQUITY.
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2
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Not to be less than $5,000,000 in the case of Revolving Loans, Additional Revolving Loans, Revolving Credit Commitments or Additional
Revolving Commitments unless the Borrower and the Administrative Agent otherwise consent.
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3
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Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
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[Signature Page Follows]
The terms set forth in this Assignment and Assumption are
hereby agreed to:
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ASSIGNOR
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[NAME OF ASSIGNOR]
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By:
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Name:
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Title:
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☐
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ASSIGNEE HAS EXAMINED THE LIST OF DISQUALIFIED INSTITUTIONS AND REPRESENTS AND WARRANTS THAT (A) IT
IS NOT IDENTIFIED ON SUCH LIST AND (B) IT IS NOT AN AFFILIATE OF ANY INSTITUTION IDENTIFIED ON SUCH LIST.4
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ASSIGNEE
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[NAME OF ASSIGNEE]
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By:
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Name:
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Title:
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Consented to and Accepted:
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[JPMORGAN CHASE BANK, N.A., as
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Administrative Agent]5
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By:
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Name:
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Title:
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Consented to:
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[KINGPIN INTERMEDIATE HOLDINGS LLC,
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as Borrower]6
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By:
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Name:
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Title:
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[ATAIROS GROUP, INC.]7,
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as Credit Support Provider
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By:
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Name:
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Title:
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4
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To be completed by Assignee.
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5
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To be added only if the consent of the Administrative Agent
is required.
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6
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To be added only if the consent of the Borrower is required
by Section 9.05(b)(i)(A) of the First Lien Credit Agreement.
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7
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To be added only if consent of the Credit Support Provider is
required by Section 9.05(b)(i)(B) of the Credit Agreement.
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Annex I
STANDARD TERMS AND CONDITIONS
FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor.
The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim, (iii) its Commitment, and the outstanding balances of its Loans, in
each case without giving effect to assignments thereof which have not become effective, are as set forth herein and (iv) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) makes no representation or warranty and assumes no responsibility with respect to (i) any statements, warranties
or representations made in or in connection with the First Lien Credit Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto (other than this Assignment and Assumption) or any collateral thereunder, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Restricted Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the
performance or observance by Holdings, the Borrower, any of its Restricted Subsidiaries or Affiliates or any other Person of any of their
respective obligations under any Loan Document.
1.2 Assignee.
The Assignee (a) represents and warrants that (i) it is an Eligible Assignee and has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the First Lien Credit Agreement, (ii) it satisfies the requirements, if any, specified in the First Lien Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective
Date, it shall be bound by the provisions of the First Lien Credit Agreement and the other Loan Documents as a Lender thereunder and,
to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder and (iv) it has received a copy of the First
Lien Credit Agreement and the Intercreditor Agreement, together with copies of the most recent financial statements referred to in Section
4.01(c) or the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents
and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption
and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, (v) it has examined the list of Disqualified Institutions and it is not (A) a Disqualified
Institution or (B) an Affiliate of a Disqualified Institution and (vi) if it is a Foreign Lender, attached to the Assignment and Assumption
is any documentation required to be delivered by it pursuant to Section 2.17 of the First Lien Credit Agreement, duly completed
and executed by the Assignee.
2. Payments.
From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and
to the Assignee for amounts which have accrued from and after the Effective Date.
3. General
Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective
successors and permitted assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by facsimile or by email as
a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of this Assignment
and Assumption. This Assignment and Assumption shall be construed in accordance with and governed by the laws of the State of New York.
EXHIBIT B
[FORM OF]
BORROWING REQUEST
SUBJECT TO THE EXPRESS
WRITTEN CONSENT AND ACKNOWLEDGMENT OF ATAIROS GROUP, INC. (IN ITS SOLE DISCRETION) AS SET FORTH BELOW AND ATTACHED HERETO
JPMorgan Chase Bank, N.A.
JPMorgan Loan Services
500 Stanton Christiana Rd.
NCC5 / 1st Floor
Newark, DE 19713
Attention: Loan and Agency Services Group/DE Custom Business
Fax: 302-634-3301
Email: US_PE_Fund_Financing@jpmorgan.com
With a copy to:
JPMorgan Chase Bank, N.A.
383 Madison Avenue
5th Floor
New York, NY 10179
Attention: Jeffrey Davidovitch
Fax:
917-849-1663
Email: US_PE_Fund_Financing@jpmorgan.com
[●][●], 20[●]8
Ladies and Gentlemen:
Reference is hereby made to that
certain First Lien Credit Agreement dated as of September 25, 2020 (as amended, restated, amended and restated, supplemented or otherwise
modified and in effect on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings
LLC, a Delaware limited liability company (the “Borrower”), Bowlero Corp., a Delaware corporation (“Holdings”),
the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities as administrative agent and collateral agent
for the Lenders. Terms defined in the First Lien Credit Agreement are used herein with the same meanings unless otherwise defined herein.
The undersigned hereby gives you notice pursuant
to Section 2.03 of the First Lien Credit Agreement that it requests the Borrowings under the First Lien Credit Agreement to be
made on September 25, 2020, and in that connection sets forth below the terms on which the Borrowings are requested to be made:
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8
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The Administrative Agent must be notified in writing or by telephone
(with such telephonic notification to be promptly confirmed in writing), which must be received by the Administrative Agent (by hand
delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) not later than 12:00 p.m. (i) three
Business Days prior to the requested day of any Borrowing of LIBO Rate Loans (or 12:00 p.m. one Business Day in the case of any Borrowing
of LIBO Rate Loans to be made on the Closing Date) and (ii) on the requested date of any Borrowing of ABR Loans (or, in each case, such
later time as shall be acceptable to the Administrative Agent); provided, however, that if the Borrower wishes to request
LIBO Rate Loans having an Interest Period of other than one, two, three or six months in duration as provided in the definition of “Interest
Period,” (A) the applicable notice from the Borrower must be received by the Administrative Agent not later than 11:00 a.m. four
Business Days prior to the requested date of such Borrowing, conversion or continuation (or such time as is acceptable to the Administrative
Agent), whereupon the Administrative Agent shall give prompt notice to the appropriate Lenders of such request and determine whether
the requested Interest Period is acceptable to them and (B) not later than 10:00 a.m. three Business Days before the requested date of
such Borrowing, the Administrative Agent shall notify the Borrower whether or not the requested Interest Period has been consented to
by all the appropriate Lenders.
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(A)
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Borrower
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Kingpin Intermediate Holdings LLC
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(B)
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Date of Borrowing (which shall be a Business Day)
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[●]
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(C)
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Aggregate Amount of Borrowing9
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$[●]
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(D)
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Type of Borrowing10
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[●]
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(E)
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Class of Borrowing
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[●]
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(F)
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Interest Period11 (in the case of a LIBO Rate Borrowing)
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[●]
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(G)
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Amount, Account Number and Location12
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Wire Transfer Instructions:
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Amount
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$[●]
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Bank:
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[●]
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ABA No.:
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[●]
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Account No.:
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[●]
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Account Name:
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[●]
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[The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Borrowing:
(A) The
representations and warranties of the Loan Parties set forth in the First Lien Credit Agreement and the other Loan Documents are true
and correct in all material respects on and as of the date of the Borrowing with the same effect as though such representations and warranties
had been made on and as of the date of such Borrowing; provided that to the extent that any representation and warranty specifically
refers to a given date or period, it is true and correct in all material respects as of such earlier date or for such period[; provided
further that events and circumstances surrounding, and/or any matters or impacts arising from, related to, or in connection with, the
outbreak and spread of the novel coronavirus known as COVID-19 shall not constitute, result in or otherwise have (or reasonably be expected
to constitute, result in or otherwise have) a Material Adverse Effect of the type described in clause (i) of the definition thereof, and
in each case shall be disregarded.]13
(B) At
the time of and immediately after giving effect to the Borrowing, no Default or Event of Default shall have occurred and be continuing
and no “Pledgor Default” under and as defined in the Credit Support
Provider Security Agreement shall have occurred and be continuing.]14
(C) Atairos
Group, Inc. has provided the Borrower with its express written consent to the Borrowing, which express written consent is evidenced by
the signed Consent and Acknowledgment of Credit Provider attached hereto. ]15
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9
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Subject to Section 2.02(c) of First Lien Credit Agreement.
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10
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State whether a LIBO Rate Borrowing or ABR Borrowing. If no
Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing.
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11
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Must be a period contemplated by the definition of “Interest
Period”. If no Interest Period is specified, then the Interest Period shall be of one-month’s duration.
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12
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To be a segregated account subject to a control agreement in
favor of the Administrative Agent.
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13
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Include bracketed language in connection with any Credit Extension
during the Covenant Waiver Period.
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14
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Include bracketed language only for Borrowings after Closing
Date.
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15
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Include bracketed language only for Borrowings after Closing
Date. Atairos Group, Inc. consent to be provided (or not) in the sole discretion of Atairos Group, Inc.
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[Signature Page Follows]
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KINGPIN INTERMEDIATE HOLDINGS LLC
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Consent and Acknowledgment of
Atairos Group, Inc.16
Atairos Group, Inc. hereby consents,
acknowledges and agrees that it has approved the Borrowing pursuant to the Borrowing Request to which this Consent and Acknowledgment
is attached
The Credit Support Provider hereby
certifies that the amount of “Available Capital Commitments” under the Shareholders Agreement (each as defined in the Credit
Support Provider Security Agreement) as of the date of the Borrowing Request to which this Consent and Acknowledgment is attached is $[ ].
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16
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To be included only in the case of post-Closing Date Borrowings.
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EXHIBIT C
[FORM OF]
COMPLIANCE OFFICER
CERTIFICATE
[●][●], 20[●]
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To:
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The Administrative Agent and each of the Lenders parties to
the First Lien Credit Agreement described below
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This Compliance Certificate is
furnished pursuant to that certain First Lien Credit Agreement dated as of September 25, 2020 (as amended, restated, amended and restated,
supplemented or otherwise modified and in effect on the date hereof, the “First Lien Credit Agreement”), by and among,
Kingpin Intermediate Holdings LLC, a Delaware limited liability company (the “Borrower”), Bowlero Corp., a Delaware
corporation (“Holdings”), the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities
as administrative agent and collateral agent for the Lenders. Unless otherwise defined herein, capitalized terms used in this Compliance
Certificate have the meanings ascribed thereto in the First Lien Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES,
AS A RESPONSIBLE OFFICER OF THE BORROWER, IN SUCH CAPACITY AND NOT IN AN INDIVIDUAL CAPACITY, THAT:
1. I am the duly elected [●] of the Borrower and a Responsible Officer of the Borrower;
2. I
have reviewed the terms of the First Lien Credit Agreement and I have made, or have caused to be made under my supervision, a review in
reasonable detail of the transactions and conditions of the Borrower and its Restricted Subsidiaries, on a consolidated basis, during
the [Fiscal Quarter][Fiscal Year] covered by the attached financial statements;
3. [The
attached financial statements fairly present, in all material respects, in accordance with GAAP, the consolidated financial condition
of [Holdings] as at the dates indicated and its income and cash flows for the periods indicated, subject to the absence of footnotes and
changes resulting from audit and normal year-end adjustments.]17
4. [Schedule
1 attached hereto sets forth reasonably detailed calculations of Excess Cash Flow for such Fiscal Year.]18
5. [Attached
as Schedule 2 hereto is a list of the subsidiaries of the Borrower that identifies each subsidiary as a Restricted Subsidiary or
an Unrestricted Subsidiary as of the date hereof.] [There is no change in the list of Restricted Subsidiaries and Unrestricted Subsidiaries
since the date of the last Compliance Certificate.]19
6. [Attached as Schedule
3 hereto are (i) a summary of the pro forma adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from the
attached financial statements and (ii) if the attached financial statements relate to any Parent Company, consolidating financial information
summarizing in reasonable detail the information related to such Parent Company, on the one hand, and the information relating to the
Borrower on a standalone basis, on the other hand.]20 21
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17
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Include to the extent the relevant Compliance Certificate is
delivered in connection with unaudited quarterly financials.
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18
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Only required to the extent the relevant Compliance Certificate
is delivered in connection with audited annual financial statements (commencing with the Fiscal Year ending [June 30, 2021]).
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19
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Only required to provide in connection with Compliance Certificate
delivered with annual audited financials.
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20
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Only required if a subsidiary of the Borrower is or has been
designated as an Unrestricted Subsidiary at the time of delivery of the applicable Compliance Certificate.
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21
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Only required to provide in connection with Compliance Certificate
delivered with annual audited financials.
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7. [Attached
hereto as Schedule 4 is the Narrative Report required to be delivered with the attached financial statements in accordance with
Section 5.01(a) or (b) of the First Lien Credit Agreement, as applicable].22
8. Attached
as Schedule 5 hereto are calculations in reasonable detail demonstrating compliance with the covenant set forth in Section 6.15(a)
of the First Lien Credit Agreement.
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22
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Applies to each delivery of annual and quarterly financial statements
pursuant to Section 5.01(a) or (b) of the First Lien Credit Agreement.
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[Signature Page Follows]
The foregoing
certifications, together with the information set forth in the Schedules hereto and the financial statements delivered with this Compliance
Certificate in support hereof, are made and delivered as of the date first written above. 23
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[KINGPIN INTERMEDIATE HOLDINGS LLC]
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23
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Please note the deadlines for satisfaction of the following
requirements correspond with the delivery of each Compliance Certificate (unless otherwise indicated):
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1.
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The delivery of documents and deliverables required under Section 4.02(a) of the Security
Agreement relating to any (i) certificated Securities and/or (ii) Tangible Chattel Paper and/or Instruments having a face amount in
excess of $5,000,000, in each case acquired during the Fiscal Quarter covered by the attached financial statements. NOTE:
If any Loan Party acquires (i) certificated Securities and/or (ii) Tangible Chattel Paper and/or Instruments having a face amount in
excess of $5,000,000 during the fourth Fiscal Quarter of any Fiscal Year, the documents and deliverables required under Section
4.02(a) of the Security Agreement must be delivered within 60 days after the end of such Fiscal Quarter, subject to the
Intercreditor Agreement.
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2.
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The delivery of documents and deliverables required under Section 4.03(c) of the Security Agreement
relating to any registration (or any application for registration of) any Patent, Trademark or Copyright with the United States Patent
and Trademark Office or the United States Copyright Office, as applicable, filed or acquired during the Fiscal Quarter covered by the
attached financial statements. NOTE: If any Loan Party acquires any registration (or files any application for registration)
of any Patent, Trademark or Copyright with the United States Patent and Trademark Office or the United States Copyright Office, as applicable,
during the fourth Fiscal Quarter of any Fiscal Year, the documents and deliverables required under Section 4.03(c) of the Security
Agreement must be delivered within 60 days after the end of such Fiscal Quarter.
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3.
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To the extent the relevant Compliance Certificate is delivered in connection with
audited annual financials and prior to a Qualifying IPO, delivery of the Financial Plan required by Section 5.01(h) of the First
Lien Credit Agreement.
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4.
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The delivery of the documents required to be delivered under Section 5.12(a)
of the First Lien Credit Agreement as a result of (i) the formation or acquisition after the Closing Date of any Restricted Subsidiary
that is a Domestic Subsidiary rather than an Excluded Subsidiary, (ii) the designation of any Unrestricted Subsidiary as a Restricted
Subsidiary (other than an Excluded Subsidiary), (iii) any Restricted Subsidiary that is a Domestic Subsidiary (other than a Restricted
Subsidiary that otherwise constitutes an Excluded Subsidiary) ceasing to be an Immaterial Subsidiary and/or (iv) any Restricted Subsidiary
that is an Immaterial Subsidiary and a Domestic Subsidiary ceasing to be an Excluded Subsidiary, in each case during the Fiscal Quarter
covered by the attached financial statements. NOTE: upon the taking of any action or the occurrence of any event described
in clauses (i) through (iv) during the fourth Fiscal Quarter of any Fiscal Year, the documents required to be delivered
under Section 5.12(a) of the First Lien Credit Agreement must be delivered within 60 days after the end of such Fiscal Quarter.
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SCHEDULE 1
Calculation of Excess Cash Flow
SCHEDULE 2
List of Restricted Subsidiaries
and Unrestricted Subsidiaries
SCHEDULE 3
Summary of Pro Forma Adjustments/Consolidating
Information
SCHEDULE 4
[Narrative Report]
SCHEDULE 5
[First Lien Leverage Ratio]
EXHIBIT D
[FORM OF]
INTEREST ELECTION
REQUEST
JPMorgan Chase Bank, N.A.
JPMorgan Loan Services
500
Stanton Christiana Rd.
NCC5 / 1st Floor
Newark, DE 19713
Attention: Loan and Agency Services Group/DE Custom Business
Fax: 302-634-3301
Email: US_PE_Fund_Financing@jpmorgan.com
With a copy to:
JPMorgan Chase Bank, N.A.
383 Madison Avenue
5th Floor
New York, NY 10179
Attention: Jeffrey Davidovitch
Fax:
917-849-1663
Email: US_PE_Fund_Financing@jpmorgan.com
Ladies and Gentlemen:
[●][●], 20[●]24
Reference
is hereby made to that certain First Lien Credit Agreement dated as of September 25, 2020 (as amended, restated, amended and restated,
supplemented or otherwise modified and in effect on the date hereof, the “First Lien Credit Agreement”), by and among,
Kingpin Intermediate Holdings LLC, a Delaware limited liability company (the “Borrower”), Bowlero Corp., a Delaware
corporation (“Holdings”), the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., in its capacities
as administrative agent and collateral agent for the Lenders. Terms defined in the First Lien Credit Agreement are used herein with the
same meanings unless otherwise defined herein.
The undersigned
hereby gives you notice pursuant to Section 2.08 of the First Lien Credit Agreement of an interest rate election, and in that connection
sets forth below the terms thereof:
(A) [on [insert
applicable date] (which is a Business Day), the undersigned will convert $[●]25 of the aggregate outstanding principal
amount of the Revolving Loans, bearing interest at the [ABR][LIBO] Rate, into a [LIBO][ABR] Loan [and, in the case of
a LIBO Rate Loan, having an Interest Period of [●] month(s)]26[; and][.]]
(B) [on
[insert applicable date] (which is a Business Day), the undersigned will continue $[●] of the aggregate outstanding
principal amount of the Revolving Loans bearing interest at the LIBO Rate, as LIBO Rate Loans having an Interest Period of [●]
month(s)27.]
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24
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The Administrative Agent must be notified in writing or by telephone
(with such telephonic notification to be promptly confirmed in writing), which must be received by the Administrative Agent (by hand
delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) not later than 12:00 p.m. (i) three
Business Days prior to the requested day of conversion or continuation of LIBO Rate Loans (or 12:00 p.m. one Business Day in the case
of any conversion or continuation of LIBO Rate Loans on the Closing Date) and (ii) on the requested date of any conversion of any Borrowing
to ABR Loans or any continuation of any Borrowing as ABR Loans (or, in each case, such later time as shall be acceptable to the Administrative
Agent); provided, however, that if the Borrower wishes to request a conversion or continuation of LIBO Rate Loans with
an Interest Period of other than one, two, three or six months in duration as provided in the definition of “Interest Period,”
(A) the applicable notice from the Borrower must be received by the Administrative Agent not later than 11:00 a.m. four Business Days
prior to the requested date of such conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the appropriate
Lenders of such request and determine whether the requested Interest Period is acceptable to them and (B) not later than 10:00 a.m. three
Business Days before the requested date of such conversion or continuation, the Administrative Agent shall notify the Borrower whether
or not the requested Interest Period has been consented to by all the appropriate Lenders.
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25
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Subject to Section 2.02(c) of the First Lien Credit Agreement.
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26
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Must be a period contemplated by the definition of “Interest
Period”.
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27
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Must be a period contemplated by the definition of “Interest
Period”.
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[Signature Page Follows]
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[KINGPIN INTERMEDIATE HOLDINGS LLC]
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EXHIBIT E
[FORM OF]
PERFECTION CERTIFICATE
[See attached]
EXHIBIT G
[FORM OF]
PROMISSORY
NOTE
[●][●], 20[●]
FOR VALUE
RECEIVED, the undersigned hereby promises to pay on demand to [●] (the “Lender”) or its registered permitted
assign, at the office of JPMorgan Chase Bank, N.A. (“JPM”) at [●], Revolving Loans in the principal amount of
$[●] or such lesser amount as is outstanding from time to time, on the dates and in the amounts set forth in the First Lien Credit
Agreement dated as of September 25, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified and in effect
on the date hereof, the “First Lien Credit Agreement”), by and among, Kingpin Intermediate Holdings LLC, a Delaware
limited liability company (the “Borrower”), Bowlero Corp., a Delaware corporation (“Holdings”),
the lenders from time to time party thereto and JPM, in its capacities as administrative agent for the Lenders and collateral agent for
the Secured Parties (in such capacity, the “Administrative Agent”). The Borrower also promises to pay interest from
the date of such Loans on the principal amount thereof from time to time outstanding, in like Dollars, at such office, in each case, in
the manner and at the rate or rates per annum and payable on the dates provided in the First Lien Credit Agreement. Terms used but not
defined herein shall have the meanings assigned to such terms in the First Lien Credit Agreement.
The Borrower
promises to pay interest on any overdue principal and, to the extent permitted by Requirements of Law, overdue interest from the relevant
due dates, in each case, in the manner, at the rate or rates and under the circumstances provided in the First Lien Credit Agreement.
The Borrower
hereby waives diligence, presentment, demand, protest and notice of any kind to the extent possible under any Requirements of Law. The
non-exercise by the holder hereof of any of its rights hereunder in any particular instance shall not constitute a waiver thereof in that
or any subsequent instance.
All Borrowings
evidenced by this promissory note and all payments and prepayments of the principal hereof and interest hereon and the respective dates
thereof shall be endorsed by the holder hereof on the schedules attached hereto and made a part hereof or on a continuation thereof which
shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its internal records; provided, however,
that the failure of the holder hereof to make such a notation or any error in such notation shall not affect the obligations of the Borrower
under this Note.
This promissory
note is one of the promissory notes referred to in the First Lien Credit Agreement that, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for optional and mandatory prepayment of the principal hereof
prior to the maturity hereof and for the amendment or waiver of certain provisions of the First Lien Credit Agreement, all upon the terms
and conditions therein specified. This promissory note is entitled to the benefit of the First Lien Credit Agreement, and the obligations
hereunder are guaranteed and secured as provided therein and in the other Loan Documents referred to in the First Lien Credit Agreement.
If any assignment
by the Lender holding this Promissory Note occurs after the date of the issuance hereof, the Lender agrees that it shall, upon the effectiveness
of such assignment or as promptly thereafter as practicable, surrender this Promissory Note to the Administrative Agent for cancellation
THE ASSIGNMENT OF THIS
NOTE AND ANY RIGHTS WITH RESPECT THERETO ARE SUBJECT TO THE PROVISIONS OF THE FIRST LIEN CREDIT AGREEMENT, INCLUDING THE PROVISIONS GOVERNING,
THE REGISTER AND THE PARTICIPANT REGISTER.
THIS PROMISSORY
NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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[KINGPIN INTERMEDIATE HOLDINGS LLC], as
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the Borrower
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SCHEDULE A
LOANS, CONVERSIONS AND REPAYMENTS
OF ABR LOANS
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Date
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Amount of ABR
Loans
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Amount
Converted to ABR
Loans
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Amount of Principal
of ABR Loans Repaid
|
Amount of ABR
Loans Converted to
LIBO Rate Loans
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Unpaid Principal
Balance of ABR
Loans
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Notation Made
By
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SCHEDULE B
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS
OF LIBO RATE LOANS
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Date
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Amount of LIBO
Rate Loans
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Amount Converted to
LIBO
Rate Loans
|
Interest Period and
LIBO
Rate with
Respect Thereto
|
Amount
of
Principal of LIBO
Rate Loans Repaid
|
Amount of LIBO
Rate Loans
Converted to
ABR Loans
|
Unpaid
Principal
Balance of
LIBO Rate
Loans
|
Notation
Made By
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EXHIBIT H-1
[FORM OF]
FIRST LIEN TRADEMARK SECURITY AGREEMENT
This FIRST
LIEN TRADEMARK SECURITY AGREEMENT is entered into as of [●][●], 20[●], (this “Agreement”), among
[●] ([each, a][the] “Grantor”) and JPMorgan Chase Bank, N.A. (“JPM”), as collateral
agent (in such capacity, the “Collateral Agent”) for the Secured Parties.
Reference is made to
that certain First Lien Pledge and Security Agreement, dated as of September 25, 2020 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time and in effect on the date hereof, the “Security Agreement”),
among the Loan Parties party thereto and the Collateral Agent. The First Lien Lenders (as defined below) have extended credit to
Kingpin Intermediate Holdings LLC, a Delaware limited liability company (the “Borrower”) subject to the terms and
conditions set forth in that certain First Lien Credit Agreement dated as of September 25, 2020 (as amended, restated, amended and
restated, supplemented or otherwise modified and in effect on the date hereof, the “First Lien Credit
Agreement”), by and among Borrower, Bowlero Corp, a Delaware corporation (“Holdings”), the lenders from
time to time party thereto (collectively, the “First Lien Lenders”) and JPM, in its capacities as administrative
agent for the First Lien Lenders and collateral agent for the Secured Parties. Consistent with the requirements set forth in Sections
4.01 and 5.12 of the First Lien Credit Agreement and Section 4.03(c) of the Security Agreement, the parties hereto
agree as follows:
SECTION 1.
Terms. Capitalized terms used in this Agreement and not otherwise defined herein have the meanings specified in the Security
Agreement.
SECTION
2. Grant of Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full
of the Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign,
mortgage, transfer and grant to the Collateral Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of
the Secured Parties, a continuing security interest in all of its right, title or interest in, to or under all of the following assets,
whether now owned or at any time hereafter acquired by or arising in favor of [such][the] Grantor and regardless of where
located (collectively, the “Trademark Collateral”):
A. all
Trademarks, including those Trademark registrations and registration applications in the United States Patent and Trademark Office listed
on Schedule I hereto;
B. all goodwill associated with or symbolized by the Trademarks;
C. all assets, rights and interests that uniquely reflect or embody the Trademarks;
D. the
right to sue third parties for past, present and future infringements, dilutions or violations of any Trademark; and
E. all
proceeds of and rights associated with the foregoing; in each case to the extent the foregoing items constitute Collateral.
Notwithstanding anything to
the contrary in (A) through (E) above, this Agreement shall not constitute a grant of a security interest in any Excluded Assets, including
any “intent-to-use” Trademark applications prior to the filing and acceptance of a “Statement of Use” pursuant
to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect
thereto.
SECTION 3.
Security Agreement. The security interests granted to the Collateral Agent herein are granted in furtherance, and not in
limitation of, the security interests granted to the Collateral Agent pursuant to the Security Agreement. [Each][The] Grantor
hereby acknowledges and affirms that the rights and remedies of the Collateral Agent with respect to the Trademark Collateral are more
fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set
forth herein. In the event of any conflict between the terms of this Agreement and the Security Agreement, the terms of the Security Agreement
shall govern.
SECTION 4.
Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto
have duly executed this Agreement as of the day and year first above written.
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JPMORGAN CHASE BANK, N.A.,
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as Collateral Agent
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SCHEDULE I
TRADEMARKS
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REGISTERED OWNER
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REGISTRATION NUMBER
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TRADEMARK
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TRADEMARKS APPLICATIONS
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APPLICANT
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APPLICATION NO.
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TRADEMARK
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EXHIBIT A
[FORM OF]
FIRST LIEN TRADEMARK SECURITY
AGREEMENT SUPPLEMENT
This FIRST LIEN
TRADEMARK SECURITY AGREEMENT SUPPLEMENT is entered into as of [●][●], 20[●] (this “Trademark Security
Agreement Supplement”), among [●] ([each, a][the] “Grantor”) and JPMorgan Chase Bank, N.A.
(“JPM”), as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties.
Reference is made to
that certain First Lien Pledge and Security Agreement, dated as of September 25, 2020 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time and in effect on the date hereof, the “Security Agreement”),
among the Loan Parties party thereto and the Collateral Agent. The First Lien Lenders (as defined below) have extended credit to
Kingpin Intermediate Holdings LLC, a Delaware limited liability company (the “Borrower”) subject to the terms and
conditions set forth in that certain First Lien Credit Agreement dated as of September 25, 2020 (as amended, restated, amended and
restated, supplemented or otherwise modified and in effect on the date hereof, the “First Lien Credit
Agreement”), by and among Borrower, Bowlero Corp., a Delaware corporation (“Holdings”), the lenders
from time to time party thereto (collectively, the “First Lien Lenders”) and JPM, in its capacities as
administrative agent for the First Lien Lenders and collateral agent for the Secured Parties. Consistent with the requirements set
forth in Sections 4.01 and 5.12 of the First Lien Credit Agreement, the [Grantor][Grantors] and the
Collateral Agent have entered into that certain First Lien Trademark Security Agreement, dated as of September 25, 2020 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to time and in effect on the date hereof, the
“Trademark Security Agreement”). Under the terms of the Security Agreement, the Grantor has granted to the
Collateral Agent for the benefit of the Secured Parties as security interest in the Additional Trademark Collateral (as defined
below) and have agreed, consistent with the requirements of Section 4.03(c) of the Security Agreement, to execute this
Trademark Security Agreement Supplement. Now, therefore, the parties hereto agree as follows:
SECTION 1.
Terms. Capitalized terms used in this Trademark Security Agreement Supplement and not otherwise defined herein have the
meanings specified in the Security Agreement.
SECTION
2. Grant of Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full
of the Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign,
mortgage, transfer and grant to the Collateral Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of
the Secured Parties, a continuing security interest in all of its right, title or interest in, to or under all of the following assets,
whether now owned or at any time hereafter acquired by or arising in favor of the [such][the] Grantor and regardless of
where located (collectively, the “Additional Trademark Collateral”):
A. the
Trademark registrations and registration applications in the United States Patent and Trademark Office listed on Schedule I hereto;
B. all
goodwill associated with or symbolized by such Trademark registrations and registration applications;
C. all
assets, rights and interests that uniquely reflect or embody such Trademark registrations and registration applications;
D. the
right to sue third parties for past, present and future infringements, dilutions or violations of such Trademark registrations and registration
applications; and
E. all
proceeds of and rights associated with the foregoing;
in each case to the extent the foregoing items constitute Collateral.
Notwithstanding anything to the
contrary in (A) through (E) above, this Trademark Security Agreement Supplement shall not constitute a grant of a security interest in
any Excluded Assets, including any “intent-to-use” Trademark applications prior to the filing and acceptance of a “Statement
of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham
Act with respect thereto.
SECTION 3.
Security Agreement. The security interests granted to the Collateral Agent herein are granted in furtherance, and not in
limitation of, the security interests granted to the Collateral Agent pursuant to the Security Agreement. [Each][The] Grantor
hereby acknowledges and affirms that the rights and remedies of the Collateral Agent with respect to the Additional Trademark Collateral
are more fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if
fully set forth herein. In the event of any conflict between the terms of this Trademark Security Agreement Supplement and the Security
Agreement, the terms of the US Security Agreement shall govern.
SECTION
4. Governing Law. This Trademark Security Agreement Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto
have duly executed this Trademark Security Agreement Supplement as of the day and year first above written.
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JPMORGAN CHASE BANK, N.A.,
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as Collateral Agent
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SCHEDULE I
TRADEMARKS
|
REGISTERED OWNER
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REGISTRATION NUMBER
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TRADEMARK
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TRADEMARKS APPLICATIONS
|
APPLICANT
|
APPLICATION NO.
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TRADEMARK
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EXHIBIT H-2
[FORM OF]
FIRST LIEN PATENT SECURITY AGREEMENT
This FIRST
LIEN PATENT SECURITY AGREEMENT is entered into as of [●][●], 20[●] (this “Agreement”), among [●]
([each, a][the] “Grantor”) and JPMorgan Chase Bank, N.A. (“JPM”), as collateral agent
(in such capacity, the “Collateral Agent”) for the Secured Parties.
Reference
is made to that certain First Lien Pledge and Security Agreement, September 25, 2020 (as amended, restated, amended and restated, supplemented
or otherwise modified from time to time and in effect on the date hereof, the “Security Agreement”), among the Loan
Parties party thereto and the Collateral Agent. The First Lien Lenders (as defined below) have extended credit to Kingpin Intermediate
Holdings LLC, a Delaware limited liability company (the “Borrower”) subject to the terms and conditions set forth in
that certain First Lien Credit Agreement dated as of September 25, 2020 (as amended, restated, amended and restated, supplemented or otherwise
modified and in effect on the date hereof, the “First Lien Credit Agreement”), by and among Borrower, Bowlero Corp.,
a Delaware corporation (“Holdings”), the lenders from time to time party thereto (collectively, the “First
Lien Lenders”) and JPM, in its capacities as administrative agent for the First Lien Lenders and collateral agent for the Secured
Parties. Consistent with the requirements set forth in Sections 4.01 and 5.12 of the First Lien Credit Agreement and Section
4.03(c) of the Security Agreement, the parties hereto agree as follows:
SECTION 1.
Terms. Capitalized terms used in this Agreement and not otherwise defined herein have the meanings specified in the Security
Agreement.
SECTION
2. Grant of Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full
of the Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign,
mortgage, transfer and grant to the Collateral Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of
the Secured Parties, a continuing security interest in all right, title or interest in, to or under all of the following assets, whether
now owned or at any time hereafter acquired by or arising in favor of [such][the] Grantor and regardless of where located (collectively,
the “Patent Collateral”):
A. all
Patents, including those Patent registrations and pending applications in the United States Patent and Trademark Office listed on Schedule
I hereto;
B. the
right to sue third parties for past, present and future infringements of any Patent; and
C. all
proceeds of and any right associated with the foregoing;
in each case to the extent the foregoing items constitute Collateral.
Notwithstanding anything to the contrary in (A) through (C) above, this Agreement shall not constitute a grant of a security
interest in any Excluded Assets.
SECTION 3.
Security Agreement. The security interests granted to the Collateral Agent herein are granted in furtherance, and not in
limitation of, the security interests granted to the Collateral Agent pursuant to the Security Agreement. [Each][The] Grantor
hereby acknowledges and affirms that the rights and remedies of the Collateral Agent with respect to the Patent Collateral are more fully
set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth
herein. In the event of any conflict between the terms of this Agreement and the Security Agreement, the terms of the Security Agreement
shall govern.
SECTION 4. Governing Law. This
Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto
have duly executed this Agreement as of the day and year first above written.
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JPMORGAN CHASE BANK, N.A.,
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as Collateral Agent
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SCHEDULE I
PATENTS
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REGISTERED OWNER
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SERIAL NUMBER
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DESCRIPTION
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PATENTS APPLICATIONS
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APPLICANT
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DESCRIPTION
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EXHIBIT A
[FORM OF]
FIRST LIEN PATENT SECURITY AGREEMENT SUPPLEMENT
This FIRST
LIEN PATENT SECURITY AGREEMENT SUPPLEMENT is entered into as of [●][●], 20[●] (this “Patent Security Agreement
Supplement”), among [●] ([each, a][the] “Grantor”) and JPMorgan Chase Bank, N.A. (“JPM”),
as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties.
Reference is made to that certain
First Lien Pledge and Security Agreement, dated as of September 25, 2020 (as amended, restated, amended and restated, supplemented or
otherwise modified from time to time and in effect on the date hereof, the “Security Agreement”), among the Loan Parties
party thereto and the Collateral Agent. The First Lien Lenders (as defined below) have extended credit to Kingpin Intermediate Holdings
LLC, a Delaware limited liability company (the “Borrower”) subject to the terms and conditions set forth in that certain
First Lien Credit Agreement dated as of September 25, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified
and in effect on the date hereof, the “First Lien Credit Agreement”), by and among, the Borrower, Bowlero Corp., a
Delaware corporation (“Holdings”), the lenders from time to time party thereto (collectively, the “First Lien
Lenders”) and JPM, in its capacities as administrative agent for the First Lien Lenders and collateral agent for the Secured
Parties. Consistent with the requirements set forth in Sections 4.01 and 5.12 of the First Lien Credit Agreement, the [Grantor][Grantors]
and the Collateral Agent have entered into that certain First Lien Patent Security Agreement, dated as of September 25, 2020 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to time and in effect on the date hereof, the “Patent
Security Agreement”). Under the terms of the Security Agreement, the Grantor has granted to the Collateral Agent for the benefit
of the Secured Parties as security interest in the Additional Patent Collateral (as defined below) and have agreed, consistent with the
requirements of Section 4.03(c) of the Security Agreement, to execute this Patent Security Agreement Supplement. Now, therefore,
the parties hereto agree as follows:
SECTION 1.
Terms. Capitalized terms used in this Patent Security Agreement Supplement and not otherwise defined herein have the meanings
specified in the Security Agreement.
SECTION
2. Grant of Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full
of the Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign,
mortgage, transfer and grant to the Collateral Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of
the Secured Parties, a continuing security interest in all right, title or interest in, to or under all of the following assets, whether
now owned or at any time hereafter acquired by or arising in favor of [such][the] Grantor and regardless of where located
(collectively, the “Additional Patent Collateral”):
A. the
Patent registrations and pending applications in the United States Patent and Trademark Office listed on Schedule I hereto;
B. the
right to sue third parties for past, present and future infringements of such Patent registrations and pending applications; and
C. all
proceeds of and any right associated with the foregoing;
in each case to the extent the foregoing items constitute Collateral.
Notwithstanding anything to the contrary in (A) through
(C) above, this Patent Security Agreement Supplement shall not constitute a grant of a security interest in any Excluded Assets.
SECTION 3.
Security Agreement. The security interests granted to the Collateral Agent herein are granted in furtherance, and not in
limitation of, the security interests granted to the Collateral Agent pursuant to the Security Agreement. [Each][The] Grantor
hereby acknowledges and affirms that the rights and remedies of the Collateral Agent with respect to the Additional Patent Collateral
are more fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if
fully set forth herein. In the event of any conflict between the terms of this Patent Security Agreement Supplement and the Security Agreement,
the terms of the Security Agreement shall govern.
SECTION
4. Governing Law. This Patent Security Agreement Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto
have duly executed this Patent Security Agreement Supplement as of the day and year first above written.
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JPMORGAN CHASE BANK, N.A.,
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as Collateral Agent
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SCHEDULE I
PATENTS
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REGISTERED OWNER
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SERIAL NUMBER
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DESCRIPTION
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PATENTS APPLICATIONS
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APPLICANT
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APPLICATION NO.
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DESCRIPTION
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EXHIBIT H-3
[FORM OF]
FIRST LIEN COPYRIGHT SECURITY
AGREEMENT
This FIRST
LIEN COPYRIGHT SECURITY AGREEMENT is entered into as of [●] [●],[●] (this “Agreement”),
among [●] ([each, a][the] “Grantor”) and JPMorgan Chase Bank, N.A. (“JPM”),
as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties.
Reference is made to that
certain First Lien Pledge and Security Agreement, dated as of September 25, 2020 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time and in effect on the date hereof, the “Security Agreement”),
among the Loan Parties party thereto and the Collateral Agent. The First Lien Lenders (as defined below) have extended credit to
Kingpin Intermediate Holdings LLC, a Delaware limited liability company (the “Borrower”) subject to the terms and
conditions set forth in that certain First Lien Credit Agreement dated as of September 25, 2020 (as amended, restated, amended and
restated, supplemented or otherwise modified and in effect on the date hereof, the “First Lien Credit
Agreement”), by and among the Borrower, Bowlero Corp., a Delaware corporation (“Holdings”), the lenders
from time to time party thereto (collectively, the “First Lien Lenders”) and JPM, in its capacities as
administrative agent for the First Lien Lenders and collateral agent for the Secured Parties. Consistent with the requirements set
forth in Sections 4.01 and 5.12 of the First Lien Credit Agreement and Section 4.03(c) of the Security
Agreement, the parties hereto agree as follows:
SECTION 1.
Terms. Capitalized terms used in this Agreement and not otherwise defined herein have the meanings specified in the Security
Agreement.
SECTION 2.
Grant of Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full
of the Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign,
mortgage, transfer and grant to the Collateral Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of
the Secured Parties, a continuing security interest in all right, title or interest in, to or under all of the following assets, whether
now owned or at any time hereafter acquired by [such][the] Grantor and regardless of where located (collectively, the “Copyright
Collateral”):
A.
all Copyrights, including those Copyright registrations and pending applications for registration in the United States Copyright
Office listed on Schedule I;
B.
the right to sue third parties for past, present and future infringements of any Copyright, and
C.
all proceeds of and rights associated with the foregoing;
in each case to the extent the foregoing items constitute Collateral.
Notwithstanding anything to the contrary in (A) through
(C) above, this Agreement shall not constitute a grant of a security interest in any Excluded Assets.
SECTION 3.
Security Agreement. The security interests granted to the Collateral Agent herein are granted in furtherance, and not in
limitation of, the security interests granted to the Collateral Agent pursuant to the Security Agreement. [Each][The] Grantor
hereby acknowledges and affirms that the rights and remedies of the Collateral Agent with respect to the Copyright Collateral are more
fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set
forth herein. In the event of any conflict between the terms of this Agreement and the Security Agreement, the terms of the Security Agreement
shall govern.
SECTION 4. Governing
Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties
hereto have duly executed this Agreement as of the day and year first above written.
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[●]
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By:
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Name: [●]
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Title: [●]
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JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
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By:
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Name:
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Title:
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SCHEDULE I
COPYRIGHTS
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REGISTERED OWNER
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REGISTRATION NUMBER
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TITLE
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COPYRIGHT APPLICATIONS
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APPLICANT
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APPLICATION NUMBER
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TITLE
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EXHIBIT A
[FORM OF]
FIRST LIEN COPYRIGHT SECURITY AGREEMENT SUPPLEMENT
This FIRST LIEN COPYRIGHT SECURITY AGREEMENT SUPPLEMENT
is entered into as of [●][●], [●] (this “Copyright Security Agreement Supplement”), among
[●] ([each, a][the] “Grantor”) and JPMorgan Chase Bank, N.A. (“JPM”), as
Collateral Agent (the “Collateral Agent”) for the Secured Parties.
Reference
is made to that certain First Lien Pledge and Security Agreement, dated as of September 25, 2020 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time and in effect on the date hereof, the “Security Agreement”), among
the Loan Parties party thereto and the Collateral Agent. The First Lien Lenders (as defined below) have extended credit to Kingpin Intermediate
Holdings LLC, a Delaware limited liability company subject to the terms and conditions set forth in that certain First Lien Credit Agreement
dated as of September 25, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified and in effect on the date
hereof, the “First Lien Credit Agreement”), by and among Borrower, Bowlero Corp., a Delaware corporation (“Holdings”),
the lenders from time to time party thereto (collectively, the “First Lien Lenders”) and JPM, in its capacities as
administrative agent and collateral agent for the Secured Parties. Consistent with the requirements set forth in Sections 4.01
and 5.12 of the First Lien Credit Agreement, the [Grantor][Grantors] and the Collateral Agent have entered into that
certain First Lien Copyright Security Agreement, dated as of September 25, 2020 (as amended, restated, amended and restated, supplemented
or otherwise modified from time to time and in effect on the date hereof, the “Copyright Security Agreement”). Under
the terms of the Security Agreement, the Grantor has granted to the Collateral Agent for the benefit of the Secured Parties as security
interest in the Additional Copyright Collateral (as defined below) and have agreed, consistent with the requirements of Section 4.03(c)
of the Security Agreement, to execute this Copyright Security Agreement Supplement. Now, therefore, the parties hereto agree as follows:
SECTION
1. Terms. Capitalized terms used in this Copyright Security Agreement Supplement and not otherwise defined herein have the
meanings specified in the Security Agreement.
SECTION 2.
Grant of Security Interest. As security for the prompt and complete payment or performance, as the case may be, in full
of the Obligations, [each][the] Grantor, pursuant to the Security Agreement, did and hereby does pledge, collaterally assign,
mortgage, transfer and grant to the Collateral Agent, its successors and permitted assigns, on behalf of and for the ratable benefit of
the Secured Parties, a continuing security interest in all right, title or interest in, to or under all of the following assets, whether
now owned or at any time hereafter acquired by [such][the] Grantor and regardless of where located (collectively, the “Additional
Copyright Collateral”):
A.
the Copyright registrations and pending applications for registration in the United States Copyright Office listed on Schedule
I hereto;
B.
the right to sue third parties for past, present and future infringements of such Copyright registrations and pending applications
for registration, and
C.
all proceeds of and rights associated with the foregoing; in each case to the extent the foregoing items constitute Collateral.
Notwithstanding anything to the contrary in (A) through
(C) above, this Copyright Security Agreement Supplement shall not constitute a grant of a security interest in any Excluded Assets.
SECTION 3.
Security Agreement. The security interests granted to the Collateral Agent herein are granted in furtherance, and not in
limitation of, the security interests granted to the Collateral Agent pursuant to the Security Agreement. [Each][The] Grantor
hereby acknowledges and affirms that the rights and remedies of the Collateral Agent with respect to the Additional Copyright Collateral
are more fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if
fully set forth herein. In the event of any conflict between the terms of this Copyright Security Agreement Supplement and the Security
Agreement, the terms of the Security Agreement shall govern.
SECTION 4.
Governing Law. This Copyright Security Agreement Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties
hereto have duly executed this Copyright Security Agreement Supplement as of the day and year first above written.
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[●]
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By:
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Name: [●]
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Title:[●]
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JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
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By:
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Name:
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Title:
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SCHEDULE I
COPYRIGHTS
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REGISTERED OWNER
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REGISTRATION NUMBER
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TITLE
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COPYRIGHT APPLICATIONS
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APPLICANT
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APPLICATION NUMBER
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TITLE
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EXHIBIT I
FORM OF
GUARANTY AGREEMENT
[See attached]
Execution Version
FIRST LIEN LOAN GUARANTY
THIS FIRST
LIEN LOAN GUARANTY (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Loan
Guaranty”) is entered into as of September 25, 2020 by and among Bowlero Corp., a Delaware corporation (“Holdings”),
the Subsidiary Parties (as defined below) from time to time party hereto (Holdings and the Subsidiary Parties, collectively, the “Loan
Guarantors”) and JPMorgan Chase Bank, N.A., in its capacity as administrative agent and collateral agent for the lenders party
the First Lien Credit Agreement referred to below (in such capacity, the “Administrative Agent”).
PRELIMINARY STATEMENT
Reference is
hereby made to that certain First Lien Credit Agreement dated as of September 25, 2020 (as amended, restated, amended and restated, supplemented
or otherwise modified from time to time, the “First Lien Credit Agreement”), by and among, inter alios, Holdings,
the Borrower (as defined below), the First Lien Lenders (as defined below) and the Administrative Agent.
The Loan Guarantors
are entering into this Loan Guaranty in order to induce the First Lien Lenders to enter into and extend credit to the Borrower under the
First Lien Credit Agreement and to guarantee the Obligations.
Each Loan Guarantor will obtain
benefits from the incurrence of Loans by the Borrower. ACCORDINGLY, the parties hereto agree as follows:
ARTICLE
1 DEFINITIONS
Section 1.01.
Definitions of Certain Terms Used Herein. As used in this Loan Guaranty, in addition to the terms defined in the preamble and Preliminary
Statement above, the following terms shall have the following meanings:
“Accommodation Payment”
has the meaning assigned to such term in Section 2.09.
“Administrative Agent” has the meaning
assigned to such term in the preamble.
“Article” means
a numbered article of this Loan Guaranty, unless another document is specifically referenced.
“Borrower” means the “Borrower”
under and as defined in the First Lien Credit Agreement.
“Exhibit” refers to a specific exhibit to this Loan Guaranty,
unless another document is
specifically referenced.
“First Lien Credit Agreement”
has the meaning assigned to such term in the Preliminary Statement.
“First Lien Lenders”
means the “Lenders” under and as defined in the First Lien Credit Agreement.
“Guaranteed Obligations” has the meaning
assigned to such term in Section 2.01.
“Guarantor Percentage” has the meaning
assigned to such term in Section 2.09(a).
“Guaranty Supplement” has the meaning assigned
to such term in Section 3.04.
“Holdings” has the meaning set forth
in the preamble, or, as applicable, means New Holdings.
“Loan Guarantors” has the meaning assigned to such term in
the preamble.
“Loan Guaranty” has the meaning assigned
to such term in the preamble. “Maximum Liability” has the meaning assigned to such term in Section 2.09(a).
“Non-Paying Guarantor” has the meaning
assigned to such term in Section 2.09(a).
“Obligated Party” has the meaning assigned
to such term in Section 2.02.
“Paying Guarantor” has the meaning assigned
to such term in Section 2.09(a).
“Section”
means a numbered section of this Loan Guaranty, unless another document is specifically referenced.
“subsidiary”
has the meaning assigned to such term in the First Lien Credit Agreement.
“Subsidiary Parties” means (a) the
Restricted Subsidiaries of the Borrower identified on Exhibit A hereto and (b) each other Restricted Subsidiary that becomes
a party to this Loan Guaranty as a Subsidiary Party after the date hereof, in accordance with Section 3.04 herein and Section
5.12 of the First Lien Credit Agreement.
“UFCA” has the meaning
assigned to such term in Section 2.09(a).
“UFTA” has the meaning assigned to such
term in Section 2.09(a).
The foregoing
definitions shall be equally applicable to both the singular and plural forms of the defined terms. Capitalized terms used in this Loan
Guaranty and not otherwise defined herein shall have the meanings set forth in the First Lien Credit Agreement.
ARTICLE 2
LOAN GUARANTY
Section 2.01. Guaranty.
Except as otherwise provided for herein (including under Section 3.15), each Loan Guarantor hereby agrees that it is jointly and
severally liable for, and, as primary obligor and not merely as surety, absolutely, unconditionally and irrevocably guarantees to the
Administrative Agent (acting as agent for the Secured Parties, pursuant to Article 8 of the First Lien Credit Agreement) for the
ratable benefit of the Secured Parties, the full and prompt payment, when and as the same shall become due, whether at stated maturity,
upon acceleration or otherwise, and at all times thereafter, of the Obligations, together with any and all expenses which may be incurred
by the Administrative Agent and the other Secured Parties in collecting any of the Guaranteed Obligations that are reimbursable in accordance
with Section 9.03 of the First Lien Credit Agreement (collectively, the “Guaranteed Obligations”). Each Loan
Guarantor further agrees that the Guaranteed Obligations may be extended or renewed in whole or in part without notice to or further
assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. If any or all of the Guaranteed
Obligations becomes due and payable hereunder, each Loan Guarantor, unconditionally and irrevocably, promises to pay such Guaranteed
Obligations to the Administrative Agent for the benefit of the Secured Parties, on demand. Each Loan Guarantor unconditionally and irrevocably
guarantees the payment of any and all of the Guaranteed Obligations whether or not due or payable by the Borrower upon the occurrence
of any of the Events of Default specified in Sections 7.01(f) or (g) of the First Lien Credit Agreement and thereafter
irrevocably and unconditionally promises to pay such Guaranteed Obligations to the Administrative Agent for the benefit of the Secured
Parties. This Loan Guaranty is a continuing one and all liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon.
Section 2.02.
Guaranty of Payment. This Loan Guaranty is a guaranty of payment and not of collection. Each Loan Guarantor waives any right to
require the Administrative Agent or any First Lien Lender to sue the Borrower, any Loan Guarantor, any other guarantor, or any other Person
obligated for all or any part of the Guaranteed Obligations (each of the Borrower, each Loan Guarantor, each other guarantor or such other
Person, an “Obligated Party”), or otherwise to enforce its rights in respect of any Collateral securing all or any
part of the Guaranteed Obligations. The Administrative Agent may enforce this Loan Guaranty at any time when an Event of Default has occurred
and is continuing.
Section 2.03. No Discharge or Diminishment of Loan Guaranty.
(a)
Except as otherwise provided for herein (including under Section 3.15), the obligations of each Loan Guarantor hereunder
are unconditional, irrevocable and absolute and not subject to any reduction, limitation, impairment or termination for any reason, including:
(i) any claim of waiver, release, extension, renewal, settlement, surrender, alteration, or compromise of any of the Guaranteed Obligations,
by operation of law or otherwise; (ii) any change in the corporate existence, structure or ownership of the Borrower or any Obligated
Party; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any other Obligated Party, or their assets
or any resulting release or discharge of any obligation of any Obligated Party; (iv) the existence of any claim, setoff or other rights
which any Loan Guarantor may have at any time against any Obligated Party, the Administrative Agent, any First Lien Lender or any other
Person, whether in connection herewith or in any unrelated transactions; (v) any direction as to application of payments by the Borrower
or by any other party; (vi) any other continuing or other guaranty, undertaking or maximum liability of a guarantor or of any other party
as to the Guaranteed Obligations; (vii) any payment on or in reduction of any such other guaranty or undertaking; (viii) any dissolution,
termination or increase, decrease or change in personnel by the Borrower or (ix) any payment made to any Secured Party on the Guaranteed
Obligations which any such Secured Party repays to the Borrower pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Loan Guarantor waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding.
(b)
Except for termination of a Loan Guarantor’s obligations hereunder or as expressly permitted by Section 3.15, the
obligations of each Loan Guarantor hereunder are not subject to any defense or setoff, counterclaim, recoupment, or termination whatsoever
by reason of the invalidity, illegality, or unenforceability of any of the Guaranteed Obligations or otherwise, or any Requirements of
Law purporting to prohibit payment by any Obligated Party, of the Guaranteed Obligations or any part thereof.
(c) Further, the obligations
of any Loan Guarantor hereunder are not discharged or impaired or otherwise affected by: (i) the failure of the Administrative Agent
to assert any claim or demand or to enforce any remedy with respect to all or any part of the Guaranteed Obligations; (ii) any
waiver or modification of or supplement to any provision of any agreement relating to the Guaranteed Obligations; (iii) any release,
non-perfection, or invalidity of any indirect or direct security for the obligations of the Borrower for all or any part of the
Guaranteed Obligations or any obligations of any other guarantor of or other Person liable for any of the Guaranteed Obligations;
(iv) any action or failure to act by the Administrative Agent with respect to any Collateral securing any part of the Guaranteed
Obligations; or (v) any default, failure or delay, willful or otherwise, in the payment or performance of any of the Guaranteed
Obligations, or any other circumstance, act, omission or delay that might in any manner or to any extent vary the risk of such Loan
Guarantor or that would otherwise operate as a discharge of any Loan Guarantor as a matter of law or equity, in each case, other
than as set forth in Section 3.15.
Section 2.04.
Defenses Waived. To the fullest extent permitted by applicable law, and except for termination of a Loan Guarantor’s obligations
hereunder or as otherwise provided for herein (including under Section 3.15), each Loan Guarantor hereby waives any defense based
on or arising out of any defense of the Borrower or any other Loan Guarantor or arising out of the disability of the Borrower or any other
Loan Guarantor or any other party or the unenforceability of all or any part of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Borrower or any other Loan Guarantor. Without limiting the generality of
the foregoing, each Loan Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and, to the fullest extent permitted
by applicable law, any notice not provided for herein or in any other Loan Document, including notices of nonperformance, notices of protest,
notices of dishonor, notices of acceptance of this Loan Guaranty, and notices of the existence, creation or incurring of new or additional
Guaranteed Obligations, as well as any requirement that at any time any action be taken by any Person against any Obligated Party, or
any other Person, including any right (except as may be required by applicable law and to the extent the relevant requirement cannot be
waived) to require the Administrative Agent to (i) proceed against the Borrower, any other Loan Guarantor or any other party, (ii) proceed
against or exhaust any security held from the Borrower, any other Loan Guarantor or any other party or (iii) pursue any other remedy in
the Administrative Agent’s power whatsoever. The Administrative Agent may, at its election and in accordance with the terms of the
applicable Loan Documents, foreclose on any Collateral held by it by one or more judicial or nonjudicial sales, whether or not every aspect
of any such sale is commercially reasonable (to the extent permitted by applicable law), accept an assignment of any such Collateral in
lieu of foreclosure or otherwise act or fail to act with respect to any Collateral securing all or a part of the Guaranteed Obligations,
and the Administrative Agent may, at its election, compromise or adjust any part of the Guaranteed Obligations, make any other accommodation
with any Obligated Party or exercise any other right or remedy available to it against any Obligated Party, or any security, without affecting
or impairing in any way the liability of such Loan Guarantor under this Loan Guaranty, except as otherwise provided in Section 3.15.
To the fullest extent permitted by applicable law, each Loan Guarantor waives any defense arising out of any such election even though
such election may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right
or remedy of any Loan Guarantor against any Obligated Party or any security.
Section 2.05.
Authorization. Each Loan Guarantor authorizes the Administrative Agent without notice or demand (except as may be required by applicable
law and to the extent the relevant requirement cannot be waived), and without affecting or impairing its liability hereunder (except as
set forth in Section 3.15), from time to time, subject to the Intercreditor Agreement and the terms of the referenced Loan Documents,
to:
(a) change the manner, place or
terms of payment of, and/or change or extend the time of payment of, renew, increase, accelerate or alter, any of the Guaranteed Obligations
(including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon), any security therefor,
or any liability incurred directly or indirectly in respect thereof, and this Loan Guaranty shall apply to the Guaranteed Obligations
as so changed, extended, renewed or altered;
(b)
take and hold security for the payment of the Guaranteed Obligations and sell, exchange, release, impair, surrender, realize upon
or otherwise deal with in any manner and in any order any property by whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and/or any offset there against;
(c)
exercise or refrain from exercising any rights against the Borrower, any other Loan Party or others or otherwise act or refrain
from acting;
(d)
release or substitute any endorser, any guarantor, the Borrower, any other Loan Party and/or any other obligor;
(e)
settle or compromise any of the Guaranteed Obligations, any security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment
of any liability (whether due or not) of the Borrower to its creditors other than the Secured Parties;
(f)
apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of the Borrower to the Secured Parties
regardless of what liability or liabilities of the Borrower remain unpaid;
(g)
consent to or waive any breach of, or any act, omission or default under, this Loan Guaranty, the First Lien Credit Agreement,
any other Loan Document or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify or supplement
this Loan Guaranty, the First Lien Credit Agreement, any other Loan Document or any of such other instruments or agreements; and/or
(h)
take any other action which would, under otherwise applicable principles of common law, give rise to a legal or equitable discharge
of the Loan Guarantors from their respective liabilities under this Loan Guaranty.
Section 2.06.
Rights of Subrogation. No Loan Guarantor will assert any right, claim or cause of action, including a claim of subrogation, contribution
or indemnification that it has against any Loan Party in respect of this Loan Guaranty until the occurrence of the Termination Date; provided
that if any amount shall be paid to such Loan Guarantor on account of such subrogation rights at any time prior to the Termination Date,
then unless such Loan Guarantor has already discharged its liabilities under this Loan Guaranty in an amount equal to such Loan Guarantor’s
Maximum Liability as of such date, such amount shall be held by the recipient Loan Guarantor in trust for the benefit of the Secured Parties
and shall forthwith be paid by the recipient Loan Guarantor to the Administrative Agent to be credited and applied to the Guaranteed Obligations,
whether matured or unmatured, in accordance with Section 2.18(b) of the First Lien Credit Agreement.
Section 2.07. Reinstatement;
Stay of Acceleration. If at any time any payment of any portion of the Guaranteed Obligations is rescinded or must otherwise be
restored or returned upon the insolvency, bankruptcy, or reorganization of the Borrower or otherwise, each Loan Guarantor’s
obligations under this Loan Guaranty with respect to that payment shall be reinstated at such time as though the payment had not
been made. If acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the
Guaranteed Obligations shall nonetheless be payable by the other Loan Guarantors forthwith on demand by the Administrative
Agent.
Section 2.08. Information.
Each Loan Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks that each Loan Guarantor assumes and incurs under this Loan Guaranty, and agrees that none of the Administrative Agent, any First
Lien Lender or any other Secured Party shall have any duty to advise any Loan Guarantor of information known to it regarding those circumstances
or risks.
Section 2.09. Contribution; Subordination; Maximum
Liability.
(a)
In the event any Loan Guarantor (a “Paying Guarantor”) makes any payment or payments under this Loan Guaranty
or suffers any loss as a result of any realization upon any Collateral granted by it to secure its obligations under this Loan Guaranty
(each such payment or loss, an “Accommodation Payment”), each other Loan Guarantor (each a “Non-Paying Guarantor”)
shall contribute to such Paying Guarantor an amount equal to such Non-Paying Guarantor’s “Guarantor Percentage” of such
Accommodation Payments by such Paying Guarantor. For purposes of this Article 2, each Non-Paying Guarantor’s “Guarantor
Percentage” with respect to any such Accommodation Payments by a Paying Guarantor shall be determined as of the date on which
such Accommodation Payment was made by reference to the ratio of (a) such Non-Paying Guarantor’s Maximum Liability (as defined below)
as of such date to (b) the aggregate Maximum Liability of all Loan Guarantors hereunder (including such Paying Guarantor) as of such date.
As of any date of determination, the “Maximum Liability” of each Loan Guarantor shall be equal to the maximum amount
of liability which could be asserted against such Loan Guarantor hereunder and under the First Lien Credit Agreement without (i) rendering
such Loan Guarantor “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent
Transfer Act (“UFTA”) or Section 2 of the Uniform Fraud Conveyance Act (“UFCA”), (ii) leaving such
Loan Guarantor with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA
or Section 5 of the UFCA, or (iii) leaving such Loan Guarantor unable to pay its debts as they become due within the meaning of Section
548 of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA. Nothing in this provision shall affect any Loan Guarantor’s
several liability for the entire amount of the Guaranteed Obligations (up to such Loan Guarantor’s Maximum Liability). Each of the
Loan Guarantors covenants and agrees that its right to receive any contribution under this Loan Guaranty from a Non-Paying Guarantor shall
be subordinate and junior in right of payment to the Obligations until the Termination Date. If, prior to the Termination Date, any such
contribution payments are received by a Paying Guarantor at any time when an Event of Default has occurred and is continuing, such contribution
payments shall be collected, enforced and received by such Loan Guarantor as trustee for the Secured Parties and be paid over to the Administrative
Agent on account of the Obligations, but without affecting or impairing in any manner the liability of such Loan Guarantor under the other
provisions of this Loan Guaranty. This provision is for the benefit of the Administrative Agent, the First Lien Lenders and the other
Secured Parties.
(b) It
is the desire and intent of the Loan Guarantors and the Secured Parties that this Loan Guaranty shall be enforced against the Loan
Guarantors to the fullest extent permissible under the law and public policies applied in each jurisdiction in which enforcement is
sought. The provisions of this Loan Guaranty are severable, and in any action or proceeding involving any state corporate law, or
any state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if
the obligations of any Loan Guarantor under this Loan Guaranty would otherwise be held or determined to be avoidable, invalid or
unenforceable on account of the amount of such Loan Guarantor’s liability under this Loan Guaranty, then, notwithstanding any
other provision of this Loan Guaranty to the contrary, the amount of such liability shall, without any further action by the Loan
Guarantors or the Secured Parties, be automatically limited and reduced to such Loan Guarantor’s Maximum Liability. Each Loan
Guarantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the Maximum Liability of such Loan
Guarantor without impairing this Loan Guaranty or affecting the rights and remedies of the Administrative Agent hereunder; provided
that nothing in this sentence shall be construed to increase any Loan Guarantor’s obligations hereunder beyond its Maximum
Liability.
Section 2.10.
Representations and Warranties. On the date hereof, and to the extent required in accordance with the terms of the First Lien Credit
Agreement, each Loan Guarantor hereby makes each applicable representation and warranty made in the Loan Documents by the Borrower with
respect to such Loan Guarantor, and each Loan Guarantor hereby further acknowledges and agrees with respect to such Loan Guarantor that
such Loan Guarantor has, independently and without reliance upon any Secured Party and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Loan Guaranty and each other Loan Document to which it
is or is to be a party, and such Loan Guarantor has established adequate means of obtaining from each other Loan Guarantor on a continuing
basis information pertaining to the business, condition (financial or otherwise), operations, performance, properties and prospects of
each other Loan Guarantor.
Section 2.11.
Covenants. Each Loan Guarantor covenants and agrees that until the Termination Date, such Loan Guarantor will perform and observe,
and cause each of its respective Restricted Subsidiaries to perform and observe, all of the terms, covenants and agreements set forth
in the Loan Documents that the Borrower has agreed to cause such Loan Guarantor or such Restricted Subsidiaries to perform or observe.
ARTICLE 3
GENERAL PROVISIONS
Section 3.01.
Liability Cumulative. The liability of each Loan Guarantor under this Loan Guaranty is in addition to and shall be cumulative with
all liabilities of such Loan Guarantor to the Administrative Agent and the First Lien Lenders under the First Lien Credit Agreement and
the other Loan Documents to which such Loan Guarantor is a party or in respect of any obligations or liabilities of the other Loan Guarantors,
without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides
to the contrary.
Section 3.02.
No Waiver; Amendments. No delay or omission of the Administrative Agent to exercise any right or remedy granted under this Loan
Guaranty shall impair such right or remedy or be construed to be a waiver of any Default or Event of Default or an acquiescence therein,
and any single or partial exercise of any such right or remedy shall not preclude any other or further exercise thereof or the exercise
of any other right or remedy. No waiver, amendment or other variation of the terms, conditions or provisions of this Loan Guaranty whatsoever
shall be valid unless in writing signed by the Loan Guarantors and the Administrative Agent in accordance with Section 9.02 of
the First Lien Credit Agreement and then only to the extent specifically set forth in such writing.
Section
3.03. Severability of Provisions. To the extent permitted by applicable law, any provision of this Loan Guaranty held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions
of this Loan Guaranty; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision
in any other jurisdiction.
Section 3.04.
Additional Subsidiaries. Certain Restricted Subsidiaries of the Borrower may be required to enter into this Loan Guaranty as a
Subsidiary Party pursuant to and in accordance with Section 5.12 of the First Lien Credit Agreement. Upon execution and delivery
by any such Restricted Subsidiary of an instrument in substantially the form of Exhibit B hereto (each, a “Guaranty Supplement”),
such Restricted Subsidiary shall become a Subsidiary Party hereunder with the same force and effect as if originally named as a Subsidiary
Party herein. The execution and delivery of any such instrument shall not require the consent of any other Loan Guarantor hereunder or
any other Person. The rights and obligations of each Loan Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Loan Guarantor as a party to this Loan Guaranty.
Section 3.05.
Headings. The titles of and section headings in this Loan Guaranty are for convenience of reference only, and shall not govern
the interpretation of any of the terms and provisions of this Loan Guaranty.
Section 3.06.
Entire Agreement. This Loan Guaranty and the other Loan Documents constitute the entire agreement among the parties relating to
the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter
hereof.
Section 3.07.
CHOICE OF LAW. THIS LOAN GUARANTY AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS LOAN GUARANTY, WHETHER
IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
Section 3.08. CONSENT TO JURISDICTION; CONSENT TO
SERVICE OF PROCESS.
(a)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF
ANY U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM)
OVER ANY SUIT, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS LOAN GUARANTY AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENTS BY REGISTERED MAIL ADDRESSED TO SUCH
PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY APPLICABLE LAW.
(b) TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND AGREES THAT ALL SUCH
SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL) DIRECTED TO IT AT ITS ADDRESS FOR NOTICES
AS PROVIDED FOR IN SECTION 9.01 OF THE FIRST LIEN CREDIT AGREEMENT. EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION TO SUCH SERVICE
OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER THAT SERVICE
OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS LOAN GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY TO THIS LOAN GUARANTY TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Section 3.09.
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LOAN GUARANTY, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS LOAN GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
Section 3.10.
Indemnity. Each Loan Guarantor hereby agrees to indemnify the Administrative Agent and the other Indemnitees, as set forth in Section
9.03 of the First Lien Credit Agreement.
Section 3.11. Counterparts.
This Loan Guaranty may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute
an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature
page of this Loan Guaranty by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery
of a manually executed counterpart of this Loan Guaranty.
Section 3.12.
INTERCREDITOR AGREEMENT GOVERNS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE GUARANTEE OF THE GUARANTEED OBLIGATIONS GRANTED
TO THE ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THIS LOAN GUARANTY AND THE EXERCISE OF ANY RIGHT OR REMEDY
BY THE ADMINISTRATIVE AGENT ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND ANY OTHER ACCEPTABLE INTERCREDITOR AGREEMENT.
IN THE EVENT OF ANY CONFLICT BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT OR ANY OTHER ACCEPTABLE INTERCREDITOR AGREEMENT, ON
THE ONE HAND, AND THIS LOAN GUARANTY, ON THE OTHER HAND, THE PROVISIONS OF SUCH INTERCREDITOR AGREEMENT OR OTHER ACCEPTABLE INTERCREDITOR
AGREEMENT, AS APPLICABLE, SHALL GOVERN AND CONTROL.
Section
3.13. Successors and Assigns. Whenever in this Loan Guaranty any of the parties hereto is referred to, such reference shall
be deemed to include the successors and permitted assigns of such party; and all covenants, promises and agreements by or on behalf
of any Loan Guarantor or the Administrative Agent that are contained in this Loan Guaranty shall bind and inure to the benefit of
their respective successors and permitted assigns. Except in a transaction permitted under the First Lien Credit Agreement
(including a transaction resulting in a Successor Borrower or New Holdings), no Loan Guarantor may assign any of its rights or
obligations hereunder without the written consent of the Administrative Agent.
Section 3.14.
Survival of Agreement. Without limitation of any provision of the First Lien Credit Agreement or Section 3.10 hereof, all
covenants, agreements, indemnities, representations and warranties made by the Loan Guarantors in the Loan Documents and in the certificates
or other instruments delivered in connection with or pursuant to this Loan Guaranty or any other Loan Document shall be considered to
have been relied upon by the First Lien Lenders and shall survive the execution and delivery of the Loan Documents and the making of any
Loans, regardless of any investigation made by any such First Lien Lender or on its behalf and notwithstanding that the Administrative
Agent or any First Lien Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty
at the time any credit is extended under the First Lien Credit Agreement, and shall continue in full force and effect until the Termination
Date, or with respect to any individual Loan Guarantor until such Loan Guarantor is otherwise released from its obligations under this
Loan Guaranty in accordance with Section 3.15.
Section 3.15.
Release of Loan Guarantors. A Subsidiary Party shall automatically be released from its obligations hereunder and its Loan Guaranty
shall be automatically released in the circumstances described in Article 8 and Section 9.22 of the First Lien Credit Agreement.
In connection with any such release, the Administrative Agent shall promptly execute and deliver to any Loan Guarantor, at such Loan Guarantor’s
expense, all documents that such Loan Guarantor shall reasonably request to evidence such termination or release. Any execution and delivery
of documents pursuant to the preceding sentence of this Section 3.15 shall be without recourse to or warranty by the Administrative
Agent (other than as to the Administrative Agent’s authority to execute and deliver such documents).
Section 3.16.
Payments. All payments made by any Loan Guarantor hereunder will be made without setoff, counterclaim or other defense and on the
same basis as payments are made by the Borrower under Sections 2.17 and 2.18 of the First Lien Credit Agreement.
Section 3.17.
Notice, etc. All notices and other communications provided for hereunder shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by facsimile or email, as follows:
(a)
if to any Loan Guarantor, addressed to it in care of the Borrower at its address specified in Section 9.01 of the First
Lien Credit Agreement; or
(b)
if to the Administrative Agent or any First Lien Lender, at its address specified in Section 9.01 of the First Lien Credit
Agreement.
Section 3.18.
Setoff. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights,
while an Event of Default has occurred and is continuing, the Administrative Agent, each First Lien Lender and each of their respective
Affiliates shall be entitled to rights of setoff to the extent provided in Section 9.09 of the First Lien Credit Agreement.
Section 3.19. Waiver of
Consequential Damages, Etc. To the extent permitted by applicable law, none of the Loan Guarantors nor the Secured Parties shall
assert, and each hereby waives, any claim against each other or any Related Party thereof, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Loan Guaranty or any agreement or instrument contemplated hereby, except, in the case of any claim by any Indemnitee
against any of the Loan Guarantors, to the extent such damages would otherwise be subject to indemnification pursuant to the terms
of Section 3.10.
[SIGNATURE PAGE
FOLLOWS]
IN WITNESS WHEREOF, each Loan
Guarantor and the Administrative Agent have executed this Loan Guaranty as of the date first above written.
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BOWLERO CORP.,
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as Holdings
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By:
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/s/ Brett I. Parker
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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Signature Page to First Lien Loan Guaranty
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AMF Beverage Company of Oregon, Inc.
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AMF Bowling Centers Holdings Inc.
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AMF Bowling Centers, Inc.
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AMF Bowling Worldwide, Inc.
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AMF Worldwide Bowling Centers Holdings Inc.
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Bowlero Jupiter Lanes, LLC
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Bowlero Scottsdale, LLC
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Bowlero Leesburg, LLC
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Bowlero Dania, LLC
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Bowlero Ann Arbor, LLC
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Bowlero Arcadia, LLC
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Bowlero Arlington, LLC
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Bowlero Atlantic Station, LLC
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Bowlero Broadway Seattle, LLC
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Bowlero Charlotte, LLC
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Bowlero East Hartford, LLC
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Bowlero Fairview, LLC
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Bowlero Manteca, LLC
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Bowlero Mission Valley, LLC
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Bowlero Oxnard, LLC
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Bowlero Sawgrass, LLC
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Bowlero Sports and Entertainment Holdings, LLC
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Bowlero Tukwila, LLC
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Bowlero Tuscaloosa, LLC
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Bowlero Tysons Corner, LLC
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Bowlero Wallingford, LLC
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Bowlmor Lanes LLC
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Bowlmor Times Square, LLC
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Brunswick Recreation LLC
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Brunswick Riverview Club, Inc.
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Brunswick Zone XL Colorado Springs, LLC
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Brunswick Zone XL Rockford LLC
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Bush River Corporation
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Goode Bowling LLC
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King Louie Lenexa, Inc.
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Kingpin Intermediate LLC
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L’aigle D’or, Inc.
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Leiserv, LLC
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Perry Hall Lounge, Inc.
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Strike Holdings LLC
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Strike Miami, LLC
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Strike Cupertino VFP, LLC
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Strike Tustin TDTL, LLC
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Strike Consulting, LLC
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Strike Long Island, LLC
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Texas Operations Holding Company, Inc.
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Westwood Lanes, LLC
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By:
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/s/ Brett I. Parker
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Name:
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Brett I. Parker
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Signature Page to First Lien Loan Guaranty
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300, Inc.
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Texas Operations, LLC
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By:
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/s/ William Dufour
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Name:
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William Dufour
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Title:
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President
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Signature Page to First Lien Loan Guaranty
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The Columbia Lounge, Inc.
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By:
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/s/ Thomas F. Shannon
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Name:
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Thomas F. Shannon
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Title:
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President
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Signature Page to First Lien Loan Guaranty
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JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
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By:
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/s/ Colin J. Doherty
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Name:
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Colin J. Doherty
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Title:
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Executive Director
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Signature Page to First Lien Loan Guaranty
EXHIBIT B
JOINDER
AGREEMENT
THIS JOINDER
AGREEMENT (this “Agreement”), dated as of [●], 20[●], is entered into among [●], a [●] (the
“New Subsidiary”), and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative
Agent”) pursuant to that certain First Lien Loan Guaranty, dated as of [●], 2020 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the “First Lien Loan Guaranty”), by and among Bowlero Corp.,
a Delaware corporation (“Holdings”), the Subsidiary Parties from time to time party thereto (Holdings and the Subsidiary
Parties, collectively, the “Loan Guarantors”) and JPMorgan Chase Bank, N.A., in its capacity as administrative agent
and collateral agent for the lenders party the First Lien Credit Agreement. All capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the First Lien Loan Guaranty.
[Each] [The]
New Subsidiary and the Administrative Agent, for the benefit of the Secured Parties, hereby agree as follows:
1.
[Each] [The] New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this Agreement, [each] [the] New
Subsidiary will be deemed to be a Loan Guarantor under the First Lien Loan Guaranty and a Loan Guarantor for all purposes of the First
Lien Credit Agreement and shall have all of the rights, benefits, duties and obligations of a Loan Guarantor thereunder as if it had executed
the First Lien Loan Guaranty. [Each] [The] New Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by, all of the
terms, provisions and conditions contained in the First Lien Loan Guaranty. Without limiting the generality of the foregoing terms of
this paragraph 1, [each] [the] New Subsidiary hereby absolutely and unconditionally guarantees, jointly and severally with the
other Loan Guarantors, to the Administrative Agent and the Secured Parties, the prompt payment of the Guaranteed Obligations in full when
due (whether at stated maturity, upon acceleration or otherwise) to the extent of and in accordance with the First Lien Loan Guaranty.
2.
[Each] [The] New Subsidiary hereby waives acceptance by the Administrative Agent and the Secured Parties of the guaranty by the
New Subsidiary upon the execution of this Agreement by the New Subsidiary.
3.
[Each] [The] New Subsidiary hereby (x) makes, as of the date hereof, each representation and warranty set forth in Section 2.10
of the First Lien Loan Guaranty, except as set forth on Schedule A hereto and (y) agrees to perform and observe, and to cause each
of its Restricted Subsidiaries to perform and observe, the covenants set forth in Section 2.11 of the First Lien Loan Guaranty.
4.
From and after the execution and delivery hereof by the parties hereto, this Agreement shall constitute a “Loan Document”
for all purposes of the First Lien Credit Agreement and the other Loan Documents.
5.
This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement
by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed
counterpart of this Agreement.
6.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF,
[each] [the] New Subsidiary has caused this Agreement to be duly executed by its authorized officer and the Administrative Agent, for
the benefit of the Secured Parties, has caused the same to be accepted by its authorized officer, as of the day and year first above written.
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[NEW SUBSIDIARY]
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By:
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Name:
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Title:
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[Signature
Page to Joinder Agreement to First Lien Loan Guaranty]
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Acknowledged and accepted:
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JPMORGAN CHASE BANK, N.A.,
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as Administrative Agent
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By:
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Name:
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Title:
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[Signature
Page to Joinder Agreement to First Lien Loan Guaranty]
[SCHEDULE A
CERTAIN EXCEPTIONS]
EXHIBIT J
FORM OF
SECURITY AGREEMENT
[See attached]
J-1
Exhibit
10.20
NOTICE
OF GRANT OF STOCK OPTION AWARD
Bowlero
Corp (fka Bowlmor AMF Corp.), a Delaware corporation (the “Company”) granted to you Options (the “Options”)
to purchase shares of the Company’s Common Stock under the Company’s 2017 Bowlmor AMF Corp. Stock Incentive Plan (the
“Plan”). Capitalized terms not defined in this Grant Notice or the attached Award Agreement shall have the
meanings specified for such terms in the Plan.
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Award
Recipient:
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[__]
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Award
Type:
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Stock
Options
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Award
Amount:
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Total
Common Shares subject to the Options:
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[__]
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Number
of Common Shares exercisable as Service Options:
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[__]1
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Number
of Common Shares exercisable as Performance Options:
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[__]2
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Option
Exercise Price:
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$[__]
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Grant
Date:
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[●]
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Vesting
Period for Service Options:
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As
set forth in the attached Award Agreement, each of the Service Options will vest and become exercisable in quarterly installments
over a four-year period, subject to your continued service with the Company or its Subsidiaries as of each such vesting date,
provided that the accelerated vesting provisions set forth in Section 3(a) of the Award Agreement shall apply with
respect to any unvested portion of the Service Options in the event of a Sale of the Company or Triggering IPO (as each term
is defined in the Award Agreement) and subject to your continued service requirements.
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Vesting
Period for Performance Options:
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As
set forth in the attached Award Agreement, each of the Performance Options will (A) vest in four equal annual installments
with 25% vesting on each of the first four anniversaries of the grant date, subject to your continued service with the
Company or its Subsidiaries as of each such anniversary and (B) become exercisable, as of or following vesting, in full,
in connection with any Sale of the Company or Triggering IPO, provided that the performance criteria set forth
in Section 3(b) of the Award Agreement are met.
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Terms
and Conditions:
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The
Options are subject to all the terms and conditions set forth in this Stock Option Award Grant Notice (this “Grant
Notice”), in the Award Agreement, in the Restrictive Covenant Annex and in the Plan.
Without
a complete review of these documents, you will not have a full understanding of all the material terms of your award.
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The
securities evidenced by this certificate have not been registered under the Securities Act of 1933, as amended, or applicable
state securities Laws and may not be sold, transferred, assigned, offered, pledged or otherwise disposed of unless there is an
effective registration statement under such Act or such disposition is exempt from the registration. In addition, any such disposition
shall be subject to the terms of the applicable Stockholders’ Agreement dated as of June 6, 2017 (as amended from time to
time) a copy of which is on file in the Company’s offices. By acceptance of this Grant Notice, the holder accepts such provisions
of the Stockholders’ Agreement.
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1
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NTD:
75% of the grant will be in the form of Service Options.
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2
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NTD:
25% of the grant will be in the form of Performance Options.
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OPTION
AWARD AGREEMENT
(Under
the 2017 Bowlmor AMF Corp. Stock Incentive Plan)
THIS
AWARD AGREEMENT (the “Award Agreement”) is made and entered into as of [●] between Bowlero Corp. (fka
Bowlmor AMF Corp.), a Delaware corporation (the “Company”), and [●] (the “Participant”).
The
Company hereby grants to the Participant the options (as defined below, the “Options”) to purchase certain
Common Shares on the terms and conditions as set forth in this Award Agreement and in the 2017 Bowlmor AMF Corp. Stock Incentive
Plan (the “Plan”). The Options are Nonqualified Options. Capitalized terms not otherwise defined herein have
the meanings set forth in the Plan.
In
accordance with this grant, and as a condition thereto, the Company and the Participant agree as follows:
SECTION
1. Number of Common Shares; Types of Options; Date of Grant; Exercise Price. The Stock Option Award Grant Notice (the
“Grant Notice”) attached hereto sets forth the number of Common Shares which are the subject of Options and
the date of grant of the Options (the “Grant Date”). The Grant Notice sets forth the number of Common Shares
which are the subject of Options exercisable pursuant to Section 4(a) below (the “Service Options”) and the
number of Common Shares which are the subject of Options exercisable pursuant to Section 4(b) below (the “Performance
Options,” and, collectively, together with the Service Options, the “Options”). The exercise price
at which each Common Share may be purchased under the Options (the “Exercise Price”) is at least the fair market
value of a Common Share as of the Grant Date, and is set forth on the attached Grant Notice.
SECTION
2. Term. The Options shall not be exercisable to any extent after the twelfth (12th) anniversary of the Grant Date.
SECTION
3 Vesting Schedule.
(a)
Subject to the terms and conditions of this Award Agreement, including the limitations on exercisability set forth in Section
4 and the Plan, the Service Options will vest and become exercisable in equal quarterly installments (subject to the rounding
described below) over a four-year period, subject to the Participant’s continued service with the Company or its Subsidiaries
as of each such vesting date (with any fractional shares rounded up to the next whole number of Common Shares for each vesting
date and the number of shares vesting as of the last vesting reduced as necessary so that the aggregate number of shares does
not exceed the number of Common Shares subject to the Options specified on the Grant Notice). Notwithstanding the forgoing, any
unvested portion of the Service Segment will become fully vested upon a Sale of the Company (as defined below) or Triggering IPO
(as defined below), subject to the Participant’s continued service with the Company or its Subsidiaries as of the date of
the Sale of the Company or Triggering IPO.
(b)
Subject to the terms and conditions of this Award Agreement, including the limitations on exercisability set forth in Section
4 and the Plan, the Performance Options will vest in four equal annual installments with 25% vesting on each of the first four
anniversaries of the grant date, subject to the Participant’s continued service with the Company or its Subsidiaries as
of each such anniversary.
SECTION
4. Limitation on Exercisability. Notwithstanding the vesting schedule set forth in Section 3, the exercisability of
the Options is subject to the limitations set forth in this Section 4.
(a)
Exercise of Service Options. To the extent that the Service Options are or become vested in accordance with Section 3 above,
such vested Service Options shall be fully exercisable upon such vesting and prior to the expiration or termination of the Service
Options as provided in this Award Agreement.
(b)
Exercise of Performance Options. To the extent that any portion of the Performance Options are or become vested in accordance
with Section 3 above, such vested Performance Options shall be fully exercisable only upon the occurrence of a Sale of the Company
or Triggering IPO, in each case, which results in an Atairos Return that is equal to a multiple of at least 2.0 times the Atairos
Investors’ aggregate invested capital in the Company on the Grant Date, prior to expiration or termination of the Performance
Options as provided in this Award Agreement.
(c)
Definitions and Determinations. For the purposes of this Award Agreement, the terms below shall have the meaning designated:
(i)
“Atairos Cumulative Interest” means the greatest amount of the Atairos Investors’ collective interest,
direct or indirect, in the Company acquired at any time prior to a Sale of the Company or Triggering IPO, as the case may be.
(ii)
“Atairos Investors” means the Atairos Entities, their Affiliates and their Permitted Transferees (as defined
in the Stockholders’ Agreement), as those terms are defined in the Plan.
(iii)
“Atairos Return” means, as of any Sale of the Company or Triggering IPO, the sum of (x) the value of all
proceeds that will actually be received by the Atairos Investors as a result of the divestiture of the Atairos
Investors’ interest, direct or indirect, in the Company in connection with the relevant Sale of the Company or
Triggering IPO, valued as of the date received by the Atairos Investors and net of any customary transaction expenses
incurred by the Atairos Investors associated with such divestiture (to the extent such expenses are not borne by the
Company), (y) the value of all prior proceeds actually received by the Atairos Investors from all previous divestitures of
the Atairos Investors’ interest, direct or indirect, in the Company and any cash dividends or distributions received by
the Atairos Investors as the result of any extraordinary recapitalization transactions by the Company, in each case valued at
the fair value of such proceeds, dividends or distributions as of the date received by the Atairos Investors and net of any
customary transaction expenses associated with such divestitures, dividends or distributions incurred by the Atairos
Investors (to the extent such expenses are not borne by the Company) and (z) the value of the Atairos Investors’
interest, direct or indirect, in the Company that will be retained by the Atairos Investors following the relevant Sale of
the Company or Triggering IPO, valued by reference to the fair value of the proceeds received by the Atairos Investors in
connection with the Sale of the Company or Triggering IPO and net of any customary transaction expenses associated with such
divestitures incurred by the Atairos Investors (to the extent such expenses are not borne by the Company).
(iv)
“Sale of the Company” means (1) a negotiated sale of interests in the Company pursuant to a stock sale, exchange
or similar transaction (other than a Triggering IPO) or a merger of the Company into another company, provided that any
such transaction results in the Atairos Investors having divested 50% or more of the Atairos Cumulative Interest to one or more
parties all of whom are not affiliates of any of the Atairos Investors, Tom Shannon or the Company (collectively, the “Initial
Investors”); or (2) a sale of all or substantially all of the assets of the business conducted by the Company and its
Subsidiaries to one or more parties, other than parties that the Initial Investors control or in which the Initial Investors own
a majority interest.
(v)
“Triggering IPO” means an underwritten public offering of Shares pursuant to an effective registration statement
under the Securities Act of 1933 (as amended), other than pursuant to a registration statement on Form S-4 or Form S-8 or any
similar or successor form, in which the Atairos Investors are secondary sellers and after which the Atairos Investors will have
divested 15% or more of the Atairos Cumulative Interest.
(d)
All determinations and measurements required to compute the Atairos Cumulative Interest, Atairos Return or other amounts under
this Award Agreement, and to determine whether any transaction constitutes a Sale of the Company or Triggering IPO, shall be made
by the Board in its reasonable good faith judgment and shall be final and binding on all parties for all purposes under this Award
Agreement.
SECTION
5.
(a)
Notice of Exercise. Exercise of the Options, in whole or in part, shall be by delivery of a notice to the Company as provided
in Section 12 which specifies the number of Common Shares being purchased.
(b)
Payment of Exercise Price. (i) In the event that the Participant’s employment or service with the Company has been
terminated by the Participant’s resignation for any reason, payment of the Exercise Price by the person exercising the Options
shall be in cash and (ii) in any other event, payment of the Exercise Price may, at the Participant’s election, be made
by the Company withholding from the person providing the notice described in Section 5(a) a net number of Common Shares equal
to such person’s obligation to pay the Exercise Price from the number of Common Shares that are subject to the Options being
exercised.
(c)
Payment of Taxes. The Company has the authority to deduct or withhold, or require the Participant to remit to the Company,
an amount sufficient to satisfy applicable federal, state, local and foreign withholding taxes (including the employee portion
of any FICA obligation) required by law to be withheld with respect to any taxable event arising pursuant to this Award Agreement:
(i) in the event that the Participant’s employment or service with the Company has been terminated by the Participant’s
resignation for any reason, payment of the withholding taxes or Participant’s other tax obligations arising from the exercise
of the Options (the “Applicable Taxes”) by the person exercising the Options shall be in cash and (ii) in any
other event, payment of the Applicable Taxes may, at the Participant’s election, be made by the Company withholding from
the person providing the notice described in Section 5(a) a net number of Common Shares having an aggregate Fair Market Value
of the Applicable Taxes.
(d)
Notwithstanding the foregoing, Sections 5(b)(ii) and 5(c)(ii) shall not apply with respect to any exercise that occurs at a time
when the Common Shares are listed and traded on a national U.S. retail securities exchange and the Common Shares underlying the
Options are covered by an effective registration statement under the Securities Act and an appropriate listing application, and
a broker-assisted cashless exercise procedure is freely available to the Participant, provided that there is no legal or
contractual impediment to the Participant’s use of the broker-assisted cashless exercise procedure.
(e)
Certificate. Promptly after receipt of the notice described in Section 5(a) and payment of the Exercise Price and associated
withholding taxes described in Sections 5(b) and 5(c), the Company shall deliver to the person exercising the Options a certificate,
or other indication of ownership, for the number of Common Shares purchased. Common Shares to be issued upon the exercise of the
Options may be either authorized and unissued Common Shares or Common Shares which have been reacquired by the Company.
SECTION
6. Termination of Employment or Service. In the event of a termination of the Participant’s employment or service
with the Company or any of its Subsidiaries (the date of such termination, the “Termination Date”), the Options
may be exercised as follows:
(a)
Termination without Cause; Termination due to Death or Disability. If the Participant’s employment or service with
the Company or any of its Subsidiaries terminates due to a termination by the Company or any of its Subsidiaries without Cause
or due to the Participant’s death or Disability:
(i)
any vested portion of the Options will be retained and will remain subject Sections 4 and 6(a)(iv);
(ii)
with respect to any unvested and outstanding Options, subject to the vesting conditions of Section 3, the Participant will receive
service credit as if the termination of such Participant’s employment or service with the Company or any of its Subsidiaries
was on the one-year anniversary of the Termination Date;
(iii)
any unvested portion of the Options that has not vested according to this Section 6(a) will be deemed immediately forfeited and
canceled in their entirety upon such termination of employment or service or breach without any payment or consideration being
due from the Company; and
(iv)
with respect to any vested Options, the Participant will have a period of ninety (90) days after such termination to exercise
the vested portion of any Service Options and any Performance Options, and after such applicable period, subject to the Stockholders’
Agreement, such vested Options will be deemed immediately forfeited and canceled in their entirety upon such termination of employment
or service without any payment or consideration being due from the Company.
(b)
Termination for Cause. If the Participant’s employment or service with the Company or any of its Subsidiaries is
terminated by the Company or any of its Subsidiaries for Cause, both the vested and unvested portion of the Options shall be deemed
immediately forfeited and canceled in their entirety upon such termination of employment or service or breach without any payment
or consideration being due from the Company.
(c)
Voluntary Termination. If the Participant’s employment or service with the Company or any of its Subsidiaries is
terminated for any reason by the Participant:
(i)
any vested portion of the Options will be retained and will remain subject Sections 4 and 6(c)(iii);
(ii)
any unvested portion of the Options will be deemed immediately forfeited and canceled in their entirety upon such termination
of employment or service or breach without any payment or consideration being due from the Company; and
(iii)
with respect to any vested Options, the Participant will have a period of ninety (90) days after such termination to exercise
the vested portion of any Service Options and any Performance Options, and after such applicable period, subject to the Stockholders’
Agreement, such vested Options will be deemed immediately forfeited and canceled in their entirety upon such termination of employment
or service without any payment or consideration being due from the Company.
(d)
Company Call Right. The Options and the Common Shares underlying the Options will be subject to the repurchase rights and
other terms set forth in the Stockholders’ Agreement.
SECTION
7. Representations. The Participant represents and warrants that:
(a)
The Participant is an executive officer of the Company and is qualified to purchase the Common Shares underlying the Options because
he or she has such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits
and risks of such investment.
(b)
Any Common Shares the Participant may acquire upon exercise of the Options will be for the Participant’s own account for
investment and not with any view to the distribution thereof, and the Participant will not sell, assign, transfer or otherwise
dispose of any of the Common Shares underlying the Options, or any interest therein, in violation of the Securities Act or any
applicable state securities law.
(c)
The Participant understands that (i) the Common Shares acquired upon exercise of the Options will not be registered under the
Securities Act or any applicable state securities law and may not be sold or otherwise disposed of unless they are registered
or sold or otherwise disposed of in a transaction that is exempt from such registration; and (ii) the certificates representing
such Common Shares will bear appropriate legends restricting the transferability thereof.
(d)
The Participant understands that the Company Group will rely upon the completeness and accuracy of these representations in establishing
that the contemplated transactions are exempt from the Securities Act and hereby affirms that all such representations are accurate
and complete. The Participant will notify the Company immediately of any changes in any of such information occurring during the
term of the Options.
SECTION
8. Restrictive Covenants.
(a)
As a condition precedent to receiving the Options granted pursuant to this Award Agreement, the Participant (i) acknowledges and
agrees that the Participant and the Company and its Affiliates have entered into the Confidential Information and Work Product
Assignment Agreement (the “Restrictive Covenant Agreement”) and (ii) reaffirms that the restrictive covenants
and other promises and obligations set forth in the Restrictive Covenant Agreement will apply as set forth therein, and with respect
to the non-competition and non-solicitation covenants, during the Participant’s employment and for 12 months following the
Participant’s employment with the Company.
(b)
As an additional condition precedent to receiving the Options granted pursuant to this Award Agreement, the Participant shall
execute and agree to be subject to the restrictive covenants as set forth in Annex I, and the restrictions imposed by the
covenants set forth in Annex I will apply (i) solely for the purposes of the Options and the Participant’s entitlements
to the Options and (ii) during the Participant’s employment and for the two-year period following the Participant’s
employment with the Company.
(c)
It is acknowledged and agreed that in the event that the Participant engages in any action or activity that would constitute a
breach by the Participant of any of the applicable restrictive covenants described in either the Restrictive Covenant Agreement
or the Restrictive Covenant Annex attached as Annex I to this Award Agreement (in each case, relating to confidentiality,
noncompetition, non-hire, non-solicitation obligations or other obligations described therein and subject to all applicable notice
and cure provisions in the relevant agreements):
(i)
such action or activity will be a “Restrictive Covenant Breach” for the purpose of the Stockholders’ Agreement;
and
(ii)
(A) the Participant will forfeit any portion of the Options that have not been exercised and (B) with respect to any portion of
the Options that have been exercised, to the extent that the Participant has transferred or sold the Common Shares acquired from
such exercise, the Participant shall pay to the Company any proceeds received from the transfer or sale of such Common Shares
in excess of the Exercise Price paid for such Common Shares.
(iii)
Solely for the purposes of this Section 8(c), and the terms of this Section 8(c) applicable to the Participant’s entitlements
with respect to the Options, the restrictions imposed under the Restrictive Covenant Agreement and the restrictive covenants as
set forth in Annex I are hereby incorporated by reference but shall apply for the period of the Participant’s employment
and the two-year period following the Participant’s employment with the Company.
SECTION
9. Integration of Stockholders’ Agreement and Award Terms; Spousal Consent. In consideration of, and as a condition
to, the effectiveness of the Options, to the extent that the Participant is not already a Stockholder (as defined in the Stockholders’
Agreement), the Participant must execute and deliver to the Company an instrument or instruments substantially in the form of
Exhibit A hereto confirming that the Participant has agreed to be bound as a “Stockholder” and “Management
Stockholder” by the terms of the Stockholders’ Agreement. For the avoidance of doubt, the Participant shall have no
rights as a Stockholder and Management Stockholder under the Stockholders’ Agreement during any period that the Participant
is not the record owner of Common Shares, but shall be subject to the call rights under Section 4.9 of the Stockholders’
Agreement. The Participant agrees to cause any current or future spouse of his or hers to deliver to the Company a consent in
the form of the consent set forth in Exhibit B hereto validly executed by such spouse on the date hereof or promptly after
any such person becomes his or her spouse, as applicable.
SECTION
10. Governing Law; Waiver of Jury Trial. This Award Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware without regard to the conflicts of laws rules of such state. Each of the parties hereto hereby
irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Award Agreement
or the transactions contemplated hereby.
SECTION
11. Interpretation. The Participant accepts the Options subject to all the terms and provisions of the Plan, which
shall control in the event of any conflict between any provision of the Plan and this Award Agreement, and accepts as binding,
conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Plan and/or this Award
Agreement. The Participant acknowledges receiving a copy of the Plan.
SECTION
12. Notices. Any notice under this Award Agreement shall be (a) if in writing, effective when delivered in person or
deposited in the United States mail, postage prepaid, registered or certified, and addressed to the Participant at his or her
last known address on the books of the Company or, in the case of the Company, at the address set forth below, subject to the
right of either party to designate some other address at any time hereafter in a notice satisfying the requirements of this Section
12, or (b) if delivered by electronic email transmission, effective on the day on which such electronic email transmission was
sent; provided, that no rejection notice is received.
c/o
Bowlero Corp.
222
West 44th Street
New
York, NY 10036
Attention:
Brett Parker, Chief Financial Officer
Email:
bparker@bowlmor.com
With
a copy to:
Davis
Polk & Wardwell
450
Lexington Avenue
New
York, New York 10017
Attention:
William J. Chudd
SECTION
13. Sections and Headings. All section references in this Award Agreement are to sections hereof for convenience of
reference only and are not to affect the meaning of any provision of this Award Agreement.
SECTION
14. Assignment. The Company may, without the consent of the Participant, assign this Award Agreement (or any of its
rights or interests under this Award Agreement) to any successor to all or substantially all of the assets or business of the
Company in which case references to the Company under this Award Agreement shall be deemed to be references to such successor.
SECTION
15. Severability. If any provision of this Award Agreement shall be held invalid or unenforceable, such invalidity
or unenforceability shall not affect any other provisions hereof, and this Award Agreement shall be construed and enforced as
if such provisions had not been included; provided, however, that if the Company’s call rights set forth in the Stockholders’
Agreement or other agreement shall be held invalid or unenforceable, the Awards granted under this Award Agreement shall be cancelled
and terminated.
SECTION
16. Complete Agreement. This Award Agreement, those documents expressly referred to herein and other documents of even
date herewith embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in
any way.
SECTION
17. Counterparts. This Award Agreement may be executed in any number of counterparts, each of which shall be deemed
to be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Award Agreement
shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto.
Until and unless each party has received a counterpart hereof signed by the other party hereto, this Award Agreement shall have
no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement
or other communication).
IN
WITNESS WHEREOF, the undersigned have caused this Award Agreement to be duly executed as of the date first above written.
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BOWLERO
CORP.
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By:
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Name:
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Title:
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PARTICIPANT
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By:
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Name:
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[●]
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[Signature
Page for Option Award Agreement]
ANNEX
I
RESTRICTIVE
COVENANT ANNEX
As
a material condition to being granted the Options, [●] (the “Participant”) agrees that any violation
by the Participant of the Participant’s covenants under this Restrictive Covenant Annex shall constitute a Restrictive Covenant
Breach for purposes of the Stockholders’ Agreement and shall cause an immediate and automatic imposition of the provisions
of Section 8(c)(ii) of the Award Agreement accompanying this Annex I and the provisions of Section 9 of this Annex I. Capitalized
terms used and not otherwise defined herein shall have the meanings applied to them under the 2017 Bowlmor AMF Corp. Stock Incentive
Plan or the Award Agreement accompanying this Annex I.
The
Participant acknowledges and agrees that:
The
business in which the Company and its Affiliates is engaged is extremely competitive and that, during the Participant’s
employment with the Company or its Affiliates, the Participant has received and will receive and have access to materials and
information regarding the Company’s and its Affiliates’ services, technologies, products, know-how and sales that
are proprietary and confidential to the Company and its Affiliates. The Participant recognizes that these materials and information
are important and valuable assets to the Company and its Affiliates and that the Company and its Affiliates have a legitimate
interest in protecting the confidential and proprietary nature of these materials and information.
The
Company and its Affiliates have spent and will continue to spend substantial time and money developing their services, technologies
and products and training their employees in respect thereof. The Participant recognizes that these services, technologies, products
and trainings are important and valuable assets to the Company and its Affiliates and that the Company and its Affiliates have
a legitimate interest in protecting these services, technologies, products and trainings. The Company and its Affiliates have
provided and will be providing the Participant with information, materials, property, training and confidential information during
the Participant’s employment and may also be providing the Participant with the opportunity to contribute to the creation
of confidential information, which will assist both the Company and its Affiliates and the Participant to compete effectively.
The Participant recognizes that these services, materials and confidential information are an important and valuable asset to
the Company and its Affiliates and that the Company and its Affiliates have a legitimate interest in protecting the confidential
and proprietary nature of these services, materials and information and that the Company and its Affiliates have spent and will
continue to spend substantial time and money developing the confidential information.
The
Company and its Affiliates also have dedicated their time and resources developing and maintaining relationships with existing
and potential customers, referral sources, agents, distributors, employees and vendors. During the Participant’s employment
with the Company or its Affiliates, the Participant understands that the Company and its Affiliates expect the Participant to
continue to develop and maintain these relationships on their behalf. The Participant recognizes that these relationships are
an important and valuable asset to the Company and its Affiliates and that the Company and its Affiliates have a legitimate interest
in protecting these relationships.
The
Participant has reviewed this Restrictive Covenant Annex and agrees that the restrictions set forth herein are reasonable and
are circumscribed in a manner necessary and appropriate to protect the Company’s and its Affiliates’ valid business
interests.
The
Participant is entering into this Restrictive Covenant Annex in exchange for valuable, additional consideration provided by the
Company or its Affiliates and the Participant is free to decline to accept such consideration and decline to enter into this Restrictive
Covenant Annex.
The
restrictions imposed by this Restrictive Covenant Annex will not impose undue economic hardship on the Participant and the Participant
freely accepts the restrictions in exchange for the consideration and opportunities offered by the Company or its Affiliates.
Based
upon, and in addition to the understandings, acknowledgements and agreements above, the Participant further agrees as follows:
Section
1. Noncompetition. The Participant agrees that if the Participant were to become employed by, or substantially involved
in, the business of a competitor of the Company or any of its Affiliates during the Restricted Period, it would be very difficult
for the Participant not to rely on or use the Company’s or its Affiliates’ trade secrets and confidential information.
Thus, to avoid the inevitable disclosure of such trade secrets and confidential information, and to protect such trade secrets
and confidential information and the Company’s and its Affiliates’ relationships and goodwill with customers, during
the Restricted Period, except in the good faith performance of his duties hereunder, the Participant shall not directly or indirectly
through any other Person engage in, enter the employ of, render any services to, have any ownership interest in, nor participate
in the financing, operation, management or control of, any Competing Business. For purposes of this Restrictive Covenant Annex,
“Restricted Period” means the term of the Participant’s service with the Company and two (2) years following
the date that the Participant’s service with the Company terminates (the date of such termination, the “Termination
Date”). For purposes of this Restrictive Covenant Annex, the phrase “directly or indirectly through any other
Person engage in” shall include, without limitation, any direct or indirect ownership or profit participation interest in
such enterprise, whether as an owner, stockholder, member, partner, joint venturer or otherwise, and shall include any direct
or indirect participation in such enterprise as an employee, consultant, director, officer, licensor of technology or otherwise.
For purposes of this Restrictive Covenant Annex, “Competing Business” means any Person anywhere in the United
States and any other country in which the Company or any of its Affiliates operates (or plans to commence operations) that at
any time during the Participant’s period of employment is engaged in (or has plans to engage in), or at any time during
the six (6) month period following the Termination Date is engaged in (or has plans to engage in) a business related to bowling
or the operation of bowling centers. For purposes of this Restrictive Covenant Annex, “Person” shall be construed
broadly and shall include, without limitation, an individual, a partnership, a limited liability company, a corporation, an association,
a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency
or political subdivision thereof.
The
Participant acknowledges that, in addition to the other consideration provided hereunder, the Company’s or an Affiliate’s
agreement to continue to employ him pursuant to this Restrictive Covenant Annex constitutes sufficient consideration for the restrictive
covenants contained in this Section 1.
Section
2. Nonsolicitation of Customers. During the Restricted Period, the Participant shall not directly or indirectly through
any other Person influence or attempt to influence customers, vendors, suppliers, licensors, lessors, joint venturers, associates,
consultants, agents, or partners of the Company or any of its Affiliates to divert their business away from the Company, or such
Affiliate to a Competing Business, and the Participant shall not otherwise interfere with, disrupt or attempt to disrupt the business
relationships, contractual or otherwise, between the Company or any of its Affiliates, on the one hand, and any of its or their
customers, suppliers, vendors, lessors, licensors, joint venturers, associates, officers, employees, consultants, managers, partners,
members or investors, on the other hand in an effort to benefit a Competing Business. The foregoing shall not be violated by general
advertising of a customary nature not targeted at such persons or entities, nor by serving as a reasonable and customary reference
upon request.
Section
3. Nonsolicitation of Employees and Consultants. During the Restricted Period, except in the good faith performance of
his duties hereunder, the Participant shall not directly or indirectly through any other Person (a) induce or attempt to induce
any officer, other key employee or independent contractor of the Company or any of its Affiliates to leave the employ or service,
as applicable, of the Company or such Affiliate, or in any way interfere with the relationship between the Company or any Affiliate,
on the one hand, and any officer, other key employee or independent contractor thereof, on the other hand, or (b) hire any person
who was an officer or other employee of the Company or any of the Affiliates until six (6) months after such individual’s
employment relationship with the Company or such Affiliate has been terminated. The foregoing shall not be violated by general
advertising of a customary nature not targeted at such persons or entities, nor by serving as a reasonable and customary reference
upon request.
Section
4. Confidentiality. The Participant agrees that he will not disclose or use at any time, either during the Participant’s
employment with the Company or thereafter, any Confidential Information (as defined below) of which the Participant is or becomes
aware, whether or not such information is developed by the Participant, except to the extent that such disclosure or use is directly
related to the good faith performance of the Participant’s duties for the Company. The Participant agrees that he will take
all reasonable and appropriate steps to safeguard Confidential Information in his possession and to protect it against disclosure,
misuse, espionage, loss and theft. Notwithstanding the foregoing, the Participant may truthfully respond to a lawful and valid
subpoena, court order or other legal process, but the Participant agrees, to the extent he is permitted under applicable law and
the relevant request for disclosure: (i) to first give the Company the earliest possible notice thereof, (ii) to, as much in advance
of the return date as possible, make available to the Company and its counsel the documents and other reasonable information sought,
and (iii) to assist the Company and such counsel (at the Company’s expense) in resisting or otherwise responding to such
process, subject to the Participant’s other commitments. As used in this Restrictive Covenant Annex, the term “Confidential
Information” means information that is not generally known to the public and that is used, developed or obtained by
the Company or any Affiliates in connection with its business, including, but not limited to, information, observations and data
obtained by the Participant while employed by the Company or any predecessors thereof (including those obtained prior to the date
of this Restrictive Covenant Annex) concerning (i) the business or affairs of the Company or any Affiliate (including each of
their respective predecessors), (ii) products or services, (iii) fees, costs and pricing structures, (iv) designs, (v) analyses,
(vi) drawings, photographs and reports, (vii) computer software, including operating systems, applications and program listings,
(viii) flow charts, manuals and documentation, (ix) data bases, (x) accounting and business methods, (xi) inventions, devices,
new developments, methods and processes, whether patentable or unpatentable and whether or not reduced to practice, (xii) customers
and clients and customer or client lists, (xiii) other copyrightable works, (xiv) all production methods, processes, technology
and trade secrets, and (xv) all similar and related information in whatever form. Confidential Information will not be deemed
to have been published merely because individual portions of the information have been separately published, but only if all material
features comprising such information have been published in combination. The Participant further understands that Confidential
Information does not include any of the foregoing or other items that have become publicly known or made generally available through
no wrongful act (or failure to act) of the Participant or, to the knowledge of the Participant, of others who were under confidentiality
obligations as to the item or items involved or improvements or new versions thereof or is available, or becomes available, to
the Participant on a non-confidential basis, but only if the source of the information is not, to the Participant’s knowledge,
prohibited from transmitting the information to the Participant by a contractual, legal, fiduciary or other obligation. The Participant
acknowledges that, as between the Participant and the Company, all Confidential Information shall be the sole and exclusive property
of the Company and its assigns. Further, this Section 4 shall not prevent the Participant from disclosing Confidential Information
in connection with any litigation, arbitration or mediation involving the Participant’s employment or termination thereof,
including, but not limited to, enforcing this Restrictive Covenant Annex, provided that such disclosure is reasonably necessary
for the Participant to assert any claim or defense in such proceeding.
Section
5. Inventions.
(a)
Assignment of Inventions. The Participant agrees that he will promptly make full written disclosure to the Company, will
hold in trust for the sole right and benefit of the Company and hereby assigns to the Company, or its designee, all the Participant’s
right, title and interest in and to any and all inventions, original works of authorship, developments, concepts, improvements,
designs, mask works, prototypes, models, materials, discoveries, ideas, processes, formulas, data, know-how, techniques, trademarks
or trade secrets, whether or not patentable or registrable under copyright or similar laws, which the Participant may solely or
jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the entire
period of time the Participant is in the employ of the Company, whether before or after the execution of this Restrictive Covenant
Annex, except as provided in Section 5(e) below (collectively referred to as “Inventions”). Notwithstanding
anything to the contrary contained herein, for purposes of this Restrictive Covenant Annex, Inventions shall not include inventions
created by the Participant during non-business hours that are not related in any respect to the business (or any portion thereof)
of the Company. The Participant further acknowledges that all original works of authorship that are made by the Participant (solely
or jointly with others) within the scope of and during the period of his employment with the Company (whether before or after
the execution of this Restrictive Covenant Annex) and which are protectable by copyright are “works made for hire,”
as that term is defined in the United States Copyright Act.
(b)
Inventions Assigned to the United States. The Participant agrees to assign to the United States government all the Participant’s
right, title and interest in and to any and all Inventions whenever such full title is required to be in the United States by
a contract between the Company, on the one hand, and the United States or any of its agencies, on the other hand.
(c)
Maintenance of Records. The Participant agrees to keep and maintain adequate and current written records of all Inventions
made by the Participant (solely or jointly with others) during the term of his employment with the Company. The records will be
in the form of notes, notebooks, sketches, drawings or any other format that may be reasonably specified by the Company. The records
will be available to, and remain the sole property of the Company at all times.
(d)
Registrations and Enforcement. The Participant agrees to reasonably assist the Company, or its designee, at the Company’s
expense, in every proper way to secure, maintain, defend and enforce the Company’s rights in the Inventions and any copyrights,
patents, mask work rights or other intellectual property rights relating thereto in any and all countries, including the disclosure
to the Company of all pertinent information and data with respect thereto, the execution of all applications, specifications,
oaths, assignments and all other instruments which the Company shall deem necessary in order to apply for and obtain such rights
and in order to assign and convey to the Company or any successors, assigns and nominees the sole and exclusive rights, title
and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating
thereto. The Participant further agrees that his obligation to execute or cause to be executed, when it is in his power to do
so, any such instrument or papers shall continue after the termination of this Restrictive Covenant Annex, but the Company shall
compensate the Participant at a reasonable rate after his termination for the time actually spent by him at the Company’s
request on such assistance. If the Company is unable because of the Participant’s mental or physical incapacity or for any
other reason to secure his signature in connection with any of the foregoing actions (including as necessary to apply for or to
pursue any application for any United States or foreign patents or copyright registrations covering Inventions or original works
of authorship assigned to the Company as above), then the Participant hereby irrevocably designates and appoints the Company and
its duly authorized officers and agents as his agent and attorney in fact, to act for and in his behalf and stead (including to
execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of
letters patent or copyright registrations thereon) with the same legal force and effect as if executed by the Participant. The
Participant hereby waives and quitclaims to the Company any and all claims, of any nature whatsoever, which the Participant now
or may hereafter have for infringement of any Inventions assigned hereunder to the Company.
(e)
Obligation to Keep Company Informed. During the Period of Employment and for six (6) months after the Participant’s
Termination Date, the Participant will promptly disclose to the Company fully and in writing all Inventions authored, conceived
or reduced to practice by the Participant, either alone or jointly with others. In addition, the Participant will promptly disclose
to the Company all patent applications filed by him or on his behalf within a year after the Termination Date.
Section
6. Cooperation. For the Restricted Period, the Participant shall reasonably cooperate with the Company and the Affiliates
in connection with: (a) any internal or governmental investigation or administrative, regulatory, arbitral or judicial proceeding
involving any of them with respect to matters relating to the Participant’s employment with or service as a member of the
Board or the board of directors of any Affiliate; or (b) any audit of the financial statements of the Company or any Affiliate
with respect to the period of time when the Participant was employed by the Company.
Section
7. Return of Company Materials. The Participant agrees that, at the time of leaving the employ of the Company, the Participant
will deliver to the Company (and will not keep in the Participant’s possession, recreate or deliver to anyone else) any
and all devices, records, data, notes, notebooks, reports, proposals, lists, correspondence, specifications, drawings, blueprints,
sketches, materials, equipment, prototypes, samples, models and other documents or property, or reproductions of any aforementioned
items developed by the Participant pursuant to his employment with the Company or otherwise belonging to the Company, any Affiliate,
or their respective successors or assigns; provided that the Participant may retain his telephone directories, compensation
related documents and other personal property.
Section
8. Understanding of Covenants.
(a)
The Participant acknowledges that, in the course of the Participant’s employment with the Company and/or its Affiliates
and their predecessors, the Participant has become familiar, or will become familiar, with the Company’s, the Affiliates’
and their predecessors’ trade secrets and with other confidential and proprietary information concerning the Company, the
Affiliates and their respective predecessors and that the Participant’s services have been and will be of special, unique
and extraordinary value to the Company and the Affiliates. The Participant agrees that the foregoing covenants (together, the
“Restrictive Covenants”) are reasonable and necessary to protect the Company’s and the Affiliates’
trade secrets and other confidential and proprietary information, good will, stable workforce, and customer relations.
(b)
Without limiting the generality of the Participant’s agreement in the preceding paragraph, the Participant (i) represents
that the Participant is familiar with and has carefully considered the Restrictive Covenants, (ii) represents that the Participant
is fully aware of the Participant’s obligations hereunder, (iii) agrees to the reasonableness of the length of time, scope
and geographic coverage, as applicable, of the Restrictive Covenants, and (iv) agrees that the Restrictive Covenants shall continue
in effect for the applicable periods set forth above in this Restrictive Covenant Annex regardless of whether the Participant
is then entitled to receive severance pay or benefits from the Company. The Participant understands that the Restrictive Covenants
may limit the Participant’s ability to earn a livelihood in a business similar to the business of the Company, and the Affiliates,
but the Participant nevertheless believes that the Participant has received and will receive sufficient consideration and other
benefits as an employee of the Company to justify such restrictions and that such restrictions would prevent the Participant from
otherwise earning a living. The Participant acknowledges and agrees that the Restrictive Covenants do not confer a benefit upon
the Company and the Affiliates disproportionate to the detriment of the Participant; are not greater than is required to protect
the legitimate and valid business interests and goodwill of the Company and the Affiliates; are reasonably necessary to prevent
unfair competition; and are not injurious to the public.
Section
9. Enforcement and Venue for Enforcement.
Subject
to the provisions below in this Section 9, any controversy or claim arising out of or relating to this Restrictive Covenant Annex
or the breach thereof (including the ability to arbitrate any controversy or claim), shall be settled by arbitration in Delaware
in accordance with the laws of the State of Delaware. The arbitration shall be conducted in accordance with the commercial rules
of the American Arbitration Association. Except as otherwise provided herein, the cost of any arbitration proceeding hereunder
shall be borne by the Company. The award of the arbitrators shall be binding upon the parties. Judgment upon the award rendered
by the arbitrators may be entered in any court having jurisdiction thereof.
The
Participant agrees that the Participant’s services are unique and that the Participant has access to the Company’s
and the Affiliates’ trade secrets and other confidential and proprietary information. Accordingly, the Participant agrees
that a breach by the Participant of any of the covenants in this Restrictive Covenant Annex would cause immediate and irreparable
harm to the Company that would be difficult or impossible to measure, and that damages to the Company for any such injury would
therefore be an inadequate remedy for any such breach.
Therefore,
the Participant agrees that in the event of any breach or threatened breach of any provision of this Restrictive Covenant Annex,
the Company shall be entitled, in addition to any other right and remedy the Company may have, at law or in equity, to an injunction,
specific performance, and/or any other relief or remedy from any court of competent jurisdiction enjoining or restraining the
Participant from any violation or threatened violation of any of the covenants set forth in this Restrictive Covenant Annex. The
Participant further agrees that the applicable period of time any Restrictive Covenant is in effect following the Termination
Date, as determined pursuant to the foregoing provisions of this Restrictive Covenant Annex, such period of time shall be extended
by the same amount of time that the Participant is in breach of any Restrictive Covenant. The Participant further understands
and agrees that any court action brought pursuant to this Section 9 will be brought in federal or state court of Delaware, and
hereby expressly consents to the jurisdiction of such courts for that purpose.
If
any of such restrictions shall be deemed to be unreasonable by reason of the extent, duration or geographical scope thereof or
otherwise, then the court or arbitration tribunal making such determination shall have the right to reduce such extent, duration,
geographical scope, or other provisions hereof, and, in its reduced form, such restriction shall then be enforceable in the manner
so modified by the court or tribunal.
If
a court or arbitration tribunal makes a final and non-appealable determination that the Participant has breached any of the covenants
under this Restrictive Covenant Annex, in addition to and not in lieu of any remedies applicable under the Stockholders’
Agreement (i) the Company (or its designee) shall have the right (but not the obligation) to repurchase any of the Participant’s
shares of the Company’s common stock acquired pursuant to any stock options or other equity awards granted by the Company
(collectively, “Equity Awards”) at cost or Fair Market Value, whichever is lower, (ii) all of the Participant’s
Equity Awards that have not been exercised or settled, whether vested or unvested, will be forfeited, (iii) the Participant shall
disgorge to the Company all profits realized by the Participant with respect to any Equity Awards, and (iv) the Participant shall
not be entitled to any severance provided under any agreement with the Company or any severance plan or policy of the Company
and shall reimburse the Company for any such severance received by the Participant.
Section
10. Permitted Disclosures. The Participant has the right under federal law to certain protections for cooperating with
or reporting legal violations to the Securities and Exchange Commission (the “SEC”) and/or its Office of the
Whistleblower, as well as certain other governmental entities and self-regulatory organizations. As such, nothing in this Agreement
or otherwise prohibits or limits the Participant from disclosing this Agreement to, or from cooperating with or reporting violations
to or initiating communications with, the SEC or any other such governmental entity or self-regulatory organization, and the Participant
may do so without notifying the Company. The Company and its Affiliates may not retaliate against the Participant for any of these
activities, and nothing in this Agreement or otherwise requires the Participant to waive any monetary award or other payment that
the Participant might become entitled to from the SEC or any other governmental entity or self-regulatory organization. Moreover,
nothing in this Agreement or otherwise prohibits the Participant from notifying the Company that the Participant is going to make
a report or disclosure to law enforcement. Notwithstanding anything to the contrary in this Agreement or otherwise, as provided
for in the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1833(b)), the Participant will not be held criminally or civilly
liable under any federal or state trade secret law for the disclosure of a trade secret that (a) is made (i) in confidence to
a federal, state, or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose
of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit
or other proceeding, if such filing is made under seal. Without limiting the foregoing, if the Participant files a lawsuit for
retaliation by the Company for reporting a suspected violation of law, the Participant may disclose the trade secret to his or
her attorney and use the trade secret information in the court proceeding, if the Participant (x) files any document containing
the trade secret under seal, and (y) does not disclose the trade secret, except pursuant to court order.
Section
11. Governing Law. This Restrictive Covenant Annex shall be construed and interpreted in accordance with and governed by
the laws of the State of Delaware, other than the conflict of laws provisions of such laws.
Section
12. Section Headings. The section headings of, and titles of paragraphs and subparagraphs contained in, this Restrictive
Covenant Annex are for the purpose of convenience only, and they neither form a part of this Restrictive Covenant Annex nor are
they to be used in the construction or interpretation thereof.
Section
13. Severability. If any provision of this Restrictive Covenant Annex shall be finally determined by any court of competent
jurisdiction to be invalid or unenforceable for any reason, such judgment shall not affect, impair or invalidate the remainder
of this Restrictive Covenant Annex.
EXHIBIT
A
JOINDER
TO STOCKHOLDERS’ AGREEMENT
This
Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by the undersigned (the “Joining
Party”) in accordance with the Stockholders’ Agreement by and among (i) the Company, (ii) A-B Parent LLC, a Delaware
limited liability company, (iii) Cobalt Recreation LLC, a Delaware limited liability company, (iv) Thomas F. Shannon and (v) Atairos
Group, Inc., a Cayman Islands exempted company, dated as of June 6, 2017, as the same may be amended from time to time. Capitalized
terms used, but not defined, herein shall have the meaning ascribed to such terms in the Stockholders’ Agreement.
The
Joining Party hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall
be deemed to be a party to the Stockholders’ Agreement as of the date hereof and shall have all of the rights and obligations
of a “Stockholder” and “Management Stockholder” thereunder as if it had executed the Stockholders’
Agreement and that the Options granted to the Joining Party under the Grant Notice and Award Agreement to which this Joinder Agreement
is appended constitute “Equity Interests” subject to the Stockholders’ Agreement. The Joining Party hereby ratifies,
as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Stockholders’
Agreement.
To
the extent that the Joining Party has previously executed or subsequently executes the Stockholders’ Agreement or an additional
joinder agreement to the Stockholders’ Agreement, this Joinder Agreement shall nevertheless be given independent force and
effect as a supplemental affirmation of the Joining Party’s agreement to the terms of the Stockholders’ Agreement
in relation to the Joining Party’s receipt of the Options granted under the Grant Notice and Award Agreement to which this
Joinder Agreement is appended and any and all other Equity Interests acquired by the Joining Party.
[Signature
page follows]
IN
WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written below.
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Date:
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By:
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Name:
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Address
for Notices:
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[Signature
Page for Joinder Agreement]
EXHIBIT
B
CONSENT
OF SPOUSE
The
undersigned spouse of Participant who is the signatory to the foregoing Award Agreement has read and hereby approves the terms
and conditions of the Plan and this Award Agreement. In consideration of the Company’s granting his or her spouse the Options
as set forth in the Plan and this Award Agreement, the undersigned hereby agrees to be irrevocably bound by the terms and conditions
of the Plan and this Award Agreement and further agrees that any community property interest shall be similarly bound. The undersigned
hereby appoints the undersigned’s spouse as attorney-in-fact for the undersigned with respect to any amendment or exercise
of rights under the Plan or this Award Agreement.
[Signature
page follows]
IN
WITNESS WHEREOF, the undersigned has executed this consent as of the date written below.
Date:
[Signature
Page for Consent of Spouse]
Exhibit
10.21
EXECUTIVE
OPTION PLAN – RESIDUAL POOL AWARD
NOTICE
OF GRANT
Bowlmor
AMF Corp., a Delaware corporation (the “Company”) granted to you the Residual Pool of the Executive Option Plan in
the form of an option to purchase shares of the Company’s common stock (the “Option”) under the Company’s
2017 Bowlmor AMF Corp. Stock Incentive Plan (the “Plan”). Capitalized terms not defined in this Grant Notice or the
attached Award Agreement shall have the meanings specified for such terms in the Plan.
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Award
Recipient:
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Thomas
F. Shannon
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Award
Type:
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Stock
Option
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Award
Amount:
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143,457,
subject to reduction as set forth in the attached Award Agreement.
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Option
Exercise Price:
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$102.51
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Grant
Date:
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January
7, 2020
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Vesting
Period for Option:
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As
set forth in the attached Award Agreement, the Option will become vested and exercisable as of the date of a Sale of the Company
or Triggering IPO, subject to your continued service with the Company or its Subsidiaries as of such date.
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Terms
and Conditions:
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The
Option is subject to all the terms and conditions set forth in this Stock Option Award Grant Notice (this “Grant Notice”),
in the Award Agreement and in the Plan.
Without
a complete review of these documents, you will not have a full understanding of all the material terms of your award.
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The
securities evidenced by this certificate have not been registered under the Securities Act of 1933, as amended, or applicable state securities
laws and may not be sold, transferred, assigned, offered, pledged or otherwise disposed of unless there is an effective registration
statement under such Act or such disposition is exempt from the registration. In addition, any such disposition shall be subject to the
terms of the applicable Stockholders’ Agreement dated as of June 6, 2017 (as amended from time to time) a copy of which is on file
in the Company’s offices. By acceptance of this Grant Notice, the holder accepts such provisions of the Stockholders’ Agreement.
EXECUTIVE
OPTION PLAN – RESIDUAL POOL AWARD AGREEMENT
(Under
the 2017 Bowlmor AMF Corp. Stock Incentive Plan)
THIS
AWARD AGREEMENT (the “Award Agreement”) is made and entered into as of January 7, 2020 between Bowlmor AMF Corp.,
a Delaware corporation (the “Company”), and Thomas F. Shannon (the “Participant”).
The
Company and the Participant wish to agree to the treatment of unallocated awards under the 2017 Bowlmor AMF Corp. Stock Incentive Plan
(the “Plan”) as set forth in Section 1 of this Award Agreement.
The
Company hereby grants to the Participant an option to purchase certain Common Shares on the terms and conditions as set forth in this
Award Agreement and subject to the terms of the Plan (the “Option”). The Option is a Nonqualified Option. Capitalized
terms not otherwise defined herein have the meanings set forth in the Plan.
In
accordance with this grant, and as a condition thereto, the Company and the Participant agree as follows:
SECTION
1. Date of Grant; Exercise Price; Number of Common Shares. The Executive Option Plan – Residual Pool Award Notice of
Grant (the “Grant Notice”) attached hereto sets forth the date of grant of the Option (the “Grant Date”)
and the per share exercise price (the “Exercise Price”) applicable to the Option. The Grant Notice sets forth the
number of Common Shares which are the subject of the Option as of the Grant Date, provided that the number of Common Shares subject to
the Option shall be automatically reduced as of the issuance of Awards (the “Additional Awards”) under the Plan to
other Eligible Individuals (as determined by the Committee in consultation with the CEO) with such reduction to be a number of Common
Shares that represents 75% of each Common Share underlying an Additional Award (the Common Shares subject to the Option at any time,
the “Option Shares”). Any fractional shares resulting from the foregoing reduction shall be eliminated at the time
of exercise of the Option. The Exercise Price is at least the fair market value of a Common Share as of the Grant Date.
SECTION
2. Term. The Option shall not be exercisable to any extent after the twelfth (12th) anniversary of the Grant Date.
SECTION
3. Vesting.
(a)
Subject to the terms and conditions of this Award Agreement, the Option will become fully vested and exercisable as of the date of a
Sale of the Company (as defined below) or Triggering IPO (as defined below), subject to the Participant’s continued service with
the Company or its Subsidiaries as of the date of the Sale of the Company or Triggering IPO.
(b)
For the purposes of this Award Agreement, the terms below shall have the meaning designated:
(i)
“Atairos Investors” include A-B Parent LLC, a Delaware limited liability company and the Atairos Entities, their Affiliates
and their Permitted Transferees.
(ii)
“Atairos Cumulative Interest” means the greatest amount of the Atairos Investors’ collective interest, direct or indirect,
in the Company acquired at any time prior to a Sale of the Company.
(iii)
“Initial Investors” include (i) the Atairos Investors, (ii) Cobalt Recreation LLC, a Delaware limited liability company,
(iii) Thomas F. Shannon and (iv) Atairos Group, Inc., a Cayman Islands exempted company.
(iv)
“Initial Investors Cumulative Interest” means the greatest amount of the Initial Investors’ collective interest,
direct or indirect, in the Company acquired at any time prior to a Sale of the Company or Triggering IPO, as the case may be.
(v)
“Sale of the Company” means (1) a negotiated sale of interests in the Company pursuant to a stock sale, exchange or
similar transaction (other than a Triggering IPO) or a merger of the Company into another company, provided that any such transaction
results in either (x) the Initial Investors having divested 50% or more of each of their relative portions of the Initial Investors Cumulative
Interest to one or more parties all of whom are not affiliates of the Initial Investors or (y) the Atairos Investors having divested
77% or more of the Atairos Cumulative Interest to one or more parties all of whom are not affiliates of the Initial Investors; or (2)
a sale of all or substantially all of the assets of the business conducted by the Company and its Subsidiaries to one or more parties,
other than parties that the Initial Investors control or in which the Initial Investors own a majority interest.
(vi)
“Triggering IPO” means an underwritten public offering of Common Shares pursuant to an effective registration statement
under the Securities Act of 1933 (as amended), other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar
or successor form, in which the Initial Investors are secondary sellers and after which each of the Initial Investors will have divested
15% or more of each of their relative portions of the Initial Investors Cumulative Interest.
(c)
All determinations and measurements required to compute the Atairos Cumulative Interest or the Initial Investors Cumulative Interest
or other amounts under this Award Agreement, and to determine whether any transaction constitutes a Sale of the Company or Triggering
IPO, shall be made by the Board in its reasonable good faith judgment and shall be final and binding on all parties for all purposes
under this Award Agreement.
SECTION
4. Exercise.
(a)
Exercise of the Option, in whole or in part, shall be by delivery of a notice to the Company as provided in Section 12 which specifies
the number of Option Shares being purchased.
(b)
Payment of the Exercise Price may, at the Participant’s election, be made by the Company withholding from the person providing
the notice described in Section 4(a) a net number of Option Shares having an aggregate Fair Market Value equal to the Exercise Price
as of the date of the exercise.
(c)
The Company has the authority to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy
applicable federal, state, local and foreign withholding taxes (including the employee portion of any FICA obligation) required by law
to be withheld with respect to any taxable event arising pursuant to this Award Agreement. Payment of the withholding taxes or Participant’s
other tax obligations arising from the exercise of the Option (the “Applicable Taxes”) may, at the Participant’s
election, be made by the Company withholding upon the exercise of the Option a net number of Option Shares having an aggregate Fair Market
Value equal to the Applicable Taxes as of the date of the exercise.
(d)
Notwithstanding the foregoing, if, upon any exercise of the Option (x) the Common Shares are listed and traded on a national U.S. retail
securities exchange and the Option Shares are covered by an effective registration statement under the Securities Act and an appropriate
listing application, (y) a broker-assisted cashless exercise procedure is freely available to the Participant and (z) there is no legal
or contractual impediment to the Participant’s use of the broker-assisted cashless exercise procedure, Section 4(a) shall not apply
with respect to the exercise of the Option and instead the person exercising the Option will be required to fund the Exercise Price and
Applicable Taxes with cash and/or through effecting a broker-assisted cashless exercise.
(e)
Promptly after receipt of the notice described in Section 4(a) and payment of the Exercise Price and associated withholding taxes described
in Section 4(a), the Company shall deliver to the person exercising the Option a certificate, or other indication of ownership, for the
number of Option Shares purchased. Option Shares to be issued upon the exercise of the Option may be either authorized and unissued Common
Shares or Common Shares which have been reacquired by the Company.
SECTION
5. Change of Control. In the event of a Change of Control (as defined in the Plan), the Committee shall not be able to take
the actions described in Sections 7.01(a), (c), (d), or
(e)
of the Plan with respect to the Option, in each case, without the consent of the Participant. However, for the avoidance of doubt, the
Committee shall have full discretion, subject to any applicable regulatory approvals, to take whatever actions that it deems necessary
or appropriate to accomplish the action described in Section 7.01(b) of the Plan and the terms of the Stockholders’ Agreement with
respect to the Option and the underlying Option Shares.
SECTION
6. Termination of Employment or Service. In the event of a termination of the Participant’s employment or service with
the Company or any of its Subsidiaries prior to the Exercise Date for any reason (including a termination by the Company or Participant
for any reason or as a result of the death or disability of the Participant), the Option shall be deemed immediately forfeited and canceled
in its entirety upon such termination of employment or service without any payment or consideration being due from the Company.
SECTION
7. Representations. The Participant represents and warrants that:
(a)
The Participant is an executive officer of the Company and is qualified to purchase the Option Shares because he or she has such knowledge
and experience in financial and business matters that he or she is capable of evaluating the merits and risks of such investment.
(b)
Any Option Shares will be for the Participant’s own account for investment and not with any view to the distribution thereof, and
the Participant will not sell, assign, transfer or otherwise dispose of any of the Option Shares, or any interest therein, in violation
of the Securities Act or any applicable state securities law.
(c)
The Participant understands that (i) the Option Shares will not be registered under the Securities Act or any applicable state securities
law and may not be sold or otherwise disposed of unless they are registered or sold or otherwise disposed of in a transaction that is
exempt from such registration; and (ii) the certificates representing such Option Shares will bear appropriate legends restricting the
transferability thereof.
(d)
The Participant understands that the Company Group will rely upon the completeness and accuracy of these representations in establishing
that the contemplated transactions are exempt from the Securities Act and hereby affirms that all such representations are accurate and
complete. The Participant will notify the Company immediately of any changes in any of such information occurring during the term of
the Option.
SECTION
8. Restrictive Covenants.
(a)
As a condition precedent to receiving the Option granted pursuant to this Award Agreement, the Participant hereby reaffirms the Participant’s
agreement to the restrictive covenants set forth in the Employment Agreement and the Stockholders’ Agreement.
(b)
It is acknowledged and agreed that any material breach by the Participant of any of the applicable restrictive covenants described in
Section 8(a) (relating to confidentiality, noncompetition, non-hire, non-solicitation obligations or other obligations described therein
and subject to all applicable notice and cure provisions in the relevant agreements) will be a
“Restrictive
Covenant Breach” for the purpose of the Stockholders’ Agreement.
SECTION
9. Integration of Stockholders’ Agreement and Award Terms; Spousal Consent. In consideration of, and as a condition
to, the effectiveness of the Option, to the extent that the Participant is not already a Stockholder (as defined in the Stockholders’
Agreement), the Participant must execute and deliver to the Company an instrument or instruments substantially in the form of Exhibit
A hereto confirming that the Participant has agreed to be bound as a “Stockholder” and “Management Stockholder”
by the terms of the Stockholders’ Agreement. For the avoidance of doubt, the Participant shall have no rights as a Stockholder
and Management Stockholder under the Stockholders’ Agreement during any period that the Participant is not the record owner of
Option Shares, but shall be subject to the call rights under Section 4.9 of the Stockholders’ Agreement. The Participant agrees
to cause any current or future spouse of his or hers to deliver to the Company a consent in the form of the consent set forth in Exhibit
B hereto validly executed by such spouse on the date hereof or promptly after any such person becomes his or her spouse, as applicable.
SECTION
10. Governing Law; Waiver of Jury Trial. This Award Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware without regard to the conflicts of laws rules of such state. Each of the parties hereto hereby irrevocably
waives any and all right to trial by jury in any legal proceeding arising out of or related to this Award Agreement or the transactions
contemplated hereby.
SECTION
11. Interpretation. The Participant accepts the Option subject to all the terms and provisions of the Plan, which shall control
in the event of any conflict between any provision of the Plan and this Award Agreement, and accepts as binding, conclusive and final
all decisions or interpretations of the Committee upon any questions arising under the Plan and/or this Award Agreement. The Participant
acknowledges receiving a copy of the Plan.
SECTION
12. Notices. Any notice under this Award Agreement shall be (a) if in writing, effective when delivered in person or deposited
in the United States mail, postage prepaid, registered or certified, and addressed to the Participant at his or her last known address
on the books of the Company or, in the case of the Company, at the address set forth below, subject to the right of either party to designate
some other address at any time hereafter in a notice satisfying the requirements of this Section 12, or (b) if delivered by electronic
email transmission, effective on the day on which such electronic email transmission was sent; provided, that no rejection notice
is received.
c/o
Bowlmor AMF Corp.
222
West 44th Street
New
York, NY 10036
Attention:
Brett Parker, Chief Financial Officer
Email:
bparker@bowlmor.com
With
a copy to:
Davis
Polk & Wardwell
450
Lexington Avenue
New
York, New York 10017
Attention:
William J. Chudd
SECTION
13. Sections and Headings. All section references in this Award Agreement are to sections hereof for convenience of reference
only and are not to affect the meaning of any provision of this Award Agreement.
SECTION
14. Assignment. The Company may, without the consent of the Participant, assign this Award Agreement (or any of its rights
or interests under this Award Agreement) to any successor to all or substantially all of the assets or business of the Company in which
case references to the Company under this Award Agreement shall be deemed to be references to such successor.
SECTION
15. Severability. If any provision of this Award Agreement shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provisions hereof, and this Award Agreement shall be construed and enforced as if such provisions had not
been included; provided, however, that if the Company’s call rights set forth in the Stockholders’ Agreement or other
agreement shall be held invalid or unenforceable, the Option granted under this Award Agreement shall be cancelled and terminated.
SECTION
16. Complete Agreement. This Award Agreement, those documents expressly referred to herein and other documents of even date
herewith embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements
or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.
SECTION
17. Counterparts. This Award Agreement may be executed in any number of counterparts, each of which shall be deemed to be
an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Award Agreement shall become
effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto. Until and unless
each party has received a counterpart hereof signed by the other party hereto, this Award Agreement shall have no effect and no party
shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).
IN
WITNESS WHEREOF, the undersigned have caused this Award Agreement to be duly executed as of the date first above written.
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BOWLMOR AMF CORP.
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By:
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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PARTICIPANT
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By:
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Name:
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Thomas F. Shannon
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[Signature
Page for Residual Pool – Shannon – Option Award Agreement]
EXHIBIT
A
JOINDER
TO STOCKHOLDERS’ AGREEMENT
This
Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by the undersigned (the “Joining
Party”) in accordance with the Stockholders’ Agreement by and among (i) the Company, (ii) A-B Parent LLC, a
Delaware
limited liability company, (iii) Cobalt Recreation LLC, a Delaware limited liability company, (iv) Thomas F. Shannon and (v) Atairos
Group, Inc., a Cayman Islands exempted company, dated as of June 6, 2017, as the same may be amended from time to time. Capitalized terms
used, but not defined, herein shall have the meaning ascribed to such terms in the Stockholders’ Agreement.
The
Joining Party hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed
to be a party to the Stockholders’ Agreement as of the date hereof and shall have all of the rights and obligations of a “Stockholder”
and “Management Stockholder” thereunder as if it had executed the Stockholders’ Agreement and that the Option granted
to the Joining Party under the Grant Notice and Award Agreement to which this Joinder Agreement is
appended
constitute “Equity Interests” subject to the Stockholders’ Agreement. The Joining Party hereby ratifies, as of the
date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Stockholders’ Agreement.
To
the extent that the Joining Party has previously executed or subsequently executes the Stockholders’ Agreement or an additional
joinder agreement to the Stockholders’ Agreement, this Joinder Agreement shall nevertheless be given independent force and effect
as a supplemental affirmation of the Joining Party’s agreement to the terms of the Stockholders’ Agreement in relation to
the Joining Party’s receipt of the Option granted under the Grant Notice and Award Agreement to which this Joinder Agreement is
appended and any and all other Equity Interests acquired by the Joining Party.
[Signature
page follows]
IN
WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written below.
Date:
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By:
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Name: Thomas F. Shannon
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[Signature Page for Residual
Pool – Shannon – Joinder Agreement]
EXHIBIT
B
CONSENT
OF SPOUSE
The
undersigned spouse of Participant who is the signatory to the foregoing Award Agreement has read and hereby approves the terms and conditions
of the Plan and this Award Agreement. In consideration of the Company’s granting his or her spouse the Option as set forth in the
Plan and this Award Agreement, the undersigned hereby agrees to be irrevocably bound by the terms and conditions of the Plan and this
Award Agreement and further agrees that any community property interest shall be similarly bound. The undersigned hereby appoints the
undersigned’s spouse as attorney-in-fact for the undersigned with respect to any amendment or exercise of rights under the Plan
or this Award Agreement.
[Signature
page follows]
IN
WITNESS WHEREOF, the undersigned has executed this consent as of the date written below.
Date:
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Spouse of Thomas
F. Shannon
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[Signature
Page for Residual Pool – Shannon – Consent of Spouse]
Exhibit 10.22
EXECUTIVE
OPTION PLAN – RESIDUAL POOL AWARD
NOTICE OF GRANT
Bowlmor
AMF Corp., a Delaware corporation (the “Company”) granted to you the Residual Pool of the Executive Option Plan in
the form of an option to purchase shares of the Company’s common stock (the “Option”) under the Company’s
2017 Bowlmor AMF Corp. Stock Incentive Plan (the “Plan”). Capitalized terms not defined in this Grant Notice or the
attached Award Agreement shall have the meanings specified for such terms in the Plan.
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Award
Recipient:
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Brett
I. Parker
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Award
Type:
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Stock
Option
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Award
Amount:
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47,819,
subject to reduction as set forth in the attached Award Agreement.
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Option
Exercise Price:
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$102.51
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Grant
Date:
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January
7, 2020
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Vesting
Period for Option:
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As
set forth in the attached Award Agreement, the Option will become vested and exercisable as of the date of a Sale of the Company
or Triggering IPO, subject to your continued service with the Company or its Subsidiaries as of such date.
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Terms
and Conditions:
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The
Option is subject to all the terms and conditions set forth in this Stock Option Award Grant
Notice (this “Grant Notice”), in the Award Agreement and in the Plan.
Without
a complete review of these documents, you will not have a full understanding of all the material terms of your award.
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The
securities evidenced by this certificate have not been registered under the Securities Act of 1933, as amended, or applicable state securities
laws and may not be sold, transferred, assigned, offered, pledged or otherwise disposed of unless there is an effective registration
statement under such Act or such disposition is exempt from the registration. In addition, any such disposition shall be subject to the
terms of the applicable Stockholders’ Agreement dated as of June 6, 2017 (as amended from time to time) a copy of which is on file
in the Company’s offices. By acceptance of this Grant Notice, the holder accepts such provisions of the Stockholders’ Agreement.
EXECUTIVE
OPTION PLAN – RESIDUAL POOL AWARD AGREEMENT
(Under
the 2017 Bowlmor AMF Corp. Stock Incentive Plan)
THIS
AWARD AGREEMENT (the “Award Agreement”) is made and entered into as of January 7, 2020 between Bowlmor AMF Corp.,
a Delaware corporation (the “Company”), and Brett I. Parker (the “Participant”).
The
Company and the Participant wish to agree to the treatment of unallocated awards under the 2017 Bowlmor AMF Corp. Stock Incentive Plan
(the “Plan”) as set forth in Section 1 of this Award Agreement.
The
Company hereby grants to the Participant an option to purchase certain Common Shares on the terms and conditions as set forth in this
Award Agreement and subject to the terms of the Plan (the “Option”). The Option is a Nonqualified Option. Capitalized
terms not otherwise defined herein have the meanings set forth in the Plan.
In
accordance with this grant, and as a condition thereto, the Company and the Participant agree as follows:
SECTION
1. Date of Grant; Exercise Price; Number of Common Shares. The Executive Option Plan – Residual Pool Award Notice of
Grant (the “Grant Notice”) attached hereto sets forth the date of grant of the Option (the “Grant Date”)
and the per share exercise price (the “Exercise Price”) applicable to the Option. The Grant Notice sets forth the
number of Common Shares which are the subject of the Option as of the Grant Date, provided that the number of Common Shares subject to
the Option shall be automatically reduced as of the issuance of Awards (the “Additional Awards”) under the Plan to
other Eligible Individuals (as determined by the Committee in consultation with the CEO) with such reduction to be a number of Common
Shares that represents 25% of each Common Share underlying an Additional Award (the Common Shares subject to the Option at any time,
the “Option Shares”). Any fractional shares resulting from the foregoing reduction shall be eliminated at the time
of exercise of the Option. The Exercise Price is at least the fair market value of a Common Share as of the Grant Date.
SECTION
2. Term. The Option shall not be exercisable to any extent after the twelfth (12th) anniversary of the Grant Date.
SECTION
3. Tag-Along Rights. The parties acknowledge and agree that, for purposes of the Stockholders’ Agreement, following
the exercise of the Option in accordance with Sections 4 and 5 below, each of the Option Shares acquired and held by the Participant
shall be treated as an Equity Interest, subject to the Tag-Along Right held by the Participant as set forth in Section 4.5(c) of the
Stockholders’ Agreement, and the terms and conditions of such Tag-Along Right as set forth in Section 4.5 of the Stockholders’
Agreement; provided, however, it being understood that, for the purpose of the Tag-Along Right, as it applies to the Option Shares,
Section 4.5 of the Stockholders’ Agreement shall apply to the Option Shares without regard to whether the Shannon Stockholder is
a Significant Stockholder. For purposes of this Section 3, capitalized terms not otherwise defined herein or in the Plan have the meanings
set forth in the Stockholders’ Agreement.
SECTION
4. Vesting.
(a)
Subject to the terms and conditions of this Award Agreement, the Option will become fully vested and exercisable as of the date of a
Sale of the Company (as defined below) or Triggering IPO (as defined below), subject to the Participant’s continued service with
the Company or its Subsidiaries as of the date of the Sale of the Company or Triggering IPO.
(b)
For the purposes of this Award Agreement, the terms below shall have the meaning designated:
(i)
“Atairos Investors” include A-B Parent LLC, a Delaware limited liability company and the Atairos Entities, their Affiliates
and their Permitted Transferees.
(ii)
“Atairos Cumulative Interest” means the greatest amount of the Atairos Investors’ collective interest, direct
or indirect, in the Company acquired at any time prior to a Sale of the Company.
(iii)
“Initial Investors” include (i) the Atairos Investors, (ii) Cobalt Recreation LLC, a Delaware limited liability company,
(iii) Thomas F. Shannon and (iv) Atairos Group, Inc., a Cayman Islands exempted company.
(iv)
“Initial Investors Cumulative Interest” means the greatest amount of the Initial Investors’ collective interest,
direct or indirect, in the Company acquired at any time prior to a Sale of the Company or Triggering IPO, as the case may be.
(v)
“Sale of the Company” means (1) a negotiated sale of interests in the Company pursuant to a stock sale, exchange or
similar transaction (other than a Triggering IPO) or a merger of the Company into another company, provided that any such transaction
results in either (x) the Initial Investors having divested 50% or more of each of their relative portions of the Initial Investors Cumulative
Interest to one or more parties all of whom are not affiliates of the Initial Investors or (y) the Atairos Investors having divested
77% or more of the Atairos Cumulative Interest to one or more parties all of whom are not affiliates of the Initial Investors; or (2)
a sale of all or substantially all of the assets of the business conducted by the Company and its Subsidiaries to one or more parties,
other than parties that the Initial Investors control or in which the Initial Investors own a majority interest.
(vi)
“Triggering IPO” means an underwritten public offering of Common Shares pursuant to an effective registration statement
under the Securities Act of 1933 (as amended), other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar
or successor form, in which the Initial Investors are secondary sellers and after which each of the Initial Investors will have divested
15% or more of each of their relative portions of the Initial Investors Cumulative Interest.
(c)
All determinations and measurements required to compute the Atairos Cumulative Interest or the Initial Investors Cumulative Interest
or other amounts under this Award Agreement, and to determine whether any transaction constitutes a Sale of the Company or Triggering
IPO, shall be made by the Board in its reasonable good faith judgment and shall be final and binding on all parties for all purposes
under this Award Agreement.
SECTION
5. Exercise.
(a)
Exercise of the Option, in whole or in part, shall be by delivery of a notice to the Company as provided in Section 13 which specifies
the number of Option Shares being purchased.
(b)
Payment of the Exercise Price may, at the Participant’s election, be made by the Company withholding from the person providing
the notice described in Section 5(a) a net number of Option Shares having an aggregate Fair Market Value equal to the Exercise Price
as of the date of the exercise.
(c)
The Company has the authority to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy
applicable federal, state, local and foreign withholding taxes (including the employee portion of any FICA obligation) required by law
to be withheld with respect to any taxable event arising pursuant to this Award Agreement. Payment of the withholding taxes or Participant’s
other tax obligations arising from the exercise of the Option (the “Applicable Taxes”) may, at the Participant’s
election, be made by the Company withholding upon the exercise of the Option a net number of Option Shares having an aggregate Fair Market
Value equal to the Applicable Taxes as of the date of the exercise.
(d)
Notwithstanding the foregoing, if, upon any exercise of the Option (x) the Common Shares are listed and traded on a national U.S. retail
securities exchange and the Option Shares are covered by an effective registration statement under the Securities Act and an appropriate
listing application, (y) a broker-assisted cashless exercise procedure is freely available to the Participant and (z) there is no legal
or contractual impediment to the Participant’s use of the broker-assisted cashless exercise procedure, Section 5(a) shall not apply
with respect to the exercise of the Option and instead the person exercising the Option will be required to fund the Exercise Price and
Applicable Taxes with cash and/or through effecting a broker-assisted cashless exercise.
(e)
Promptly after receipt of the notice described in Section 5(a) and payment of the Exercise Price and associated withholding taxes described
in Section 5(a), the Company shall deliver to the person exercising the Option a certificate, or other indication of ownership, for the
number of Option Shares purchased. Option Shares to be issued upon the exercise of the Option may be either authorized and unissued Common
Shares or Common Shares which have been reacquired by the Company.
SECTION
6. Change of Control. In the event of a Change of Control (as defined in the Plan), the Committee shall not be able to take
the actions described in Sections 7.01(a), (c), (d), or (e) of the Plan with respect to the Option, in each case, without the consent
of the Chief Executive Officer. However, for the avoidance of doubt, the Committee shall have full discretion, subject to any applicable
regulatory approvals, to take whatever actions that it deems necessary or appropriate to accomplish the action described in Section 7.01(b)
of the Plan and the terms of the Stockholders’ Agreement with respect to the Option and the underlying Option Shares.
SECTION
7. Termination of Employment or Service. In the event of a termination of the Participant’s employment or service with
the Company or any of its Subsidiaries prior to the Exercise Date for any reason (including a termination by the Company or Participant
for any reason or as a result of the death or disability of the Participant), the Option shall be deemed immediately forfeited and canceled
in its entirety upon such termination of employment or service without any payment or consideration being due from the Company.
SECTION
8. Representations. The Participant represents and warrants that:
(a)
The Participant is an executive officer of the Company and is qualified to purchase the Option Shares because he or she has such knowledge
and experience in financial and business matters that he or she is capable of evaluating the merits and risks of such investment.
(b)
Any Option Shares will be for the Participant’s own account for investment and not with any view to the distribution thereof, and
the Participant will not sell, assign, transfer or otherwise dispose of any of the Option Shares, or any interest therein, in violation
of the Securities Act or any applicable state securities law.
(c)
The Participant understands that (i) the Option Shares will not be registered under the Securities Act or any applicable state securities
law and may not be sold or otherwise disposed of unless they are registered or sold or otherwise disposed of in a transaction that is
exempt from such registration; and (ii) the certificates representing such Option Shares will bear appropriate legends restricting the
transferability thereof.
(d)
The Participant understands that the Company Group will rely upon the completeness and accuracy of these representations in establishing
that the contemplated transactions are exempt from the Securities Act and hereby affirms that all such representations are accurate and
complete. The Participant will notify the Company immediately of any changes in any of such information occurring during the term of
the Option.
SECTION
9. Restrictive Covenants.
(a)
As a condition precedent to receiving the Option granted pursuant to this Award Agreement, the Participant hereby reaffirms the Participant’s
agreement to the restrictive covenants set forth in the Employment Agreement and the Stockholders’ Agreement.
(b)
It is acknowledged and agreed that any material breach by the Participant of any of the applicable restrictive covenants described in
Section 9(a) (relating to confidentiality, noncompetition, non-hire, non-solicitation obligations or other obligations described therein
and subject to all applicable notice and cure provisions in the relevant agreements) will be a
“Restrictive
Covenant Breach” for the purpose of the Stockholders’ Agreement.
SECTION
10. Integration of Stockholders’ Agreement and Award Terms; Spousal Consent. In consideration of, and as a condition
to, the effectiveness of the Option, to the extent that the Participant is not already a Stockholder (as defined in the Stockholders’
Agreement), the Participant must execute and deliver to the Company an instrument or instruments substantially in the form of Exhibit
A hereto confirming that the Participant has agreed to be bound as a “Stockholder” and “Management Stockholder”
by the terms of the Stockholders’ Agreement. For the avoidance of doubt, the Participant shall have no rights as a Stockholder
and Management Stockholder under the Stockholders’ Agreement during any period that the Participant is not the record owner of
Option Shares, but shall be subject to the call rights under Section 4.9 of the Stockholders’ Agreement. The Participant agrees
to cause any current or future spouse of his or hers to deliver to the Company a consent in the form of the consent set forth in Exhibit
B hereto validly executed by such spouse on the date hereof or promptly after any such person becomes his or her spouse, as applicable.
SECTION
11. Governing Law; Waiver of Jury Trial. This Award Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware without regard to the conflicts of laws rules of such state. Each of the parties hereto hereby irrevocably
waives any and all right to trial by jury in any legal proceeding arising out of or related to this Award Agreement or the transactions
contemplated hereby.
SECTION
12. Interpretation. The Participant accepts the Option subject to all the terms and provisions of the Plan, which shall control
in the event of any conflict between any provision of the Plan and this Award Agreement, and accepts as binding, conclusive and final
all decisions or interpretations of the Committee upon any questions arising under the Plan and/or this Award Agreement. The Participant
acknowledges receiving a copy of the Plan.
SECTION
13. Notices. Any notice under this Award Agreement shall be (a) if in writing, effective when delivered in person or deposited
in the United States mail, postage prepaid, registered or certified, and addressed to the Participant at his or her last known address
on the books of the Company or, in the case of the Company, at the address set forth below, subject to the right of either party to designate
some other address at any time hereafter in a notice satisfying the requirements of this Section 13, or (b) if delivered by electronic
email transmission, effective on the day on which such electronic email transmission was sent; provided, that no rejection notice
is received.
c/o
Bowlmor AMF Corp.
222 West 44th Street
New York, NY 10036
Attention:
Brett Parker,
Chief Financial Officer
Email: bparker@bowlmor.com
With
a copy to:
Davis
Polk & Wardwell
450 Lexington Avenue
New
York, New York 10017
Attention: William J. Chudd
SECTION
14. Sections and Headings. All section references in this Award Agreement are to sections hereof for convenience of reference
only and are not to affect the meaning of any provision of this Award Agreement.
SECTION
15. Assignment. The Company may, without the consent of the Participant, assign this Award Agreement (or any of its rights
or interests under this Award Agreement) to any successor to all or substantially all of the assets or business of the Company in which
case references to the Company under this Award Agreement shall be deemed to be references to such successor.
SECTION
16. Severability. If any provision of this Award Agreement shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provisions hereof, and this Award Agreement shall be construed and enforced as if such provisions had not
been included; provided, however, that if the Company’s call rights set forth in the Stockholders’ Agreement or other
agreement shall be held invalid or unenforceable, the Option granted under this Award Agreement shall be cancelled and terminated.
SECTION
17. Complete Agreement. This Award Agreement, those documents expressly referred to herein and other documents of even date
herewith embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements
or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.
SECTION
18. Counterparts. This Award Agreement may be executed in any number of counterparts, each of which shall be deemed to be
an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Award Agreement shall become
effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto. Until and unless
each party has received a counterpart hereof signed by the other party hereto, this Award Agreement shall have no effect and no party
shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).
IN
WITNESS WHEREOF, the undersigned have caused this Award Agreement to be duly executed as of the date first above written.
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BOWLMOR AMF CORP.
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By:
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Name:
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Thomas F. Shannon
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Title:
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Chief Executive Officer
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PARTICIPANT
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By:
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Name:
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Brett I. Parker
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[Signature
Page for Residual Pool – Parker – Option Award Agreement]
EXHIBIT
A
JOINDER
TO STOCKHOLDERS’ AGREEMENT
This
Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by the undersigned (the “Joining
Party”) in accordance with the Stockholders’ Agreement by and among (i) the Company, (ii) A-B Parent LLC, a Delaware
limited liability company, (iii) Cobalt Recreation LLC, a Delaware limited liability company, (iv) Thomas F. Shannon and (v) Atairos
Group, Inc., a Cayman Islands exempted company, dated as of June 6, 2017, as the same may be amended from time to time. Capitalized terms
used, but not defined, herein shall have the meaning ascribed to such terms in the Stockholders’ Agreement.
The
Joining Party hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed
to be a party to the Stockholders’ Agreement as of the date hereof and shall have all of the rights and obligations of a “Stockholder”
and “Management Stockholder” thereunder as if it had executed the Stockholders’ Agreement and that the Option granted
to the Joining Party under the Grant Notice and Award Agreement to which this Joinder Agreement is appended constitute “Equity
Interests” subject to the Stockholders’ Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholders’ Agreement.
To
the extent that the Joining Party has previously executed or subsequently executes the Stockholders’ Agreement or an additional
joinder agreement to the Stockholders’ Agreement, this Joinder Agreement shall nevertheless be given independent force and effect
as a supplemental affirmation of the Joining Party’s agreement to the terms of the Stockholders’ Agreement in relation to
the Joining Party’s receipt of the Option granted under the Grant Notice and Award Agreement to which this Joinder Agreement is
appended and any and all other Equity Interests acquired by the Joining Party.
[Signature
page follows]
IN
WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written below.
Date:
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By:
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Name: Brett I. Parker
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[Signature
Page for Residual Pool – Parker – Joinder Agreement]
EXHIBIT
B
CONSENT
OF SPOUSE
The
undersigned spouse of Participant who is the signatory to the foregoing Award Agreement has read and hereby approves the terms and conditions
of the Plan and this Award Agreement. In consideration of the Company’s granting his or her spouse the Option as set forth in the
Plan and this Award Agreement, the undersigned hereby agrees to be irrevocably bound by the terms and conditions of the Plan and this
Award Agreement and further agrees that any community property interest shall be similarly bound. The undersigned hereby appoints the
undersigned’s spouse as attorney-in-fact for the undersigned with respect to any amendment or exercise of rights under the Plan
or this Award Agreement.
[Signature
page follows]
IN
WITNESS WHEREOF, the undersigned has executed this consent as of the date written below.
Date:
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Spouse of Brett
I. Parker
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[Signature
Page for Residual Pool – Parker – Consent of Spouse]
Exhibit 10.23
EXECUTIVE
OPTION PLAN – TRANCHE 1 AWARD
NOTICE OF GRANT
Bowlmor AMF Corp., a
Delaware corporation (the “Company”) granted to you Tranche 1 of the Executive Option Plan in the form of Options
(the “Tranche 1 Options”) to purchase shares of the Company’s common stock under the Company’s 2017
Bowlmor AMF Corp. Stock Incentive Plan (the “Plan”). Capitalized terms not defined in this Grant Notice or the
attached Award Agreement shall have the meanings specified for such terms in the Plan.
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Award Recipient:
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Thomas F. Shannon
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Award Type:
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Stock Options
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Award Amount:
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Total Common Shares subject to the Tranche 1 Options:
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492,619
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Option Exercise Price:
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$196.72
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Grant Date:
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January 7, 2020
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Vesting Period for Tranche 1 Options:
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As set forth in the attached Award Agreement, each of the Tranche 1 Options will (A) vest in four equal annual installments with 25% vesting on each of the first four anniversaries of the Grant Date, subject to your continued service with the Company or its Subsidiaries as of each such anniversary, subject to the accelerated vesting provisions set forth in Section 3(b) of the Award Agreement and (B) become exercisable, as of or following vesting, in connection with any Sale of the Company or Triggering IPO, provided that the performance criteria set forth in Section 3 of the Award Agreement are met.
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Terms and Conditions:
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The Tranche 1 Options are subject to all the terms and conditions
set forth in this Stock Option Award Grant Notice (this “Grant Notice”), in the Award Agreement, in the Employment
Agreement and in the Plan.
Without a complete review of these documents, you will
not have a full understanding of all the material terms of your award.
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The securities evidenced by this
certificate have not been registered under the Securities Act of 1933, as amended, or applicable state securities laws and may not be
sold, transferred, assigned, offered, pledged or otherwise disposed of unless there is an effective registration statement under such
Act or such disposition is exempt from the registration. In addition, any such disposition shall be subject to the terms of the applicable
Stockholders’ Agreement dated as of June 6, 2017 (as amended from time to time) a copy of which is on file in the Company’s
offices. By acceptance of this Grant Notice, the holder accepts such provisions of the Stockholders’ Agreement.
EXECUTIVE OPTION PLAN –
TRANCHE 1 AWARD AGREEMENT
(Under the 2017 Bowlmor AMF Corp.
Stock Incentive Plan)
THIS AWARD AGREEMENT (the “Award
Agreement”) is made and entered into as of January 7, 2020 between Bowlmor AMF Corp., a Delaware corporation (the “Company”),
and Thomas F. Shannon (the “Participant”).
The Company and the Participant
wish to agree to the treatment of unallocated awards under the 2017 Bowlmor AMF Corp. Stock Incentive Plan (the “Plan”)
as set forth in Section 1 of this Award Agreement.
The Company hereby grants to the
Participant the first tranche of Options under the Executive Option Plan in form of Options (the “Tranche 1 Options”)
to purchase certain Common Shares on the terms and conditions as set forth in this Award Agreement and in the Plan. The Tranche 1 Options
are Nonqualified Options. Capitalized terms not otherwise defined herein have the meanings set forth in the Plan.
In accordance with this grant, and
as a condition thereto, the Company and the Participant agree as follows:
SECTION 1. Number of Common
Shares; Date of Grant; Exercise Price. The Executive Option Plan – Tranche 1 Award Notice of Grant (the “Grant Notice”)
attached hereto sets forth the number of Common Shares which are the subject of Tranche 1 Options and the date of grant of the Tranche
1 Options (the “Grant Date”). The exercise price at which each Common Share may be purchased under the Tranche 1 Options
(the “Exercise Price”) is at least the fair market value of a Common Share as of the Grant Date, and is set forth on
the attached Grant Notice.
SECTION 2. Term. The
Tranche 1 Options shall not be exercisable to any extent after the twelfth (12th) anniversary of the Grant Date.
SECTION 3. Vesting and Exercisability.
(a) Subject
to the terms and conditions of this Award Agreement, including the limitations on exercisability set forth in Section 3(c) and the Plan,
the Tranche 1 Options will vest in four equal annual installments with 25% vesting on each of the first four anniversaries of the Grant
Date, subject to the Participant’s continued service with the Company or its Subsidiaries as of each such anniversary.
(b) Notwithstanding
the foregoing, any unvested Tranche 1 Options will become fully vested upon a Sale of the Company (as defined below) or Triggering IPO
(as defined below), subject to the Participant’s continued service with the Company or its Subsidiaries as of the date of the Sale
of the Company or Triggering IPO.
(c) To
the extent that any portion of the Tranche 1 Options becomes vested in accordance with Section 3(a) or (b) above, such vested
Tranche 1 Options shall be fully exercisable only if the applicable Sale of the Company or Triggering IPO results in an Aggregate
Equity Return that is equal to a multiple of at least 2.5 times the Initial Investors Cumulative Interest on the date of such Sale
of the Company or Triggering IPO. Any Tranche 1 Options that do not become exercisable in connection with a Sale of the Company or
Triggering IPO will be canceled and forfeited without consideration.
(d) Definitions
and Determinations. For the purposes of this Award Agreement, the terms below shall have the meaning designated:
(i) “Atairos
Investors” include A-B Parent LLC, a Delaware limited liability company and the Atairos Entities, their Affiliates and their
Permitted Transferees.
(ii) “Atairos
Cumulative Interest” means the greatest amount of the Atairos Investors’ collective interest, direct or indirect, in the
Company acquired at any time prior to a Sale of the Company.
(iii) “Initial
Investors” include (i) the Atairos Investors, (ii) Cobalt Recreation LLC, a Delaware limited liability company, (iii) Thomas
F. Shannon and (iv) Atairos Group, Inc., a Cayman Islands exempted company.
(iv) “Initial Investors Cumulative
Interest” means the greatest amount of the Initial Investors’ collective interest, direct or indirect, in the
Company acquired at any time prior to a Sale of the Company or Triggering IPO, as the case may be.
(v) “Aggregate
Equity Return” means, as of any Sale of the Company or Triggering IPO, the sum of (x) the value of all proceeds that will actually
be received by the Initial Investors in the aggregate as a result of the divestiture of the Initial Investors’ interest, direct
or indirect, in the Company in connection with the relevant Sale of the Company or Triggering IPO, valued as of the date received by the
Initial Investors and net of any customary transaction expenses incurred by the Initial Investors associated with such divestiture (to
the extent such expenses are not borne by the Company), (y) the value of all prior proceeds actually received by the Initial Investors
from all previous divestitures of the Initial Investors’ interest, direct or indirect, in the Company and any cash dividends or
distributions received by the Initial Investors as the result of any extraordinary recapitalization transactions by the Company, in each
case valued at the fair value of such proceeds, dividends or distributions as of the date received by the Initial Investors and net of
any customary transaction expenses associated with such divestitures, dividends or distributions incurred by the Initial Investors (to
the extent such expenses are not borne by the Company) and (z) the value of the Initial Investors’ interest, direct or indirect,
in the Company that will be retained by the Initial Investors following the relevant Sale of the Company or Triggering IPO, valued by
reference to the fair value of the proceeds received by the Initial Investors in connection with the Sale of the Company or Triggering
IPO and net of any customary transaction expenses associated with such divestitures incurred by the Initial Investors (to the extent such
expenses are not borne by the Company).
(vi) “Sale
of the Company” means (1) a negotiated sale of interests in the Company pursuant to a stock sale, exchange or similar
transaction (other than a Triggering IPO) or a merger of the Company into another company, provided that any such transaction
results in either (x) the Initial Investors having divested 50% or more of each of their relative portions of the Initial Investors
Cumulative Interest to one or more parties all of whom are not affiliates of the Initial Investors or (y) the Atairos Investors
having divested 77% or more of the Atairos Cumulative Interest to one or more parties all of whom are not affiliates of the Initial
Investors; or (2) a sale of all or substantially all of the assets of the business conducted by the Company and its Subsidiaries to
one or more parties, other than parties that the Initial Investors control or in which the Initial Investors own a majority
interest.
(vii) “Triggering
IPO” means an underwritten public offering of Common Shares pursuant to an effective registration statement under the Securities
Act of 1933 (as amended), other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar or successor form, in
which the Initial Investors are secondary sellers and after which each of the Initial Investors will have divested 15% or more of each
of their relative portions of the Initial Investors Cumulative Interest.
(e) All
determinations and measurements required to compute the Atairos Cumulative Interest or the Initial Investors Cumulative Interest or Aggregate
Equity Return or other amounts under this Award Agreement, and to determine whether any transaction constitutes a Sale of the Company
or Triggering IPO, shall be made by the Board in its reasonable good faith judgment and shall be final and binding on all parties for
all purposes under this Award Agreement.
SECTION 4. Exercise.
(a) Notice
of Exercise. Exercise of the Tranche 1 Options, in whole or in part, shall be by delivery of a notice to the Company as provided in
Section 12 which specifies the number of Common Shares being purchased.
(b) Payment
of Exercise Price. Payment of the Exercise Price may, at the Participant’s election, be made by the Company withholding from
the person providing the notice described in Section 4(a) a net number of Common Shares equal to such person’s obligation to pay
the Exercise Price from the number of Common Shares that are subject to the Tranche 1 Options being exercised.
(c) Payment
of Taxes. The Company has the authority to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient
to satisfy applicable federal, state, local and foreign withholding taxes (including the employee portion of any FICA obligation) required
by law to be withheld with respect to any taxable event arising pursuant to this Award Agreement. Payment of the withholding taxes or
Participant’s other tax obligations arising from the exercise of the Tranche 1 Options (the “Applicable Taxes”)
may, at the Participant’s election, be made by the Company withholding from the person providing the notice described in Section
4(a) a net number of Common Shares having an aggregate Fair Market Value of the Applicable Taxes.
(d) Notwithstanding
the foregoing, Sections 4(b) and 4(c) shall not apply with respect to any exercise that occurs at a time when the Common Shares are
listed and traded on a national U.S. retail securities exchange and the Common Shares underlying the Tranche 1 Options are covered
by an effective registration statement under the Securities Act and an appropriate listing application, and a broker-assisted
cashless exercise procedure is freely available to the Participant, provided that there is no legal or contractual impediment
to the Participant’s use of the broker-assisted cashless exercise procedure.
(e) Certificate.
Promptly after receipt of the notice described in Section 4(a) and payment of the Exercise Price and associated withholding taxes
described in Section 4(b) and 4(c), the Company shall deliver to the person exercising the Tranche 1 Options a certificate, or other
indication of ownership, for the number of Common Shares purchased. Common Shares to be issued upon the exercise of the Tranche 1
Options may be either authorized and unissued Common Shares or Common Shares which have been reacquired by the Company.
SECTION 5. Change
of Control. In the event of a Change of Control (as defined in the Plan), the Committee shall not be able to take the actions
described in Sections 7.01(a), (c), (d), or (e) of the Plan with respect to the Tranche 1 Options, in each case, without the consent
of the Participant. However, for the avoidance of doubt, the Committee shall have full discretion, subject to any applicable
regulatory approvals, to take whatever actions that it deems necessary or appropriate to accomplish the action described in Section
7.01(b) of the Plan and the terms of the Stockholders’ Agreement with respect to the Tranche 1 Options and the underlying
Common Shares.
SECTION 6. Termination
of Employment or Service. In the event of a termination of the Participant’s employment or service with the Company or any of
its Subsidiaries, the Tranche 1 Options may be exercised as follows:
(a) Termination
without Cause; Termination for Good Reason; Termination due to Death or Disability. If the Participant’s employment or service
with the Company or any of its Subsidiaries terminates due to a termination by the Company or any of its Subsidiaries without Cause, by
the Participant for Good Reason, as defined in the Participant’s Employment Agreement with the Company, dated as of June 6, 2017
(the “Employment Agreement”) or due to the Participant’s death or Disability:
(i) any
vested portion of the Tranche 1 Options will be retained and will remain subject to Section 3(c); and
(ii) any
unvested portion of the Tranche 1 Options will be deemed immediately forfeited and canceled in their entirety upon such termination of
employment or service without any payment or consideration being due from the Company.
(b) Termination
for Cause; Voluntary Termination without Good Reason. If the Participant’s employment or service with the Company or any of
its Subsidiaries is terminated by the Company or any of its Subsidiaries for Cause or by the Participant without Good Reason, as defined
in the Participant’s Employment Agreement, both the vested and unvested portions of the Tranche 1 Options shall be deemed immediately
forfeited and canceled in their entirety upon such termination of employment or service without any payment or consideration being due
from the Company.
(c) Company
Call Right. The Tranche 1 Options and Option Shares will be subject to the repurchase rights and other terms set forth in the Stockholders’
Agreement.
SECTION 7. Representations. The Participant
represents and warrants that:
(a) The
Participant is an executive officer of the Company and is qualified to purchase the Option Shares because he or she has such knowledge
and experience in financial and business matters that he or she is capable of evaluating the merits and risks of such investment.
(b) Any
Option Shares will be for the Participant’s own account for investment and not with any view to the distribution thereof, and the
Participant will not sell, assign, transfer or otherwise dispose of any of the Option Shares, or any interest therein, in violation of
the Securities Act or any applicable state securities law.
(c) The
Participant understands that (i) the Option Shares will not be registered under the Securities Act or any applicable state
securities law and may not be sold or otherwise disposed of unless they are registered or sold or otherwise disposed of in a
transaction that is exempt from such registration; and (ii) the certificates representing such Option Shares will bear appropriate
legends restricting the transferability thereof.
(d) The
Participant understands that the Company Group will rely upon the completeness and accuracy of these representations in establishing that
the contemplated transactions are exempt from the Securities Act and hereby affirms that all such representations are accurate and complete.
The Participant will notify the Company immediately of any changes in any of such information occurring during the term of the Tranche
1 Options.
SECTION 8. Restrictive Covenants.
(a) As
a condition precedent to receiving the Tranche 1 Options granted pursuant to this Award Agreement, the Participant hereby reaffirms the
Participant’s agreement to the restrictive covenants set forth in the Employment Agreement and the Stockholders’ Agreement.
(b) It is acknowledged
and agreed that any material breach by the Participant of any of the applicable restrictive covenants described in Section 8(a)
(relating to confidentiality, noncompetition, non-hire, non-solicitation obligations or other obligations described therein and
subject to all applicable notice and cure provisions in the relevant agreements) will be a “Restrictive Covenant Breach”
for the purpose of the Stockholders’ Agreement.
SECTION 9.
Integration of Stockholders’ Agreement and Award Terms; Spousal Consent. In consideration of, and as a condition to, the
effectiveness of the Tranche 1 Options, to the extent that the Participant is not already a Stockholder (as defined in the
Stockholders’ Agreement), the Participant must execute and deliver to the Company an instrument or instruments substantially
in the form of Exhibit A hereto confirming that the Participant has agreed to be bound as a “Stockholder” and
“Management Stockholder” by the terms of the Stockholders’ Agreement. For the avoidance of doubt, the Participant
shall have no rights as a Stockholder and Management Stockholder under the Stockholders’ Agreement during any period that the
Participant is not the record owner of Common Shares, but shall be subject to the call rights under Section 4.9 of the
Stockholders’ Agreement. The Participant agrees to cause any current or future spouse of his or hers to deliver to the Company
a consent in the form of the consent set forth in Exhibit B hereto validly executed by such spouse on the date hereof or
promptly after any such person becomes his or her spouse, as applicable.
SECTION 10. Governing
Law; Waiver of Jury Trial. This Award Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware
without regard to the conflicts of laws rules of such state. Each of the parties hereto hereby irrevocably waives any and all right to
trial by jury in any legal proceeding arising out of or related to this Award Agreement or the transactions contemplated hereby.
SECTION 11. Interpretation.
The Participant accepts the Tranche 1 Options subject to all the terms and provisions of the Plan, which shall control in the event of
any conflict between any provision of the Plan and this Award Agreement, and accepts as binding, conclusive and final all decisions or
interpretations of the Committee upon any questions arising under the Plan and/or this Award Agreement. The Participant acknowledges receiving
a copy of the Plan.
SECTION 12.
Notices. Any notice under this Award Agreement shall be (a) if in writing, effective when delivered in person or deposited in
the United States mail, postage prepaid, registered or certified, and addressed to the Participant at his or her last known address
on the books of the Company or, in the case of the Company, at the address set forth below, subject to the right of either party to
designate some other address at any time hereafter in a notice satisfying the requirements of this Section 12, or (b) if delivered
by electronic email transmission, effective on the day on which such electronic email transmission was sent; provided, that
no rejection notice is received.
c/o Bowlmor AMF Corp.
222 West 44th Street
New York,
NY 10036
Attention: Brett Parker, Chief
Financial Officer
Email: bparker@bowlmor.com
With a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: William J. Chudd
SECTION 13. Sections and
Headings. All section references in this Award Agreement are to sections hereof for convenience of reference only and are not to affect
the meaning of any provision of this Award Agreement.
SECTION 14. Assignment.
The Company may, without the consent of the Participant, assign this Award Agreement (or any of its rights or interests under this Award
Agreement) to any successor to all or substantially all of the assets or business of the Company in which case references to the Company
under this Award Agreement shall be deemed to be references to such successor.
SECTION 15. Severability.
If any provision of this Award Agreement shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provisions hereof, and this Award Agreement shall be construed and enforced as if such provisions had not been included; provided,
however, that if the Company’s call rights set forth in the Stockholders’ Agreement or other agreement shall be held invalid
or unenforceable, the Tranche 1 Options granted under this Award Agreement shall be cancelled and terminated.
SECTION 16. Complete Agreement.
This Award Agreement, those documents expressly referred to herein and other documents of even date herewith embody the complete agreement
and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in any way.
SECTION 17. Counterparts.
This Award Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This Award Agreement shall become effective when each party hereto
shall have received counterparts hereof signed by all of the other parties hereto. Until and unless each party has received a counterpart
hereof signed by the other party hereto, this Award Agreement shall have no effect and no party shall have any right or obligation hereunder
(whether by virtue of any other oral or written agreement or other communication).
IN WITNESS WHEREOF, the undersigned
have caused this Award Agreement to be duly executed as of the date first above written.
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BOWLMOR
AMF CORP.
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By:
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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PARTICIPANT
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By:
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Name:
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Thomas F. Shannon
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[Signature Page for Tranche 1 – Shannon – Option Award
Agreement]
EXHIBIT A
JOINDER TO STOCKHOLDERS’
AGREEMENT
This Joinder Agreement
(this “Joinder Agreement”) is made as of the date written below by the undersigned (the “Joining
Party”) in accordance with the Stockholders’ Agreement by and among (i) the Company, (ii) A-B Parent LLC, a Delaware
limited liability company, (iii) Cobalt Recreation LLC, a Delaware limited liability company, (iv) Thomas F. Shannon and (v) Atairos
Group, Inc., a Cayman Islands exempted company, dated as of June 6, 2017, as the same may be amended from time to time. Capitalized
terms used, but not defined, herein shall have the meaning ascribed to such terms in the Stockholders’ Agreement.
The Joining Party hereby acknowledges,
agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party to the Stockholders’
Agreement as of the date hereof and shall have all of the rights and obligations of a “Stockholder” and “Management
Stockholder” thereunder as if it had executed the Stockholders’ Agreement and that the Tranche 1 Options granted to the Joining
Party under the Grant Notice and Award Agreement to which this Joinder Agreement is appended constitute “Equity Interests”
subject to the Stockholders’ Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all
of the terms, provisions and conditions contained in the Stockholders’ Agreement.
To the extent that the
Joining Party has previously executed or subsequently executes the Stockholders’ Agreement or an additional joinder agreement
to the Stockholders’ Agreement, this Joinder Agreement shall nevertheless be given independent force and effect as a
supplemental affirmation of the Joining Party’s agreement to the terms of the Stockholders’ Agreement in relation to the
Joining Party’s receipt of the Tranche 1 Options granted under the Grant Notice and Award Agreement to which this Joinder
Agreement is appended and any and all other Equity Interests acquired by the Joining Party.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned
has executed this Joinder Agreement as of the date written below.
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Date:
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By :
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Name:
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Thomas F. Shannon
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[Signature Page for Tranche
1 – Shannon – Joinder Agreement]
EXHIBIT B
CONSENT OF SPOUSE
The undersigned spouse of Participant
who is the signatory to the foregoing Award Agreement has read and hereby approves the terms and conditions of the Plan and this Award
Agreement. In consideration of the Company’s granting his or her spouse the Tranche 1 Options as set forth in the Plan and this
Award Agreement, the undersigned hereby agrees to be irrevocably bound by the terms and conditions of the Plan and this Award Agreement
and further agrees that any community property interest shall be similarly bound. The undersigned hereby appoints the undersigned’s
spouse as attorney-in-fact for the undersigned with respect to any amendment or exercise of rights under the Plan or this Award Agreement.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned
has executed this consent as of the date written below.
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Date:
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Spouse of Thomas F. Shannon
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[Signature Page for Tranche
1 – Shannon – Consent of Spouse]
Exhibit 10.24
EXECUTIVE
OPTION PLAN – TRANCHE 1 AWARD
NOTICE OF GRANT
Bowlmor
AMF Corp., a Delaware corporation (the “Company”) granted to you Tranche 1 of the Executive Option Plan in the
form of Options (the “Tranche 1 Options”) to purchase shares of the Company’s common stock under the
Company’s 2017 Bowlmor AMF Corp. Stock Incentive Plan (the “Plan”). Capitalized terms not defined in this
Grant Notice or the attached Award Agreement shall have the meanings specified for such terms in the Plan.
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Award Recipient:
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Brett I. Parker
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Award Type:
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Stock Options
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Award Amount:
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Total Common Shares subject to the Tranche 1 Options: 164,206
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Option Exercise Price:
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$196.72
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Grant Date:
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January 7, 2020
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Vesting Period for
Tranche 1 Options:
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As set forth in the attached Award Agreement, each of the Tranche 1 Options will (A) vest in four equal annual installments with 25% vesting on each of the first four anniversaries of the Grant Date, subject to your continued service with the Company or its Subsidiaries as of each such anniversary, subject to the accelerated vesting provisions set forth in Section 4(b) of the Award Agreement and (B) become exercisable, as of or following vesting, in connection with any Sale of the Company or Triggering IPO, provided that the performance criteria set forth in Section 4 of the Award Agreement are met.
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Terms and Conditions:
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The Tranche 1 Options are subject to all the terms and conditions
set forth in this Stock Option Award Grant Notice (this “Grant Notice”), in the Award Agreement, in the Employment
Agreement and in the Plan.
Without a complete review of these documents, you will not
have a full understanding of all the material terms of your award.
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The securities evidenced by this certificate
have not been registered under the Securities Act of 1933, as amended, or applicable state securities laws and may not be sold, transferred,
assigned, offered, pledged or otherwise disposed of unless there is an effective registration statement under such Act or such disposition
is exempt from the registration. In addition, any such disposition shall be subject to the terms of the applicable Stockholders’
Agreement dated as of June 6, 2017 (as amended from time to time) a copy of which is on file in the Company’s offices. By acceptance
of this Grant Notice, the holder accepts such provisions of the Stockholders’ Agreement.
EXECUTIVE OPTION PLAN – TRANCHE
1 AWARD AGREEMENT
(Under the 2017 Bowlmor AMF Corp. Stock
Incentive Plan)
THIS AWARD AGREEMENT (the “Award
Agreement”) is made and entered into as of January 7, 2020 between Bowlmor AMF Corp., a Delaware corporation (the “Company”),
and Brett I. Parker (the “Participant”).
The Company and the Participant wish to
agree to the treatment of unallocated awards under the 2017 Bowlmor AMF Corp. Stock Incentive Plan (the “Plan”) as
set forth in Section 1 of this Award Agreement.
The Company hereby grants to the Participant
the first tranche of Options under the Executive Option Plan in form of Options (the “Tranche 1 Options”) to purchase
certain Common Shares on the terms and conditions as set forth in this Award Agreement and in the Plan. The Tranche 1 Options are Nonqualified
Options. Capitalized terms not otherwise defined herein have the meanings set forth in the Plan.
In accordance with this grant, and as
a condition thereto, the Company and the Participant agree as follows:
SECTION 1. Number of Common
Shares; Date of Grant; Exercise Price. The Executive Option Plan – Tranche 1 Award Notice of Grant (the “Grant Notice”)
attached hereto sets forth the number of Common Shares which are the subject of Tranche 1 Options and the date of grant of the Tranche
1 Options (the “Grant Date”). The exercise price at which each Common Share may be purchased under the Tranche 1 Options
(the “Exercise Price”) is at least the fair market value of a Common Share as of the Grant Date, and is set forth on
the attached Grant Notice.
SECTION 2. Term. The Tranche
1 Options shall not be exercisable to any extent after the twelfth (12th) anniversary of the Grant Date.
SECTION 3. Tag-Along Rights.
The parties acknowledge and agree that, for purposes of the Stockholders’ Agreement, each of the Common Shares acquired by the Participant
pursuant to an exercise of the Tranche 1 Options in accordance with Sections 4 and 5 below (the “Option Shares”) shall
be treated as an Equity Interest, subject to the Tag-Along Right held by the Participant as set forth in Section 4.5(c) of the Stockholders’
Agreement, and the terms and conditions of such Tag-Along Right as set forth in Section 4.5 of the Stockholders’ Agreement; provided,
however, it being understood that, for the purpose of the Tag-Along Right, as it applies to the Option Shares, Section 4.5 of the
Stockholders’ Agreement shall apply to the Option Shares without regard to whether the Shannon Stockholder is a Significant Stockholder.
For purposes of this Section 3, capitalized terms not otherwise defined herein or in the Plan have the meanings set forth in the Stockholders’
Agreement.
SECTION 4. Vesting and Exercisability.
(a) Subject
to the terms and conditions of this Award Agreement, including the limitations on exercisability set forth in Section 4(c) and the
Plan, the Tranche 1 Options will vest in four equal annual installments with 25% vesting on each of the first four anniversaries of
the Grant Date, subject to the Participant’s continued service
with the Company or its Subsidiaries as of each such anniversary.
(b) Notwithstanding
the foregoing, any unvested Tranche 1 Options will become fully vested upon a Sale of the Company (as defined below) or Triggering IPO
(as defined below), subject to the Participant’s continued service with the Company or its Subsidiaries as of the date of the Sale
of the Company or Triggering IPO.
(c) To
the extent that any portion of the Tranche 1 Options becomes vested in accordance with Section 4(a) or (b) above, such vested Tranche
1 Options shall be fully exercisable only if the applicable Sale of the Company or Triggering IPO results in an Aggregate Equity Return
that is equal to a multiple of at least 2.5 times the Initial Investors Cumulative Interest on the date of such Sale of the Company or
Triggering IPO. Any Tranche 1 Options that do not become exercisable in connection with a Sale of the Company or Triggering IPO will be
canceled and forfeited without consideration.
(d) Definitions
and Determinations. For the purposes of this Award Agreement, the terms below shall have the meaning designated:
(i) “Atairos
Investors” include A-B Parent LLC, a Delaware limited liability company and the Atairos Entities, their Affiliates and their
Permitted Transferees.
(ii) “Atairos
Cumulative Interest” means the greatest amount of the Atairos Investors’ collective interest, direct or indirect, in the
Company acquired at any time prior to a Sale of the Company.
(iii) “Initial
Investors” include (i) the Atairos Investors, (ii) Cobalt Recreation LLC, a Delaware limited liability company, (iii) Thomas
F. Shannon and (iv) Atairos Group, Inc., a Cayman Islands exempted company.
(iv)
“Initial Investors Cumulative Interest” means the greatest amount of the Initial Investors’ collective
interest, direct or indirect, in the Company acquired at any time prior to a Sale of the Company or Triggering IPO, as the case may
be.
(v) “Aggregate
Equity Return” means, as of any Sale of the Company or Triggering IPO, the sum of (x) the value of all proceeds that will actually
be received by the Initial Investors in the aggregate as a result of the divestiture of the Initial Investors’ interest, direct
or indirect, in the Company in connection with the relevant Sale of the Company or Triggering IPO, valued as of the date received by the
Initial Investors and net of any customary transaction expenses incurred by the Initial Investors associated with such divestiture (to
the extent such expenses are not borne by the Company), (y) the value of all prior proceeds actually received by the Initial Investors
from all previous divestitures of the Initial Investors’ interest, direct or indirect, in the Company and any cash dividends or
distributions received by the Initial Investors as the result of any extraordinary recapitalization transactions by the Company, in each
case valued at the fair value of such proceeds, dividends or distributions as of the date received by the Initial Investors and net of
any customary transaction expenses associated with such divestitures, dividends or distributions incurred by the Initial Investors (to
the extent such expenses are not borne by the Company) and (z) the value of the Initial Investors’ interest, direct or indirect,
in the Company that will be retained by the Initial Investors following the relevant Sale of the Company or Triggering IPO,
valued by reference to the fair value of the proceeds received by the Initial Investors in connection with the Sale of the Company or
Triggering IPO and net of any customary transaction expenses associated with such divestitures incurred by the Initial Investors (to the
extent such expenses are not borne by the Company).
(vi) “Sale
of the Company” means (1) a negotiated sale of interests in the Company pursuant to a stock sale, exchange or similar transaction
(other than a Triggering IPO) or a merger of the Company into another company, provided that any such transaction results in either
(x) the Initial Investors having divested 50% or more of each of their relative portions of the Initial Investors Cumulative Interest
to one or more parties all of whom are not affiliates of the Initial Investors or (y) the Atairos Investors having divested 77% or more
of the Atairos Cumulative Interest to one or more parties all of whom are not affiliates of the Initial Investors; or (2) a sale of all
or substantially all of the assets of the business conducted by the Company and its Subsidiaries to one or more parties, other than parties
that the Initial Investors control or in which the Initial Investors own a majority interest.
(vii) “Triggering
IPO” means an underwritten public offering of Common Shares pursuant to an effective registration statement under the Securities
Act of 1933 (as amended), other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar or successor form, in
which the Initial Investors are secondary sellers and after which each of the Initial Investors will have divested 15% or more of each
of their relative portions of the Initial Investors Cumulative Interest.
(e) All
determinations and measurements required to compute the Atairos Cumulative Interest or the Initial Investors Cumulative Interest or Aggregate
Equity Return or other amounts under this Award Agreement, and to determine whether any transaction constitutes a Sale of the Company
or Triggering IPO, shall be made by the Board in its reasonable good faith judgment and shall be final and binding on all parties for
all purposes under this Award Agreement.
SECTION 5. Exercise.
(a) Notice
of Exercise. Exercise of the Tranche 1 Options, in whole or in part, shall be by delivery of a notice to the Company as provided in
Section 13 which specifies the number of Common Shares being purchased.
(b) Payment
of Exercise Price. Payment of the Exercise Price may, at the Participant’s election, be made by the Company withholding from
the person providing the notice described in Section 5(a) a net number of Common Shares equal to such person’s obligation to pay
the Exercise Price from the number of Common Shares that are subject to the Tranche 1 Options being exercised.
(c) Payment
of Taxes. The Company has the authority to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient
to satisfy applicable federal, state, local and foreign withholding taxes (including the employee portion of any FICA obligation) required
by law to be withheld with respect to any taxable event arising pursuant to this Award Agreement. Payment of the withholding taxes or
Participant’s other tax obligations arising from the exercise of the Tranche 1 Options (the “Applicable Taxes”)
may, at the Participant’s election, be made by the Company withholding from the person providing the notice described in Section 5(a) a net number of Common Shares having
an aggregate Fair Market Value of the Applicable Taxes.
(d)
Notwithstanding the foregoing, Sections 5(b) and 5(c) shall not apply with respect to any exercise that occurs at a time when the
Common Shares are listed and traded on a national U.S. retail securities exchange and the Common Shares underlying the Tranche 1
Options are covered by an effective registration statement under the Securities Act and an appropriate listing application, and a
broker-assisted cashless exercise procedure is freely available to the Participant, provided that there is no legal or
contractual impediment to the Participant’s use of the broker-assisted cashless exercise procedure.
(e) Certificate.
Promptly after receipt of the notice described in Section 5(a) and payment of the Exercise Price and associated withholding taxes described
in Section 5(b) and 5(c), the Company shall deliver to the person exercising the Tranche 1 Options a certificate, or other indication
of ownership, for the number of Common Shares purchased. Common Shares to be issued upon the exercise of the Tranche 1 Options may be
either authorized and unissued Common Shares or Common Shares which have been reacquired by the Company.
SECTION
6. Change of Control. In the event of a Change of Control (as defined in the Plan), the Committee shall not be able to
take the actions described in Sections 7.01(a), (c), (d), or (e) of the Plan with respect to the Tranche 1 Options, in each case,
without the consent of the Chief Executive Officer. However, for the avoidance of doubt, the Committee shall have full discretion,
subject to any applicable regulatory approvals, to take whatever actions that it deems necessary or appropriate to accomplish the
action described in Section 7.01(b) of the Plan and the terms of the Stockholders’ Agreement with respect to the Tranche 1
Options and the underlying Common Shares.
SECTION 7. Termination of Employment
or Service. In the event of a termination of the Participant’s employment or service with the Company or any of its Subsidiaries,
the Tranche 1 Options may be exercised as follows:
(a) Termination
without Cause; Termination for Good Reason; Termination due to Death or Disability. If the Participant’s employment or service
with the Company or any of its Subsidiaries terminates due to a termination by the Company or any of its Subsidiaries without Cause, by
the Participant for Good Reason, as defined in the Participant’s Employment Agreement with the Company, dated as of June 6, 2017
(the “Employment Agreement”) or due to the Participant’s death or Disability:
(i) any
vested portion of the Tranche 1 Options will be retained and will remain subject to Section 4(c); and
(ii) any
unvested portion of the Tranche 1 Options will be deemed immediately forfeited and canceled in their entirety upon such termination of
employment or service without any payment or consideration being due from the Company.
(b) Termination
for Cause; Voluntary Termination without Good Reason. If the Participant’s employment or service with the Company or any of
its Subsidiaries is terminated by the Company or any of its Subsidiaries for Cause or by the Participant without Good Reason, as defined
in the Participant’s Employment Agreement, both the vested and unvested portions of the Tranche 1 Options shall be deemed immediately
forfeited and canceled in their entirety upon such termination of employment or service without any payment or
consideration being due from the Company.
(c) Company
Call Right. The Tranche 1 Options and Option Shares will be subject to the repurchase rights and other terms set forth in the Stockholders’
Agreement.
SECTION 8. Representations. The Participant
represents and warrants that:
(a) The
Participant is an executive officer of the Company and is qualified to purchase the Option Shares because he or she has such knowledge
and experience in financial and business matters that he or she is capable of evaluating the merits and risks of such investment.
(b) Any
Option Shares will be for the Participant’s own account for investment and not with any view to the distribution thereof, and the
Participant will not sell, assign, transfer or otherwise dispose of any of the Option Shares, or any interest therein, in violation of
the Securities Act or any applicable state securities law.
(c) The
Participant understands that (i) the Option Shares will not be registered under the Securities Act or any applicable state securities
law and may not be sold or otherwise disposed of unless they are registered or sold or otherwise disposed of in a transaction that is
exempt from such registration; and (ii) the certificates representing such Option Shares will bear appropriate legends restricting the
transferability thereof.
(d) The
Participant understands that the Company Group will rely upon the completeness and accuracy of these representations in establishing that
the contemplated transactions are exempt from the Securities Act and hereby affirms that all such representations are accurate and complete.
The Participant will notify the Company immediately of any changes in any of such information occurring during the term of the Tranche
1 Options.
SECTION 9. Restrictive Covenants.
(a) As
a condition precedent to receiving the Tranche 1 Options granted pursuant to this Award Agreement, the Participant hereby reaffirms the
Participant’s agreement to the restrictive covenants set forth in the Employment Agreement and the Stockholders’ Agreement.
(b)
It is acknowledged and agreed that any material breach by the Participant of any of the applicable restrictive covenants described
in Section 9(a) (relating to confidentiality, noncompetition, non-hire, non-solicitation obligations or other obligations described
therein and subject to all applicable notice and cure provisions in the relevant agreements) will be a “Restrictive Covenant
Breach” for the purpose of the Stockholders’ Agreement.
SECTION
10. Integration of Stockholders’ Agreement and Award Terms; Spousal Consent. In consideration of, and as a
condition to, the effectiveness of the Tranche 1 Options, to the extent that the Participant is not already a Stockholder (as
defined in the Stockholders’ Agreement), the Participant must execute and deliver to the Company an instrument or instruments
substantially in the form of Exhibit A hereto confirming that the Participant has agreed to be bound as a
“Stockholder” and “Management Stockholder” by the terms of the Stockholders’ Agreement. For the
avoidance of doubt, the Participant shall have no rights as a Stockholder and Management Stockholder under the Stockholders’
Agreement during any period that the Participant is not the record owner of Common Shares, but shall be subject to the call rights
under Section 4.9 of the Stockholders’ Agreement. The Participant agrees to cause any current or future spouse of his or hers to deliver to the
Company a consent in the form of the consent set forth in Exhibit B hereto validly executed by such spouse on the date hereof or
promptly after any such person becomes his or her spouse, as applicable.
SECTION 11. Governing Law; Waiver
of Jury Trial. This Award Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without
regard to the conflicts of laws rules of such state. Each of the parties hereto hereby irrevocably waives any and all right to trial by
jury in any legal proceeding arising out of or related to this Award Agreement or the transactions contemplated hereby.
SECTION 12. Interpretation.
The Participant accepts the Tranche 1 Options subject to all the terms and provisions of the Plan, which shall control in the event of
any conflict between any provision of the Plan and this Award Agreement, and accepts as binding, conclusive and final all decisions or
interpretations of the Committee upon any questions arising under the Plan and/or this Award Agreement. The Participant acknowledges receiving
a copy of the Plan.
SECTION 13. Notices. Any
notice under this Award Agreement shall be (a) if in writing, effective when delivered in person or deposited in the United States mail,
postage prepaid, registered or certified, and addressed to the Participant at his or her last known address on the books of the Company
or, in the case of the Company, at the address set forth below, subject to the right of either party to designate some other address at
any time hereafter in a notice satisfying the requirements of this Section 13, or (b) if delivered by electronic email transmission, effective
on the day on which such electronic email transmission was sent; provided, that no rejection notice is received.
c/o Bowlmor AMF Corp.
222 West 44th Street
New York, NY
10036
Attention: Brett Parker, Chief Financial
Officer
Email: bparker@bowlmor.com
With a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: William J. Chudd
SECTION 14. Sections and Headings.
All section references in this Award Agreement are to sections hereof for convenience of reference only and are not to affect the meaning
of any provision of this Award Agreement.
SECTION 15. Assignment.
The Company may, without the consent of the Participant, assign this Award Agreement (or any of its rights or interests under this Award
Agreement) to any successor to all or substantially all of the assets or business of the Company in which case references to the Company
under this Award Agreement shall be deemed to be references to such successor.
SECTION
16. Severability. If any provision of this Award Agreement shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions hereof, and this Award Agreement shall be construed and enforced as if such
provisions had not been included; provided, however, that if the Company’s call rights set forth in the
Stockholders’ Agreement or other agreement shall be held invalid or unenforceable, the Tranche 1 Options granted under this
Award Agreement shall be cancelled and terminated.
SECTION 17. Complete Agreement.
This Award Agreement, those documents expressly referred to herein and other documents of even date herewith embody the complete agreement
and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in any way.
SECTION 18. Counterparts.
This Award Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This Award Agreement shall become effective when each party hereto
shall have received counterparts hereof signed by all of the other parties hereto. Until and unless each party has received a counterpart
hereof signed by the other party hereto, this Award Agreement shall have no effect and no party shall have any right or obligation hereunder
(whether by virtue of any other oral or written agreement or other communication).
IN WITNESS WHEREOF, the undersigned have
caused this Award Agreement to be duly executed as of the date first above written.
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BOWLMOR
AMF CORP.
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By:
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Name:
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Thomas
F. Shannon
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Title:
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Chief
Executive Officer
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PARTICIPANT
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By:
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Name:
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Brett I. Parker
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[Signature Page for Tranche 1 – Parker – Option Award Agreement]
EXHIBIT A
JOINDER TO STOCKHOLDERS’
AGREEMENT
This
Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by the undersigned (the
“Joining Party”) in accordance with the Stockholders’ Agreement by and among (i) the Company, (ii) A-B
Parent LLC, a Delaware limited liability company, (iii) Cobalt Recreation LLC, a Delaware limited liability company, (iv) Thomas F.
Shannon and (v) Atairos Group, Inc., a Cayman Islands exempted company, dated as of June 6, 2017, as the same may be amended from
time to time. Capitalized terms used, but not defined, herein shall have the meaning ascribed to such terms in the
Stockholders’ Agreement.
The Joining Party hereby acknowledges,
agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party to the Stockholders’
Agreement as of the date hereof and shall have all of the rights and obligations of a “Stockholder” and “Management
Stockholder” thereunder as if it had executed the Stockholders’ Agreement and that the Tranche 1 Options granted to the Joining
Party under the Grant Notice and Award Agreement to which this Joinder Agreement is appended constitute “Equity Interests”
subject to the Stockholders’ Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all
of the terms, provisions and conditions contained in the Stockholders’ Agreement.
To
the extent that the Joining Party has previously executed or subsequently executes the Stockholders’ Agreement or an
additional joinder agreement to the Stockholders’ Agreement, this Joinder Agreement shall nevertheless be given independent
force and effect as a supplemental affirmation of the Joining Party’s agreement to the terms of the Stockholders’
Agreement in relation to the Joining Party’s receipt of the Tranche 1 Options granted under the Grant Notice and Award
Agreement to which this Joinder Agreement is appended and any and all other Equity Interests acquired by the Joining Party.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has
executed this Joinder Agreement as of the date written below.
Date:
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By:
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Name:
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Brett I. Parker
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Address for Notices:
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[Signature Page for Tranche
1 – Parker – Joinder Agreement]
EXHIBIT B
CONSENT OF SPOUSE
The undersigned spouse of Participant
who is the signatory to the foregoing Award Agreement has read and hereby approves the terms and conditions of the Plan and this Award
Agreement. In consideration of the Company’s granting his or her spouse the Tranche 1 Options as set forth in the Plan and this
Award Agreement, the undersigned hereby agrees to be irrevocably bound by the terms and conditions of the Plan and this Award Agreement
and further agrees that any community property interest shall be similarly bound. The undersigned hereby appoints the undersigned’s
spouse as attorney- in-fact for the undersigned with respect to any amendment or exercise of rights under the Plan or this Award Agreement.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has
executed this consent as of the date written below.
Date:
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Spouse of Brett I. Parker
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[Signature Page for Tranche 1 –
Parker – Consent of Spouse]
Exhibit 10.25
EXECUTIVE
OPTION PLAN – TRANCHE 2 AWARD
NOTICE OF GRANT
Bowlmor AMF Corp., a Delaware corporation
(the “Company”) granted to you Tranche 2 of the Executive Option Plan in the form of Options (the “Tranche
2 Options”) to purchase shares of the Company’s common stock under the Company’s 2017 Bowlmor AMF Corp. Stock Incentive
Plan (the “Plan”). Capitalized terms not defined in this Grant Notice or the attached Award Agreement shall have the
meanings specified for such terms in the Plan.
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Award Recipient:
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Thomas F. Shannon
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Award Type:
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Stock Options
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Award Amount:
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Total Common Shares subject to the Tranche 2 Options: 541,881
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Option Exercise Price:
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$335.13
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Grant Date:
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January 7, 2020
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Vesting Period for Tranche 2 Options:
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As set forth in the attached Award Agreement, each of the Tranche 2 Options will (A) vest in four equal annual installments with 25% vesting on each of the first four anniversaries of the Grant Date, subject to your continued service with the Company or its Subsidiaries as of each such anniversary, subject to the accelerated vesting provisions set forth in Section 3(b) of the Award Agreement and (B) become exercisable, as of or following vesting, in connection with any Sale of the Company or Triggering IPO, provided that the performance criteria set forth in Section 3 of the Award Agreement are met.
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Terms and Conditions:
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The Tranche 2 Options are subject to all the terms and conditions
set forth in this Stock Option Award Grant Notice (this “Grant Notice”), in the Award Agreement, in the Employment
Agreement and in the Plan.
Without a complete review of these documents, you will not
have a full understanding of all the material terms of your award.
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The securities evidenced by this certificate
have not been registered under the Securities Act of 1933, as amended, or applicable state securities laws and may not be sold, transferred,
assigned, offered, pledged or otherwise disposed of unless there is an effective registration statement under such Act or such disposition
is exempt from the registration. In addition, any such disposition shall be subject to the terms of the applicable Stockholders’
Agreement dated as of June 6, 2017 (as amended from time to time) a copy of which is on file in the Company’s offices. By acceptance
of this Grant Notice, the holder accepts such provisions of the Stockholders’ Agreement.
EXECUTIVE OPTION PLAN – TRANCHE
2 AWARD AGREEMENT
(Under the 2017 Bowlmor AMF Corp. Stock
Incentive Plan)
THIS AWARD AGREEMENT (the “Award
Agreement”) is made and entered into as of January 7, 2020 between Bowlmor AMF Corp., a Delaware corporation (the “Company”),
and Thomas F. Shannon (the “Participant”).
The Company and the Participant wish to
agree to the treatment of unallocated awards under the 2017 Bowlmor AMF Corp. Stock Incentive Plan (the “Plan”) as
set forth in Section 1 of this Award Agreement.
The Company hereby grants to the Participant
the first tranche of Options under the Executive Option Plan in form of Options (the “Tranche 2 Options”) to purchase
certain Common Shares on the terms and conditions as set forth in this Award Agreement and in the Plan. The Tranche 2 Options are Nonqualified
Options. Capitalized terms not otherwise defined herein have the meanings set forth in the Plan.
In accordance with this grant, and as
a condition thereto, the Company and the Participant agree as follows:
SECTION 1. Number of Common
Shares; Date of Grant; Exercise Price. The Executive Option Plan – Tranche 2 Award Notice of Grant (the “Grant Notice”)
attached hereto sets forth the number of Common Shares which are the subject of Tranche 2 Options and the date of grant of the Tranche
2 Options (the “Grant Date”). The exercise price at which each Common Share may be purchased under the Tranche 2 Options
(the “Exercise Price”) is at least the fair market value of a Common Share as of the Grant Date, and is set forth on
the attached Grant Notice.
SECTION 2. Term. The Tranche
2 Options shall not be exercisable to any extent after the twelfth (12th) anniversary of the Grant Date.
SECTION 3. Vesting and Exercisability.
(a) Subject
to the terms and conditions of this Award Agreement, including the limitations on exercisability set forth in Section 3(c) and the Plan,
the Tranche 2 Options will vest in four equal annual installments with 25% vesting on each of the first four anniversaries of the Grant
Date, subject to the Participant’s continued service with the Company or its Subsidiaries as of each such anniversary.
(b) Notwithstanding
the foregoing, any unvested Tranche 2 Options will become fully vested upon a Sale of the Company (as defined below) or Triggering IPO
(as defined below), subject to the Participant’s continued service with the Company or its Subsidiaries as of the date of the Sale
of the Company or Triggering IPO.
(c) To
the extent that any portion of the Tranche 2 Options becomes vested in accordance with Section 3(a) or (b) above, such vested
Tranche 2 Options shall be fully exercisable only if the applicable Sale of the Company or Triggering IPO results in an Aggregate
Equity Return that is equal to a multiple of at least 4.2 times the Initial Investors Cumulative Interest on the date of such Sale
of the Company or Triggering IPO. Any Tranche 2 Options that do not become exercisable in connection with a Sale of the Company or
Triggering IPO will be canceled and forfeited without consideration.
(d) Definitions
and Determinations. For the purposes of this Award Agreement, the terms below shall have the meaning designated:
(i) “Atairos
Investors” include A-B Parent LLC, a Delaware limited liability company and the Atairos Entities, their Affiliates and their
Permitted Transferees.
(ii) “Atairos
Cumulative Interest” means the greatest amount of the Atairos Investors’ collective interest, direct or indirect, in the
Company acquired at any time prior to a Sale of the Company.
(iii) “Initial
Investors” include (i) the Atairos Investors, (ii) Cobalt Recreation LLC, a Delaware limited liability company, (iii) Thomas
F. Shannon and (iv) Atairos Group, Inc., a Cayman Islands exempted company.
(iv) “Initial Investors Cumulative
Interest” means the greatest amount of the Initial Investors’ collective interest, direct or indirect, in the
Company acquired at any time prior to a Sale of the Company or Triggering IPO, as the case may be.
(v) “Aggregate
Equity Return” means, as of any Sale of the Company or Triggering IPO, the sum of (x) the value of all proceeds that will actually
be received by the Initial Investors in the aggregate as a result of the divestiture of the Initial Investors’ interest, direct
or indirect, in the Company in connection with the relevant Sale of the Company or Triggering IPO, valued as of the date received by the
Initial Investors and net of any customary transaction expenses incurred by the Initial Investors associated with such divestiture (to
the extent such expenses are not borne by the Company), (y) the value of all prior proceeds actually received by the Initial Investors
from all previous divestitures of the Initial Investors’ interest, direct or indirect, in the Company and any cash dividends or
distributions received by the Initial Investors as the result of any extraordinary recapitalization transactions by the Company, in each
case valued at the fair value of such proceeds, dividends or distributions as of the date received by the Initial Investors and net of
any customary transaction expenses associated with such divestitures, dividends or distributions incurred by the Initial Investors (to
the extent such expenses are not borne by the Company) and (z) the value of the Initial Investors’ interest, direct or indirect,
in the Company that will be retained by the Initial Investors following the relevant Sale of the Company or Triggering IPO, valued by
reference to the fair value of the proceeds received by the Initial Investors in connection with the Sale of the Company or Triggering
IPO and net of any customary transaction expenses associated with such divestitures incurred by the Initial Investors (to the extent such
expenses are not borne by the Company).
(vi) “Sale
of the Company” means (1) a negotiated sale of interests in the Company pursuant to a stock sale, exchange or similar
transaction (other than a Triggering IPO) or a merger of the Company into another company, provided that any such transaction
results in either (x) the Initial Investors having divested 50% or more of each of their relative portions of the Initial Investors
Cumulative Interest to one or more parties all of whom are not affiliates of the Initial Investors or (y) the Atairos Investors
having divested 77% or more of the Atairos Cumulative Interest to one or more parties all of whom are not affiliates of the Initial
Investors; or (2) a sale of all or substantially all of the assets of the business conducted by the Company and its Subsidiaries to
one or more parties, other than parties that the Initial Investors control or in which the Initial Investors own a majority
interest.
(vii) “Triggering
IPO” means an underwritten public offering of Common Shares pursuant to an effective registration statement under the Securities
Act of 1933 (as amended), other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar or successor form, in
which the Initial Investors are secondary sellers and after which each of the Initial Investors will have divested 15% or more of each
of their relative portions of the Initial Investors Cumulative Interest.
(e) All
determinations and measurements required to compute the Atairos Cumulative Interest or the Initial Investors Cumulative Interest or Aggregate
Equity Return or other amounts under this Award Agreement, and to determine whether any transaction constitutes a Sale of the Company
or Triggering IPO, shall be made by the Board in its reasonable good faith judgment and shall be final and binding on all parties for
all purposes under this Award Agreement.
SECTION 4. Exercise.
(a) Notice
of Exercise. Exercise of the Tranche 2 Options, in whole or in part, shall be by delivery of a notice to the Company as provided in
Section 12 which specifies the number of Common Shares being purchased.
(b) Payment
of Exercise Price. Payment of the Exercise Price may, at the Participant’s election, be made by the Company withholding from
the person providing the notice described in Section 4(a) a net number of Common Shares equal to such person’s obligation to pay
the Exercise Price from the number of Common Shares that are subject to the Tranche 2 Options being exercised.
(c) Payment
of Taxes. The Company has the authority to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient
to satisfy applicable federal, state, local and foreign withholding taxes (including the employee portion of any FICA obligation) required
by law to be withheld with respect to any taxable event arising pursuant to this Award Agreement. Payment of the withholding taxes or
Participant’s other tax obligations arising from the exercise of the Tranche 2 Options (the “Applicable Taxes”)
may, at the Participant’s election, be made by the Company withholding from the person providing the notice described in Section
4(a) a net number of Common Shares having an aggregate Fair Market Value of the Applicable Taxes.
(d) Notwithstanding the foregoing,
Sections 4(b) and 4(c) shall not apply with respect to any exercise that occurs at a time when the Common Shares are listed and
traded on a national U.S. retail securities exchange and the Common Shares underlying the Tranche 2 Options are covered by an
effective registration statement under the Securities Act and an appropriate listing application, and a broker-assisted cashless
exercise procedure is freely available to the Participant, provided that there is no legal or contractual impediment to the
Participant’s use of the broker-assisted cashless exercise procedure.
(e) Certificate.
Promptly after receipt of the notice described in Section 4(a) and payment of the Exercise Price and associated withholding taxes described
in Section 4(b) and 4(c), the Company shall deliver to the person exercising the Tranche 2 Options a certificate, or other indication
of ownership, for the number of Common Shares purchased. Common Shares to be issued upon the exercise of the Tranche 2 Options may be
either authorized and unissued Common Shares or Common Shares which have been reacquired by the Company.
SECTION 5. Change of
Control. In the event of a Change of Control (as defined in the Plan), the Committee shall not be able to take the actions
described in Sections 7.01(a), (c), (d), or (e) of the Plan with respect to the Tranche 2 Options, in each case, without the consent
of the Participant. However, for the avoidance of doubt, the Committee shall have full discretion, subject to any applicable
regulatory approvals, to take whatever actions that it deems necessary or appropriate to accomplish the action described in Section
7.01(b) of the Plan and the terms of the Stockholders’ Agreement with respect to the Tranche 2 Options and the underlying
Common Shares.
SECTION 6. Termination of Employment
or Service. In the event of a termination of the Participant’s employment or service with the Company or any of its Subsidiaries,
the Tranche 2 Options may be exercised as follows:
(a) Termination
without Cause; Termination for Good Reason; Termination due to Death or Disability. If the Participant’s employment or service
with the Company or any of its Subsidiaries terminates due to a termination by the Company or any of its Subsidiaries without Cause, by
the Participant for Good Reason, as defined in the Participant’s Employment Agreement with the Company, dated as of June 6, 2017
(the “Employment Agreement”) or due to the Participant’s death or Disability:
(i) any
vested portion of the Tranche 2 Options will be retained and will remain subject to Section 3(c); and
(ii) any
unvested portion of the Tranche 2 Options will be deemed immediately forfeited and canceled in their entirety upon such termination of
employment or service without any payment or consideration being due from the Company.
(b) Termination
for Cause; Voluntary Termination without Good Reason. If the Participant’s employment or service with the Company or any of
its Subsidiaries is terminated by the Company or any of its Subsidiaries for Cause or by the Participant without Good Reason, as defined
in the Participant’s Employment Agreement, both the vested and unvested portions of the Tranche 2 Options shall be deemed immediately
forfeited and canceled in their entirety upon such termination of employment or service without any payment or consideration being due
from the Company.
(c) Company
Call Right. The Tranche 2 Options and Option Shares will be subject to the repurchase rights and other terms set forth in the Stockholders’
Agreement.
SECTION 7. Representations. The Participant
represents and warrants that:
(a) The
Participant is an executive officer of the Company and is qualified to purchase the Option Shares because he or she has such knowledge
and experience in financial and business matters that he or she is capable of evaluating the merits and risks of such investment.
(b) Any
Option Shares will be for the Participant’s own account for investment and not with any view to the distribution thereof, and the
Participant will not sell, assign, transfer or otherwise dispose of any of the Option Shares, or any interest therein, in violation of
the Securities Act or any applicable state securities law.
(c) The
Participant understands that (i) the Option Shares will not be registered under the Securities Act or any applicable state
securities law and may not be sold or otherwise disposed of unless they are registered or sold or otherwise disposed of in a
transaction that is exempt from such registration; and (ii) the certificates representing such Option Shares will bear appropriate
legends restricting the transferability thereof.
(d) The
Participant understands that the Company Group will rely upon the completeness and accuracy of these representations in establishing that
the contemplated transactions are exempt from the Securities Act and hereby affirms that all such representations are accurate and complete.
The Participant will notify the Company immediately of any changes in any of such information occurring during the term of the Tranche
2 Options.
SECTION 8. Restrictive Covenants.
(a) As
a condition precedent to receiving the Tranche 2 Options granted pursuant to this Award Agreement, the Participant hereby reaffirms the
Participant’s agreement to the restrictive covenants set forth in the Employment Agreement and the Stockholders’ Agreement.
(b) It is
acknowledged and agreed that any material breach by the Participant of any of the applicable restrictive covenants described in
Section 8(a) (relating to confidentiality, noncompetition, non-hire, non-solicitation obligations or other obligations described
therein and subject to all applicable notice and cure provisions in the relevant agreements) will be a “Restrictive Covenant
Breach” for the purpose of the Stockholders’ Agreement.
SECTION
9. Integration of Stockholders’ Agreement and Award Terms; Spousal Consent. In consideration of, and as a condition
to, the effectiveness of the Tranche 2 Options, to the extent that the Participant is not already a Stockholder (as defined in the
Stockholders’ Agreement), the Participant must execute and deliver to the Company an instrument or instruments substantially
in the form of Exhibit A hereto confirming that the Participant has agreed to be bound as a “Stockholder” and
“Management Stockholder” by the terms of the Stockholders’ Agreement. For the avoidance of doubt, the Participant
shall have no rights as a Stockholder and Management Stockholder under the Stockholders’ Agreement during any period that the
Participant is not the record owner of Common Shares, but shall be subject to the call rights under Section 4.9 of the
Stockholders’ Agreement. The Participant agrees to cause any current or future spouse of his or hers to deliver to the Company
a consent in the form of the consent set forth in Exhibit B hereto validly executed by such spouse on the date hereof or
promptly after any such person becomes his or her spouse, as applicable.
SECTION 10. Governing Law; Waiver
of Jury Trial. This Award Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without
regard to the conflicts of laws rules of such state. Each of the parties hereto hereby irrevocably waives any and all right to trial by
jury in any legal proceeding arising out of or related to this Award Agreement or the transactions contemplated hereby.
SECTION 11. Interpretation.
The Participant accepts the Tranche 2 Options subject to all the terms and provisions of the Plan, which shall control in the event of
any conflict between any provision of the Plan and this Award Agreement, and accepts as binding, conclusive and final all decisions or
interpretations of the Committee upon any questions arising under the Plan and/or this Award Agreement. The Participant acknowledges receiving
a copy of the Plan.
SECTION 12. Notices.
Any notice under this Award Agreement shall be (a) if in writing, effective when delivered in person or deposited in the United
States mail, postage prepaid, registered or certified, and addressed to the Participant at his or her last known address on the
books of the Company or, in the case of the Company, at the address set forth below, subject to the right of either party to
designate some other address at any time hereafter in a notice satisfying the requirements of this Section 12, or (b) if delivered
by electronic email transmission, effective on the day on which such electronic email transmission was sent; provided, that
no rejection notice is received.
c/o Bowlmor AMF Corp.
222 West 44th Street
New York, NY
10036
Attention: Brett Parker, Chief Financial
Officer
Email: bparker@bowlmor.com
With a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: William J. Chudd
SECTION 13. Sections and Headings.
All section references in this Award Agreement are to sections hereof for convenience of reference only and are not to affect the meaning
of any provision of this Award Agreement.
SECTION 14. Assignment.
The Company may, without the consent of the Participant, assign this Award Agreement (or any of its rights or interests under this Award
Agreement) to any successor to all or substantially all of the assets or business of the Company in which case references to the Company
under this Award Agreement shall be deemed to be references to such successor.
SECTION 15. Severability. If
any provision of this Award Agreement shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any
other provisions hereof, and this Award Agreement shall be construed and enforced as if such provisions had not been included; provided,
however, that if the Company’s call rights set forth in the Stockholders’ Agreement or other agreement shall be held invalid
or unenforceable, the Tranche 2 Options granted under this Award Agreement shall be cancelled and terminated.
SECTION 16. Complete Agreement.
This Award Agreement, those documents expressly referred to herein and other documents of even date herewith embody the complete agreement
and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in any way.
SECTION 17. Counterparts.
This Award Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This Award Agreement shall become effective when each party hereto
shall have received counterparts hereof signed by all of the other parties hereto. Until and unless each party has received a counterpart
hereof signed by the other party hereto, this Award Agreement shall have no effect and no party shall have any right or obligation hereunder
(whether by virtue of any other oral or written agreement or other communication).
IN WITNESS WHEREOF, the undersigned have
caused this Award Agreement to be duly executed as of the date first above written.
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BOWLMOR AMF CORP.
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By:
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Name:
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Brett I. Parker
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Title:
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Chief Financial Officer
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PARTICIPANT
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By:
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Name:
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Thomas F. Shannon
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[Signature Page for Tranche 2 – Shannon – Option
Award Agreement]
EXHIBIT A
JOINDER TO STOCKHOLDERS’
AGREEMENT
This Joinder Agreement (this
“Joinder Agreement”) is made as of the date written below by the undersigned (the “Joining
Party”) in accordance with the Stockholders’ Agreement by and among (i) the Company, (ii) A-B Parent LLC, a Delaware
limited liability company, (iii) Cobalt Recreation LLC, a Delaware limited liability company, (iv) Thomas F. Shannon and (v) Atairos
Group, Inc., a Cayman Islands exempted company, dated as of June 6, 2017, as the same may be amended from time to time. Capitalized
terms used, but not defined, herein shall have the meaning ascribed to such terms in the Stockholders’ Agreement.
The Joining Party hereby acknowledges,
agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party to the Stockholders’
Agreement as of the date hereof and shall have all of the rights and obligations of a “Stockholder” and “Management
Stockholder” thereunder as if it had executed the Stockholders’ Agreement and that the Tranche 2 Options granted to the Joining
Party under the Grant Notice and Award Agreement to which this Joinder Agreement is appended constitute “Equity Interests”
subject to the Stockholders’ Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all
of the terms, provisions and conditions contained in the Stockholders’ Agreement.
To the extent
that the Joining Party has previously executed or subsequently executes the Stockholders’ Agreement or an additional joinder
agreement to the Stockholders’ Agreement, this Joinder Agreement shall nevertheless be given independent force and effect as a
supplemental affirmation of the Joining Party’s agreement to the terms of the Stockholders’ Agreement in relation to the
Joining Party’s receipt of the Tranche 2 Options granted under the Grant Notice and Award Agreement to which this Joinder
Agreement is appended and any and all other Equity Interests acquired by the Joining Party.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has
executed this Joinder Agreement as of the date written below.
Date:
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By:
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Name:
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Thomas F. Shannon
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[Signature Page for Tranche 2 – Shannon – Joinder
Agreement]
EXHIBIT B
CONSENT OF SPOUSE
The undersigned spouse of Participant
who is the signatory to the foregoing Award Agreement has read and hereby approves the terms and conditions of the Plan and this Award
Agreement. In consideration of the Company’s granting his or her spouse the Tranche 2 Options as set forth in the Plan and this
Award Agreement, the undersigned hereby agrees to be irrevocably bound by the terms and conditions of the Plan and this Award Agreement
and further agrees that any community property interest shall be similarly bound. The undersigned hereby appoints the undersigned’s
spouse as attorney- in-fact for the undersigned with respect to any amendment or exercise of rights under the Plan or this Award Agreement.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has
executed this consent as of the date written below.
Date:
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Spouse of Thomas F. Shannon
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[Signature Page for Tranche 2 – Shannon – Joinder
Agreement]
Exhibit 10.26
EXECUTIVE
OPTION PLAN – TRANCHE 2 AWARD
NOTICE OF GRANT
Bowlmor AMF Corp., a Delaware corporation
(the “Company”) granted to you Tranche 2 of the Executive Option Plan in the form of Options (the “Tranche
2 Options”) to purchase shares of the Company’s common stock under the Company’s 2017 Bowlmor AMF Corp. Stock Incentive
Plan (the “Plan”). Capitalized terms not defined in this Grant Notice or the attached Award Agreement shall have the
meanings specified for such terms in the Plan.
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Award Recipient:
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Brett I. Parker
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Award Type:
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Stock Options
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Award Amount:
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Total Common Shares subject to the Tranche 2 Options:
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180,627
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Option Exercise Price:
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$335.13
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Grant Date:
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January 7, 2020
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Vesting Period for Tranche 2 Options:
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As set forth in the attached Award Agreement, each of the Tranche 2 Options will (A) vest in four equal annual installments with 25% vesting on each of the first four anniversaries of the Grant Date, subject to your continued service with the Company or its Subsidiaries as of each such anniversary, subject to the accelerated vesting provisions set forth in Section 4(b) of the Award Agreement and (B) become exercisable, as of or following vesting, in connection with any Sale of the Company or Triggering IPO, provided that the performance criteria set forth in Section 4 of the Award Agreement are met.
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Terms and Conditions:
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The Tranche 2 Options are subject to all the terms and conditions
set forth in this Stock Option Award Grant Notice (this “Grant Notice”), in the Award Agreement, in the Employment
Agreement and in the Plan.
Without a complete review of these documents, you will
not have a full understanding of all the material terms of your award.
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The securities evidenced by this
certificate have not been registered under the Securities Act of 1933, as amended, or applicable state securities laws and may not be
sold, transferred, assigned, offered, pledged or otherwise disposed of unless there is an effective registration statement under such
Act or such disposition is exempt from the registration. In addition, any such disposition shall be subject to the terms of the applicable
Stockholders’ Agreement dated as of June 6, 2017 (as amended from time to time) a copy of which is on file in the Company’s
offices. By acceptance of this Grant Notice, the holder accepts such provisions of the Stockholders’ Agreement.
EXECUTIVE OPTION PLAN –
TRANCHE 2 AWARD AGREEMENT
(Under the 2017 Bowlmor AMF Corp.
Stock Incentive Plan)
THIS AWARD AGREEMENT (the “Award
Agreement”) is made and entered into as of January 7, 2020 between Bowlmor AMF Corp., a Delaware corporation (the “Company”),
and Brett I. Parker (the “Participant”).
The Company and the Participant
wish to agree to the treatment of unallocated awards under the 2017 Bowlmor AMF Corp. Stock Incentive Plan (the “Plan”)
as set forth in Section 1 of this Award Agreement.
The Company hereby grants to the
Participant the first tranche of Options under the Executive Option Plan in form of Options (the “Tranche 2 Options”)
to purchase certain Common Shares on the terms and conditions as set forth in this Award Agreement and in the Plan. The Tranche 2 Options
are Nonqualified Options. Capitalized terms not otherwise defined herein have the meanings set forth in the Plan.
In accordance with this grant, and
as a condition thereto, the Company and the Participant agree as follows:
SECTION 1. Number of Common
Shares; Date of Grant; Exercise Price. The Executive Option Plan – Tranche 2 Award Notice of Grant (the “Grant Notice”)
attached hereto sets forth the number of Common Shares which are the subject of Tranche 2 Options and the date of grant of the Tranche
2 Options (the “Grant Date”). The exercise price at which each Common Share may be purchased under the Tranche 2 Options
(the “Exercise Price”) is at least the fair market value of a Common Share as of the Grant Date, and is set forth on
the attached Grant Notice.
SECTION 2. Term. The
Tranche 2 Options shall not be exercisable to any extent after the twelfth (12th) anniversary of the Grant Date.
SECTION 3. Tag-Along Rights.
The parties acknowledge and agree that, for purposes of the Stockholders’ Agreement, each of the Common Shares acquired by the Participant
pursuant to an exercise of the Tranche 2 Options in accordance with Sections 4 and 5 below (the “Option Shares”) shall
be treated as an Equity Interest, subject to the Tag-Along Right held by the Participant as set forth in Section 4.5(c) of the Stockholders’
Agreement, and the terms and conditions of such Tag-Along Right as set forth in Section 4.5 of the Stockholders’ Agreement; provided,
however, it being understood that, for the purpose of the Tag-Along Right, as it applies to the Option Shares, Section 4.5 of the
Stockholders’ Agreement shall apply to the Option Shares without regard to whether the Shannon Stockholder is a Significant Stockholder.
For purposes of this Section 3, capitalized terms not otherwise defined herein or in the Plan have the meanings set forth in the Stockholders’
Agreement.
SECTION 4. Vesting and Exercisability.
(a)
Subject to the terms and conditions of this Award Agreement, including the limitations on exercisability set forth in Section 4(c)
and the Plan, the Tranche 2 Options will vest in four equal annual installments with 25% vesting on each of the first four anniversaries
of the Grant Date, subject to the Participant’s continued service with the Company or its Subsidiaries as of each such anniversary.
(b)
Notwithstanding the foregoing, any unvested Tranche 2 Options will become fully vested upon a Sale of the Company (as defined below)
or Triggering IPO (as defined below), subject to the Participant’s continued service with the Company or its Subsidiaries as of
the date of the Sale of the Company or Triggering IPO.
(c)
To the extent that any portion of the Tranche 2 Options becomes vested in accordance with Section 4(a) or (b) above, such vested
Tranche 2 Options shall be fully exercisable only if the applicable Sale of the Company or Triggering IPO results in an Aggregate Equity
Return that is equal to a multiple of at least 4.2 times the Initial Investors Cumulative Interest on the date of such Sale of the Company
or Triggering IPO. Any Tranche 2 Options that do not become exercisable in connection with a Sale of the Company or Triggering IPO will
be canceled and forfeited without consideration.
(d)
Definitions and Determinations. For the purposes of this Award Agreement, the terms below shall have the meaning designated:
(i)
“Atairos Investors” include A-B Parent LLC, a Delaware limited liability company and the Atairos Entities, their
Affiliates and their Permitted Transferees.
(ii)
“Atairos Cumulative Interest” means the greatest amount of the Atairos Investors’ collective interest,
direct or indirect, in the Company acquired at any time prior to a Sale of the Company.
(iii)
“Initial Investors” include (i) the Atairos Investors, (ii) Cobalt Recreation LLC, a Delaware limited liability
company, (iii) Thomas F. Shannon and (iv) Atairos Group, Inc., a Cayman Islands exempted company.
(iv) “Initial Investors Cumulative
Interest” means the greatest amount of the Initial Investors’ collective interest, direct or indirect, in the
Company acquired at any time prior to a Sale of the Company or Triggering IPO, as the case may be.
(v)
“Aggregate Equity Return” means, as of any Sale of the Company or Triggering IPO, the sum of (x) the value of
all proceeds that will actually be received by the Initial Investors in the aggregate as a result of the divestiture of the Initial Investors’
interest, direct or indirect, in the Company in connection with the relevant Sale of the Company or Triggering IPO, valued as of the date
received by the Initial Investors and net of any customary transaction expenses incurred by the Initial Investors associated with such
divestiture (to the extent such expenses are not borne by the Company), (y) the value of all prior proceeds actually received by the Initial
Investors from all previous divestitures of the Initial Investors’ interest, direct or indirect, in the Company and any cash dividends
or distributions received by the Initial Investors as the result of any extraordinary recapitalization transactions by the Company, in
each case valued at the fair value of such proceeds, dividends or distributions as of the date received by the Initial Investors and net
of any customary transaction expenses associated with such divestitures, dividends or distributions incurred by the Initial Investors
(to the extent such expenses are not borne by the Company) and (z) the value of the Initial Investors’ interest, direct or indirect,
in the Company that will be retained by the Initial Investors following the relevant Sale of the Company or Triggering IPO, valued by
reference to the fair value of the proceeds received by the Initial Investors in connection with the Sale of the Company or Triggering
IPO and net of any customary transaction expenses associated with such divestitures incurred by the Initial Investors (to the extent such
expenses are not borne by the Company).
(vi)
“Sale of the Company” means (1) a negotiated sale of interests in the Company pursuant to a stock sale, exchange
or similar transaction (other than a Triggering IPO) or a merger of the Company into another company, provided that any such transaction
results in either (x) the Initial Investors having divested 50% or more of each of their relative portions of the Initial Investors Cumulative
Interest to one or more parties all of whom are not affiliates of the Initial Investors or (y) the Atairos Investors having divested 77%
or more of the Atairos Cumulative Interest to one or more parties all of whom are not affiliates of the Initial Investors; or (2) a sale
of all or substantially all of the assets of the business conducted by the Company and its Subsidiaries to one or more parties, other
than parties that the Initial Investors control or in which the Initial Investors own a majority interest.
(vii)
“Triggering IPO” means an underwritten public offering of Common Shares pursuant to an effective registration
statement under the Securities Act of 1933 (as amended), other than pursuant to a registration statement on Form S-4 or Form S-8 or any
similar or successor form, in which the Initial Investors are secondary sellers and after which each of the Initial Investors will have
divested 15% or more of each of their relative portions of the Initial Investors Cumulative Interest.
(e)
All determinations and measurements required to compute the Atairos Cumulative Interest or the Initial Investors Cumulative Interest
or Aggregate Equity Return or other amounts under this Award Agreement, and to determine whether any transaction constitutes a Sale of
the Company or Triggering IPO, shall be made by the Board in its reasonable good faith judgment and shall be final and binding on all
parties for all purposes under this Award Agreement.
SECTION 5. Exercise.
(a)
Notice of Exercise. Exercise of the Tranche 2 Options, in whole or in part, shall be by delivery of a notice to the Company
as provided in Section 13 which specifies the number of Common Shares being purchased.
(b)
Payment of Exercise Price. Payment of the Exercise Price may, at the Participant’s election, be made by the Company
withholding from the person providing the notice described in Section 5(a) a net number of Common Shares equal to such person’s
obligation to pay the Exercise Price from the number of Common Shares that are subject to the Tranche 2 Options being exercised.
(c)
Payment of Taxes. The Company has the authority to deduct or withhold, or require the Participant to remit to the Company,
an amount sufficient to satisfy applicable federal, state, local and foreign withholding taxes (including the employee portion of any
FICA obligation) required by law to be withheld with respect to any taxable event arising pursuant to this Award Agreement. Payment of
the withholding taxes or Participant’s other tax obligations arising from the exercise of the Tranche 2 Options (the “Applicable
Taxes”) may, at the Participant’s election, be made by the Company withholding from the person providing the notice described
in Section 5(a) a net number of Common Shares having an aggregate Fair Market Value of the Applicable Taxes.
(d)
Notwithstanding the foregoing, Sections 5(b) and 5(c) shall not apply with respect to any exercise that occurs at a time when the
Common Shares are listed and traded on a national U.S. retail securities exchange and the Common Shares underlying the Tranche 2
Options are covered by an effective registration statement under the Securities Act and an appropriate listing application, and a
broker-assisted cashless exercise procedure is freely available to the Participant, provided that there is no legal or
contractual impediment to the Participant’s use of the broker-assisted cashless exercise procedure.
(e)
Certificate. Promptly after receipt of the notice described in Section 5(a) and payment of the Exercise Price and associated
withholding taxes described in Section 5(b) and 5(c), the Company shall deliver to the person exercising the Tranche 2 Options a certificate,
or other indication of ownership, for the number of Common Shares purchased. Common Shares to be issued upon the exercise of the Tranche
2 Options may be either authorized and unissued Common Shares or Common Shares which have been reacquired by the Company.
SECTION
6. Change of Control. In the event of a Change of Control (as defined in the Plan), the Committee shall not be able to
take the actions described in Sections 7.01(a), (c), (d), or (e) of
the Plan with respect to the Tranche 2 Options, in each case, without the consent of the Chief Executive Officer of the Company.
However, for the avoidance of doubt, the Committee shall have full discretion, subject to any applicable regulatory approvals, to
take whatever actions that it deems necessary or appropriate to accomplish the action described in Section 7.01(b) of the Plan and
the terms of the Stockholders’ Agreement with respect to the Tranche 2 Options and the underlying Common Shares.
SECTION 7. Termination
of Employment or Service. In the event of a termination of the Participant’s employment or service with the Company or any of
its Subsidiaries, the Tranche 2 Options may be exercised as follows:
(a)
Termination without Cause; Termination for Good Reason; Termination due to Death or Disability. If the Participant’s
employment or service with the Company or any of its Subsidiaries terminates due to a termination by the Company or any of its Subsidiaries
without Cause, by the Participant for Good Reason, as defined in the Participant’s Employment Agreement with the Company, dated
as of June 6, 2017 (the “Employment Agreement”) or due to the Participant’s death or Disability:
(i)
any vested portion of the Tranche 2 Options will be retained and will remain subject to Section 4(c); and
(ii)
any unvested portion of the Tranche 2 Options will be deemed immediately forfeited and canceled in their entirety upon such termination
of employment or service without any payment or consideration being due from the Company.
(b)
Termination for Cause; Voluntary Termination without Good Reason. If the Participant’s employment or service with
the Company or any of its Subsidiaries is terminated by the Company or any of its Subsidiaries for Cause or by the Participant without
Good Reason, as defined in the Participant’s Employment Agreement, both the vested and unvested portions of the Tranche 2 Options
shall be deemed immediately forfeited and canceled in their entirety upon such termination of employment or service without any payment
or consideration being due from the Company.
(c)
Company Call Right. The Tranche 2 Options and Option Shares will be subject to the repurchase rights and other terms set
forth in the Stockholders’ Agreement.
SECTION 8. Representations. The Participant
represents and warrants that:
(a)
The Participant is an executive officer of the Company and is qualified to purchase the Option Shares because he or she has such
knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of such
investment.
(b)
Any Option Shares will be for the Participant’s own account for investment and not with any view to the distribution thereof,
and the Participant will not sell, assign, transfer or otherwise dispose of any of the Option Shares, or any interest therein, in violation
of the Securities Act or any applicable state securities law.
(c)
The Participant understands that (i) the Option Shares will not be registered under the Securities Act or any applicable state
securities law and may not be sold or otherwise disposed of unless they are registered or sold or otherwise disposed of in a transaction
that is exempt from such registration; and (ii) the certificates representing such Option Shares will bear appropriate legends restricting
the transferability thereof.
(d)
The Participant understands that the Company Group will rely upon the completeness and accuracy of these representations in establishing
that the contemplated transactions are exempt from the Securities Act and hereby affirms that all such representations are accurate and
complete. The Participant will notify the Company immediately of any changes in any of such information occurring during the term of the
Tranche 2 Options.
SECTION 9. Restrictive Covenants.
(a)
As a condition precedent to receiving the Tranche 2 Options granted pursuant to this Award Agreement, the Participant hereby reaffirms
the Participant’s agreement to the restrictive covenants set forth in the Employment Agreement and the Stockholders’ Agreement.
(b)
It is acknowledged and agreed that any material breach by the Participant of any of the applicable restrictive covenants described
in Section 9(a) (relating to confidentiality, noncompetition, non-hire, non-solicitation obligations or other obligations described
therein and subject to all applicable notice and cure provisions in the relevant agreements) will be a “Restrictive Covenant
Breach” for the purpose of the Stockholders’ Agreement.
SECTION
10. Integration of Stockholders’ Agreement and Award Terms; Spousal Consent. In consideration of, and as a
condition to, the effectiveness of the Tranche 2 Options, to the extent that the Participant is not already a Stockholder (as
defined in the Stockholders’ Agreement), the Participant must execute and deliver to the Company an instrument or instruments
substantially in the form of Exhibit A hereto confirming that the Participant has agreed to be bound as a
“Stockholder” and “Management Stockholder” by the terms of the Stockholders’ Agreement. For the
avoidance of doubt, the Participant shall have no rights as a Stockholder and Management Stockholder under the Stockholders’
Agreement during any period that the Participant is not the record owner of Common Shares, but shall be subject to the call rights
under Section 4.9 of the Stockholders’ Agreement. The Participant agrees to cause any current or future spouse of his or hers
to deliver to the Company a consent in the form of the consent set forth in Exhibit B hereto validly executed by such spouse
on the date hereof or promptly after any such person becomes his or her spouse, as applicable.
SECTION 11. Governing
Law; Waiver of Jury Trial. This Award Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware
without regard to the conflicts of laws rules of such state. Each of the parties hereto hereby irrevocably waives any and all right to
trial by jury in any legal proceeding arising out of or related to this Award Agreement or the transactions contemplated hereby.
SECTION
12. Interpretation. The Participant accepts the Tranche 2 Options subject to all the terms and provisions of the Plan,
which shall control in the event of any conflict between any provision of the Plan and this Award Agreement, and accepts as binding,
conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Plan and/or this Award
Agreement. The Participant acknowledges receiving a copy of the Plan.
SECTION 13. Notices.
Any notice under this Award Agreement shall be (a) if in writing, effective when delivered in person or deposited in the United States
mail, postage prepaid, registered or certified, and addressed to the Participant at his or her last known address on the books of the
Company or, in the case of the Company, at the address set forth below, subject to the right of either party to designate some other address
at any time hereafter in a notice satisfying the requirements of this Section 13, or (b) if delivered by electronic email transmission,
effective on the day on which such electronic email transmission was sent; provided, that no rejection notice is received.
c/o Bowlmor AMF Corp.
222 West 44th Street
New York,
NY 10036
Attention: Brett Parker, Chief
Financial Officer
Email: bparker@bowlmor.com
With a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: William J. Chudd
SECTION 14. Sections and
Headings. All section references in this Award Agreement are to sections hereof for convenience of reference only and are not to affect
the meaning of any provision of this Award Agreement.
SECTION 15. Assignment.
The Company may, without the consent of the Participant, assign this Award Agreement (or any of its rights or interests under this Award
Agreement) to any successor to all or substantially all of the assets or business of the Company in which case references to the Company
under this Award Agreement shall be deemed to be references to such successor.
SECTION 16. Severability.
If any provision of this Award Agreement shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provisions hereof, and this Award Agreement shall be construed and enforced as if such provisions had not been included; provided,
however, that if the Company’s call rights set forth in the Stockholders’ Agreement or other agreement shall be held invalid
or unenforceable, the Tranche 2 Options granted under this Award Agreement shall be cancelled and terminated.
SECTION 17. Complete Agreement.
This Award Agreement, those documents expressly referred to herein and other documents of even date herewith embody the complete agreement
and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in any way.
SECTION
18. Counterparts. This Award Agreement may be executed in any number of counterparts, each of which shall be deemed to be
an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Award Agreement shall
become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto. Until and
unless each party has received a counterpart hereof signed by the other party hereto, this Award Agreement shall have no effect and
no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other
communication).
IN WITNESS WHEREOF, the undersigned
have caused this Award Agreement to be duly executed as of the date first above written.
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BOWLMOR AMF CORP.
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By:
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Name:
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Thomas F. Shannon
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Title:
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Chief Executive Officer
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PARTICIPANT
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By:
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Name:
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Brett I. Parker
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[Signature Page for Tranche 2 – Parker – Option
Award Agreement]
EXHIBIT A
JOINDER TO STOCKHOLDERS’
AGREEMENT
This
Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by the undersigned (the
“Joining Party”) in accordance with the Stockholders’ Agreement by and among (i) the Company, (ii) A-B
Parent LLC, a Delaware limited liability company, (iii) Cobalt Recreation LLC, a Delaware limited liability company, (iv) Thomas F.
Shannon and (v) Atairos Group, Inc., a Cayman Islands exempted company, dated as of June 6, 2017, as the same may be amended from
time to time. Capitalized terms used, but not defined, herein shall have the meaning ascribed to such terms in the
Stockholders’ Agreement.
The Joining Party hereby acknowledges,
agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party to the Stockholders’
Agreement as of the date hereof and shall have all of the rights and obligations of a “Stockholder” and “Management
Stockholder” thereunder as if it had executed the Stockholders’ Agreement and that the Tranche 2 Options granted to the Joining
Party under the Grant Notice and Award Agreement to which this Joinder Agreement is appended constitute “Equity Interests”
subject to the Stockholders’ Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all
of the terms, provisions and conditions contained in the Stockholders’ Agreement.
To
the extent that the Joining Party has previously executed or subsequently executes the Stockholders’ Agreement or an
additional joinder agreement to the Stockholders’ Agreement, this Joinder Agreement shall nevertheless be given independent
force and effect as a supplemental affirmation of the Joining Party’s agreement to the terms of the Stockholders’
Agreement in relation to the Joining Party’s receipt of the Tranche 2 Options granted under the Grant Notice and Award
Agreement to which this Joinder Agreement is appended and any and all other Equity Interests acquired by the Joining Party.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned
has executed this Joinder Agreement as of the date written below.
Date:
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By:
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Name:
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Brett I. Parker
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[Signature Page for Tranche 2 – Parker – Joinder
Agreement]
EXHIBIT B
CONSENT OF SPOUSE
The undersigned spouse of Participant
who is the signatory to the foregoing Award Agreement has read and hereby approves the terms and conditions of the Plan and this Award
Agreement. In consideration of the Company’s granting his or her spouse the Tranche 2 Options as set forth in the Plan and this
Award Agreement, the undersigned hereby agrees to be irrevocably bound by the terms and conditions of the Plan and this Award Agreement
and further agrees that any community property interest shall be similarly bound. The undersigned hereby appoints the undersigned’s
spouse as attorney- in-fact for the undersigned with respect to any amendment or exercise of rights under the Plan or this Award Agreement.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned
has executed this consent as of the date written below.
Date:
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Spouse of Brett I. Parker
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[Signature Page for Tranche
2 – Parker – Consent of Spouse]
Exhibit 23.1
Independent
Registered Public Accounting Firm’s Consent
We consent to the inclusion in this Registration
Statement of Isos Acquisition Corporation on Amendment No. 1 to Form S-4 (File No. 333-258080) of our report dated January 20, 2021, except
as to Note 8 as to which the date is March 4, 2021, which includes an explanatory paragraph as to the Company’s ability to
continue as a going concern, with respect to our audit of the financial statements of Isos Acquisition Corporation as of December 31,
2020 and for the period from December 29, 2020 (inception) through December 31, 2020, which report appears in the Prospectus, which is
part of this Registration Statement. We also consent to the reference to our Firm under the heading “Experts” in such Prospectus.
/s/ Marcum llp
Marcum llp
Houston, TX
September 20, 2021
Exhibit 23.2
Consent
of Independent Registered Public Accounting Firm
We
consent to the use of our report dated September 20, 2021, with respect to the consolidated financial statements of Bowlero Corp. and
subsidiaries, included herein and to the reference to our firm under the heading “Experts” in the proxy statement/prospectus.
/s/ KPMG LLP
Richmond,
Virginia
September
20, 2021
Exhibit 99.7
CONSENT OF PROSPECTIVE DIRECTOR
In accordance with Rule 438 promulgated under the Securities Act of
1933, as amended, I hereby consent to my being named in the Registration Statement on Form S-4 of Isos Acquisition Corporation, a Delaware
corporation (the “Company”), with the Securities and Exchange Commission, and all amendments (including post-effective
amendments) thereto (the “Registration Statement”) and any related prospectus and/or proxy statement contained therein
and any amendment or supplement thereto, as a person who is to become a director of the Company upon the Effective Time (as such term
is defined in the Business Combination Agreement, dated July 1, 2021 (as may be amended from time to time), by and among the Company and
Bowlero Corp., a Delaware corporation), and to the filing of this consent as an exhibit to the Registration Statement.
Date: August 24, 2021
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By:
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/s/ Michael J. Angelakis
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Name:
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Michael J. Angelakis
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Exhibit 99.8
CONSENT OF PROSPECTIVE DIRECTOR
In accordance with Rule 438 promulgated under the Securities Act of
1933, as amended, I hereby consent to my being named in the Registration Statement on Form S-4 of Isos Acquisition Corporation, a Delaware
corporation (the “Company”), with the Securities and Exchange Commission, and all amendments (including post-effective
amendments) thereto (the “Registration Statement”) and any related prospectus and/or proxy statement contained therein
and any amendment or supplement thereto, as a person who is to become a director of the Company upon the Effective Time (as such term
is defined in the Business Combination Agreement, dated July 1, 2021 (as may be amended from time to time), by and among the Company and
Bowlero Corp., a Delaware corporation), and to the filing of this consent as an exhibit to the Registration Statement.
Date: August 24, 2021
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By:
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/s/ Rachael A. Wagner
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Name:
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Rachael A. Wagner
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Exhibit 99.9
CONSENT OF PROSPECTIVE DIRECTOR
In accordance with Rule 438 promulgated under the Securities Act of
1933, as amended, I hereby consent to my being named in the Registration Statement on Form S-4 of Isos Acquisition Corporation, a Delaware
corporation (the “Company”), with the Securities and Exchange Commission, and all amendments (including post-effective
amendments) thereto (the “Registration Statement”) and any related prospectus and/or proxy statement contained therein
and any amendment or supplement thereto, as a person who is to become a director of the Company upon the Effective Time (as such term
is defined in the Business Combination Agreement, dated July 1, 2021 (as may be amended from time to time), by and among the Company and
Bowlero Corp., a Delaware corporation), and to the filing of this consent as an exhibit to the Registration Statement.
Date: August 23, 2021
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By:
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/s/ Robert J. Bass
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Name:
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Robert J. Bass
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Exhibit 99.10
CONSENT OF PROSPECTIVE DIRECTOR
In accordance with Rule 438 promulgated under the Securities Act of
1933, as amended, I hereby consent to my being named in the Registration Statement on Form S-4 of Isos Acquisition Corporation, a Delaware
corporation (the “Company”), with the Securities and Exchange Commission, and all amendments (including post-effective
amendments) thereto (the “Registration Statement”) and any related prospectus and/or proxy statement contained therein
and any amendment or supplement thereto, as a person who is to become a director of the Company upon the Effective Time (as such term
is defined in the Business Combination Agreement, dated July 1, 2021 (as may be amended from time to time), by and among the Company and
Bowlero Corp., a Delaware corporation), and to the filing of this consent as an exhibit to the Registration Statement.
Date: August 25, 2021
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By:
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/s/ Sandeep Mathrani
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Name:
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Sandeep Mathrani
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Exhibit 99.11
CASH/STOCK ELECTION FORM
Bowlero Corp.
Attn: Brett I. Parker
222 West 44th Street
New York, NY 10036
Ladies and Gentlemen:
I am an owner of shares of
common stock (“Bowlero Common Stock”) of Bowlero Corp., a Delaware corporation (“Bowlero”). I acknowledge
that I have received the proxy statement/prospectus dated ,
2021, relating to the Business Combination Agreement (the “BCA”), dated as of July 1, 2021, by and among Isos Acquisition
Corporation, a Cayman Islands exempted company (“Isos”), and Bowlero, pursuant to which, among other things, Bowlero
will be merged with and into Isos (the “Merger”), with Isos surviving the Merger. Capitalized terms not defined in
this cash/stock election form (the “Cash/Stock Election Form”) shall have the meanings set forth in the BCA.
I understand that in connection
with the transactions contemplated by the BCA, I am being given the opportunity to elect to receive, in exchange for each of my shares
of Bowlero Common Stock, if and when the Merger is completed, (i) cash or (ii) shares of Applicable Surviving Company Common Stock.
I understand that [●]
(the “Exchange Agent”) must receive this completed Cash/Stock Election Form no later than 5:00 p.m. (New York time)
on [●], 20211 or such other date as announced by Bowlero
and Isos (the “Election Date”). If the Exchange Agent does not receive a properly completed form by the Election Date,
I will be considered to have made an election to receive 100% of the merger consideration to which I am entitled pursuant to the BCA in
shares of Applicable Surviving Company Common Stock. I also understand that if I validly revoke this completed Cash/Stock Election Form
after I submit it by providing written notice to the Exchange Agent prior to the Election Date, I will be considered to have made an election
to receive 100% of the merger consideration to which I am entitled pursuant to the BCA in shares of Applicable Surviving Company Common
Stock, except to the extent I properly make a subsequent election prior to the Election Date.
I understand that if Bowlero
stockholders elect to receive more cash than is available for distribution as merger consideration under the BCA, those stockholders who
elected to receive cash will have the amount of cash they receive reduced on a pro rata basis and instead will receive shares of Applicable
Surviving Company Common Stock, in each case, with a value equal to the amount of the cash reduction as calculated in accordance with
Section 3.01 of the BCA.
I understand that Bowlero
shall have sole discretion to determine if a Cash Election or Stock Election is not properly made, changed or revoked with respect to
any shares of Bowlero Common Stock and that none of Bowlero, Isos or the Exchange Agent are under any duty to notify any person of any
applicable defect. In the event Bowlero makes a reasonable determination that a Cash Election or a Stock Election was not properly made
(including as a result of the Exchange Agent not received this Cash/Stock Election Form by the Election Deadline), the election made in
this Cash/Stock Election Form shall be deemed ineffective and the shares of Bowlero Common Stock covered by this Cash/Stock Election Form
will be deemed to have made an election to receive shares of Applicable Surviving Company Common Stock.
1
Note to Draft: To be the date that is 2 Business Days prior to the Closing.
Subject to the qualifications
described in the prospectus/proxy statement, I elect to do the following (check only one box):
Cash Election
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☐
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I elect to receive cash in consideration
for all of my shares of Bowlero Common Stock.
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Stock Election
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☐
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I elect to receive Applicable Surviving Company Common Stock
in consideration for all of my shares of Bowlero Common Stock.
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Mixed Election
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☐
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I elect to have a portion of my
shares of Bowlero Common Stock converted into the right to receive an amount equal to $________ in cash consideration (based on a price
per share equal to the Per Share Merger Consideration Value) and (ii) the balance of my shares of Bowlero Common Stock converted
into the right to receive Applicable Surviving Company Common Stock.
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I/we have executed this Cash/Stock
Election Form and returned the original Cash/Stock Election Form:
[●]
Attn: [●]
[●]
[●]
Dated:
, 2021
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(Signature)
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(Signature - if shares are held in more than one name)
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Name (Please print or type)
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Name (Please print or type)
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Street Address
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No. of Shares of Bowlero Common Stock Owned
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City and State
Zip
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Telephone
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IF SHARES ARE HELD IN JOINT OWNERSHIP, ALL
JOINT OWNERS SHOULD SIGN THIS ELECTION FORM. WHEN SIGNING AS ATTORNEY, EXECUTOR, ADMINISTRATOR, TRUSTEE, OFFICER, PARTNER OR GUARDIAN,
PLEASE GIVE FULL TITLE.